CLOSED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:20-cv-11053-MAG-RSW

Abrams et al v. Glass et al Assigned to: District Judge Mark A. Goldsmith Referred to: Magistrate Judge R. Steven Whalen Cause: 42:1983 Civil Rights Act

Date Filed: 04/29/2020 Date Terminated: 10/20/2020 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Elliott Abrams

represented by Hannah Rachael Fielstra Ernst Charara & Lovell 645 Griswold, Suite 4100 Detroit, MI 48226-____ 313-965-5555 Fax: 313-965-5556 Email: hannah@ecllawfirm.com ATTORNEY TO BE NOTICED

Kevin S. Ernst Ernst Charara & Lovell 645 Griswold, Suite 4100 Suite 4100 Detroit, MI 48226 313-965-5555 Fax: 313-965-5556 Email: kevin@ecllawfirm.com ATTORNEY TO BE NOTICED

Daniel E. Manville MSU Law Clinics P.O. Box 1570 East Lansing, MI 48826 517-432-6866 Email: daniel.manville@law.msu.edu ATTORNEY TO BE NOTICED

Plaintiff

Craig Seegmiller
Plaintiff Vincent Glass
Plaintiff Robert Reeves
Plaintiff Jamine Campbell

represented by Hannah Rachael Fielstra (See above for address) ATTORNEY TO BE NOTICED
Kevin S. Ernst (See above for address) ATTORNEY TO BE NOTICED
Daniel E. Manville (See above for address) ATTORNEY TO BE NOTICED
represented by Hannah Rachael Fielstra (See above for address) ATTORNEY TO BE NOTICED
Kevin S. Ernst (See above for address) ATTORNEY TO BE NOTICED
Daniel E. Manville (See above for address) ATTORNEY TO BE NOTICED
represented by Hannah Rachael Fielstra (See above for address) ATTORNEY TO BE NOTICED
Kevin S. Ernst (See above for address) ATTORNEY TO BE NOTICED
Daniel E. Manville (See above for address) ATTORNEY TO BE NOTICED
represented by Hannah Rachael Fielstra (See above for address) ATTORNEY TO BE NOTICED
Kevin S. Ernst (See above for address)

Plaintiff Lamont Heard
V. Defendant Willis Chapman

ATTORNEY TO BE NOTICED
Daniel E. Manville (See above for address) ATTORNEY TO BE NOTICED
represented by Hannah Rachael Fielstra (See above for address) ATTORNEY TO BE NOTICED
Kevin S. Ernst (See above for address) ATTORNEY TO BE NOTICED
Daniel E. Manville (See above for address) ATTORNEY TO BE NOTICED
represented by Allan J. Soros Michigan Department of Attorney General MDOC Division P.O. Box 30217 525 W. Ottawa Lansing, MI 48909 517-335-3055 Fax: 517-335-7157 Email: sorosa@michigan.gov ATTORNEY TO BE NOTICED
Cori E. Barkman Michigan Department of Attorney General 525 West Ottawa PO Box 30217 Lansing, MI 48909 517-335-3055 Fax: 517-335-7157 Email: barkmanc@michigan.gov ATTORNEY TO BE NOTICED

Kevin J. O'Dowd Michigan Dept of Attorney General MDOC Division 525 West Ottawa P.O. Box 30217 Lansing, MI 48909 517-335-3055 Fax: 517-335-7157 Email: odowdk@michigan.gov ATTORNEY TO BE NOTICED
Kristin M. Heyse Michigan Department of the Attorney General 525 W Ottawa St. 3rd Floor P.O. Box 30758 Lansing, MI 48909 517-335-7603 Fax: 517-335-1152 Email: heysek@michigan.gov ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon Michigan Dept of Attorney General MDOC Division 525 W. Ottawa Street P.O. Box 30217 4th Floor Lansing, MI 48909 517-335-3055 Fax: 517-335-7157 Email: trudgeons@michigan.gov ATTORNEY TO BE NOTICED
Scott A. Mertens MI Dept of Attorney General MDOC Division 525 W Ottawa PO Box 30217 Lansing, MI 48909 517-335-3550 Fax: 517-335-7157 Email: mertenss@michigan.gov ATTORNEY TO BE NOTICED

Defendant Noah Nagy
Defendant Melinda Braman

Zachary Austin Zurek Michigan Department of Attorney General Mdoc Division 525 W. Ottawa St. P.O. Box 30217 Lansing, MI 48909 517-335-3055 Email: zurekz1@michigan.gov ATTORNEY TO BE NOTICED
represented by Allan J. Soros (See above for address) ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) ATTORNEY TO BE NOTICED
Kevin J. O'Dowd (See above for address) ATTORNEY TO BE NOTICED
Kristin M. Heyse (See above for address) ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon (See above for address) ATTORNEY TO BE NOTICED
Scott A. Mertens (See above for address) ATTORNEY TO BE NOTICED
Zachary Austin Zurek (See above for address) ATTORNEY TO BE NOTICED
represented by Allan J. Soros (See above for address) ATTORNEY TO BE NOTICED

Defendant Bryan Morrison

Cori E. Barkman (See above for address) ATTORNEY TO BE NOTICED
Kevin J. O'Dowd (See above for address) ATTORNEY TO BE NOTICED
Kristin M. Heyse (See above for address) ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon (See above for address) ATTORNEY TO BE NOTICED
Scott A. Mertens (See above for address) ATTORNEY TO BE NOTICED
Zachary Austin Zurek (See above for address) ATTORNEY TO BE NOTICED
represented by Allan J. Soros (See above for address) ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) ATTORNEY TO BE NOTICED
Kevin J. O'Dowd (See above for address) ATTORNEY TO BE NOTICED
Kristin M. Heyse (See above for address) ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon (See above for address) ATTORNEY TO BE NOTICED
Scott A. Mertens

Defendant HEIDI E. WASHINGTON
Amicus ATTY Andrew NIckelhoff NICKELHOFF & WIDICK, PLLC 333 W. FORT STREET SUITE 1400 DETROIT, MI 48226 3134969515

(See above for address) ATTORNEY TO BE NOTICED
Zachary Austin Zurek (See above for address) ATTORNEY TO BE NOTICED
represented by Allan J. Soros (See above for address) ATTORNEY TO BE NOTICED
Cori E. Barkman (See above for address) ATTORNEY TO BE NOTICED
Kevin J. O'Dowd (See above for address) ATTORNEY TO BE NOTICED
Kristin M. Heyse (See above for address) ATTORNEY TO BE NOTICED
Sara Elizabeth Trudgeon (See above for address) ATTORNEY TO BE NOTICED
Scott A. Mertens (See above for address) ATTORNEY TO BE NOTICED
Zachary Austin Zurek (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew A. Nickelhoff Nickelhoff & Widick, PLLC 333 W. Fort Street Suite 1400 Detroit, MI 48226 313-496-9515 Fax: 313-965-4602

Amicus
ATTY Darren W Johnson PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 2123733000
Amicus
ATTY SUSANNA BUERGEL PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP 1285 Avenue of the Americas New York, NY 10019-6064 2123733000
Amicus
ATTY David C Kimball-Stanley PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP 1285 Avenue of the Americas New York, NY 10019-6064 2123733000

Email: anickelhoff@michlabor.legal ATTORNEY TO BE NOTICED
represented by Andrew A. Nickelhoff (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew A. Nickelhoff (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew A. Nickelhoff (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/29/2020

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Plaintiffs. Plaintiff requests summons issued. Receipt No: AMIEDC-7771630 - Fee: $ 400. County of 1st Plaintiff: Macomb - County Where Action Arose: Macomb - County of 1st Defendant: Macomb. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Index of Exhibits Exhibit Listings, # 2 Exhibit 1-Marlowe v. LeBlanc, # 3 Exhibit 2-MDOC ist of Tested and Positive Tests, # 4 Index of Exhibits 3-MDOC List of Tested Staff, # 5 Exhibit 4-Marion Corr Facility 73% inmates Test Poisitive, # 6 Exhibit 5-Lakeland Prison Inmates test for COVID-19, # 7 Exhibit 6-Prisons Mass Testing, # 8 Exhibit 7-Decl. Elliott Abrams, # 9 Exhibit 8-Decl. Seegmiller, # 10 Exhibit 9-Decl. Reeves, # 11 Exhibit 10-Withdrawn, # 12 Exhibit 11-Decl. Glass, # 13 Exhibit 12-Decl. Campbell, # 14 Exhibit 13-Decl. of Heard, # 15 Exhibit 14-Decl Dr. Chiao, # 16 Exhibit 15-PD

04/30/2020

Grievance 03.02.130, # 17 Exhibit 16-Warden's Forum, 04.01.250, # 18 Exhibit 17-Decl. Anderson, # 19 Exhibit 18-Decl. Cantrell, # 20 Exhibit 19-Decl. Hawkins, # 21 Exhibit 20-Decl. Hensley, # 22 Exhibit 21-Decl. Hodges, # 23 Exhibit 22-Decl. Killiam, # 24 Exhibit 23-Decl. Marr, # 25 Exhibit 24Decl. Szenay, # 26 Exhibit 25-Decl. Winburn, # 27 Exhibit 26-Decl. Lyons, # 28 Exhibit 27Director's Office Memorandum 2020-30, # 29 Exhibit 28-43 States Now Have Stay-At-Home Orders, # 30 Exhibit 29- Decl. Dr. Lauring, # 31 Exhibit 29A - Bio of Dr. Lauring, # 32 Exhibit 29B - CV of Dr. Lauring, # 33 Exhibit 30 - Affiidavit of Dr. Young, # 34 Exhibit 30A DV of Dr. Young) (Manville, Daniel) (Entered: 04/29/2020)
2 Emergency MOTION for Temporary Restraining Order , MOTION to Expedite by All Plaintiffs. (Attachments: # 1 Index of Exhibits Exhibit Listing, # 2 Exhibit 1 - Proclamation 9994, # 3 Exhibit 2 - WHO, Situation Report 92, # 4 Exhibit 3 - 43 States Now Have Stay-At-Home Orders, # 5 Exhibit 4 - Michigan Executive Order 2020-21, # 6 Exhibit 5 - Michigan Executive Order 2020-42, # 7 Exhibit 6 - Michigan Data, # 8 Exhibit 7 - Coronavirus in Ohio: More Than 1,800 Inmates at Marion Correctional Test Positive, # 9 Exhibit 8 - Michigan Executive Order No. 2020-29, # 10 Exhibit 9 - Letter from Bd. of Correction of the City of New York to Criminal Justice Leaders, # 11 Exhibit 10 Iowas Prisons Will Accelerate Release Of Approved Inmates To Mitigate Covid-19, # 12 Exhibit 11 - California Chief Justice Issues Second Advisory on Emergency Relief Measures, # 13 Exhibit 12 Joint Statement, # 14 Exhibit 13 - AG William Barr Pushes Expansion of Home Confinement to Reduce Prison Populations Amid Coronavirus, # 15 Exhibit 14 - Letter from Scott A. Allen and Josiah Rich to The Honorable Bennie Thompson, # 16 Exhibit 15 - CDC Guidelines, # 17 Exhibit 16 - MDOC Response and Information on Coronavirus, # 18 Exhibit 17 - Declaration of Vincent Glass, # 19 Exhibit 18 - Withdraw, # 20 Exhibit 19 - Declaration of Elliott Abrams, # 21 Exhibit 20 - Declaration of Elliott Abrams, # 22 Exhibit 21 - Michigan Department of Corrections Taking Steps to Curb COVID-19, # 23 Exhibit 22 - Declaration of Craig Seegmiller, # 24 Exhibit 23 - Declaration of Lamont Heard, # 25 Exhibit 24 Harvard Study, # 26 Exhibit 25 - Declaration of Dr. Lauring, # 27 Exhibit 26 - Declaration of Dr. Young, # 28 Exhibit 27 - Marlowe v. LeBlanc, CV 18-63-BAJ-EWD, 2020 WL 1955303, at *2 (M.D. La. Apr. 23, 2020), # 29 Exhibit 28 - World Health Organization, April 27, 2020, COVID-19, # 30 Exhibit 29 - Thakker v. Doll, # 31 Document Continuation 30 - United States v. Patino, # 32 Document Continuation 31 - Awshana, et al. v. Adducci, # 33 Document Continuation 32 United States v. Patino, # 34 Document Continuation 33 - United States v. Kennedy, # 35 Document Continuation 34 - Miller v. United States, # 36 Document Continuation 35 - Malam v. Adducci, # 37 Document

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

Continuation 36 - United States v. Muniz, # 38 Document Continuation 37 - Basank v. Decker, # 39 Document Continuation 38 - Jones v. Wolf, # 40 Document Continuation 39 - Xochihua-Jaimes v. Barr) (Manville, Daniel) (Entered: 04/30/2020)
3 SUMMONS Issued for *Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON* (SKra) (Entered: 04/30/2020)
4 NOTICE of Appearance by Hannah Rachael Fielstra on behalf of All Plaintiffs. (Fielstra, Hannah) (Entered: 04/30/2020)
5 NOTICE of Appearance by Kevin S. Ernst on behalf of All Plaintiffs. (Ernst, Kevin) (Entered: 04/30/2020)
6 CERTIFICATE OF SERVICE re 1 Complaint,,,,,,, by All Plaintiffs (Manville, Daniel) (Entered: 04/30/2020)
7 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Index of Exhibits Exhibit Listing, # 2 Exhibit 1 - Decl. of Abrams, # 3 Exhibit 2 - Decl of Seegmiller, # 4 Exhibit 3 - Decl of Reeves, # 5 Exhibit 4 Decl of Glass, # 6 Exhibit 5 - Decl of Campbell, # 7 Exhibit 6 - Decl of Heard, # 8 Exhibit 7 - Decl. of Anderson, # 9 Exhibit 8 - Decl. of Cantrell, # 10 Exhibit 9 - Decl. of Hawkins, # 11 Exhibit 10 - Decl. Hensley, # 12 Exhibit 11 - Decl. of Hodges, # 13 Exhibit 12 - Decl. of Killiam, # 14 Exhibit 13 - Decl. of Marr, # 15 Exhibit 14 - Decl. of Szenay, # 16 Exhibit 15 - Decl. of Winbush, # 17 Exhibit 16 - Decl of Lyons, # 18 Exhibit 17 - Withdrawn, # 19 Exhibit 18 - McBride v. Michigan Dept. of Corrections, # 20 Exhibit 19 - Smith v. Ohio Dept of Rehab. and Corr.,, # 21 Exhibit 20 - Dowdy-El v. Caruso, # 22 Exhibit 21 - Brown v. city of Detroit, # 23 Exhibit 22 - Johnson v. Martin) (Manville, Daniel) (Entered: 04/30/2020)
8 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/1/2020 at 01:45 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 05/01/2020)
9 NOTICE by All Plaintiffs of withdrawal of 2 Emergency MOTION for Temporary Restraining Order MOTION to Expedite . (Manville, Daniel) (Entered: 05/01/2020)
10 NOTICE of Appearance by Kevin J. O'Dowd on behalf of Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (O'Dowd, Kevin) (Entered: 05/01/2020)

05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020
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11 NOTICE of Appearance by Cori E. Barkman on behalf of Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (Barkman, Cori) (Entered: 05/01/2020)
12 NOTICE of Appearance by Kristin M. Heyse on behalf of Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (Heyse, Kristin) (Entered: 05/01/2020)
13 NOTICE of Appearance by Scott A. Mertens on behalf of Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (Mertens, Scott) (Entered: 05/01/2020)
14 NOTICE of Appearance by Sara Elizabeth Trudgeon on behalf of Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (Trudgeon, Sara) (Entered: 05/01/2020)
15 NOTICE of Appearance by Allan J. Soros on behalf of Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (Soros, Allan) (Entered: 05/01/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 5/1/2020. (Sandusky, K) (Entered: 05/01/2020)
16 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/4/2020 at 02:30 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 05/01/2020)
17 WAIVER OF SERVICE Returned Executed. Bryan Morrison waiver sent on 5/1/2020, answer due 6/30/2020. (O'Dowd, Kevin) (Entered: 05/04/2020)
18 WAIVER OF SERVICE Returned Executed. Melinda Braman waiver sent on 5/1/2020, answer due 6/30/2020. (O'Dowd, Kevin) (Entered: 05/04/2020)
19 WAIVER OF SERVICE Returned Executed. HEIDI E. WASHINGTON waiver sent on 5/1/2020, answer due 6/30/2020. (O'Dowd, Kevin) (Entered: 05/04/2020)
20 WAIVER OF SERVICE Returned Executed. Noah Nagy waiver sent on 5/1/2020, answer due 6/30/2020. (O'Dowd, Kevin) (Entered: 05/04/2020)

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

21 WAIVER OF SERVICE Returned Executed. Willis Chapman waiver sent on 5/1/2020, answer due 6/30/2020. (O'Dowd, Kevin) (Entered: 05/04/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 5/4/2020. (Sandusky, K) (Entered: 05/04/2020)
22 Emergency MOTION for Temporary Restraining Order , MOTION for Permanent Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits Exhibit Listing, # 2 Exhibit 1- Proclamation 9994, # 3 Exhibit 2 -Worldometers COVID-19 29 (report us), # 4 Exhibit 3 - 43 States Now Have Stay-At-Home Orders, # 5 Exhibit 4 - Michigan Executive Order 2020-21, # 6 Exhibit 5 - Michigan Executive Order 2020-42, # 7 Exhibit 6 - Michigan Data, # 8 Exhibit 7 - Coronavirus in Ohio: More Than 1,800 Inmates at Marion Correctional Test Positive, # 9 Exhibit 8 - Michigan Executive Order No. 2020-29, # 10 Exhibit 9 Letter from Bd. of Correction of the City of New York to Criminal Justice Leaders, # 11 Exhibit 10 - Iowas Prisons Will Accelerate Release Of Approved Inmates To Mitigate Covid-19, # 12 Exhibit 11 California Chief Justice Issues Second Advisory on Emergency Relief Measures, # 13 Exhibit 12 - Joint Statement, # 14 Exhibit 13 - AG William Barr Pushes Expansion of Home Confinement to Reduce Prison Populations Amid Coronavirus, # 15 Exhibit 14 - Letter from Scott A. Allen and Josiah Rich to The Honorable Bennie Thompson, # 16 Exhibit 15 - CDC Guidelines, # 17 Exhibit 16 - MDOC Response and Information on Coronavirus, # 18 Exhibit 17 - Declaration of Vincent Glass, # 19 Exhibit 18 - WITHDRAWN, # 20 Exhibit 19 Declaration of Elliott Abrams, # 21 Exhibit 20 - Declaration of Robert Reeves, # 22 Exhibit 21 - Michigan Department of Corrections Taking Steps to Curb COVID-19, # 23 Exhibit 22 - Declaration of Craig Seegmiller, # 24 Exhibit 23 - Declaration of Lamont Heard, # 25 Exhibit 24 - Harvard Study, # 26 Exhibit 25 - Declaration of Dr. Lauring, # 27 Exhibit 26 - Declaration of Dr. Young, # 28 Exhibit 27 arlowe v. LeBlanc, CV 18-63-BAJ-EWD, 2020 WL 1955303, at *2 (M.D. La. Apr. 23, 2020), # 29 Exhibit 28 - World Health Organization, April 27, 2020, COVID-19, # 30 Exhibit 29 - Thakker v. Doll, No. 20-cv-480, 2020 WL 1671563, at *6 (M.D. Pa. Mar. 31, 2020), # 31 Exhibit 30 - United States v. Stephens, No. 15-cr-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020), # 32 Exhibit 31 Awshana, et al. v. Adducci, No. 20-10699, 2020 WL 1808906, at *7 (E.D. Mich. Apr. 9, 2020), # 33 Exhibit 32 - United States v. Patino, Case No. 18-20451, 2020 WL 1676766, at *3 (E.D. Mich. Apr. 6, 2020), # 34 Exhibit 33 - United States v. Kennedy, Case No. 18-20315, 2020 WL 1493481, at *2 (E.D. Mich. Mar. 27, 2020), # 35 Exhibit 34 Miller v. United States, Case No. 16-20222-1, 2020 WL 1814084, at *3

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(E.D. Mich. Apr. 9, 2020), # 36 Exhibit 35 - Malam v. Adducci, No. 20-10829, 2020 WL 1672662 (E.D. Mich. Apr. 6, 2020), # 37 Exhibit 36 - United States v. Muniz, 2020 WL 1540325, at *1 (S.D. Tex. March 30, 2020), # 38 Exhibit 37 - Basank v. Decker, -- F.Supp.3d --, No. 20-CV- 2518, 2020 WL 1481503, at *5) (S.D.N.Y. Mar. 26, 2020), # 39 Exhibit 38 - Jones v. Wolf, Case No. 20-361, 2020 WL 1643857, at *13 (W.D.N.Y. Apr. 2, 2020), # 40 Exhibit 39 - Xochihua-Jaimes v. Barr) (Manville, Daniel) (Entered: 05/04/2020)
23 ORDER Setting Briefing Schedule on Plaintiff's Motion for Temporary Restraining Order (Dkt. 22 ) ( Response due by 5/12/2020, Reply due by 5/18/2020). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/05/2020)
24 NOTICE of Appearance by Sara Elizabeth Trudgeon on behalf of Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (Trudgeon, Sara) (Entered: 05/07/2020)
25 MOTION for Leave to File Excess Pages by Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (O'Dowd, Kevin) (Entered: 05/11/2020)
26 ORDER granting 25 Motion for Leave to File Excess Pages. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/12/2020)
27 RESPONSE to 22 Emergency MOTION for Temporary Restraining Order MOTION for Permanent Injunction filed by Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A 121-20 Press Release, # 3 Exhibit B Executive Order, # 4 Exhibit C CDC Interim Guide, # 5 Exhibit D Affd Washington, # 6 Exhibit E 317-20 Press Release, # 7 Exhibit F Affd McIntyre, # 8 Exhibit G Exec Ord 2020-29, # 9 Exhibit H DOM 2020-30, # 10 Exhibit I 4-3-20 CDC, # 11 Exhibit J Exec Ord 2020-59, # 12 Exhibit K Chart, # 13 Exhibit L Affd Morrison, # 14 Exhibit M Affd Braman, # 15 Exhibit N Affd Nagy, # 16 Exhibit O Affd Chapman, # 17 Exhibit P Affd Bush, # 18 Exhibit Q Soc Dist Examples, # 19 Exhibit R Valeintine v Collier, # 20 Exhibit S Marlowe v Leblanc, # 21 Exhibit T Burnett v Howard, # 22 Exhibit U PD 03.02.130, # 23 Exhibit V Swain v Junior, # 24 Exhibit W Nellson v Barnhart, # 25 Exhibit X Dorm Chart, # 26 Exhibit Y Baxley v Jividen, # 27 Exhibit Z Amos v Taylor, # 28 Exhibit AA Money v Pritzker, # 29 Exhibit BB Gulley v Ogondo) (O'Dowd, Kevin) (Entered: 05/12/2020)
28 STIPULATED ORDER Extending the Defendants' Due Date to File Response to Plaintiffs' Motion for Class Certification. Signed by

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District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/15/2020)
29 MOTION for Leave to File Excess Pages by All Plaintiffs. (Manville, Daniel) (Entered: 05/18/2020)
30 REPLY to Response re 22 Emergency MOTION for Temporary Restraining Order MOTION for Permanent Injunction filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits List of Exhibits, # 2 Exhibit 1 - Supplemental Declaration of Lauring, # 3 Exhibit 2 Summary of Cotton Prison, # 4 Exhibit 3 - Summary of Parnall Prison, # 5 Exhibit 4 - Summary of Macomb Prison, # 6 Exhibit 5 - Summary of Lakeland Prison, # 7 Exhibit 6 - Pictures of a mask made by the Prison, # 8 Exhibit 7 - Affidavit of Mack, # 9 Exhibit 8 - Affidavit of DeRoo, # 10 Exhibit 9 - Grievance Response to Abrams, # 11 Exhibit 10 - Grievance response to Reeves, # 12 Exhibit 11 - PD 04.01.150 Warden Forum, # 13 Exhibit 12 - PD 03.02.130 Grivance Policy, # 14 Exhibit 13 - Pugh v. Caruso, # 15 Exhibit 14 - United States v. Frost, # 16 Exhibit 15 - Malam v. Adducci, # 17 Exhibit 16 - Salami v. Rewerts, # 18 Exhibit 17 - Zayad v. Adducci, # 19 Exhibit 18 Refunjol v. Adducci, # 20 Exhibit 19 - High Death Rate in Michigan Prisons, # 21 Exhibit 20 - Basank v. Decker, # 22 Exhibit 21 - Jones v. Wolf, # 23 Exhibit 22 - Fofana v. Albene, # 24 Exhibit 23 - Awsjama v. Adducci, # 25 Exhibit 24 - Banks v. Booth, # 26 Exhibit 25 - Wilson v. Williams, # 27 Exhibit 26 - Mays v. Dart, # 28 Exhibit 27 - MartinezBrooks v. Easter, # 29 Exhibit Peoples v. Bauman, # 30 Exhibit Arias v. Decker, # 31 Exhibit Declaration of Dr. Draus) (Manville, Daniel) (Entered: 05/18/2020)
31 ORDER granting 29 Motion for Leave to File Excess Pages. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/19/2020)
32 MOTION Motion for Leave to File Amici Curiae Brief of Public Heath & Human Rights by Andrew NIckelhoff, Darren W Johnson, SUSANNA BUERGEL, David C Kimball-Stanley. (Nickelhoff, Andrew) (Entered: 05/19/2020)
33 SUPPLEMENTAL BRIEF re 32 MOTION Motion for Leave to File Amici Curiae Brief of Public Heath & Human Rights filed by SUSANNA BUERGEL, Darren W Johnson, David C Kimball-Stanley, Andrew NIckelhoff. (Nickelhoff, Andrew) (Entered: 05/19/2020)
34 EXHIBIT Exhibit A - Brief in Support re 33 Supplemental Brief, 32 MOTION Motion for Leave to File Amici Curiae Brief of Public Heath & Human Rights by SUSANNA BUERGEL, Darren W

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Johnson, David C Kimball-Stanley, Andrew NIckelhoff (Nickelhoff, Andrew) (Entered: 05/19/2020)
35 MOTION for Leave to File Sur-Reply Brief Under L.R. 7.1 by Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (O'Dowd, Kevin) (Entered: 05/20/2020)
36 RESPONSE to 35 MOTION for Leave to File Sur-Reply Brief Under L.R. 7.1 filed by All Plaintiffs. (Manville, Daniel) (Entered: 05/20/2020)
37 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/22/2020 at 09:30 AM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 05/21/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 5/22/2020. (Sandusky, K) (Entered: 05/26/2020)
39 ORDER REFERRING OTHER MATTERS to Magistrate Judge Whalen : Settlement Conference. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) Modified on 5/29/2020 (Sandusky, K). (Entered: 05/29/2020)
38 MEMORANDUM for Settlement Conference by All Plaintiffs (Manville, Daniel) (Entered: 05/27/2020)
40 ATTORNEY APPEARANCE: Zachary Austin Zurek appearing on behalf of Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON as Co-Counsel with Certificate of Service (Zurek, Zachary) (Entered: 05/29/2020)
41 Emergency MOTION to Withdraw 22 Emergency MOTION for Temporary Restraining Order MOTION for Permanent Injunction by All Plaintiffs. (Manville, Daniel) (Entered: 05/30/2020)
42 Emergency MOTION to Withdraw 28 Stipulation and Order by All Plaintiffs. (Manville, Daniel) (Entered: 05/30/2020)
43 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 6/1/2020 at 10:30 AM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 06/01/2020)

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06/08/2020

Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 6/1/2020 (Sandusky, K) (Entered: 06/01/2020)
44 ORDER Requiring Response to Emergency Motions (Dkts. 41 , 42 ), Granting Motion for Leave to File Amici Curiae Brief (Dkt. 32 ), and Granting In Part Defendant's Motion for Leave to File a Sur-reply ( Response due by 6/2/2020, Sur-Reply due by 6/5/2020). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 06/01/2020)
45 RESPONSE to 41 Emergency MOTION to Withdraw 22 Emergency MOTION for Temporary Restraining Order MOTION for Permanent Injunction , 42 Emergency MOTION to Withdraw 28 Stipulation and Order filed by Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (Attachments: # 1 Exhibit A Bush Affidavit) (O'Dowd, Kevin) (Entered: 06/02/2020)
46 REPLY to Response re 41 Emergency MOTION to Withdraw 22 Emergency MOTION for Temporary Restraining Order MOTION for Permanent Injunction filed by All Plaintiffs. (Manville, Daniel) (Entered: 06/03/2020)
47 ORDER Granting In Part Emergency Motion for Expedited Discovery and Expedited Evidentiary Hearing (Dkt. 41 ), and Denying Emergency Motion to Withdraw Stipulation and Order Requiring Response to Motion for Class Certification (Dkt. 42 ) ( Evidentiary Hearing set for 6/17/2020 08:30 AM before District Judge Mark A. Goldsmith). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 06/03/2020)
48 Defendants' Disclosure of WITNESS LIST by Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON (O'Dowd, Kevin) (Entered: 06/05/2020)
49 SUR-REPLY re 22 Emergency MOTION for Temporary Restraining Order MOTION for Permanent Injunction filed by Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON. (Attachments: # 1 Index of Exhibits, # 2 Exhibit CC Fatality Rate, # 3 Exhibit DD - Pris Staff Testing, # 4 Exhibit EE Letter to staff, # 5 Exhibit FF - Other State's Testing, # 6 Exhibit GG Cummings v Washington, # 7 Exhibit HH - Maney v Brown) (O'Dowd, Kevin) (Entered: 06/05/2020)
50 NOTICE TO APPEAR BY VIDEO CONFERENCE: Evidentiary Hearing set for 6/17/2020 08:30 AM before District Judge Mark A. Goldsmith. |Zoom Webinar Information:

06/08/2020 06/09/2020 06/09/2020 06/09/2020 06/09/2020 06/10/2020 06/10/2020 06/11/2020
06/12/2020

https://zoom.us/j/96648501370?pwd=YzNnaW01d2FSUyswVjFCeVd FdUNidz09 Password: 706620 Or iPhone one-tap : US: +12133388477,,96648501370#,,1#,706620# or +12532158782,,96648501370#,,1#,706620#| (Sandusky, K) (Entered: 06/08/2020)
51 NOTICE by Melinda Braman, Willis Chapman, Bryan Morrison, Noah Nagy, HEIDI E. WASHINGTON re 47 Order,, Terminate Motions,, Set Deadlines/Hearings, Notice of Service (Trudgeon, Sara) (Entered: 06/08/2020)
52 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 6/9/2020 at 11:00 AM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 06/09/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 6/9/2020. (Sandusky, K) (Entered: 06/09/2020)
53 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 6/9/2020 04:30 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 06/09/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 6/9/2020. (Sandusky, K) (Entered: 06/10/2020)
54 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 6/10/2020 at 04:30 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 06/10/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 6/10/2020 (Sandusky, K) (Entered: 06/11/2020)
55 STIPULATED ORDER Withdrawing Plaintiff's Motions for Temporary Restraining Order and/or Preliminary Injunction (Dkt. 22 ) and Motion to Certify Class (Dkt. 7 ) and Staying Proceedings. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 06/11/2020)
TEXT-ONLY NOTICE: Evidentiary Hearing on June 17, 2020 is Cancelled. (Sandusky, K) (Entered: 06/12/2020)

10/09/2020 10/13/2020 10/14/2020 10/20/2020

56 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 10/20/2020 11:00 AM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 10/09/2020)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 10/20/2020 04:30 PM before District Judge Mark A. Goldsmith (TIME CHANGE ONLY). The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 10/13/2020)
Set Deadlines/Hearings: TELEPHONIC Status Conference RESET for 10/21/2020 11:00 AM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327 (Sandusky, K) (Entered: 10/14/2020)
57 STIPULATED ORDER DISMISSING CASE. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 10/20/2020)

PACER Service Center Transaction Receipt

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Leake 2:20-cv-11053MAG-RSW 1.50
Not Exempt

 
 Case 2:20-cv-11053-MAG-RSW ECF No. 45 filed 06/02/20 PageID.2569 Page 1 of 13

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

No. 2:20-cv-11053 HON. MARK A. GOLDSMITH

Plaintiffs, V
WILLIS CHAPMAN, NOAH NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,

MAG. R. STEVEN WHALEN
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ EMERGENCY MOTIONS (R.41 AND R.42)

Defendants.

Daniel Manville (P39731) Attorney for Plaintiffs Civil Rights Clinic, MSU College of Law P.O. Box 1570 East Lansing, MI 48823 (517) 432-6866 daniel.manville@law.msu.edu

Kevin J. O’Dowd (P39383) Kristin M. Heyse (P64353) Scott A. Mertens (P60069) Sara E. Trudgeon (P82155) Cori E. Barkman (P61470) Allan J. Soros (P43702) Zachary A. Zurek (P80116) Assistants Attorney General Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov

Case 2:20-cv-11053-MAG-RSW ECF No. 45 filed 06/02/20 PageID.2570 Page 2 of 13
Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 kevin@ecllawfirm.com
/
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ EMERGENCY MOTIONS (R. 41 AND R.42)
Plaintiffs have filed two “emergency motions,” to which this brief responds: (1) Plaintiffs’ emergency motion for expedited discovery and expedited evidentiary hearing (R. 41, “Expedited Discovery Motion”) and (2) Plaintiffs’ emergency motion to withdraw stipulation and order (R. 28), requiring response to motion for class certification. (R. 42, “Motion Related to Class Certification Stipulation.”) Defendants oppose the first motion, in part, while voluntarily agreeing to some limited, expedited discovery prior to an evidentiary hearing, provided that the ability to obtain limited pre-hearing discovery is reciprocal. Defendants oppose the second motion outright as Plaintiffs have failed to provide a valid basis for withdrawing the prior stipulation and order (R. 28), and there is no resulting prejudice to Plaintiffs by adhering to this previously stipulated order.
2

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I. Defendants’ Response to Expedited Discovery Motion. A. Points of potential agreement. In seeking “limited expedited discovery” in advance of the
evidentiary hearing on Plaintiffs’ pending motion for temporary restraining order (TRO), Plaintiffs would impose significant and timeconsuming discovery burdens on Michigan Department of Corrections (MDOC) officials already stretched thin in addressing this unprecedented pandemic, while still attempting to carry out its normal day-to-day operations. Most of the limited discovery being sought is unnecessary to the immediate needs of this case and will not meaningfully assist this Court in its deliberations on the TRO motion.
That said, Defendants voluntarily agree to limited depositions (i.e. no more than two hours in length) of the two individuals Plaintiffs specifically requested: namely Director Heidi Washington and Dr. Carmen McIntyre, each of whom participated in the settlement conference in this matter last Thursday and have supplied detailed affidavits in this matter outlining MDOC’s COVID-19 response efforts. Defendants obviously intend to call these individuals as witnesses at the evidentiary hearing. Thus, Defendants do not oppose Plaintiffs’
3

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request to depose these two individuals prior to hearing, so long as Defendants are permitted to depose whoever Plaintiffs intend to call as experts at the hearing for a comparable length of time. It bears emphasis, however, that these two MDOC officials are carrying an extraordinary amount of responsibility already in directing and guiding MDOC’s COVID-19 response efforts, and it would be counter-productive to impose unnecessary time burdens upon them at this time, especially given their participation in the evidentiary hearing.
Second, Plaintiffs have requested “a listing of the designation of pole barns, the number of cubes in each, the number of bunk beds in each, and the number of inmates in each” (R. 41, ¶6). Defendants have no objection to voluntarily producing this information ahead of the hearing, as it is reasonably accessible. Defendants propose to produce this information to Plaintiffs by Tuesday, June 9, 2020.
Third, Defendants have no objection to providing the names of witnesses they intend to call at the evidentiary hearing and a brief summary of the anticipated subject areas of their testimony, again, provided this requirement is reciprocal. Defendants propose that both sides make this disclosure at least three days prior to the hearing.
4

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B. Points of disagreement. Defendants object to the remainder of Plaintiffs’ requests for expedited discovery as unnecessary prior to the hearing, as they are unlikely to produce evidence material to this Court’s deliberations and they are overly burdensome and prejudicial to the Defendants in managing time constraints during this critical time. This is especially true with respect to Plaintiffs’ requested site inspection of eight cell blocks at former Jackson Prison and the “prior infirmary/hospital located inside Jackson.” (R. 41, ¶6). During the settlement conference, MDOC’s Director addressed the issue of reopening certain facilities and explained why these facilities were either unavailable or not viable options, and Defendants had planned to address this in a sur-reply to Plaintiffs’ TRO motion, which Plaintiffs opposed. In any event, Plaintiffs seem to imply that MDOC is not being transparent or misrepresenting the facts in this regard, which is untrue. The Expedited Discovery Motion seeks to inspect eight cellblocks of the Jackson Prisons. (R. 41, ¶6) (listing cellblocks 3, 4, 5, 6, 7, 8, 11 and 12, plus the now demolished infirmary/hospital). The attached Affidavit of Acting Assistant Deputy Director (ADD) Jeremy Bush (Ex.
5

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A) explains why these cellblocks cannot, realistically, be reopened, due primarily to the extreme renovation and upgrade costs that would be associated with restoring these units to a basic industry standard operational and security level.1 Because most of these units have not housed prisoners for decades, renovation and upgrades would include everything from plumbing, HVAC, re-installing or upgrading basic utilities, installing new security systems and related computer technology, and individual cell upgrades (i.e. locking mechanisms, fixtures and basic equipment). Further, none of these units are currently set up to receive food service, healthcare, mental-health counseling, classroom training, or other programming or services. It is estimated that to bring any one of these units on-line would cost between three and four million dollars, at a minimum, and that this would take at least six months to a year to accomplish. Additionally, in order to meet current security standards, a new perimeter fence (akin to what appears around the nearby RGC Reception Center, see diagram attached to Affidavit of Jeremy Bush) would need to be installed around
1 Assuming no objections from Plaintiffs’ counsel and subject to the Court’s permission to file under seal, Defendants are prepared to provide an aerial map identifying the locations of the subject housing blocks and photos illustrating the current conditions within those housing blocks.
6

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these units. That would involve a DTMB design, bidding, and construction process that would take over a year to complete for the fence alone. As for the infirmary and hospital Plaintiffs refer to, those have already been demolished. (Ex. A, Affidavit of Jeremy Bush).
Defendants are prepared to provide further evidence and witness testimony addressing this issue at the evidentiary hearing. However, based on the affidavit of ADD Jeremy Bush, these cellblocks cannot realistically be reopened given the many physical renovations and upgrades required to achieve basic security and industry standards, costs involved, time to complete the construction design and bidding process, and related staffing requirements. Moreover, even if these many obstacles could be overcome, none of this could happen in time to provide any “emergency relief” in response to COVID-19, and MDOC does not have staff for these additional units/facilities. For these reasons, Defendants respectfully submit that if time is truly of the essence, as Plaintiffs suggest, it should not be spent making day trips to Jackson with experts to photograph currently defunct housing units, while tying up Defendants’ precious time during a pandemic. To impose this additional burden upon Defendants at this juncture would be
7

Case 2:20-cv-11053-MAG-RSW ECF No. 45 filed 06/02/20 PageID.2576 Page 8 of 13
disproportional to the immediate needs of the case and will not meaningfully assist this Court in its deliberations.
Defendants also oppose Plaintiffs’ remaining expedited discovery requests; specifically, Plaintiffs’ requests for “any writings relating the grievance process that were issued since December 1, 2019” and “all writings in relation to the testing of prison staff.” (R. 41, ¶6.) First, these requests are very vague, as currently worded, which makes any response extremely difficult. Moreover, there have been no formal changes in MDOC’s Policy Directives or Operating Procedures concerning grievances related to COVID-19, and to the extent any changes are being considered or discussed in this regard, they have not been made publicly available, and concern internal policy decisions. To the extent this Court has questions as to how COVID-19 grievances are being handled, these issues can be addressed through witnesses at the evidentiary hearing.
Finally, as to “all writings in relation to the testing of prison staff,” this is not only vague, but extremely overly broad, as it could refer to any and all emails or communications between MDOC officials and staff concerning staff testing, in terms of when and where testing is
8

Case 2:20-cv-11053-MAG-RSW ECF No. 45 filed 06/02/20 PageID.2577 Page 9 of 13
being made available, how staff are being encouraged to be tested, or to information that is publicly available, such as CDC Guidelines concerning staff testing. Moreover, MDOC’s website is very transparent regarding the issue of voluntary staff testing being made available through the MDOC (as opposed to staff being privately tested through their own medical providers) and Plaintiffs can readily discover how may staff per facility have been tested using MDOC resources, by reviewing MDOC’s website, which is updated daily. It is no mystery that Plaintiffs are critical of the fact the MDOC has not attempted to make staff testing mandatory or a condition of employment. However, there is no need for Plaintiffs to review all internal communications concerning staff testing to understand what is and is not currently being accomplished by way of staff testing, and MDOC should not be required to dedicate valuable resources to compile this type of information, beyond what is already publicly available. To the extent this Court has questions considering the current status of staff testing, this, too, can be addressed at the evidentiary hearing.
9

Case 2:20-cv-11053-MAG-RSW ECF No. 45 filed 06/02/20 PageID.2578 Page 10 of 13
II. Defendants’ Response to Motion Related to Class Certification Stipulation.
Plaintiffs’ Motion Related to Class Certification (R. 42) implies, incorrectly, that the stipulated order (R. 28) was negotiated as part of a settlement process. They state that “Plaintiffs agreed, in part, to this stipulation as to filing a response to the motion for class certification to allow flexibility in the settlement proceeding as to the application of any agreement to the MDOC’s prisoners who are the proposed class members.” (R. 42, ¶5). Plaintiffs further argue that “[b]ecause no aspect of a settlement could be reached, this matter is to be set for an expedited evidentiary hearing which requires Plaintiffs to reevaluate the posture of this litigation including the possible ramification of the stipulation for filing a response to class certification after the injunction motion is resolved.” (Id., ¶13).
Neither settlement prospects nor the “posture of this litigation” was a factor in agreeing to the subject stipulated order. Defense counsel’s basis for seeking the subject stipulation, communicated by email to Plaintiffs’ counsel on May 12, 2020, was short and concise. It stated, “Counsel, since the court will likely resolve most of the issues in
10

Case 2:20-cv-11053-MAG-RSW ECF No. 45 filed 06/02/20 PageID.2579 Page 11 of 13
this matter in deciding the TRO Motion, we are seeking your agreement to allow Defendants 14 days AFTER the court decides the TRO to…respond to the Motion to Certify.” Plaintiffs’ counsel’s response was equally concise, by so agreeing without qualification, and the stipulation was circulated, agreed to, and filed without any changes being requested by Plaintiffs’ counsel.
While conceding that there is no caselaw supporting their unusual request to withdraw a prior stipulated order (R. 42, ¶10), Plaintiffs now argue that “[i]t is Plaintiff’s position that it is best for this litigation that this Court resolve the class action motion at the same time as it resolves the motion for a permanent injunction.” (Id., ¶14). Although this shift in Plaintiffs’ position is clearly related to the outcome of the settlement conference, the subject stipulated order had nothing to do with settlement. Rather, it continues to serve its intended purpose, which is to allow the parties to focus their efforts on the TRO motion, with the agreement that the Defendants would be allowed 14 days after the Court makes it ruling to respond to the motion for certification.
Plaintiffs have failed to articulate a legitimate basis for withdrawing a previously agreed upon stipulated order. Nor is there
11

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any prejudice in requiring Plaintiffs to adhere to this stipulated order. On the other hand, requiring Defendants to now switch gears and respond to Plaintiff’s motion for class certification as Plaintiffs are also pressing for expedited discovery and an expedited evidentiary hearing is prejudicial to Defendants. Furthermore, any issues or questions Plaintiffs may have regarding the application of the Court’s ruling on the TRO motion to the class certification motion can be addressed by the Court in its ruling. Plaintiffs’ Motion Related to Class Certification Stipulation should be denied.
Conclusion For the reasons set forth above, Defendants request that this Court deny, at least in part, Plaintiffs’ Expedited Discovery Motion, in accordance with the forgoing response, and deny Plaintiffs’ Motion Related to Class Certification Stipulation.
Respectfully submitted, Dana Nessel Attorney General /s/Kevin J. O’Dowd Kevin J. O’Dowd (P39383) Assistant Attorney General Attorney for MDOC Defendants
12

Case 2:20-cv-11053-MAG-RSW ECF No. 45 filed 06/02/20 PageID.2581 Page 13 of 13
Michigan Department of Attorney General MDOC Division P.O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov Dated: June 2, 2020 CERTIFICATE OF SERVICE I hereby certify that on June 2, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing as well as via US Mail to all non-ECF participants. /s/Kevin J. O’Dowd Kevin J. O’Dowd (P39383) Assistant Attorney General Attorney for MDOC Defendants
13

 
 Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.825 Page 1 of 34

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

Plaintiffs,

-v-
WILLIS CHAPMAN, Warden, Macomb Correctional Facility; NOAH NAGY, Warden at G. Robert Cotton Correctional Facility (JCF); MELINDA BRAMAN, Warden, Parnall Correctional Facility (SMT); BRYAN MORRISON, Warden Lakeland Correctional Facility (LCF); HEIDI WASHINGTON, Director of the Michigan Department of Corrections, sued in their official capacities only,

Case No. 2:20-cv-11053-MAG-RSW Hon. Mark A. Goldsmith Maj. Judge R. Steven Whalen

Defendants.

PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER & INJUNCTIVE RELIEF
AND BRIEF IN SUPPORT
Plaintiffs, Elliott Abrams, Craig Seegmiller, Vincent Glass, Robert Reeves, and
Lamont Heard, on behalf of themselves and all others similarly situated, by and through
their counsel, Daniel E. Manville, Michigan State University Clinical Law Professor,
hereby move this Court, pursuant to Fed. R. Civ. P. 65, for entry of a Temporary

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.826 Page 2 of 34
Restraining Order and Injunctive Relief. As demonstrated in the following brief, Defendants have violated the Eighth Amendment to the U.S. Constitution by failing to provide Plaintiffs with reasonably safe living conditions in the face of the current COVID19 pandemic. As a result, Plaintiffs seek entry of a temporary restraining order requiring Defendants to take additional precautions to stem the spread of the virus.

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.827 Page 3 of 34
CONCISE STATEMENT OF ISSUES PRESENTED Should the Court issue a preliminary injunction and enjoin the Defendants from
subjecting inmates to the COVID-19 virus where it is refusing to comply with CDC Guidelines?
Plaintiffs Answer: Yes.

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.828 Page 4 of 34
CONTROLLING AUTHORITY FOR RELIEF SOUGHT In determining whether to grant an emergency application for a temporary restraining order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id.

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.829 Page 5 of 34
I) INTRODUCTION The world is in the midst of a global health pandemic. The President has declared a
national emergency. Across the country, 43 states and Washington, D.C. have issued, and in some cases extended, “Shelter-in-Place” Orders. As things stand, COVID-19 has no vaccine, no treatment, and no cure. The only option to keep infections to a minimum in an effort to contain this public health emergency is to practice social distancing, proper hygiene, and intensify cleaning.
Meanwhile, as COVID-19 is spreading wildly across the country, a much quieter outbreak is occurring within the Michigan Department of Corrections (“MDOC”) where inmates remain confined in crowded facilities where social distancing is virtually impossible. As a result, inmates and correctional staff alike are particularly vulnerable to serious illness and potentially even death from the COVID-19 virus.
With this in mind, Plaintiffs seek immediate class-wide relief requiring Defendants to take critical steps to provide reasonably safe living conditions in the face of the COVID19 pandemic. Specifically, Plaintiffs seek changes to MDOC policy, as well as a change in the locations where inmates are kept in custody. These measures are not only in Plaintiffs’ best interests, but also in the best interest of correctional staff and the public at large because further outbreak of this virus will infect scores of individuals across our communities.

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.830 Page 6 of 34
NOTICE OF COMPLIANCE WITH LOCAL RULE 7.1(a_ Local Rule 7.1(a) requires Plaintiffs to ascertain whether this motion will be opposed. However, because this motion is being filed contemporaneously with the Complaint, there is not yet an attorney of record for Defendants in this case. Thus, pursuant to Local Rule 7.1(a)(2)(B), the undersigned counsel certifies that he was not able to obtain concurrence in the relief sought in this motion.
2

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.831 Page 7 of 34
II) STATEMENT OF FACTS A. COVID-19 IS SPREADING RAMPANTLY COVID-19 is spreading exponentially in Michigan and in the United States. The
risk of harm is so outrageous that President Trump proclaimed that the COVID-19 outbreak in the United States constituted a national emergency, beginning March 1, 2020. (Ex. 1, Proclamation 9994).1 As of April 28, 2020, 1,031,290 people in the United States have contracted COVID-19, with 57,043 people dying from the virus – figures that understate its spread, as they include only those who have managed to get tested. (Ex. 2, Worldometer’s COVID-19).2 Because the virus spreads more rapidly when people are in close contact with each other, government officials in forty-three (43) states and Washington, D.C. have issued “stay-at-home” or “shelter-in-place” directives, with exceptions only for essential services like grocery shopping and trips to the pharmacy. (Ex. 3, 43 States Now Have Stay-At-Home Orders).3
Likewise, on March 23, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-21 in response to the COVID-19 outbreak. (Ex. 4, MI Executive Order 2020-21).4 The Order limited gatherings and travel, and required workers who are
1 Proclamation 9994 of March 13, 2020, https://www.federalregister.gov/documents/2020/03/18/202005794/declaring-a-national-emergency-concerning-the-novel-coronavirus-disease-covid-19-outbreak 2 https://www.worldometers.info/coronavirus/country/us/ 3 Silverstein, Jason, “43 States Now Have Stay-At-Home Orders For Coronavirus. These Are The 7 That Don't” (April 6, 2020), CBS News. Available at: https://www.cbsnews.com/news/stay-at-homeorders-states/
3

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.832 Page 8 of 34
not necessary to sustain or protect life to stay home. (Id.) On April 9, 2020, the Governor reaffirmed the measures set forth in Executive Order 2020-21 and extended their duration to April 30, 2020. (Ex. 5, MI Executive Order 2020-42).5 Indeed, Michigan has become one of the global epicenters of the outbreak with a more than 37,778 reported cases and at least 3,315 deaths reported. (Ex. 6, Michigan Data). 6
B. DBOETDEILNYTIHOANRPMLACES PLAINTIFFS AT IMMINENT RISK OF SUBSTANTIAL Reducing the spread of the virus is especially challenging in prisons. This is due to a number of factors, including confined individuals’ inability to protect themselves through social distancing, lack of medical and hygiene supplies, constant cycling of people through the prisons, and inadequate medical care within the prison itself. Compl. ¶¶ 7-57 and ¶¶ 96-112 In Michigan, as of April 22, 2020, 655 MDOC prisoners have tested positive for COVID-19. (Ex. 6, Michigan Data). This case count places MDOC as the sixth highest “jurisdiction” in the state, only surpassed by Genesee County (1,362), Macomb County (4,628), Oakland County (6,463), Wayne County (6,535) and Detroit City (8,026). (Id.) However, the growing devastation in other prisons around the country is a harbinger for
4 Executive Order 2020-21 (COVID-19), State of Michigan (Mar. 23, 2020) https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626-,00.html) 5 Executive Order 2020-42 (COVID-19), State of Michigan (Apr. 9, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html 6 Michigan Data, State of Michigan (Apr. 22, 2020), https://www.michigan.gov/coronavirus/0,9753,7406-98163_98173---,00.html
4

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what almost certainly awaits MDOC if immediate safeguards are not enacted. For instance, at the Marion Correction Institution in Marion, Ohio, 1,828 inmates have tested positive, along with 109 staff members. (Ex. 7, Coronavirus in Ohio: More Than 1,800 Inmates at Marion Correctional Test Positive).7
C. SATBAROTAUETTEAGTINEHDSEIFNENCDEOEENRDGARLETGOEAXTPIEMRSPTELSTETMHINEANGVTSE IEMXMPREEDSISAETDE GARNADVEECFFOENCCTEIRVNE Based upon the heightened risk posed by COVID-19 in prisons, public health experts and prison administrators across the country have made it abundantly clear that inmates should be released from detention facilities, not only for their own safety, but also for the safety of others.8 In Michigan, Governor Whitmer has authorized enhanced earlyrelease for county jails, local lockups, and juvenile detention centers in an effort to mitigate

7 Coronavirus in Ohio: More Than 1,800 Inmates at Marion Correctional Test Positive, The Columbus Dispatch (Apr. 19, 2020) https://www.dispatch.com/news/20200419/coronavirus-in-ohio-more-than1800-inmates-at-marion-correctional-test-positive

8 See Ex. 9, Letter from Bd. of Correction of the City of New York to Criminal Justice Leaders (Mar.

21, 2020) (stating: “We urge you to follow your colleagues in Los Angeles County (CA), San Francisco

(CA), Cook County (IL), Autauga County (AL), Augusta County (VA), Allegheny County (PA),

Hamilton County (OH), Harris County (TX), Travis County (TX), and Cuyahoga County (OH), and

take

action

now

to

release

people

from

City

jails.”)https://www1.nyc.gov/assets/boc/downloads/pdf/News/covid-19/Letter-from-BOC-re-NYC-

Jails-and-COVID-19-2020-03-21.pdf ; Ex. 10, Linh Ta, Iowa’s prisons will accelerate release of

approved inmates to mitigate COVID-19, Times Republican (Mar. 23, 2020),

https://www.timesrepublican.com/news/todays-news/2020/03/iowas-prisons-will-accelerate-release-

of-approved-inmates-to-mitigate-covid-19/ (stating, “To mitigate a possible outbreak and create more

room in Iowa’s overcrowded prisons, the Iowa Department of Corrections plans to expedite the release

of about 700 inmates…”); Ex. 11, California Chief Justice Issues Second Advisory on Emergency

Relief Measures (Mar. 20, 2020), https://newsroom.courts.ca.gov/news/california-chief-justice-issues-

second-advisory-on-emergency-relief-measures .

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Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.834 Page 10 of 34
the COVID-19 spread. (Ex. 8, Executive Order No. 2020-29).9 Similarly, Chief Justice Bridget M. McCormack and Executive Director of the Michigan Sheriffs’ Association, Matt Saxton, have issued a joint statement urging judges and sheriffs to “use the statutory authority they have to reduce and suspend jail sentences for people who do not pose a public safety risk[,]… release far more people on their own recognizance while they await their day in court…[a]nd judges should use probation and treatment programs as jail alternatives.” (Ex. 12, Joint Statement).10
The federal government has also acknowledged the grave threat posed by a viral outbreak in prisons and detention centers. Indeed, on March 26, 2020, Attorney General William Barr stated that the Federal Bureau of Prisons is exploring the release of at-risk prisoners to home confinement in order to reduce the overall prison population. (Ex. 13, AG William Barr Pushes Expansion of Home Confinement to Reduce Prison Populations Amid Coronavirus).11 Likewise, DHS’s subject matter experts have stressed that COVID19 is exponentially more likely to spread in “congregate settings,” such as prisons. (Ex.
9 Executive Order No. 2020-29 (Apr. 26, 2020), https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-523422-,00.html 10 Joint Statement (Mar. 26, 2020), https://courts.michigan.gov/NewsEvents/press_releases/Documents/CJ%20and%20MSA%20Joint%20Statement%20draft%202%20(0 03).pdf 11 Alexander Mallin, AG William Barr Pushes Expansion of Home Confinement to Reduce Prison Populations Amid Coronavirus, ABC News (Mar. 26, 2020), https://abcnews.go.com/Politics/agwilliam-barr-pushes-expansion-home-confinement-reduce/story?id=69816504
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Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.835 Page 11 of 34

14, Letter from Scott A. Allen and Josiah Rich to The Honorable Bennie Thompson at pg. 2, 3, 4, 5, 7).12 As such, “DHS should consider releasing all detainees in high risk medical groups, such as older people and those with chronic disease.” (Id. at 5-6).
Because the virus spreads more rapidly when people are in close contact with each other, the Center for Disease Control (“CDC”) has issued “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.” (Ex. 15, CDC Guidelines).13 The CDC “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.” Id.
The CDC notes that “[t]here 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,

12 Letter from Scott A. Allen and Josiah Rich, to The Honorable Bennie Thompson, Chairman, House

Committee

on

Homeland

Security

(Mar.

19,

2020), https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-Allen-Rich-to-

Congress-Re.html#document/p4/a557238

13 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention (Apr. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html
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admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.” Id. at pg. 2. The CDC further notes that “[p]ersons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.” (Id.)
With regard to cleaning, the CDC emphasizes that “[e]ven 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.” Id. at pg. 9. These measures include disinfecting objects and surfaces in common areas and cleaning shared equipment. Id.
In addition to disinfection practices, correctional facilities should also “[r]einforce 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).” Id. at pg. 10. Moreover, inmates should also be provided with no-cost access to: Soap… Running water, and hand drying machines or disposable paper towels for hand washing… Tissues and no touch trash receptacles for disposal. Id.
Most importantly, detention facilities should “[i]mplement social distancing strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms).” Id. at pg. 11. In this
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regard, inmates should be separated in common areas, recreation spaces, fining halls, during group activities, and in their cells. Id.
D. MCODNOTRCOLHTAHSE FSAPRILEEADD OTFOTIHMEPVLIERMUSE.NT APPROPRIATE MEASURES TO The MDOC acknowledges the risks involved and has allegedly enacted a number of measures to protect its inmates. (Ex. 16, MDOC Response and Information on Coronavirus).14 However, even if the guidance set forth by the MDOC were being followed, it is wholly insufficient to adequately shield inmates from the crisis at hand.
1. Inmates Cannot Practice Social Distancing First, social distancing is virtually impossible in a prison setting. (Ex. 17, Glass Decl. at ¶ 3). In some areas, “bunks are separated by less than six (6) feet,” requiring inmates to contravene CDC Guidelines when they sleep. (Ex. 19, Abrams Decl. at ¶ 5). In addition to sleeping, in some facilities, food preparation, service and meals are communal, where inmates sit at tables just feet apart from one another. (Ex. 20, Reeves Decl. at ¶ 5; Ex. 17, Glass Decl. at ¶ 4-6). In others, prison staff makes no effort to ensure that prisoners wear face masks or keep at least six (6) feet when retrieving and returning meal trays. (Ex. 19, Abrams Decl. at ¶ 14). Indeed, MDOC spokesman, Chris Gautz, readily concedes that because inmates eat, sleep and live in closely confined quarters, they cannot achieve the social distancing needed to effectively prevent the spread of COVID-19:
14 MDOC Response and Information on coronavirus (COVID-19), (updated Apr. 16, 2020), https://medium.com/@MichiganDOC/mdoc-takes-steps-to-prevent-spread-of-coronaviruscovid-19-250f43144337
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We’ve been practicing social distancing to the extent we can in a prison. Really anything outside of your immediate living area. If you’re in a cell, obviously your bunkmate is going to be within 6 feet of you. (Ex. 21, Michigan Department of Corrections Taking Steps to Curb COVID-19).15
2. Cleaning And Disinfecting Practices Not only do inmates sleep within six feet of each other within their cells, but they also share sinks, toilets, showers, computers, telephones, microwaves, and drinking fountains, with very little disinfection between uses. (Ex. 19, Abrams Decl. at ¶ 6-11 and 16; Ex. 22, Seegmiller Decl. at ¶ 9-10; Ex. 20, Reeves Decl. at ¶ 4). Furthermore, some facilities are still operating a community laundry and most inmates only receive a change of uniform and linens twice a week. (Ex. 19, Abrams Decl. at ¶ 17). Finally, at least one inmate noted that his facility does not maintain a sufficient amount of cleaning supplies so that inmates may regularly disinfect cells, as recommended by CDC Guidelines. (Ex. 19, Abrams Decl. at ¶ 15).
3. Personal Protective Equipment (PPE) Inmates, as a whole, are not being issued facemasks or other forms of PPE. Rather, inmates are only receiving masks after testing positive for COVID-19. (Ex. 20, Reeves Decl. at ¶ 7). Equally concerning is that several inmates have reported both officers and medical staff either not changing dirty PPE after use, or not wearing PPE at all. (Ex. 19,
15 Cody Butler, Michigan Department of Corrections taking steps to curb COVID-19, WILX (Apr. 8, 2020), https://www.wilx.com/content/news/Michigan-Department-of-Corrections-taking-steps-tocurb-COVID-19-569483901.html
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Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.839 Page 15 of 34
Abrams Decl. at ¶ 13; Ex. 17, Glass Decl. at ¶ 7; Ex. 20, Reeves Decl. at ¶ 11; Ex. 23, Heard Decl. at ¶ 7).
According to a survey conducted by Harvard University and the National Commission on Correctional Health Care, who collected data from more than 320 facilities housing approximately 10 percent of the country’s inmates across 47 states (the “Harvard Study”), “The nationwide shortage of personal protective equipment (PPE) as well as ancillary supplies (such as cleaning products and thermometer probes) is also a problem for correctional health care operations.” (Ex. 24, Harvard Study).16
4. Quarantine and Isolation Defendants are not quarantining inmates who have exhibited symptoms or even tested positive for COVID-19. (Ex. 17, Glass Decl. at ¶ 8; Ex. 20, Reeves Decl. at ¶ 7). In fact, in Lakeland Corrections Facility Housing Unit 2-E, which is a Pole Barn, inmates were recently told by health service and prison staff that due to some inmates already testing positive in that unit and the other unit inmates in that unit already being exposed to these positive tested inmates that there was no reason to further quarantine any of
16First Research Findings Measure COVID-19 Prevalence In U.S. Prisons, Jails, Harvard Kennedy School (April 09, 2020), https://www.hks.harvard.edu/faculty-research/policy-topics/fairnessjustice/first-research-findings-measure-covid-19-prevalence
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Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.840 Page 16 of 34
the inmates. This failure to quarantine inmates is becoming the standard procedure.17 Compl. at Introduction, pg. 4.
5. Adequate Health Care Those who have been exposed to the virus or exhibit symptoms are not properly treated. Robert Reeves, who tested positive around March 28, 2020, is yet to see a physician, nor did he receive any information with regard to worsening symptoms “despite complaining of chest pain, coughing up blood, and having problems breathing.” (Ex. 20, Reeves Decl. at ¶ 19). Rather, he was “just told it was normal and to go through it.” (Id.)
6. Testing Finally, Plaintiffs are seeking implementation of rapid testing as the current protocol is woefully insufficient: If a prisoner has symptoms and meets the criteria for testing, the MDOC will seek permission from the local health department in the county the prison is in to conduct a test utilizing a test kit. A limited number of test kits have distributed to all MDOC facilities, but can only be used after the MDHHS authorizes the test. (Ex. 16, MDOC Response and Information on Coronavirus). Thus, because MDOC cannot provide widespread testing, inmates and employees are entirely unaware about who has actually contracted the disease. This is especially concerning given that prison staff regularly cycles through the facilities. As a result, it is
17 Counsel Manville was schedule to have legal telephone calls with inmates at the Cotton Prison on April 17 and then another legal call on April 20 at the Parnall Prison. These calls were canceled due to entire housing units at each of these two prisons being placed under quarantine.
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Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.841 Page 17 of 34
impossible for inmates to avoid interaction with these individuals who may be carriers of the virus. In fact, among the key findings of the Harvard Study were that correctional staff have a higher infection rate than inmates:
*****
(Ex. 24, Harvard Study). With correctional staff affected, the outbreak then spreads to the staff’s family and
the community. As courts have noted, “[t]he more people we crowd into [a] facility, the more we’re increasing the risk to the community.” United States v. Stephens, No. 15-cr95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020), see Ex. 30.
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E. CONCLUSION
In sum, so long as Plaintiffs are detained, they cannot protect themselves by
practicing social distancing, nor can Defendants provide the sanitization and hygiene
required to avoid infection. Additionally, inmates and staff are not being regularly tested.
For these reasons, Defendants have violated the Eighth Amendment to the U.S.
Constitution by failing to provide Plaintiffs with reasonably safe living conditions. As a
result, Plaintiffs seeks entry of a temporary restraining order requiring Defendants to take
additional precautions to stem the spread of the virus.
III) LAW & ARGUMENT
A. CEXOHUARUTSTIHNGAVPERISINOHNEGRREINETVAPNOCWE EPRROTCEODUPRREOSTECT PRISONERS WHILE
[T]he exponential growth of the novel coronavirus has resulted in emergency declarations by the President and the Governor, as well as governors of numerous other states. Due to the nature of this virus, the Court finds that the risk of contracting the virus in a prison environment, where at least 23 inmates have already tested positive, poses a sufficiently high risk, rendering this matter ripe for adjudication even though Plaintiff has not contracted the virus. The United States Supreme Court has held that the risk of contracting a serious disease may indeed constitute an unsafe, life-threatening condition that violates the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 33, … (1993). Further, the Supreme Court held that 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.” Id. With the clear danger posed by COVID-19 in the [prison], Plaintiff has adequately demonstrated standing. [Marlowe v. LeBlanc, CV 18-63-BAJ-EWD, 2020 WL 1955303, at *2 (M.D. La. Apr. 23, 2020) see Ex. 27.]
When determining whether to grant injunctive relief, Court analyze four (4) factors:
“(1) whether the movant has a strong likelihood of success on the merits; (2) whether the 14

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.843 Page 19 of 34
movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n., 110 F.3d 318, 322 (6th Cir. 1997). The court must balance each of the four factors and “no single factor is dispositive.” City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750, 754 (E.D. Mich. 2008).
Importantly, a federal courts equitable powers to enjoin unconstitutional prison conditions are not impaired by the Prison Litigation Reform Act’s (“PLRA”) exhaustion requirement. FTC v. Dean Foods Co., 384 U.S. 597 (1966). Indeed, the Supreme Court has long recognized that federal courts possess a “traditional power to issue injunctions to preserve the status quo while administrative proceedings are in progress and prevent impairment of the effective exercise of appellate jurisdiction.” Id. at 604. As explained in Wagner v. Taylor, 836 F.2d 566 (D.C. Cir, 1987), “[i]f [a] court may eventually have jurisdiction of the substantive claim, the court's incidental equitable jurisdiction, despite the agency’s primary jurisdiction, gives the court authority to impose a temporary restraint in order to preserve the status quo pending ripening of the claim for judicial review.” Id. at 571. Accordingly, the Court held that although Title VII complainants must ordinarily exhaust administrative remedies before seeking judicial relief, district courts retain jurisdiction to grant interim injunctive relief where plaintiffs face irreparable injury. Id. at 574-576; See also Jackson v. D.C., 254 F.3d 262, 268 (D.C. Cir.2001) (holding that
15

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.844 Page 20 of 34
that “the PLRA contains nothing expressly foreclosing courts from exercising their traditional equitable power to issue injunctions to prevent irreparable injury pending exhaustion of administrative remedies.”); Marlowe v. LeBlanc, CV 18-63-BAJ-EWD, 2020 WL 1955303, at *2 (M.D. La. Apr. 23, 2020) (cited Jackson, COVIC-19 prison case); Foster v. Gueory, 655 F.2d 1319, 1321–22 (D.C.Cir.1981) (explaining that each individual plaintiff in a class-action suit need not have pursued the available administrative remedies “if at least one member of the plaintiff class has met the filing prerequisite.”)
B. PDLEAFIENNTDIAFFNSTSAARREE VLIIOKLEALTYINTGOTHSEUIRCCEEIEGDHTOH NAMTEHNEDMMENETRIRTISGHBTESCAUSE Plaintiffs have retained two experts in this lawsuit. Both Dr. Adam Lauring and Dr. Jeremy Young, are infectious disease specialists. The report by Dr. Lauring is attached as Ex. 25, along with his CV, and the report of Dr. Young is attached as Ex. 26, along with his CV. Both experts are aware of the risk posed by infectious diseases in prisons is significantly higher than in the community, “both in terms of multiple risks of transmission and exposure to individuals who become infected.” Ex. 25, at para. 1; Ex. 36, at para. 5. There is also the issue of adequate of cleaning supplies being provided to inmates for self-cleaning and the cleaning of surfaces. Id. As Dr. Lauring stated based on his review of some of the declaration of named Plaintiffs:
The declarants attested to the fact that individuals confined have limited access to disinfectant, if at all, or basic cleaning supplies with which to clean their shared cells, shared living quarters, common areas, or hightouch surfaces. One declarant describes his only cleaning utensil as a mop. High-touch surfaces, such as light switches, door and sink knobs,
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telephones, tables, etc., should be sanitized after each use. Failure to properly sanitize shared spaces, common areas, and high- touch surfaces that detained individuals heavily use, seriously increases the risk of the spread of COVID-19 and demonstrates the MDOC’s failure to take the most fundamental precautions for preventing the spread of the disease.
Ex. 25, at para. 33.
Based on the housing situation in Michigan prison system, “it is nearly impossible
for jails and prisons to provide the atmosphere of “shelter in place” or “stay at home”
social distancing, given the number of individuals that work in and are housed in these
facilities in the current system.” Ex. 25, para. 26.
These experts are familiar with prison systems and how inmates are confined
within the housing units. They both are certain that the spread of COVID-19 will soon
reach the pandemic levels within the Michigan prison system. “[T]he growing
devastation in other prisons around the country is a harbinger for what almost certainly
awaits MDOC if immediate safeguards are not enacted.” Ex. 29, Para. 12.
After his review of the declarations and numerous other documents, Dr. Young
found that
Based on my understanding of the Lakeland Correctional Facility (LCF), my review of relevant materials, my experience working on public health in prisons and other correctional facilities, and my review of the relevant literature, it is my opinion that LCF has failed to implement infection control procedures sufficient to prevent and manage a COVID-19 outbreak. The current infection control measures in place to reduce the spread of COVID-19 at LCF are grossly inadequate, particularly considering its vulnerable population. My understanding is that many other MDOC facilities, not just LCF, are not following the appropriate measures of quarantine, social distancing, and hand hygiene necessary to
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protect inmates. These MDOC facilities include, but appear to be not limited to: Macomb Correctional Facility (MRF), G. Robert Cotton Correctional Facility (JCF), and Parnall Correctional Facility (SMT). This could result in severe harm to detained individuals, prison staff, and the broader community. The reasons for this conclusion are detailed below. Ex. 26, at para. 22. Both experts recommended similar steps MDOC should undertake to prevent a pandemic that can cause the deaths of many inmates and staff. These recommendations are contained in the relief section of this complaint, so they need not be repeated here. Probably the MOST important recommendation made by these experts is that MDOC must act NOW. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in this facility is a matter of days, not weeks.
Ex. 25, Lauring, at para. 42. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in MDOC facilities is a matter of days, not weeks. This is an imminent threat to inmates, correctional employees and their families, and the greater community.
Ex. 26, Young, at para. 28. To demonstrate a violation of the Eighth Amendment, convicted prisoners must
show that defendants were deliberately indifferent to “a substantial risk of serious harm” and that they disregarded that risk by failing to take reasonable measures. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Under this rubric, there is both an objective and a subjective component. Id. at 835-38.
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1. Objective Risk of Harm To satisfy the objective component, the Plaintiffs must demonstrate that the constitutional deprivation was “objectively, ‘sufficiently serious.” Id. at 837-838, 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). As the Court noted, “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.” Id. “Objectively, the health risks posed by COVID-19 are abundantly clear.” Awshana, et al. v. Adducci, No. 20-10699, 2020 WL 1808906, at *7 (E.D. Mich. Apr. 9, 2020), see Ex. 31. Indeed, federal courts from coast to coast, including several jurists in this very district, have routinely recognized that “[d]etention exacerbates the threat of contracting COVID-19.” United States v. Patino, Case No. 18-20451, 2020 WL 1676766, at *3 (E.D. Mich. Apr. 6, 2020), see Ex. 32; United States v. Kennedy, Case No. 18-20315, 2020 WL 1493481, at *2 (E.D. Mich. Mar. 27, 2020) (describing “heightened risk of danger to detainees” noted by the CDC, because of “low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational
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environments, inability of most patients to leave the facility, and limited ability of
incarcerated/detained persons to exercise effective disease prevention measures (e.g.,
social distancing and frequent handwashing”, see Ex. 33; Miller v. United States, Case No.
16-20222-1, 2020 WL 1814084, at *3 (E.D. Mich. Apr. 9, 2020) (“While the COVID-19
pandemic is devastating in every region it invades, prison populations are subject to
heightened vulnerability”), see Ex. 34; Malam v. Adducci, No. 20-10829, 2020 WL
1672662 (E.D. Mich. Apr. 6, 2020) (Granting the temporary restraining order and ordering
immediate release from ICE custody”), see Ex. 35.18
The foregoing line of precedent reflects the emerging judicial consensus that the
close proximity in detention facilities and the medical risks of the COVID-19 virus
combine to present an objectively sufficiently serious medical risk to all inmates. Indeed,
18 See also Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877, at *1 (9th Cir. Mar. 24, 2020) (sua sponte ordering immediate release of immigrant petitioner “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers”), see Ex. 39; United States v. Muniz, 2020 WL 1540325, at *1 (S.D. Tex. March 30, 2020) (Granting Defendant’s motion for compassionate release, noting “news reports of the virus’s spread in detention centers within the United States … demonstrate that individuals housed within our prison systems nonetheless remain particularly vulnerable to infection [from COVID-19].”) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting, “By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.”), see Ex. 36; United States v. Stephens, No. 15-cr-95, 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, recognizing that “inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”), Ex. 30; Thakker v. Doll, No. 20-cv-480, 2020 WL 1671563, at *6 (M.D. Pa. Mar. 31, 2020) (The Court explained that “[s]ocial distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19” and that the petitioners had shown that, “despite their best efforts, they cannot practice these effective preventative measures in the Facilities.”) Ex. 29.
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CDC Guidelines quite clearly reflect that COVID-19 is a highly contagious virus and have published a twenty-six (26) page manual to curb the spread of the contagion. (Ex. 15, CDC Guidelines). Those who have been infected with the virus may not become symptomatic for up to fourteen days. (Id. at 11). In light of these facts and the present lack of a vaccine or cure for the virus, frequent handwashing, social distancing, sanitation, and the use of PPE are the only available methods to protect against coronavirus infection. (Id. at 9-13).
However, affidavits submitted by Plaintiffs illustrates that inmates are being housed in congregate living situations as there are no restrictions when it comes to using the bathroom, bunking, and gathering in the cafeteria. (Ex. 17, Glass Decl. at ¶ 3-6; Ex. 20, Reeves Decl. at ¶ 5; Ex. 19, Abrams Decl. at ¶ 5 and 14). The MDOC has actually acknowledged this point, stating: “If you’re in a cell, obviously your bunkmate is going to be within 6 feet of you.” (Ex. 21, Michigan Department of Corrections Taking Steps to Curb COVID-19).19 The affidavits also reflect that inmates currently lack the means to attempt to protect themselves from a potential coronavirus infection, such as an adequate supplyof soap, cleaning supplies, or with PPE such as facemasks. (Ex. 19, Abrams Decl. at ¶ 6-11 and 13-17; Ex. 22, Seegmiller Decl. at ¶ 9-10; Ex. 20, Reeves Decl. at ¶ 4, 7, and 11; Ex. 17, Glass Decl. at ¶ 7; Ex. 23, Heard Decl. at ¶ 7). Finally, the MDOC is not quarantining inmates who have exhibited symptoms, providing adequate medical
19 Cody Butler, Michigan Department of Corrections taking steps to curb COVID-19, WILX (Apr. 8, 2020), https://www.wilx.com/content/news/Michigan-Department-of-Corrections-taking-steps-tocurb-COVID-19-569483901.html
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treatment when they exhibit symptoms and screening its population to identify, and separate, infected inmates. (Compl. at Introduction, pg. 4; Ex. 17, Glass Decl. at ¶ 8; Ex. 20, Reeves Decl. at ¶ 7 and 19; Ex. 16, MDOC Response and Information on Coronavirus). When this compilation of evidence is taken together, the MDOC conditions significantly increase the risk that inmates will contract and spread a highly contagious, life-threatening, virus with no vaccine, effective treatment, or cure. See Coronel v. Decker, No. 20-cv-2472, 2020 WL 1487274 at *5 (S.D.N.Y. Mar. 27, 2020) (Holding that the correctional facilities measures “do nothing to alleviate the specific, serious, and unmet medical needs of… [inmates].”); see also Basank v. Decker, No. 20-CV- 2518, 2020 U.S. Dist. LEXIS 53191, 2020 WL 1481503, at *5) (S.D.N.Y. Mar. 26, 2020) (Holding that the general measures were “patently insufficient” to protect any inmates from infection absent “enforcement of requisite social distancing.”), see Ex. 37.
Moreover, 43 states and Washington, D.C. have issued “shelter-in-place” directives, closing public schools and non-essential businesses, banning people from eating in restaurants or even congregating in small groups, and requiring all residents to stay in their homes unless it is absolutely necessary to leave. (Ex. 3, 43 States Now Have Stay-At-Home Orders). Even when they leave, people are advised to stay at least six feet from others, wear masks, avoid touching their faces, and routinely wash/sanitize their hands. The message is clear: the risk of contracting COVID-19 is objectively unprecedented.
As the Court explained in Helling, the Government violates the Eighth Amendment 22

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.851 Page 27 of 34
when it confines a prison inmate in unsafe conditions and “ignore[s] a condition of confinement that is sure or very likely to cause serious illness.” Id. at 32. In recognition that Plaintiffs cannot maintain the necessary distance from their fellow inmates, nor do they have access to the requisite supplies to adhere to the government’s hygiene guidelines for preventing infection, Plaintiffs have shown a reasonable likelihood of success on their contention that current MDOC conditions creates an objectively substantial risk of serious harm in violation of the Eighth Amendment.
2. Subjective Indifference The subjective component requires Plaintiffs to show that (1) “the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner,” (2) the official “did in fact draw the inference,” and (3) the official “then disregarded that risk.” Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir.2014). “Because government officials do not readily admit the subjective component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence....” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009) (brackets, citation, and internal quotation marks omitted). Here, in light of the statistical evidence it cannot be seriously disputed that government officials, including Defendants, are subjectively aware of the risks posed by COVID-19. Again, as of April 22, 2020, 655 MDOC prisoners have tested positive for COVID-19, placing it as the sixth highest “jurisdiction” in the state. (Ex. 6, Michigan
23

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.852 Page 28 of 34
Data). The disparity between MDOC and other jurisdictions clearly supports the proposition that Defendants have been made well aware that prison conditions facilitate the spread of COVID-19 and exacerbate the risk of infection for prison inmates.
In addition to the empirical data, Governor Whitmer has implemented Executive Order 2020-29, the Michigan Sheriffs’ Association has issued a “Joint Statement,” and the CDC has published formal Guidelines, all directly aimed at safety within correctional institutions. (Ex. 8, Executive Order No. 2020-29; Ex. 12, Joint Statement; Ex. 15, CDC Guidelines). In fact, the MDOC’s own publications emphasize awareness of the COVID19 outbreak. (Ex. 16, MDOC Response and Information on Coronavirus (COVID-19).
The list of reasonable measures to prevent the spread of COVID-19 is well delineated and publicized: “[s]ocial distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19.” Thakker v. Doll, No. 20-cv-480, 2020 WL 1671563 at *8. (M.D. Pa. Mar. 31, 2020), see Ex. 29. The CDC has stated that social distancing of at least six feet at all times is the “cornerstone of reducing transmission” of COVID-19 within detention facilities, is pushing facilities to “[p]rovide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing,” and is advising that facilities must, “[s]everal times a day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas.” (Ex. 15, CDC Guidelines at pg. 4, 8 - 10).
Despite this knowledge, as set forth in the prior section of this briefing, Defendants 24

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.853 Page 29 of 34
are disregarding the grave risk posed by COVID-19 by failing to provide Plaintiffs with adequate space and cleaning/disinfecting supplies necessary to allow staff and inmates to remain safe. Nor have Defendants provided timely and adequate medical care to identify, isolate, and treat people who develop symptoms. As a result, the entire class has a substantial risk of contracting COVID-19.
In sum, COVID-19 is a threat to Plaintiffs’ health and safety of a magnitude unseen in history. By failing to implement basic measures recommended by healthcare experts, the CDC, and Governor Whitmer - including access to basic medical screening and treatment protocols for infectious disease, providing adequate hygiene supplies, and giving people sufficient space to social distance – Defendants are knowingly exposing Plaintiffs, correctional staff and the public at large to the lethal virus in violation of the Eighth Amendment. Accordingly, Plaintiffs have shown that they are likely to succeed on the merits of their Eighth Amendment claims.
C. PRLEALINETFIFFS WILL SUFFER IRREPARABLE HARM ABSENT EMERGENCY An injury will be deemed irreparable when it “is not fully compensable by monetary damages or [the] nature of the loss would make damages hard to calculate.” S. Glazer’s Distributors of Ohio v. Great Lakes Brewing Co., 860 F. 3d 844, 852 (6th Cir. 2017). Importantly, “when reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438, 445 (6th Cir. 2003) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
25

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.854 Page 30 of 34
In this case, Plaintiffs will suffer irreparable harm without a temporary restraining order. First and foremost, COVID-19 infection makes many people extremely ill and, in some people, it can be fatal. As of April 22, 2020, 198,668 people globally have been mortally injured as a result of the virus. (Ex. 28, World Health Organization, Situation Report – 93). Similarly, as of April 22, 2020, 655 MDOC inmates have tested positive for COVID-19, with 25 fatalities. (Ex. 6, Michigan Data). Indeed, there is no injury that is more irreparable than death. See In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985) (Where, as here, Plaintiffs demonstrate “irreparable harm which decidedly outweighs any potential harm to the defendant,” the “degree of likelihood of success required” is less, and a plaintiff need only “serious questions going to the merits.”)
Moreover, the best option to keep infections to a minimum is to practice social distancing. However, the MDOC readily concedes that social distancing is not feasible: “If you’re in a cell, obviously your bunkmate is going to be within 6 feet of you.” (Ex. 21, Michigan Department of Corrections Taking Steps to Curb COVID-19). Thus, these grave risks to health are not an insignificant possibility for the Plaintiffs, most of whom have not been given sufficient soap, sanitizing agents, cleaning products, let alone PPE. As the Supreme Court aptly noted in Helling:
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. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Helling, 509 U.S. at 33; Wilson v. Gordon, 822 F.3d 934, 958 (6th Cir. 2016) (holding that
26

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.855 Page 31 of 34
delay in medical treatment can constitute irreparable injury and noting that “[c]ourts routinely uphold preliminary injunctions where the alleged irreparable harm involves delay in or inability to obtain medical services”).
As such, being compelled to endure a highly contagious and deadly virus that has no vaccine, no treatment, and no cure, without appropriate lifesaving measures, readily satisfies irreparable injury threshold.
D. THE RPUEBQLUIECSITNETDEIRNEJSUTNACTNIDONBALANCE OF EQUITIES WEIGH IN FAVOR OF The final factor to be considered in determining whether to enjoin Defendants is a balancing of the equities and determination of whether the public interest would be served from the issuance of an injunction. See Nken v. Holder, 556 U.S. 418, 435 (2009) (holding that where the Government is the non-moving party, the third and fourth factors generally “merge” into one: “Once an applicant satisfies the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party.”); Malam, No. 20-10829, 2020 WL 1672662, at *13 (stating that “the final two factors - the balance of equities and the public interest – merge, because ‘the government’s interest is the public interest.’”). This factor, too, points decidedly in Plaintiffs’ favor. First and foremost, the Sixth Circuit has squarely held that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir.1994). Consequently, issuance of an injunction would serve the public interest as it would require the Defendants to
27

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.856 Page 32 of 34
comply with CDC Guidelines and remedy the Eighth Amendment violation of Plaintiffs’
constitutional rights.
Additionally, issuance of the injunction will slow the spread of the COVID-19 virus.
As a result, Plaintiffs, prison staff and prison staff families will be protected from
unnecessary exposure which could potentially result in serious illness and/or death. On the
other hand, if MDOC continues the inadequate practices of double bunking without
allowing inmates to “social distance” or ignoring basic CDC guidelines, the experts opine
that the loses will be of incalculable quantity and duration. Plaintiffs’ requested injunctive
relief are now common-place in the free world and there is no reason they cannot be more
frequently and expeditiously administered in prison.
Finally, the public interest is also best served by issuance of the injunction as it will
alleviate the burden on local communities and health care infrastructure where the
detention facilities are located. As one court wisely noted:
a COVID-19 outbreak at a detention facility could result in multiple detainees- five, ten or more- being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm ventilator resources, those ventilators become unavailable for all the usual critical illnesses. And ventilators used to treat detainees cannot be used to treat others who contract the virus. . . . In the alternate scenario where detainees are either confined in conditions facilitating ‘social distancing’ or are released, the tinderbox scenario of a large cohort of people getting sick all at once is less likely to occur, and the peak volume of patients hitting the community hospital would level out.
Jones v. Wolf, Case No. 20-361, 2020 WL 1643857, at *13 (W.D.N.Y. Apr. 2, 2020)
(internal citations and quotations omitted), see Ex. 38. 28

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.857 Page 33 of 34
On the other hand, if the Defendants are directed to become compliant with CDC Guidelines, then the only potential harm is economic: prison staff may have to expend additional time, and the state may have to expend additional money, to provide the information, hygiene products, cleaning agents, and medical treatment necessary to kill the virus. However, the challenges presented by a financial investment does not mean that constitutional protections fall by the wayside. Indeed, government officials are bound by constitutional requirements even when they are dealing with difficult and unfamiliar challenges to public health and safety. The government has chosen to incarcerate Plaintiffs. By making this decision, the government takes on an obligation to protect their health and safety. In turn, Defendants will also be safeguarding the health and safety of Defendants themselves, their families, prison staff and the community at large.
Ultimately, the financial burden required to reduce the substantial risk that Plaintiffs will be exposed to a deadly disease does not tip the balance in Defendants’ favor because “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc., 23 F.3d at 1079. Accordingly, the public interest would be served by issuance of a preliminary injunction requiring Defendants to implement constitutionally adequate measures to prevent the spread of COVID-19 in the MDOC. IV) CONCLUSION
29

Case 2:20-cv-11053-MAG-RSW ECF No. 22 filed 05/04/20 PageID.858 Page 34 of 34
For the foregoing reasons, Plaintiffs respectfully request that this Court GRANT this motion and issue a temporary restraining order and preliminary injunction ordering the relief requested in their motion.
Respectfully submitted,
/s/ Daniel E. Manville Daniel Manville (P39731) Director, Civil Rights Clinic, MI. State University College of Law P.O. Box 1570 East Lansing, Michigan 48823 (517) 432-6866 daniel.manville@law.msu.edu
PROOF OF SERVICE I, Daniel E. Manville certify, under penalty of perjury, that on April 30, 2020 , I caused a copy of the above document to be served by Email on CORI BARKMAN AND DEVIN O’DOWD, AGs in the Corrections Division, Attorney’s Office due to the filing of an emergency motion for temporary restraining order and motion for class certification.
/s/ Daniel E. Manville Daniel E. Manville
30

Case 2:20-cv-11053-MAG-RSW ECF No. 22-1 filed 05/04/20 PageID.859 Page 1 of 3

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, et al.,

Plaintiffs,

-vWILLIS CHAPMAN, et al.,

Case No. 20-cv-11053 Hon. Mark A. Goldsmith Maj. Judge R. Steven Whalen

Defendants.

INDEX OF EXHIBITS – MOTION FOR TEMPORARY RESTRAINING ORDER
Exhibit 1: Proclamation 9994 Exhibit 2: Worldometer’s COVID-19 29 (report us) Exhibit 3: 43 States Now Have Stay-At-Home Orders Exhibit 4: Michigan Executive Order 2020-21 Exhibit 5: Michigan Executive Order 2020-42 Exhibit 6: Michigan Data Exhibit 7: Coronavirus in Ohio: More Than 1,800 Inmates at Marion Correctional Test Positive Exhibit 8: Michigan Executive Order No. 2020-29 Exhibit 9: Letter from Bd. of Correction of the City of New York to Criminal Justice Leaders Exhibit 10: Iowa’s Prisons Will Accelerate Release Of Approved Inmates To Mitigate Covid-19 Exhibit 11: California Chief Justice Issues Second Advisory on Emergency Relief Measures

Case 2:20-cv-11053-MAG-RSW ECF No. 22-1 filed 05/04/20 PageID.860 Page 2 of 3
Exhibit 12: Joint Statement Exhibit 13: AG William Barr Pushes Expansion of Home Confinement to Reduce Prison Populations Amid Coronavirus Exhibit 14: Letter from Scott A. Allen and Josiah Rich to The Honorable Bennie Thompson Exhibit 15: CDC Guidelines Exhibit 16: MDOC Response and Information on Coronavirus Exhibit 17: Declaration of Vincent Glass Exhibit 18: WITHDRAWN Exhibit 19: Declaration of Elliott Abrams Exhibit 20: Declaration of Robert Reeves Exhibit 21: Michigan Department of Corrections Taking Steps to Curb COVID-19 Exhibit 22: Declaration of Craig Seegmiller Exhibit 23: Declaration of Lamont Heard Exhibit 24: Harvard Study Exhibit 25: Declaration of Dr. Lauring
Exhibit 26: Declaration of Dr. Young Exhibit 27: Marlowe v. LeBlanc, CV 18-63-BAJ-EWD, 2020 WL 1955303, at *2 (M.D. La. Apr. 23, 2020)
Exhibit 28: World Health Organization, April 27, 2020, COVID-19 Exhibit 29: Thakker v. Doll, No. 20-cv-480, 2020 WL 1671563, at *6 (M.D. Pa. Mar. 31, 2020) Exhibit 30: United States v. Stephens, No. 15-cr-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) Exhibit 31, Awshana, et al. v. Adducci, No. 20-10699, 2020 WL 1808906, at *7 (E.D. Mich. Apr. 9, 2020) Exhibit 32, United States v. Patino, Case No. 18-20451, 2020 WL 1676766, at *3 (E.D. Mich. Apr. 6, 2020)

Case 2:20-cv-11053-MAG-RSW ECF No. 22-1 filed 05/04/20 PageID.861 Page 3 of 3
Exhibit 33, United States v. Kennedy, Case No. 18-20315, 2020 WL 1493481, at *2 (E.D. Mich. Mar. 27, 2020)
Exhibit 34: Miller v. United States, Case No. 16-20222-1, 2020 WL 1814084, at *3 (E.D. Mich. Apr. 9, 2020)
Exhibit 35: Malam v. Adducci, No. 20-10829, 2020 WL 1672662 (E.D. Mich. Apr. 6, 2020) Exhibit 36: United States v. Muniz, 2020 WL 1540325, at *1 (S.D. Tex. March 30, 2020)
Exhibit 37: Basank v. Decker, -- F.Supp.3d --, No. 20-CV- 2518, 2020 WL 1481503, at *5) (S.D.N.Y. Mar. 26, 2020)
Exhibit 38: Jones v. Wolf, Case No. 20-361, 2020 WL 1643857, at *13 (W.D.N.Y. Apr. 2, 2020)
Exhibit 39: Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877, at *1 (9th Cir. Mar. 24, 2020)

LEGAL STACTUaSse 2:20-cv-11053-MAG-RSW ECF No. 22-2 filed 05/04/20 PageID.862 Page 1 of 4
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LEGAL STATUS
Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak
A Presidential Document by the Executive Ofﬁce of the President on 03/18/2020

DOCUMENT DETAILS Printed version: PDF (https://www.govinfo.gov/content/pkg/FR-2020-03-18/pdf/2020-05794.pdf) Publication Date: 03/18/2020 (/documents/2020/03/18) Agency: Executive Ofﬁce of the President (https://www.federalregister.gov/agencies/executive-ofﬁce-of-the-president) Document Type: Presidential Document Presidential Document Type: Proclamation Document Citation: 85 FR 15337 Page: 15337-15338 (2 pages) Document Number: 2020-05794
DOCUMENT STATISTICS Page views: 12,373

DOCUMENT DETAILS

as of 04/C26a/2s0e202a:t2100:-1c5vp-m11ED0T53-MAG-RSW ECF No. 22-2 filed 05/04/20 PageID.863 Page 2 of 4

DOCUMENT STATISTICS

PUBLISHED DOCUMENT

Proclamation 9994 of March 13, 2020

! Start Printed Page 15337

Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak
A Proclamation In December 2019, a novel (new) coronavirus known as SARS-CoV-2 (“the virus”) was first detected in Wuhan, Hubei Province, People's Republic of China, causing outbreaks of the coronavirus disease COVID-19 that has now spread globally. The Secretary of Health and Human Services (HHS) declared a public health emergency on January 31, 2020, under section 319 of the Public Health Service Act (42 U.S.C. 247 (https://www.govinfo.gov/link/uscode/42/247?type=usc&year=mostrecent&link-type=html)d), in response to COVID-19. I have taken sweeping action to control the spread of the virus in the United States, including by suspending entry of foreign nationals seeking entry who had been physically present within the prior 14 days in certain jurisdictions where COVID-19 outbreaks have occurred, including the People's Republic of China, the Islamic Republic of Iran, and the Schengen Area of Europe. The Federal Government, along with State and local governments, has taken preventive and proactive measures to slow the spread of the virus and treat those affected, including by instituting Federal quarantines for individuals evacuated from foreign nations, issuing a declaration pursuant to section 319F-3 of the Public Health Service Act (42 U.S.C. 247 (https://www.govinfo.gov/link/uscode/42/247?type=usc&year=mostrecent&link-type=html)d-6d), and releasing policies to accelerate the acquisition of personal protective equipment and streamline bringing new diagnostic capabilities to laboratories. On March 11, 2020, the World Health Organization announced that the COVID-19 outbreak can be characterized as a pandemic, as the rates of infection continue to rise in many locations around the world and across the United States.

The spread of COVID-19 within our Nation's communities threatens to strain our Nation's healthcare systems. As of March 12, 2020, 1,645 people from 47 States have been infected with the virus that causes COVID-19. It is incumbent on hospitals and medical facilities throughout the country to assess their preparedness posture and be prepared to surge capacity and capability. Additional measures, however, are needed to successfully contain and combat the virus in the United States.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 (https://www.govinfo.gov/link/uscode/50/1601? type=usc&year=mostrecent&link-type=html) et seq.) and consistent with section 1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320 (https://www.govinfo.gov/link/uscode/42/1320? type=usc&year=mostrecent&link-type=html)b-5), do hereby find and proclaim that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020. Pursuant to this declaration, I direct as follows:

SectioCna1s. eEm2e:r2g0e-nccvy-A1u1th0o5r3it-yM. TAhGe S-eRcrSeWtary oEf CHHFSNmoa.y2e2xe-r2cisefitlheedau0t5h/o0ri4ty/2u0nderPseacgtieonID11.3856o4f thePage 3 of 4

SSA to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children's

Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule

throughout the duration of the public health emergency declared in response to the COVID-19 outbreak.!

! Start Printed Page 15338

Sec. 2. Certification and Notice. In exercising this authority, the Secretary of HHS shall provide certification and advance written notice to the Congress as required by section 1135(d) of the SSA (42 U.S.C. 1320 (https://www.govinfo.gov/link/uscode/42/1320?type=usc&year=mostrecent&link-type=html)b-5(d)).

Sec. 3. General Provisions. (a) Nothing in this proclamation shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this thirteenth day of March, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and fortyfourth.

(https://s3.amazonaws.com/images.federalregister.gov/Trump.EPS/original.png?

  Filed 3-17-20; 8:45 am] [FR Doc. 2020-05794
Billing code 3295-F0-P

1485454275)

PUBLISHED DOCUMENT

Case 2:20-cv-11053-MAG-RSW ECF No. 22-2 filed 05/04/20 PageID.865 Page 4 of 4

Case 2:20-cv-11053-MAG-RSW ECF No. 22-3 filed 05/04/20 PageID.866 Page 1 of 12
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--C--olo-rad-o ----13-,87-9 -------7-06 ------1-2,6-14----2,5-09-----12-8 --66-,34-1 --1-1,9-94--1-------·-·-·-·-

Washington

13,686

765

11,114

1,876

105 179,679 24,633 (1 {https:/lwww.doh.wa.gov/

Tennessee

9,918

184

5,014

1,491

28 154,402 23,215

-----------�-¥-....,-�..,. ....._. ..,�... .. -,. .,"' -·-· -� .. . . North Carolina

9,568

+153

342

+6 7,924

942

34

i_______ ------------·- ------�---�----------------·----·.____

112,752

11,102

l...�h_o_de_1s_1an_ d_ _+--__1_,1o_a-• -l---------2- �3 I

i Missouri

7,239

300

7,133 6,392

7,295

221 55,885 52,891

·-------·· .......·-------+·--------····-········--·----·---- ·

1,189

49 70,932 11,647 I

Arizona

6,716

275

6,371

967

40 66,543

9,579

1----------------------------------------------------------·-

Alabama

6,580

+41

241

+13 6,319

1,353

50 74,359 15,285

-M-iss-iss-ipp-i ---6-,0-94-------2-29-------5,8-65----2,0-39-----7-7 --63-,46-2 --2-1,2-34-+-----------

Wisconsin

6,081

281

3,487

1,052

49 67,392 11,663

!�Io-wa----1--5-,86-8 -----1---1-27 --------3,7-20-----1,8-7-3------41---38,-15-0---12-,-17-9-•------··----·--------

lI,-So-ut-h C-aro-lin-a --5-,61-3 -------1-77 -------1,7-35-----1,1-33----3-6 ;--52-,14-5 --1-0,5-22----�---··----·-···

I Nevada

4,690

219

1,824

1,605

75 47,821 16,361

�·--------+----4----1-----1------+-----il-------+------{-----+-----+----------·-

Exhibit 2 - Worldometer's COVID-19 date

I UtahCase 2:20-c4v,2-3131053-MAG-RS4W1
L_..........

Delaware
I
;
l Kentucky
li----· District Of 1 Columbia

4,162

125

4,146

213

3,994

+102

190

ECF No. 23,230-43

3,041

2,811

+5

3,144

I filed10,3950-/04/20

13Pag10e0I,D19.5868 32,9P0a1 ge 3 of 12

··-······

•- -------· ---· ----- . - -·· -

4,383

132

19,616

20,659

____,,.____,. ._________ ----·•-·-•

934

48 48,799 10,990

.,. ·--------------- -

5,835

278

18,885

27,590

---�-------..•-- -··----

j Minnesota

3,816

2 86

I Nebraska

3,358

56

i

Kansas .. -··••·--•·-•·----····-...--

-------3-- ,296-- --·

122

Oklahoma

3,280

197

1,688 3,280 2,671
916

690 I

52

61,268

--·

11,085

__,_,._____ --- --· ·---

1,763 I1

29

23,772

12,480

_____,.. -·- --- - "- . ·------ .. - ···-· --

1,1331

42

--·------- - - ------r--•-•·•----·--

I 837

50

__ I -·---------

25,199

8,663 ;

-- - -·- . ·-•--· ' �--•-•----••-••-••••nu •••

.

53,012

13,530

____.,._ .__________ -----·- •-·

Arkansas

3,069

51

1,965

1,026

17

40,629

13,585

-------•'"<'1• ..-· .. ----

New Mexico Oregon South Dakota

2,823 2,354 2,245

104 92
11

2,069 2,262
918

1,349 ____,._
577
2,598

50
23 13

58,803 51,198 15,596

i- -28,103
12,543 18,045

---·
---•<'•-·••••..._·••M·•••

. .--··- --;•--···-·

New

1,938

60

1,080

1,442

45

20,145

14,993

Hampshire

.. --•••••--

-.•-~•• --••-•·•••--o-•

Idaho

1,917

58

820

1,136

34 i

19,895

11,787

--·--··

I

-t•----�.-- ------- -- ----�---------- -�-----····------- ·--•·-·· •·- . � .. r0- -.. -

West Virginia

1,077

+14

37

+1

559

- ·-5-8··9·- ...

20

43,227

23,634

·--�·---·. .

Maine

1,023

51

423

768

38-- 17,807

--- 13,360 .............�--··-···--'".... ----·-·

North Dakota

942

19

573

1,252

25

22,434

29,824

____ ____ -· ~,..____ •-� �-···

,. ..,,_

Vermont

862

+7

47

815

1,379

75

15,2 15

24,345

-

--·-·•- ··-

(.��wall

607

16

98

427

11

29,247

20,567

..·-----..---·-.....---• ···--·.

; Wyoming

520

►-----····---
i[_M_ ontana

I

449

7

170

894

12
-

8,167

14,037 -�--------•-..------- -- -·· -- -------

14

83

43 1

13

13,033 1 12,511

·--

- ----�----------·

Alaska

345 I

9

118

467

12

16,256

22,012

--· ---------·-·--·•---·•-·..··- ·-···

Guam

144

+2

5

10

605

-- -- ---

I Northern

14

2

0

l Marlana
l Islands

'--·

45

!

----·-·---·--•--·�---·-··-···-·

Puerto Rico
; United States ; Virgin Islands 1 Veteran Affairs

--- 1,400

+11

86

+2

··-----�·- ---- ----- ·---·--·.

····--·-·-··-·-

59

41

\
------- !

I

7,001

435

923 4
6,566

413 ---�-~ ··-•••--•••M·•-•O-•

25

:

I ______ _j_

!
i

13,022 i

3,845 -·

____ , _______________ -•-

I
180
!

I I

...l------ �--- -----------•-----�·---·-··

! 83,372

I

US Military

6,568

27

4,497

------

Navajo Nation

1,716

59

1,657

9,753

----- ______....,._,.� --

Federal Prisons

1,376

28

834

----

---·- -•-----·-

Grand Princess

103

; Ship • •- ------�---�

·------------- ------··

! Wuhan

3

Repatriated

3

100

---'I ----- -------·---·--·--·

I

I

3

__________ \_ ___.,________,,__ I 3

·-·---••-·--·-··--·-·•··•····• ---
______ ...

Diamond

46

Princess Ship

46

46

Exhibit 2 - Worldometer's COVID-19 date

Case 2:20-cv-11053-MAG-RSW ECF No. 22-3 filed 05/04/20 PageID.869 Page 4 of 12

Total Coronavirus Cases in the United States

linear

logarithmic

1 250k
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Daily New Cases in the United States

SOk
� 40k

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Cases per Day Data a, of 0:00 GMT +0

lOK :,

21Jk

<i

:, !Ok 0

___ .... 1111111

e Daily Cases

Active Cases in the United States

Exhibit 2 - Worldometer's COVID-19 date

Case 2:20-cv-11053-MAG-RSW ECF No. 22-3
Active Cases
(Number of Infected People) l OOOk

filed 05/04/20

� 800k £
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Total Coronavirus Deaths in the United States

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PRO-THERMS
$69.95
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• Deaths
Daily New Deaths in the United States

Exhibit 2 - Worldometer's COVID-19 date

Case 2:20-cv-11053-MAG-RSW ECF No. 22-3
Daily Deaths
Deaths per Day Data as of 0:00 GMT +O
3k

filed 05/04/20

PageID.871

Page 6 of 12

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Latest News

April 28 (GMT)

Updates
• 2934 new cases and 246 new deaths in the United States l/coronayirus/countrylY§ll

Aprll 270 Aprll 260 April 250

Aprll 240 Aprll 230 Aprll 220

View More News v

Historical account of the initial stages of the epidemic in the United States
Content:
• First 20 cases in the United States • Progression of first suspected cases • Timeline of initial events • Sources for the historical account
First 20 cases in the United States
Exhibit 2 - Worldometer's COVID-19 date

InformCatioanscoelle2cte:2d o0n-thcevfi-rs1t 2100d5om3e-sMtic cAasGes-(RnotSinWcludingEreCpaFtriaNtedoca.s2es2a-n3d DiamfiolenddPr0inc5es/0s c4ru/i2se0 PageID.872 Page 7 of 12
ship evacuee cases) is presented in the table below:

State • Oregon 1 Washington
Illinois
California

Sex: Age Date Case#

Feb.

17th

29

2

Feb. �a,19th

29

I

1 M· sos Jan.

1st

21

1i M

F

2 unkn..

1

M

F

I Mar.1

20th

60s 60s

Jan.. 30.
Jan.: 24

6th
- ···•------�,
2 nd
I

unkn.

Jan. 3rd.4th 26

adult

Jan.!

7th:

31

unkn. Feb.2

gth

10th

1

·-·

11th

1

65 · Feb.· 15th

I

28

j 1 i

Feb.

13th

21

Feb. 21

14th!

Feb. 26

15th

Location Source WashingtonC.

Snohomish

(7)

Chicago

(12)

Chicago

(8)

OrangeC., L.A.

(9)

SantaClaraC. · (17)(18)

Santa Clara C. San BenitoC.
San BenitoC.
···~·•..----., ---··-··-
SantaClaraC.
�----�-�--- --·-
HumboldtC.

Sacramento C.

[Northern California]

Massachusetts Arizona
Wisconsin

1

Mi 20s Feb.1

5th !

Boston

(16)

. unkn. 1 student

Jan.. 26

5th : MaricopaCounty

Feb.5

12th

Madison

Patients Under Investigation (PUI) in the United States
CDC in the early stages released information regarding the number of cases and people under investigation that was updated regularly on Mondays, Wednesdays, and Fridays.Below we provide the historical reports that we were able to gather in order to track the progression in the number of suspected cases and US states involved through time in the initial stages
As of Feb. 10:
Exhibit 2 - Worldometer's COVID-19 date

Case 2:20-cv-11053-MAG-RSW ECF No. 22-3 filed 05/04/20

i Number of U.S. States with PUI

36.

Positive

12

· Negative

318

Pending

68

(specimens awaiting testing)

'TOTAL

PageID.873

Page 8 of 12

As of Feb. 7:

Number of U.S. States with PUI

361

Positive

: Negative

Pending (specimens awaiting testing)

TOTAL

337

As of Feb. 5:

Number of U.S. States with PUI

Positive

Negative

206

, Pending · {specimens awaiting testing)

:TOTAL

293

As of Feb. 3:

Number of U.S. States with PUI

Positive

11 .

. Negative

167

· Pending

82i

! (specimens awaiting testing)

TOTAL

260

L�

As of January 31:

· Number of U.S. States with PUI

36

Positive

6

Negative

114

• Pending

121

. (specimens awaiting testing)

. TOTAL

241

Previously, as of January 29 , there were 92 suspected cases awaiting testing.

i Number of U.S. States with PUI

36

• Positive

51

Negative

68

'Pending

92

(specimens awaiting testing)

I TOTAL

165.

Timeline of Events
• A On January 31, HHS declared Coronavirus a Public Health Emergency in the US (https://www.hhs.gov/abouVnews/2020/01/31/secretary-azar-declares-public-health-emergency-us-2019novel-coronavirus. html)
Exhibit 2 - Worldometer's COVID-19 date

CAsaofsJean.231:2, th0e-Wcuvh-a1n c1or0on5a3vir-uMs isAofGfici-aRlly Sa pWublic hEeaClthFemNergoen.cy2i2n t-h3e UnifteildeSdtate0s,5A/l0ex4/20
Azar, secretary of the US Department of Health and Human Services (HHS), announced at a White House press briefing.

PageID.874

Page 9 of 12

• A On Jan. 31, the U.S. Centers for Disease Control and Prevention (CDC) Issued a federal quarantine for 14 days affecting the 195 American evacuees from Wuhan, China. Starting Sunday, Feb. 2, U.S. citizens, permanent residents and immediate family who have visited China's Hubei province will undergo a mandatory 14 days quarantine and, if they have visited other parts of China, they would be screened at airports and asked to self-quarantine for 14 days. The last time the CDC had issued a quarantine was over 50 years ago in the 1960s, for smallpox.

• A President Donald Trump signed an order on Jan. 31 for the U.S. to deny entry to foreign nationals who traveled to China within the preceding two weeks, aside from the immediate family of U.S. citizens.
• On Jan. 30, the CDC had confirmed the first case of person to person transmission in the U.S.: [121 the husband of the Chicago, Illinois case who had returned from Wuhan, China on Jan. 13 and who tested positive for the virus on Jan. 24).

• CDC stated on Jan. 30 that "It is likely there will be more cases of 2019-nCoV reported in the U.S. in the coming days and weeks, including more person-to-person spread.11[121

• The virus had been confirmed in 5 states.

• On Jan. 31, New York City health officials vehemently denied the rumor regarding a coronavirus case in the city .l13l. On Feb. 1, however, the city's health commissioner did report that there was a test being performed on a person under 40 who had returned from China, developed matching symptoms, and tested negative to the seasonal flu.

• Most US patients had recently visited Wuhan.

• All of the first five U.S. cases were described as mild.

• A study on the first US case of novel coronavirus detailed mild symptoms followed by pneumonia (https://www.cnn.com/2020/01/31/health/washington-coronavirus-study-nejm/index.html? utm_term=link&utm_medium=aocial&utm_content=2020-02-01T00)

U.S. Airlines suspended ALL flights between the U.S. and China
On Friday, January 31, Delta, American and United announced they would temporarily suspend all of their mainland China flights in response to the coronavirus outbreak.l14l Prior to this January 31 announcement:
• UNITED AIRLINES on Jan. 28 had announced it would cut 24 flights between the U.S. and China for the first week of February.
• AMERICAN AIRLINES on Jan. 29 had announced it would suspend flights from Los Angeles to Shanghai and Beijing from Feb. 9 through March 27, 2020. It will maintain its flight schedules (10 daily NR) from Dallas-Fort Worth to Shanghai and Beijing, as well as from Los Angeles and Dallas-Fort Worth to Hong Kong.
• DELTA had not adjusted its schedule of direct flights from the U.S. to China. It is the only airline with direct flights to not take action so far.
The White House was considering issuing a ban on flights between the United States and China, as of late Jan. 2al11l. Italy has announced on January 31 that it was suspending all flights to and from China following the first 2 cases of coronavirus in Italy.
Travel Alert: Do Not Travel to China
• The U.S. State Department on January 30 issued a Level 4: Do Not Travel to China Alert (https://travel.state.gov/content/traveVen/traveladvlsorles/traveladvlsorles/chlna-travel­ advlsory.html) [4] (the highest level of alert).
Exhibit 2 - Worldometer's COVID-19 date

•CParesvioeus2ly,:o2n0Ja-ncuavry-1291, t0he5a3dv-iMsoryAwGas-sRetSat Wa lowerE"LCevFel 3N: Roec.on2s2ide-r3Travfeil"leaddvis0in5g n/o0t 4to/20 PageID.875 Page 10 of 12
travel to Hubei Province: (Level 4) and reconsider travel to the remainder of China (Level 3).
• The CDC on Jan. 28 issued a Level 3 Warning (https://wwwnc.cdc.gov/travel/notices/warninf/novel­ coronavirus-china), recommending that travelers avoid all nonessential travel to China [S
Screening incoming passengers at 20 airports in the U.S.
On January 17, the CDC announced that 3 airports in the United States would begin screening incoming passengers from China: SFO, JFK, and LAX [G) Other 2 airports were added subsequently, and on January 28, the U.S. Department of Health and Human Services (HHS) announced that 15 additional U.S. airports (bringing the total to 20) would begin screening incoming travelers from China. Below is the complete list of airports where screening for the 2019 Novel Coronavirus (2019-nCoV) is in place:
• Los Angeles International (LAX)
• San Francisco International (SFO)
• Chicago O'Hare
• New York JFK
• Atlanta Hartsfield-Jackson International
• Houston George Bush Intercontinental
• Dallas-Fort Worth International
• San Diego International
• Seattle-Tacoma International
• Honolulu International
• Anchorage Ted Stevens International
• Minneapolis-St. Paul International
• Detroit Metropolitan
• Miami International
• Washington Dulles International
• Philadelphia International
• Newark Liberty International
• Boston Logan International
• El Paso International
• Puerto Rico's San Juan Airport
Sources for the historical account
1. Novel Coronavirus (2019-nCoV) situation reports (https://www.who.inUemergencies/diseases/novel­ coronavirus-2019/situation-reports/) -World Health Organization (https://www.who.int/) (WHO)
2. 2019 Novel Coronavirus (2019-nCoV) in the U.S (https://www.cdc.gov/coronavirus/2019-ncov/cases-in­ us.html} -. U.S. Centers for Disease Control and Prevention (https://www.cdc.gov/) {CDC}
3. Symptoms of Novel Coronavirus (2019-nCoV) (https://www.cdc.gov/coronavirus/2019ncov/abouVsymptoms.html) - CDC
4. China Travel Advisory (https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/china­ travel-advisory.html) - U.S. State Department, accessed January 31, 2020.
5. Novel Coronavirus In China - Warning -Level 3, Avoid Nonessential Travel
Exhibit 2 - Worldometer's COVID-19 date

C(hattpsse://w2w:w2nc0.c-dcc.vgo-v1/tr1av0el5/no3ti-ceMs/wAarGnin-gR/noSveWl-coronEavCiruFs-chNinoa).- C2D2C-, 3Januafiryle28d, 200250./04/20
6. Public Health Screening to Begin at 3 U.S. Airports for 2019 Novel Coronavirus ("2019-nCoV") (https://www.cdc.gov/media/releases/2020/p0117-coronavirus-screening.html) - CDC January 17, 2020
7. First Travel-related Case of 2019 Novel Coronavirus Detected in United States (https://www.cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-case.html) • CDC, January 21, 2020
8. Second Travel-related Case of 2019 Novel Coronavirus Detected in United States (https://www.cdc.gov/media/releases/2020/p0124-second-travel-coronavirus.html) - CDC, January 24, 2020
9. CDC confirms additional cases of 2019 Novel Coronavirus in United States (https://www.cdc.gov/media/releases/2020/s0126-coronavirus-new-cases.html) - CDC, January 26, 2020
10. 2019 Novel Coronavirus (2019-nCoV) in the U.S. (https://www.cdc.gov/coronavirus/2019-ncov/cases-in­ us.html) - CDC, Updated January 29, 2020
11. White House considers ban on flights to China amid coronavirus outbreak (https://eu.usatoday.com/story/travel/news/2020/01 /28/white-house-considers-ban-china-flights-amid­ coronavirus-outbreak/4602839002/) • USA Today, Jan. 28, 2020
12. CDC Confirms Person-to-Person Spread of New Coronavirus in the United States (https://www.cdc.gov/media/releases/2020/p0130-coronavirus-spread.html) - CDC Press Release, Jan. 30, 2020
13. NYC Officials Deny Report Of Coronavirus Amid Confusion (https://www.forbes.com/sites/sergeiklebnikov/2020/01 /31 /nyc-officials-deny-report-of-coronavirus-amid­ confusion/#351e47b5652c) - Forbes, Jan. 31, 2020
14. Delta, American, United to suspend all China mainland flights as coronavirus crisis grows (https://eu.usatoday.com/story/travel/2020/01/31/coronavirus-china-flight-ban-delta-cuts-all-flights-white­ house/4620989002/) - USA Today, Jan. 31, 2020
15. Secretary Azar Declares Public Health Emergency for United States for 2019 Novel Coronavirus (https://www.hhs.gov/about/news/2020/01/31/secretarY:azar-declares-public-health-emergency-us-2019novel-coronavirus.html) - U.S. Department of Health and Human Services (HHS), Jan. 31, 2020
16. Man returning from Wuhan, China is first case of 2019 Novel Coronavirus confirmed In Massachusetts (https://www.mass.gov/news/man-returning-from-wuhan-china-is-first-case-of-2019-novel-coronavirus­ confirmed-in) - Massachusetts Department of Public Health, Feb. 1, 2020
17. County of Santa Clara Public Health Department Reports First Case of Novel (new) Coronavirus (https:t/www.sccgov.org/sites/phd/news/Pages/novel-coronavirus-1-31-2020.aspx) • Santa Clara County Public Health, Jan. 31, 2020
18. Coronavirus: First case confirmed in Santa Clara County (https://www.mercurynews.com/2020/01/31/santa-clara-coronavirus/) - Mercury News, Jan. 31. 2020

PageID.876

Page 11 of 12

Countries:

• China (/coronavirus/country/china/) • South Korea (/coronavirus/country/south-korea/) • Iran (/coronavirus/country/iran/) • Italy (/coronavirus/country/italy/) • Spain (/coronavirus/country/spain/) • France (/coronavirus/country/france/) (/coronavirus/country/france/) • United States (/coronavirus/country/us/)

Coronavirus Worldometer Sections:

• Coronavlrus Update (/coronavirus/) • Cases (/coronavirus/coronavirus-cases/) • Deaths (/coronavirus/coronavirus-death-toll/) • Mortality Rate (/coronavirus/coronavirus-death-rate/) • Transmission Rate (/coronavirus/#repro) • Incubation Period {/coronavlrus/coronavlrus-incubatlon-perlod/) • Age, Sex, Demographics (/coronavlrus/coronavirus-age-sex-demographlcs/) • Symptoms (/coronavirus/coronavlrus-symptoms/) • Countries with cases: basic list (/coronavlrus/countrles-where-coronavirus-has-spread/) • detailed
list (/coronavirus/#countries) • Expert Opinions (/coronavlrus/coronavlrus-expert-oplnlons/)

Exhibit 2 - Worldometer's COVID-19 date

•CCaasseseIn2th:e2U0S-c(/cvor-o1na1vi0ru5s/u3s-aM-corAonGavi-ruRs/S) W ECF No. 22-3 filed 05/04/20 PageID.877 Page 12 of 12
worldometer (/)
about (/about/) I faq (/faq/) I languages (/languages/) I licensing (/licensing/) I contact (/contact/)1 report coronavirus cases (/reportl.us/) l
· 'fl,1 (/newsletter-subscribe/) '_ - (https:lltwitter.com/Worldometers) � · f (https://www.tacebook.com/Worldometers.info)j
© Copyright Worldometers.info • All rights reserved· Disclaimer & Privacy Policy (/disclaimer/)
Exhibit 2 - Worldometer's COVID-19 date

Case 2:20-cv-11053-MAG-RSW ECF No. 22-4 filed 05/04/20 PageID.878 Page 1 of 6
Coronavirus Updates Breaking News Emails Watch CBS "Sunday Morning" Lives To Remember Cuomo Brieﬁng Kim Jong Un NYC's Hart Island Economic Reb LIVE
43 states now have stay-at-home orders for coronavirus. These are the 7 that don't.
BY JASON SILVERSTEIN UPDATED ON: APRIL 6, 2020 / 7:30 PM / CBS NEWS
It may seem like the entire United States is shutting down and staying indoors due to the coronavirus pandemic. But some parts of the country are still holding o!.

Case 2:2A0s -ocfvA-p1r1i0l 65,34-3MsAtaGte-sRaSnWd WaEshCiFngNtoon., 2D2.C-4. hafvileeidss0u5ed/04/20
stay-at-home or shelter-in-place directives for all residents to help contain the spread of the deadly virus. About 300 million Americans — more than 90% of the population — are under orders to stay indoors.

PageID.879

Page 2 of 6

That leaves seven states that have not declared statewide orders, even after the U.S. has reported more than 347,000 con"rmed cases across all 50 states, and more than 10,000 deaths.

Coronavirus: The Race To Respond

Coronavirus updates: Last COVID-19 patient discharged from U.S. Navy ship

Coronavirus hits Iowa ﬁreﬁghter's family with deadly consequence

Coronavirus: The pain and sorrow of dying at home

Protecting the U.S. military from coronavirus

Even in states without o#cial stay-at-home orders, most governors have closed non-essential businesses and imposed some restrictions, such as banning large gatherings. In some cases, cities or counties have taken the initiative to go beyond statewide measures.
Those with stay-at-home orders allow several exemptions, including grocery shopping, outdoor exercise and jobs that are considered essential. Several governors who have resisted statewide orders pointed this out, saying it wasn't necessary to issue a rule that sounds more dramatic than it is.
Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, has pushed for all 50 states to have stay-at-home orders. "If you look at what's going on in this country, I just don't understand why we're not doing that," he told CNN. But Fauci said Monday he had spoken to the governors of two states without such orders, Iowa and Nebraska, and concluded that the rules they've issued are "functionally the same" as a stay-athome mandate.
President Trump has made clear that he doesn't plan to intervene, saying he wants to let governors make decisions for their own states. "We have a thing called the Constitution, which I cherish," he said in a White House brie"ng on Saturday.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-4 filed 05/04/20 PageID.880 Page 3 of 6
These are the states that still have no stay-at-home policy. All coronavirus statistics are current through the afternoon of April 6. This article will be updated as states announce new policies.
Arkansas
Governor Asa Hutchinson, a Republican, said that targeted responses to certain communities are better than a statewide order. He questioned the e!ectiveness of stayat-home orders in other states, calling them "an illusion" because residents still leave home for shopping, and many even continue to go to work.
"The question is, 'Are you accomplishing anything by doing that order?'" Hutchinson said April 2.
Hutchinson also defended his decision by pointing out that Arkansas has fewer cases than many states that issued such orders.
Benton — a suburb of the state's capital and largest city, Little Rock — and surrounding Saline County issued a stayat-home order for minors. Little Rock has a night curfew for all residents, and a youth curfew during the day.
Arkansas has reported 854 cases and 16 deaths.
Iowa
Documents released April 1 by the o#ce of Governor Kim Reynolds, a Republican, show that the state is using a 12point scale to decide whether to issue a stay-at-home order. The scale considers factors such as the ages of people with infections, the number of hospitalizations and the rate of long-term care outbreaks.
According to the documents, the governor would issue a statewide order if 10 points are scored on the scale — which has yet to happen. In the meantime, the governor has temporarily closed many businesses, and banned gatherings of more than 10 people. Health care professionals in Iowa have been calling for her to issue a statewide order.
Iowa has reported 946 cases and 25 deaths.

Case 2:2N0e-cbvr-1a1s0k53a-MAG-RSW ECF No. 22-4 filed 05/04/20 PageID.881 Page 4 of 6
Governor Pete Ricketts, a Republican, said that the right approach for his state is responding county-by-county when there are signs of community spread. He noted, though, that other governors had been urging him to issue a statewide order.
So far, 56 of the state's 93 counties — covering more than 80% of its population — have enacted health measures in response to coronavirus cases.
Nebraska has reported 409 cases and 8 deaths.
North Dakota
Governor Doug Burgum, a Republican, has not issued statewide orders to stay at home, though he did temporarily close bars, restaurants, theaters, schools, and other venues and businesses.
"It's not about staying home, it's about avoiding contact," the governor said March 25, while adding that he was open to di!erent guidance if the situation changes. He said North Dakota was "blessed" compared to other states because of its relatively low number of cases.
Even so, Burgum later expressed frustration that some people in the state were not taking social distancing seriously.
North Dakota has reported 225 cases and three deaths.
South Dakota
Governor Kristi Noem, a Republican, said statewide orders would limit the rights of individuals in her state.
"South Dakota is not New York City," she said in a press conference April 1, later urging residents "not to turn on the news and look at NYC and think that that's what Lemmon, South Dakota is going to face in a month."
"The calls to apply for a one-size-"ts-all approach to this problem is herd mentality. It's not leadership."

Case 2:2Sh0e-cavls-o11su0g5g3e-sMteAdGth-aRt SfoWllowEinCgFsoNcioal. d2i2st-a4ncifnilgedor0d5er/0s 4/20 PageID.882 Page 5 of 6
should be voluntary.
"The people themselves are primarily responsible for their safety," she said. "They are the ones that are entrusted with expansive freedoms. They're free to exercise their rights to work, to worship, and to play. Or to even stay at home, or to conduct social distancing."
Noem stood by her stance even after acknowledging that up to 70% of her state's population could contract the virus — and that a stay-at-home order could slow the spread.
South Dakota has reported 288 cases and four deaths.
Utah
Governor Gary Herbert, a Republican, issued a voluntary initiative to stay home, but not an o#cial statewide order. "We think we have enough fear about this without adding to it," he said, suggesting a voluntary directive was a "more positive route."
Several counties — including Salt Lake County, the state's most populous — have issued their own stay-at-home orders. Salt Lake County Mayor Jenny Wilson called for Utah's leaders to declare a statewide rule.
Utah has reported 1,605 cases and eight deaths.
Wyoming
Governor Mark Gordon, a Republican, said March 30 he has no plans for a statewide order — though if one came, it would be "a true stay-at-home order" without multiple exemptions. Some counties and towns put out their own orders, including the popular skiing destination, Jackson.
Wyoming has reported 210 cases and no deaths.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-4 filed 05/04/20 PageID.883 Page 6 of 6
First published on April 3, 2020 / 3:05 PM © 2020 CBS Interactive Inc. All Rights Reserved.
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Case 2:20-cv-11053-MAG-RSW ECF No. 22-5 filed 05/04/20 PageID.884 Page 1 of 12 HOME CONTACT ! SEARCH

THE OFFICE OF
GOVERNOR GRETCHEN WHITMER

ABOUT " NEWS " ISSUES "
WHITMER / NEWS / EXECUTIVE ORDERS

APPOINTMENTS "

LT GOVERNOR "

Executive Order 2020-21 (COVID-19)

EXECUTIVE ORDER
No. 2020-21
Temporary requirement to suspend activities that are not necessary to sustain or protect life
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identi!ed in humans and easily spread from person to person. Older adults and those with chronic health conditions are at particular risk, and there is an increased risk of rapid spread of COVID-19 among persons in close proximity to one another. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Michigan Department of Health and Human Services identi!ed the !rst two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of

MichiCgaasneu2n:2d0e-rcvs-e1c1t0io5n3-1MAoGf a-RrtSicWle 5EoCfFthNeo.M22ic-h5igfailnedC0o5n/0s4ti/t2u0tionPaogfe1ID9.6838,5thePaEgmee2rgoef n12cy Management Act, 1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and e"ect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945, provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the a"ected area under control.” MCL 10.31(1).
To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible.
This order takes e"ect on March 24, 2020 at 12:01 am, and continues through April 13, 2020 at 11:59 pm.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. Subject to the exceptions in section 7, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.

3. CAallsiend2:iv2i0d-cuva-l1s1w05h3o-MleAaGve-RtShWeir hEoCmF Ne oo.r2p2l-a5cefiolefdr0e5s/i0d4e/n20ce mPaugsetIaDd.8h8e6re tPoagseoc3iaolf 12 distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.
a. For purposes of this order, workers who are necessary to sustain or protect life are de!ned as “critical infrastructure workers,” as described in sections 8 and 9.
b. For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee bene!ts), or facilitate the ability of other workers to work remotely.
Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Such designations, however, may be made orally until March 31, 2020 at 11:59 pm.
5. Businesses and operations that employ critical infrastructure workers may continue inperson operations, subject to the following conditions:
a. Consistent with sections 8 and 9, businesses and operations must determine which of their workers are critical infrastructure workers and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Such designations, however, may be made orally until March 31, 2020 at 11:59 pm. Businesses and operations need not designate:

Case 2:20-cv-11053-MAG-RSW ECF No. 22-5 filed 05/04/20 PageID.887 Page 4 of 12 1. Workers in health care and public health.
2. Workers who perform necessary government activities, as described in section 6.
3. Workers and volunteers described in section 9(d).
b. In-person activities that are not necessary to sustain or protect life must be suspended until normal operations resume.
c. Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons. Those practices and measures include, but are not limited to:
1. Restricting the number of workers present on premises to no more than is strictly necessary to perform the business’s or operation’s critical infrastructure functions.
2. Promoting remote work to the fullest extent possible.
3. Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible, including for customers who are standing in line.
4. Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-5 filed 05/04/20 PageID.888 Page 5 of 12
5. Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person who is known or suspected to have COVID-19.
6. Any other social distancing practices and mitigation measures recommended by the Centers for Disease Control.
6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to supporting those businesses and operations that are necessary to sustain or protect life, are suspended.
a. For purposes of this order, necessary government activities include activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and !rst responders.
b. Such activities also include, but are not limited to, public transit, trash pick-up and disposal, activities necessary to manage and oversee elections, operations necessary to enable transactions that support the work of a business’s or operation’s critical infrastructure workers, and the maintenance of safe and sanitary public parks so as to allow for outdoor recreation.
c. For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b). Workers performing such activities need not be designated.
d. Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 5(c).

7. CExacseep2t:i2o0n-csv. -11053-MAG-RSW ECF No. 22-5 filed 05/04/20 PageID.889 Page 6 of 12
a. Individuals may leave their home or place of residence, and travel as necessary:
1. To engage in outdoor activity, including walking, hiking, running, cycling, or any other recreational activity consistent with remaining at least six feet from people from outside the individual’s household.
2. To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) may leave their home for work without a designation.)
3. To conduct minimum basic operations, as described in section 4(b), after being designated to perform such work by their employers.
4. To perform necessary government activities, as described in section 6.
5. To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including procedures that, in accordance with a duly implemented nonessential procedures postponement plan, have not been postponed).
6. To obtain necessary services or supplies for themselves, their family or household members, and their vehicles. Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-5 filed 05/04/20 PageID.890 Page 7 of 12 7. To care for a family member or a family member’s pet in another household.
8. To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
9. To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
10. To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
11. To work or volunteer for businesses or operations (including both and religious and secular nonpro!t organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
b. Individuals may also travel: 1. To return to a home or place of residence from outside this state. 2. To leave this state for a home or residence elsewhere.
3. To travel between two residences in this state. 4. As required by law enforcement or a court order, including the
transportation of children pursuant to a custody agreement.
8. For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his

Cguasidea2n:2c0e-covf-M11a0r5c3h-M1A9,G2-R02S0WonEtChFeNCoO. V2I2D-5-19filreeds0p5o/n04se/20(avaPilaagbelIeDh.8e9r1e). PSaugceh8woofr1k2ers include some workers in each of the following sectors:
a. Health care and public health. b. Law enforcement, public safety, and !rst responders. c. Food and agriculture. d. Energy. e. Water and wastewater. f. Transportation and logistics. g. Public works. h. Communications and information technology, including news media. i. Other community-based government operations and essential functions. j. Critical manufacturing. k. Hazardous materials.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-5 filed 05/04/20 PageID.892 Page 9 of 12 l. Financial services.
m. Chemical supply chains and safety.
n. Defense industrial base.
9. For purposes of this order, critical infrastructure workers also include:
a. Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers as de!ned in this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of critical infrastructure workers.
b. Workers at designated suppliers and distribution centers, as described below.
1. A business or operation that employs critical infrastructure workers may designate suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the work of its critical infrastructure workers.
2. Such suppliers, distribution centers, or service providers may designate workers as critical infrastructure workers only to the extent those workers are necessary to enable, support, or facilitate the work of the original operation’s or business’s critical infrastructure workers.
3. Designated suppliers, distribution centers, and service providers may in turn designate additional suppliers, distribution centers, and service providers

Case 2:20-cvw-1h1o0s5e3-cMoAnGti-nRuSeWd oEpCerFaNtioo.n2i2s-5necfielesdsa0r5y/0t4o/2e0nabPlaeg,esIuDp.8p9o3rt, Poargfeac1il0itoafte12the work of their critical infrastructure workers.
4. Such additional suppliers, distribution centers, and service providers may designate workers as critical infrastructure workers only to the extent that those workers are necessary to enable, support, or facilitate the work of the critical infrastructure workers at the supplier, distribution center, or service provider that has designated them.
5. Businesses, operations, suppliers, distribution centers, and service providers must make all designations in writing to the entities they are designating, whether by electronic message, public website, or other appropriate means. Such designations may be made orally until March 31, 2020 at 11:59 pm.
6. Businesses, operations, suppliers, distribution centers, and service providers that abuse their designation authority shall be subject to sanctions to the fullest extent of the law.
c. Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
d. Workers and volunteers for businesses or operations (including both and religious and secular nonpro!t organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
e. Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-5 filed 05/04/20 PageID.894 Page 11 of 12
10. Nothing in this order should be taken to supersede another executive order or directive that is in e"ect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, a place of religious worship, when used for religious worship, is not subject to penalty under section 14.
11. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority.
12. This order takes e"ect on March 24, 2020 at 12:01 am, and continues through April 13, 2020 at 11:59 pm.
13. The governor will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, she will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether su#cient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health-care workforce; (4) the state’s capacity to test for COVID-19 cases and isolate infected people; and (5) economic conditions in the state.
14. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.
RELATED CONTENT

ECxaesceut2i:v2e0-Ocvr-d1e1r05230-2M0A-6G0-R(CSWOVIEDC-1F9N) o. 22-5 filed 05/04/20 PageID.895 Page 12 of 12 Executive Order 2020-59 (COVID-19) Executive Order 2020-57 (COVID-19) Executive Order 2020-58 (COVID-19) Executive Order 2020-56 (COVID-19) Executive Order 2020-55 (COVID-19) Executive Order 2020-53 (COVID-19) Executive Order 2020-54 (COVID-19) Executive Order 2020-52 (COVID-19) Executive Order 2020-51 (COVID-19) Executive Order 2020-50 (COVID-19) Executive Order 2020-49 (COVID-19) Executive Order 2020-47 (COVID-19) Executive Order 2020-44 (COVID-19) Executive Order 2020-45 (COVID-19) Executive Order 2020-46 (COVID-19) Executive Order 2020-43 (COVID-19) Executive Order 2020-48 (COVID-19) Executive Order 2020-42 (COVID-19) Executive Order 2020-41 (COVID-19)
MICHIGAN.GOV HOME | ADA | MICHIGAN NEWS | POLICIES COPYRIGHT 2020 STATE OF MICHIGAN

Case 2:20-cv-11053-MAG-RSW ECF No. 22-6 filed 05/04/20 PageID.896 Page 1 of 15 HOME CONTACT ! SEARCH

THE OFFICE OF
GOVERNOR GRETCHEN WHITMER

ABOUT " NEWS " ISSUES "
WHITMER / NEWS / EXECUTIVE ORDERS

APPOINTMENTS "

LT GOVERNOR "

Executive Order 2020-42 (COVID-19)

EXECUTIVE ORDER 2020-42 FAQs EXECUTIVE ORDER

No. 2020-42

Temporary requirement to suspend activities that are not necessary to sustain or protect life

Rescission of Executive Order 2020-21

The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identi!ed in humans and
easily spread from person to person. There is currently no approved vaccine or antiviral
treatment for this disease.

On MCaarcshe 21:02,02-c0v2-011, 0th5e3-MMAicGh-igRaSnWDeEpCaFrtNmoe. n2t2-o6f Hfieleadlt0h5a/0n4d/2H0 umPaagneSIDe.r8v9ic7es Pidaegnet2i!oefd15the !rst two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
In the three weeks that followed, the virus spread across Michigan, bringing deaths in the hundreds, con!rmed cases in the thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and e"ect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the a"ected area under control.” MCL 10.31(1).
To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe. The order limited gatherings and travel, and required workers who are not necessary to sustain or protect life to stay home.

The mCeaasseu2r:e2s0-pcuv-t1i1n0p53la-MceAbGy-RESxWecuEtiCveF ONrod. e2r2-2602f0ile-2d105h/a0v4e/2b0eePnaeg"eIeDc.t8iv9e8, bPuat gthei3s voifr1u5s is both aggressive and persistent: on April 8, 2020, Michigan reported 20,346 con!rmed cases of COVID-19 and 959 deaths from it. To win this !ght, and to protect the health and safety of our state and each other, we must be just as aggressive and persistent. Though we have all made sacri!ces, we must be steadfast. Accordingly, with this order, I !nd it reasonable and necessary to rea#rm the measures set forth in Executive Order 2020-21, clarify them, and extend their duration to April 30, 2020. This order takes e"ect on April 9, 2020 at 11:59 pm. When this order takes e"ect, Executive Order 2020-21 is rescinded.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.
a. For purposes of this order, workers who are necessary to sustain or protect life are de!ned as “critical infrastructure workers,” as described in sections 8 and 9 of this

Coardseer2.:20-cv-11053-MAG-RSW ECF No. 22-6 filed 05/04/20 PageID.899 Page 4 of 15
b. For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee bene!ts), or facilitate the ability of other workers to work remotely.
Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 10 of this order.
5. Businesses and operations that employ critical infrastructure workers may continue inperson operations, subject to the following conditions:
a. Consistent with sections 8 and 9 of this order, businesses and operations must determine which of their workers are critical infrastructure workers and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work. Businesses and operations need not designate:
1. Workers in health care and public health.

2. CWaosrek2e:r2s0w-chv-o11p0e5r3f-oMrmAGn-RecSeWssaEryCFgoNvoe.r2n2m-6enftileadct0iv5i/t0i4e/s2,0as dPeagscerIDib.9e0d0in sPeacgteio5no6f 1o5f this order.
3. Workers and volunteers described in section 9(d) of this order.
b. In-person activities that are not necessary to sustain or protect life must be suspended until normal operations resume.
c. Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 10 of this order. Stores that are open to the public must also adhere to the rules described in section 11 of this order.
6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to support those businesses and operations that are necessary to sustain or protect life, are suspended.
a. For purposes of this order, necessary government activities include activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and !rst responders.
b. Such activities also include, but are not limited to, public transit, trash pick-up and disposal (including recycling and composting), activities necessary to manage and oversee elections, operations necessary to enable transactions that support the work of a business’s or operation’s critical infrastructure workers, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.
c. For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-6 filed 05/04/20 PageID.901 Page 6 of 15
d. Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 10 of this order.
7. Exceptions.
a. Individuals may leave their home or place of residence, and travel as necessary:
1. To engage in outdoor physical activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor physical activity includes walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity, as well as any comparable activity for those with limited mobility.
2. To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)
3. To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.
4. To perform necessary government activities, as described in section 6 of this order.
5. To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including procedures that, in accordance with a duly implemented nonessential procedures postponement plan, have not been postponed).

6. CToasoeb2t:a2i0n-cnve-1c1e0s5s3a-rMy AseGr-vRicSeWs oEr CsuFpNpoli.e2s2f-o6r tfihleedm0s5e/0lv4e/2s0, thPeairgfeaImD.i9ly02or hPoaguese7hoofl1d5 members, their pets, and their vehicles.
A. Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences. Individuals may also leave the home to drop o" a vehicle to the extent permitted under section 9(i) of this order.
B. Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
7. To care for a family member or a family member’s pet in another household.
8. To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
9. To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
10. To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
11. To work or volunteer for businesses or operations (including both religious and secular nonpro!t organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
12. To attend a funeral, provided that no more than 10 people are in attendance at the

Cfuanseer2a:l2.0-cv-11053-MAG-RSW ECF No. 22-6 filed 05/04/20 PageID.903 Page 8 of 15
b. Individuals may also travel: 1. To return to a home or place of residence from outside this state. 2. To leave this state for a home or residence elsewhere.
3. Between two residences in this state, through April 10, 2020. After that date, travel between two residences is not permitted.
4. As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.
c. All other travel is prohibited, including all travel to vacation rentals. 8. For purposes of this order, critical infrastructure workers are those workers described
by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency.
Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors:
a. Health care and public health.
b. Law enforcement, public safety, and !rst responders.
c. Food and agriculture.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-6 filed 05/04/20 PageID.904 Page 9 of 15 d. Energy. e. Water and wastewater. f. Transportation and logistics. g. Public works. h. Communications and information technology, including news media. i. Other community-based government operations and essential functions. j. Critical manufacturing. k. Hazardous materials.
Financial services. m. Chemical supply chains and safety.
Defense industrial base. 9. For purposes of this order, critical infrastructure workers also include:

Case 2:20-cv-11053-MAG-RSW ECF No. 22-6 filed 05/04/20 PageID.905 Page 10 of 15
a. Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of workers required to perform in-person work as permitted under this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.
b. Workers at suppliers, distribution centers, or service providers, as described below.
1. Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
2. Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
3. Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
4. Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-6 filed 05/04/20 PageID.906 Page 11 of 15
c. Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
d. Workers and volunteers for businesses or operations (including both religious and secular nonpro!t organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
e. Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.
f. Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.
g. Workers at laundromats, coin laundries, and dry cleaners.
h. Workers at hotels and motels, provided that the hotels or motels do not o"er additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
i. Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person tra#c.
10. Businesses, operations, and government agencies that continue in-person work must

Caadshee2r:e20t-ocvs-o1u1n05d3s-MocAiaGl-RdiSsWtancEiCngF pNroa.c2t2ic-e6s afilnedd 0m5e/0a4s/u20res,PwagheicIDh.9in0c7ludPeabgeut1a2roef n15ot limited to:
a. Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.
b. Restricting the number of workers present on premises to no more than is strictly necessary to perform the business’s, operation’s, or government agency’s critical infrastructure functions or its minimum basic operations.
c. Promoting remote work to the fullest extent possible.
d. Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
e. Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
f. Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a con!rmed diagnosis of COVID-19.
g. Any other social distancing practices and mitigation measures recommended by the CDC.
11. Any store that remains open for in-person sales under section 5 or 9(f) of this order must:

Case 2:20-cv-11053-MAG-RSW ECF No. 22-6 filed 05/04/20 PageID.908 Page 13 of 15
a. Establish lines to regulate entry in accordance with subsections (c) and (d) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
b. Consider establishing curbside pick-up to reduce in-store tra#c and mitigate outdoor lines.
c. For stores of less than 50,000 square feet of customer $oor space, limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local !re marshal.
d. For stores of more than 50,000 square feet:
1. Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer $oor space. The amount of customer $oor space must be calculated to exclude store areas that are closed under subprovision (2) of this subsection.
2. Close areas of the store—by cordoning them o", placing signs in aisles, posting prominent signs, removing goods from shelves, or other appropriate means—that are dedicated to the following classes of goods:
A. Carpet or $ooring.
B. Furniture.

C. CGaasred2e:n20c-ecvn-t1e1r0s5a3n-MdApGla-RnSt WnursEeCrFieNs.o. 22-6 filed 05/04/20 PageID.909 Page 14 of 15
D. Paint.
3. By April 13, 2020, refrain from the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences.
4. Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.
e. The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in subsections (c) and (d) of this section as necessary to protect the public health.
12. No one shall advertise or rent a short-term vacation property except as necessary to assist in housing a health care professional or volunteer aiding in the response to the COVID-19 crisis.
13. Nothing in this order should be taken to supersede another executive order or directive that is in e"ect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, a place of religious worship, when used for religious worship, is not subject to penalty under section 17 of this order.
14. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority.

15. CTahsies 2o:r2d0e-crvt-a1k1e0s53e-"MeAcGt -oRnSAWpriEl C9,F2N0o2.02a2-t611f:i5le9d p0m5/0a4n/2d0coPnatigneuIDes.9t1h0rouPgahgeA1p5riol f3105, 2020 at 11:59 pm. When this order takes e"ect, Executive Order 2020-21 is rescinded. All references to that order in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
16. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether su#cient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health-care workforce; (4) the state’s capacity to test for COVID-19 cases and isolate infected people; and (5) economic conditions in the state.
17. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.
MICHIGAN.GOV HOME | ADA | MICHIGAN NEWS | POLICIES COPYRIGHT 2020 STATE OF MICHIGAN

Case 2:20-cv-11053-MAG-RSW ECF No. 22-7 filed 05/04/20 PageID.911 Page 1 of 5
FAQ ALTERNATE LANGUAGES HOME MDHHS ! SEARCH
Coronavirus RESOURCES # PRESS RELEASES VOLUNTEER
DONATE VIDEO UPDATES
CORONAVIRUS / MICHIGAN DATA
Michigan Data

This information is updated daily at 3 p.m., with COVID-19 results included as of 10 a.m.

Con!rmed COVID-19 Cases by

Jurisdiction updated 4/26/2020

County

Con!rmed Reported

Cases

Deaths

Alcona

4

Allegan

69

1

Alpena

60

2

Antrim

9

Arenac

16

1

Barry

29

1

Bay

115

2

Benzie

4

Berrien

215

14

Branch

48

2

Calhoun

202

10

Cass

26

2

Charlevoix

13

1

Cheboygan

17

1

Chippewa

2

Clare

10

1

Clinton

109

9

Crawford

46

3

Delta

12

2

Detroit City

8613

922

"DAILY COUNTS
"LAB TESTING
"DATA ABOUT PLACES
"LONG TERM CARE FACILITIES
"CORONAVIRUS SYMPTOMS
Cumulative Total of Recovered COVID-19 Cases (as of
4/24/2020): 8,342
Note on recovery: During this response, MDHHS is reviewing vital records statistics to identify any

DicCkainseso2n:20-cv-110533-MAG-RSW 2ECF No. 22-7 fileladb0o5r/a0t4o/2ry0 coPna!gremIDe.d91C2OVPIDa-g1e92coafs5es

Eaton

115

5

who are 30 days out from their onset of

Emmet

21

2

Genesee

1467

161

Gladwin

11

1

Gogebic

4

1

Grand Traverse

19

5

Gratiot

8

1

Hillsdale

113

14

Houghton

2

Huron

13

Ingham

406

9

Ionia

43

2

Iosco

33

4

Isabella

55

7

Jackson

327

16

Kalamazoo

292

11

Kalkaska

17

2

Kent

1031

32

illness to represent recovery status. As the pandemic continues to impact Michigan, this pool will expand to include more cases. Recovered is de!ned as the number of persons with a con!rmed COVID-19 diagnosis who are alive 30 days post-onset (or referral date if onset is not available). The number of persons recovered on April 24, 2020 represents COVID-19 con!rmed individuals with an onset date on or prior to March 25, 2020. If an individual dies from a COVID-related cause >30 days from onset/referral, they are removed from the number of persons recovered. These numbers will be updated every Saturday.

Lake

2

Lapeer

165

24

Leelanau

9

Lenawee

82

Livingston

315

14

Age Data of Overall Deceased

Average Age

74.3 years

Median Age

76 years

Luce

1

Mackinac

5

Age Range

5-107 years

Macomb

5203

520

Manistee

11

Marquette

42

7

Mason

5

Mecosta

14

1

Menominee

3

Overall Case Fatality Rate

Statewide Con!rmed Cases

9%

Midland

52

3

Missaukee

15

1

Monroe

273

12

Montcalm

32

1

Montmorency

5

Muskegon

228

13

Newaygo

15

Oakland

6928

620

Cases by Sex

Percentage Percentage of

Sex of Overall Deceased

Cases by Sex Cases by Sex

Male

45%

55%

Female

54%

45%

Unknown

1%

<1%

OCceasaena2:20-cv-110535-MAG-RSW 1ECF No. 22-7 filedT0o5t/a04ls/2m0 ayPnagoetIDa.d9d13to 1P0a0g%e 3doufe5to

Ogemaw

9

rounding

Osceola

8

Oscoda

4

Otsego

87

8

Ottawa

180

9

Presque Isle

10

Roscommon

13

Saginaw

558

43

Sanilac

34

4

Schoolcraft

3

Shiawassee

130

7

St Clair

302

18

St Joseph

28

1

Tuscola

82

13

Van Buren

35

2

Washtenaw

1001

50

Wayne

7135

658

Wexford

8

1

MDOC*

1031

32

Cases by Age

Percentage Percentage of

Age of Overall Deceased

Cases by Age Cases by Age

0 to 19

2%

<1%

20 to 29

10%

<1%

30 to 39

13%

1%

40 to 49

16%

4%

50 to 59

19%

9%

60 to 69

18%

19%

70 to 79

12%

28%

80+

11%

39%

Unknown

<1%

0%

Totals may not add to 100% due to rounding

FCI**

81

1

Unknown

3

1

Out of State

27

1

Cases by Race

Totals

37778

3315

Percentage Percentage

Race

of Overall of Deceased Cases by Cases by

Note on cumulative counts: This report is provisional and subject to change. As public health investigations of individual cases continue, there will be corrections to the status and details of referred cases that result in changes to this report.City of Detroit and Wayne County are reported separately. *Michigan Department of Corrections **Federal Correctional Institute
Note on the deaths: Deaths must be reported by health care providers, medical examiners/coroners, and recorded by local health departments in order to be counted.

American Indian or
Alaska Native Asian/Paci!c Islander Black or African American Caucasian Multiple Races Other Unknown

Race
<1%
2%
32% 32% 7% 4% 22%

Race
<1%
1%
41% 44% 2% 2% 10%

Note oCnasjeur2i:s2d0-iccvti-o11n0a5l3c-lMaAssGi!-RcSaWtionE:CInF No. 22-7 filed 05/04/20 PageID.914 Page 4 of 5

order to provide more accurate data, the “Other” jurisdiction category will no longer be used. Michigan Department of

Totals may not add to 100% due to rounding

Corrections cases will be listed under

“MDOC”. Federal Correctional Institution cases will be listed under “FCI”.
Note on Case Fatality Rate: The case fatality rate is the number of people who have died from causes associated with COVID-19 out of the total number of people with con!rmed COVID-19 infections. It is used as one measure of illness severity. Several factors can a"ect this number. Until recently, COVID-19 lab testing has prioritized for hospitalized individuals due

Cases by Hispanic/Latino Ethnicity

Hispanic/Latino Ethnicity

PoEeCftrahOcsenevnisectribatayygllePDEeCterahccseneoenaifsctsibaetyygde

Hispanic/Latino 3%

1%

Non-Hispanic Latino

58%

74%

Unknown

39%

25%

to limited testing availability. As a result, COVID-19 infections were identi!ed more

Totals may not add to 100% due to rounding

often in people who were more severely ill.

This would lead to a higher case fatality

rate. As more people with mild illness are tested, it is likely the case fatality rate will go down.

Cases by Arab Ethnicity Percentage Percentage of
Arab of Overall Deceased

Ethnicity Cases by

Cases by

Ethnicity

Ethnicity

Arab

1%

1%

NonArab

27%

25%

Unknown

72%

74%

Totals may not add to 100% due to rounding

Case 2:20-cv-11053-MAG-RSW ECF No. 22-7 filed 05/04/20 PageID.915 Page 5 of 5
Have questions? Chat with Robin
MICHIGAN.GOV HOME | ADA | MICHIGAN NEWS | POLICIES COPYRIGHT 2020 STATE OF MICHIGAN

Case 2:20-cv-11053-MAG-RSW ECF No. 22-8 filed 05/04/20 PageID.916 Page 1 of 3
Coronavirus in Ohio: More than 1,800 inmates at Marion Correctional test positive
By Patrick Cooley By Jim Woods The Columbus Dispatch Posted Apr 19, 2020 at 3:37 PM Updated Apr 20, 2020 at 10:30 AM
The total number of confirmed cases of coronavirus rose to 11,602 cases on Sunday
Coronavirus has overtaken a vast majority of the prison population at the Marion Correctional Institution, state officials said Sunday.
The Ohio Department of Health reported more than 1,000 newly confirmed cases of the coronavirus across the state Sunday, bringing the total of confirmed and probable cases to 11,602. With 20 additional deaths, there have been 471 confirmed and probable deaths from COVID-19, state officials said.
The number of hospitalizations rose to 2,565. Franklin County now has 1,442 confirmed cases and 30 confirmed deaths.
Much of the increase in cases has come from Ohio’s prison system, as more tests have come back confirming that inmates and employees are infected.
>> This story is being provided for free as a public service to our readers during the coronavirus outbreak. You can find more stories on coronavirus here. Please support local journalism by subscribing to The Columbus Dispatch at subscribe.dispatch.com.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-8 filed 05/04/20 PageID.917 Page 2 of 3 From the Newsroom: The Columbus Dispatch
Coronavirus: Gas prices continue to drop, cheapest aver
00:00 / 03:31
Overall, the state’s prison system has recorded 2,426 positive results among inmates, the Ohio Department of Rehabilitation and Correction said. That number is 21% of the total confirmed cases in Ohio.
The majority of those cases are at the Marion Correctional Institution, where 1,828 inmates — 73% of the total — have tested positive for the virus, state officials say. The remaining 667 prisoners now are in quarantine. No deaths have been reported among inmates there.
Marion Correctional’s staff has had 109 positive tests and one death reported.
Pickaway Correctional has 384 prisoners who have tested positive, and the number of reported deaths has increased to five, according to correction department statistics. The prison’s 1,614 other inmates are in quarantine.
In addition, 64 staff members at Pickaway Correctional have tested positive.
The Franklin Medical Center in Columbus is another hot spot; 103 inmate patients there have tested positive, and there has been one death. The 393 other inmate patients there are in quarantine. Among the staff, 46 members have tested positive.
“Throughout our mass testing process, we have found many individuals who are testing positive for COVID who are asymptomatic,” said JoEllen Smith, correction department spokeswoman.
Those who require additional care are being treated at hospitals near the prisons or at the Ohio State University Wexner Medical Center. The Ohio National Guard is providing medic support at Pickaway Correctional and will be sent to help at Marion Correctional as well, Smith said.
The state also has put most of its other institutions, which house more than 29,000 prisoners, in quarantine as a precaution.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-8 filed 05/04/20 PageID.918 Page 3 of 3
Despite the increase in confirmed cases among inmates, the total seems to have leveled off in recent days. The number of deaths, though, is steadily rising.
Gov. Mike DeWine has pledged to begin reopening the state’s economy in phases beginning May 1, but health experts caution that testing must be widespread before businesses in the state can fully reopen.
Ohio is able to offer only limited testing at this time.
Protesters have congregated outside the Statehouse in recent days to demand that DeWine reopen the economy, and some Republican lawmakers have joined the calls for the state to allow businesses to open again.
The governor issued a statewide stay-at-home order in March that shuttered any business deemed nonessential. Grocery stores remain open, as do restaurants that agree to offer only carryout and delivery.
In an interview with Chuck Todd on NBC’s “Meet the Press” on Sunday morning, DeWine said he recognizes that protesters have a First Amendment right to speak their minds, but he has asked demonstrators to observe social distancing to avoid spreading the virus.
“They were protesting against me yesterday, and that’s just fine,” DeWine said. “We’re going to do what we think is right, and that is try to open this economy, but do it very, very carefully.”
DeWine told Todd that Ohio could double or triple testing capacity if the FDA approved a reagent needed for test kits. DeWine appeared to confirm on Twitter on Sunday that the FDA had approved the reagent, but a spokesman for the governor did not immediately respond to a request for comment.
pcooley@dispatch.com
@PatrickACooley
jwoods@dispatch.com
@Woodsnight

Case 2:20-cv-11053-MAG-RSW ECF No. 22-9 filed 05/04/20 PageID.919 Page 1 of 6 HOME CONTACT ! SEARCH

THE OFFICE OF
GOVERNOR GRETCHEN WHITMER

ABOUT " NEWS " ISSUES "
WHITMER / NEWS / EXECUTIVE ORDERS

APPOINTMENTS "

LT GOVERNOR "

Executive Order 2020-29 (COVID-19)

EXECUTIVE ORDER

No. 2020-29
Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody;
temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identi!ed in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Michigan Department of Health and Human Services identi!ed the !rst two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-9 filed 05/04/20 PageID.920 Page 2 of 6
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and e"ect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the a"ected area under control.” MCL 10.31(1).
To mitigate the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders who work at or are incarcerated in prisons, county jails, local lockups, and juvenile detention centers across the state, it is reasonable and necessary to implement limited and temporary COVID-19-related protocols and procedures regarding entry into facilities operated by the Michigan Department of Corrections and transfers to and from the Department’s custody; to recommend limited and temporary COVID-19-related protocols and measures for county jails, local lockups, and juvenile detention centers; and to temporarily suspend certain rules and procedures to facilitate the implementation of those recommendations.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. The Michigan Department of Corrections (the “Department”) must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which the Department has already developed and implemented at the facilities it operates and which include the following:
a. Screening all persons arriving at or departing from a facility, including sta", incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-9 filed 05/04/20 PageID.921 Page 3 of 6 b. Restricting all visits, except for attorney-related visits, and conducting those visits
without physical contact to the extent feasible.
c. Limiting o"-site appointments for incarcerated persons to only appointments for urgent or emergency medical treatment.
d. Developing and implementing protocols for incarcerated persons who display symptoms of COVID-19, including methods for evaluation and processes for testing, noti!cation of the Department of Health and Human Services (“DHHS”), and isolation during testing, while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments.
e. Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.
f. Providing, to the fullest extent possible, appropriate personal protective equipment to all sta" as recommended by the CDC.
g. Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.
h. Ensuring access to personal hygiene products for incarcerated persons and correctional sta", including soap and water su#cient for regular handwashing.
i. Ensuring that protective laundering protocols are in place.
j. Posting signage and continually educating on the importance of social distancing,

hCaansdew2:a2s0h-cinv-g1,1a0n5d3-pMeArGso-RnSalWhygEiCenFeN.o. 22-9 filed 05/04/20 PageID.922 Page 4 of 6
k. Practicing social distancing in all programs and classrooms—meaning a distance of at least six feet between people in any meeting, classroom, or other group.
Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.
2. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the capacity and procedural requirements regarding county jail overcrowding states of emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq., is temporarily suspended. While this order is in e"ect, all actions that would be authorized under the CJOA in the event of a declaration of a county jail overcrowding state of emergency are authorized and shall remain authorized without regard to any reduction in jail population or any other such limitations on the duration of authorization imposed by the CJOA.
3. Anyone authorized to act under section 2 of this order is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:
a. Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.
b. Anyone who is incarcerated for a tra#c violation.
c. Anyone who is incarcerated for failure to appear or failure to pay.
d. Anyone with behavioral health problems who can safely be diverted for treatment.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-9 filed 05/04/20 PageID.923 Page 5 of 6
4. E"ective immediately, all transfers into the Department’s custody are temporarily suspended. Beginning seven (7) days from the e"ective date of this order, and no more than once every seven (7) days, a county jail or local lockup may request that the director of the Department determine that the jail or lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order. Upon inspection, if the director of the Department determines that a county jail or local lockup has satisfactorily implemented risk reduction protocols, transfers from that jail or lockup will resume in accordance with the Department’s risk reduction protocols. The director of the Department may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.
5. Parole violators in the Department’s custody must not be transported to or lodged in a county jail or local lockup unless the director of the Department has determined that such county jail or local lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order.
6. The State Budget O#ce must immediately seek a legislative transfer so that counties may be reimbursed for lodging incarcerated persons that would have been transferred into the Department’s custody if not for the suspension of transfers described in section 4 of this order.
7. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:
a. Removing from the general population any juveniles who have COVID-19 symptoms.
b. Eliminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.

c. PCraosveid2i:n2g0-wcvr-i1tt1e0n53a-nMdAvGe-rRbSaWl coEmCmF uNnoi.c2a2t-io9nsfilteod a0l5l /j0u4v/e2n0ilePsaagtesIDuc.9h24faciPlitaigees 6reogfa6rding COVID-19, access to medical care, and community-based support.
d. To the extent feasible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.
8. Unless otherwise directed by court order, for juveniles on court-ordered probation, the use of out-of-home con!nement for technical violations of probation and any requirements for in-person meetings with probation o#cers are temporarily suspended.
9. This order is e"ective immediately and continues through April 26, 2020 at 11:59 pm.
Given under my hand and the Great Seal of the State of Michigan.
MICHIGAN.GOV HOME | ADA | MICHIGAN NEWS | POLICIES COPYRIGHT 2020 STATE OF MICHIGAN

Case 2:20-cv-11053-MAG-RSW ECF No. 22-10 filed 05/04/20 PageID.925 Page 1 of 3

Jacqueline Sherman, Interim Chair Stanley Richards, Vice-Chair Robert L. Cohen, M.D. Felipe Franco Jennifer Jones Austin James Perrino Michael J. Regan Steven M. Safyer, M.D.
Margaret Egan Executive Director

BOARD OF CORRECTION CITY OF NEW YORK
1 CENTRE STREET, RM 2213 NEW YORK, NY 10007 212 669-7900 (Office) 212 669-7980 (Fax)

March 21, 2020

Darcel Clark Bronx District Attorney

Eric Gonzalez

Melinda Katz

Brooklyn District Attorney Queens District Attorney

Michael McMahon Staten Island District Attorney

Cyrus Vance Manhattan District Attorney

Janet DiFiore Chief Judge of the Court of Appeals and of the State of New York

Anthony Annucci Acting Commissioner, NYS Department of Corrections and Community Supervision

Cynthia Brann Commissioner, NYC Department of Correction

VIA EMAIL

Dear Ne. York Cit s Criminal Justice Leaders:

The New York City jails are facing a crisis as COVID-19 continues its march through the City. We write to urge you to act to (1) immediately remove from jail all people at high risk of dying of COVID-19 infection and (2) rapidly decrease the jail population.

Staff of the Department of Correction (DOC) and Correctional Health Services (CHS) are doing heroic work to keep people in custody and staff safe and healthy. The Board of Correction, the independent o ersight agenc for the Cit s jails, has closel monitored Rikers Island and the borough jails for over sixty years. From this experience, we know that DOC s and CHS s best efforts will not be enough to prevent viral transmission in the jails. Their work must be supplemented by bold and urgent action from the City s District Attorneys, New York State judges, New York State Department of Corrections and Community Supervision (DOCCS), and DOC s utilization of its executive release authority. Fewer people in the jails will save lives and minimize transmission among people in custody as well as staff. Failure to drastically reduce the jail population threatens to o er helm the Cit jails healthcare s stem as well its basic operations.

1

Case 2:20-cv-11053-MAG-RSW ECF No. 22-10 filed 05/04/20 PageID.926 Page 2 of 3
Over the past six days, we have learned that at least twelve DOC employees, five CHS employees, and twenty-one people in custody have tested positive for the virus. There are more than 5 individuals currently being monitored in the contagious disease and quarantine units (up from 26 people on March 17). It is likely these people have been in hundreds of housing areas and common areas over recent weeks and have been in close contact with many other people in custody and staff. Given the nature of jails (e.g. dense housing areas and structural barriers to social distancing, hygiene, and sanitation), the number of patients diagnosed with COVID-19 is certain to rise exponentially. The best path forward to protecting the community of people housed and working in the jails is to rapidly decrease the number of people housed and working in them.
Mayor de Blasio announced on March 19 that the NYPD and Ma or s Office of Criminal Justice (MOCJ) had identified 40 people for release from custody, pending approval of the District Attorneys Offices and the courts. This number is far from sufficient to protect against the rapid spread of coronavirus in the jails.
We urge you to follow your colleagues in Los Angeles County (CA), San Francisco (CA), Cook County (IL), Autauga County (AL), Augusta County (VA), Allegheny County (PA), Hamilton County (OH), Harris County (TX), Travis County (TX), and Cuyahoga County (OH), and take action now to release people from City jails. As further detailed below, this immediate reduction should prioritize the release of people who are at higher risk from infection such as those over 50 or with underlying health conditions. Additionally, you must safely release other people in jail to decrease the overall population; this process should begin with people detained for administrative reasons (including failure to appear and parole violations) and people ser ing Cit Sentences (sentences of one ear or less). The process should continue to identify all other people who can be released. DOC and CHS should provide discharge planning to all people you release, including COVID screening, connection to health and mental health services, and support with housing, as necessary.
People over 50 years old The morbidity rates for COVID-19 accelerate with age, with older people being the least likely to recover from complications of the virus. There are currently 906 people in DOC custody who are over age 50. Older adults in custody have an average of between three and four medical diagnoses each, and each of them takes between six and seven medications. Of the 906 older adults in custody today, 189 are being detained on technical parole violations. Another 74 older adults are City-Sentenced, serving one year or less for low-level offenses.
People with underlying health conditions People with underlying health conditions, including lung disease, heart disease, diabetes, cancer, or a weakened immune system, are especially at risk of dying from COVID-19. As of today, there are 62 people in the infirmary at North Infirmary Command on Rikers Island. They are housed there because they require a higher level of medical care. Twelve of them are technical parole violators and six are CitySentenced. In addition, there are eight women currently in the infirmary at the Rose M. Singer Center, three of whom are in custody on technical parole violations.
2

Case 2:20-cv-11053-MAG-RSW ECF No. 22-10 filed 05/04/20 PageID.927 Page 3 of 3 People detained for administrative reasons There are currently 666 people in custody being held solely for a technical violation of parole, including failure to make curfew, missing a meeting with a parole officer, or testing positive for drugs. There are an additional 811 people detained on an open case and a technical parole violation who also should be reviewed for immediate release. People serving city sentences There are currently 551 people in DOC custody who are serving a City Sentence of under one year for low-level offenses. The Mayor must use his executive powers to release these people.
New York must replicate the bold and urgent action it has taken in other areas to stem the tide of COVID-19 in the jails. The Board strongly urges you to take urgent action today to drastically reduce the NYC jail population using the guidelines above. Sincerely, Jacqueline Sherman Interim Chair
3

Case 2:20-cv-11053-MAG-RSW ECF No. 22-11 filed 05/04/20 PageID.928 Page 1 of 6
Iowa’s prisons will accelerate release of approved inmates to mitigate COVID-19
Contributed photo Anamosa State Penitentiary is a maximum-security prison in Jones County.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-11 filed 05/04/20 PageID.929 Page 2 of 6
From school districts to workplaces to restaurants, Iowans across the state are shutting their doors and keeping to themselves to mitigate the spread of COVID-19. But for inmates in Iowa’s jail and prisons, social distancing is not an option.
The close quarters and transient influx of new people behind bars creates a precarious situation where a highly contagious virus like COVID-19 could spread and expose not only inmates but also the general public.
To mitigate a possible outbreak and create more room in Iowa’s overcrowded prisons, the Iowa Department of Corrections plans to expedite the release of about 700 inmates who were already determined eligible for release by the Iowa Board of Parole.
“We’re trying to be more efficient in our area and free up some space,” said Beth Skinner, director of the Iowa Department of Corrections.
By accelerating the release wait list, more beds will open up, which can allow the correctional facility to move inmates more easily if an outbreak does occur in a prison. Iowa’s eight prisons are already about 23% overcrowded, according to the Iowa Department of Corrections daily statistics.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-11 filed 05/04/20 PageID.930 Page 3 of 6
Skinner
But releasing people without offering them a place to go doesn’t help either, Skinner said. She said they’re working to ensure all parolees have a place to stay once they return to their communities. “It has to be a suitable, safe place,” Skinner said. Prisoners medically screened before intake or release Beyond accelerating the release of people, the Iowa Department of Corrections is also medically screening all new inmates and people who are released from their facilities, Skinner said. On average, 500 new inmates are transferred to the prisons on a monthly basis, Skinner said. Correctional workers will take their temperatures and give them medical questionnaires to fill out. Because symptoms of COVID-19 may not

Cimasem2e:2d0i-actve-1ly10s5h3o-MwA,Gn-eRwSWinmECatFeNsoa.r2e2-a1u1tofmiledat0i5c/a0l4l/y20quaPraagneItDin.9e3d1 foPra1g4e 4 of 6 days.
Visitations are also temporarily suspended to mitigate the spread of COVID-19, but the department is examining reducing the costs of mail and phone calls, Skinner said.
Inmates and correctional officers have access to soap and water and employees are also provided hand sanitizer.
A “huge piece” in preventing outbreaks will be COVID-19 tests, however, Skinner said. Each correctional facility will receive five to six tests, which can help them evaluate people who may have symptoms and quarantine them.
“We get the people who have the flu. What’s different with this one is the unknown,” Skinner said.
ACLU: Iowa should do more to reduce prison population
But an Iowa civil rights group believes the state should go even further to reduce the density of the prison population and mitigate the spread of COVID-19.
ACLU of Iowa is calling for comprehensive changes to law enforcement and correctional facilities practices.
Veronica Fowler, spokesperson for ACLU of Iowa, said limiting arrests and releasing more people not only protects the jail and prison populations, but also the general public who may be exposed to COVID19 by a correctional officer.
“We have in any one day about 16,000 people, essentially behind bars,” Fowler said of Iowa’s prisons and jails. “That is the equivalent of Clive or Boone or Oskaloosa. We’re not talking about tiny little populations.”
The organization is calling for limiting the number of arrests, people in

Ccaosuen2t:2y0j-acivl-s11a0n5d3-nMuAmG-bReSrWofEpCeFoNpole. 2b2e-1in1g fhileedld05o/0n4p/2r0etrPiaagl edIDet.9e3n2tioPna.ge 5 of 6 Additionally, the group is asking the state to commute people with medical conditions who would have been released in the next two years and commuting people who were scheduled to be released in a year.
Another concern is an order from the Iowa Supreme Court, Fowler said.
On March 14, the Iowa Supreme Court ordered all criminal jury trials be postponed until April 20. Fowler said that could result in some inmates staying behind bars longer than necessary.
Fowler said ACLU plans to send a letter to the governor and state officials detailing their requests.
“If all these people get sick, that’s a health crisis that overwhelms the system,” Fowler said.
In Johnson County, 37 inmates were being held in the county jail. The county has the highest rate of COVID-19 with 22 confirmed cases so far. The facility was originally built to house 46 inmates, but by doublebunking inmates, it can hold 92, according to The Gazette.
No plans for early release from expanded Polk County jail
At the Polk County Jail, there are no plans to expedite the release of prisoners, said Lt. Heath Osberg of the Polk County Sheriff’s Office.
In 2008, Polk County finished construction on a new jail facility that holds 1,500 inmate beds and is tripled in size from the previous jail.
Because of the larger size, Osberg, said there is not overcrowding in the jail. Around 749 inmates were being held in the jail as of Friday afternoon.
The difference between jails and prisons, however, is the more transient flow of people coming in and out.
Between Wednesday and Thursday, 24 inmates were booked into Polk

CCaoseun2:t2y0-Jcav-i1l,1a0c53c-oMrAdGin-RgStWo itEsCwFeNbos.it2e2.-1E1lefvileend 0o5f/0t4h/o20se dPeatgaeiIDn.e9d33havPeage 6 of 6 already been released.
Osberg said inmates who are brought into the facility are getting their temperatures checked and filling out medical questionnaires.
He said any changes in the release of inmates would have to come from county attorneys and Iowa courts.
Fowler said she hopes state officials stay aware of Iowa’s jailed population, particularly people who can’t afford to pay bond and those with health conditions that make them more vulnerable to COVID-19.
“The bottom line is that we already have an over-incarceration problem in our country and our state,” Fowler said.

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Case 2:20-cv-11053-MAG-RSW ECF No. 22-12 filed 05/04/20 PageID.934 Page 1 of 5
News! All News Chief Justice Cantil-Sakauye Supreme Court Courts of Appeal Superior Courts Judicial Council View All Topics Daily NewsLinks Events Fast Facts Multimedia!
California Courts on Flickr California Courts on YouTube Stay Connected
California Chief Justice Issues Second Advisory on Emergency Relief Measures
March 20, 2020
Contact: Peter Allen 415-865-7740
California Chief Justice Tani Cantil-Sakauye issued new guidance to the state's superior courts on Friday to mitigate some of the health risks to judicial officers, court staff, and court users during the COVID-19 pandemic.
In California, unlike other states, presiding judges of county superior courts may petition the Chief Justice—as chair of the Judicial Council—for an emergency order. (So far, the Chief Justice has signed emergency orders for nearly all of California's 58 counties, available to the public here).
Under Gov. Gavin Newsom's executive order to shelter in place, courts are considered "essential services" that must still provide services to the public.
"I am deeply concerned about the disruption and hardships caused by the COVID-19 crisis and I have applied and will continue to apply all the constitutional and statutory powers of my office to minimize these unprecedented problems," Cantil-Sakauye said.
In Friday's advisory, Cantil-Sakauye urged court officials to consider the following measures. "These actions can be taken immediately to protect constitutional and due process rights of court users. They will require close collaboration with your local justice system partners," Cantil-Sakauye said.
In criminal cases:

CaLsoew2e:r2b0a-icl va-m1o1u0n5ts3-sMigAniGfic-aRnStlyWforEthCeFduNroat.io2n2-o1f 2thefciloerdon0a5v/i0ru4s/2e0merPgeangceyI,Din.9cl3u5dingPloawgeeri2ngotfh5e bail
amount to $0 for many lower level offenses. Consider a defendant's existing health conditions, and conditions existing at the anticipated place of confinement, in setting conditions of custody for adult or juvenile defendants. Identify detainees with less than 60 days in custody to permit early release, with or without supervision or community-based treatment. Determine the nature of supervision violations that will warrant detention in county jail, or “flash incarceration," to drastically reduce or eliminate its use during the current health crisis. Prioritize arraignments and preliminary hearings for in-custody defendants, and the issuance of restraining orders. Prioritize juvenile dependency detention hearings to ensure they are held within the time required by state and federal law. Allow liberal use of telephone or video appearance by counsel and defendant for routine or non-critical criminal matters.
In civil cases:
Suspend all civil trials and hearings for at least 60 days, with the exception of time-sensitive matters, such as restraining orders and urgent dependency, probate, and family matters. When possible, provide that any urgent matters may be done telephonically.
See Chief Justice Tani Cantil-Sakauye’s advisory below, sent to all county superior court presiding judges and court executive officers on Friday:
To: Presiding Judges and Court Executive Officers of the California Courts
Dear Judicial Branch Colleagues:
I write to share information on actions we are taking at the state level regarding the current crisis in our California court system resulting from COVID-19, and to provide guidance on ways that might mitigate some of the health risks to judicial officers, court staff, and court users.
Governor Newsom’s order last night for all Californians to shelter in place reflects the unprecedented challenge we face with the COVID-19 virus, both as Californians and as judicial officers and court administrators. We sought and received clarification from the Governor’s office that the Governor’s order is not meant to close our courts. The courts are—and continue to be—considered as an essential service. I recognize, however, that this new adjustment to health guidelines and direction likely may require further temporary adjustment or suspension of certain court operations, keeping in mind, as we all are, that we are balancing constitutional rights of due process with the safety and health of all court users and employees.
We are working at both the state and local levels to identify more options to provide relief. Aiding in these efforts are the perspectives and input from the TCPJAC and CEAC chairs and vice chairs who are dealing with local emergencies while making time to focus on the welfare of our larger judicial branch family.
In addition, we are in daily, close contact with the Governor’s office, executive branch departments, and legislative

leaderCshaipseto2m:2a0k-ecvth-1em10a5w3a-MreAoGf t-hReSimWpacEt ConFcNouor.ts22as-1w2ellfailsedto0s5e/e04w/h2e0re imPamgeedIiDat.e9a3n6d loPnagegre-te3rmof 5
assistance may be needed to respond to a crisis of this magnitude.
I am deeply concerned about the disruption and hardships caused by the COVID-19 crisis and I have applied and will continue to apply all the constitutional and statutory powers of my office to minimize these unprecedented problems.
I, like many of you, am being contacted by justice system partners and advocates seeking immediate and direct action to address the particular needs of their constituencies. In responding to these requests, we have made clear what the limits of authority are for the Chief Justice and the Judicial Council, as well as the role of independent trial courts to manage their operations, while stressing our shared commitment to be responsive within the framework of respective constitutional and statutory responsibilities.
The relief I am authorized to grant with an emergency order is limited to the items enumerated in Government Code section 68115. In California, unlike other states, each of the 58 superior courts retains local authority to establish and maintain its own court operations. This decentralized nature of judicial authority is a statutory structure that reflects the diversity of each county.​
In an effort to alleviate some of the immediate problems faced by the trial courts, I have authorized court holidays and extensions of time for court procedures in response to requests submitted by the presiding judges in many superior courts, with the understanding that the immense diversity of our state may require variations on what is considered an essential or priority service in a particular court or community.
I will continue to grant emergency order requests while balancing fairness and access to justice. As of writing, 63 emergency orders have been processed with several more pending. In light of the continuing emergency posed by the COVID-19 pandemic, I am prepared to approve requests for further extensions as warranted, consistent with my authority under Government Code section 68115(b).
In addition to the steps you have taken under the orders you have been granted, I strongly encourage to you consider the following suggestions to mitigate the effect of reduced staffing and court closures and to protect the health of judges, court staff, and court users.
These actions can be taken immediately to protect constitutional and due process rights of court users. They will require close collaboration with your local justice system partners.
Criminal Procedures
1. Revise, on an emergency basis, the countywide bail schedule to lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses – for all misdemeanors except for those listed in Penal Code section 1270.1 and for lower-level felonies. This will result in fewer individuals in county jails thus alleviating some of the pressures for arraignments within 48 hours and preliminary hearings within 10 days.
2. In setting an adult or juvenile defendant’s conditions of custody, including the length, eligibility for alternative sentencing, and surrender date, the court should consider defendant’s existing health conditions, and any conditions existing at defendant’s anticipated place of confinement that could affect the defendant’s health, the health of other detainees, or the health of personnel staffing the anticipated place of confinement.
3. With the assistance of justice partners, identify those persons currently in county jail or juvenile hall custody who have less than 60 days remaining on their jail sentence for the purpose of modifying their sentences to permit early release of such persons with or without supervision or to community-based organizations for

Ctraesaetm2e:n2t0. -cv-11053-MAG-RSW ECF No. 22-12 filed 05/04/20 PageID.937 Page 4 of 5
4. With the assistance of justice partners, calendar hearings for youth returning to court supervision from Department of Juvenile Justice following parole consideration for a Welf. & Inst. Code, §1766 hearing.
5. With the assistance of justice partners, determine the nature of supervision violations that will warrant “flash incarceration,” for the purpose of drastically reducing or eliminating the use of such an intermediate sanction during the current health crisis.
6. Prioritize arraignments and preliminary hearings for in-custody defendants, and the issuance of restraining orders.
7. Prioritize juvenile dependency detention hearings to ensure they are held within the time required by state and federal law.
8. For routine or non-critical criminal matters, allow liberal use of telephonic or video appearance by counsel and the defendant, and appearance by counsel by use of waivers authorized by Penal Code, § 977. Written waivers without being obtained in open court have been approved if the waiver is in substantial compliance with language specified in section 977, subdivision (b)(1). (People v. Edwards (1991) 54 Cal.3d 787, 811; People v. Robertson (1989) 48 Cal.3d 18, 62.)
Civil Procedures
1. Suspend all civil trials, hearings, and proceedings for at least 60 days, with the exception of time-sensitive matters, such as restraining orders and urgent dependency, probate, and family matters. Consider whether an emergency order may be needed to address cases reaching 5-year deadlines under Code of Civil Procedure section 583.310.
2. When possible, provide that any urgent matters may be done telephonically, under the general policy encouraging use of telephonic appearances in Code of Civil Procedure section 367.5(a) and California Rule of Court, rule 3.670.
The Judicial Council’s entire management team and staff are focused on supporting you, your judicial officers, and court employees. They are moving as quickly as possible to address questions, share information, provide resources, and maintain open lines of communication to facilitate our branch’s response.
I am immensely grateful to you and your dedicated employees for your tireless efforts to navigate this storm as you are also trying to help and protect your own families through this challenging time for us all.
Tani G. Cantil-Sakauye Chief Justice of California
Related

Case 2:20-cv-11053-MAG-RSW ECF No. 22-12 filed 05/04/20 PageID.938 Page 5 of 5

California Chief Justice Issues Guidance to Expedite Court Emergency Orders
March 16, 2020

Court Emergency Orders
April 24, 2020

© 2020 Judicial Council of California| | | | | |

Case 2:20-cv-11053-MAG-RSW ECF No. 22-13 filed 05/04/20 PageID.939 Page 1 of 3
March 26, 2020
Chief Justice Bridget M. McCormack, Michigan Supreme Court Sheriff Matt Saxton (ret.), Executive Director, Michigan Sheriffs’ Association Joint Statement
Thank you to judges, sheriffs, and law enforcement statewide who have stepped up to reduce jail populations in response to the ongoing public health emergency. With a single-minded focus on keeping our communities safe, jail populations across Michigan have declined to between 25% and 75% below their maximum capacities.
We are grateful for the efforts taken so far, but we must make sure we do all we can to protect the health of Michiganders. We have half a million criminal court cases each year in Michigan and several hundred thousand people entering jails. Governor Whitmer has requested that we all do our part to limit risk, and judges and sheriffs must work together to protect court employees, jail staff, inmates, and the public at large.
We can be proactive to reduce this risk: x Judges and Sheriffs should use the statutory authority they have to reduce and suspend jail sentences for people who do not pose a public safety risk. x Law enforcement should only arrest people and take them to jail if they pose an immediate threat to people in the community. x Judges should release far more people on their own recognizance while they await their day in court. For some, judges may want to release them under supervision or under a condition that they stay away from a particular place or person. x And judges should use probation and treatment programs as jail alternatives.
In addition, see the detailed advice that the Michigan Supreme Court State Court Administrative Office previously provided to judges and court administrators statewide. Following this advice WILL SAVE LIVES. (attached below)
Guidance to Trial Courts (Provided to Trial Courts March 20, 2020) Detention, Bail, and Pretrial Release In an effort to slow the spread of COVID-19, especially in the confined environments of county jails, courts should collaborate with county stakeholders and consider the following recommendations: Coordinate with law enforcement in your county about expanding the use of appearance citations (when appropriate and legally permissible) rather than custodial arrests.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-13 filed 05/04/20 PageID.940 Page 2 of 3
Pursuant to MCL 764.9c, police officers may issue appearance tickets, subject to certain exceptions, for misdemeanor or ordinance violations for which the maximum permissible penalty does not exceed 93 days in jail. Appearance tickets save police officers’ time for more pressing matters and eliminate jail confinement. Even if an offense does not qualify for an appearance ticket (e.g. felonies or misdemeanors with punishments exceeding 93 days in jail), law enforcement still has the option for many offenses to release defendants, without charges, and submit their report to the prosecutor’s office for review.
Coordinate with your prosecutors and law enforcement agencies in your county regarding the possible use of summons (when appropriate) rather than arrest warrants.
Pursuant to MCR 6.103, a court may issue a summons instead of an arrest warrant upon the request of the prosecutor. This presents another opportunity to avoid incarceration and allows the court more flexibility with scheduling arraignments than with in-custody defendants.
If defendants are arrested for warrantless misdemeanor offenses, courts should coordinate with law enforcement to use their discretionary authority to set lower interim bonds for an expedited release of low-risk defendants before arraignment.
Pursuant to MCL 780.581, a police officer may, subject to certain exceptions, set interim bail if defendants are arrested without a warrant for misdemeanor offenses and a magistrate is not available. The amount of interim bail must be “a sum of money” determined by the police officer, not the court, but must not exceed the maximum possible fine for the offense nor be less than 20 percent of the minimum possible fine. Law enforcement agencies sometimes accomplish this by using a “bond schedule.” Several courts utilize an Interim Bond Order for this purpose.
Courts must closely adhere to MCR 6.106(C) regarding personal or unsecured bonds to effectuate as many pretrial releases from custody as safely possible.
MCR 6.106(C) requires courts to release defendants on personal or unsecured bonds unless they will not reasonably ensure the appearance of the defendant as required or will present a danger to the public. Money bail of even modest amounts can delay, or outright deny, the release of certain presumptively innocent defendants.
When setting bail, courts should carefully weigh the public necessity of certain pretrial conditions (including drug/alcohol testing, counseling, office visits, etc.) with the risk of spreading COVID-19.
Courts should be mindful that conditions of release, while not confining defendants in jail, can still place defendants in close proximity with other individuals. MCR 6.106(D) allows courts to impose conditions of pretrial release if a personal recognizance bond will not reasonably ensure the appearance of the defendant or the safety of the public. Moreover, research suggests many conditions of pretrial release, with the exception of court date reminders, are ineffective at reducing failure to appear and rearrests rates. When balancing which bond conditions to order with minimizing the spread of the COVID-19, the court should still be mindful that behavior that is dangerous to the defendant or others should not be tolerated.
Consider using non-warrant alternatives (when appropriate) when defendants fail to appear in court or otherwise commit conditional release violations.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-13 filed 05/04/20 PageID.941 Page 3 of 3
Pursuant to MCR 3.606(A)(1) and MCR 6.106(H)(2), a court may order a defendant to appear for a show cause hearing for an alleged bond violation or issue a summons for a modification of bond. Show Cause Orders (MC 230) and Summons Regarding Bond Violations (MC 308) are two options that will avoid custodial arrests and allow courts more control over their dockets. The court should continue to issue bench warrants in those circumstances where the defendant’s conduct resulting in the alleged bond or probation violations present a danger to the defendant or others.
###

Case 2:20-cv-11053-MAG-RSW ECF No. 22-14 filed 05/04/20 PageID.942 Page 1 of 6

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AG William Barr pushes expansion of home conﬁnement to reduce prison populations amid coronavirus
Barr said he doesn't want prisons to become 'petri dishes' for the virus.
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Amid concerns of the potentially devastating eﬀects that an outbreak of the novel coronavirus could have within the walls of the nation's prisons, Attorney General William Barr said Thursday that he has issued new recommendations to the Federal Bureau of Prisons to explore releasing certain at-risk prisoners to home conﬁnement in order to reduce the overall prison population.

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In a press conference at the Justice Department -- conducted via teleconference due to PnleawsesroevciieawloduirsTtearmncs ionf gUsperwohtiochccohlasn-g-edBianrtrhesaUniditetdhSatatteosfand Canada on 04/14/20 the 146,000 inmates currently serving time in federal prison facilities, one third are believed to have pre-existing medical condiLteiaornnMs oarned roughly 10,000 are over the age of 60 years old.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-14 filed 05/04/20
MORE: Releases, infections, fear: U.S. coronavirus crisis in jails and prisons looms

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"You want to make sure that our institutions don't become petri dishes and it spreads rapidly through a particular institution," Barr said on Thursday. "But we have the protocols that are designed to stop it and we are using all the tools we have to protect the inmates."

He added that "one of the those tools will be identifying vulnerable prisoners who would make more sense to allow to go home to ﬁnish their conﬁnement."

Tune into ABC at 1 p.m. ET and ABC News Live at 4 p.m. ET every weekday for special coverage of the novel coronavirus with the full ABC News team, including the latest news, context and analysis.

Attorney General William Barr speaks about the coronavirus in the James Brady BrieMng Room, March 23, 2020, in Washington. Alex Brandon/AP, FILE
Barr added that anyone who would be considered eligible for release to home conﬁnement would have to quarantine themselves for 14 days.
In a phone interview with ABC News following the press conference, Barr stressed that there would be signiﬁcant limits on what would make prisoners eligible for release to home conﬁnement, noting that they could not be convicted of violent crimes or sex oﬀenses -- which makes up roughly 40% of the over-60 population.
"My main interest is making sure that they're safe to the community and that the situation they're going into is likely to be safer than staying where they are where they have ready access to doctors and we can keep them in isolation," Barr said.

CMaOsReE:29:2in0m-catve-s1b1o0lt5fr3o-mMSAoGut-hRDSakWota pErCisoFnNonos.a2m2e-d1a4y a fpilreisdon0e5r /t0es4te/2d0 PageID.944 Page 3 of 6
positive for coronavirus
The announcement comes after a number of staﬀ and inmates in federal facilities in New York City, Atlanta and Louisiana have tested positive for the virus, leading to lockdowns of the prisons and some workers and prisoners put in isolation to try to attempt further spread. "I don't want people to think we're doing it out of panic because we feel we've lost control," Barr said of the home conﬁnement plan. " We haven't lost control but I'm still concerned that we keep each of these facilities from becoming vectors of infection."
A New York City Police oUcer puts on gloves as people wait in line to be tested for COVID-19, outside Elmhurst Hospital Center in the Queens borough of New York City, March 26, 2020. Stefan Jeremiah/Reuters
Asked about the situations that have unfolded in prisons in Italy and Colombia, where coronavirus outbreaks have resulted in some instances in prison riots and mass escapes by inmates, Barr told ABC News he doesn't believe at this point that conditions in America's federal prison system will similarly devolve. "I'm not as worried in the federal system, at least from what I'm seeing now," Barr said. "I don't want to be presumptuous and predict the future but I think the main thing is communication with the inmates and I think they're communicating very well." In response to some local and state prisons across the U.S. who have opted to release inmates in prisons and jails in large numbers, Barr said he was concerned about those using the coronavirus simply as a vehicle to depopulate prisons around the U.S.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-14 filed 05/04/20 PageID.945 Page 4 of 6
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"I don't think that people should make the blanket assumption that inmates are safer, per se, outside of facilities than in," Barr said. "A lot of it depends on where they're going. Frankly, someone in Otisville, New York in a low-security facility is probably better oﬀ than if he's released home into New York City."
He said he remains opposed to any kind of "wholesale" or mass release of inmates from the country's prisons.
MORE: State prisons prepare for coronavirus but federal prisons not providing signiﬁcant guidance, sources say
"Do you want to send a signal right now that you can get away with things?" Barr said. "Is there going to be a general break down in law and order in some place and I think the whole optic of, 'Okay, well we're not going to take any more prisoners,' could contribute to that." What to know about coronavirus:
How it started and how to protect yourself: coronavirus explained What to do if you have symptoms: coronavirus symptoms Tracking the spread in the US and Worldwide: coronavirus map
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Case 2:20-cv-11053-MAG-RSW ECF No. 22-15 filed 05/04/20 PageID.948 Page 1 of 2
To print the document, click the "Original Document" link to open the original PDF. At this time it is not possible to print the document with annotations.

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Case 2:20-cv-11053-MAG-RSW ECF No. 22-16 filed 05/04/20 PageID.950 Page 1 of 25
Coronavirus Disease 2019 (COVID-19)
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities
Printer friendly version !
PowerPoint Presentation: Managing COVID-19 in Correctional and Detention Facilities ! [25 pages, 1 MB]
This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of the date of posting, 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 CDC website periodically for updated interim guidance.
This document provides interim guidance speci!c 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, sta#, and visitors. Recommendations may need to be revised as more information becomes available.
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 speci!c to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, sta"ng, 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 speci!cally covered in this guidance.
Why is this guidance being issued?

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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, sta#, and visitors. Consistent application of speci!c 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 sta# 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 di#erent 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 sta"ng 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 sta# 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 sta# within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to di#erent policies and procedures. Incarcerated/detained persons and sta# 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.
This guidance document provides additional recommended best practices speci!cally for correctional and detention facilities. At this time, di#erent facility types (e.g., prison vs. jail) and sizes are not di#erentiated. Administrators and agencies should adapt these guiding principles to the speci!c needs of their facility.

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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, sta#, and visitors Medical isolation of con!rmed 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 con!rmed 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 de!nition 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-con!rmed 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 speci!c 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 a#ected location. Once community transmission is identi!ed 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 de!ne “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.
Con!rmed vs. Suspected COVID-19 case – A con!rmed 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 con!rmed case.

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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 speci!cally reference individuals in every type of custodial setting (e.g., juvenile facilities, community con!nement facilities), facility administrators can adapt this guidance to apply to their speci!c circumstances as needed.
Medical Isolation – Medical isolation refers to con!ning a con!rmed 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 o"cials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Sta# are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine – Quarantine refers to the practice of con!ning 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 ! .
Sta# – In this document, “sta#” 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, “sta#” does not distinguish between healthcare, custody, and other types of sta# 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 sta# 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 sta# 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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with modi!cations based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of con!rmed 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 con!rmed or suspected cases among incarcerated/detained persons or sta#, in order to ensure e#ective 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 sta# 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 con!rmed 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 sta#), continued communication with incarcerated/detained persons and sta#, and social distancing measures (increasing distance between individuals). Management. This guidance is intended to help facilities clinically manage con!rmed 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, intensi!ed 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 sta# and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
Develop information-sharing systems with partners. 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. Create and test communications plans to disseminate critical information to incarcerated/detained persons,

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Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among sta#. Where possible, put plans in place with other jurisdictions to prevent con!rmed 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.
Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known. Review existing pandemic $u, all-hazards, and disaster plans, and revise for COVID-19. Ensure that physical locations (dedicated housing areas and bathrooms) have been identi!ed to isolate con!rmed 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 identi!ed 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.
Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. Make a list of possible social distancing strategies that could be implemented as needed at di#erent stages of transmission intensity. Designate o"cials who will be authorized to make decisions about escalating or de-escalating response e#orts as the epidemiologic context changes.
Coordinate with local law enforcement and court o"cials. 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.
Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
Post signage throughout the facility communicating the following: For all: symptoms of COVID-19 and hand hygiene instructions For incarcerated/detained persons: report symptoms to sta# For sta#: 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.
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. Review policies to ensure that they actively encourage sta# to stay home when sick. If these policies do not encourage sta# to stay home when sick, discuss with the contract company. Determine which o"cials will have the authority to send symptomatic sta# home.

IdCeanstiefy2s:2ta0#-cwvh-1o1s0e5d3u-tMieAsGw-oRuSldWalloEwCtFheNmo.t2o2w-1o6rk ffriloemd 0h5o/m04e./2W0herPe apgosesIiDbl.e9,5a6llowiPnaggstea#7 toofw2o5rk
from home can be an e#ective social distancing strategy to reduce the risk of COVID-19 transmission. Discuss work from home options with these sta# and determine whether they have the supplies and technological equipment required to do so. Put systems in place to implement work from home programs (e.g., time tracking, etc.).
Plan for sta# absences. Sta# 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.
Allow sta# to work from home when possible, within the scope of their duties. Identify critical job functions and plan for alternative coverage by cross-training sta# where possible. Determine minimum levels of sta# in all categories required for the facility to function safely. If possible, develop a plan to secure additional sta# if absenteeism due to COVID-19 threatens to bring sta"ng to minimum levels. Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare sta# shortages.
Consider o#ering revised duties to sta# 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.
Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for speci!c sta# members to reduce their likelihood of exposure to COVID-19. O#er the seasonal in$uenza vaccine to all incarcerated/detained persons (existing population and new intakes) and sta# throughout the in$uenza season. Symptoms of COVID-19 are similar to those of in$uenza. Preventing in$uenza 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 su"cient 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.
Standard medical supplies for daily clinic needs Tissues Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. Hand drying supplies Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) Cleaning supplies, including EPA-registered disinfectants e#ective against the virus that causes COVID-19 " 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

Casreec2om:2m0-ecnvd-a1t1io0n5s3f-oMr eAxGte-nRdSinWg theEliCfeFoNf aoll.P2P2E-1ca6tegfoilreieds 0in5t/h0e4/e2v0ent oPfasghoerItDag.9e5s,7andPwahgeen 8facoef m25asks
are acceptable alternatives to N95s. Visit CDC’s website for a calculator to help determine rate of PPE usage. 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.
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 alcoholbased hand sanitizer that contains at least 60% alcohol. Consider allowing sta# to carry individual-sized bottles for their personal hand hygiene while on duty. Provide a no-cost supply of soap to incarcerated/detained persons, su"cient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.)
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 sta# and incarcerated/detained persons are !t tested for any respiratory protection they will need within the scope of their responsibilities. Ensure that sta# and incarcerated/detained persons are trained to correctly don, do#, 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 sta# 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, sta#, 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 identi!ed. 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. State, local, territorial, and/or tribal health departments Other correctional facilities
Communicate with the public about any changes to facility operations, including visitation programs. 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.
Strongly consider postponing non-urgent outside medical visits.

CasIfea2tr:2an0s-fcevr-i1s1a0b5so3l-uMteAlyGn-eRceSssWary,EpCerFfoNrmo.ve2r2b-a1l 6screfielenidng0a5n/0d4a/2te0mpePraatguereIDc.h9e5ck8as Pouatglinee9d ionft2h5e
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 sta# 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 identi!ed inside the facility or in the surrounding community, begin implementing intensi!ed 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.
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). Sta# should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcu#s). Use household cleaners and EPA-registered disinfectants e#ective against the virus that causes COVID-19 " as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. Labels contain instructions for safe and e#ective 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 sta# 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 intensi!ed cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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 sta#-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.

CasPer2a:c2ti0c-ecvg-o1o1d0c5o3u-MghAeGti-qRuSeWtte: ECoCvFerNyoou.r2m2o-1u6th afnildedno0s5e/w04ith/2y0ourPelabgoewID(o.r9i5de9allyPwaitghea1ti0ssoufe)2r5ather
than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
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. Avoid touching your eyes, nose, or mouth without cleaning your hands !rst.
Avoid sharing eating utensils, dishes, and cups.
Avoid non-essential physical contact.
Provide incarcerated/detained persons and sta# no-cost access to: 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.
Running water, and hand drying machines or disposable paper towels for hand washing
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 sta# 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. Sta# performing temperature checks should wear recommended PPE (see PPE section below).
If an individual has symptoms of COVID-19 (fever, cough, shortness of breath): Require the individual to wear a face mask. Ensure that sta# 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 sta# for further evaluation. (See Infection Control and Clinical Care sections below.) Facilities without onsite healthcare sta# should contact their state, local, tribal, and/or territorial health department to coordinate e#ective medical isolation and necessary medical care.
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 sta# should contact their state, local, tribal, and/or territorial health department to coordinate e#ective 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 sta#. 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)

CasRee2c:r2e0a-tciovn-1: 1053-MAG-RSW ECF No. 22-16 filed 05/04/20 PageID.960 Page 11 of 25
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 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 di#erent 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 $agged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility. 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:
Symptoms of COVID-19 and its health risks Reminders to report COVID-19 symptoms to sta# at the !rst sign of illness Consider having healthcare sta# perform rounds on a regular basis to answer questions about COVID19.
Prevention Practices for Sta!

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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 sta# daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks.
In very small facilities with only a few sta#, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). Send sta# home who do not clear the screening process, and advise them to follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
Provide sta# with up-to-date information about COVID-19 and about facility policies on a regular basis, including:
Symptoms of COVID-19 and its health risks
Employers’ sick leave policy If sta# 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. If sta# 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. If a sta# member is identi!ed 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 sta# member has a con!rmed COVID-19 infection, the relevant employers should inform other sta# about their possible exposure to COVID-19 in the workplace, but should maintain con!dentiality as required by the Americans with Disabilities Act. Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath). When feasible and consistent with security priorities, encourage sta# to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways. Ask sta# 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.
Sta# performing temperature checks should wear recommended PPE.
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.

CasIens2t:r2u0ct-cvivs-it1o1rs0t5o3p-MosAtpGon-Re SthWeir vEisiCt iFf tNheoy. h2a2v-e1s6ymfpilteodm0s 5o/f0r4es/2pi0ratoPryaigllneeIDss..962 Page 13 of 25
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. 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: Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. 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. If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) Inform potential visitors of changes to, or suspension of, visitation programs. 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). 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. 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 !nancially 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, sta#, 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 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.
If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the

CasSecr2e:e2n0i-ncgvs-e1c1ti0o5n3b-eMloAwG, b-eRfSorWe theEiCndFivNidou.al2l2ea-1ve6s thfielefdac0ili5ty/0. I4f /a2n0indiPviadguealIDdo.9es63not cPleaagreth1e4scoref e2n5ing
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 sta# 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. 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 community-based facility, such as a homeless shelter, contact the facility’s sta# to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options. Coordinate with state, local, tribal, and/or territorial health departments. " When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. When a COVID-19 case is suspected or con!rmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. 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 con!rmed or suspected case, in order to ensure e#ective 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 speci!c cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Conﬁrmed or Suspected COVID-19 Cases

NOTEC: aSsoem2e:r2e0c-ocmv-m11e0n5d3a-tMioAnsGb-RelSowWapEpClyFpNrimo.a2ri2ly-1t6o faficleilditi0es5/w04it/h20onsiPteagheeaIDlt.h9c6a4re cPapaagceit1y5. Foafc2il5ities
without onsite healthcare capacity, or without su"cient space to implement e#ective medical isolation, should coordinate with local public health o"cials 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. Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details.
Serve meals to cases inside the medical isolation space.
Exclude the individual from all group activities.
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 e#ort to place suspected and con!rmed 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.
If cohorting is necessary: Only individuals who are laboratory con!rmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort con!rmed 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: Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully
Separately, in single cells with solid walls but without solid doors
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.
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.
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 air$ow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
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.
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.

ICf tahseen2u:2m0b-ecrv-o1f1c0o5n3!-rMmAeGd -cRasSeWs exEceCeFdsNtoh.e2n2u-1m6befriloefdin0d5i/v0i4d/u2a0l mePdaigcaelIDis.o9l6a5tionPsapgaece1s6avoaf i2la5ble
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.)
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.
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 sta# should be designated to monitor these individuals exclusively where possible. These sta# 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 di#erent parts of the facility to the extent possible.
Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to:
Cover their mouth and nose with a tissue when they cough or sneeze
Dispose of used tissues immediately in the lined trash receptacle
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 !rst symptoms appeared For individuals who had a con!rmed positive COVID-19 test but never showed symptoms: At least 7 days have passed since the date of the individual’s !rst positive COVID-19 test AND
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.
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.

CleaCnasien2g:20S-cpva-1c1e05s3w-MhAGe-rReSWCOEVCIFDN-o1. 922-C16asfeilesdS05p/0e4n/2t0TiPmageeID.966 Page 17 of 25
Thoroughly clean and disinfect all areas where the con!rmed or suspected COVID-19 case spent time. Note – these protocols apply to suspected cases as well as con!rmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the De!nitions section for the distinction between con!rmed and suspected cases.
Close o# 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 di#erent ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
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).
Hard (non-porous) surface cleaning and disinfection If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. For disinfection, most common EPA-registered household disinfectants should be e#ective. 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 e#ective 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 For soft (porous) surfaces such as carpeted $oors 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 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 sta# 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

wCaatesreo2r :i2n0a-dcivs-h1w1a0s5h3er-.MInAdGivi-dRuSalWs hanEdClinFgNuose.d2f2o-o1d6serfvilieced i0te5m/0s4s/h2o0uld cPleaagnetIhDe.i9r 6h7andsPaaftgeer r1e8moovf i2ng5
gloves. Laundry from a COVID-19 cases can be washed with other individuals’ laundry.
Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. 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. 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 con!rmed 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 su"cient space to implement e#ective quarantine, should coordinate with local public health o"cials to ensure that close contacts of COVID-19 cases will be e#ectively quarantined and medically monitored.
Incarcerated/detained persons who are close contacts of a con!rmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, sta# member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines).
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 sta#) is considered a close contact if they: Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR 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 de!nition 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 COVID19 (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. Provide medical evaluation and care inside or near the quarantine space when possible. Serve meals inside the quarantine space. Exclude the quarantined individual from all group activities. Assign the quarantined individual a dedicated bathroom when possible.
Facilities should make every possible e#ort 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.
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 If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire

Casheo2u:s2in0g-cuvn-i1t m10a5y3n-eMedAtGo-bReStrWeateEdCasFaNcooh. o2r2t -a1n6d qufilaerdan0ti5n/e0i4n/p2l0ace.PageID.968 Page 19 of 25
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.
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: Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully
Separately, in single cells with solid walls but without solid doors
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
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
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 air$ow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
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.
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.
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):
If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals).
If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space.
All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason.
Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks. Sta# 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). Sta# supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.

QCuaasrean2t:i2n0e-dcvin-1d1iv0id5u3a-Mls AshGo-uRlSd Wbe mEoCnFitNoroe.d2f2o-r1C6OVfiIlDe-d1905s/y0m4p/2t0omsPtawgiceeIDp.e9r6d9ay,Pinacgleud2in0gof 25
temperature checks. If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.)
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: 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.
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.
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. Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after.
Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air.
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.
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 su"cient space for medical isolation should coordinate with local public health o"cials to ensure that suspected COVID-19 cases will be e#ectively isolated, evaluated, tested (if indicated), and given care.
If possible, designate a room near each housing unit for healthcare sta# 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.

MCeadsieca2l:s2t0a-#cvs-h1o1u0ld53e-vMalAuGat-eRsSyWmptEomCFatiNcoin. d2i2v-i1d6ualsfilteodd0e5te/0r4m/2in0e wPheatgheeIrDC.9O7V0ID-1P9atgeest2in1goifs 25
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 sta# need clari!cation 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.
If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) 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.
Consider having healthcare sta# perform regular rounds to answer questions about COVID-19. 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 identi!ed, especially if there is concern that incarcerated/detained individuals are not notifying sta# 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 Sta!
Provide clear information to sta# about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions.
Consider having healthcare sta# perform regular rounds to answer questions about COVID-19 from sta#. Sta# identi!ed 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.
See above for de!nition of a close contact. Refer to CDC guidelines for further recommendations regarding home quarantine for sta#.
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 sta# and incarcerated/detained persons may have with con!rmed 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 Con!rmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
Implement the above guidance as fully as possible within the correctional/detention context. Some of the

Cassep2ec:2i!0c-lcavn-g1u1a0ge53m-aMyAnGot-aRpSpWly dirEecCtlFy tNo oh.ea2l2th-c1a6re sfielettding0s5w/0it4h/i2n0corrPecatgioenIaDl .f9ac7il1itiesPaangdede2t2enotifo2n5
centers, or to facilities without onsite healthcare capacity, and may need to be adapted to re$ect facility operations and custody needs. Note that these recommendations apply to sta# 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). Sta# 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, sta# should wear recommended PPE (see PPE section). Refer to PPE section to determine recommended PPE for individuals persons in contact with con!rmed 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 !rst signs of COVID-19 symptoms.
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.
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. Sta# evaluating and providing care for con!rmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Con!rmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations. Healthcare sta# 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. 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., in$uenza).
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 Sta! and Incarcerated/Detained Persons
Ensure that all sta# (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, do#, and dispose of PPE relevant to the level of contact they will have with con!rmed and suspected COVID-19 cases.
Ensure that sta# and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and !t-tested in the context of an employer’s respiratory protection program.
For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.

ECnassuere2t:h2a0t-cavll-1st1a0#5a3r-eMtAraGin-RedSWto pEerCfoFrmNoh.a2n2d-1h6ygiefinleeda0ft5e/r04re/2m0ovinPgagPePIED. .972 Page 23 of 25
If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the di#erent types of PPE that are needed for di#ering degrees of contact with COVID-19 cases and contacts, and the reasons for those di#erences (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 sta# 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 de!ned below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response.
N95 respirator See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when sta# anticipate contact with infectious aerosols from a COVID-19 case.
Face mask
Eye protection – goggles or disposable face shield that fully covers the front and sides of the face
A single pair of disposable patient examination gloves Gloves should be changed if they become torn or heavily contaminated.
Disposable medical isolation gown or single-use/disposable coveralls, when feasible If custody sta# 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 sta#.
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:
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 sta# engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk.
Guidance in the event of a shortage of face masks
Guidance in the event of a shortage of eye protection
Guidance in the event of a shortage of gowns/coveralls

Classi!cation of Individual Wearing PPE

N95

Face Eye

Gown/

respirator mask Protection Gloves Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under quarantine as close contacts of a COVID-19 case*)

Apply face masks for source control as feasible based on local supply, especially if housed as a cohort

Case 2:20-cv-11053-MAG-RSW ECF No. 22-16
Incarcerated/detained persons who are con!rmed or suspected COVID-19 cases, or
showing symptoms of COVID-19

filed 05/04/20
X

PageID.973

Page 24 of 25

Incarcerated/detained persons in a work placement handling laundry or used food service items from a COVID-19 case or case contact

X

X

Incarcerated/detained persons in a work

Additional PPE may be needed

X

X

placement cleaning areas where a COVID-19 case based on the product label. See

has spent time

CDC guidelines for more details.

Sta#

Sta# 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.

Sta# performing temperature checks on any group of people (sta#, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic quarantined persons

X

X

X

X

Sta# having direct contact with (including

X**

transport) or o#ering medical care to con!rmed

or suspected COVID-19 cases (see CDC infection

control guidelines)

X

X

X

Sta# present during a procedure on a con!rmed X or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control guidelines)

X

X

X

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

X

X

Sta# cleaning an area where a COVID-19 case has Additional PPE may be needed

X

X

spent time

based on the product label. See

CDC guidelines for more details.

Classi!cation of Individual Wearing PPE

* 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 pCrioarsiteize2d:2fo0r -pcrovc-e1d1u0re5s3th-Mat AarGe l-ikReSly Wto geEneCraFteNreosp.ir2a2to-r1y6aerofisleolds, w0h5i/c0h4w/o2u0ld poPseagtheeIhDig.h9e7s4t expPosaugreeri2sk5toosfta2#5.
Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Sta!, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, sta#, 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:
Today or in the past 24 hours, have you had any of the following symptoms? Fever, felt feverish, or had chills? Cough? Di"culty breathing?
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: Perform hand hygiene 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 Check individual’s temperature 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. Remove and discard PPE Perform hand hygiene
Page last reviewed: April 18, 2020 Content source: National Center for Immunization and Respiratory Diseases (NCIRD), Division of Viral Diseases

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.975 Page 1 of 32
Anyone can publish on Medium per our Policies, but we don’t fact-check every story. For more info about the coronavirus, see cdc.gov.
MDOC Response and Information on coronavirus (COVID-19)
Updated April 26, 2020
MI Dept. of Corrections Follow Mar 12 · 18 min read
Those with questions about parole, healthcare or programming for prisoners, correctional facility operations or other corrections-

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.976 Page 2 of 32
related issues can call the numbers listed below for more information. Please call the number for the section that most appropriately applies to your issue.
Please do not leave a message on more than one phone line. This will slow down our ability to respond in a timely manner to your concern. Due to a high call volume, numbers may go to voicemail. Please leave a message and a representative from the speci>c program area will return your call as soon as possible.
If you have questions about the early release of a prisoner, please know that the MDOC has no legal authority to release prisoners prior to their earliest release date because of Truth in Sentencing laws, which require those sentenced to prison to serve their entire minimum sentence before they can be paroled.
If you are trying to reach an incarcerated loved one, please contact the correctional facility where the prisoner is housed. You can >nd a list of all MDOC correctional facilities and their contact information here. Prisoners continue to have access to phones and electronic messaging in order to contact family and friends.
Parole and Probation (517) 335–1979
Release info Parole status General >eld questions

CaHsee2a:2l0t-hcvc-a11r0e53(-5M1A7G)-R3S3W5–E2C2F6N3o. 22-17 filed 05/04/20 PageID.977 Page 3 of 32
Status of a prisoner COVID-19 related protocols Healthcare-related questions Prison (517) 335–1418
Questions related to PPE supplies Questions related to cleaning supplies Questions related to physical plant General prison-related questions Programming and Education (517) 881–2534
Questions related to programming Questions related to education General (517) 388–6892 or (517) 388–6894
Questions that do not fall into one of the above categories
...

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.978 Page 4 of 32
Frequently Asked Questions about the MDOC’s response to coronavirus (COVID-19)
The Michigan Department of Corrections is committed to ensuring the safety and well-being of staN, the public and those under our supervision.
You can click here to >nd information that will help address many commonly-asked questions regarding the MDOC’s response to coronavirus (COVID-19) and preventative steps we’re taking to help protect the health of employees, prisoners and those in the community.
...

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.979 Page 5 of 32
Mourning the loss of Michigan Department of Corrections staG
Corrections staN are courageous. They never hesitate to help others in need, regardless of the situation, and show an unending commitment to protecting the citizens of our state safe. We mourn the loss of two corrections professionals, a corrections transportation oTcer and a word processing assistant at the Lahser Probation OTce in Detroit, who passed away after contracting coronavirus (COVID-19). Their dedication to the safety of all Michigan residents will not be forgotten. Our thoughts are with their family, friends and colleagues during this diTcult time.

. . . Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.980 Page 6 of 32
Remembering Prisoners who have Passed
The MDOC is sad to report there have been a total of 33 deaths of prisoners who had tested positive for COVID-19.
The most recent deaths, reported on April 26, were of a prisoner at Duane Waters Health Center and a prisoner at Lakeland Correctional Facility. On April 25, a prisoner at Lakeland Correctional Facility passed away. On April 24, the deaths of a prisoner at Lakeland Correctional Facility and a prisoner at Parnall Correctional Facility were reported. On April 23, the department reported the deaths of a prisoner at Lakeland Correctional Facility, Parnall Correctional Facility and Woodland Center Correctional Facility. On April 21, there were of three prisoners at Macomb Correctional Facility who passed away. On April 18, 19 and 20 the deaths of prisoners at Lakeland Correctional Facility were also reported. On April 17, the department reported the deaths of four prisoners who had been housed at Detroit Reentry Center, Parnall Correctional Facility, Macomb Correctional Facility and Lakeland Correctional Facility. The death of a prisoner who had been housed at Charles Egeler Reception and Guidance Center and a prisoner at Lakeland Correctional Facility were reported on April 15. A prisoner who had been housed at Women’s Huron Valley Correctional Facility and had tested positive for the virus died at a local hospital April

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.981 Page 7 of 32
14 due to cardiac arrest.
A prisoner who had been housed at Parnall Correctional Facility and tested positive died at a local hospital April 13. On April 11 the department reported prisoners at Charles Egeler Reception and Guidance Center C- Unit and the Duane Waters Health Center had passed away.
On April 10, the department reported the passing of prisoners at Lakeland Correctional Facility and Women’s Huron Valley Correctional Facility. The prisoner who died at WHV had not been tested at the facility and was not a close contact or a patient under investigation. After her death, the hospital tested her for COVID19 and the positive test result came back April 10.
The passing of three prisoners including two prisoners from Parnall Correctional Facility and one from Detroit Reentry Center, was announced on April 9. A prisoner who tested positive at Lakeland Correctional Facility and was taken to the hospital for further treatment also died on April 7.
The MDOC on April 1 had its >rst death of a prisoner who tested positive for COVID-19. He was housed at Parnall Correctional Facility. This prisoner had not previously been tested and had never told healthcare that he was feeling sick. He was found unresponsive in his cell and was taken to the hospital, where he died. The hospital then tested him and the results came back

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.982 Page 8 of 32
positive for the virus.
...
Total ConLrmed Prisoner and StaG Cases to Date by Location
Updated April 26, 2020– p.m.
The department has been leading the nation when it comes to consistent testing of the prisoner population when they have symptoms. We have now started a system of expanded testing beginning at Lakeland Correctional Facility. The plan is to test all prisoners at Lakeland by the end of the week and begin testing prisoners at G. Robert Cotton Correctional Facility the week of April 26.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.983 Page 9 of 32

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.984 Page 10 of 32
*According to the Michigan Department of Health and Human Services, an individual is considered “recovered” once they have gone 30 days from the onset of symptoms.
*A step-down unit has been opened at Gus Harrison Correctional Facility for prisoners who previously tested positive for COVID-19, and have since been medically cleared by the MDOC’s chief medical oTcer, are symptom free and are no longer considered contagious. Access to the unit is limited and prisoners in the unit do not have contact with the rest of the population at Gus Harrison Correctional Facility. Prisoners at Women’s Huron Valley Correctional Facility are housed in a step-down unit at the facility and are not transferred to Gus Harrison Correctional.
...

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.985 Page 11 of 32
...
What the MDOC is doing in response
The Michigan Department of Corrections is taking a series of measures to protect its staN, the prison population and the community as positive cases of coronavirus disease 2019 (COVID19) have been identi>ed in the state.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.986 Page 12 of 32
There are now 37,778 cases of coronavirus disease 2019 (COVID19) in Michigan as of April 26.
Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
Personal Protective Equipment, cleaning and mitigation measures
Michigan State Industries has produced masks for all prisoners and correctional facility staN to wear. Each employee and prisoner received three masks each and the masks can be laundered and worn again. Facility staN are also permitted to bring their own PPE, such as masks, gloves and gowns. StaN are expected to wear their mask during their entire shift and prisoners are expected to also wear their masks at all times, except while eating, sleeping or showering. Michigan State Industries is also manufacturing gowns, protective eyewear and protective suits.
All MDOC staN transporting a prisoner on or oN grounds are required to be dressed in full personal protective equipment (PPE), which is available for those employees.
All facilities have received approval from the regional sanitation oTcer to use bleach during facility cleaning. Facilities have enhanced cleaning eNorts and cleaning products are available to clean commonly-used areas and

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.987 Page 13 of 32
phones before and after use. Cleaning eNorts have been doubled at facilities with vulnerable prisoner populations. We have increased our production of soap and ensured that all prisoner areas and bathrooms have plentiful access to soap.
Movements have been modi>ed to help facilitate social distancing and the number of prisoners attending classes and meals has been reduced so prisoners can be seated farther apart. Prisoners and staN are frequently reminded of the need for social distancing and prisoners are instructed not to gather in groups on the yard. Activities such as basketball and weight pit have been suspended to encourage social distancing, as well. There are also markers and cones set up for med lines and in the chow hall as a visual reference for prisoners on how far apart they should stand.
The department has been leading the nation when it comes to consistent testing of the prisoner population when they have symptoms. We have now started a system of expanded testing beginning at Lakeland Correctional Facility. All prisoners at Lakeland are expected to be tested by the end of the week of April 19 and testing is expected to begin at G. Robert Cotton Correctional Facility the week of April 26.
Visits and Transfers
Visitation at facilities statewide was suspended as of March 13.
The department worked with communication vendors GTL and JPay to provide enhanced services for prisoners to

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.988 Page 14 of 32
communicate with family and friends during the period without visits. GTL has oNered two free, >ve-minute phone calls each week and JPay is oNering two free stamps per week. Both of these measures began March 17.
In connection with visitation suspension, face-to-face college classes at all facilities have also been suspended eNective immediately. The MDOC will work with higher education institutions willing and able to deliver classes as correspondence courses. Core programming and school classes taught by MDOC staN will continue.
Outside contractors for substance abuse programming will be allowed inside and will be screened upon entry per the screening protocol. Attorney visits will continue to be authorized.
During this time, transfers of prisoners or staN between facilities will not be authorized without the approval of the Assistant Deputy Director or higher.
Transfers of oNenders with new sentences from county jails in the community have been suspended. The department also issued protocol to all county sheriN oTces to oNer guidance on screening and other preventative measures.
Quarantine and Care of Sick Prisoners
Facility healthcare staN will meet with prisoners who have presented with symptoms of coronavirus. The MDOC does not make the diagnosis of the coronavirus. The department is

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.989 Page 15 of 32
following the Michigan Department of Health and Human Services protocol. If a prisoner has symptoms and meets the criteria for testing, the MDOC can test the prisoner.
Prisoners who test positive for the virus are isolated from the general population and any prisoners or staN they have had close contact with are identi>ed and noti>ed of the need to quarantine.
Prisoners who test positive will be transferred to one of the department’s designated quarantine units at either G. Robert Cotton Correctional Facility, Carson City Correctional Facility or the former Maxey Annex, which is located near Woodland Center Correctional Facility. The Maxey Annex previously housed juvenile oNenders under the jurisdiction of MDHHS, prior to its closure, and the MDOC had been working to convert it to a training site. These units are in buildings that are completely separated from each of the correctional facilities. They have limited movement and access to these units is extremely limited. Only a small number of designated staN work in the unit in 12-hour shifts to limit the number of people entering. Those staN members report directly to the unit and do not enter the main correctional facility. Prisoners transferred to the unit also stay on the unit and do not enter any other areas of the prison.
Prisoners who have been identi>ed as having close contact with another prisoner who tests positive, but have not tested positive for the virus themselves, will be isolated from the

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.990 Page 16 of 32
general population at their facility for the 14-day quarantine period.
Co-pays for prisoners who need to be tested for COVID-19 have been waived.
Prisoners have been urged to notify healthcare if they are sick or experiencing symptoms of illness so they can be evaluated. Prisoners who require outside medical attention will be transported to an area hospital for treatment.
Recovery
A step-down unit has been established at Gus Harrison Correctional Facility for prisoners who previously tested positive for COVID-19, but no longer have symptoms, are no longer considered contagious and have been medically cleared by our chief medical oTcer. The unit sits outside the main perimeter of the facility, so prisoners in the unit do not have contact with the rest of the population at the facility. The same custody staN work consistently in that unit only and staN working in the unit are expected to wear PPE. Prisoners at Women’s Huron Valley Correctional Facility are housed in a step-down unit at the facility and are not transferred to Gus Harrison Correctional Facility.
A unit has also been established at Central Michigan Correctional Facility for recovered prisoners who previously tested positive for the virus. These prisoners are considered oTcially recovered by the Michigan Department of Health and

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.991 Page 17 of 32
Human Services, have no symptoms, are not considered contagious, have been medically cleared by the MDOC’s chief medical oTcer, and must test negative before they are moved to the unit at Central. The department is NOT sending COVID19 positive prisoners to Central.
Parole Information
The MDOC Parole Board continues to hold parole hearings and is reviewing all eligible cases to determine prisoners who can be safely released at this time. In addition, the department is exploring the possibility of conducting future public hearings for lifer or commutation cases remotely.
The department continues to review individual cases and the Parole Release Unit is working to process parole releases for prisoners with positive parole decisions as quickly and safely as possible.
We are no longer allowing parole representatives to enter correctional facilities for parole hearings as an additional step to limit the potential introduction of illness. However, individuals designated by a prisoner as a parole representatives should contact the facility where the prisoner is being housed to >nd out about options to call in for the hearing.
The Parole Board is aware that prisoners do not have access to certain programming and the Board is taking that into consideration. If there are changes in the prisoner’s case, the

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.992 Page 18 of 32
prisoner will be noti>ed directly.
We continue to monitor the prisoner population, our parole and probation population and the parole process as this pandemic continues, in order to consider all options to ensure the safety of oNenders under our supervision.
All of our paroles are done with public safety in mind. The Parole Board looks at each individual on a case-by-case basis and will only grant a parole if they believe that person will not be a harm to society.
Every prisoner is screened for symptoms prior to parole and given a temperature check by MDOC healthcare staN. If it’s determined they should be tested, the person does not parole until the results come back. If it’s negative, they can parole. If it’s positive, they stay until they are medically cleared to parole. Any prisoner coming out of a facility on outbreak status because of a high number of cases will automatically be considered a “close contact” and the local Health department will be made aware of their anticipated release into the community along with information on how to contact them.
StaG Measures and Information
The need for social distancing to help prevent the spread of this virus has included asking organizations to have as many people telecommute as possible, and the MDOC is doing that to the extent we can. Employees should have been authorized to telecommute by their supervisor and supervisors who have

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.993 Page 19 of 32
questions should contact their leadership. No employees who have been ordered to telecommute should return to their work site unless authorized to do so by their deputy director or Director Washington. Employees who are telecommuting should complete required online training during this time.
ALL correctional facility employees continue to report to work. Our facilities need to continue operating as close to normal as possible for the safety of those both outside and inside the institution. We need to continue to keep prisoners engaged and occupied in a productive manner to ensure the stability, safety and security of our facilities. Thank you to our correctional facility staN for all they do to keep the citizens of our state safe.
Anyone entering facilities will be subject to enhanced screening prior to entering. This includes answering screening questions and having their temperatures taken. Anyone suspected of having symptoms will not be allowed in the facility.
The Michigan Correctional OTcers’ Training Council has supported the Department’s request to extend the period for obtaining necessary college credits to 24 months from date of hire. OTcers who are de>cient in their college credits will now have 24 months from their date of hire to complete the required college credits, rather than 18. This change allows oTcers extra time during this period of uncertainty.
All employees who are working on location at one of our

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.994 Page 20 of 32
prisons will receive $750 in COVID-19 premium pay, per pay period during the course of this event.
As the state works to limit the spread of the virus, we caution employees not to let fear lead to discriminatory actions against any individuals based on their disability, race or ethnicity. If you have experienced or witnessed discriminatory harassment or discrimination, we want you to know it will not be tolerated and we strongly encourage you to report it by calling the MDOC Equal Employment Opportunity OTce at 1–800–326– 4537, 517–335–3654, or by contacting MDOC EEO OTcer Toya Williams at 517–335–4125 or williamst8@michigan.gov.
Operational Changes
Corrections Transportation OTcers or other department staN will be reassigned to facilities to augment custody staN as determined by Assistant Deputy Directors.
No out-of-state business travel will be allowed through May 15. All in-state business travel should be for essential matters only.
Most construction projects have been placed on hold for 60 days. Each project will be evaluated on a case-by-case basis.
StaN are encouraged to use phone calls, email and teleconferencing in place of in-person meetings when possible. Any necessary in-person meetings should be limited as much as possible and the size of the meeting should be reduced to allow for attendees to stay the recommended 6-foot distance

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.995 Page 21 of 32
apart.
...
UPDATED: Suspended or Postponed Events
The MDOC, like many other large organizations, is taking steps to protect staN, family members, prisoners and visitors by suspending or postponing large-scale events. Postponed events have included the March 16 Lansing recruitment open house, the March 20 Corrections OTcer Academy graduation and the March

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.996 Page 22 of 32
27 Wayne County Returning Citizen Job Fair.
The Corrections OTcer Academies scheduled to begin in April in the Upper Peninsula and in the Lower Peninsula have been postponed. The May 5 Employee Appreciation Banquet and Warden’s Meeting has also been cancelled.
NEW UPDATE: The Employee Recreation Day event scheduled for June at the Royal Scot in Lansing and the Employee Recreation Day event scheduled for September in Brimley have been cancelled as we continue to focus on precautions to protect the health and well-being of staN.
Most training, other than >rearms requali>cation, has been postponed. The department has also postponed Parole Board lifer and commutation public hearings.
...
UPDATE: Visitation Restrictions
In an eNort to protect the health of staN, prisoners and the public, the MDOC suspended visitation at ALL correctional facilities statewide.
This also includes outside volunteers and other tours and groups who routinely come into the prisons.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.997 Page 23 of 32
“This was not a decision we arrived at lightly, as we understand and recognize the importance of family contact with the prison population,” said MDOC Director Heidi Washington. “Our primary concern has to be public safety and reducing the number of people who enter our facilities is a key factor in limiting the potential spread of this illness into our prisoner population.”
The department will monitor the situation to determine when visits will be restored.
During the period without visits, the department worked with GTL and JPay to provide enhanced services for prisoners to communicate with family and friends. GTL has oNered two free, >ve-minute phone calls each week and JPay is oNering two free stamps per week. Both these measures began Tuesday, March 17.
UPDATE: As of April 15, 2020, in addition to the weekly 2-free JPay Stamps that are credited to your account, JPay will be oNering MORE JPay Stamps in the JPay Stamp packages at no

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.998 Page 24 of 32
additional cost. This Stamp Package promotion will be available through May 6, 2020.
Current ONering: 20 JPay Stamp Bundle: $5.00; 50 JPay Stamp Bundle: $10.00; 100 JPay Stamp Bundle: $20.00
Bonus ONering: 22 Stamp Bundle: $5.00 (TWO additional JPay Stamps); 55 Stamp Bundle: $10.00 (FIVE additional JPay Stamps); 110 Stamp Bundle: $20.00 (TEN additional JPay Stamps)
The department will continue to work with the companies on anything else they may be willing to provide.
In addition, all staN working at facilities are being asked a series of screening questions and have their temperature checked before being allowed entrance into a facility. For those with a temperature above 100.4, they will not be allowed to work.
Information on prevention has been provided to the prison population and MDOC staN. Facilities have also instituted additional and more frequent cleaning.
StaN and visitors can also access information about their facility by signing up for Nixle alerts. To sign up for Nixle alerts, go to www.michigan.gov/corrections and select the page for the correctional facility in your area to register via the Nixle Widget,

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.999 Page 25 of 32
or text the zip code of the facility you would like to receive updates from to 888777.
A press release on visiting restrictions was sent out statewide on March 13. You can >nd a full version of that release here.
...
What it is
Coronaviruses are a large family of viruses. Some cause illness in people, and others, such as canine and feline coronaviruses, only infect animals. Rarely, animal coronaviruses that infect animals have emerged to infect people and can spread between people. This is suspected to have occurred for the virus that causes COVID-19. Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS) are two other examples of coronaviruses that originated from animals and then spread to people.
SARS-CoV-2 is a new coronavirus that has not been previously identi>ed. This virus causes the disease of COVID-19. The virus causing COVID-19 is not the same as the coronavirus that

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.1000 Page 26 of
32 commonly circulate among humans and cause mild illness, like the common cold.
This virus was >rst detected in Wuhan City, Hubei Province, China. The >rst infections were linked to a live animal market, but the virus is now spreading from person-to-person. It’s important to note that person-to-person spread can happen on a continuum. Some viruses are highly contagious (like measles), while other viruses are less so.
Transmission: The virus that causes COVID-19 seems to be spreading easily and sustainably in the community (“community spread”) in some aNected geographic areas. Community spread means people have been infected with the virus in an area, including some who are not sure how or where they became infected.
The virus is thought to spread mainly from person-to-person via respiratory droplets, resembling the spread of innuenza.
It would be spread by:
The air by coughing and sneezing.
Close personal contact, such as touching or shaking hands.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.1001 Page 27 of
Touching an object or surface wit3h2 the virus on it, then touching your mouth, nose, or eyes.
It is possible that a person can contract 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. According to the World Health Organization (WHO), coronaviruses may survive on surfaces for just a few hours or several days. Many factors will innuence this, including surface material and weather.
Symptoms: People who have been diagnosed with 2019 Novel Coronavirus have reported symptoms that may appear in as few as two days or as long as 14 days after exposure to the virus. Most cases are occurring approximately >ve days after exposure. Symptoms consist of fever, cough, and diTculty breathing (shortness of breath). Pneumonia appears to be the most frequent serious manifestation of infection. Older people and people of all ages with severe underlying health conditions such as heart disease, lung disease and diabetes, seem to be at higher risk of developing serious COVID-19 illness.
Prevention: Steps you can take to prevent spread of nu and the common cold will also help prevent 2019 Novel Coronavirus.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.1002 Page 28 of
32 Wash your hands often with soap and water. If not available, use hand sanitizer.

unwashed hands.

Avoid touching your eyes, nose or mouth with

Cover your mouth and nose with a tissue when coughing

Stay home if you are sick.

Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, keyboards, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.

No additional disinfection beyond routine cleaning is recommended at this time.

Additional information and resources can be found at the CDC, Michigan Department of Health and Human Services (MDHHS), and World Health Organization (WHO):

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.1003 Page 29 of 32
Coronavirus Disease 2019 (COVID-19)
Coronavirus disease 2019 (COVID-19) is a virus (more speciNcally, a coronavirus) identiNed as the cause of an… www.cdc.gov
Coronavirus - Coronavirus
Description: Coronavirus - Coronavirus www.michigan.gov
Home
WHO's primary role is to direct international health within the United Nations' system and to lead partners in global… www.who.int
...
Informational Posters
These posters from the CDC regarding coronavirus (COVID-19) have been distributed to worksites across the department.

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.1004 Page 30 of 32

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.1005 Page 31 of 32
Health Public Health Michigan Corrections

Case 2:20-cv-11053-MAG-RSW ECF No. 22-17 filed 05/04/20 PageID.1006 Page 32 of 32

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Case 2:20-cv-11053-MAG-RSW ECF No. 22-18 filed 05/04/20 PageID.1007 Page 1 of 2
DECLARATION OF VINCENT GLASS, 182453
I, VINCENT GLASS, under the penalty of perjury, states the following: 1. Presently I am confined at Parnall Correctional Facility, located in Jackson, Michigan. 2. I am now confined in 10-block in the type of cell that you see in old prison movies, with bars on the front. This cellblock holds approximately 370 inmates. Based on its design, there is no method for preventing the spread of the COVID19 throughout that block. 3. I was told by officers that the Warden- Defendant Melinda Braman approved the placement of positive tested inmates within 10-block and took no additional steps to separate and protect plaintiff and the class members from the COVID-19 virus. A number of officers told me that numerous positive tested COVID-19 inmate had been placed in IO-block. 4. I feared for my life each day I was confined in 10-block. This fear came from the design of the building that did not allow social distancing, the placement of positive tested inmates in 10-block and the failure to require social distancing when using the showers, bathrooms, telephones, and kiosks. The same when going to chow, at the chow hall, and in the yard, there was no social distancing.
1
Exhibit 17 - Decl. Vincent Glass

Case 2:20-cv-11053-MAG-RSW ECF No. 22-18 filed 05/04/20 PageID.1008 Page 2 of 2
5. I am familiar with the description of 10-block provided by Plaintiff Mobreg, supra, and agree with the descriptions of the layout of 10-block and how its operate daily. 6. Glass was confined on the upper level of 10-Block. In order for him to leave his cell and go to the base to go to chow, to take a shower, or to use the telephone, Glass had to go within two feet of 10 to 30 prisoners, to get to the stairs that lead to the base. Once on base, if Glass went to use the telephone, Jpay, shower or chow, it was almost impossible not to be within 6-feet of numerous inmates. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: ---------
2
Exhibit 17 - Decl. Vincent Glass

Case 2:20-cv-11053-MAG-RSW ECF No. 22-19 filed 05/04/20 PageID.1009 Page 1 of 1
EXHIBIT 18 - WITHDRAWN
EXHIBIT 18 - WITHDRAWN

Case 2:20-cv-11053-MAG-RSW ECF No. 22-20 filed 05/04/20 PageID.1010 Page 1 of 3
DECLARATION OF ELLIOTT ABRAMS, 974262 I, Elliott Abrams, under the penalty of perjury, states the following: 1. Presently I am confined at Macomb Correctional Facility, located in Lenox, Michigan. I am required to share a cell with another inmate. Since his incarceration, MDOC has recognized that he has a compromised immune system. 1 2. My parole date is next year. I am scared that I will not live that long. Based on the manner that I am forced to share a cell with another inmate and that there seems to be little if no effort to enforce social distancing and sanitizing of common areas, I am surprised when I wake up each morning without having contacted COVID-19. I have seen inmates removed from this prison in body bags and I think how I would be the next one. I fear that I might die in prison from COVID-19. 3. Defendants have designated numerous cells at MRF to house two prisoners. Each cell includes 2 lockers, 2 desks, 2 chairs, a bunk bed, and the personal property (2 footlockers, 2 TVs, books, paperwork, clothes) of each inmate. At
1 On April 13, 2020, I filed two grievances as to being subjected to COVID-19. One grievance was addressed to the Warden-Defendant and the other directed at the Director­ Defendant A response was provided to both grievances. The grievance against the warden was rejected claiming he was following policy. The grievance against the Director was rejected as being duplicative. I then sought 2d step grievance forms but have not received such forms yet.
1
Exhibit 19 - Decl. Eilliott Abrams

Case 2:20-cv-11053-MAG-RSW ECF No. 22-20 filed 05/04/20 PageID.1011 Page 2 of 3
Macomb Correctional Facility some of the cells do not have their own bathrooms. Instead at the beginning of each of the 4 levels or "wings", there is a community bathroom with 3 stalls. 2 urinals, 4 sinks with mirrors, and 2 wall mounted electric hand dryers. Two individual showers stalls are located at the beginning of each of the community bathrooms. Located by the stairs to each of the four wings are 2 telephones, a drinking fountain, a garbage can and a microwave. At least 16 inmates are now housed in the dayroom and these inmates are required to use the same bathroom, kiosk, microwave, telephone, and chow area in the housing unit as the other inmates. 4. I have observed that cleaning of commonly used areas is not consistently wiped down or cleaned. 5. The meals are now fed in the housing unit and inmates are not required to keep spacing of 6-feet while waiting to be serve their food. One person is allowed to use the microwave at a time. There are two telephone that are approximately 6 feet apart and there is no restriction limiting the telephone used to the roommates at the same time. Prison staff did implement a rule that only the two inmates in a cell could use the telephone at the same time. The enforcement of this policy lasted about a week. From what I have observed, it seems that the telephones are not sanitized after each use. There is a kiosk room in the unit that contains the Jpay system (similar to a computer which
2
Exhibit 19 - Decl. Eilliott Abrams

Case 2:20-cv-11053-MAG-RSW ECF No. 22-20 filed 05/04/20 PageID.1012 Page 3 of 3
allows inmates to send emails to family members and others) and a store kiosk, where twice a month inmates can order items from the prison store to be delivered to the housing unit. Staff, generally, will allow only the two inmates sharing the cell in the kiosk room at the same time. Plaintiff Abrams is not sure if the kiosk room is sanitized after each use. Plaintiff Abrams has observed the inmate pmiers undertake only one cleaning per each 8-hour shift. Each staff is required to do three shakedown each shift worked. Abrams has observed officer do shakedowns of more than one inmate at a time without changing gloves. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: ------- Signature:[�� �
lJ! p-uu�
3
Exhibit 19 - Decl. Eilliott Abrams

Case 2:20-cv-11053-MAG-RSW ECF No. 22-21 filed 05/04/20 PageID.1013 Page 1 of 4
DECLARATION OF ROBERT REEVES I, Robert Reeves, under penalty of perjury, state the following: 1. I am presently confined at the G. Robert Cotton Correctional facility (JCF), Prior to my confinement at Cotton, I was confined at Parnall Correctional Facility (SMT) in Jackson, Michigan. At SMT, I contracted COVID-19 when I was house in 58-B 10 block at Pamall. I was only at Pamall from February 25, 2020, to March 28, 2020. At Parnall, I was confined in a one-man cell that had open bars. There are more than 300 prisoners confined in the open-bar setting. At Pamall, there are thirteen (13) open showers in IO-block for the use of 300 prisoners. At Parnall, I was allowed to go to chow hall. Prisoners stood in line with other prisoners, but once we got to the chow hall, we sat 2 at a table, about 2 feet from each other. However, prisoners walked to chow together without being told to distance from each other. At Parnall, I was only given a mask after I tested positive for COVID-19. However, I was forced to be around positive prisoners in the same block before I was tested. 2. When I was told that I tested positive for CORVIC-19, I was sure that within days I would be extremely sick and then die. The only care I received was that I was transferred from Parnall to Cotton on March 28, 2020 because I tested positive for COVID-19. When I arrived at Cotton, I was placed in a one-man cell, with closed quarters. The next day another positive inmate was placed in the cell with me.
Exhibit 20 - Decl. of Robert Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 22-21 filed 05/04/20 PageID.1014 Page 2 of 4
3. I was given a mask on March 28th, and sixteen (16) days later, I still have the same mask. I was told to wash the mask that I have. When I tried to exchange my mask for a new one, I was told that they don't have extras. 4. On April 14th, staff were not wearing gloves or masks when handing out disbursements for the phone or at the desk. I could not help but consider that these guards don't care if I live or die by their attitudes and I realized that am helpless and can die. 5. At Cotton, there are two prisoners to a cell in a unit, called K-unit, that seems to house all positive tested inmates. These inmates share the same showers, bathroom, phones, and JPay Kiosks. Three (3) to six (6) inmates are allowed out at a time. There are 88 bunks, with 2 inmates to a cell in K-unit. Each cell is 11' x 8'. There are three (3) showers in K-unit, and one inmate is allowed in each shower at a time. I observed he bathroom in K-unit being cleaned only one time per day by an inmate who is positive for COVID-19. 6. There is a nurse in K-unit at all times and the nurse is wearing a mask. The nurse calls each prisoner out of their cell every day to take their blood pressure and temperature. Prisoners sit in the same chair, and the same medical equipment and supplies are being used without being cleaned between inmates. The nurses do not change their gloves from inmate to inmate.
Exhibit 20 - Decl. of Robert Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 22-21 filed 05/04/20 PageID.1015 Page 3 of 4
7. I have not been given any supplies to clean my cell. There is a mop and broom in K unit for all prisoners to use; this is the same mop that is used to clean the bathroom. 8. Inmates are fed in their cells. I have not seen a doctor, nor did I receive medical instructions on what to do if my symptoms got worse, despite complaining of chest pain, coughing up blood, and having problems breathing. I was just told it was normal and to go through it. Being told by medical staff this is normal and just suck it up, created extreme levels of fear and anxiety. You cannot help but think that the medical staff do not care if you live or die. 9. Because I tested positive for COVID-19, I am not allowed to send kites, mail, or grievances. 10. After 21 days in quarantine at JCF- Cotton, I was transferred to Gus Harrison in Adrian, Michigan. At Gus Harrison, I am allowed to send out mail and write grievances, but because I keep being transferred, it is hard to get the grievance responses back from the Grievance Coordinator, or a receipt that the grievance was received. 11. Due to prison staff not requiring social distancing, I cannot help but believe MDOC does not care if inmates, such as me, die. Prisons can be violent places and inmates need to fear for their safety but to add to that fear that you right die from COVID-19 is totally unreasonable
Exhibit 20 - Decl. of Robert Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 22-21 filed 05/04/20 PageID.1016 Page 4 of 4

I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me.
I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.

Date:

Signature:

Exhibit 20 - Decl. of Robert Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 22-22 filed 05/04/20 PageID.1017 Page 1 of 2
Michigan Department of Corrections taking steps to curb COVID-19

By Cody Butler I Posted: Wed 5:29 PM, Apr 08, 2020 I Updated: Wed 6:52 PM, Apr 08, 2020

BLACKMAN TOWNSHIP, Ml. (WILX) - There were at least 380 cases of COVID-19 between inmates and corrections officers in Michigan's prison system Wednesday.

A second inmate died from the virus Tuesday. Two employees have also died.

Most of Michigan's prisons don't have any cases of COVID-19 among the inmate population.

However, Parnall Correctional Facility in Jackson County has 119 prisoners who tested positive for coronavirus, three additional tests were pending.

"It's been very, very stressful,'' said Cindy Merling.
Merling's son is serving time at Parnall, which has the most cases of coronavirus in the Michigan prison system.

Michigan Department of Corrections is trying to contain COVID-19 outbreak.

She's worried her son could be the next case.

"This is working overtime mentally, not only on the inmates, but I'm sure for every family that has some loved one in there,' said Merling.

The MDOC said there are 10 facilities with at least one case of coronavirus among inmates.

Department spokesman Chris Gautz said the prisons are doing what they can to keep prisoners healthy.

"We've been practicing social distancing to the extent we can in a prison. Really anything outside of your immediate living area. If you're in a cell, obviously your bunkmate is going to be within 6 feet of you," said Gautz.

He added inmates who test positive for COVID-19 at Parnall are taken across the street to the Cotton Correctional Facility where they are quarantined.

Exhibit 21 - MDOC Taking steps to courb COVID-19

Case 2:20-cv-11053-MAG-RSW ECF No. 22-22 filed 05/04/20 PageID.1018
But in order to do that, inmates need to help.
"We have to know if they're sick so we can treat them because they're putting themselves at risk, they're putting their fellow prisoners at risk, and they are absolutely putting our staff at risk," Gautz said.
In March, News 10 reported county jails are releasing inmates early to help control the spread of coronavirus on the inside.
Gautz said of the state's 38,000 prisoners, only about 5,000 could be eligible for parole now because of state laws.
"As you widdle that down you do get some potential cases for parole but then again these are small numbers,' said Gautz.
"I understand that under normal circumstances, but this is a pandemic and they are saying it is still going to spike," Merling said.
Her son is expected to be released in June.
Gautz said Michigan State Industries is making PPE for the prison system. Every staffer and prisoner will be issued masks to help stop the spread of COVID-19.
Copyright 2020 WILX. All rights reserved.

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Exhibit 21 - MDOC Taking steps to courb COVID-19

Case 2:20-cv-11053-MAG-RSW ECF No. 22-23 filed 05/04/20 PageID.1019 Page 1 of 2
DECLARATION OF CRAIG SEEGMILLER, 373625
I, Craig Seegmiller, under the penalty of perjury, state the following: 1. I am presently confined within the Michigan Department of Corrections at Cotton Correctional Facility, located in Jackson, Michigan. 2. Seegmiller is confined in a Pole Barn at JCF. He is confined in a cube with at least 8 other inmates, in an area that is approximately 10'x12'. There is a total of 20 cubes, for a total population of 160 inmates on each side of the Pole Barn. Seegmiller is currently housed in T-A, one of two sides of the pole-barn. T-A and T-B each house one hundred and sixty (160) inmates. There are two bathrooms in each side of the pole barn. One for the front hall and one for the back hall. There are three (3) showers, three (3) urinals, and four (4) toilets for eighty (80) inmates in each hall. The ceiling in the cubicles is approximate twelve (12) feet high. There is an eight (8) foot divider wall resembling an open case between the back and front of the top of the divider. The ceiling in the cubicles is approximate twelve (12) feet high. There are two (2) JPAY computers, one (1) store kiosk, and five (5) telephones on each side and these are shared by the 160 inmates on each particular side. Plaintiff Seegmiller has not observed any of these items sanitized by prison porters after being used by prisoners. An individual prisoner may wipe one of these items down before using it. Prison staff has made available a limited supply of cleaning materials each day but once the cleaning supplies have been issued for that day none is available until the next day.
1
Exhibit 22 - Decl of Seegmiller

Case 2:20-cv-11053-MAG-RSW ECF No. 22-23 filed 05/04/20 PageID.1020 Page 2 of 2
3. As of April 20, 2020, five of the inmates in my cube tested positive. When I heard that, I freaked out. I thought for sure that I also had CORVID-19 and there was nothing I would do about it. I was never tested. The only treatment I was given, if you can call it that, 1 was temporarily moved to the level 2 side of dorm D, a
different housing unit, for approximately 36 hours. and was sent back to the level 1 side to the Pole Barn without first being tested. 1 I constantly live in fear that I will die next because I was given little medical care after five of my bunkies tested positive. 4. On April 17, 2020, in the afternoon, the officers in the Pole Barns at the Cotton Facility went through each Pole Barn and cut the electrical cord to each fan to
prevent the spread of the spread of COVID-19 virus is what the officer told me. However, I was not provided social distancing while confined at the Cotton Prison to help prevent me from becoming infected. It is very fearful to be in prison with a pandemic, knowing that you could easily catch it, and die. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: ------- Signature � �� �
h/1��
1 I filed two grievances. One was against the Warden and the other against Director Washington on April 9, 2020. These grievances were returned to be on April 13, 2020. I filled out and submitted steps ll's appeals for both grievance on April 17, 2020 but have not received responses.
2
Exhibit 22 - Decl of Seegmiller

Case 2:20-cv-11053-MAG-RSW ECF No. 22-24 filed 05/04/20 PageID.1021 Page 1 of 3
Plaintiff Lamont Heard, 252329 - Lakeland Correctional Facility I, Lamont Heard, under the penalty of perjury, state the following: 1. Presently I am confined within the Michigan D epartment of Corrections at Lakeland Correctional Facility (LCF), in Coldwater, Michigan. 2. Heard is confined in Pole Barn E-2 at LCF, which means he is confined in a cube with at least 8 other inmates, in an area that is approximately 10'x12'. The height of the wall separating these Cubes is eight feet high. There are approximately 20 other cubes for a total population of 160 inmates on each side of the Pole Barn. 3. As to the cube in the Pole Barn where Plaintiff Heard is confined, the entire unit can leave their cubes starting at 5:50 am and are required to be locked down in the cubes at 11:30 pm. During the time not required to be in the cube, the inmates in Unit E-2 are allowed yard for approximately 30 minutes at least 10 times a day. During this time out of cubes, the inmates are able to commingle in the Pole Barn without social distancing. 4. I and other inmates were recently told by health service and prison staff that due to some inmates already testing positive in that unit and the other unit inmates in that unit already being exposed to these positive tested inmates, that there was no reason to quarantine any of the inmates. 5. Plaintiff Heard was informed by both medical and unit officers not to request medical care unless it was severe. However, when he asked what is
considered severe, no one Ewoxuhldibtietll2h3im-. DCoemcml.enotfs Llikaemthoant tfrHomeastradff

Case 2:20-cv-11053-MAG-RSW ECF No. 22-24 filed 05/04/20 PageID.1022 Page 2 of 3
that I will wake up the next morning with no virus. Due to design of the Pole Barn, no social distancing in the Pole Barn, at chow, or in the yard, I fear that the odds are I will be infected and die in prison. 1 6 This past week MDOC started testing all the inmates confined at Lakeland prison. As of April 23, 2020, the reported test results showed that 600 - or 40% of the population - have tested positive. MDOC has confirmed that not all tests results have been returned. Once I heard that I b ecame convinced that I will only leave this prison in a b ody b ag. I have observed numerous body bags being take out of Lakeland. I fear for my life. 7. Plaintiff Heard was given three masks and told that he had to wash them because staff would not provide more masks. Plaintiff Heard's temperature is not regularly taken
1 On April 13, 2020, I filed two grievances. One grievance against the Warden for failure to protect against COVID-19 and the other grievance against the Director for her failure to protect me against COVID-19. I have received no response as to either grievance. The reasons for no responses might be that I observed the regular grievance coordinator working in the Pole Barn, in a position of correction officer.
Exhibit 23 - Decl. of Lamont Heard

Case 2:20-cv-11053-MAG-RSW ECF No. 22-24 filed 05/04/20 PageID.1023 Page 3 of 3
8. Plaintiff Heard has observed prison staff pat downs inmates either without gloves or not changing gloves when they have completed the pat down of one imnate and patting down the next i11111ate. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: L.J-- ·J..- l -JO
Exhibit 23 - Decl. of Lamont Heard

Case 2:20-cv-11053-MAG-RSW ECF No. 22-25 filed 05/04/20 PageID.1024 Page 1 of 11
POLICY TOPICS !
First research findings measure COVID-19 prevalence in U.S. prisons, jails
Harvard researchers work with correctional healthcare experts in ongoing study tracing outbreaks among prison inmates, correctional staff
HOME (/) / FACULTY & RESEARCH (/RESEARCH-INSIGHTS) / POLICY TOPICS (/FACULTY-RESEARCH/POLICY-TOPICS) / FAIRNESS & JUSTICE (/FACULTY-RESEARCH/POLICY-TOPICS/FAIRNESS-JUSTICE) / FIRST RESEARCH FINDINGS MEASURE COVID-19 PREVALENCE IN US PRISONS, JAILS ()
April 09, 2020

A cCoallsaeb2o:2r0a-ctvi-o11n05b3e-MtwAGe-eRnSWHaErCvFarNdo.U22n-2i5vefrilsedit0y5/r0e4s/2e0arPcahgeerIDs.1a0n2d5 thPaegNe 2aotif o11nal Commission on Correctional Health Care (NCCHC) has yielded the first detailed survey on the effects of the coronavirus pandemic on correctional facilities in the United States.
The ongoing survey has so far collected data from more than 320 facilities housing approximately 10 percent of the country’s inmates across 47 states. While not necessarily representative of all correctional institutions, the results nonetheless are vital for policymakers responding to the pandemic in their own states and communities.
Among the key findings:
• Correctional staff, like the general population, are at risk for contracting of COVID-19 infection, with a higher infection rate than inmates.
• Many protocols call for screening inmates and staff for COVID-19 on a regular basis, but a significant fraction of facilities still lack access to lab testing.
• The nationwide shortage of personal protective equipment (PPE) as well as ancillary supplies (such as cleaning products and thermometer probes) is also a problem for correctional health care operations.
The survey was devised as a collaboration between Marcella Alsan (https://www.hks.harvard.edu/faculty/marcella-alsan), professor of public policy at Harvard Kennedy School, Professor Crystal Yang (https://hls.harvard.edu/faculty/directory/11405/Yang) from Harvard Law School, and the National Commission on Correctional Health Care (https://www.ncchc.org/). Alsan and Yang are faculty affiliates of the Kennedy School’s Malcolm Wiener Center for Social Policy. They are both

ecoCnaosem2i:2s0t-sc.vA-11ls0a53n-MaAlsGo-RhSaWs dEeCgFrNeoe.s22i-n25mfeileddic05in/0e4/2a0ndPpaugebIDli.1c0h26ealPtahg,ea3nodf 1h1as held hospital fellowships in global health equity and infectious disease. Yang served as a federal prosecutor and is also a faculty research fellow at the National Bureau of Economic Research.
The NCCHC sent the initial survey and a daily follow-up questionnaire to jails, prisons, and juvenile detention facilities nationwide. Results are providing unique insights into the prevalence of the novel coronavirus and the associated COVID-19 disease among the incarcerated population as well as the challenges correctional health staff are facing as they respond to the pandemic.
“What’s striking to me about these findings so far is that correctional staff are also at high risk, either because of community exposure or exposure in the facilities themselves. Therefore, keeping visitors out is unlikely to be a failsafe method to prevent infectious spread. Staff also need to have access to protective equipment and testing,“ said Alsan. “In addition, many of the facilities surveyed recounted they were screening inmates using the only method they had readily available: temperature and symptom screening. Since COVID-19 can be transmitted asymptomatically, it would be much safer to empower all facilities to screen using rapid lab tests.”
Yang said the findings suggest that as the pandemic continues to spread within facilities, policymakers should implement criminal justice policies that can protect the health of inmates and correctional staff without endangering public safety. She added: “Qualitative comments from participating facilities in our survey indicate a range of sound responses to the pandemic, including releasing medically vulnerable inmates, limiting

preCtraisael2d:2e0-tcevn-1t1i0o5n3-MfoArGi-nRSdWiviEdCuFaNlso.c2h2a-2r5gefidledw0i5t/h04n/2o0n-PvaigoelIDe.n10t2o7r Page 4 of 11 misdemeanor offenses, quashing non-violent minor arrest warrants, and increasing the use of summons in lieu of arrests for non-violent offenses.”
The surveyed correctional facilities represent more than 267,000 inmates and 53,000 correctional and health care staff. The data are primarily drawn from jails (70 percent), with prisons accounting for 20 percent and other detention facilities, such as juvenile facilities, making up the remainder of the sample. These data may not be fully representative of all correctional institutions.
“By definition, jails and prisons are closed environments and therefore potential hotspots for virus spread,” said Deborah Ross, NCCHC chief executive officer. “As corrections grapples with the challenges of the pandemic, this study provides very important data in an area that is often overlooked.”
“This is a truly innovative public health effort,” said Brent Gibson, chief health officer at NCCHC. “It underscores that there is no bright line between correctional health care and community health. The work we are doing now not only brings immediate understanding and perspective, but also will fuel studies and programs for years to come. The lessons learned here will be beneficial far into the future.”
The collaboration will continue to collect data on the pandemic’s effect on correctional facilities, as well as other correctional health care topics, in the months ahead. Information and reports are posted at https://www.ncchc.org/study-of-covid-19-in-correctional-facilities (https://www.ncchc.org/study-of-covid-19-in-correctional-facilities). The researchers urge all facilities to participate.

Findings to Date Case 2:20-cv-11053-MAG-RSW ECF No. 22-25 filed 05/04/20 PageID.1028 Page 5 of 11
Between March 25 (the initial survey) and April 3 (the latest daily followup), the number of reported COVID-19 cases among participating correctional facilities increased steadily (see Figure 1). The highest number of reported cases was among correctional staff—including health care staff and correctional officers. Specifically, the number of COVID-19 cases among staff increased from 136 to 245 among approximately 100 facilities that have consistently reported each day. During this period, the number of cases among inmates increased from 32 to 67 among approximately 100 facilities that consistently reported. In addition, there were two reported deaths among correctional staff.
Combining the survey data with COVID-19 case data from the New York Times, the reported cases among correctional staff are highly correlated with cases in the broader community (see Figure 2). States that have been especially hard hit by the pandemic, such as Michigan and New Jersey, are also locations where correctional officers are more affected. At the state level, reported correctional staff cases are also correlated with reported cases among inmates (see Figure 3).
As of April 3, approximately two-thirds of participating facilities reported having adequate PPE for their staff. Approximately 60 percent reported having access to laboratory testing for COVID-19. However, in the comments section of the survey, several facilities reported struggling to obtain adequate PPE and testing. They also noted long waits to receive test results, leading to uncertainty as to how to handle individuals who might be in jail for only a short time.
Exhibits

Case 2:20-cv-11053-MAG-RSW ECF No. 22-25 filed 05/04/20 PageID.1029 Page 6 of 11

Case 2:20-cv-11053-MAG-RSW ECF No. 22-25 filed 05/04/20 PageID.1030 Page 7 of 11

Case 2:20-cv-11053-MAG-RSW ECF No. 22-25 filed 05/04/20 PageID.1031 Page 8 of 11
— Photo by David Ryan
MORE FROM HKS
Q&A with researchers Alsan and Yang on COVID-19 prisons research

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Case 2:20-cv-11053-MAG-RSW ECF No. 22-25 filed 05/04/20 PageID.1033 Page 10 of 11
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Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1035 Page 1 of 15
DECLARATION OF DR. ADAM LAURING
Pursuant to 28 U.S.C. § 1746, I hereby declare as follows:
I. Background and Qualifications
1. My name is Adam Lauring, M.D., Ph.D. 2. I am a board-certified medical doctor in Infectious Diseases. 3. I have been a physician for more than 18 years, and I have worked in Infectious
Diseases for 14 years. 4. My bio, attached as Exhibit A, includes a brief description of my education and
relevant experience. 5. My Curriculum Vitae, attached as Exhibit B, includes a full list of my honors,
experience, and publications. 6. I am donating my time reviewing materials and preparing this Declaration. Any
live testimony I provide will also be pro bono. II. Heightened Risk of Epidemics in Jails and Prisons
7. As I will discuss below, the risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of multiple risks of transmission and exposure to individuals who become infected.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails, however, are closely connected to communities. Staff, visitors, contractors, and vendors pass between communities and these facilities and, if infected, these individuals can carry with them and transmit infectious diseases. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities, posing the same risk. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1036 Page 2 of 15

person, especially those passed by droplets through coughing and sneezing. When people share dining halls, bathrooms, showers, telephones, and other common areas, the opportunities for transmission are greater. Where infectious diseases are transmitted from person to person by droplets, and no vaccine exists, the best initial strategy is to practice social distancing – maintaining a physical distance of at least six feet from any other person. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community.

10.Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting, therefore, dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases, and significantly increases the likelihood of the spread of infection. For example, in mid-March, the jail at Rikers Island in New York City had not had a single confirmed COVID-19 case. By March 30, 167 inmates, 114 correction staff and 20 health workers at Rikers tested positive for COVID-19; two correction staff members have died and multiple inmates have been hospitalized.1As of April 8, Rikers had a rate of infection that is far higher than the infection rates of the most infected regions of the world. More than 700 people have tested positive for COVID-19, including more than 400 staff. 2 The Chief Medical Officer of Rikers has described a “public health disaster unfolding before our eyes.” In his view, following CDC guidelines has not been enough to stem the crisis: “infections in our jails are growing quickly despite these efforts.”3

11.Like the explosive growth at Rikers, the Cook County Jail went from two confirmed COVID-19 cases on March 23 to more than 350 confirmed cases, 238

1 Jan Ransom and Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at

Rikers

Jail,

NY

Times,

(Mar.

30,

2020),

https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html.

2 Asher Stockler, More Than 700 People Have Tested Positive for Coronavirus on

Rikers Island, Including Over 440 Staff, Newsweek (April 8, 2020),

https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872.

3 Ross MacDonald (@RossMacDonaldMD), Twitter (Mar. 30, 2020, 8:03 PM),

https://twitter.com/rossmacdonaldmd/status/1244822686280437765?s=12

(“I can assure you we were following the CDC guidelines before they were issued.

We could have written them ourselves. . . [I]infections in our jails are growing

despite these efforts.”).

Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1037 Page 3 of 15

inmates and 115 staff members, two weeks later.4 As of April 13, the number of confirmed cases totaled 500, of which two-thirds are inmates.5
12.The infection rate in Michigan prisons like Parnall Correctional Facility in Jackson has surpassed even Cook County or Rikers.6 Four men initially tested positive at this facility on March 25th, 2020.7 Over 162 of the 1,641 prisoners have tested positive for the virus as of April 16.8 There are 63 positive cases among staff.9 However, the growing devastation in other prisons around the country is a harbinger for what almost certainly awaits MDOC if immediate safeguards are not enacted. For instance, at the Marion Correction Institution in Marion, Ohio, 1,828 inmates have tested positive, along with 109 staff members.10 That number will only grow under the present conditions.
13.Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to

4 Timothy Williams and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as

Virus Spreads Behind Bars, NY Times (April 8, 2020),

https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-

chicago.html.

5 Cheryl Corley, The Covid-19 struggle in the Cook County Jail, NPR (April 13,

2020), https://www.npr.org/2020/04/13/833440047/the-covid-19-struggle-in-

chicagos-cook-county-jail.

6 Angie Jackson and Kristi Tanner, Infection rate at Michigan prison exceeds New

York, Chicago jail hot spots, Detroit Free Press (April 16, 2020),

https://www.freep.com/story/news/local/michigan/2020/04/16/infection-rate-

michigan-prison-exceeds-new-york-chicago-jail-hotspots/2987935001/.

7 Id.

8 Id.

9 Id.

10 Jim Woods and Patrick Cooley, Coronavirus in Ohio: More Than 1,800 Inmates

at Marion Correctional Test Positive, The Cincinatti Enquirer

(Apr. 19,

2020) https://www.cincinnati.com/story/news/2020/04/19/coronavirus-ohio-

more-than-1-800-inmates-marion-correctional-test-positive/5163046002/.

Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1038 Page 4 of 15
prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other jail or prison inmates, and staff.
14.Reduced prevention opportunities: During an infectious disease outbreak, people can curb their risk of infection by washing hands. Jails and prisons 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, then the risk of infection and rate of infection spread is much greater. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol- based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, telephones, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
15.Additional reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk to everyone in the facility of a widespread outbreak.
16.Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.11 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
11 Active case finding for communicable diseases in prison, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS01406736(18)31251-0/fulltext.
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1039 Page 5 of 15
17.Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large 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. This makes containing the illness and caring for those who have become infected nearly impossible.
18.Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, medications, and specialized equipment, such as ventilators.
19.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 a pandemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves. To help ease the collective burden on Southeastern Michigan hospitals, the state is constructing make-shift field hospitals.12 The patient volume at Detroit’s Sinai-Grace Hospital is so overwhelming that patients are lining the hallways, and patient care is suffering from staff, supplies, and equipment shortages.13 In some cases, patients have died waiting for medical attention.14
12 TCF Center makeshift hospital in Detroit ready to accept first patients, WXYZ Detroit, Channel 7 (April 9, 2020) https://www.wxyz.com/news/coronavirus/4local-health-systems-will-help-staff-tcf-center-temporary-hospitals-first-patientsarriving-friday. 13Paul P. Murphy and Theresa Waldrop, Detroit hospital workers say people are dying in the ER hallways before help can arrive (April 9, 2020), https://www.cnn.com/2020/04/09/us/detroit-hospital-workers-sinai-gracecoronavirus/index.html. 14 Id.
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1040 Page 6 of 15
20.Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines may be limited. Locally, for example, two Wayne County Jail physicians, including the Jail’s medical director, have died from COVID-19.15
21.Safety and security: 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. Furthermore, rapid spread of infectious diseases among the inmates can often worsen the epidemic outside of the incarcerated population because staff are more likely to be infected and spread the disease to their families and the wider population.
22.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 in Maine, resulting in two inmate deaths.16 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 H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases. 16 Even facilities on “quarantine” continued to accept new cases of influenza, a viral
15 Charlie LeDuff, LeDuff: Covid Has Killed 2 Wayne County Jail Doctors, A Commander, And Still: Silence, Deadline Detroit (April 13, 2020), https://www.deadlinedetroit.com/articles/24965/leduff_covid_has_killed_2_wayne %20_county_jail_doctors_a_commander_and_still_silence. 16 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.
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1041 Page 7 of 15
infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease17
23.The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but recent data from China has demonstrated that almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms, and it is possible that transmission can occur for weeks after their symptoms resolve. 18 In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. A recent study out of Singapore found 10% of new infections could be caused by asymptomatic patients.19 Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for over a year to the general public. Antiviral medications are currently in testing but not yet FDA-approved. People in prison
17 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID-19, COVID-10 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID19), Centers for Disease Control, http://www.croiconference.org/sessions/global-epidemiology-and-preventioncovid-19; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (updated April 17, 2020), https://www.ncchc.org/blog/covid-19-weekly-roundtable-for-lawenforcement-correctional-health-care-webinar. 18 Du Z, Xu X, Wu Y, Wang L, Cowling BJ, Ancel Meyers L. Serial interval of COVID-19 among Publicly Reported Confirmed Cases, (Research Letter), Vol. 26 Emerg Infect Dis. Journal No. 6 (June 2020 early release) [retrieved on April 20, 2020]. https://www.cdc.gov/eid/article/26/6/20-0357_article. 19 Linda Givetash, New Chinese data on asymptomatic coronavirus cases could help world response, NBC News (April 9, 2020), https://www.nbcnews.com/news/world/new-chinese-data-asymptomaticcoronavirus-cases-could-help-world-response-n1173896.
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1042 Page 8 of 15

and jail will likely have even less access to these novel health strategies as they become available.
24. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.20 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.21 74% of cases requiring hospitalization are people over the age of 50.22 Among those individuals, the risk of poor outcomes, included the need for mechanical intervention is over 20%. Death in COVID-19 infection is usually due to pneumonia, and sepsis, and would occur between approximately 1-4% of the population. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.

25.The care of people who are infected with COVID-19 depends on how seriously they are ill.23 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and

20 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for

Disease and Prevention (updated April 19, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html.

21 Fei Zhou, Ting Yu, and Ronghui Du et. al, Clinical course and risk factors for

mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective

cohort study, The Lancet (published online March 11, 2020),

https://www.thelancet.com/journals/lancet/article/PIIS0140-

6736(20)305663/fulltext.

22 Garg, Kim, and Whitaker et. al, Center for Disease Control, Morbidity and

Mortality Weekly Report – Hospitalization Rates and Characteristics of Patients

Hospitalized with Laboratory- Confirmed Coronavirus Cases (April 8, 2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm.

23 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for

Management of Patients with Confirmed Coronavirus Disease, Centers for Disease

Control

and

Prevention

(updated

April

3,

2020),

https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-

patients.html.

Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1043 Page 9 of 15
intravenous antibiotics. As discussed earlier, Southeastern Michigan hospitals are already overwhelmed and beyond capacity to provide this type of intensive care. This will worsen as COVID-19 becomes more widespread in communities.
26.In order to reduce the burden on the local health systems, aggressive containment and COVID-19 prevention is of utmost importance. To this end, State of Michigan and the City of Detroit have mandated COVID- 19 prevention strategies, such as “shelter in place” or “stay at home” orders, which have gone beyond containment and mitigation. Jails and prisons already have difficulty with containment because it 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, including the use of personal protective equipment. However, even with these efforts, it is nearly impossible for jails and prisons to provide the atmosphere of “shelter in place” or “stay at home” social distancing, given the number of individuals that work in and are housed in these facilities in the current system.
27.The time to act is now. Data from other settings demonstrates what happens when jails and prisons are unprepared for COVID-19. To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place.24 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in the Michigan Department of Corrections
28.In preparing this report I have reviewed the declarations of Plaintiffs Elliot Abrams, Craig Seegmiller, Vincent Glass, Isaac Morberg, Robert Reeves, Jermaine Campbell, and Lamont Heard.
29.Based on my expertise in virology, review of the relevant literature, and my review of the declarations referred to paragraph 28, it is my professional judgment that immediate action is necessary to stem the spread of COVID-19
24 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federalprisons-providing-significant/story?id=69433690.
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Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1044 Page 10 of 15
throughout the Michigan Department of Corrections and prevent an even worse outbreak, which will result in severe harm to detained individuals, prison staff, and the broader community. The MDOC is obviously under-equipped and ill prepared to prevent and manage a COVID-19 outbreak assuming what is described in the declarations are true, in some cases taking almost no precautions because they deemed inmates’ contraction of the virus as inevitable. The reasons for this conclusion are detailed as follows.
30.According to one of the declarants, Mr. Abrams had his spleen removed, heightening his risk of complications due to COVID-19. Despite that risk, Mr. Abrams cannot possibly social distance in prison. He has a cell mate, and shares necessary areas like bathrooms, microwaves, telephones, and mess halls with other inmates. He notes that he has observed officers, who also present a serious risk of spreading COVID-19, continue to conduct “pat-downs” of each inmate several times a shift without changing their gloves. If these statements are true, the prison is not following basic CDC protection and prevention.
31.Another declarant, Mr. Seegmiller, describes the crowded conditions of his confinement as one hundred and sixty inmates cramped into a pole barn and forced to share just two bathrooms with limited accommodations. Eight individuals sharing one cube presents a serious risk of contracting COVID-19 because of its survival on inanimate surfaces. These bathrooms should be sanitized after each use to properly protect the next user from COVID-19.
32.Another declarant, Mr. Vincent Glass describes the conditions at Parnall Correctional Facility. Glass is confined in the now infamous “10-Block,” where four inmates tested positive for the virus in late March. According to Glass, the warden placed these inmates in single cells on the lower level with open bars, where other inmates live above, below, and next door to them. This unit holds over four hundred inmates, and its crowded conditions present a near impossible risk of avoiding others. Like the other inmates, Glass shares common spaces like the phone, shower, and chow hall with his fellow inmates.
33.The declarants attested to the fact that individuals confined have limited access to disinfectant, if at all, or basic cleaning supplies with which to clean their shared cells, shared living quarters, common areas, or high-touch surfaces. One declarant describes his only cleaning utensil as a mop. High-touch surfaces, such as light switches, door and sink knobs, telephones, tables, etc., should be
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1045 Page 11 of 15
sanitized after each use. Failure to properly sanitize shared spaces, common areas, and high- touch surfaces that detained individuals heavily use, seriously increases the risk of the spread of COVID-19 and demonstrates the MDOC’s failure to take the most fundamental precautions for preventing the spread of the disease.
34.The declarations attest to significant neglect of inmates’ medical needs and the ability to provide the care necessary to prevent serious illness or death. The declarants stated that, although they were initially able to make requests for medical attention, those requests were ignored for days or dismissed. Presently, according to declarants, inmates are essentially unable to request medical attention because nurses and doctors are unavailable and correctional officers tell the inmates that they cannot assist with to those requests. This is true, according to declarants, even for inmates who are particularly vulnerable to risk of severe illness or death, as a result of underlying health conditions.
35.The MDOC’s failure to provide inmates with adequate medical care for their underlying chronic health conditions, as described by the declarants, results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected. According to their declarations, some Plaintiffs, and others held in the different prisons have serious medical vulnerabilities. A worsening outbreak in these different prisons would prove disastrous, and potentially fatal, for these medically vulnerable individuals. Based upon the declarations, it is apparent that the prisons are not providing adequate medical treatment to infected inmates. This is also worrisome because it will surely cause unnecessary risk of severe illness or death, and because patients from the prisons will further strain already-burdened Southeastern Michigan medical facilities who will have to absorb patients from various prisons.
36.The declarants further attested to the fact that inmates who exhibit COVID-like symptoms, such as cough, shortness of breath, or a fever are not immediately tested or quarantined, if at all. Failure to adequately test for infection results in dramatic undercounting of persons infected, and, in turn, makes it impossible to protect against an outbreak.
37.The quarantine procedures utilized by facilities like Parnall will not in any way mitigate or prevent the spread of infection. The declarants stated that the prison
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1046 Page 12 of 15
is “quarantining” presumably infected inmates in cells immediately adjacent to and within arms-reach of cells with inmates who are not presumed to be infected.
V. Conclusion and Recommendations
38.For the reasons above, it is my professional judgment that individuals placed in the custody of the Michigan Department of Corrections are at a significantly higher risk of infection with COVID-19 as compared to the population in the community, given the procedural and housing conditions in the facility, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
39.Indeed, based on the circumstances described in the declarations, my expertise in virology, and based upon my knowledge and understanding of the ways in which the novel coronavirus is transmitted, drastically reducing the contraction of COVID-19 in the prison setting is the only way to protect the health and safety of people detained in the facility and the public at large.
40.For the medically vulnerable – individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune systems, cancer, and diabetes) or who are over the age of 5025 – the wardens of various facilities and the Director have demonstrated neglect of medical needs and failure to both identify and quarantine infection, coupled with the inmates’ limited access to lifesaving protections, if any, and inability to practice physical distancing creates a meaningfully higher risk of death.
41.Based on the facts in the Declarations, it seems that the Defendants are not complying with the standards contained in the CDCs guidelines for prisons and jails. Failure to comply with those standards applicable to jail and prisons will result in a full-blown pandemic within the walls of the prisons of Michigan.
42.It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in this facility is a matter of days, not weeks.
25 Garg, Kim, and Whitaker et. al, Center for Disease Control, Morbidity and Mortality Weekly Report – Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory- Confirmed Coronavirus Cases (April 8, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm.
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Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1047 Page 13 of 15
43.Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.
44.Based on the above, it is my recommendations that the following procedures are implemented with the Michigan prison system.
a. Frequently communicate to all incarcerated people information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices;
b. Provide adequate spacing of six feet or more between inmates so that social distancing can be accomplished in accordance with the CDC guidelines;
1. impose at least 6-feet of social distancing for each inmate confined in a 2-person cell;
2. Impose at least 6-feet of social distancing for each inmate confined in the Pole Barns;
3. Impose at least 6-feet of social distancing for each inmate confined in dayrooms, gyms, classrooms, or any other area where inmates are housed;
4. Impose at least 6-feet of social distancing for each inmate during feeding;
5. Impose at least 6-feet of social distancing for each inmate during yard / exercise periods;
c. Ensure that each incarcerated person receives, free of charge, an individual supply of hand soap and paper towels sufficient to allow frequent hand washing and drying each day; an adequate supply of clean implements for clearing such as sponges and brushes and disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings;
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1048 Page 14 of 15
d. Require that all prison staff wear person protective equipment, including CDC-recommended surgical masks, when interacting with any person or when touching surfaces in cells or common areas;
e. Require that all prison staff wash their hands, apply hand sanitizer containing at least 60% alcohol, or change their gloves both before and after interacting with any person or touching surfaces in cells or common areas;
f. Take each incarcerated person’s temperature daily (with a functioning and properly operated and sanitized thermometer) to identify potential COVID19 infections;
g. Assess (through questioning) each incarcerated person daily to identify potential COVID-19 infections;
h. Conduct immediate testing for anyone displaying known symptoms of COVID-19;
i. Ensure that inmates identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video visitation with loved ones, communications with counsel, and personal property;
j. Respond to all emergency (as defined by the medical community) requests for medical attention within an hour;
k. Provide sufficient disinfecting supplies, free of charge, so inmates can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use;
l. Waive all medical co-pays for those experiencing COVID-19-related symptoms;
Pursuant to 28 U.A.C. 1746, I declare under the penalty of perjury that the foregoing is true and correct.
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-26 filed 05/04/20 PageID.1049 Page 15 of 15
Executed on this 22nd day of April 2020. Adam Lauring, MD, PHD
Exhibit 25, Dr. Lauring's Affidavit

Case 2:20-cv-11053-MAG-RSW ECF No. 22-27 filed 05/04/20 PageID.1050 Page 1 of 10
Declaration of Jeremy D. Young, MD, MPH
I, Jeremy D. Young, declare as follows:
I. Background and Qualifications
1. I am a physician and am board-certified in Internal Medicine and Infectious Diseases. I am an Associate Professor of Medicine at The Ohio State University College of Medicine in the Division of Infectious Diseases in the Department of Internal Medicine and am the Associate Chief of Clinical Operations for that division at The Ohio State University Wexner Medical Center in Columbus, Ohio. I completed my residency in Internal Medicine at The Ohio State University Medical Center in Columbus, Ohio, in 2004. I completed a fellowship in Infectious Diseases at The Ohio State University Medical Center in 2006. I also hold a Master of Public Health, which I received from The Ohio State University in 2006.
2. Before returning to Ohio State as a professor in 2019, I was previously an Associate Professor (with tenure) at the University of Illinois at Chicago in the Division of Infectious Diseases, Immunology & International Medicine in Chicago, Illinois. While at the University of Illinois at Chicago, I also served as the Program Director for the Infectious Diseases Fellowship. While I was in Illinois, for approximately ten years, I worked on controlling the spread of infectious diseases such as HIV and hepatitis C in correctional institutions across the state. Specifically, I worked to develop improved virologic suppression methods with respect to HIV across the prison system in Illinois using telemedicine. Through this work over the past decade or more, I have become knowledgeable about infection control procedures and the spread of virus through prisons and other correctional facilities.
3. I have spoken about, written, and published extensively on the topics of infectious diseases among people involved in the criminal justice system, including through poster presentations, oral abstracts, book chapters, and articles in peer-reviewed journals and publications (including Journal of Respiratory Diseases, New England Journal of Medicine, Clinical Infectious Diseases, JAMIA, American Journal of Infection Control, Journal of Clinical Medicine, and others) on issues of prevention, diagnosis, and management of HIV, hepatitis C, and other infectious diseases among people in the criminal justice system. I am well-versed in infectious disease epidemiology, have taught lectures on the subject, and apply the principles of infection control on a daily basis as part of my job. I have taught graduate students, medical students, residents, and infectious disease fellows on the principles and practices of infection control and epidemiology.
4. I have attached, as Exhibit A, a copy of my curriculum vitae, which contains a full listing of my education, experience, publication, and honors.
Exhibit 26 - Dr. young's Declaration

Case 2:20-cv-11053-MAG-RSW ECF No. 22-27 filed 05/04/20 PageID.1051 Page 2 of 10
II. Infectious Disease Transmission in Correctional Facilities
5. The risk posed by exposure to contagious infectious diseases in correctional facilities is significantly higher than in the general community, both in terms of risk of transmission and harm to individuals who become infected. This is partially because correctional facilities are often poorly equipped to diagnose, treat, and manage infectious disease outbreaks due to lack of resources and medical providers. Also, the congregative nature of correctional facilities presents unique challenges to infection control, particularly with highly contagious diseases with person-to-person spread. Regarding risk of severity, offenders in correctional facilities often have underlying characteristics or conditions that may predispose them to an increased risk of morbidity and mortality from infectious diseases, including older age, diabetes mellitus, lung disease (e.g. COPD), coronary artery disease, immunocompromising conditions (e.g. HIV/AIDS), and high body mass index (BMI).
6. Globally, outbreaks of contagious diseases, including viral respiratory tract infections, are exceedingly common in closed detention settings, more so than in non-correctional communities. Not only are prisons and correctional facilities high-risk for internal outbreaks, due to close quarters and person-to-person transmission, these facilities are not isolated from their surrounding communities, allowing infectious diseases to enter the prison environment and spread quickly. Staff, visitors, contractors, and vendors, among others, pass between communities and correctional facilities and can (and do) bring community-based infections into facilities. In addition, turnover of prison and correctional facility populations means that people often cycle between units, facilities, and communities. People are often transported to and from facilities for other various purposes as well, including to attend court, move between facilities, and to attend external healthcare appointments. The incarcerated are an at-risk population, and their contagious conditions also put communities at risk. Accordingly, prison health is a vital component of public health.
7. Communal settings in prisons and other correctional facilities provide an ideal environment for the rapid spread of infectious diseases that are transmitted person-to-person, particularly those passed by respiratory droplets, aerosols, direct contact, or fomites (objects or materials likely to harbor infectious pathogens, such as clothes, utensils, and furniture). Opportunities for transmission of such diseases increases when individuals share dining space, living quarters, bathrooms, showers, and other common areas. In these cases, the best initial strategies to help combat the spread of the infectious diseases are to perform frequent hand hygiene, clean and disinfect potential fomites, and practice social distancing. When imprisoned, people have a decreased ability to protect themselves through social distancing than they would have in the non-correctional community. Spaces within prisons and other correctional facilities also tend to be poorly ventilated, which promotes highly efficient spread of infectious diseases through droplets. Individuals in these settings have a diminished ability to protect themselves from exposure to infectious diseases.
Exhibit 26 - Dr. young's Declaration

Case 2:20-cv-11053-MAG-RSW ECF No. 22-27 filed 05/04/20 PageID.1052 Page 3 of 10
8. During an infectious disease outbreak, many individuals protect themselves by performing hand hygiene, either with soap and water or alcohol-based hand sanitizers. However, correctional facilities rarely provide adequate opportunities for inmates to exercise necessary hand hygiene measures. Prisons and correctional facilities are often ill-equipped with sufficient hand soap and alcohol-based sanitizers for detained persons living and working in these facilities. Furthermore, high-traffic fomites such as doorknobs, light switches, tables, and counters should also be cleaned and disinfected regularly with bleachbased solutions to prevent the spread of virus. This measure rarely taken in prisons and correctional facilities due to a lack of cleaning supplies and available personnel to perform the necessary cleaning and disinfecting procedures.
9. Often in an infectious disease pandemic, containment strategies require people who are symptomatic and may be infected to be isolated, and that caregivers and treating physicians and nurses have access to personal protective equipment (PPE), including gloves, masks, gowns, and eye protection (goggles or face shield). As stated, prisons and correctional facilities are often ill-equipped to provide sufficient resources, including PPE for people who are incarcerated and associated caregiving staff. This lack of resources increases the risk to the broader prison population (including inmates as well as those entering the prison for other reasons) of a widespread outbreak.
10. Prisons and correctional facilities often lack onsite medical facilities, 24-hour medical care, and/or access to other medical equipment necessary to diagnose, treat, and manage ill individuals and spread to others during infectious disease outbreaks. Medical facilities and prisons and correctional facilities are rarely sufficiently equipped to handle large outbreaks properly, applying evidence-based strategies for risk reduction, treatment, and containment. To prevent the transmission of droplet-borne diseases, people who are infected and symptomatic must be isolated in a single cell, without cellmates, in a room with a closed door. Any available resources are likely to become rapidly exhausted during an infectious disease outbreak, and any available rooms or beds in any infirmary or other medical facility will likely be at capacity within hours or days. This makes containing the illness and treating those who have become infected much more difficult. In addition, prisons often lack access to community health resources that can be crucial to identify and manage widespread outbreaks, including testing kits, venipuncture capabilities, laboratory equipment, radiology, and medication for those who are infected.
11. Because of their limited resources and access to adequate facilities, prisons and correctional institutions often need to rely on nearby outside facilities, including hospitals and emergency departments, to provide intensive medical care. During a pandemic, however, this may not be possible, as outside facilities will likely be at or over capacity already.
12. Correctional facilities often house populations who are more susceptible to acquiring and experiencing complications from infectious diseases as compared with the general population at large. Often, people in prisons and correctional facilities have chronic underlying health conditions, including diabetes, hypertension, heart disease, chronic lung disease, chronic liver disease, and immunocompromising conditions such as HIV/AIDS.
Exhibit 26 - Dr. young's Declaration

Case 2:20-cv-11053-MAG-RSW ECF No. 22-27 filed 05/04/20 PageID.1053 Page 4 of 10
Thus, prisons and correctional facilities house populations who have increased susceptibility.
III. COVID-19
13. The novel coronavirus, also known as SARS-CoV-2, causes a disease known as COVID19. COVID-19 is a serious disease and has reached pandemic status. Over 802,500 cases have been confirmed in the United States – and almost 33,000 in Michigan – with more than 44,500 deaths.1,2 These numbers will increase, perhaps exponentially, as testing capabilities improve.
14. The virus is believed to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces (i.e. fomites, such as doorknobs, countertops, and other objects and surfaces). People seem to be most able to transmit the virus to others when they are exhibiting the most severe symptoms, but it is possible that people can transmit the virus while still asymptomatic or for weeks after their symptoms resolve. In China, where SARS-CoV-2 originated, the average infected person passed the virus on to 2-3 other people, with transmission occurring at a distance of 3-6 feet. However, symptomatic persons clustered in close quarters are often referred to as “super spreaders,” and can transmit the virus to hundreds of others, as demonstrated in nursing homes and on cruise ships. Every person is at risk of infection because our immune systems have never been exposed to, or developed protective responses against, this novel coronavirus.
15. The time course of the disease, from wellness to severe illness, can be very rapid. Individuals may show symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days after that. For others, symptoms may not manifest for up to two weeks after contraction of SARS-CoV-2. This presents its own issues as far as disease transmission, because individuals may not realize they have contracted the virus for several weeks, and may continue to interact with others for weeks, thereby spreading the disease to those with whom they come into contact.
16. Although a vaccine is currently in development, it will likely not be available for another year to the general public. Antiviral medications are currently in testing but not yet received FDA-approved. This means those medications, such as remdesivir, are only available as part of a clinical trial through either the manufacturer or National Institutes of Health (NIH), or off-label use of unproven therapies such as chloroquine or hydroxychloroquine. People in prisons and correctional facilities will likely have less access to these novel treatment strategies than other individuals, even as they become available to the broader public.
17. The majority of individuals infected with COVID-19 develop mild disease. That is, they experience flu-like symptoms and develop mild upper respiratory infections. But emerging data from China suggests that serious illness may occur in up to 16% of cases, and can
Exhibit 26 - Dr. young's Declaration

Case 2:20-cv-11053-MAG-RSW ECF No. 22-27 filed 05/04/20 PageID.1054 Page 5 of 10
include the need for intubation and mechanical ventilation, or even death.1 Serious illness and death is most common among elderly patients, and patients with underlying health conditions, such as diabetes, heart disease, lung disease, and liver disease.2 Death from COVID-19 is typically due to pneumonia complicated by acute respiratory distress syndrome (ARDS) and/or sepsis. The risk of death or serious illness is heightened for people who have not received the influenza and/or pneumonia vaccine as these coinfections can occur, increasing the risk of poor outcomes.
18. Treatment of individuals infected with COVID-19 varies based on the severity of illness. Individuals with mild symptoms may be treated at home without the need for hospitalization. Those with moderate and severe symptoms, however, likely require hospitalization for supportive care (such as intravenous fluids and supplemental oxygen) or for more intensive care (such as ventilation and intravenous antimicrobials). Doctors, infectious disease specialists, and public health officials anticipate that hospitals are likely to be overwhelmed and beyond capacity to provide the required intensive care as COVID19 becomes more widespread across the United States. Indeed, this type of overcrowding was experienced in hospitals across China and Italy in connection with treatment of individuals with COVID-19 and is currently occurring in New York City.
IV. The Risk of COVID-19 in Correctional Facilities
19. COVID-19 is particularly dangerous for those who are elderly, immunocompromised, or who have underlying medical conditions such as diabetes, heart disease, or lung disease. These populations are at a higher risk of morbidity and mortality if infected.
20. Patients’ immune systems can be compromised by chemotherapy for the treatment of malignancies, HIV/AIDS, hepatitis C, immunosuppressive medications, and other reasons. All of these conditions may make individuals more susceptible to poor outcomes associated with COVID-19.
21. Vulnerable people who are exposed to COVID-19 can experience severe respiratory illness and damage to major organs from ARDS, myocarditis, septic shock, and other serious complications. Supportive care for serious cases of COVID-19 requires significant resources, including clinicians, proper PPE, intensive care units, nursing support, and ventilators. An outbreak of COVID-19 could put significant pressure on, or exceed the capacity of, the local health infrastructure.
22. Based on my understanding of the Lakeland Correctional Facility (LCF), my review of relevant materials, my experience working on public health in prisons and other correctional facilities, and my review of the relevant literature, it is my opinion that LCF has failed to implement infection control procedures sufficient to prevent and manage
1 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (April 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 2 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext
Exhibit 26 - Dr. young's Declaration

Case 2:20-cv-11053-MAG-RSW ECF No. 22-27 filed 05/04/20 PageID.1055 Page 6 of 10
a COVID-19 outbreak. The current infection control measures in place to reduce the spread of COVID-19 at LCF are grossly inadequate, particularly considering its vulnerable population. My understanding is that many other MDOC facilities, not just LCF, are not following the appropriate measures of quarantine, social distancing, and hand hygiene necessary to protect inmates. These MDOC facilities include, but appear to be not limited to: Macomb Correctional Facility (MRF), G. Robert Cotton Correctional Facility (JCF), and Parnall Correctional Facility (SMT). This could result in severe harm to detained individuals, prison staff, and the broader community. The reasons for this conclusion are detailed below.
23. As stated, prisons and correctional facilities are congregate environments where people live and sleep in close proximity. In such environments, infectious diseases that are transmitted via the droplet, direct contact, or fomites are more likely to spread. This therefore presents an increased danger for the spread of COVID-19. To the extent that detainees or prisoners are housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, the risks of spread are greatly, if not exponentially, increased as already evidenced by spread of COVID-19 in another congregate environment: nursing homes and cruise ships.
24. The CDC has published a guidance for correctional and detention facilities to prepare and protect inmates and employees from the spread of COVID-19. Specifically, the CDC recommends the following measures:
a. The availability of sufficient hand hygiene supplies, cleaning supplies, PPE, and medical supplies, including, but not limited to, liquid soap, alcohol-based hand sanitizers with at least 60% alcohol, facemasks, face shields, goggles, gloves, and testing supplies such as swabs and viral transport media.
b. Provide a no-cost supply of soap to incarcerated/detained persons and employees, sufficient to allow frequent handwashing.
c. Provide easy access to alcohol-based hand sanitizer containing at least 60% alcohol.
d. Adhere to CDC recommendations for cleaning and disinfection during the COVID19 response, including cleaning and disinfecting frequently touched surfaces several times per day.
e. Post signage throughout the facility and communicating the information verbally on a regular basis.
f. Implement social distancing strategies to increase the physical space between incarcerated/detained persons, including in holding cells and waiting areas, and by staggering time in recreation spaces, staggering meals and rearranging seating in the dining hall to increase space between individuals, liming the size of group activities, and rearranging housing spaces to increase space between individuals.
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g. Provide inmates with information and consistent updates about COVID-19 and its symptoms.
25. Combined, implementation of these procedures for all prisoners across the Unit has a number of valuable effects on public health and public safety within the prison and to the surrounding community. For example, increased social distancing will reduce the chance of spread of the virus if it is introduced; increased preventative measures such as handwashing, cleaning supplies for surfaces, etc. helps further restrict the spread of the virus and will help inmates protect themselves and others. These measures will, in turn, also reduce the burden on prison staff and local hospital and emergency room medical staff by reducing the number of people who will become sick and require hospitalization. This, in turn, helps to reduce the health and economic burden to the local community at large.
V. Conclusions and Recommendations
I have read the complaint as well as the declarations by inmates E. Abrams, D Lyons, E. Marr, V. Glass, I. Moberg, R. Reeves, C. Seegmiller, T. Combs, and T. Killian.
26. As an infectious diseases expert with experience in the transmission of viruses and diseases within the correctional system, it is my opinion that the individuals in Michigan correctional facilities are at a significantly higher risk of infection with COVID-19 as compared with the population at large and are at a significantly higher risk of morbidity and mortality if they do become infected. Strict measures must be taken in the following areas: a) hand hygiene; b) social distancing; c) enhanced and frequent cleaning of hightouch surfaces; d) limiting transfers of inmates; e) quarantining those who are symptomatic and/or have tested positive for SARS-CoV-2; and f) inmate education regarding the above, including both signage and verbal teaching for those who may have difficulties with reading.
27. As such, I recommend that MDOC implement and strictly adhere to and enforce all of the CDC guidelines listed in paragraph 24, above. Moreover, the CDC recommends—as do I—that transportation and movement of incarcerated persons between units be limited. If transfer or movement is necessary, I recommend that those individuals be tested for COVID-19 or placed in a 14-day quarantine before being released into the general population of the prison. It is my opinion that these steps are necessary to ensure that the virus is not introduced to the broader and highly at-risk population.
28. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in MDOC facilities is a matter of days, not weeks. This is an imminent threat to inmates, correctional employees and their families, and the greater community.
29. I find the MDOC’s COVID-19 policies and actions, or lack thereof, to be egregiously deficient in comparison with the CDC standard in a number of respects, and posing substantial risk that inmates will face an outbreak of the novel coronavirus and resulting
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COVID-19 disease, further entailing grave risks to the health of inmates, including the risk of death. The deficiencies in MDOC’s policy include the following items:
a. Forbidding inmates from using hand sanitizer, despite that fact that staff are required to carry and use it when needed. By contrast, the CDC recommends “relaxing restrictions on allowing alcohol-based sanitizer in the secure setting where security concerns allow.” Hand sanitizer is an important component of an infection control strategy to prevent transmission of SARS-CoV-2.
b. With respect to the transfer of inmates, MDOC’s policy only requires facilities to minimize transfer of offenders between units. By contrast, the CDC Guidance recommends correctional facilities “[r]estrict 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.”
c. To the extent MDOC cannot avoid transfers of inmates, the newly-arrived inmates should either be tested for the virus, or quarantined for 14 days. MDOC’s policies and actions are seriously deficient in this regard.
d. Social distancing is a crucial strategy to prevent spread of the coronavirus. After reading the inmate declarations referenced above, it appears as if several MDOC facilities are housing inmates together without any attempt at social distancing, with continued sharing of bathrooms, microwaves, telephones, and dining areas. Indeed, inmates who have tested positive for SARS-CoV-2 (COVID-19) have allegedly been allowed to interact with inmates from other units. Social distancing at several MDOC facilities appears to fall well short of the recommendations by CDC, and some facilities do not appear to be making any efforts whatsoever.
e. I also understand that, based on inmate reports, MDOC facilities are not providing appropriate education to inmates regarding the signs and symptoms of COVID-19, the threat of COVID-19, or how to help prevent contracting SARS-CoV-2. Some specific steps would be:
i. Posting signs providing guidance and education on COVID-19 symptoms and best methods for preventing transmission;
ii. Reducing social gatherings or taking other precautions to reduce inmate contact;
iii. Educating inmates on how COVID-19 is transmitted, signs and symptoms, and prevention of transmission;
iv. Reducing and restricting inmate movement;
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v. Reminding inmates of effective measures to prevent transmission, such as washing hands with soap for at least 20 seconds.
30. In my opinion to a reasonable degree of medical certainty, MDOC’s policy and its practices regarding the novel coronavirus are egregiously inadequate, and pose significant risks to inmates. Any competent physician in the field of infectious disease would recognize both 1) the serious deficiencies in MDOC’s policies and practices with respect to protecting inmates from the virus, and 2) the serious health risks posed by the virus, particularly to a crowded population with underlying health conditions.
31. Health in prisons and correctional facilities impacts community health. Protecting the health of individuals who are detained and work in these facilities is vital.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 23rd of April, 2020.
_____________________________________ Jeremy D. Young, MD, MPH
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CHRISTOPHER MARLOWE v. JAMES LEBLANC, ET AL., Slip Copy (2020)
KeyCite Blue Flag – Appeal Notification Appeal Filed by CHRISTOPHER MARLOWE v. JAMES LEBLANC, SECRETARY, ET AL, 5th Cir., April 25, 2020
2020 WL 1955303 Only the Westlaw citation is currently available.
United States District Court, M.D. Louisiana.
CHRISTOPHER MARLOWE v.
JAMES LEBLANC, ET AL.
CIVIL ACTION NO.: 18-63-BAJ-EWD |
04/23/2020
RULING AND ORDER
JUDGE BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
*1 Before the Court is Plaintiff's Motion for Temporary Restraining Order and/or Emergency Motion for Temporary Release (Doc. 93). Plaintiff has filed an Amended Memorandum in Support (Doc. 100), a Response (Doc. 102), and a Post-Hearing Reply (Doc. 110). Defendants filed an Opposition (Doc. 101) and Sur-Reply Memorandum in Opposition (Doc. 108). For the reasons stated herein, Plaintiff's Motion (Doc. 93) is GRANTED IN PART and DENIED IN PART.
I. FACTS Plaintiff seeks emergency relief authorizing his temporary supervised release, or other appropriate but unspecified forms of relief, while the spread of the COVID-19 virus remains a threat within the Louisiana Department of Corrections system. (Doc. 100 at p. 1). The Court notes that both the President of the United States and the Governor of Louisiana have declared a state of emergency in response to this pandemic 1 . As a diabetic, Plaintiff alleges that he is especially vulnerable to experiencing complications associated with the virus, which is actively circulating at the Rayburn Correctional Center (“Rayburn”), where he is assigned. (Id. at 1). According to the evidence presented at the hearing on the Motion, at least 25 people within the facility, including 23 inmates, have tested positive for COVID-19. (Doc. 110, at p. 1).
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1 See, Proclamation Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak issued March 13, 2020 by President Donald J. Trump. See also, Declaration of Public Health Emergency in Response to COVID-19 issued March 11, 2020 by Governor John Bel Edwards.
Plaintiff originally filed this action in 2018, alleging that Defendants, staff at the Elayn Hunt Correctional Center, exhibited deliberate indifference towards his medical needs and provided constitutionally deficient meal service that resulted in Plaintiff developing diabetes and that the failure to adequately treat his illness later exacerbated the symptoms. (Doc. 1, at ¶4). Plaintiff filed Amended Complaints, which Defendants have moved to dismiss. See (Doc. 84). While this case was pending, Plaintiff was transferred to the Rayburn. He now brings the instant Motion for Temporary Restraining Order and/or Emergency Motion for Temporary Release (Doc. 93).
The Court held a status conference on April 3, 2020 (Doc. 95) and an evidentiary hearing on April 7, 2020 (Doc. 109). Additionally, both parties have filed numerous memoranda to keep the Court apprised of evolving conditions at the facility.
In his Amended Memorandum in Support (Doc. 100), Plaintiff alleges that his medical condition places him “at extreme risk to develop life-threatening complications should he contract COVID-19.” (Doc. 100 at p. 2). He argues that the primary steps recommended by the Governor to limit the spread of COVID-19 have not been and cannot be meaningfully implemented within the Department of Corrections because prisoners are housed in compact and confined spaces. Id. In his memorandum, Plaintiff alleges that he shares a dormitory with approximately 78 other inmates who sleep in bunk rows and share five toilets. (Doc. 110–1 at p. 56). During the evidentiary hearing, Plaintiff provided testimony about numerous common areas used by the prisoners, including a common water fountain, microwave ovens, telephones, and a common cafeteria. Id. at 56-61. He also testified that many prisoners do not take social-distancing measures seriously, that the Warden arranged for social distance markers to be removed from the floors, and that he had received no official guidance concerning social-distancing measures from prison officials. Id. at 64. As noted, at least 23 offenders at Rayburn have tested positive for COVID-19. (Doc. 110, at p. 1).
*2 In opposition, Defendants allege that they are protected by Eleventh Amendment immunity and that the Plaintiff fails to sufficiently plead a claim of unconstitutional conditions. (Doc. 108, at p. 2). Defendants additionally argue that the Federal Rules of Civil Procedure do not allow a Plaintiff to request new relief or a new cause of action by way of the filing of a TRO, that Plaintiff lacks standing, and that Plaintiff failed to fully exhaust administrative remedies, which is typically a prerequisite to bringing a prisoner claim in federal court. See (Doc. 101).
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II. LEGAL STANDARD To obtain injunctive relief by way of a Temporary Restraining Order, Plaintiff must establish: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) that the injunction will not disserve the public interest. See Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008).
III. DISCUSSION
A. Jurisdiction
As an initial matter, the Court reviews its jurisdiction to consider the Motion. Defendants allege that it is improper for Plaintiff to allege new claims, not included in the initial complaint, through the filing of this TRO. While Defendants are correct that Plaintiff's Second Amended Complaint (Doc. 64) does not specifically address the outbreak of the novel coronavirus, it is fully premised upon Plaintiff's diabetes diagnosis and the prison facility's alleged inability to effectively provide medical care related to it. 2 Plaintiff has been moved to another facility, but remains within the custody of the Louisiana Department of Corrections, a named Defendant. An enhanced risk of contracting COVID-19 due to his condition, while not foreseeable at the time Plaintiff originally filed this lawsuit, stems from the same factual nexus as the original and amended Complaints.
2 The underlying Complaint is premised upon allegations against personnel at the Elayn Hunt Correctional Center who allegedly contributed to Plaintiff's diagnosis of diabetes.
In addition to the factual similarities, the Court finds that it serves the interests of judicial economy to adjudicate the instant Motion within this ongoing case. The Court is sufficiently familiar with the claims and defenses asserted by the Parties and finds that an efficient resolution is warranted by the adjudication of the Motion by this Court, given the unique circumstances.
Next, the Court shall consider Plaintiff's standing to bring this claim. Defendants argue that Plaintiff has failed to allege an injury in fact because the potential harms complained of (contracting coronavirus and experiencing complications associated with it) are not sufficiently likely due to the procedures implemented at Rayburn to prevent the spread of COVID-19. (Doc. 101 at p. 5–6). However, the Court notes that when this Motion was filed, only two inmates had tested positive for COVID-19. As of April 13, 2020, less than two weeks later, that number had escalated to 25 infections among inmates and staff. (Doc. 110, at p. 1).
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As noted, the exponential growth of the novel coronavirus has resulted in emergency declarations by the President and the Governor, as well as governors of numerous other states. Due to the nature of this virus, the Court finds that the risk of contracting the virus in a prison environment, where at least 23 inmates have already tested positive, poses a sufficiently high risk, rendering this matter ripe for adjudication even though Plaintiff has not contracted the virus. The United States Supreme Court has held that the risk of contracting a serious disease may indeed constitute an unsafe, lifethreatening condition that violates the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22 (1993). Further, the Supreme Court held that 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.” Id. With the clear danger posed by COVID-19 in the Rayburn facility, Plaintiff has adequately demonstrated standing.
*3 Regarding Defendants' assertion that Plaintiff failed to exhaust the administrative remedies available to him, Plaintiff admits that he did not exhaust administrative remedies and did not file a request to initiate the Administrative Remedy Procedure (ARP) related to this claim until April 7, 2020, after filing the instant Motion. (Doc. 102–2, at p. 2). Plaintiff initially contended that he could not file a claim because he lacked access to a computer and the ARP process had been closed because it was “non-essential.” 3 (Doc. 102 at 5).
3 Warden Robert Tanner testified at the hearing that this was not the case, and that ARP requests would be processed within 48 hours.
Generally, under the Prison Labor Reform Act (“PRLA”), pre-litigation exhaustion of available administrative remedies is mandatory for any suits brought under § 1983 by prisoners. Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 988, 152 L. Ed. 2d 12 (2002); see also 42 U.S.C. § 1997e(a). Despite the strict approach required within this Circuit concerning PLRA exhaustion requirements, the United States Court of Appeals for the Fifth Circuit has recognized that a district court must afford a prisoner an opportunity to show that he has either exhausted the available administrative remedies or that he should be excused from complying with them. Johnson v. Ford, 261 F. App'x 752, 755 (5th Cir. 2008) (holding that, while the facts presented in that case did not justify excusal, PLRA exhaustion requirements may be excused where dismissal would be “inefficient and would not further the interests of justice or the purposes of the exhaustion requirement”).
Here, the statutory 30-day period to adjudicate Plaintiff's administrative claim will not expire until May 7, at which point Defendants contend the Court may then properly hear this matter if
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it is not satisfactorily resolved through administrative proceedings sooner. Because of the nature of COVID-19, especially considering its ability to spread with great rapidity among densely populated communities, like prisons, the Court must reject Defendants plea and find that the interests of justice demand action by the Court on an emergency basis. 4 Further, the Court is vested with a traditional equitable power to issue injunctions to prevent irreparable injury, pending such exhaustion of administrative remedies. Johnson v. Ford, 261 F. App'x 752, 755 (5th Cir. 2008); Jackson v. D.C., 254 F.3d 262, 268 (D.C. Cir. 2001). Due to the important implications of this case to the Plaintiff, the Court shall exercise its authority while the administrative proceedings brought by Plaintiff are still under review by prison authorities.
4 The Centers for Disease Control and Prevention (CDC) issued specific guidelines pertaining to the spread of COVID-19 within correctional and detention facilities. The CDC explained that it was issuing guidance because detention facilities have a heightened risk for the spread of COVID-19 due to offenders living within congregate environments, the inability to leave, staff ingress and egress, transfers between facilities, and more. See CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), at https://www.cdc.gov/coronavirus/2019-ncov/ downloads/guidancecorrectional-detention.pdf.
Lastly, sovereign immunity does not apply to Defendants with respect to the relief requested in the instant Motion. It is axiomatic that state officials acting in their official capacity can nonetheless be sued for prospective injunctive relief to correct ongoing violations of federal law. Saahir v. Estelle, 47 F.3d 758, 761 (5 th Cir. 1995), citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105, 104 S. Ct. 900, 910, 79 L. Ed. 2d 67 (1984). Here, Plaintiff seeks relief based on alleged ongoing violations of the Eighth Amendment of the United States Constitution. Thus, this Court is appropriately vested with jurisdiction to consider the claim.
B. Request for Relief
*4 Plaintiff's claim arises under the Eight Amendment, which, as he notes, may hold an official liable for “deliberate indifference.” (Doc. 110, at p. 2). The Court has held conferences, conducted an evidentiary hearing and reviewed several filings in this case that all demonstrate the officials at Rayburn have taken numerous steps to implement policies to contain the spread of COVID-19 during these challenging times. While the number of infected inmates has grown, so too have the protective measures implemented at Rayburn by the DOC in response. Indeed, the demands
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made upon corrections officials in their effort to contain the spread of this pandemic within their facilities is unprecedented.
Robert Tanner, the warden at Rayburn, testified that meetings are held at least three times weekly to assess the facility's response to the coronavirus, often resulting in daily changes. (Doc. 110– 1, at p. 26). He further testified that quarantined offenders receive masks, as do staff members and offenders assigned to the kitchen, laundry, the infirmary, and anyone the medical director deems should wear a mask. (Doc. 110–1, at p. 33). Masks are also provided when “medically necessary.” 5 Warden Tanner admitted that all offenders in the institution could be provided with a mask, if necessary. Id. at 33–34. Additionally, the guidelines provided by the DOC list numerous precautions being taken to handle the COVID-19 outbreak within the prison system. Such guidelines are applicable at Rayburn. Inmates who are asymptomatic, but have been in close contact with an inmate or employee confirmed or suspected to have COVID-19, are required to be quarantined for a minimum of 14 days. (Doc. 108–1, at p. 9). Defendants assert that these measures are adequate to protect Plaintiff from contracting the disease.
5 This term was not defined by the Defendants.
However, Plaintiff's credible testimony paints a very different picture. For example, Plaintiff testified that the common water fountain in his dormitory is not wiped clean after each use by the inmates. He also testified that telephones in the dormitory are spaced a mere 12 inches apart and that no prisoner separation procedures have been implemented in the area of the telephones. The microwave ovens made available to the offenders are not regularly cleaned and disinfected. Also, no procedures have been implemented to avoid chokepoints in the walkways in the dormitory. According to the Plaintiff, foot traffic often results in offenders and staff “almost touching” each other. During mealtimes, inmates allegedly stand in line in the cafeteria in a heel-to-toe fashion to receive meals. After receiving their meals, inmates sit directly next to one another at tables in the cafeteria. More troubling is the Plaintiff's testimony that the inmates who serve the food only occasionally wear face masks in a proper manner while serving food. And the computers used by the inmates to communicate with family members and attorneys are not cleaned or sanitized after each use.
Plaintiff contends that Rayburn has struggled to sufficiently execute its own policies. Plaintiff's uncontroverted testimony has adequately demonstrated that, under the circumstances, his Eighth Amendment claim will likely prevail on the merits. Deliberate indifference is “a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Board of County Com'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997).
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Of particular concern to the Court is the fact that there remain several instances in which Plaintiff is seemingly unable to properly protect himself from infection, despite efforts currently being taken by the facility. For example, Plaintiff testified that while in his bunk, he is capable of touching his bunk neighbor if he reaches to his left. (Doc. 110-1, at p. 55). Also, as a diabetic, he must frequently visit the infirmary for testing and treatment. He alleges that he is required to wait in line at the infirmary in a “shoulder-to-shoulder” manner, thereby increasing the risk of contracting COVID-19. Id, at 69.
*5 The most recent policy statements provided by the Defendants, which include the DOC Medical Division's COVID-19 Guidance (the Policy) issued April 6, 2020, lists several requirements that Defendants do not appear to be following, thereby exposing Plaintiff to an unreasonable risk of serious harm. For example, the Policy requires routine and frequent cleaning of high-touch surfaces and shared resident equipment. Such cleaning must be conducted using EPA-registered hospital-grade disinfectants. (Doc. 108–1 at p. 2). On April 13, Plaintiff reported that he had received a spray-bottle to clean high-touch surfaces as contemplated. See (Doc. 112). However, a few days later, Plaintiff notified the Court that the bottle was often empty. (Doc. 113, at p. 3). He also informed the Court of several other shortcomings. For example, he alleges that two medical orderlies who work in the infirmary that he regularly visits have not worn the proper personal protective equipment recommended for protection of themselves or others who utilize the services of the infirmary. Id. Plaintiff has also allegedly witnessed officers and cafeteria workers wearing PPE incorrectly with their noses exposed from the masks. Id.
It would appear, therefore, that despite taking some steps to deter the spread of the virus, Rayburn has not effectively implemented the DOC policies that require staff members and orderlies to wear masks and other PPE to protect the prison population, including the Plaintiff. (Doc. 108–1 at p. 12–14). The prison has also failed to meaningfully implement social-distancing procedures and other measures aimed at thwarting the spread of the coronavirus. Although the DOC policy defines “social distancing,” it does not require that it be implemented at Rayburn or any other DOC facilities. Id. at 5. The Court finds it troubling that DOC officials, at least at Rayburn, have apparently disregarded the importance of social distancing in preventing the spread of this unique disease, when numerous public health officials, and the Governor of Louisiana, have consistently urged the residents of the state to observe such measures to slow the spread of the illness. 6 Defendants' failure to implement their own internal protective policies may itself entitle Plaintiff to relief from the Court. See Johnson v. Epps, 479 F. App'x 583, 590 (5th Cir. 2012) (holding that an inmate sufficiently stated a claim for deliberate indifference where prison officials adopted a policy mandating more sanitary procedures, but failed to enforce the policy).
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6 The Governor has credited social distancing practices with helping to slow the rate of new COVID-19 infections within Louisiana. See Gov. Edwards: Social Distancing Working in Coronavirus Fight (April 10, 2020), available at https://www.kalb.com/content/news/Gov-Edwards-provides-updates-on-COVID-19-onGood-Friday-569540141.html. Also, the CDC has observed that the best way to prevent contracting COVID-19 is to practice social distancing, as well as other preventative measures such as frequent hand-washing, disinfecting surfaces, and covering one's mouth and nose. See CDC: How to Protect Yourself and Others (April 13, 2020), available at https:// www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
Accordingly, the Court finds that Plaintiff has shown a substantial likelihood of prevailing on the merits of this Motion. He has also demonstrated a sufficiently substantial threat of irreparable injury if relief is not immediately ordered. The threatened injury that he has proven outweighs any harm that may result to the State if the injunction is not granted, and the injunction contemplated herein will not disserve the public. Accordingly, the Court finds that the Plaintiff has met the requirements for injunctive relief. See, Ridgely at 734.
C. Remedies
The Court will deny Plaintiff's request to modify his sentence, to include temporary release with monitoring conditions. Plaintiff's sentence was imposed by a state court, and this Court cannot now conclude that the conditions of confinement, despite the lack of sufficient precautionary measures, entitles him to immediate release. Therefore, the Court will not disturb the judgment of the sentencing court. Counsel for the Plaintiff have acknowledged that although officials have implemented several measures aimed at addressing the prevention of the coronavirus at Rayburn, more must be done, and some remedy other than Plaintiff's immediate release may be appropriate.
*6 Based on the evidence presented and the policies provided by Defendants, the Court finds that Defendants are capable of providing Plaintiff with the care necessary to protect him from COVID-19 without requiring relief in the form of temporary compassionate release during the duration of the COVID-19 crisis. Plaintiff's request to modify his sentence is therefore DENIED.
IV. CONCLUSION Defendants must comply with the Governor's recommendations and their own internal policies concerning disinfection of common areas and the wearing of masks by staff and certain categories of offenders, particularly those who work in the infirmary and cafeteria where the Plaintiff is
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assigned. Officials must also implement reasonable social-distancing measures to limit the spread of COVID-19 to the Plaintiff.
Accordingly,
IT IS ORDERED that Plaintiff's Motion for Temporary Restraining Order and/or Emergency Motion for Temporary Release (Doc. 93) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Defendants shall submit to the Court a Plan to ensure the implementation of proper hygiene practices in the dormitory in which Plaintiff is assigned, and to implement social distancing practices to limit the spread of COVID-19, as recommended by the Center For Disease Control and other public health authorities, in Plaintiff's immediate living area, for the protection of the Plaintiff. Defendants shall also submit a Plan to minimize Plaintiff's exposure to possible infected persons while visiting the infirmary and cafeteria areas of the prison.
IT IS FURTHER ORDERED that Defendants shall submit the Plan herein ordered within 5 days of the date of this Order.
IT IS FURTHER ORDERED that Plaintiff's request for an Order authorizing his immediate supervised released is DENIED.
The Parties are advised that the Court may impose additional substantive precautionary measures following its review and evaluation of the Plan.
Baton Rouge, Louisiana, this 23 rd day of April, 2020.

All Citations Slip Copy, 2020 WL 1955303
End of Document

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HIGHLIGHTS
The WHO Regional Office for the Americas has published a document providing guidance regarding the operation of immunization programs in the context of the COVID-19 pandemic. More information is available here.
The Ministry of Health, Consumer Affairs and Social Welfare of Spain has recently changed its criteria for reporting COVID-19 cases to include only those with positive polymerase chain reaction (PCR) test results. This has resulted in a retrospective decrease of 12,130 cases. Spain will continue to report only new PCR positive cases.
An update on Emergency Medical Teams, the Global Health Cluster, the Global Outbreak Alert and Response Network, and Risk Communications and Community Engagement is provided in today's 'Subject in Focus' below.

SITUATION IN NUMBERS
total (new cases in last 24 hours)
Globally 2 878 196 confirmed (85 530) 198 668 deaths (4982)
European Region 1 359 380 confirmed (29 659) 124 525 deaths (2307)
Region of the Americas 1140 520 confirmed (45 674) 58 492 deaths (2453)
Eastern Mediterranean Region 165 933 confirmed (5347) 6991 deaths (104)
Western Pacific Region 144 J.21 confirmed (]j482) 5958 deaths (15)

South-East Asia Region 46 060 confirmed (2�14) 1824 deaths (77)
African Region 21 470 confirmed (1154) 865 deaths (26)

WHO RISK ASSESSMENT

Global Level

V�ry High

Figure 1. Countries, territories or areas with reported confirmed cases of COVID-19, 27 April 2020

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Exhibit 28, World Health Organization, 2019 (COVID-19)

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KeyCite Yellow Flag - Negative Treatment Distinguished by FRANCISZEK BYSTRON, Petitioner v. ANGELA HOOVER, et al., Respondents. Additional Party Names: Simona Flores-Lund, M.D.Pa., April 27, 2020
2020 WL 1671563 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania.
BHARATKUMAR G. THAKKER, et al., Petitioners-Plaintiffs, v.
CLAIR DOLL, in his official capacity as Warden of York County Prison, et al., Respondents-Defendants.
1:20-cv-480 |
Filed 03/31/2020
Hon. John E. Jones III
MEMORANDUM AND ORDER
John E. Jones III United States District Judge
*1 Pending before the Court is the Motion for Temporary Restraining Order and/or Preliminary Injunction filed by Petitioners-Plaintiffs Bharatkumar G. Thakker, Abedodun Adebomi Idowu, Courtney Stubbs, Rigoberto Gomez Hernandez, Rodolfo Augustin Juarez Juarez, Meiling Lin, Henry Pratt, Jean HErdy Christy Augustin, Mayowa Abayomi Oyediran, Agus Prajoga, Mansyur, Catalino Domingo Gomez Lopez and Dexter Anthony Hillocks (collectively “Petitioners”). 1 (Doc. 7). The Motion has been briefed by the parties. (Docs. 12; 35; 46). The Court has received an amicus brief from a group of public health officials and human rights experts, (Doc. 36), as well as a factual update and supplemental authority filed by Petitioners. (Docs. 33 and 34). Thus, this matter is ripe for our review.
1 Petitioners' counsel advised that Mayansur and Agus Prajoga were released from immigration detention on March 27, 2020. (Doc. 33). Accordingly, their request for release from custody is moot.
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For the reasons that follow, the temporary restraining order shall be granted and the Respondents shall be directed to immediately release Petitioners today on their own recognizance.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioners are a diverse group of individuals from around the world who are being held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility, (“the Facilities”), while they await final disposition of their immigration cases.
Each Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19. Thakker is 65 years old and suffers from high blood pressure and cholesterol and has kidney failure. Further, he is currently suffering from symptoms similar to those of COVID-19. (Doc. 2, Ex. 3). Idowu, 57, had type II diabetes as well as high blood pressure and cholesterol. He is also currently sick. (Doc. 2, Ex. 4). Stubbs is 52 years old and is immunocompromised due to a kidney transplant he received 6 years ago. He has a heart stent and also suffers from type II diabetes and blood clots. (Doc. 2, Ex. 5). Hernandez, 52, suffers from diabetes, dental problems and an ulcer. (Doc. 2, Ex. 7). Juarez, 21, suffers from diabetes and is currently sick with COVID-19 type symptoms, including trouble breathing. (Doc. 2, Ex. 8). Lin is 45 years old and suffers from chronic pain due to a forced sterilization, as well as chronic hepatitis B and liver disease. (Doc. 2, Ex. 9). Pratt, age 50, suffers from diabetes and high blood pressure. (Doc. 2, Ex. 10). Augustin, 34 years old, suffers from multiple conditions including diabetes, high blood pressure, nerve pain, limited mobility and pain from a prior bladder and intestine reconstruction, anemia, PTSD and depression. (Doc. 2, Ex. 11). Oyediran is a 40-yearold asthmatic suffering from high blood pressure and cholesterol. (Doc. 2, Ex. 12). Lopez, age 51, has contracted the flu four times while in ICE custody since November of 2018 and is concerned that he is especially susceptible to contracting COVID-19. (Doc. 2, Ex. 15). Finally, Hillocks, age 54, has been diagnosed with leukemia. He also suffers from diabetes, anemia, high blood pressure and cholesterol. (Doc. 2, Ex. 16).
*2 Several Petitioners have reported symptoms similar to those of COVID-19. None have been quarantined, isolated, or treated. (Doc. 2 Exs. 3; 4; 8).
Named as Respondents are: Clair Doll, Warden of York County Prison; Angela Hoover, Warden of Clinton County Correctional Facility; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona Flores-Lund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
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II. DISCUSSION In a matter of weeks, the novel coronavirus COVID-19 has rampaged across the globe, altering the landscape of everyday American life in ways previously unimaginable. Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home. Indeed, we now live our lives by terms we had never heard of a month ago—we are “social distancing” and “flattening the curve” to combat a global pandemic 2 that has, as of the date of this writing, infected 719,700 people worldwide and killed more than 33,673. 3 Each day these statistics move exponentially higher. It is against this increasingly grim backdrop that we now consider the Petitioners' claims for habeas relief.
2 The World Health Organization (“WHO”) officially declared COVID-19 as global pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-atthe-media-briefing-on-covid-19---11-march-2020.
3 See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed March 31, 2020).
A. Threshold Questions: Standing and the Propriety of a Habeas Petition Respondents raise two threshold challenges to the Petitioners' Motion. First, Respondents contend that Petitioners lack standing because they have not alleged an injury in fact. Next, Respondents submit that Petitioners cannot challenge their conditions of confinement through a habeas petition. Taking the latter challenge first, we note that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas. See Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014); see also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005); see also Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978). Accordingly, we find that Petitioners have appropriately invoked this court's jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus.
Respondents' standing challenge can also be easily resolved. Respondents essentially contend that because the Petitioners themselves do not have COVID-19 and their likelihood of contracting the illness is speculative, Petitioners cannot establish that they would suffer a concrete, non-
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hypothetical injury absent a temporary restraining order. However, as the Supreme Court observed in 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.” The COVID-19 pandemic is moving rapidly and expansively throughout Pennsylvania. Vast regions of the Commonwealth are now under stay-at-home orders, and social distancing the norm to prevent the spread of this deadly virus. And yet, Respondents would have us offer no substantial relief to Petitioners until the pandemic erupts in our prisons. We reject this notion. Since “[a] remedy for unsafe conditions need not await a tragic event,” it is evident that the Petitioners have standing in this matter. Id.
B. Temporary Restraining Order
i. Legal Standard
*3 Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized 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); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’ ” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
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ii. Irreparable Harm
To succeed on their Motion, Petitioners “must demonstrate...the probability of irreparable harm if relief is not granted.” Frank's GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (internal quotations omitted). “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial”...the temporary restraining order...“must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). The moving party must demonstrate that it is likely to suffer “actual or imminent harm which cannot otherwise be compensated by money damages,” or it “fail[s] to sustain its substantial burden of showing irreparable harm.” Frank's GMC, 847 F.2d at 103. The mere risk of injury is insufficient. The moving party must establish that the harm is imminent and probable.
Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). Additionally, “a showing of irreparable harm is insufficient if the harm will occur only in the indefinite future. Rather, the moving party must make a clear showing of immediate irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992).
The Petitioners' claim is rooted in imminent, irreparable harm. Petitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein. It is not unlikely that COVID-19 is already present in some county prisons—we have before us declarations that portions of the Facilities have been put under ineffective quarantines due to the presence of symptoms similar to COVID-19 among the inmate population. 4 Indeed, we also have reports that a correctional officer at Pike has already tested positive for COVID-19. (Doc. 33 at 1).
4 We also have allegations that prison guards have shown symptoms while interacting with inmates.
*4 Public health officials now acknowledge that there is little that can be done to stop the spread of COVID-19 absent effective quarantines and social distancing procedures. But Petitioners are unable to keep socially distant while detained by ICE and cannot keep the detention facilities sufficiently clean to combat the spread of the virus. Based upon the nature of the virus, the allegations of current conditions in the prisons, and Petitioners' specific medical concerns, detailed below, we therefore find that Petitioners face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.
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a. Seriousness of the virus
COVID-19 is a type of highly contagious novel coronavirus that is thought to be “spreading easily and sustainably in the community.” 5 Experts believe that it can live on some surfaces for up to 72 hours after contact with an infected person. 6 A simple sneeze or brush of the face without washing your hands is now known to easily spread the virus, which generally causes fever, cough, and shortness of breath. (How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL; Doc. 12 at 15).
5 How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed March 31, 2020).
6 New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH (March 17, 2020), https://www.nih.gov/news-events/news-releases/new-coronavirus-stablehours-surfaces.
In most people, these symptoms are relatively mild. (Doc. 12 at 15). However, the effects of COVID-19 can be drastically more severe in older individuals or those with medical conditions. (Doc.2, Ex. 2). In some cases, COVID-19 can cause serious, potentially permanent, damage to lung tissue, and can require extensive use of a ventilator. (Id.). The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.). These long-term consequences and the likelihood of fatality increase in those of advanced age and those with other medical conditions, like the Petitioners here. (Id.). For those in high-risk categories, the fatality rate is thought to be approximately fifteen percent. (Id.).
There is currently no vaccine for COVID-19, nor are there known, clinically-tested therapeutic treatments. (Id.). As a result, public health officials have touted the importance of maintaining physical separation of at least six feet between individuals, now commonly known as “social distancing.” (Id.). Experts have also emphasized that proper hand hygiene with soap and water is vital to stop the spread. (Id.). Beyond these measures, health professionals can do little to combat this highly infectious disease. (Id.).
b. Prevalence of the virus
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The United States now records more confirmed cases of COVID-19 than any other country in the world. 7 As of the date of this writing, there were in excess of 164,458 cases of the virus in America, with 3,167 fatalities. 8 This represented an increase of 2,651 cases in only twenty-four hours. (Id).
7 Nicole Chavez, Holly Yan, and Madeline Holcombe, US has more Known Cases of Coronavirus than any Other Country, CNN, https://www.cnn.com/2020/03/26/health/ coronavirus-thousand-deaths-thursday/index.html (last accessed March 31, 2020).
8 Niko Kommenda, Pablo Gutiérrez, and Juweek Adolphe, Coronavirus Map of the US: Latest Cases State by State, THE GUARDIAN, https://www.theguardian.com/world/ ng-interactive/2020/mar/27/coronavirus-map-of-the-us-latest-cases-state-by-state (last accessed March 31, 2020).
Indeed, Pennsylvania currently reports 4,087 confirmed cases of COVID-19, with 48 fatalities. 9 Troublingly, that number represents nearly double the confirmed cases reported a mere four days ago—on March 27, 2020, Pennsylvania reported a total of 2,218 cases, with 22 deaths. Id. The three counties which house the Facilities are located in York County, Pike County, and Clinton County. They currently report a total of 93 cases: 54 in York County and 39 in Pike County. 10 Clinton County has not yet reported any confirmed cases of COVID-19. Id. As of March 27, 2020, the Governor of Pennsylvania placed both York County and Pike County under a stay-at-home order in an attempt to slow the spread of the virus. 11 Average Pennsylvanians in these counties can no longer leave their homes for anything but essential trips to gather supplies, medications, or to perform work essential to our national infrastructure—COVID-19 spreads so easily and rapidly that public health officials have determined that social isolation is necessary to keep our hospital systems from becoming overwhelmed. Id. The same rationale applies, perhaps even more so, to immigration detention facilities housing high-risk populations.
9 Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed March 31, 2020).
10 Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed March 31, 2020).
11 Governor Wolf and Health Secretary Expand ‘Stay at Home’ Order to Nine More Counties to Mitigate Spread of COVID-19, Counties Now Total 19, WEBSITE OF THE GOVERNOR
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OF PENNSYLVANIA, https://www.governor.pa.gov/newsroom/governor-wolf-and-healthsecretary-expand-stay-at-home-order-to-nine-more-counties-to-mitigate-spread-ofcovid-19-counties-now-total-19/ (last accessed March 31, 2020).
c. Unique nature of detention facilities
*5 Various public health officials have warned that the nature of ICE detention facilities makes them uniquely vulnerable to the rapid spread of highly contagious diseases like COVID-19. COVID-19 is transmitted primarily through “close contact via respiratory droplets produced when an infected person coughs or sneezes.” (Doc. 12 at 18; Doc. 2, Ex. 1). Immigration detention facilities are particularly at risk for such close contact because they are considered “congregate settings, or places where people live or sleep in close proximity.” (Doc. 2, Ex. 1). Such conditions provide “ideal incubation conditions” for COVID-19. (Id.).
Within the past few weeks, two medical experts for the Department of Homeland Security authored a letter to Congress warning of the unique dangers COVID-19 poses to ICE detention facilities. Specifically, they described the current ICE detention environment as a “tinderbox” in which:
[a]s local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community...To be more explicit, a detention center with a rapid outbreak could result in multiple detainees — five, ten or more — being sent to the local community hospital where there may only be six or eight ventilators over a very short period...As [hospitals] fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc). 12
The experts contrasted this scenario with a situation in which ICE detainees were released from “high risk congregate settings,” allowing the “volume of patients sent to community hospitals to level out,” which they believed would provide much more favorable outcomes, both for the detainees and the surrounding communities. Id. “At a minimum,” these health experts urged, the government “should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” Id. ICE detention facilities, they warned, are so poorly equipped to allow safe social distancing practices and are unlikely to have the ability to provide
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adequate medical care in the case of a COVID-19 outbreak. Id. The consequences, they maintain, could be disastrous. Id.
12 Catherine E. Shoichet, Doctors warn of ‘tinderbox scenario’ if coronavirus spreads in ICE detention, CNN, https://www.cnn.com/2020/03/20/health/doctors-ice-detentioncoronavirus/ (last accessed March 28, 2020).
Indeed, we have before us declarations stating that such high-risk conditions are present in the detention facilities at issue in this case. Both Petitioners and lawyers familiar with the ICE facilities at issue here have attested to overcrowding that makes social distancing impossible at all three facilities. At the York facility, for example, inmates are housed in dormitory-style conditions, in which 60 people reside in each housing block. (Doc. 2, Ex. 18). That space is used for both eating and sleeping. (Id.). Petitioners report that not even the medical staff wear gloves when in contact with inmates. (Doc. 2, Ex. 11). Detainees must eat their meals four-to-a-table, with approximately three feet of space between individuals. (Id.).
At Clinton, inmate bunks are often less than two feet apart, and inmate declarations show that it is difficult to keep more than a two feet distance between inmates, let alone the recommended six feet. (Doc. 2, Ex. 10). The laundry facilities at Clinton are also reported to be chronically broken, preventing detainees from keeping their clothes and bedding clean. (Id.). Indeed, for a total of 72 men, Clinton provides only four sets of sinks and showers. (Id.). The Facility is also reported to have bugs mice, and rats, which add to the unsanitary conditions experienced by detainees. (Id.).
*6 At Pike, detainees share eight-by-ten or twelve foot cells with two other men. (Doc. 2, Ex. 13). Those cells also contain a sink and a shower. (Id). Some men at Pike report being forced to share cells with other individuals currently exhibiting COVID-19 symptoms or report exhibiting symptoms themselves while housed with other inmates. (Doc. 2, Exs. 3; 4; 8). Inmates at Pike are also usually forced to remain within two feet of other individuals, even while in the common areas of the facility. (Doc. 2, Ex. 4). They are also required to buy their own soap, are not given hand sanitizer, and are forced to share cleaning supplies with an entire block of cells. (Doc. 2, Exs. 3; 13).
ICE guidance states that these types of risks are mitigated by quarantining detainees with symptoms and by housing those with a higher risk of exposure separately from the rest of the detainee population. (Doc. 2, Ex. 1). The Respondents further proffer that the Facilities are practicing “cohorting,” an “infection prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic.” (Doc. 35 at 12). This practice is meant to last for fourteen days, the duration of the virus's incubation period. The Petitioner's declarations, however, show that these practices are not being followed.
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At least two Petitioners aver that they are experiencing symptoms and have not been isolated from other individuals. (Doc. 2, Exs. 3; 4; 8). Furthermore, all Petitioners have a higher risk of exposure, and none have been moved to separate housing. Indeed, it does not even seem that ICE is providing detainees with proper information on how they can combat the virus on their own. (Doc. 2, Ex. 3). Troublingly, some facilities seem to have shut off detainee access to news outlets, thereby preventing the detention facility's population from informing themselves on best practices to prevent transmission. (Doc. 2, Ex. 5).
d. Petitioners are at uniquely high risk for contracting COVID-19
Not only are the Facilities themselves uniquely suited to rapidly spread COVID-19, but also Petitioners themselves are members of high-risk groups that are likely to feel the effects of the virus more keenly than the average individual. 13 Each of the Petitioners before us has an underlying medical condition that heightens their risk of serious COVID-19 effects, among them asthma, diabetes, heart conditions, hepatitis, and immunocompromising conditions such as leukemia and organ transplants.
13 People at Risk for Serious Illness from COVID-19, CENTERS FOR DISEASE CONTROL AND PREVENTION, (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/ specific-groups/high-risk-complications.html (“Older people and people of all ages with severe underlying health conditions—like heart disease, lung disease and diabetes, for example—seem to be at higher risk of developing serious COVID-19 illness”); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, CENTERS FOR DISEASE CONTROL AND PREVENTION, (Mar. 22, 2020), https://www.cdc.gov/ coronavirus/2019-ncov/hcp/underlying-conditions.html (stating that “moderate to severe asthma,” “heart disease,” “obesity,” and “diabetes” are conditions that trigger higher risk of severe illness from COVID-19).
e. The threat to high-risk individuals posed by COVID-19 constitutes irreparable injury
Various courts across the nation have found that COVID-19, coupled with the lack of hygiene and overcrowding present in detention facilities, will pose a greatly heightened risk to inmates. See Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”);
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United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. Notably, the chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)).
*7 Courts have also acknowledged the particular risks facing older inmates and those with underlying medical conditions. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk the pandemic poses to his health. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelter-in-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
Indeed, courts have even specifically held that COVID-19 constitutes an irreparable harm that supports the grant of a TRO. See Vasif “Vincent” Basank, et al v. Decker, 2020 WL 1481503 at *4-5 (S.D.N.Y. March 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020) (granting a TRO to immigration detainees due to the COVID-19 pandemic); see also Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (finding irreparable harm “premised ... upon [the district court's] finding that [Petitioner] was subject to risk of injury, infection, and humiliation”); Mayer v. Wing, 922 F.
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Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services...certainly constitutes irreparable harm.”).
The painful new reality is that we are constantly at risk of contracting a deadly virus and are experiencing previously unimagined safety measures to stop its spread. This virus spares no demographic or race and is ruthless in its assault. The precautions being adopted to stop it should apply equally, if not more so, to the most vulnerable among us. Petitioners have shown that adequate measures are not in place and cannot be taken to protect them from COVID-19 in the detention facilities, and that catastrophic results may ensue, both to Petitioners and to the communities surrounding the Facilities. We therefore find that the likely irreparable injury to Petitioners, as high-risk individuals, satisfies the first element of our TRO analysis.
iii. Likelihood of Success on the Merits
Petitioners argue that their continued incarceration in ICE detention facilities exposes them to serious risks associated with COVID-19 which violate their due process rights. (Doc. 2 at 27). We find that Petitioners are likely to succeed on the merits of their claim. 14
14 The Respondents argue that Petitioners do not have a legitimate due process claim because they have no “liberty or property interest” in a purely “discretionary grant of humanitarian parole.” (Doc. 35 at 28). We disagree. “Unsanitary, unsafe, or otherwise inadequate conditions” are sufficient to state a Due Process Claim and we shall thus proceed with our analysis. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); Grohs v. Lanigan, No. 16-7083, 2019 WL 1500621, at *11 (D.N.J. Apr. 5, 2019) (“extreme heat combined with lack of potable water, as well as generally unsanitary conditions” are sufficient to state a conditions-of-confinement claim).
To bring a Fifth Amendment due process claim, Petitioners must show that their conditions of confinement “amount[ed] to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’ ” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). In other words, we must ascertain whether the conditions serve a legitimate purpose
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and whether the conditions are rationally related to that legitimate purpose. at 232.

Hubbard 538 F.3d

*8 Considering the Facility conditions previously discussed, we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would constitute a punishment to Petitioners. Despite the Respondents' protests to the contrary, we need not find that the Facilities had the “express intent” to punish Petitioners with the conditions alleged. (Doc. 35 at 37). Instead we ask whether the

conditions are rationally related to a legitimate government objective. 232. Here, they are not.

Hubbard 538 F.3d at

The Respondents maintain that “preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective.” (Doc. 35 at 38). They cite a great deal of authority supporting this point, and we do not disagree. (Id.). However, we cannot find that unsanitary conditions, which include overcrowding and a high risk of COVID-19 transmission, are rationally related to that legitimate government objective.

Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19. Petitioners have shown that, despite their best efforts, they cannot practice these effective preventative measures in the Facilities. Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.

The global COVID-19 pandemic and the ensuing public health crisis now faced by American society have forced us all to find new ways of operating that prevent virus transmission to the greatest extent possible. We expect no less of ICE. We note that ICE has a plethora of means other than physical detention at their disposal by which they may monitor civil detainees and ensure that they are present at removal proceedings, including remote monitoring and routine check-ins. Physical detention itself will place a burden on community healthcare systems and will needlessly endanger Petitioners, prison employees, and the greater community. We cannot see the rational basis of such a risk. 15

15 Moreover, not only have Petitioners established a likelihood of success on the merits on their Fifth Amendment claim, but, in fact, they have also demonstrated that their claim is likely to be successful under the more exacting Eighth Amendment standards as well. To succeed in proving that conditions of confinement violate the Eighth Amendment, a plaintiff must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison

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official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner's health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively “sufficiently serious.” Furthermore, the Supreme Court has recognized authorities can be “deliberately indifferent to an inmate's current health problems” where they “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). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. Instead, if Petitioners can show that the conditions “pose an unreasonable risk of serious damage to their future health,” they may succeed on their claim. Helling, 509 U.S.at 35) (alteration omitted). The current measures undertaken by ICE, including “cohorting” detainees, are patently ineffective in preventing the spread of COVID-19. Indeed, we now have reports of a positive test amongst the employees at Pike County prison, thereby greatly increasing the likelihood that COVID-19 is present in the prison population.
*9 We therefore find that Petitioners are likely to succeed on the merits of their due process claim that their conditions of confinement expose them “to serious risks associated with COVID-19.” (Doc. 2 at 35).
iv. Balancing of the Equities and Public Interest
The equities at issue and public interest weigh heavily in Petitioners' favor. First, and as described, Petitioners face irreparable harm to both their constitutional rights and their health. Second, we find that the potential harm to the Respondents is limited. While we understand and agree that preventing Petitioners from absconding and ensuring their presence at immigration proceedings is important, we note that Petitioners' failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic.
Finally, the public interest favors Petitioners' release. As mentioned, Petitioners are being detained for civil violations of this country's immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of
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aging or ill civil detainees does not serve the public's interest.” Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Efforts to stop the spread of COVID-19 and promote public health are clearly in the public's best interest, and the release of these fragile Petitioners from confinement is one step further in a positive direction.
III. CONCLUSION In times such as these, we must acknowledge that the status quo of a mere few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.
Respondents' Facilities are plainly not equipped to protect Petitioners from a potentially fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious, should we fail to afford relief to Petitioners we will be a party to an unconscionable and possibly barbaric result. Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue. This is true even for those who have lost a measure of their freedom. If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize Petitioners' plight. And so we will act.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility shall be ordered to immediately release the Petitioners today on their own recognizance without fail.
*10 NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Petitioners' Motion for Temporary Restraining Order, (Doc. 7), is GRANTED.
2. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance.
3. This TRO will expire on April 13, 2020 at 5:00 p.m.
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4. No later than noon on April 7, 2020, the Respondents shall SHOW CAUSE why the TRO should not be converted into a preliminary injunction.
5. The Petitioners may file a response before the opening of business on April 10, 2020.

All Citations --- F.Supp.3d ----, 2020 WL 1671563
End of Document

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United States v. Stephens, --- F.Supp.3d ---- (2020) 2020 WL 1295155
KeyCite Yellow Flag - Negative Treatment Disagreed With by United States v. Wilburn, W.D.Pa., April 17, 2020
2020 WL 1295155 Only the Westlaw citation is currently available.
United States District Court, S.D. New York. UNITED STATES of America, v. Dante STEPHENS, Defendant. 15-cr-95 (AJN) | Signed March 18, 2020 | Filed 03/19/2020
Synopsis Background: After denial of bail, defendant filed emergency motion for reconsideration of his bail conditions.
Holdings: The District Court, Alison J. Nathan, J., held that:
[1] defendant established by clear and convincing evidence that he did not pose danger to community, and
[2] obstacles that COVID-19 pandemic posed to preparation of defendant's defense constituted compelling reason necessitating his temporary release.
Motion granted.
Procedural Posture(s): Bail or Custody Motion.
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United States v. Stephens, --- F.Supp.3d ---- (2020) 2020 WL 1295155
West Headnotes (2)
[1] Bail Evidence Defendant established by clear and convincing evidence that he did not pose danger to community, and thus was entitled to release on bail, even though government initially argued that defendant had been in possession of loaded firearm in proximity to drugs, where arresting officer had initially identified different individual as holding bag that contained firearm, and defendant had no prior convictions involving violent conduct or gun charges. 18 U.S.C.A. § 3142. 1 Cases that cite this headnote
[2] Bail Right to Release on Bail Bail Imposition of conditions in general Obstacles that COVID-19 pandemic posed to preparation of defense constituted compelling reason necessitating defendant's temporary release to custody of his mother, subject to home incarceration with GPS monitoring; pandemic compelled Bureau of Prisons (BOP) to suspend all visits—including legal visits, except as allowed on case-bycase basis—until further notice. 18 U.S.C.A. § 3142(i). 12 Cases that cite this headnote
Attorneys and Law Firms Micah William Janso Smith, Robert Wood Allen, Allison Carol Nichols, Drew Turner Johnson Skinner, Hagan Cordell Scotten, Jessica K. Feinstein, U.S. Attorney's Office, New York, NY,
OPINION & ORDER ALISON J. NATHAN, United States District Judge
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United States v. Stephens, --- F.Supp.3d ---- (2020) 2020 WL 1295155
*1 At the hearing on March 6, 2020, the Court reviewed Magistrate Judge Fox's bail determination de novo and concluded that the Defendant failed to establish by clear and convincing evidence that he did not pose a danger to the community. See March 6 Hr'g Tr. at 31:11–32:1; see also 18 U.S.C. § 3143(a)(1); Fed. R. Crim. P. 32.1(a); 18 U.S.C. § 3142. Accordingly, the Court ordered him remanded to the custody of the Bureau of Prisons (“BOP”).
On March 16, 2020, the Defendant filed an emergency motion for reconsideration of his bail conditions. See Dkt. No. 2789-1. The Court GRANTS that motion and orders the Defendant released subject to the additional conditions of 24-hour home incarceration and electronic location monitoring as directed by the Probation Department.
The Court concludes that reconsidering the Defendant's bail conditions is appropriate in light of circumstances that have changed since the March 6 hearing. Cf. 18 U.S.C. § 3142(f) (A detention hearing under 18 U.S.C. § 3142 “may be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.”). These changed circumstances are twofold. First, the strength of the primary evidence relied upon by the Government to demonstrate the danger the Defendant poses to the community has been undermined by new information not available to either party at the time of the March 6 hearing. Indeed, while the Government argued at the hearing that the Defendant's “possession of a loaded firearm in proximity to drugs ... is an inherently dangerous activity” that weighed in favor of his detention, see March 6 Hr'g Tr. at 8:23–9:3, the Court has since learned that the arresting officer—who will not testify for the Government at the hearing on the Defendant's alleged violation of supervised release—initially identified a different individual as holding the bag that contained the firearm. See Dkt. No. 2789-1 at 2. Though the Government proffers additional evidence that it will introduce at the hearing, 1 this new information nonetheless indicates that the Government's case is weaker than it believed it to be at the March 6 hearing and bears upon the Court's prior conclusion that the Defendant failed to establish by clear and convincing evidence that he did not pose a danger to the community.
1 The Government proffers that at the hearing it will offer, among other evidence, video surveillance footage, testimony of an NYPD officer who was present when the firearm was recovered and will testify that he recognizes the Defendant in the surveillance video as the individual carrying the bag containing the firearm, and testimony from the Defendant's Probation Officer, who will testify that she also identified the Defendant in the video as the individual carrying the bag containing the firearm.
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United States v. Stephens, --- F.Supp.3d ---- (2020) 2020 WL 1295155
*2 Second, since the March 6 hearing, the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent. Although there is not yet a known outbreak among the jail and prison populations, inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop. See, e.g., Joseph A. Bick, Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases 1047, 1047 (Oct. 2007), https://doi.org/10.1086/521910 (noting that in jails “[t]he probability of transmission of potentially pathogenic organisms is increased by crowding, delays in medical evaluation and treatment, rationed access to soap, water, and clean laundry, [and] insufficient infection-control expertise”); see also Claudia Lauer & Colleen Long, US Prisons, Jails On Alert for Spread of Coronavirus, Associated Press (Mar. 7, 2020). The magnitude of this risk has grown exponentially since the March 6 hearing before this Court; at the end of the day on March 6, New York State had 44 confirmed cases of COVID-19, see Andrew Cuomo (@NYGovCuomo), Twitter (Mar. 6, 2020, 4:51 PM), https://twitter.com/NYGovCuomo/ status/1236046668220567553, but by the end of the day on March 18, that number had climbed to 2,382, see Mitch Smith, et al., Tracking Every Coronavirus Case in the U.S.: Full Map, N.Y. Times, Mar. 18, 2020, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html. Though the BOP has admirably put transmission mitigation measures in place, see Federal Bureau of Prisons, Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/ news/20200313_covid-19.jsp, in the event of an outbreak at the Metropolitan Correctional Center (“MCC”) (where the Defendant is currently being detained), substantial medical and security challenges would almost certainly arise. A comprehensive view of the danger the Defendant poses to the community requires considering all factors—including this one—on a case-by-case basis. See, e.g., United States v. Raihan, No. 20-cr-68 (BMC) (JO), Dkt. No. 20 at 10:12–19 (E.D.N.Y. Mar. 12, 2020) (deciding to continue a criminal defendant on pretrial release rather than order him remanded to the Metropolitan Detention Center due, in part, to the Magistrate Judge's recognition of the fact that “[t]he more people we crowd into that facility, the more we're increasing the risk to the community”).
[1] Taken together, these changed circumstances necessitate a reconsideration of the Defendant's bail conditions. The question of whether the Defendant had met his burden to establish by clear and convincing evidence that he did not pose a danger to the community was a close one at the March 6 hearing. Indeed, Defense counsel presented ample evidence at that hearing that aside from the arrest from which the alleged violation of supervised release arises, the Defendant does not have a violent background: no prior convictions involved violent conduct or gun charges. See March 6 Hr'g Tr. at 16:18–17:14. In light of the changed circumstances discussed above, the weight of the evidence now clearly and convincingly tips in the Defendant's favor. Accordingly, based on the evidence and arguments presented at the March 6 hearing coupled with the reasons stated above, the Court concludes that the Defendant has now established by clear and convincing evidence that he does not pose a danger to the community.
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United States v. Stephens, --- F.Supp.3d ---- (2020) 2020 WL 1295155
Even if the Court were to conclude that changed circumstances did not compel reconsideration of the Defendant's bond conditions, a separate statutory ground advanced by the Defendant would require his release here. 18 U.S.C. § 3142(i) provides that, where a detention order has been issued, “a judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason.” The Government does not challenge the application of this provision—indeed, it does not address it at all in opposing the Defendant's motion, see generally Dkt. No. 2791—and the Court thus concludes that it applies here.
The text of Section 3142(i) provides that the Court may temporarily release a detained defendant to the custody of an “appropriate person” where a “compelling reason” necessitates such release. Compelling reasons may exist where release is necessary for the preparation of the defendant's defense, see 18 U.S.C. § 3142(i), or where the defendant's serious medical conditions warrant release, see, e.g., United States v. Rebollo-Andino, 312 F. App'x 346, 348 (1st Cir. 2009) (explaining that a defendant who is denied bail “retains the ability to request[,] ... in extraordinary circumstances, ... temporary release under § 3142(i)” should future developments with respect to his medical conditions so warrant); see also United States v. Birbragher, No. 07-cr-1023-(LRR), 2008 WL 1883504, at *2 (N.D. Iowa Apr. 25, 2008) (describing United States v. Scarpa, 815 F. Supp. 88 (E.D.N.Y. 1993), and United States v. Cordero Caraballo, 185 F. Supp. 2d 143 (D.P.R. 2002), as cases in which courts found “compelling reason” to temporarily release defendants due to the defendants' serious medical issues). 2 Furthermore, case law suggests that family members may constitute “appropriate persons” where the defendant is released to relatives and placed under house arrest. See Cordero Caraballo, 185 F. Supp. 2d at 145 (releasing the defendant, who the court would have detained on dangerousness grounds, to the custody of his mother and grandmother on 24-hour house arrest due to his severe injuries). “A defendant has the burden of showing that temporary release is ‘necessary ...’ under Section 3142(i).” See United States v. Dupree, 833 F. Supp. 2d 241, 246 (E.D.N.Y. 2011).
2 In a similar context, the Second Circuit has described “exceptional” reasons permitting the release of a defendant subject to mandatory detention—arguably a higher standard than “compelling” reasons—as those that “present a unique combination of circumstances giving rise to situations that are out of the ordinary.” United States v. DiSomma, 951 F.2d 494, 497 (2d Cir. 1991); see also 18 U.S.C. § 3145 (“A person subject to detention pursuant to
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United States v. Stephens, --- F.Supp.3d ---- (2020) 2020 WL 1295155
section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.”). The Second Circuit has explained that determining whether a given circumstance presents exceptional reasons under Section 3145 requires a case-by-case evaluation by the district judge and that the district judge's discretion is “constrained only
by the language of the statute: ‘exceptional reasons.’ ” DiSomma, 951 F.2d at 497.
*3 [2] The Court concludes that the Defendant has met his burden by demonstrating at least one compelling reason that also necessitates his release under this provision. Namely, the obstacles the current public health crisis poses to the preparation of the Defendant's defense constitute
a compelling reason under 18 U.S.C. § 3142(i). See id. (providing that the Court “may ... permit the temporary release of [a] person, in the custody of a United States marshal or another appropriate person, to the extent [it] determines such release to be necessary for preparation of the person's defense”). The spread of COVID-19 throughout New York State—and the country—has compelled the BOP to suspend all visits—including legal visits, except as allowed on a case-by-case basis—until further notice. See Federal Bureau of Prisons, Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp (explaining that “legal visits will be suspended for 30 days” nationwide and that “case-by-case accommodation will be accomplished at the local level”). This suspension impacts the Defendant's ability to prepare his defenses to the alleged violation of supervised release in advance of the merits hearing scheduled for March 25, 2020. Defense counsel represents that after contacting the MCC Legal Department to arrange legal calls with the Defendant, “the MCC did not permit a legal call to Mr. Stephens.” Dkt. No. 2789-1 at 10. He further proffers that other defense counsel have faced similar obstacles in attempting to communicate with their clients. Id. The Government neither responds to nor contests these factual representations, and so the Court relies upon them here. See generally Dkt. No. 2791. Thus, the Court concludes that these circumstances necessitate the Defendant's temporary release. See United States v. Persico, No. 84-cr-809 (JFK), 1986 WL 3793, at *1 (S.D.N.Y. Mar. 27, 1986) (describing cases in which “temporary releases of defendants therein were granted prior to trial in order to facilitate the defendants' expeditious preparation for trial and thus to promote the prompt disposition of the charges against each defendant” where “[t]he concern in each case was that, given the admittedly limited access to telephones and attorney conference rooms at the detention facilities, the effective preparation of a defense might have been impossible in the short time available before the commencement of trial”). 3
3 The Defendant also argues that the current public health crisis itself provides an additional compelling reason necessitating his release for all the reasons already articulated above.
Cf. Rebollo-Andino, 312 F. App'x at 348 (explaining that “extraordinary circumstances”
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related to medical conditions may necessitate temporary release under § 3142(i)). The Court need not decide this additional factor here because its determination that release is necessary for the preparation of the Defendant's defense is sufficient under § 3142(i).
The Court further concludes that the Defendant's mother constitutes an “appropriate person” within the meaning of this provision so long as the Defendant is subject to home incarceration with GPS monitoring at the residence he shares with her. See Cordero Caraballo, 185 F. Supp. 2d at 146 (finding that the defendant's mother and grandmother “qualif[ied] as third-party custodians” for purposes of the release of the defendant).
In sum, circumstances that have changed since the March 6 hearing warrant reconsideration of the Defendant's bail conditions, and the Court concludes that, in light of these changed circumstances, the Defendant has established by clear and convincing evidence that he does not pose a danger to the community. Furthermore, even were the Court to conclude that reconsideration was not warranted, compelling reasons would necessitate the Defendant's temporary release under 18 U.S.C. § 3142(i). Accordingly, the Court orders the Defendant released from the custody of the Bureau of Prisons to the custody of his mother, with whom he lives, subject to the additional conditions of supervised release of 24-hour home incarceration at his current residence in the Bronx and electronic location monitoring as directed by the Probation Department.
SO ORDERED.

All Citations --- F.Supp.3d ----, 2020 WL 1295155
End of Document

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2020 WL 1808906 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
OLIVER NISSAN AWSHANA, ALI NAJIM ALSADOON, and WISAM GHARIB HAMANA, Plaintiffs,
v. REBECCA ADDUCCI, Detroit District Director, United States Immigration
and Customs Enforcement, MATTHEW T. ALBENCE, Director, United States Immigration and Customs Enforcement, KEVIN MCALEENAN, Secretary of the United States Department of Homeland Security, and
WILLIAM P. BARR, United States Attorney General. Respondents.
Case Number 20-10699 |
04/09/2020
DAVID M. LAWSON, United States District Judge
OPINION AND ORDER DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS
*1 “[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 wellbeing.” Helling v. McKinney, 509 U.S. 25, 32 (1993) (citation omitted). Citing concerns for their safety due to potential exposure to the novel coronavirus and contracting COVID-19, petitioners Oliver Nissan Awshana, Ali Najim Al-Sadoon, and Wisam Gharib Hamana, Iraqi refugees currently detained by the United States Immigration Customs and Enforcement Agency (“ICE”), ask this Court to order their release in a petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. They base their petition on a vague reference to an undeveloped theory of substantive due process embodied in the Fifth Amendment. The government opposes their request due in part to their criminal histories that would disfavor release under normal circumstances. But these are not normal times, and the Court has the authority to order the petitioners’ release if their continued detention violates a constitutional right for which the only remedy is release. Nonetheless, the present circumstances do not warrant relief: there are no confirmed or suspected COVID-19 cases in the one of detention facilities mentioned in the
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petition, and none of the petitioners are burdened with conditions that place them in an enhanced risk category. The petition will be denied in part, but it may be renewed if conditions change. The respondents promptly must furnish additional information about the conditions at the St. Clair County Detention Facility, where COVID-19 cases have been reported.
I. The Petition
Although the petitioners have styled their petition as an “emergency,” they have not moved for a temporary restraining order or preliminary injunction or any other form of immediate consideration. The petition cites no legal authority except for references to 28 U.S.C. § 2241. The petitioners filed no memorandum of law to support their request. And they have not coupled their petition with any claim for violations of their constitutional rights under, for example, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
The government believes that the petitioners’ exclusive reliance on section 2241 is fatal to their claim. Generally, section 2241 provides a remedy for prisoners and detainees in two circumstances: (1) to “challeng[e] the execution of a sentence,” and (2) to “test the legality of a detention where [28 U.S.C.] § 2255 is otherwise inadequate.” Terrell v. United States, 564 F.3d 442, 447-48 (6th Cir. 2009). The government characterizes the petition as a challenge to the petitioners’ conditions of confinement. It argues that section 2241 cannot provide a basis for relief for such a challenge.
It is generally accepted in this circuit that section 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013) (citing Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004)). That is because the purpose of a writ of habeas corpus is to contest “the very fact or duration of...physical imprisonment.” Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007). It is employed when “the relief that [a petitioner] seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment.” Ibid. (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). If the remedy a detainee is seeking is a change in the conditions of his custody arrangements, or to obtain compensation for past unconstitutional conditions of confinement, then he must file an action under 42 U.S.C. § 1983, or for a federal detainee, under Bivens. Ibid.
*2 The petitioners here, however, are not seeking to change the conditions of their confinement or to obtain damages for past constitutional violations. Instead, they describe the close living
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conditions typical of custodial confinement, they recount the current commands for social distancing necessary to inhibit the spread of the novel coronavirus, and they argue that no custodial condition will protect them from infection. Therefore, they argue, the only remedy that will vindicate their due process right under the Fifth Amendment is release from custody.
That form of relief falls squarely within the prevue of section 2241. “The statute is an affirmative grant of power to federal courts to issue writs of habeas corpus to prisoners being held ‘in violation of the Constitution or laws or treaties of the United States.’ ” Rice v. White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting 28 U.S.C.§ 2241(c)). Courts generally look to the form of relief sought when deciding if section 2241 is applicable. In cases involving medical decisions, sometimes fine distinctions must be drawn. See Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (distinguishing between a section 2241 petitioner who requests a “quantum change in the level of custody, which must be addressed by habeas corpus,” and a petitioner who requests “a different program or location or environment, which raises a civil rights claim” and holding that “[i]f an inmate establishe[s] 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.” (citation omitted)); cf. Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“[L]eav[ing] to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.” (citation omitted)). But section 2241 has been pressed into service in medical condition cases where the line of demarcation is fuzzy. See Roba v. United States, 604 F.2d 215, 218-19 (2d Cir. 1979) (allowing a section 2241 petition to challenge an inmate’s “transfer while seriously ill” where that transfer posed a risk of fatal heart failure).
Other courts that have granted relief to detainees based on the current pandemic have relied on section 2241 for their authority. Most of them, however, also have considered coordinated
requests for a temporary restraining order and the attending relevant equitable factors. See Jones v. Wolf, No. 20-361, 2020 WL 1643857 (W.D.N.Y. Apr. 2, 2020); Basank v. Decker, No. 20-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Coronel v. Decker, ---F.Supp.3d---, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020).
The petitioners allege that their continued detention violates their constitutional right under the Fifth Amendment, which forbids depriving a person of life, liberty, or property without due process of law. They contend that their continued detention will compromise their health and may kill them. They are entitled to advance their claim — and seek release from custody — under section 2241.
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II. Immigration Status and Constitutional Detention
The petitioners are natives and citizens of Iraq admitted at various times to the United States as refugees. The statuses of Awshana and Hamana were adjusted to lawful permanent residents. All three were placed in removal proceedings because of criminal convictions. And all eventually were scheduled for deportations, which were stayed when Immigration Judges granted requests for withholding of removal under the Immigration and Naturalization Act, the United Nations Convention Against Torture, or both.
*3 Congress has prescribed that once an alien has been ordered to be deported, “the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’).” 8 U.S.C. § 1231(a)(1)(A). During this removal period, “the Attorney General shall detain the alien.” Id. § 1231(a)(2). Congress has authorized the Attorney General (now the Secretary of the Department of Homeland Security) to detain certain aliens beyond the 90-day removal period under certain circumstances. Id. § 1231(a)(6). “By its terms, this provision applies to three categories of aliens: (1) those ordered removed who are inadmissible under § 1182, (2) those ordered removed who are removable under § 1227(a)(1)(C), § 1227(a)(2), or § 1227(a)(4), and (3) those ordered removed whom the Secretary determines to be either a risk to the community or a flight risk.” Clark v. Martinez, 543 U.S. 371,377 (2005). The petitioners here all fall within the second category, and possibly the third as well.
Detention of removable aliens, however, must be consistent with the Constitution. The protection of the Fifth Amendment’s Due Process Clause applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001). The petitioners allege that their continued detention during the COVID-19 pandemic violates their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution because it jeopardizes their health and medical wellbeing.
It is well known that the State “has an ‘obligation to provide medical care for those whom it is punishing by incarceration.’ ” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (quoting
Estelle v. Gamble, 429 U.S. 97, 103 (1976)). “[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”
Helling, 509 U.S. at 31.
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However, claims by detainees for due process violations emanating from confinement conditions are not strictly governed by the Eighth Amendment, because the detainees do not stand convicted and are not subject to punishment. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). A detainee’s rights are at least as great as the Eighth Amendment protections available to a convicted prisoner. Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004) (holding that civil detainees are entitled to superior conditions of confinement than prisoners and pretrial detainees). Nonetheless, claims relating to health concerns by detainees are analyzed using an Eighth-Amendment, deliberate-indifference framework. Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001).
That framework calls for proof that detention officials were deliberately indifferent to a substantial risk of harm. Farmer v. Brennan, 511 U.S. 825, 837–38 (1994). The applicable test has two elements. Id. at 834. First, the petitioners must demonstrate that the constitutional deprivation was “objectively, ‘sufficiently serious.’ ” Ibid. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, they must demonstrate that the detention official had a “sufficiently culpable state of mind.” Ibid. This element can be proven by circumstantial evidence from which the fact finder can conclude that the state actor perceived the risk, Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001), or “from the very fact that the risk was obvious.” Terrance v. Northville Reg’l Psychiatric Hospital, 286 F.3d 834, 843 (6th Cir. 2002).
In Helling v. McKinney, the Supreme Court held that a prisoner could state a claim under the Eighth Amendment by alleging that officials “exposed him to levels of [environmental tobacco smoke] that pose[d] an unreasonable risk of serious damage to his future health.” 509 U.S. at 35. To satisfy the objective prong, the plaintiff had to show both that he was “being exposed to unreasonably high levels of [environmental tobacco smoke]” and that “society consider[ed] the risk that the prisoner complain[ed] of to be so grave that it violate[d] contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. at 35, 36 (emphasis in original). The plaintiff must produce “more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood [of] injury.” Id. at 36. To succeed on the subjective prong, the plaintiff had to show that “the prison authorities’ current attitude and conduct” amounted to deliberate indifference. Ibid.
*4 However, “a remedy for unsafe conditions need not await a tragic event,” and the plaintiff need not allege present harm to succeed on an unconstitutional conditions claim. Id. at 33. In Helling, the Court rejected the government’s argument that the plaintiff’s claim was not cognizable
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because he had not alleged any present harm. The Court explained that the government may not “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.” Ibid. The Court noted some examples of circumstances where inmates may obtain injunctive relief to remedy life-threatening conditions even though “nothing yet had happened to them.” Ibid. One example was the “exposure of inmates to serious, communicable disease [even if the] inmate shows no serious current symptoms.” Ibid.
III. COVID-19 Pandemic and Detention Facilities
A. Novel Coronavirus in Michigan
On March 22, 2020, the Governor of Michigan announced that “[t]he novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spreads from person to person. There is currently no approved vaccine or antiviral treatment for this disease.” Executive Order, No. 2020-20, Mar. 22, 2020, https://www.michigan.gov/ whitmer/0,9309,7-387-90499_90705-522626--,00.html. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, estimated that between 100,000 and 240,000 people will die from COVID-19 related complications. Michael D. Shear et al., Coronavirus May Kill 100,000 to 240,000 in U.S. Despite Actions, Officials Say, N.Y. Times, Mar. 31, 2020, https:// www.nytimes.com/2020/03/31/us/politics/coronavirus-death-toll-united-states.html.
The Centers for Disease Control and Prevention (CDC) advised that “[p]eople aged 65 years and older” might be at higher risk for severe illness from COVID-19. See People Who Are at Higher Risk for Severe Illness, Ctrs. for Disease Control and Prevention (Mar. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/ people-at-higher-risk.html? CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus %2F2019ncov%2Fspecific-groups%2Fhigh-risk-complications.html. The CDC identified other high-risk conditions, which include: [p]eople with chronic lung disease or moderate to severe asthma[; p]eople who have serious heart conditions[; p]eople who are immunocompromised...[; p]eople of any age with severe obesity (body mass index [BMI] of 40 or higher)[; p]eople with diabetes[; p]eople with chronic kidney disease undergoing dialysis[; or p]eople with liver disease.” People Who Are at Higher Risk for Severe Illness, supra.
On March 10, 2020, the Governor of Michigan announced the state’s first two cases of COVID-19 and simultaneously declared a state of emergency. Executive Order, No. 2020-4 (Mar. 10,
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2020). The number of new cases is growing exponentially. As of today, that number is now at 20,346 confirmed cases and 959 known related deaths. See Coronavirus, Michigan.Gov, https:// www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--,00.html. COVID-19 has a high risk of transmission, and the number and rate of confirmed cases indicate broad community spread. Ibid.
B. ICE Detention Facilities
The parties paint very different pictures of the conditions within the ICE detention facilities. The government argues that the situation is no worse than what is occurring throughout the rest of the world. But the petitioners argue that the packed, unsanitary conditions at the facilities are completely inadequate, warning that they will become breeding grounds for the disease.
1. ICE Facility Conditions
As of March 30, 2020, when the respondents filed their answer to the petition, there have been no suspected or confirmed cases of COVID-19 in either the Calhoun or St. Clair County detention centers. However, the Court learned from the U.S. Marshal Service that confirmed cases were reported by the St. Clair County Jail on April 8, 2020. The petitioners argue that the poor conditions in the facility will compromise their safety and that exposure to the virus while detained within ICE’s facilities is inevitable.
*5 Relying on the following articles from major news outlets, the petitioners believe that ICE detention facilities are rife with overcrowding, neglect, and substandard conditions, making them hotbeds for the virus:
1. Human Rights Watch & American Civil Liberties Union, Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention (June 2018) ECF No. 1-4. (Since March 2010, 74 detainees have died in ICE custody; medical care lapses contributed to 23 of them);
2. Amanda Holpuch, Coronavirus Inevitable in Prison-Like US Immigration Centers, Doctors Say, THE GUARDIAN, ECF No. 1-5;
3. Former ICE Director: Release Immigrants from Detention or COVID-19 Will Spread Like Wildfire Inside, DEMOCRACYNOW, ECF No. 14-1;
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4. Ken Klippenstein, Exclusive: ICE Detainees Are Being Quarantined, THE NATION, ECF No. 14-3 (ICE has been quarantining detainees at 10 different facilities, suggesting that there may be outbreaks);
5. Scott A. Allen & Josiah D. Rich, Letter to House Committee on Homeland Security, ECF No. 14-4 (letter from infectious disease specialists urging immediate mitigation strategies to slow the spread of COVID-19 within immigration detention facilities);
6. Julie Mack, Another Big Jump in Michigan Coronavirus Numbers: Now at 2,295 Cases; 43 Deaths, MLIVE (Mar. 25, 2020), ECF No. 14-5;
7. Open Letter to ICE from [3,014] Medical Professionals Regarding COVID-19, ECF No. 14-6, at PageID.398 (urging the release of “[i]ndividuals and families, particularly the most vulnerable – the elderly, pregnant women, people with serious mental illness, and those at higher risk of complications”);
8. Dara Lind, ICE Detainee Says Migrants Are Going on a Hunger Strike for Soap, PROBULICA, ECF No. 14-6; and 9. Gregory Bull, Coronavirus: SF D.A., Activists, Doctors Call for Undocumented Immigrants’ Release, ASSOCIATED PRESS, ECF No. 14-11.
On March 23, 2020, the Centers for Disease Control and Prevention (CDC) acknowledged that detention facilities “present [ ] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/ correction-detention/guidance-correctional-detention.html. “The CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/ detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing).” United States v. Kennedy, No. 18-20315, 2020 WL 1493481, at *2 (E.D. Mich. Mar. 27, 2020) (Levy, J.).
Both detention facilities at issue — Calhoun and St. Clair — are located within jail complexes where vendors, visitors, attorneys, clergy, and correctional facility staff come and go on a daily basis, according to the petitioners. The government advises, however, that visits are restricted
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presently and inmates have no direct contact with people from outside the facilities. The petitioners maintain that there is no coronavirus screening testing for new detainees, nor is there coronavirus testing provided to the facility staff. ICE reported that coronavirus testing is provided only when symptoms manifest, which, according to the World Health Organization, is 5 to 14 days after the virus is contracted.
*6 Awshana and Hamana are both detained in the Calhoun Facility. The facility has two types of dorms. The first type contains 30 to 40 cells that house two people each. The second type of dorm “has simple bed rows that each have 8 to 16 people.” All detainees share common eating and social areas. The petitioners report that they have no masks to wear, people come and go every day, they must share five phones among each other, and there is only one sink for everyone to wash their hands. Although the facility has hand sanitizer, detainees are not allowed access to it after 5:00 p.m. They wear the same jumpsuits every day, which are washed twice a week. The petitioners allege that the facilities in the St. Clair County jail, where Al-Sadoon is held, “are virtually identical to those at Calhoun County.”
Through this morning, Calhoun County has reported 541 total cases of COVID-19 and one death, and St. Clair County reported 140 cases and 3 deaths. See Coronavirus, Michigan.Gov, https:// www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--,00.html
2. Steps Taken to Ameliorate the Situation
Jennifer Moon, the Deputy Assistant Director for Healthcare Compliance with ICE Health Service Corps (IHSC), filed a declaration describing the steps ICE has taken to stem the spread of COVID-19 within the Calhoun and St. Clair County detention facilities.
Following guidance from the CDC, facility staff assess detainees for fever and respiratory illness during intake medical screenings. Detainees are also asked if they traveled through areas with sustained community spread or if they had close contact with anyone with a laboratory-confirmed COVID-19 diagnosis within the past two weeks. Asymptomatic detainees with known exposure to COVID-19 “are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness.” Those detainees who present with symptoms associated with COVID-19 are placed in isolation where they will be tested. And if they test positive, they will remain isolated, treated, and hospitalized if necessary. And on Friday, March 13, 2020, the Federal Bureau of Prisons announced that incarcerated people will not be allowed visits from
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family, friends, and attorneys for 30 days. Federal Bureau of Prison Action Plan, Federal Bureau of Prisons, (Mar. 13, 2020), https://www.bop.gov/resources/news/ 20200313_covid-19.jsp.
The facilities, working with their local Health Departments, also provide staff and detainee services to help curb the spread of the virus. Calhoun County and St. Clair County provide education on COVID-19, which includes guidance on identifying symptoms and the importance of hygiene. The facilities also provide daily access to sick calls, specialty services, and hospital care.
ICE also insists that the conditions at the detention facilities are adequate. The facilities maintain “populations within their approved capacities and are not overcrowded.” And they both provide “disinfectants, soap, and personal protective equipment when needed.”
IV. Petitioners’ Individual Circumstances
The petitioners argue that the conditions at the Calhoun and St. Clair detention centers subject them to a heightened risk of contracting COVID-19, going so far as calling the facilities soon-to-be “death camps.” That language does little to advance the arguments, but the Court is mindful of the petitioners’ legitimate concern — shared by society in general — over minimizing exposure to the novel coronavirus. The increasing number of courts that have addressed pleas for release because of the fear of COVID-19 infection have ruled both ways, denying relief when the concern is too generalized, and granting relief when specific and heightened risks of exposure to complications have been shown. Courts have been more inclined to grant relief where the detention facility has reported confirmed cases of COVID 19 or where the petitioners fall into one of the high-risk categories for COVID-19. See decisions granting relief: Jones, 2020 WL 1643857 (W.D.N.Y.) (granting relief for detainees with chronic medical conditions held in a detention facility with no confirmed COVID-19 cases); Basank, 2020 WL 1481503 (S.D.N.Y.) (granting relief for detainees with chronic medical conditions held in a facility with confirmed cases of COVID-19);
Coronel, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) (same); Malam v. Adducci, --- F. Supp. 3d ---, No. 20-10829, 2020 WL 1672662, at *1 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (granting relief for petitioner in high-risk category but held in facility with no confirmed cases); and see decisions denying relief: Dawson v. Asher, No. 20-0409, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020) (denying petition where petitioners were not in high-risk group and no detainees or staff at the facility at issue tested positive for COVID-19); Sacal-Micha v. Longoria, No. 20-37, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020) (same); Xuyue Zhang v. Barr, 2020 WL 1502607, at *4 (C.D. Cal. Mar. 27, 2020) (denying relief for petitioners in high-risk categories held a detention facility with no confirmed cases of COVID-19).
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*7 That pattern is consistent with a deliberate indifference analysis. Objectively, the health risks posed by COVID-19 are abundantly clear. The parties do not dispute that the virus is particularly dangerous to those over 65 years old or with certain underlying health conditions. See People Who Are at Higher Risk for Severe Illness, supra. There is no vaccine to prevent COVID-19, nor is there a known cure or antiviral treatment at this time. Ibid. Dr. Fauci estimated on March 31, 2020, that between 100,000 and 240,000 will die of COVID-19. Shear et al., supra. And the Southern and Western Districts of New York have “take[en] judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality.” Basank, 2020 WL 1481503, at *3 (S.D.N.Y.); Jones, 2020 WL 1643857, at *8 (W.D.N.Y.).
The petitioners are also housed in a manner that increases their risk of exposure to the coronavirus. They are held in the general population of the Calhoun County and St. Clair County detention centers, use shared restrooms, and are confined in shared cells or dorm-style housing. Government experts agree that such a communal style of living can increase the infection rate. See Former ICE Director: Release Immigrants from Detention or COVID-19 Will Spread Like Wildfire Inside, DEMOCRACYNOW, ECF No. 14-1; FAQs for administrators, staff, people who are incarcerated, families, Ctrs. for Disease Control and Prevention (Mar. 28, 2020), https:// www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/faq.html.
However, unlike the petitioners in the cases for which courts granted relief, the petitioners in this case do not allege that they are in a high-risk category as defined by the CDC. Petitioners Awshana and Hamana, presently detained at the Calhoun County Detention Center, have not alleged that any detainees or staff have tested positive for the illness in that detention facility. The petitioners assert generally that they “are older adults and/or people with medical conditions who are at particularly grave risk of severe illness or death if they contract COVID-19.” But they never have alleged that any of them suffered from a medical condition that placed them in a high-risk category, per the CDC’s guidelines. As of July 2019, Hamana was 39 years old. And although the parties never stated the Awshana’s age, he never claimed that he was over 45. See People Who Are at Higher Risk for Severe Illness, supra. Despite Awshana’s assertions that his medical condition has deteriorated over the past two weeks, he was given consistent medical attention. After visiting the clinic at the Calhoun facility six times over the course of nine days, medical staff never noted that he presented any symptoms beyond seasonal allergies or dehydration. Although the seriousness of the pandemic cannot be doubted, petitioners Awshana and Hamana are in an objectively better situation than the petitioners in Jones, Basank, and Coronel, who were either in high-risk categories, were held in facilities with confirmed cases, or both.
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Petitioner Al-Sadoon’s circumstances are different, because the United States Marshal reported on Wednesday that two inmates at the St. Clair County jail tested positive for COVID-19. An ICE Assistant Field Office Director reports that each inmate was isolated in his respective housing unit, and that Al-Sadoon does not reside in either unit. No further information was provided. The government will be required promptly to investigate and report to the Court and petitioners’ counsel the details. Al-Sadoon has not alleged that he falls in one of the high-risk categories that portend complications from a coronavirus infection. He is approximately 32 years old.
*8 To satisfy the subjective element of their claim, the petitioners must demonstrate that the government subjected them to objectively poor confinement conditions with deliberate indifference to their health and safety. Farmer, 511 U.S. at 834. There is no doubt that the respondents are aware of the grave threat posed by the pandemic and the exacerbated risk caused by the close quarters of the detention facilities. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/ correction-detention/ guidance-correctional-detention.html (last visited April 8, 2020) (explaining that measures ordered by the CDC to reduce person-to-person contact present unique challenges for prisons and detention facilities, because “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced”).
According to Deputy Assistant Director Moon, the government has put in place specific measures to stem the spread of the pandemic. Following CDC guidance, Calhoun and St. Clair facility staff assess detainees for fever and respiratory illness during intake medical screenings and ask about any possible exposure to the virus. Those with confirmed exposure will be segregated in separate cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee). And the government will place detainees who present with COVID-19 symptoms in isolation where they are tested and treated if necessary. However, while these measures are certainly commendable, “the fact is that none of the steps [taken]...includes the ‘social distancing measures recommended — especially for highrisk individuals — by the CDC...” Jones, 2020 WL 1643857, at *10 (W.D.N.Y.). It is unlikely that any operating detention facility will be able to achieve that goal.
V. Release as a Remedy
The premise of this habeas corpus petition is that the conditions of confinement in these ICE detention facilities are so intolerable because of the risk of contracting COVID-19 that release is
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the only remedy. With appropriate proof, that may indeed be true. But the petitioners have leveled only generalized allegations; if those were deemed sufficient, then all inmates would be entitled to release until the pandemic subsides. The petitioners have not stated as much in so many words, but neither have they attempted to articulate any limiting principle.
Limits, however, are imposed by the Due Process Clause itself, and the manner of its application. The seminal case dealing with the constitutionality of conditions of confinement of non-convicted detainees is Bell v. Wolfish, 441 U.S. 520 (1979). There, the Supreme Court held that such claims are governed by the Due Process Clause, a proposition that is now well accepted. See, e.g., Phillips v. Roane County, 534 F.3d 531, 539 (6th Cir. 2008) (reiterating that when a conditions-of-confinement claim “is asserted on behalf of a pre-trial detainee, the Due Process Clause...is the proper starting point”). But the Court also emphasized that those constitutional rights implicated by conditions of confinement, when analyzed for pretrial detainees under the Due Process Clause, must be balanced against the “Government[’s]...legitimate interests that stem from its need to manage the facility in which the individual is detained.” Bell, 441 U.S. at 540. Courts, therefore, must strike a balance “between institutional needs and objectives and the provisions of the Constitution that are of general application.” Id. at 546 (quoting Wolff v. McDonell, 418 U.S. 539, 556 (1974)). In striking that balance, courts must give great deference to the custodians “in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security,” id. at 547, lest courts become “enmeshed in the minutiae of prison operations.” Id. at 562.
*9 The institutional interests here circle back to ICE’s interest in continuing the detention of those removable aliens whom the Secretary determines “to be a risk to the community or unlikely to comply with the order of removal.” 8 U.S.C. § 1231(a)(6). When considering the remedy of a complete release from detention (albeit with conditions for supervision), the Court must strike a balance between the gravity of the risk of contracting COVID-19 (with uncertain outcomes for recovery and a path that could lead to death) with the danger to the public that could result from releasing the petitioners into the community. The petitioners each contend that they are neither a danger nor a flight risk. In light of those arguments, it is relevant to review their backgrounds. The following information came from the petition and declarations furnished by the respondents.
A. Oliver Nissan Awshana
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According to the declaration of deportation officer Christopher Labadini, Oliver Nisan Awshana came to the United States as a refugee on April 20, 2009, and became a lawful permanent resident on January 21, 2011. He has not revealed his age, but there is no allegation that he is over 45 years old.
1. Immigration Proceedings
Awshana was convicted of possession of cocaine and two counts of retail fraud in the second degree in state court. Due to his convictions, the Bureau of Immigrations and Customs Enforcement (ICE) detained Awshana in April 2018 and placed him in removal proceedings under 8 U.S.C. § 1227(a)(2). He filed applications for relief from removal, but the Immigration Court denied them on August 2, 2018, and ordered him deported to Iraq. Awshana’s removal was scheduled to occur on April 23, 2019.
On April 1, 2019, Awshana filed a petition for a writ of habeas corpus in the Northern District of Ohio under 28 U.S.C. § 2241. He argued that his continued detention under 8 U.S.C. § 1231(a) was unlawful and that he should be released from ICE custody because the United States was unable to obtain travel documents necessary to remove him to Iraq. The district court in Ohio denied the petition on July 10, 2019.
ICE began the physical removal process on April 23, 2019, flying Awshana from Detroit to Chicago. But Awshana “refus[ed]” to board the plane for his trip to Iraq from Chicago. So ICE transferred him to the Calhoun County Detention Center in Battle Creek, Michigan, where he remains in custody.
Three days later, on April 26, Awshana filed two motions with the Immigration Court in Detroit, Michigan: the first to reopen his case, and the second to stay his removal proceedings. On April 30, 2019, the Immigration Court granted Awshana’s motion to stay his removal, and on May 14, 2019, the court reopened his immigration case.
After holding hearings in November and December 2019, the Immigration Court issued a written decision on February 4, 2020, granting Awshana’s applications for withholding of removal under the Immigration and Nationality Act and alternatively withholding removal under the United Nations Convention Against Torture due to the deteriorating conditions in Iraq. The court concluded that Awshana would face torture and persecution in Iraq because he is a Christian, he will be identified as a supporter of the United States, and he has no social network to protect him
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in Iraq. ICE then filed a notice of appeal with the Board of Immigration Appeals (BIA) on March 3, 2020. The appeal currently is pending, awaiting the issuance of the BIA’s briefing schedule and hearing transcripts.
2. Medical History at Calhoun Detention Facility
In a reply to the government’s response, Awshana asserts that his medical condition has deteriorated over the past two weeks while at the Calhoun Detention Center. His attorney alleges that when she visited him on March 20, 2020, he looked “sick.” He allegedly had a fever, a runny nose, and a cough, and he had difficulty swallowing, was sweating profusely, and was slightly jaundiced. The government adamantly disputes this account, contending that attending nurses saw nothing wrong with Awshana, aside from seasonal allergies and dehydration. The government detailed Awshana’s recent medical history in its sur-reply:
*10 March 20, 2020: Awshana visited the clinic complaining of a stuffy nose and nausea that started the day before. He denied being around anyone that had been sick. “The practitioner noted that it appears Awshana has allergic rhinitis and that there are no signs of infection.” He was prescribed Cetirizine for his allergy symptoms and was told to increase his fluids.
March 24, 2020: Awshana visited the clinic complaining about sneezing and fatigue. He denied having a cough or nausea. He stated that he gets dizzy after laying down and rising quickly. He also admitted that he had only been drinking three glasses of water because it tastes bad.
March 25, 2020: Awshana visited the clinic for unusual behavior. He denied feeling suicidal or homicidal. But he reported feeling anxious and wanted to be released.
March 26, 2020: He visited the clinic again for unusual behavior. He complained of “feeling bad,” that his ears were plugged, and that he had been coughing. No cough was noted during the encounter. He was housed and placed in observation.
March 26, 2020: Awshana returned to the clinic by the request of command staff, as he had been kiting the night before stating that he needed to go to the hospital. He appeared very anxious, had no fever, was slightly tachycardic, and said he was not sleeping. He did not cough during the exam or observation period. He received an x-ray of his chest, which came back normal. He was cleared and returned to general population.
March 29, 2020: Awshana visited the clinic complaining about a cold or the flu. He claimed that he had a fever, chills, nasal drainage, and a cough. A physical exam showed that his vital
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signs were fine, and the nurse did not detect a cough, runny nose, or congestion. No signs or symptoms of a cold or the flu were noted.
B. Ali Najim Al-Sadoon
Ali Najim Al-Sadoon is an Iraqi Shi’a Muslim. He and his family fled Iraq and sought refuge in the United States on June 23, 1994. He is roughly 32 years old. He has not identified any health problems.
1. Immigration Proceedings
After being convicted of safe breaking and breaking and entering in state court, ICE initiated removal proceedings against Al-Sadoon on August 20, 2013, charging him as removable under 8 U.S.C. §§ 1227(a)(2). He did not contest the charges. While Al-Sadoon was serving his sentence, an Immigration Judge in Detroit ordered him removed on March 24, 2015. Al-Sadoon waived his right to appeal the decision and was transferred from the custody of the Michigan Department of Corrections (MDOC) to ICE on May 17, 2016.
Al-Sadoon moved to reopen his removal proceedings in September 2017, and an Immigration Judge denied the motion on November 8, 2017. Al-Sadoon appealed the decision to the BIA but withdrew his appeal on August 31, 2018.
In the meantime, Al-Sadoon was a member of a class action lawsuit filed in this Court in 2018 in which Iraqi aliens in ICE custody sought a writ of habeas corpus to preclude their detention pending removal. See Hamama v. Adducci, No. 17-11910 (E.D. Mich.) (Goldsmith J.). Judge Goldsmith granted the petitioners’ motion for a preliminary injunction on November 20, 2018. See Hamama v. Adduci, 349 F. Supp. 3d 665 (E.D. Mich. 2018) (Goldsmith, J.), vacated and remanded, 946 F.3d 875 (6th Cir. 2020). Per the order, ICE released Al-Sadoon from custody and placed him on a GPS tether.
*11 The Iraqi government then issued a one-way Laissez-Passer travel document for Al-Sadoon’s removal on March 13, 2019. The travel document was valid for six months.
Al-Sadoon was ordered to report to the Detroit Metropolitan Airport on June 23, 2019, at 4:00 p.m. for removal. But he had filed on June 20, 2019 in the Immigration Court in Detroit a motion to
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reopen and a motion to stay his removal. Because he had not yet heard from the immigration court, Al-Sadoon cut his tether on the morning of June 23 and did not report to the airport as instructed. The immigration court denied Al-Sadoon’s motion to reopen removal proceedings on June 25. ICE officers found Al-Sadoon at his house about a month later on July 26, 2019. He barricaded himself in his home using a couch and a washing machine. A Special Response Team had to break in to arrest him.
The government filed a criminal complaint charging Al-Sadoon with hampering removal in violation of 8 U.S.C. 1253(a)(1)(C). The court denied bond on August 5, 2019, finding that Al-Sadoon was a flight risk and danger to the community. The court eventually dismissed the indictment on the government’s motion “to allow ICE to effectuate [Al-Sadoon’s] removal.”
Al-Sadoon was then re-detained by ICE on December 18, 2019. But on January 10, 2020, the BIA granted Al-Sadoon’s request for a stay of removal, pending the decision of Al-Sadoon’s appeal of the immigration court’s June 25, 2019, denial of his motion to reopen removal proceedings. AlSadoon’s removal, which was planned on January 12, 2020, was therefore cancelled.
Al-Sadoon currently is detained at the St Clair Detention Center. Most recently, on February 14, 2020, Judge Goldsmith explicitly authorized his continued detention in a sealed order in the ongoing class action.
2. Criminal History In addition to the hampering removal charge, Al-Sadoon has an extensive criminal history.
He has been arrested for the following conduct:
August 2, 2001: arrested by Dearborn, Michigan, police for “an offense related to a stolen vehicle.” Al-Sadoon received a juvenile order of guilt for receiving and concealing stolen property valued at $20,000 or more; December 6, 2003: arrested by Detroit, Michigan, police for “a public order crime”; December 9, 2004: arrested by Dearborn police and convicted of unlawfully taking a motor vehicle without authority;
December 4, 2006: arrested and convicted of “domestic violence in Detroit”; January 23, 2007: arrested by Detroit police and convicted of “larceny in a building and breaking and entering a building”;
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July 6, 2007: arrested by Detroit police “for an offense relating to assault”; July 7, 2007: arrested by Dearborn police and convicted of “operating a vehicle with no license or multiple licenses”;
July 17, 2007: arrested by Detroit police “for a traffic offense”; September 26, 2007: arrested by Detroit police for an “offense related to the obstruction of justice”;
December 3, 2007: arrested by Detroit police for “an offense related to robbery”; June 8, 2008: arrested by Detroit police “for a public peace offense”; June 23, 2008: arrested by Detroit police for “a dangerous drugs offense”; August 14, 2008: arrested by Detroit police and convicted of “breaking and entering by illegal entry without the owner’s permission”;
*12 October 19, 2008: arrested by Detroit police for “an offense related to burglary”; December 4, 2008: arrested by the Detroit police for “an offense related to obstruction of justice”;
December 9, 2008: arrested by Detroit police for “a traffic offense”; January 9, 2009: arrested by Detroit police for “an armed robbery offense”; January 29, 2009: arrested by the Westland, Michigan, police “for a traffic offense”; February 20, 2009: arrested by the Dearborn police for traffic and controlled substance related offenses, resulting in a conviction of “operating a vehicle with a suspended, revoked or denied license”;
March 28, 2009: arrested by Sidney, Ohio, police and convicted of “fleeing a police officer in a vehicle”;
April 9, 2009: arrested by Dearborn police and convicted of “fleeing a police officer in a vehicle”;
April 15, 2009: arrested by Dearborn police and convicted of “operating while intoxicated and controlled substance possession”; June 5, 2009: arrested by Dearborn police and convicted of “operating a vehicle with no license or multiple licenses”;
June 15, 2011: arrested by Wayne, Michigan, police and convicted of “breaking and entering outside a showcase”;
September 27, 2011: arrested by Dearborn police for a “public peace offense”; October 26, 2011: arrested by the Dearborn police department for safe-breaking — convicted and sentenced to three years and six months to 15 years imprisonment with the MDOC; and
April 16, 2012: arrested by Redford, Michigan, police for breaking and entering — convicted and sentenced as a habitual offender to three years and six months to 15 years imprisonment with the MDOC.
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The last two convictions were the basis of the removal proceedings.
C. Wisam Gharib Hamana
Wisam Gharib Hamana is an Iraqi Christian who, along with his family, was granted asylum in 1983. He is around 39 years old. He left Iraq when he was eight weeks old. He does not speak Arabic or Chaldean fluently and knows little about Iraqi social and cultural norms. On July 27, 1984, he became a lawful permanent resident of the United States. He has not identified any health problems.
1. Immigration Proceedings
ICE began removal proceedings against Hamana on August 6, 2010, charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) and (B)(i) based on convictions of “controlled substance offenses,” receiving and concealing stolen property, and retail fraud. On September 29, 2010, an immigration judge ordered his removal from the United States. The case was reopened in August 2017, and on February 26, 2018, an Immigration Judge again ordered his removal.
Like Al-Sadoon, Hamana was a class member in the Hamama class action before Judge Goldsmith. After Judge Goldsmith granted the petitioners’ motion for a preliminary injunction on November 20, 2018, ICE released Hamana from custody on December 19, 2018, and placed him on a GPS tether.
On March 13, 2019, the Iraqi government issued a one-way, Laissez-Passer travel document for Hamana’s removal from the United States, which was valid for six months. ICE scheduled Hamana’s removal to begin on June 25, 2019, and instructed him to meet ICE officers at the Detroit Metropolitan Airport that day at 3:30 p.m.
*13 Hamana filed a motion to reopen and a motion to stay his removal with the immigration court in Detroit on June 18, 2019, several days before he was scheduled to leave. The immigration court denied both motions on June 24, 2019. Hamana appealed, and the BIA denied his request to stay his removal proceedings pending his appeal of the Immigration Court’s decisions.
Hamana never reported to the airport on June 25, 2019, as ordered. Instead, he cut his tether around 6:40 p.m. Acting on a complaint and warrant charging him with hampering removal in violation
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of 8 U.S.C. 1253(a)(1)(C), ICE found Hamana and arrested him about a month later on July 22, 2019. Hamana was arrested without further incident. Two days later, a magistrate judge in this district detained Hamana pending trial on his criminal charges, finding that he was a flight risk and posed a danger to the community. Hamana was indicted on the hampering removal charge on August 6, 2019.
On November 25, 2019, the Iraqi government issued another six-month travel document for Hamana’s removal. ICE arranged to deport him on February 9, 2020, and the government dismissed its indictment against him on January 8, 2020, to facilitate his removal.
ICE re-detained Hamana on January 14, 2020. But days before his second deportation date, Hamana filed a supplemental motion with the BIA for an emergency stay on February 6, 2020. He argued that his family had been granted the right to emigrate to Italy before coming to the United States and asked that he be removed there instead of Iraq. Luck was on his side, it seems, because the next day, the flight that ICE booked to remove him was cancelled. And that same day — February 7, 2020 — the BIA granted Hamana’s request to stay removal pending his appeal of the Immigration Court’s June 24, 2019, denial of his motion to reopen removal proceedings.
Hamana currently is detained by ICE at the Calhoun County Detention Facility. Most recently, on March 31, 2020, Judge Goldsmith explicitly authorized his continued detention in a sealed order in the ongoing class action.
2. Criminal History In addition to his hampering removal, it appears that Hamana also has a criminal record:
July 21, 1998: arrested by Troy, Michigan, police and convicted of “retail fraud”; June 7, 2002: arrested by Oakland County, Michigan, sheriffs and convicted of “receiving and concealing stolen property”;
July 13, 2002: arrested by the Warren police and convicted of “controlled substance
offenses”;
July 24, 2003: arrested by Hazel Park, Michigan, police and convicted of “disorderly conduct”;
July 19, 2010: arrested by Warren police and convicted of “assault with a dangerous weapon and controlled substance possession”;
October 21, 2011: arrested by Warren police and convicted of “assault with a dangerous weapon”; and
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January 18, 2013: arrested by Detroit police and convicted of “receiving and concealing a motor vehicle.”
The first three entries are the convictions that served as a basis for Hamana’s removal.
* * * * *
In normal times, the petitioners’ respective criminal records, interference with supervision, and resistance to lawful deportation orders would justify their continued detention. When striking the balance between ICE’s institutional need for continued detention and the petitioners’ legitimate concerns over an unreasonable risk of serious damage to their future health, it is fair to require the petitioners to articulate something more than a generalized fear of exposure to disease in a detention facility. That only makes sense, since “the requirements of due process are fluid and fact dependent.” Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015). A detainee who poses a greater flight risk or danger to the community will need to make a stronger showing of risk to his life and health to win release.
*14 In their criticism of the government, the petitioners point only to the lack of social distancing measures implemented at the facilities. They have not argued that the government ignored their high-risk status, failed to treat someone suffering from COVID-19 adequately, or ignored the threat level when someone associated with the detention facilities tested positive for the virus. In fact, the briefings reveal the opposite. The Calhoun facility medical staff were attentive to Awshana’s complaints, caring for him each time he visited the clinic, monitoring his condition, providing advice about managing his hydration levels, and giving him allergy medications.
To prevail, the petitioners must show that the government, “with deliberate indifference, exposed [them] to [an environment] that pose[s] an unreasonable risk of serious damage to [their] future health.” Helling, 509 U.S. at 35. Petitioners Awshana and Hamana have not done so; they have not offered specific proof that the respondents’ facilities “[are] incapable of protecting [them] from contracting COVID-19 or providing appropriate medical attention should [they] be infected.” Sacal-Micha, 2020 WL 1518861, *5 (S.D. Tex.). The petitioners offer only conclusory arguments based on articles regarding the contagious nature of COVID-19 and the potential to spread in detention facilities. But none of the exhibits concern the Calhoun or St. Clair detention centers specifically. The relatively healthy petitioners are left with the argument that the government acted with deliberate indifference by failing to implement social distancing measures in its facilities in which no one tested positive for COVID-19.
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OLIVER NISSAN AWSHANA, ALI NAJIM AL-SADOON, and..., --- F.Supp.3d ---- (2020) 2020 WL 1808906
More information is needed to assess petitioner Al-Sadoon’ claim.
VI. Conclusion
The petitioners understandably seek release from their crowded detention facilities as the world reels from the effects of the global coronavirus pandemic. And courts across the country have released inmates and civil detainees to stem the spread of COVID-19. But in the immigration context, courts have released only those individuals who fell within one of the CDC’s high-risk categories, were housed in detention facilities with confirmed cases, or both. Petitioners Awshana and Hamana do not fit this mold: they are relatively healthy people detained in facilities with no confirmed cases. And when one of them sought medical attention, it was promptly provided. Petitioners Awshana and Hamana have not shown that the are in custody in violation of the Constitution. Therefore, they are not entitled to relief under 28 U.S.C. § 2241.
Petitioner Al-Sadoon’s claim is on a slightly different footing. There are reports of a confirmed case of COVID-19 at the St. Clair County detention facility. That changes the nature of the concern beyond mere generalities. But more information is required to determine if release is an appropriate remedy.
Accordingly, it is ORDERED the petition for a writ of habeas corpus (ECF No. 1) is DENIED as to petitioners Oliver Nissan Awshana and Wisam Gharib Hamana, only.
It is further ORDERED that the respondents must furnish to the Court and petitioners’ counsel by noon on Friday, April 10, 2020, detailed information describing the extent of CIVID-198 infestation at the St. Clair County jail, including the number of suspected and confirmed cases, the location of the infected inmates, whether petitioner Al-Sadoon was present in any areas visited by the infected inmates within the last 14 days, the steps taken to address the infections, the number of inmates in each housing unit (including the housing units where those inmates with confirmed COVID-19 cases are quarantined), and all remedial measures undertaken at the facility in light of the presence confirmed or suspected cases.
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OLIVER NISSAN AWSHANA, ALI NAJIM AL-SADOON, and..., --- F.Supp.3d ---- (2020) 2020 WL 1808906
*15 It is further ORDERED that petitioners Awshana and Hamana may reapply for appropriate relief under this case number of conditions at the Calhoun County Detention Facility change with respect to suspected or confirmed cases of COVID-19 at that facility.
s/David M. Lawson

DAVID M. LAWSON United States District Judge Dated: April 9, 2020 All Citations --- F.Supp.3d ----, 2020 WL 1808906
End of Document

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Case 2:20-cv-11053-MAG-RSW EMaCnFvilNle,oD. a2n2ie-l343/28/f2i0le20d 05/04/20 PageID.1116 Page 1 of 10
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United States v. Patino, Slip Copy (2020) 2020 WL 1676766
2020 WL 1676766 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
UNITED STATES of America, Plaintiff, v.
Francisco PATINO, M.D., Defendant.
Case No. 18-cr-20451 |
Signed 04/06/2020
Attorneys and Law Firms
Jacob Foster, Claire Sobczak, Shankar Ramamurthy, Thomas Tynan, US Department of Justice, Detroit, MI, Malisa Chokshi Dubal, U.S. Department of Justice Fraud Section, Washington, DC, for Plaintiff.
David A. Nacht, Nacht & Roumel, PC, Ann Arbor, MI, Adam Ratliff, Warner Norcross & Judd LLP, Southfield, MI, Brian P. Lennon, Warner Norcross + Judd LLP, Grand Rapids, MI, for Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR PRETRIAL RELEASE PENDING TRIAL [ECF No. 111]
DENISE PAGE HOOD, UNITED STATES DISTRICT JUDGE
I. Introduction *1 On March 31, 2020, Defendant filed a Motion for Pretrial Release Pending Trial. ECF No. 111. The Government has filed a response.
II. Background On June 26, 2018, the grand jury returned an Indictment charging Defendant, a 63-year old man, with one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, two counts of health care fraud, in violation 18 U.S.C. § 1347, one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and one count of receipt of a kickback in connection
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with a federal health care program, in violation of 42 U.S.C. § 1320a-7(b)(1)(A). On February 25, 2020, the Grand Jury returned a Superseding Indictment, which added a wire fraud object to the conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349 (thus increasing the statutory maximum on that count from ten to twenty years). The Superseding Indictment also added one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and a substantive count of money laundering. The conspiracy to commit money laundering count has a statutory maximum of twenty years.
On July 4, 2018, the Magistrate Judge ordered Defendant be detained pending trial. ECF No. 15. The Magistrate Judge found that the Government established by a preponderance of the evidence that Defendant is a flight risk based on the weight of the evidence against Defendant being strong and the fact that Defendant is subjection to a lengthy period of incarceration if convicted. The Magistrate Judge also concluded that the Government established by clear and convincing evidence that there is no condition or combination of conditions that will reasonably assure that Defendant will refrain from obstructing justice.
The Court subsequently denied Defendant’s Emergency Motion for a Six-Day Furlough, concluding that there is no condition or combination of conditions of release that would reasonably assure Defendant’s appearance if the Emergency Motion was granted. ECF No. 38. The Court stated:
The Court’s review of the Magistrate Judge’s Order of Detention and the Pretrial Services’ Report establishes that there is no condition or combination of conditions which will reasonably assure the appearance of Patino. Although Patino represents that he is willing to surrender both his U.S. Passport and passport card, he still retains both of them. More significantly, the Government has proffered that Patino lied numerous times during his interview with Pretrial Services, including: (a) grossly misrepresenting the number of recent international trips he took (Patino said two in the last four years, whereas it was 11 trips over the last eight years) and failing to tell Pretrial Services that he had been to the Cayman Islands three times recently; (b) lying or failing to mention his involvement with FDRS Diagnostics; (c) stating that his income was about $300,000/year, when there were years he made about $900,000; and (d) failing to disclose substantial assets in cash, potentially over $2,000,000, including more than $400,000 withdrawn from accounts in cash in 2017 and 2018.
*2 Patino is 63 years old and is subject to a lengthy period of incarceration (up to 40 years) if convicted. Notwithstanding the fact that his accounts have been frozen by the Government in this country, Patino seemingly has access to substantial sums of money in offshore accounts, including the Cayman Islands where he has traveled in recent years (but failed to mention as
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much in talking to Pretrial Services). The Court notes that Patino is not asking to attend services in the Eastern District of Michigan, to which his travel generally would be limited even if he were to be released on unsecured bond. Rather, he is seeking to fly to Miami, Florida, far from the Court’s jurisdiction and closer to his native Cuba. In addition, Pretrial Services has represented to the Government that Pretrial Services would not be able to effectively supervise Patino in Miami, Florida with a GPS tether, the only method of supervised release proposed by Patino.
ECF No. 38, PgID 288-89.
Defendant later filed a Motion for Revocation of Detention Order. ECF No. 42. The Court denied that motion on March 27, 2019, concluding:
The Court finds that the Government has shown by a preponderance of evidence that Defendant is a risk of flight and to obstruct justice if he is released. There is evidence that: (1) significant sums of Defendant’s funds are not accounted for; (2) Defendant made misrepresentations to Pretrial Services, including regarding his income and his international travel; (3) Defendant made false statements to State of Michigan regulators, including false statements made to state investigators on August 26, 2016 about his use of injections; and (4) Defendant lied at the hearing regarding the ownership of FDRS, specifically, that Defendant knew Campbell had an ownership interest in FDRS for a period of time. A grand jury has determined that there is probable cause to support a finding that Defendant engaged in conduct to mislead and defraud throughout the alleged scheme for which he has been indicted. And, if convicted, it is possible and perhaps likely that Defendant will spend the rest of his life in prison.
The Court also finds that the Government has shown by clear and convincing evidence that Defendant is a danger to the community. As the reports of interviews with numerous witnesses reflect, Defendant has threatened or sought to cause physical harm to several persons, including Burns, Rashid, an associate of Burns, someone who had cheated Defendant on a deal, and a medical provider who threatened to alert the authorities of Defendant’s conduct.
For the reasons stated, after considering the Section 3142(g) factors, the Court finds that no set of conditions will reasonably assure the appearance of the person and the safety of the community and Orders that Defendant remain detained pending trial. See 18 U.S.C. § 3142(f).
ECF No. 56, PgID 806-07.
On April 2, 2020, the Court and the parties received an updated Pretrial Services report on Defendant. That updated report concludes:
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As noted in the Order issued by Your Honor on March 27, 2019, “Defendant made misrepresentations to Pretrial Services, including regarding his income and his international travel.” Pretrial Services believes the defendant poses a risk of nonappearance and danger to the community. There is no condition or combination of conditions that will reasonably assure the safety of the community and the defendant’s appearance in court as requested. Therefore, Pretrial Services respectfully recommends that the defendant be detained.
III. Analysis
A. Release from Detention In his present motion, Defendant states:
The exponential proliferation of the COVID-19 pandemic in the United States has materially changed the calculus for determining whether a non-violent detainee such as Mr. Patino can safely remain in the general prison population versus on pre-trial release pending sentence. He cannot. Mr. Patino therefore should be immediately released.
*3 Mr. Patino is vulnerable to COVID-19. The Centers for Disease Control and Prevention (“CDC”) have issued guidance recommending social distancing, limiting gatherings to groups of less than 10 (if necessary at all), and avoiding all nonessential travel. CDC and medical professionals have also warned that the older [o]r immunocompromised (or both) populations are at increased risk of complications or death resulting from COVID-19. Mr. Patino is at high risk due to stage 3 chronic kidney disease and hypertension, and his age (63 years old).
Detention exacerbates the threat of contracting COVID-19. As this Court is certainly aware, and as detailed below, this country is undergoing a serious pandemic. In every aspect of society, individuals and officials recognize that “business per usual” must be dramatically altered; otherwise the impact of the pandemic will be far worse than with such changes. As numerous news reports reflect, officials around the country are recognizing that the criminal justice system is an area requiring immediate systematic change in response to the crisis. The threat to the jail population (and thus indirectly, to the community as a whole) has led jail officials to reduce inmate populations through early release and led prosecuting agencies to rely on summonses, rather than arrest, and to forestall on less serious cases.
This new information bears on the issue of whether Mr. Patino’s short term release is appropriate in response to the COVID-19 pandemic and considering the foregoing health and safety concerns posed by incarceration at the FCI Milan Detention facility. The defense requests an order of short-term, temporary release subject to whatever conditions the Court deems
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appropriate, including location monitoring (home incarceration), and the appointment of a thirdparty custodian who will reside with Mr. Patino. Further, the global pandemic has resulted in heightened security and travel restrictions worldwide. These restrictions eliminate the risk that Mr. Patino can flee. Nor would he. Federal and state governments throughout the country have take—and are expected to take additional steps to limit international, domestic, and local travel for nonessential purposes.
Keeping Mr. Patino detained at this time unnecessarily and cruelly exposes him to a pandemic that not even the finest hospitals around the world are equipped to handle. The best defense against COVID-19 is to prevent contraction in the first place. His release on the condition of home confinement (and quarantine) to the custody of a custodian—and whatever other reasonable conditions this Court sets—better assures his safety and appearance at trial.
The Government responds that Defendant’s motion should be denied. The Government cites the Court’s two prior decisions denying Defendant’s requests for release from detention, and it asserts that, since the Court’s March 27, 2019 Order denying revocation of the detention order, Defendant’s motive to flee and obstruct justice has only increased. As to the latter, the Government accurately states that four persons accused of substantively similar charges for actions tied to Defendant were recently convicted of similar charges, and the grand jury recently returned a Superseding Indictment with additional crimes that carry even longer potential penalties.
*4 In response to Defendant’s COVID-19 argument, the Government states that an “individualized assessment of the factors” applicable to defendants is required, not a categorical release on broadly formulated criteria. Relying on United States v. Martin, No. 19-cr-140-13, 2020 WL 1274857, at *3 (D. Md. Mar. 17, 2020) (denying release pending appeal on COVID-19 grounds). The Government argues that this Court, like other courts that have recently considered similar arguments, should reject Defendant’s attempt to use the COVID-19 epidemic as a basis for pre-trial release. Citing United States v. Woods, 4:19-cr-20112 (E.D. Mich. March 28, 2020) (ECF # 258 at 9); United States v. Martin, 19-cr-140-13 (D. Md. March 17, 2020) (ECF # 209); United States v. Isbell, 1:10-cr-10002 (W.D. Tenn. March 20, 2020) (ECF # 31); United States v. Gileno, 3:19-cr-00161 (D. Conn. March 19, 2020) (ECF # 28).
The Government asserts that Defendant does not cite any case law in support of his motion for release and the risk of contracting COVID-19 is “not the sole determinant of whether detention is appropriate.” Citing United States v. Jones, Crim. No. 17-582, 2020 WL 1323109, at *1 (D. Md. Mar. 20, 2020) (rejecting release requested by incarcerated pregnant detainee on grounds that she is “at increased risk of contracting COVID-19”). The Government contends that federal courts have generally rejected release based on the risk of contracting COVID-19, focusing on the individual
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factors applicable to each pretrial detainee and the ability of correctional facilities to respond to the risk of COVID-19 infection. Citing Martin, 19-cr-140-13 (denying detention appeal and holding that allegations of defendants medical conditions including high blood pressure, asthma, and diabetes “insufficient to rebut” government proffer that “correctional and medical staff ... are implementing precautionary and monitoring practices sufficient to protect detainees from exposure to COVID-19.”); Isbell, 1:10-cr-10002 (denying motion for pretrial release based on COVID-19 in part because the government described “various precautions” the facility had taken to prevent the spread of COVID-19); Gileno, 3:19-cr-00161 (denying motion to amend sentence to allow for early release where defendant had not “shown that the plan proposed by the Bureau of Prisons is inadequate to manage the pandemic ... or that the facility is specifically unable to adequately treat” him.); Woods, 4:19-cr-20112, at 9 (“the COVID-19 pandemic cannot be the sole basis for releasing a defendant from custody pending trial; the Court must still consider the Section 3142(g) factors.”).
The Government states that efforts to reduce pretrial inmate populations on COVID-19 grounds have centered on low-risk offenders, not persons like Defendant, charged with felonies and facing lengthy terms of imprisonment. The Government states that Defendant is not a low-level offender, contemnor, or probation violator; rather, if convicted of the felony charges against him, he would receive a de facto life sentence. The Government submits that releasing this Defendant would signal that almost any health care fraud offender should be entitled to temporary release.
The Government notes that Defendant asserts that he has stage 3 chronic kidney disease and hypertension, but the Government asserts that Defendant provides no evidence to substantiate the existence of this condition or its severity. 1 The Government argues that the courts in Martin, Isbell, and Gileno considered similar requests for release from defendants with serious health conditions, including asthma, high blood pressure, and diabetes; congestive heart failure, chronic obstructive pulmonary disease, a tumor on the spine, and a heart blockage. Martin, 19-cr-140-13 at 8; Isbell, 10-cr-10002 at 4; Gileno, 3:19-cr-00161 at 4. The Government also argues that FDC Milan (Milan or the “Facility”) has implemented reasonable precautionary and monitoring practices, including locking down the Facility, in an effort to protect detainees from excessive exposure to COVID-19. 2
1 The Government accurately states that Defendant raised these same issues at his original detention hearing over one year ago but failed to produce documentation to support his assertions. The Government states that, despite Defendant claims that he is at a high risk of serious illness from COVID-19 (or the many other ailments to which the Defendant’s alleged
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condition might make him more vulnerable), Defendant has not alleged that he asked to be placed in medical isolation.
2 The Government argues: As of March 31, the BOP announced that it was confining all inmates to their cells for 14 days to prevent any potential spread of the virus. https://www.bop.gov/resources/ news/pdfs/20200331_press_release_action_plan_ 5.pdf. The confinement of Defendant will minimize the risk of contracting COVID-19. This is particularly true because Rashid is relatively young and doesn't have any of the medical conditions that place an individual at greater risk from COVID-19. Previously, officials at FDC Milan instituted other precautionary measures to reduce the risk of infection at the detention center in the interest of both inmates and staff. 1 Sanitation efforts were increased. Quarantine and isolation areas were identified for anyone exhibiting signs or symptoms. Operations and programs were modified in order to assist with social distancing efforts. A comprehensive procedure for daily health monitoring was established for those inmates who leave the facility and have contact with the community, for example during an emergency medical trip. Additionally, onsite medical services have been available at the Health Services department at FCI Milan, which is currently accredited by the Accreditation Association for Ambulatory Healthcare. Moreover, the Bureau of Prisons had implemented precautionary measures across all BOP facilities, including FDC Milan, to reduce the risk of a COVID-19 outbreak. Those included rules and limitations on inmate movement and health screening, visitation (suspended), sanitation, and screening of correctional officers and staff. https:// www.bop.gov/coronavirus/covid19_status.jsp. 1 Information regarding the precautionary measures at FDC Milan was provided on March 27, 2020 by a Bureau of Prisons (BOP) attorney. The Bureau of Prison also maintains updated information regarding its COVID-19 Action Plan at its public website: https:// www.bop.gov/coronavirus/.
ECF No. 475, PgID 6792-93 (emphasis in original).
*5 Finally, the Government argues that the ability of Pretrial Services and other law enforcement officials to safely monitor Defendant if released has been greatly diminished as a result of the COVID-19 epidemic. 3 Citing Ellis, Case No. 2:20-cr-20002, at 5-6 (“the Government persuasively argues that granting [defendant’s] requested relief may well endanger the public, pretrial services officers, and local law enforcement officers who are already operating under the strain of limited resources.”).
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3 The Court notes that Pretrial Services and the Probation Department are adequately supervising clients during this crisis, including through the use of new and innovative means of monitoring clients and their conditions.
The Government argues that Defendant’s case is unlike the Kennedy case for three reasons. First, it asserts the nature of the offenses at issue here are more serious than the probation violation at issue in Kennedy. Second, Judge Levy in Kennedy determined that the defendant was not a risk of flight or public safety risk, but noting that this Court previously found the opposite in regard to Defendant. Third, unlike the Defendant in Kennedy, who provided credible evidence of untreated flulike symptoms and was coughing audibly during the bond review hearing, Defendant has presented no evidence that he is infected or at a specific risk of infection.
The Court is now familiar with the concerns and arguments regarding continued detention in light of COVID-19. As to the concerns regarding COVID-19 that pertain to this Defendant, the Court recognizes that Defendant is 63 years old, and it does appear that Defendant has been treated for high blood pressure (hypertension). See, e.g., ECF No. 52, PgID 702, 739, 741. Both of those factors may place Defendant in a category of persons with a heightened risk if infected with COVID-19. Defendant has not in the past, and has not in support of this motion, shown that he has been diagnosed with Stage 3 kidney disease by any treating physician. See, e.g., ECF No. 52, PgID 701-02 (Transcript of January 25, 2019 Hearing) (admitting that he had not made any formal complaints at Milan, where he was housed, related to Stage 3 kidney disease; he had only talked to the doctor there about it). Accordingly, the Court does not consider Defendant’s assertion of kidney disease in determining Defendant’s motion.
As set forth above, this Court has previously denied Defendant's release from detention for a number of reasons, including the charges against him, his threats against others, the numerous instances of lying to government agencies, and unaccounted for sums of money. In those instances, the Court concluded that there was clear and convincing evidence that there were no conditions that could reasonably assure the safety of the community and Defendant’s appearance. Those reasons for continued detention remain relevant and controlling, even after consideration of the effects and dangers of COVID-19.
*6 Defendant is facing a number of felony charges, for which he will likely serve the rest of his life in prison if convicted. Four other defendant physicians, many of whom testified that they were advised by or learned from Defendant, were recently convicted of health care fraud, in part for administering medically unnecessary and painful facet joint injections to their patients, the same type of conduct for which Defendant is being prosecuted. It is also true that one of his alleged
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co-conspirators, Mashiyat Rashid, testified against those four defendants and, Defendant believes, will testify against Defendant at his trial.
Based on Defendant’s history of interaction with and lies to governmental agencies, his threats of harm to others, the charges against him – in particular the sentences he faces if convicted, the risk of danger to the community, and his motivation for and risk of non-appearance in the future due to the length of his sentence and other reasons noted previously, the Court concludes that Defendant is not a good candidate for temporary release from detention, even during the current COVID-19 pandemic. Accordingly, the Court denies Defendant’s request for release from detention pending trial.
B. Directive to the BOP Defendant alternatively requests an order from this Court directing the United States Marshal (Bureau of Prisons) to ensure the following necessary life-saving safety measures are in place to protect him (and other federal pretrial detainees) from the devastating impact of COVID-19:
1. Screen Defendant for symptoms of COVID-19 daily and if there signs or symptoms, administer a COVID-19 test kit within 24 hours.
2. Ensure Defendant remains at least six feet away from any other person unless necessary to administer health care or in the course of an emergency.
3. No shared housing or transportation that requires proximity to others of less than six feet.
4. Provision of hygiene items, to include at a minimum: tissues, hand sanitizer containing at least 60% alcohol, disinfecting wipes, soap, disposable latex gloves and face masks.
5. All areas where the defendant is housed or transported shall be cleaned and disinfected prior to the defendant being housed or transported there. Afterward, whenever a person other than the defendant enters the area, the area shall be cleaned and disinfected.
6. Clean and disinfect his cell every 24 hours, at a minimum, regardless of whether anyone else has entered the area. Defendant shall also be permitted to disinfect his own cell with disinfecting wipes.
7. Defendant’s clothing, linens, towels and any other porous items shall be cleaned and disinfected daily.
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8. Defendant shall be permitted to wash his hands regularly and thoroughly with an alcoholbased hand rub or soap and water.
As set forth above, Defendant is housed at Milan and that Facility has undertaken numerous safeguards against interaction of prisoners, namely locking prisoners down in their cells. Under those safeguards, it does not seem likely that Defendant will interact with other persons, except for Facility personnel, who will be screened and monitored. And, as a general rule, the Court lacks authority to direct the operations of the Bureau of Prisons. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (“We should not be too ready to exercise oversight and put aside the judgment of prison administrators.”); Crowe v. United States, 430 F. App'x 484, 485 (6th Cir. 2011) (“a federal court lacks authority to review a decision by the BOP to not seek a compassionate release for an inmate”); Vida v. Cage, 385 F.2d 408, 409 (6th Cir. 1967) (“The prison authorities [have] the right to adopt reasonable restrictions governing the conduct of inmates [or visitors] and the Courts ought not to interfere with prison operations in the absence of constitutional deprivation.”).
*7 For the foregoing reasons, and in the absence of evidence (or even allegations) that the Bureau of Prisons at Milan is not endeavoring to ensure the safety of its prisoners, generally – and Defendant, specifically, the Court will not order the Bureau of Prisons at Milan to provide specific care to Defendant, some of which may not even be possible because of other dangers.

IV. Conclusion Accordingly, and for the reasons stated above,
IT IS ORDERED that Motion for Pretrial Release Pending Trial [ECF No. 111] is DENIED.
IT IS ORDERED.

All Citations Slip Copy, 2020 WL 1676766
End of Document

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Case 2:20-cv-11053-MAG-RSW MEaCnvFilleN, oD.an2i2el-34/428/2f0il2e0d 05/04/20 PageID.1126 Page 1 of 7
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United States v. Kennedy, Slip Copy (2020) 2020 WL 1493481
KeyCite Yellow Flag - Negative Treatment Disagreed With by United States v. Thomas, N.D.Tex., April 3, 2020
2020 WL 1493481 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
UNITED STATES of America, Plaintiff, v.
Keith KENNEDY (D-3), Defendant.
Case No. 18-20315 |
Signed 03/27/2020
Attorneys and Law Firms
Christopher Graveline, United States Attorney's Office, Detroit, MI, for Plaintiff.
ORDER TEMPORARILY REVOKING DETENTION
JUDITH E. LEVY, United States District Judge
*1 On March 11, 2020 Magistrate Judge David Grand detained Defendant Keith Kennedy subject to a bond review hearing before Judge Judith Levy. (See ECF No. 71.) Judge Grand detained Defendant due to several violations of his pretrial release conditions, including the following: failing several drug screens, failing to report to pretrial services, failing to report to inpatient substance abuse treatment, and failing to report for a bond review hearing. (Seeid.; ECF No. 58.) On March 26, 2020, the Court conducted a bond reviewing hearing of Defendant’s confinement at the Saginaw County Jail. The hearing took place telephonically due to federal, state, and court stay-at-home directives in response to the COVID-19 pandemic.
The Court is authorized to revisit the Magistrate Judge’s order pursuant to 18 U.S.C. § 3145(b). As set forth below, the Court finds that it is necessary to temporarily release Defendant, pursuant to 18 U.S.C. § 3142(i)(4), see infra pg. 8, for two reasons. First, under the facts of this case, the danger posed to Defendant in the Saginaw County Jail by the COVID-19 pandemic constitutes an independent compelling reason to temporarily release him from custody. Second, temporary release is necessary for Defendant to prepare his pre-sentencing defense.
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BACKGROUND On March 22, 2020, the Governor of Michigan issued the following statement: “The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.” Executive Order, No. 2020-20 (Mar. 22, 2020).
Since March 11, 2020, the date of Defendant’s hearing before Magistrate Judge Grand, the exceptionally dangerous nature of the COVID-19 pandemic has become apparent. On March 10, 2020, the Governor of Michigan announced the state’s first two cases of COVID-19 and simultaneously declared a State of Emergency. Executive Order, No. 2020-4 (Mar. 10, 2020). The number of new cases is growing exponentially. As of March 27, 2020, that number is now at 3,657 confirmed cases and 92 known related deaths. See Coronavirus, Michigan.Gov, https://www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--,00.html. COVID-19 has a high risk of transmission, and the number and rate of confirmed cases indicate broad community spread. Executive Order, No. 2020-20 (Mar. 22, 2020). Indeed, as of March 27, 2020, Michigan jails are attempting to lower their detained populations “as officials scramble to remove people thought to be at high risk of contracting the coronavirus, but little risk to the general public if they were not behind bars.” James David Dickson, Jail populations plunge in Metro Detroit as coronavirus spreads, Detroit News (March 27, 2020), https://www.detroitnews.com/story/news/local/macomb-county/2020/03/27/ jail-populations-plunge-metro-detroit-coronavirus-spreads/2914358001/. Defendant’s case fits this description.
*2 On March 23, 2020, the Centers for Disease Control and Prevention (CDC) acknowledged that correctional and detention facilities “present[ ] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html [Hereinafter “CDC Guidance 3/23/2020”]. Specifically, the CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing). Id.
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The CDC recommended that all correctional facilities take preventative measures, including: ensuring an adequate supply of hygiene and medical supplies, allowing for alcohol-based sanitizer throughout facilities, providing no-cost soap to all inmates for frequent handwashing, cleaning and disinfecting frequently touched surfaces several times per day, performing pre-intake screening and temperature checks for all new entrants, increasing space between all detained persons to at least six feet, staggering meals, and having healthcare staff perform regular rounds. Id. Even if all of the CDC’s interim recommendations are followed, and this record suggests that they are not, the Court is concerned that such measures will prove insufficient to stem deadly outbreaks. See, e.g., New York City Board of Correction Calls for City to Begin Releasing People From Jail as Part of Public Health Response to COVID-19, N.Y.C. Bd. of Corr. (Mar. 17, 2020), https://www1.nyc.gov/assets/boc/downloads/pdf/News/2020.03.17% 20-% 20Board% 20of% 20Correction% 20Statement% 20re% 20Release.pdf (arguing that, despite the “heroic work” of Department of Correction and Correctional Health Services staff “to prevent the transmission of COVID-19 in the jails and maintain safe and humane operations, the City must drastically reduce the number of people in jail right now and limit new admissions to exceptional circumstances”). Indeed, on March 26, 2020, Attorney General Barr issued a separate directive ordering the Director of the Bureau of Prisons to “prioritiz[e] home confinement as appropriate in response to the COVID-19 pandemic ... to protect the health and safety of BOP personnel and the people in our custody.” Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic, Att'y Gen. (Mar. 26, 2020).
Research shows that prisoners and jail inmates are more likely than the general population to report experiencing infectious diseases, indicating that these individuals face a heightened risk during this pandemic. 1 Laura M. Maruschak et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Department of Justice, Bureau of Justice Statistics, (2016), https:// www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf.
1 As of March 26, 2020, there have been fourteen confirmed cases of a Michigan prisoner testing positive for COVID-19, up from one case on March 24, 2020. Gus Burns, Michigan prisons prep for possibility of coronavirus outbreak among inmate population, M-Live (Mar. 26, 2020), https://www.mlive.com/public-interest/2020/03/michigan-prisonsprep-for-possibility-of-coronavirus-spread-among-inmate-population.html.
*3 By way of example, Michigan prisons are beginning to prepare “contingency plans” for extreme outbreaks, but the evidence suggests that it is only a matter of time before a deadly outbreak occurs for which the prison system is woefully unprepared. See id. ( [The Michigan Department of Corrections spokesperson] “said administrators haven't projected how many inmates might eventually contract the highly contagious virus, and he didn't immediately
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know how much quarantine space is available throughout the prison network.”) Because many individuals infected with COVID-19 do not display symptoms, the virus will almost certainly be present in jails and prisons before cases are formally identified.
During the March 26 hearing, Defendant credibly testified that he has conditions which render him particularly vulnerable to COVID-19. Defendant, who was audibly ill with congestion and who coughed intermittently throughout the call, testified that he is exhibiting flu-like symptoms. Defendant also credibly testified that Saginaw County Jail has not been treating his underlying conditions or his flu-like symptoms. He testified that, prior to detainment, he was on high blood pressure medication, thyroid medication, and blood sugar medication. Despite these conditions and symptoms, Defendant testified that he was not being provided with these medications, not having his blood pressure taken regularly, not having his thyroid tested, not having his temperature taken regularly, and unable to access to tissues into which he could sneeze or cough. 2 Defendant also testified that the detainees had no access to hand sanitizer and were instead provided with a small bar of soap once a week.
2 Defendant did testify that the detainees had access to toilet paper.
LAW AND ANALYSIS Where a detention order has been issued, the Court is permitted to issue a “subsequent order” temporarily releasing an individual in custody “to the extent that the judicial officer determines such release to be necessary for the preparation of the person’s defense or for another compelling reason.” 18 U.S.C. § 3142(i)(4). While the language of § 3142(i)(4) appears under the heading “Release or detention of a defendant pending trial,” this provision applies to Defendant even though he has pled guilty and is thus pending sentencing rather than trial. The language specifies that the Court may permit temporary release “by subsequent order.” Id. The Court’s current directive is a “subsequent order,” issued subsequent to a prior detainment order under 18 U.S.C. § 3142. 3 United States v. Thornton, 787 F.2d 594, 594 (6th Cir. 1986) (Table decision) (suggesting that a district court could temporarily release a detainee pursuant to § 3142(i)(4) by subsequent order even after a prior order holding that the detainee was a flight risk or a risk to public safety);
United States v. Dante Stephens, No. 15-cr-0095, 2020 WL 1295155, *3 (S.D.N.Y. Mar. 19, 2020) (holding that 18 U.S.C. § 3142(i)(4) constitutes a “separate statutory ground” for postconviction release).
3 The Court notes that typical post-plea releases involve a finding “by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person
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or the community.” 18 U.S.C. § 3143(a)(1). However, it is unnecessary for the Court to make a finding under 18 U.S.C. § 3143, because the Court is releasing Defendant pursuant to the
independent statutory ground 18 U.S.C. § 3142(i)(4). Nevertheless, the Court finds, by clear and convincing evidence based on Defendant’s actions and testimony, that Defendant would not pose a danger to the safety of any other person or to the community. The Court notes that Defendant testified under oath about his concern for his aging parents and his desire to remain at home, in quarantine, to support them. Defendant was solemn, thoughtful, and responsive to the Court’s questions and concerns. Defendant does not have a violent history. The Court found Defendant to be a credible witness when discussing his health and treatment at Saginaw County Jail, his willingness to cooperate with Probation, and his motivation for staying at home once released. The Court also notes that any § 3143(a)(1) considerations would need to account for the restricted flight possibilities presented by the current COVID-19 pandemic, as well as “balance the public health safety risk posed by the continued incarceration of [ ] defendants in crowded correctional facilities with any community safety risk posed by a defendant’s release.” See Karr v. State, No. A-13630, 2020 WL 1456469, *3 (Alaska Ct. App. Mar.
24, 2020); see also Matter of Extradition of Toledo Manrique, No. 19-71055, 2020 WL 1307109, *1 (N.D. Cal. Mar. 19, 2020) (“This [flight risk] problem has to a certain extent been mitigated by the existing pandemic. The Court’s concern was that Toledo would flee the country, but international travel is hard now. Travel bans are in place ...”)
*4 For the reasons below, the Court finds that temporary pretrial release is necessary for the compelling reason that it will protect Defendant, the prison population, and the wider community during the COVID-19 pandemic, and also that pretrial release is necessary for the preparation of Defendant’s pre-sentencing defense.
Section 3142(i) does not define “compelling reason,” and the Sixth Circuit has yet to interpret this statutory language. However, as courts across the country have begun to recognize, the global health crisis posed by COVID-19 necessitates informed, speedy, and preemptive action to reduce the risk of infection, illness, and death to prisoners and prison officials alike. See Xochihua-Jaimes v. Barr, No. 18-71460, ECF No. 53 (9th Cir. Mar. 23, 2020) (sua sponte ordering release of noncitizen from immigration detention center “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers.”); United States v. Perez, No. 19-cr-00297, ECF No. 62 (S.D.N.Y. Mar. 19, 2020) (finding that the defendant’s heightened risk to COVID-19 complications constitutes a compelling reason for
release under § 3142(i)); United States v. Barkman, No. 19-cr-0052, 2020 U.S. Dist. LEXIS 45628, at *11 (D. Nev. Mar. 17, 2020) (granting emergency relief amending probation order to delay confinement for thirty days because of risk of infection to both Defendant and others in jail).
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United States v. Kennedy, Slip Copy (2020) 2020 WL 1493481
Under any possible interpretation of

Section 3142(i)’s language, current events and Defendant’s

particular vulnerability to the disease constitute a compelling reason for release under § 3142(i).

Even if Defendant did not have a heightened susceptibility to COVID-19, the public health crisis—and its impact on Defendant’s ability to present a defense—nonetheless
satisfies § 3142(i). Saginaw County Jail has suspended on-site visitation “due to coronavirus concerns.” Brianna Owczarzak, MDOC halts visits to MI prisons due to coronavirus concerns (March 13, 2020), https://www.wnem.com/news/mdoc-halts-visits-to-miprisons-due-to-coronavirus-concerns/article_cbb094ea-6530-11ea-8dcc-6f67de338459.html. The Federal Bureau of Prisons and Michigan Department of Corrections have also broadly suspended on-site visits in light of coronavirus concerns. See Federal Bureau of Prisons, Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/ news/20200313_covid-19.jsp (explaining the nationwide suspension and noting that “caseby-case accommodation will be accomplished at the local level”); Michigan Department of Corrections, MDOC Halts All Visits at State Prisons (Mar. 13, 2020), https://www.michigan.gov/ coronavirus/0,9753,7-406-98163-521571--,00.html.

Defendant and his attorney, Mr. Kinney, testified specifically to their difficulty in conducting attorney-client communications under current conditions. Defendant testified that his attorney was able to call him, but unable to visit him to prepare for this hearing. Mr. Kinney additionally testified that, though he was able to speak by phone with his client, he was unable to receive assurances from the facility that the calls were private. Mr. Kinney noted that he was “not comfortable that [he and Defendant] could actually talk about anything over the phone,” because “there’s certain things that I don't want him to say” without a guarantee of attorney-client privacy.

*5 These communication difficulties are endemic to confinement during the current pandemic
and, under the facts of this case, further support Defendant’s release under § 3142(i). Defendant has an upcoming bond review hearing on June 4, 2020 and an upcoming sentencing hearing on July 28, 2020. (ECF Nos. 75, 76.) Release is necessary in order to allow Defendant to
adequately prepare and consult with defense counsel for these proceedings. See Stephens, 2020 WL 1295155 at *5 (holding that Defendant’s inability to communicate regularly and effectively
with counsel in light of BOP’s visitation policies satisfied requirements for release under § 3142(i)).

The United States argues that release is improper here because it was unaware of any known COVID-19 cases at Saginaw County Jail. However, this argument fails to address the facts of the current global public health crisis—particularly as Michigan prisons are beginning to

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see exponential spread of the disease. See Burns, supra. The seemingly preemptive nature of Defendant’s release renders it no less necessary or compelling. To the contrary—as the above background makes clear—waiting for either Defendant to have a confirmed case of COVID-19, or for there to be a major outbreak in Defendant’s facility, would render meaningless this request for release. Such a failure to act could have devastating consequences for Defendant and would create serious medical and security challenges to the existing prison population and the wider community.

CONCLUSION Defendant has set forth compelling reasons for his temporary release amidst this growing public health emergency. Accordingly, Defendant is immediately released pursuant to the conditions set forth in the bond documents, with the additional modification that Defendant is to self-quarantine for 14 days as discussed during the hearing.
The Court will revisit this Order in four months.
IT IS SO ORDERED.

All Citations Slip Copy, 2020 WL 1493481
End of Document

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Miller v. United States, Slip Copy (2020) 2020 WL 1814084
KeyCite Yellow Flag - Negative Treatment Distinguished by United States v. Coles, E.D.Mich., April 17, 2020
2020 WL 1814084 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
Ronald Lee MILLER, Petitioner, v.
UNITED STATES of America, Respondent. Criminal Case No. 16-20222-1 | Signed 04/09/2020
Attorneys and Law Firms
Eric Doeh, U.S. Attorney, Detroit, MI, for Respondent.
ORDER GRANTING PETITIONER'S MOTION FOR RELEASE FROM CUSTODY [374]
Arthur J. Tarnow, Senior United States District Judge
*1 On March 23, 2020, the family of Petitioner Ronald Lee Miller asked the Court to release Miller from his incarceration in Federal Correctional Institution (“FCI”) Butner due to his age and chronic health conditions, which put him at a higher risk falling severely ill from COVID-19. (ECF No. 371). On March 24, 2020, the Court appointed the Federal Community Defender to represent Miller and ordered both parties to file concurrent responsive briefs. (ECF No. 372). The Petitioner and the Government filed their respective briefs on March 31, 2020. (ECF No. 373 & 374). On April 3, 2020, both parties filed supplemental briefs and exhibits. (ECF Nos. 378, 379, 380, 381, 382). For the reasons stated below, the Court GRANTS Petitioner’s motion.
FACTUAL BACKGROUND
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Miller v. United States, Slip Copy (2020) 2020 WL 1814084
On July 12, 2017, Miller pled guilty to violating 21 U.S.C. § 846,

841(a)(1) and

(b)(1)(B)

(Conspiracy to Distribute and to Possess With Intent to Distribute Heroin) and 18 U.S.C. § 922(g)(1) (Felon in Possession of a Firearm). (ECF No. 337, PageID. 1755). On January 31, 2018, the Court sentenced Miller to six years of incarceration followed by four years of supervised release. (Id. at 1756-57). Additionally, the Court recommended that the Bureau of Prisons (“BOP”) immediately medically evaluate Miller upon imprisonment due to his history of serious medical conditions. (Id. at 1756).

Miller’s medical records show that he has a history of: Coronary Artery Disease, Chronic Obstructive Pulmonary Disease (“COPD”), Hypertension, Hepatitis C, Liver Cancer, Heart Disease, and Cirrhosis of the liver. (ECF No. 379, PageID. 2198, 2200, 2203; ECF No. 384-1, PageID. 2439). His medications to treat most of his conditions have been continually renewed throughout his incarceration. (ECF No. 379, PageID. 2205, 2236, 2295). As of March 26, 2020, Miller has 14 active prescriptions for treatment, including an inhaler that he is told to use as needed to prevent or relieve asthma attacks caused by his COPD. (Id. at 2237, 2295).

Due to his ailments, Miller, in conjunction with his family, sought compassionate release from the BOP through both administrative remedies and petitions to Michigan’s U.S. Senator Debbie Stabenow. A letter on October 4, 2018 from FCI Butner’s Warden to Senator Stabenow reveals that “Miller’s case was reviewed in accordance with Bureau of Prisons Statement 5050.48, Compassionate Release, Elderly Inmates with Medical Conditions, and determined he does not meet the criteria for consideration of Compassionate Release.” (ECF No. 380, PageID. 2297). His denial was based on a medical review of Miller’s case that showed “normal liver function with no diagnosis of cancer [and] no detection of Hepatitis C.” (Id.). Miller appealed his compassionate release denial on December 29, 2018, stating that he was diagnosed with Hepatitis C and Cirrhosis prior to incarceration and is currently receiving medication for both diseases. (Id. at 2298). Miller’s appeal was rejected on February 5, 2019 for two reasons: failing to raise a sensitive issue and failing to first file a BP-9 request. (Id. at 2301). Miller then appealed this rejection on February 25, 2019 and March 10, 2019, claiming that he had already filed a BP-9 form that the Warden responded to in October of 2018. (Id. at 2302; ECF No. 383-1, PageID. 2423-24). This appeal was rejected on March 13, 2019, for failing to attempt an informal resolution. (ECF No. 380, PageID 2301). On March 15, 2019, Miller filed an “Attempt at Informal Resolution” form, yet again seeking review of his compassionate release request and treatment for his Cirrhosis. (ECF No. 383-3, PageID. 2426-27). Miller’s release request was again denied on June 4, 2019, because the Warden found that his condition remained stable. (ECF No. 383-4, PageID. 2428).

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Miller v. United States, Slip Copy (2020) 2020 WL 1814084
*2 Miller is now seeking release through either home confinement under

18 U.S.C. § 3624(c)

(2) or compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). However, since this Court and others have recognized that the authority to place a prisoner in home confinement is given to the BOP, through Attorney General delegation, the Court will solely analyze Miller’s eligibility

for compassionate release. See United States v. Doshi, No. 13-CR-20349, 2020 WL 1527186,

at *1 (E.D. Mich. Mar. 31, 2020); see also United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923, at *2 (S.D. Tex. June 17, 2019) (“The First Step Act grants only the Attorney General, and by delegation the BOP, authority to grant release to home confinement under the

Family Reunification Program.”); see also United States v. Moore, No. 2:93-CR-310-ID, 2009 WL 2970464, at *2 (M.D. Ala. Sept. 11, 2009) (“As a general matter, it is plain from the statute that the Attorney General is charged with administration of this pilot program, and the Court is not inclined to interfere with his authority in that regard.”).

ANALYSIS
The compassionate release statute states the following in relevant part.
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—
(i) extraordinary and compelling reasons warrant such a reduction.
18 U.S.C.A. § 3582.
The Court will discuss both elements—exhaustion of administrative remedies and extraordinary and compelling reasons for release—in turn.
I. Exhaustion of Administrative Remedies

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Miller has properly exhausted all of his administrative remedies. The record shows that Miller sought compassionate release due to his medical conditions in the fall of 2018 and his request was denied. Miller then appealed the denial twice, and twice his appeals were rejected.
Despite this, the Government argues that Miller’s exhaustion should not be honored, because he did not specify requesting release due to the COVID-19 outbreak. The Court finds this argument to be unfounded. Miller, then and now, seeks release due to his myriad of serious health conditions. C.f. United States v. Brummett, No. 6: 07-103-DCR, 2020 WL 1492763, at *1 (E.D. Ky. Mar. 27, 2020) (denying compassionate release when the petitioner failed to specify his grounds for release when requested to warden). The COVID-19 pandemic merely accentuates his meritorious claims for release. In the alternative, the Court may waive the exhaustion requirement if a recognized exception applies. United States of America, v. Wilson Perez, No. 17 CR. 513-3 (AT), 2020 WL 1546422, at *2–3 (S.D.N.Y. Apr. 1, 2020); Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019) (“Even where exhaustion is seemingly mandated by statute ... the requirement is not absolute.”).
These exceptions include waiver of exhaustion “where it would be futile, either because agency decisionmakers are biased or because the agency has already determined the issue” and “where pursuing agency review would subject plaintiffs to undue prejudice.” Washington, 925 F.3d 118. Both exceptions apply here. First, Miller has already petitioned the BOP once and appealed its denial twice, stating that Miller’s conditions are stable and do not warrant release. The BOP’s stance on Miller’s case is clear. Requiring him to submit yet another petition to merely indicate his heightened vulnerability due to COVID-19 would be futile. See United States of America v. Teresa Ann Gonzalez, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155, at *1 (E.D. Wash. Mar. 31, 2020) (finding the same).
*3 Second, such a delay would unduly prejudice Miller. COVID-19 is spreading at rapid and unprecedented rates. In North Carolina, where Miller is incarcerated, the number infected has grown from 763 on March 27th to 3,651 on April 9th—quadrupling in less than two weeks. N.C. Exec. Order No. 121 (Mar. 27, 2020), https://files.nc.gov/governor/documents/files/ EO121-Stay-at-Home-Order-3.pdf; COVID-19 North Carolina Dashboard, NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, https://www.ncdhhs.gov/divisions/ public-health/covid19/covid-19-nc-case-count (last visited Apr. 9, 2020). Moreover, FCI Butner’s cases have grown from 9 to 39 in six days. CBS-17 Digital Desk, 9 inmates, staff member test positive for COVID-19 at NC federal prison, https://www.cbs17.com/community/health/ coronavirus/9-inmates-staff-member-test-positive-for-covid-19-at-nc-federal-prison/ (last visited Apr. 7, 2020); COVID-19 Cases, FEDERAL BUREAU OF PRISONS, https://www.bop.gov/ coronavirus/ (last visited Apr. 7, 2020). Time is not on Miller’s side. It is paramount to his safety to decide this issue promptly. Therefore, his request for release is properly before the Court.
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II. Extraordinary and Compelling Reasons for Release In order to determine if extraordinary and compelling reasons exist to release Miller, the Court must determine if a sentence reduction is “consistent with applicable policy statements issued by the [United States] Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). The applicable policy statement recites the following:
1. Extraordinary and Compelling Reasons.--Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.--
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is--
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover
[...]
(D) Other Reasons.--As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
U.S.S.G. 1B1.13
Here, Miller has presented “Other Reasons” in combination with his serious medical conditions, to warrant compassionate release. While the COVID-19 pandemic is devastating in every region it invades, prison populations are subject to heightened vulnerability. See, e.g., Danielle
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Miller v. United States, Slip Copy (2020) 2020 WL 1814084
Ivory, “We Are Not a Hospital”: A Prison Braces for the Coronavirus, N.Y. TIMES (March 17, 2020), https://www.nytimes.com/2020/03/17/us/coronavirus-prisons-jails.html (citing densely populated living conditions, shortage of masks, soap, and hand sanitizer, and the inability to routinely disinfect surfaces and maintain safe distances between inmates and guards as reasons prisoners are at increased risk of infection); See, e.g., Courtney Bublé, Federal Prisons Pose ‘Imminent Danger’ in Spreading COVID-19, Union Says, GOVERNMENT EXECUTIVE (April 6, 2020), https://www.govexec.com/oversight/2020/04/federal-prisons-pose-imminentdanger-spreading-covid-19-union-says/164390/ (detailing a prison workers’ union complaint to OSHA complaining of “imminent danger” due to the BOP’s failure to follow national safety guidelines). To date, at least 42 inmates at FCI Butner have tested positive for COVID-19— the most of any federal prison. COVID-19 Cases, FEDERAL BUREAU OF PRISONS, https:// www.bop.gov/coronavirus/ (last visited Apr. 9, 2020).
*4 Furthermore, the persuasive precedent for granting compassionate release under the current circumstances is overwhelming. United States v Andre Williams, Case No. 04-cr-95/MCR, at *7 (N.D. Fla. April 1, 2020) (“[A]n outbreak of COVID-19 in Williams’ facility would likely have fatal consequences for him. Based on these facts, the Court finds that Williams’ deterioration in physical health is sufficiently serious to satisfy the medical criteria for a reduction in sentence.”);
United States v. Teresa Ann Gonzalez, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155, at *3 (E.D. Wash. Mar. 31, 2020) (“Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable. 18 U.S.C. § 3582(c)(1)(A)(i) compassionate release granted.”); United States v. Campagna, No. 16 Cr. 78-01 (LGS), 2020 WL 1489829, at *3 (S.D.N.Y. Mar. 27, 2020) (“Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC.”);
United States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325 (S.D. Tex. Mar. 30, 2020), at *2 (“Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.”).
Miller squarely fits the definition of an individual who has a higher risk of falling severely ill from COVID-19. The Center for Disease Control (“CDC”) states that individuals who are 65 and older have a higher risk of severe illness. Groups at Higher Risk for Severe Illness, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/groups-at-higher-risk.html (last visited Apr. 7, 2020). Miller is 69. The CDC also
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states that individuals with underlying medical conditions, such as a chronic lung disease, a serious heart condition, and liver disease, have a higher risk of severe illness. Id. Miller suffers from all three. Continuing Miller’s incarceration under the current circumstances could be a lethal decision. Therefore, the Court finds that extraordinary and compelling reasons exist for his immediate compassionate release.

CONCLUSION
IT IS ORDERED that Petitioner’s Motion for Compassionate Release from Custody [374] is GRANTED.
IT IS FURTHER ORDERED that Miller be immediately placed in a 14-day quarantine before his release from FCI Butner, in accordance with Attorney General Barr’s directive to the BOP.
SO ORDERED.

All Citations Slip Copy, 2020 WL 1814084
End of Document

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2020 WL 1672662 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
Janet MALAM, Petitioner, v.
Rebecca ADDUCCI, et al., Respondents.
Case No. 20-10829 |
Signed 04/05/2020 |
Amended 04/06/2020
Attorneys and Law Firms
Rosana Santana Moura Garbacik, Andrew D. Stacer, Stacer, PLC, Plymouth, MI, for Petitioner
Jennifer L. Newby, U.S. Attorney Defensive Litigation, Detroit, MI, for Respondents.
AMENDED OPINION AND ORDER GRANTING IN PART PETITIONER'S EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER [2] 1
1 On April 6, 2020 the Court amended its April 5, 2020 Order to include additional terms of supervision.
JUDITH E. LEVY, United States District Judge
*1 This is an emergency petition challenging Janet Malam's mandatory detention pursuant to 8 U.S.C. § 1226(c) because of danger posed to her by the COVID-19 pandemic. Petitioner claims that her continued detention violates her Fifth Amendment rights by exposing her to substantial risk of illness and death. She requests a temporary restraining order (TRO) requiring that Respondents release her on her own recognizance and refrain from re-detaining her for the pendency of her immigration proceedings.
For the foregoing reasons, the Court GRANTS IN PART this emergency application for relief.
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BACKGROUND Petitioner Janet Malam, born in the United Kingdom, is a lawful permanent resident. (ECF No. 1, PageID.3.) She was legally admitted to the United States in 1967 at the age of four and is now fifty-six years old. (Id.) Petitioner has been detained since March 4, 2020, in the Calhoun County Correctional Facility 2 in conjunction with removal proceedings at the Detroit Immigration Court. (Id.) She brings suit against the following Respondents: Rebecca Adducci, the Detroit District Director of United States Immigration and Customs Enforcement (ICE); Matthew Albence, Deputy Director of ICE; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Barr, Attorney General of the United States; ICE; and Heidi Washington, Director of the Michigan Department of Corrections (MDOC). (Id.)
2 The parties each refer to the Calhoun County Correctional Facility with different terminology. See Jail/Corrections Division, Calhoun County, https:// www.calhouncountymi.gov/departments/sheriffs_office/jail.php (last visited Apr. 5, 2020) (“Calhoun County Correctional Facility”); Detention Facilities, U.S. Immigrations and Customs Enforcement, https://www.ice.gov/detentionfacility/ calhoun-county-correctionalcenter (last visited Apr. 5, 2020) (“Calhoun County Correctional Center”); Calhoun County Jail, Google Maps, at https://www.google.com/maps/place/Calhoun+County+Jail/ @42.3166565,-85.1757947,15z/data=!4m2!3m1!1s0x0:0x4f8faa7bcca370c4? sa=X&ved=2ahUKEwiRwvHM3NHoAhUQmHIEHWeUCl4Q_BIwCnoECA4QCA (last visited Apr. 5, 2020) (“Calhoun County Jail”). The Court will refer to Petitioner’s current place of detention as the Calhoun County Correctional Facility or CCCF.
Petitioner alleges that she suffers from a number of health conditions, including: multiple sclerosis; bipolar disorder; pain; anemia; essential primary hypertension; hypothyroidism; chronic obstructive pulmonary disease; fibromyalgia; mild cognitive impairment; carpal tunnel syndrome; severe major depressive disorder; opioid addiction; nicotine dependence; and polyneuropathy. (ECF No. 1, PageID.7.) According to Petitioner's extensive medical records, these diagnoses are current and accurate as of March 3, 2020. (ECF No. 1-4, PageID.31.)
Because Petitioner has committed two or more crimes involving moral turpitude, her detention is mandatory pursuant to 8 U.S.C. § 1226(c). 3 On March 30, 2020, Petitioner filed a petition requesting emergency relief in either one of two forms: a writ of habeas corpus or an injunction “ordering Defendants to immediately release [Petitioner], with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause [of the Fifth and Fourteenth Amendments].” (Id. at PageID.17.) Petitioner simultaneously filed an
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Application for Temporary Restraining Order requesting that the Court order Petitioner's release during the pendency of her immigration proceedings due to the substantial risk to her health posed by COVID-19 as a result of Petitioner's continued detention in the enclosed group environment endemic to the Calhoun County Correctional Facility. (ECF No. 2.)
3 Petitioner does not specify the nature of these crimes in either her petition or this application. In their response to Petitioner's application for a temporary restraining order, Respondents note that Petitioner's charge of removal is based on a 2003 Michigan state conviction of Larceny from the Person, Mich. Comp. Laws § 750.737, a 2008 conviction of Larceny $100 or Less in violation of a Taylor City, Michigan ordinance, a 2009 conviction of Retail Fraud in violation of a City of Flat Rock, Michigan ordinance, a 2011 conviction of Attempted Simple Larceny in violation of a City of Tyler, Michigan ordinance, and a 2012 conviction of Retail Fraud 3rd Degree $200 or less in violation of a City of Southgate, Michigan ordinance. (ECF No. 11-1, PageID.192.)
*2 For the reasons stated below, the Court GRANTS Petitioner's application for a temporary restraining order requiring her immediate release from detention for the duration of the COVID-19 State of Emergency in Michigan or until further Court order.
LAW AND ANALYSIS
I. Jurisdiction “Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress.” Hamama v. Adducci, 912 F.3d 869, 874 (6th Cir. 2018) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). All courts have an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”
Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). A court must determine whether it has jurisdiction before deciding a cause of action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
Petitioner pleads that “[t]he Court has subject matter jurisdiction over this case pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1651 (All Writs Act); and 28 U.S.C. § 2241 (habeas corpus).” (ECF No. 1, PageID.5.) The
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Court has jurisdiction to adjudicate Petitioner's claims under

28 U.S.C. § 2241. Moreover, even

if Petitioner's claims could not be heard under 28 U.S.C. § 2241, 28 U.S.C. § 1331 provides an independent source of jurisdiction.

A. 28 U.S.C. § 2241 Jurisdiction 28 U.S.C. § 2241 provides a district court with jurisdiction over petitions for habeas corpus where a petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (recognizing 28 U.S.C. § 2241 as a jurisdictional statute). For over 100 years, habeas corpus has been recognized as the vehicle through which noncitizens may challenge the fact of their detention. See Chin Yow v. U.S.¸ 208 U.S. 8, 13, 28 S.Ct. 201, 52 L.Ed. 369 (1908) (“Habeas corpus is the usual remedy for unlawful imprisonment.”) In 2001, the Supreme Court recognized the continued viability of the writ in cases involving the detention of noncitizens: “ § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.” Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In 2018, the Court ruled on the merits of a habeas petition challenging the validity of pre-removal detention. Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018).
Respondents claim, citing Luedtke v. Berkebile, that the Court lacks jurisdiction to grant habeas relief because 28 U.S.C. § 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). Though the Supreme Court has left as an open question “the reach of the writ with respect to claims of unlawful conditions of treatment or confinement,” Boumediene v. Bush, 553 U.S. 723, 792, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2006), the Sixth Circuit, conversely, has held that “a § 2241 habeas petition is not the appropriate vehicle for challenging the conditions of...confinement.” Velasco v. Lamanna, 16 F. App'x 311, 314 (6th Cir. 2001). In 2018, the Sixth Circuit reiterated this holding, affirming a district court that dismissed a § 2241 petition raising an Eighth Amendment challenge to subpar prison conditions because such a claim must be brought in a civil-rights action such as one under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Solano-Moreta v. Fed. Bureau of Prisons, No. 17-1019, 2018 WL 6982510 (6th Cir. Sep. 24, 2018); but see Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) (“Habeas corpus tests not only the fact but also the form of detention.”) (internal

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citation omitted); Roba v. U.S., 604 F.2d 215 (2d Cir. 1979) (holding that be used to challenge conditions of confinement).

§ 2241 petition may

*3 The Respondents argue that “there is no dispute that Petitioner brings a challenge to the conditions of her confinement.” (ECF No. 11, PageID.175.) On its face, the application appears to concern Petitioner's conditions of confinement. Petitioner titles her claim for relief: “Freedom from Cruel Treatment and Conditions of Confinement.” (ECF No. 1, PageID.16.) But Petitioner
may nonetheless bring her claim under 28 U.S.C. § 2241 because she seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case.

Supreme Court and Sixth Circuit precedent support the conclusion that where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable
in habeas. In Nelson v. Campbell, the Supreme Court held that a death-row inmate's challenge to the method of his upcoming execution constituted a challenge to the conditions—not the fact or
duration—of his execution, and therefore his claim fell outside the “core” of habeas corpus. 541 U.S. 637, 644-45, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). However, the Court speculated that if the challenged method “were a statutorily mandated part of the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede acceptable alternatives,” there would be a “stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself,” bringing the claim into the core of habeas corpus.
Id. at 645, 124 S.Ct. 2117. In Adams v. Bradshaw, the Sixth Circuit relied on Nelson to uphold habeas jurisdiction over a claim where a petitioner challenged the method of his execution
but did not concede that any acceptable alternative existed. 644 F.3d 481, 483 (6th Cir. 2011) (“Adams has not conceded the existence of an acceptable alternative procedure....Thus, Adams's lethal-injection claim, if successful, could render his death sentence effectively invalid.”) Here, Petitioner has not conceded the existence of acceptable alternative conditions of her confinement; her Fifth Amendment claim, if successful, would render her continued detention invalid.

In contrast to this case, claims which the Sixth Circuit has held noncognizable in habeas are those in which the petitioner seeks relief other than release from custody: See Solano-Moreta, 2018 WL 6982510, at *1 (seeking transfer); Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir. 2013) (challenge to lack of compensation and conditions of work performed in prison); Hodges v. Bell, 170 F. App'x 389, 390 (6th Cir. 2006) (seeking amelioration of conditions or transfer to mental health facility); Sullivan v. United States, 90 Fed. App'x 862, 862 (6th Cir. 2004) (seeking medical treatment in prison); Lutz v. Hemingway, 476 F.Supp. 2d 715, 718 (E.D. Mich. 2007) (seeking

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restoration of mail privileges in prison); see also

Martin v. Overton, 391 F.3d 710, 712 (6th

Cir. 2004) (seeking transfer). Indeed, in Preiser v. Rodriguez, the Supreme Court distinguished

conditions of confinement claims from claims seeking immediate or speedier release. 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (distinguishing habeas case seeking good-time credits from § 1983 conditions of confinement cases on the grounds that “none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate release or a speedier release from that confinement—the heart of habeas corpus.”)

*4 Although Petitioner here titles her claim for relief “Freedom from Cruel Treatment and Conditions of Confinement,” her Petition is a challenge to the continued validity of her confinement, regardless of its conditions. Petitioner argues that the only adequate relief is her release from confinement. As Petitioner explains,

[S]ocial distancing and hygiene measures [are] Janet's only defense against COVID-19. Those protective measures are exceedingly difficult, if not impossible, in the environment of an immigration detention center, where Janet shares toilets, sinks, phones, and showers, eats in communal spaces, and is in close contact with the many other detainees and officers.

(ECF No. 1, PageID.16.) At the Court's March 31, 2020 status conference for this case, counsel for Respondents conceded that social distancing between prisoners of at least six feet would be impossible at the Calhoun County Correctional Facility. This concession supports the conclusion of multiple doctors and public health experts: that “[t]he only viable public health strategy available is risk mitigation....[T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety” (ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon)); the only way to “prevent serious illness including death” in ICE facilities is to “release all people with risk factors.” (ECF No. 20-3, PageID.374 (Declaration of Dr. Robert B. Greifingert).)
In this case, Petitioner does not take issue with the steps taken at the Calhoun County Correctional Facility to mitigate the risk of detainees contracting COVID-19. Rather, she says that no matter what steps are taken, due to her underlying serious health conditions, there is no communal holding facility where she could be incarcerated during the Covid-19 pandemic that would be constitutional. Petitioner's claim must therefore be considered as a challenge to the continued

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validity of confinement itself. Accordingly, Petitioner's claim is properly brought under 28 U.S.C. § 2241, and the Court has jurisdiction.
B. 28 U.S.C. § 1331 Jurisdiction Even if the Court were to lack jurisdiction under 28 U.S.C. § 2241, the Fifth Amendment provides Petitioner with an implied cause of action, and thus 28 U.S.C. § 1331 would offer an independent source of jurisdiction.
28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Petitioner properly framed her pleading as a civil rights action “[i]n the alternative.” In addition to her request for a writ of habeas corpus, Petitioner requests “injunctive relief ordering Defendants to immediately release Janet, with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause.” (ECF No. 1, PageID.17.) She titles her single claim for relief “Violation of Fifth Amendment Right to Substantive and Procedural Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement.” (Id. at PageID.16.)
Should Petitioner's habeas petition fail on jurisdictional grounds, the Fifth Amendment provides Petitioner with an implied cause of action, and accordingly 28 U.S.C. 1331 would vest the Court with jurisdiction. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court first upheld the proposition that the Constitution itself provided an implied cause of action for claims against federal officials. 403 U.S. at 388, 91 S.Ct. 1999. In 2017, the Supreme Court held that federal courts should not extend a Bivens remedy into new contexts if there exist any “special factors counseling hesitation.” Ziglar v. Abbasi, ––– U.S. ––––, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017). However, there is no corresponding limitation on the Constitution as a cause of action to seek injunctive or other equitable relief. See
Ziglar, 137 S. Ct. at 1862 (declining to extend Bivens to conditions of confinement claim, but noting that “Respondents ...challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief.”). Instead, there is a “presumed availability of federal equitable relief against threatened invasions of constitutional interests.” Hubbard v. E.P.A., 809 F.2d 1, 11 (D.C. Cir. 1986) (citing Bivens, 403 U.S. at 404, 91 S.Ct. 1999 (Harlan, J., concurring)). Indeed, “the power of the federal courts to grant equitable relief for constitutional violations has long been established.” Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir. 1995). Here, Petitioner seeks only
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injunctive and declaratory relief. Accordingly, she may bring her claim directly under the Fifth Amendment, and the Court has jurisdiction to hear the claim under 28 U.S.C. § 1331.
*5 At oral argument, counsel for Respondent raised the question of whether the United States may be entitled to sovereign immunity if Petitioner brought this case under the Fifth Amendment. Sovereign immunity does not apply in this instance, and even if it did, it has been statutorily waived. Federal courts may exercise the traditional powers of equity in cases within their jurisdiction to enjoin violations of constitutional rights by government officials. In Ex Parte Young, the Supreme Court first articulated the principle that state government officials may be sued for acting unconstitutionally, even if an ensuing injunction would bind the state. 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In Philadelphia Co. v. Stimson, the Supreme Court recognized the applicability of that principle to suits against federal officials. 223 U.S. 605, 620, 32 S.Ct. 340, 56 L.Ed. 570 (1912) (“in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process”). More recently, the Supreme Court affirmed this principle in Dalton v. Specter: “sovereign immunity would not shield an executive officer from suit if the officer acted either ‘unconstitutionally or beyond his statutory powers.’ ” 511 U.S. 462, 472, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949)). In Malone v. Bowdoin, the Court called this principle the “constitutional exception to the doctrine of sovereign immunity.”
369 U.S. 643, 647, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962). Petitioner here raises a constitutional challenge to her detention as the result of actions taken by Respondent Adducci, a federal officer. Sovereign immunity does not apply.
Even absent this constitutional exception, the Administrative Procedure Act (APA) provides a statutory waiver to any defense of sovereign immunity. 5 U.S.C. § 702 provides that:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
In 2013, the Sixth Circuit recognized that this waiver extends beyond suits brought under the APA:
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[W]e now join all of our sister circuits who have done so in holding that § 702's waiver of sovereign immunity extends to all non-monetary claims against federal agencies and their officers sued in their official capacity, regardless of whether plaintiff seeks review of “agency action” or “final agency action” as set forth in § 704.
Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 673 (6th Cir. 2013); see also Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“The APA's waiver of sovereign immunity applies to any suit whether under the APA or not.”). ICE is a federal agency, of which Respondent Adducci is an officer or employee thereof. Petitioner challenges Respondent's actions made in her official capacity. Accordingly, the APA provides a statutory waiver of sovereign immunity.
C. Petitioner's Status as a Noncitizen Petitioner's status as a noncitizen who is undergoing removal proceedings does not affect the Court's jurisdiction to hear this case. Although several statutes limit a district court's authority to hear cases in the immigration context, none apply here, as set forth below.
28 U.S.C. § 1252(b)(9) provides that judicial review of:
all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§ 1225 and 1226] shall be available only in judicial review of a final order under this section.
28 U.S.C. § 1252(b)(9). Petitioner does not have a final order of removal. In Jennings v. Rodriguez, the Supreme Court held that 1252(b)(9) did not strip jurisdiction from courts to hear challenges to detention pending removal because detention was not an action taken to remove a noncitizen from the United States. ––– U.S. ––––, 138 S. Ct. 830, 841, 200 L.Ed.2d 122 (2018).
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Petitioner challenges her continued detention; accordingly, this Court of jurisdiction.

28 U.S.C. § 1252(b)(9) does not strip

8 U.S.C. § 1226(e) bars federal court review of any discretionary decision made by the Attorney General regarding detention, release, bond, or parole in an immigration case. However, in
Demore v. Kim, 538 U.S. 510, 123 S. Ct. 1708, 1713–14, 155 L.Ed.2d 724 (2003), the Supreme Court held that § 1226(e) did not prevent noncitizens from raising constitutional challenges to mandatory detention under § 1226(c). Petitioner here raises a Fifth Amendment challenge to her continued mandatory detention under § 1226(c); thus, § 1226(e) does not prevent this Court from exercising jurisdiction.

*6 Finally, 8 U.S.C. § 1252(f), titled “Limit on Injunctive Relief,” provides that:

[N]o court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

8 U.S.C. § 1252(f)(1). But as the Supreme Court recognized in Reno v. Amer.-Arab AntiDiscrim. Comm., “this ban does not extend to individual cases.” 525 U.S. 471, 481–82, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). Petitioner seeks individual relief. Therefore, 8 U.S.C. § 1252(f) does not affect this Court's jurisdiction to enter injunctive or declaratory relief.
II. Proper Habeas Respondent Petitioner names as Respondents: Rebecca Adducci, the Detroit District Director of ICE; Matthew Albence, Deputy Director; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Parr, Attorney General of the United States; U.S. Immigration and Customs Enforcement; and Heidi Washington, Director of the Michigan Department of Corrections. Only Respondent Rebecca Adducci is properly named with respect to the petition for a writ of habeas corpus.

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“Historically, the question of who is ‘the custodian,’ and therefore the appropriate respondent in a habeas suit, depends primarily on who has power over the petitioner and...on the convenience of the parties and the court.” Roman v. Ashcroft, 340 F.3d 314, 319 (6th Cir. 2003) (citing
Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998)). In Roman, the Sixth Circuit held that for habeas petitions in immigration contexts, “the INS District Director for the district where a detention facility is located ‘has power over’ alien habeas corpus petitioners.” Id. at 320. The court, in finding that the Attorney General was not a proper respondent for a noncitizen's habeas claim and that a habeas claim could properly have only one respondent, reiterated 28 U.S.C. § 2243's requirement that a writ of habeas corpus “shall be directed to the person having custody of the person detained.” Id. at 321. Michigan only has one ICE District, located in Detroit. See Enforcement and Removal Operations Field Offices, https://www.ice.gov/contact/ ero. Accordingly, Rebecca Adducci, the Detroit District Director, is the proper Respondent for Petitioner's request for a writ of habeas corpus.
III. Petitioner's Application for a Temporary Restraining Order Petitioner, along with her complaint, filed an emergency application for a temporary restraining order. (ECF No. 3.) In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted). “[P]reliminary injunctions are extraordinary and drastic remedies [ ] never awarded as of right.”
Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). Nonetheless, each of the four factors weighs in Petitioner's favor, and the Court grants Petitioner's motion for a temporary restraining order.
A. Irreparable Harm *7 Petitioner is likely to experience irreparable injury absent an injunction, both in the form of loss of health or life, and in the form of an invasion of her constitutional rights.
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1. Loss of Health or Life from COVID-19 The ongoing COVID-19 pandemic creates a high risk that absent an injunction by this Court, Petitioner will suffer irreparable harm in the form of loss of health or life as a result of contracting the COVID-19 virus.
On March 22, 2020, the Governor of Michigan issued the following statement: “The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.” Executive Order, No. 2020-20 (Mar. 22, 2020).
Since March 4, 2020, the date of Petitioner's detention at the Calhoun County Correctional Facility, the exceptionally dangerous nature of the COVID-19 pandemic has become apparent. On March 10, 2020, the Governor of Michigan announced the state's first two cases of COVID-19 and simultaneously declared a State of Emergency. Executive Order, No. 2020-4 (Mar. 10, 2020). The number of new cases then began to grow exponentially. As of April 5, 2020, there are now 15,718 confirmed cases of COVID-19 and 617 known related deaths, with 238 confirmed cases within the Michigan Department of Corrections system specifically. See Coronavirus, Michigan.gov, https://www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--,00.html. COVID-19 has a high risk of transmission, and the number and rate of confirmed cases indicate broad community spread. 4 Executive Order, No. 2020-20 (Mar. 22, 2020). Nationally, ICE detention facilities across our country are experiencing the same thing. As of April 4, 2020, ICE has confirmed at least 13 cases of COVID-19 among immigration detainees and 7 cases among detention facility employees and personnel. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https:// www.ice.gov/coronavirus (updated Apr. 4, 2020 at 8:00pm).
4 Indeed, since the time of Respondent's brief, the numbers have continued to grow. Respondent reported that, as of April 3, 2020, Calhoun County alone had 25 cases. (ECF No. 11, PageID.169) By the time the Court held oral argument later that day, that number had grown to 31, with 1 reported death. On April 5, the date of this Order, the number of confirmed cases is now 42, with 1 reported death. Coronavirus, https://www.michigan.gov/ coronavirus/0,9753,7-406-98163_98173---,00.html.
On March 23, 2020, the Centers for Disease Control and Prevention (CDC) acknowledged that correctional and detention facilities “present[ ] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention
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Facilities, Centers for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. [Hereinafter “CDC Guidance 3/23/2020”]. Specifically, the CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing).Id.
*8 Though the CDC has recommended public health guidance for detention facilities, and though the Calhoun County Correctional Facility has indeed implemented measures designed to prevent spread of the disease, these measures are inadequate to sufficiently decrease the substantial likelihood that Petitioner will contract COVID-19. As prison officials are beginning to recognize around the country, even the most stringent precautionary measures—short of limiting the detained population itself—simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease. For example, on April 1, 2020, the Rikers Island jail complex's chief physician acknowledged that “infections are soaring” despite the facility's “following Centers for Disease Control and Prevention guidelines and having moved mountains to protect our patients.” Miranda Bryant, Coronavirus Spread at Rikers is a ‘Public Health Disaster’, Says Jail's Top Doctor, The Guardian (Apr. 1, 2020), https://www.theguardian.com/us-news/2020/apr/01/rikersisland-jail-coronavirus-public-health-disaster. In the immigration context specifically, despite Respondents' argument that the federal government has effectively incorporated appropriate and effective precautions, medical experts at the Department of Homeland Security have warned that detention confinement creates a “tinderbox scenario” where rapid outbreak is extremely likely, and extremely likely to lead to deadly results as resources dwindle on an exponential level. Catherine E. Shoichet, Doctors Warn of ‘Tinderbox Scenario’ if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/doctors-ice-detentioncoronavirus/index.html.
Petitioner is 56 years old and suffers from the following conditions, almost all of which place her at an increased risk of a dire outcome from contracting the COVID-19 virus: multiple sclerosis, bipolar disorder, anemia, essential primary hypertension, hypothyroidism, chronic obstructive pulmonary disease, fibromyalgia, severe major depressive disorder, opioid addition, and polyneuropathy. (ECF No. 1-4, PageID.31.) See Centers for Disease Control, Groups at Higher Risk for Severe Illness, (Apr. 2, 2020), https://www.cdc.gov/ coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (noting that “people of all ages with underlying medical conditions are at higher risk for severe illness, particularly if the underlying medical conditions are not well controlled”). Additionally, Respondents have confined Petitioner in an environment where she “shares toilets, sinks, phones, and
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showers, eats in communal spaces, and is in close contact with the many other detainees and officers.” (ECF No. 1, PageID.16.) Petitioner's involuntary interaction with purportedly asymptomatic guards who rotate shifts is also a significant exposure factor. How COVID-19 Spreads, CDC (April 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/ how-covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 Fcoronavirus %2F2019-ncov%2Fprepare%2Ftransmission.html. 5
5 On April 3, 2020, after Petitioner filed her emergency application for a temporary restraining order, the CDC updated its guidance in light of new evidence of asymptomatic transmission of COVID-19 to recommend that all individuals wear cloth face coverings “in public settings where other social distancing measures are difficult to maintain.” Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant CommunityBased Transmission, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/ prevent-getting-sick/cloth-face-cover.html.
*9 These are many of the conditions that the CDC has identified as being particularly likely to increase COVID-19 transmissions in detention facilities. CDC Guidance 3/23/2020. For these reasons, Petitioner's confinement at the Calhoun County Correctional Facility renders her substantially likely to contract COVID-19, and Petitioner's severe health conditions render her substantially likely to suffer irreparable harm or death as a result.
Respondents focus on one particular issue: whether Petitioner is more likely to contract COVID-19 if released than if she remains confined in their jail. Respondents acknowledge that “there is a health risk posed by COVID-19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-19.” (ECF No. 11, PageID.178.) Respondents also acknowledge that Petitioner “does not have to wait until she has COVID-19 to claim that the precautions taken to reduce exposure were insufficient.” (Id. at PageID.179.) Indeed, the crux of Respondents' argument is not that COVID-19 does not pose a deadly threat to Petitioner if contracted. Rather, Respondents' argument relies on the proposition that Petitioner does not have a substantial risk for exposure at the Calhoun County Correctional Facility, and her risk of exposure in the community may be greater. (Id. at PageID.178.)
To this end, Respondents posit the following: Petitioner has not established that she has either been exposed to COVID-19, or that her exposure is “imminent,” because there are currently no cases in the facility in which she is detained “and only 25 cases in the surrounding county.” 6 (ECF No. 11, PageID.179.) Additionally, Respondents argue that their facility has implemented “numerous precautions to reduce the risk of exposure and spread of COVID-19,” 7 and that even if Petitioner is at a “generalized risk” of contracting COVID-19, that does not mean that she is at a “substantial
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risk” for purposes of her constitutional claim. (Id. at PageID.179-180, citing Cty., 377 Fed. Appx. 502, 505 (6th Cir. 2010)).

Wooler v. Hickman

6 Hours later, due to the exponential nature of COVID-19's spread, this statistic was already out of date. See supra fn.2.
7 Specifically, Respondents note that the ICE and CCCF precautions are as follows: tracking the disease, screening incoming detainees, isolating and testing symptomatic detainees, quarantining detainees who test positive, screening incoming staff, suspending in-person social visitation and limiting professional visitation to non-contact, increasing sanitation, educating all staff and detainees, providing detainees with toilet paper, personal soap, and disinfectants, and increasing hand-washing stations. (ECF No. 11, PageID.172.)
Respondents' arguments fail to address the stark reality of this particular global public health crisis. In the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a “generalized risk” is a “substantial risk” of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as Petitioner within the CCCF facility. In acknowledgment of this simple truth, both the United States Attorney General and the Governor of Michigan have issued independent directives to consider early release for detainees who do not pose a public safety risk, as minimizing crowded populations is the only known way to mitigate spread of this pandemic. Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic, Att'y Gen. (Mar. 26, 2020); Executive Order, No. 2020-29 (COVID-19) (Mar. 26, 2020). Moreover, Petitioner's risk of contracting COVID-19 outside of Respondents' custody has no bearing on whether they have exposed her to the likelihood of irreparable harm. Though the Court commends Respondents for the steps they have taken to prevent spread of the disease, as prisons and courts around the country are beginning to recognize, such measures are insufficient to stem deadly prison outbreaks. See, e.g., New York City Board of Correction Calls for City to Begin Releasing People From Jail as Part of Public Health Response to COVID-19, N.Y.C. Bd. of Corr. (Mar. 17, 2020), https://www1.nyc.gov/assets/boc/downloads/pdf/ News/2020.03.17% 20-% 20Board% 20of% 20Correction% 20Statement% 20re% 20Release.pdf (arguing that, despite the “heroic work” of Department of Correction and Correctional Health Services staff “to prevent the transmission of COVID-19 in the jails and maintain safe and humane operations, the City must drastically reduce the number of people in jail right now and limit new admissions to exceptional circumstances.”). Even the Calhoun County Correctional Facility's additional measure of screening incoming shift workers for high temperatures is insufficient to stem the spread of disease, as COVID-19 spreads asymptomatically. How COVID-19 Spreads, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/

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how-covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 %2F2019-ncov%2Fprepare%2Ftransmission.html.

Fcoronavirus

*10 Accordingly, the Court concludes that Petitioner's continued confinement at the Calhoun County Correctional Facility exposes her to a substantial risk of contracting COVID-19, which due to her specific underlying health conditions exposes her to a substantial risk of irreparable harm to her health or life.

2. Violation of Constitutional Rights Petitioner's Fifth Amendment claim triggers a finding that Petitioner will suffer irreparable harm absent an injunction. Petitioner alleges that in “subjecting Janet to detention conditions that amount to punishment and that fail to ensure her safety and health,” Respondent is “subjecting [her] to a substantial risk of serious harm, in violation of [her] rights under the Due Process Clause.” (ECF No. 1, PageID.17.) The alleged violation of a constitutional right is sufficient for a court to find irreparable harm. See Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir.
2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Covino v.
Patrissi, 967 F.2d 73, 77 (2d Cir. 1992); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984)
; see also Rhinehart v. Scutt, 509 F. App'x 510, 514 (6th Cir. 2013) (suggesting that allegation of “continuing violation of...Eighth Amendment rights” would trigger a finding of irreparable harm). Below, the Court finds Petitioner is likely to succeed on the merits of this Fifth Amendment claim.
Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”).

B. Likelihood of Success on the Merits Petitioner is likely to succeed on the merits of her claim that her continued confinement during the COVID-19 pandemic violates her Fifth Amendment rights.
The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend. V. The protection applies to “all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). As it pertains to Petitioner, the Due Process Clause prohibits the government from imposing torture or cruel and unusual confinement conditions on non-convicted detainees. See Bell v. Wolfish, 441 U.S.

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520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.”). This type of Fifth Amendment claim is analyzed “under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metropolitan Government of Nashville, 709 F.3d 563, 568 (6th Cir. 2013).
Eighth Amendment claims require a showing of deliberate indifference, see Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), which has both an objective and a subjective component. Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).
1. Objective Component *11 The objective component is satisfied by showing that, “absent reasonable precautions, an inmate is exposed to a substantial risk of serious harm.” Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (citing Amick v. Ohio Dep't of Rehab. & Corr., 521 Fed.Appx. 354, 361 (6th Cir.2013)). Respondents argue that the precautions they have taken at the Calhoun County Correctional Facility combined with the lack of a confirmed outbreak of COVID-19 at the facility show that Petitioner is unable to demonstrate she is at substantial risk of serious harm. (ECF No. 11, PageID.180.) Instead, Respondents argue that Petitioner merely has a “generalized risk” of contracting COVID-19, which is insufficient to prevail on a Fifth Amendment constitutional claim. (Id.) But as noted above, in Petitioner's case, a generalized risk is a substantial risk.
As the Supreme Court explained in Helling v. McKinney, “[w]e have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may 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.” 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). “That the Eighth Amendment protects against future harm to inmates is not a novel proposition.” Id. “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.”
Id.
Respondents attempt to distinguish this case from Helling on the grounds that the Petitioner in Helling alleged a sufficiently imminent danger from “actual exposure to high levels of cigarette
smoke because his former cellmate was a five-pack a day smoker.” (ECF No. 11, PageID.179 (citing Helling, 509 U.S. at 29, 113 S.Ct. 2475).) Respondents argue that “Petitioner has not established that she either has been exposed to COVID-19, or that her exposure is “imminent.”
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” (Id.) But as the above analysis regarding the risk of irreparable injury to Petitioner demonstrates, the Respondents grievously underestimate the seriousness of the risk to Petitioner, in spite of precautionary measures and despite the lack of confirmed CCCF outbreak to date. The evergrowing number of COVID-19 outbreaks in prisons and detention facilities, 8 despite a range of precautionary measures, demonstrates that the risk of a COVID-19 outbreak in Respondent's facility is significant. Nor, given the percentage of asymptomatic COVID-19 cases and the virus' incubation period of up to fourteen days, can Respondents reasonably assert, as they do, that there are no COVID-19 cases in CCCF; they can only allege that there are no confirmed cases. By the time a case is confirmed, it will almost certainly be too late to protect Petitioner's constitutional rights. Petitioner, so long as she remains detained, is therefore exposed to a substantial risk of serious harm.
8 See, e.g., Ted Rod Roelofs, Coronavirus Cases Surge in Michigan's Crowded Prisons, Bridge (Mar. 27, 2020), https://www.bridgemi.com/michigan-government/ coronavirus-cases-surge-michigans-crowded-prisons; Oregon Inmate in Salem Tests Positive for COVID-19, the First in the State Prison System, SalemReporter (Apr. 3, 2020), https://www.salemreporter.com/posts/2168/oregon-inmate-in-salem-tests-positivefor-covid-19-the-first-in-the-state-prison-system (noting outbreak despite precautionary measures); Ames Alexander and Jessica Banov, In NC Prisons, Five Employees and Four Inmates Have Now Tested Positive for COVID-19, Charlotte Observer (Apr. 1, 2020), https:// www.charlotteobserver.com/news/coronavirus/article241675886.html; Alexandra Kelley, Louisiana Prison Records Third Inmate Death as a Result of the Coronavirus, The Hill (Apr. 1, 2020), https://thehill.com/changing-america/well-being/prevention-cures/490839louisiana-prison-records-third-inmate-death-as-a.
2. Subjective Component *12 The subjective component is demonstrated by showing that “(1) the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner, (2) the official did in fact draw the inference, and (3) the official then disregarded that risk.” 819 F.3d at 915– 16 (citing Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)). “Because government officials do not readily admit the subjective component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence....” Richko, 819 F.3d at 916 (citing
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)). Additionally, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842, 114 S.Ct. 1970.
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Respondents concede the COVID-19 risk to Petitioner: “The government does not dispute that there is a health risk posed by COVID-19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-19.” (ECF No. 11, PageID.178.) Rightfully so: the above analysis pertaining to the risk of irreparable harm reveals that the substantial risk to Petitioner is obvious. Farmer, 511 U.S. at 842, 114 S.Ct. 1970.
Respondents instead argue that Calhoun County Correctional Facility's precautionary measures preclude a finding of deliberate indifference because government officials cannot be said to have disregarded the risk to Petitioner. As noted above, officials at the Calhoun County Correctional Facility have taken a range of precautionary measures to protect against a potential outbreak. (See ECF No. 11-3.) But as Plaintiff's pleadings and the above analysis regarding irreparable injury demonstrate, even with these precautionary measures, in light of Petitioner's underlying health conditions, she is not ensured anything close to “reasonable safety.” Farmer, 511 U.S. at 844, 114 S.Ct. 1970. (See ECF No. 6-3, PageID.112 (Declaration of Doctor Golob stating, “[V]ulnerable people, people over the age of 50 and people of any age with lung disease...living in an institutional setting...are at grave risk of severe illness and death from COVID-19.”); ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon, stating “The only viable public health strategy available is risk mitigation....[T]he public health recommendation is to release highrisk people from detention, given the heightened risks to their health and safety.”).) Based on the record before the Court, the only reasonable response by Respondents is the release of Petitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to Petitioner from COVID-19.
For the same reasons, Petitioner's continued detention cannot “reasonably relate[ ] to any legitimate government purpose.” Bell v. Wolfish, 441 U.S. 520, 536-39, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (holding that pretrial detention not reasonably related to a legitimate government purpose must be considered punishment and therefore contrary to the Fifth Amendment). In their response, Respondents do not directly address the justification for Petitioner's continued detention. The Court notes that Petitioner is in civil detention pending removal proceedings pursuant to 8 U.S.C. § 1226(c). Petitioner faces significant risk of death due to COVID-19; accordingly, her continued confinement at the Calhoun County Correctional Facility is both unrelated and contrary to the government purpose of carrying out her removal proceedings.
Both the objective and subjective components are met; Petitioner has shown a likelihood of success on the merits. The Court reiterates that at this early stage in the litigation, Petitioner need not show a certainty of success on the merits. Indeed, “the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.”
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Malam v. Adducci, --- F.Supp.3d ---- (2020) 2020 WL 1672662
Northeast Ohio Coalition for Homeless and Service Employees Intern. Union, Local 1199, 467 F.3d at 1009 (6th Cir. 2006). Given the risk and severity of irreparable harm to Petitioner and the weight of public health evidence indicating release as the only reasonable option under these facts, Petitioner has met her current burden with respect to the merits of her claim.
*13 Respondents nonetheless cite to some authority that release is an inappropriate remedy for Petitioner's claim. See Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (noting release is not among the proper remedies for Eighth Amendment deliberate indifference claims, which are limited to injunctive relief for proper treatment and damages); Heximer v. Woods, No. 08-14170, 2018 WL 1193368, at *2 (E.D. Mich. Mar. 8, 2018) (noting that “release from custody is not an available remedy for a deliberate indifference claim.”). As explained above, Petitioner has shown a likelihood of success on the merits of her claim that given the extraordinary nature of the COVID-19 pandemic, no set of possible confinement conditions would be sufficient to protect her Fifth Amendment rights. Release from custody represents the only adequate remedy in this case, and it is within this Court's broad equitable power to grant it. See Swann v. Charlotte– Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (“Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”)
3. Qualified Immunity In its supplemental brief, Respondents note that to the extent Petitioner brings a civil rights case, Respondents are entitled to assert a defense of qualified immunity. (ECF No. 19, PageID.317.) Qualified immunity is unavailable as a defense in cases seeking injunctive relief. See Pearson v. Callahan, 555 U.S. 223, 242, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (noting that qualified immunity defense is not available in “suits against individuals where injunctive relief is sought in addition to or instead of damages”); Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (describing qualified immunity as “immunity from suits for damages”). Because Petitioner here seeks only declaratory and injunctive relief, qualified immunity does not apply.
C. Balance of Equities and Public Interest When the government opposes the issuance of a temporary restraining order, as Respondents do here, the final two factors—the balance of equities and the public interest—merge, because “the government's interest is the public interest.” Pursuing America's Greatness v. Fed. Election Comm'n, 831 F.3d 500, 512 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009)).
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The public interest favors Petitioner's release because of the risk that Petitioner's constitutional rights will be deprived absent an injunction. “[I]t is always in the public interest to prevent the

violation of a party's constitutional rights.” Comm., 23 F.3d 1071, 1079 (6th Cir.1994).

G & V Lounge Inc. v. Mich. Liquor Control

Additionally, Petitioner's release will protect public health. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of
aging or ill civil detainees does not serve the public's interest.” Basank v. Decker, ––– F.Supp.3d ––––, ––––, 2020 WL 1481503, at *6 (S.D.N.Y.2020); see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (“the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH, ––– F.Supp.3d ––––, 2020 WL 1502864 (C.D. Cal. 2020). Protecting
public health and safety is in the public interest. See Neinast v. Bd. of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests).

Respondents argue that public interest favors Petitioner's continued detention because “the public interest in enforcement of the United States' immigration laws is significant.” (ECF No. 11,
PageID.187 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 556–58, 96 S.Ct. 3074,
49 L.Ed.2d 1116 (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.”)).

Respondents point to only one immigration law that will see continued enforcement by denying relief to Petitioner. That law is 8 U.S.C. § 1226(c), and it authorizes Petitioner's continued detention. But as set forth above, Petitioner's continued detention is in violation of the United States Constitution, to which 8 U.S.C. § 1226(c) must give way.

*14 The enforcement of the remainder of U.S. immigration laws against Petitioner will continue unabated should the Court grant Petitioner relief. A hearing on Petitioner's request for cancellation of removal is scheduled for April 14, 2020. (ECF No. 11, PageID.170). Respondents do not argue that Petitioner's release will jeopardize her appearance at that hearing, nor do they argue that Petitioner's release will undermine her removal from this country, should Petitioner's defense fail and should conditions allow such removal.

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The public interest and balance of equities demand that the Court protect Petitioner's constitutional rights and the public health over the continued enforcement of a detention provision that, as applied to Petitioner, is unconstitutional. The remaining factors counsel granting Petitioner relief.
Because all four factors weigh in favor of issuing emergency injunctive relief, Petitioners motion for a temporary restraining order is granted.

IV Conclusion For the reasons stated above, Petitioner's Application for a Temporary Restraining Order is GRANTED IN PART. Respondent Adducci is ORDERED to release Petitioner on April 6, 2020 on her own recognizance. Petitioner will be subject to the following restrictions: Petitioner is subject to fourteen days of home quarantine; Petitioner must comply with all Michigan Executive Orders; and Petitioner must appear at all hearings pertaining to her removal proceedings.
Respondents are further RESTRAINED from arresting Petitioner for civil immigration detention purposes until the State of Emergency in Michigan (related to COVID-19) is lifted or until further Court Order stating otherwise.
The Temporary Restraining Order will expire on April 17, 2020, at 6:30 p.m. No later than April 10, 2020, at 12:00 p.m., Respondents must show cause why this Order should not be converted to a preliminary injunction. Petitioner may file a response no later than April 16, 2020, at 12:00 p.m.
IT IS SO ORDERED.

All Citations --- F.Supp.3d ----, 2020 WL 1672662
End of Document

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Case 2:20-cv-11053-MAG-RSW MEaCnvFilleN, oD.an2i2el-34/728/2f0il2e0d 05/04/20 PageID.1162 Page 1 of 4
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United States v. Muniz, Slip Copy (2020) 2020 WL 1540325
KeyCite Yellow Flag - Negative Treatment Distinguished by United States v. Catledge, N.D.Cal., April 16, 2020
2020 WL 1540325 Only the Westlaw citation is currently available. United States District Court, S.D. Texas, Houston Division.
UNITED STATES of America, v.
Pedro MUNIZ, Defendant.
CRIMINAL ACTION NO. 4:09-CR-0199-1 |
Signed 03/30/2020
Attorneys and Law Firms
Appellate Division, Financial Litigation, U.S. Attorney's Office Southern District of Texas, Timothy Shawn Braley, Mark Michael Dowd, Office of the US Attorney, Houston, TX, Renata A. Gowie, U.S. Attorney's Office for the District of Oregon, Portland, OR, Corpus Christi MagDuty, AUSA, US Marshal, US Pretrial SVCS, US Probation, X Case Manager, for United States of America.
MEMORANDUM AND ORDER
HON. KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE
*1 Defendant Pedro Muniz pleaded guilty to conspiracy to possess with intent to distribute a controlled substance in violation of Title 21, United States Code, Sections 846, 841(a)(1),
(b)(1)(A)(ii), and (b)(1)(A)(viii) in January 2010. Defendant was sentenced to a term of 235 months, but his sentence was reduced to 188 months on May 29, 2015 pursuant to 18 U.S.C. § 3582(c)(2). (Doc. No. 517). Defendant has been in custody since April 20, 2009.
Defendant now moves for compassionate release because of concerns about his medical condition and the potential spread of the novel coronavirus at the Federal Medical Center Butner, in Bahama, North Carolina, where he is currently incarcerated. Defendant has exhausted all possible avenues
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for administrative release, and if released plans to live under the care of his mother in Conroe, Texas.
Under 18 U.S.C. § 3582, a court may modify a defendant’s sentence upon motion of the Director of the Bureau of Prisons or “upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). Upon such a motion, a court may modify a defendant’s sentence after considering the factors set forth in § 3553(a) to the extent applicable if it finds that “extraordinary and compelling reasons warrant such a reduction” and “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. § 3582(c)(1)(A)(i).
The policy statement regarding compassionate release sets forth three circumstances that are considered “extraordinary and compelling reasons.” U.S. Sentencing Guidelines, § 1B1.13(1) (A) & cmt. n.1. Among these are the “medical condition of the defendant,” including where the defendant is “suffering from a serious physical or medical condition ... that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.” Id. § 1B1.13 cmt. 1. The policy statement also requires that the defendant not pose a danger to the safety of the community. Id. § 1B1.13(2).
The Court is persuaded that Defendant presents an extraordinary and compelling reason for compassionate release and that such release is consistent with applicable policy considerations. In so concluding, the Court is grievously aware of the current global health crisis caused by COVID-19. The President has declared a National Emergency due to the spread of the novel coronavirus and states and localities across the nation have implemented measures to stymie its rapid spread. And while the Court is aware of the measures taken by the Federal Bureau of Prisons, news reports of the virus’s spread in detention centers within the United States and beyond our borders in China and Iran demonstrate that individuals housed within our prison systems nonetheless remain particularly vulnerable to infection. See, e.g., Danielle Ivory, “We Are Not a Hospital”: A Prison Braces for the Coronavirus, N.Y. Times (March 17, 2020), https:// www.nytimes.com/2020/03/17/us/coronavirus-prisons-jails.html (citing densely populated living conditions, dearth of soap, hand sanitizer, and protective gear, and impossibility of maintaining safe distance between inmates and guards as reasons prisoners are at particular risk of infection). The virus’s spread at the Cook County jail in Chicago provides an alarming example: in a single week, the county jail went from two diagnoses to 101 inmates and a dozen employees testing positive for the virus. See Timothy Williams et al., As Coronavirus Spreads Behind Bars, Should Inmates
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Get Out?, N.Y. Times (March 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirusprisons-jails.html.
*2 Indeed, news reports indicate that the virus has already begun infiltrating federal prisons; in one prison in Louisiana, an inmate died after testing positive for the virus and at least 30 other inmates and staff have tested positive. See Kimberly Kindy, An Explosion of Coronavirus Cases Cripples a Federal Prison in Louisiana, Wash. Post (March 29, 2020), https://www.washingtonpost.com/national/an-explosion-of-coronavirus-cases-cripples-afederal-prison-in-louisiana/2020/03/29/75a465c0-71d5-11ea-85cb-8670579b863d_story.html (hereinafter, An Explosion of Coronavirus Cases). To date, at least one inmate and one staff member have tested positive for the virus in FMC Butner, where Defendant is housed. See COVID-19, Fed. Bureau of Prisons (March 29, 2020), https://www.bop.gov/coronavirus/.
In this case, Defendant has been diagnosed with serious medical conditions that, according to reports from the Center for Disease Control, make him particularly vulnerable to severe illness from COVID-19. These include, inter alia, end stage renal disease, diabetes, and arterial hypertension. See People Who Are at Higher Risk for Severe Illness, CDC (March 26, 2020) https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov % 2Fspecific-groups% 2Fhigh-risk-complications.html. The Court notes that the inmate in Louisiana who died after testing positive from the virus was only two years older than Defendant and also suffered from long-term, preexisting medical conditions. See Kindy, An Explosion of Coronavirus Cases. Defendant has also undergone amputation of his right foot, which has left him wheelchair-bound and significantly hinders his mobility. This further diminishes his ability to care for himself in a prison environment. While it is true that Defendant’s request for a sentence reduction and subsequent administrative appeal to the Board of Prisons were denied, those requests and denials occurred in March and July of 2019—long before the coronavirus was understood to be such a public health crisis. Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.
Moreover, the Court is persuaded that the applicable § 3553(a) factors support Defendant’s request for compassionate release and that Defendant will not pose a threat to the community. While the Court acknowledges the seriousness of Defendant’s offense, Defendant has been in custody since April 2009—over ten years—and has served approximately 80 percent of his reduced sentence. The length of Defendant’s incarceration adequately expresses the seriousness of the offense, deters criminal conduct, and protects the public under § 3553(a). Moreover, the Court notes that Defendant’s offense was not a violent one, and due to Defendant’s serious medical conditions
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Defendant is confined to a wheelchair and requires medical assistance. If released Defendant will be under the care of his mother in Conroe, Texas. Because of Defendant’s serious medical conditions and the length of time already served, the Court is persuaded that Defendant will not pose a threat to the community.
Pursuant to 18 U.S.C. § 3582(c)(1)(A), the Court finds that extraordinary and compelling reasons warrant a reduction of Defendant’s sentence, that Defendant does not pose a danger to any other person or the community, that the § 3553(a) factors support a reduction, and that the reduction is consistent with currently applicable Sentencing Commission policy statements. The Court therefore GRANTS Defendant’s Motion for Compassionate Release and orders release of Defendant.
*3 IT IS SO ORDERED.

All Citations Slip Copy, 2020 WL 1540325
End of Document

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Case 2:20-cv-11053-MAG-RSW EMaCnFvilNle,oD. a2n2ie-l348/28/f2i0le20d 05/04/20 PageID.1166 Page 1 of 17
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Basank v. Decker, --- F.Supp.3d ---- (2020) 2020 WL 1481503
KeyCite Yellow Flag - Negative Treatment Declined to Follow by Sacal-Micha v. Longoria, S.D.Tex., April 9, 2020
2020 WL 1481503 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Vasif “Vincent” BASANK; Freddy Barrera Carrerro; Manuel Benitez Pineda; Miguel Angel Hernandez Balbuena; Latoya Legall; Carlos Martinez; Estanlig Mazariegos;
Manuel Menendez; Antar Andres Pena; and Isidro Picazo Nicolas, Petitioner, v.
Thomas DECKER, in His Official Capacity as Director of the New York Field Office of U.S. Immigrations & Customs Enforcement; and Chad Wolf, in His Official
Capacity as Acting Secretary, U.S. Department of Homeland Security, Respondents.
20 Civ. 2518 (AT) |
Signed 3/26/2020
Synopsis Background: Alien detainees, who suffered from serious chronic medical conditions and were detained in connection with their removal proceedings in county jails where cases of COVID-19 had been identified, petitioned for § 2241 writ of habeas corpus, requesting release from custody of Immigration and Customs Enforcement (ICE) because of public health crisis posed by coronavirus and also moved for temporary restraining order (TRO) releasing them on their own recognizance, subject to reasonable and appropriate conditions, and restraining Director of New York Field Office of ICE and Acting Secretary of Department of Homeland Security (DHS) from arresting detainees for civil immigration detention purposes during pendency of their immigration proceedings.
Holdings: The District Court, Analisa Torres, J., held that:
[1] detainees would suffer irreparable harm absent TRO;
[2] detainees would likely succeed on merits of due process claim;
[3] balance of equities weighed in favor of TRO; and
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[4] public interest supported TRO.
Motion granted.
Procedural Posture(s): Motion for Temporary Restraining Order (TRO).
West Headnotes (20)
[1] Injunction Grounds in general;  multiple factors A plaintiff seeking a temporary restraining order (TRO) 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. 1 Cases that cite this headnote
[2] Injunction Relation or conversion to preliminary injunction The standard for entry of a temporary restraining order (TRO) is the same as for a preliminary injunction.
[3] Injunction Irreparable injury The showing of irreparable harm is the single most important prerequisite for a preliminary injunction.
[4] Injunction Irreparable harm Injunction Adequacy of remedy at law Under the irreparable harm prong of the test for a temporary restraining order (TRO), the movant must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.
[5] Injunction Irreparable harm
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To satisfy the irreparable harm requirement for a temporary restraining order (TRO), a movant must demonstrate that he would suffer irreparable harm if the TRO does not issue.
1 Cases that cite this headnote
[6] Injunction Discretionary nature of remedy The district court has wide discretion in determining whether to grant a preliminary injunction.
[7] Injunction Irreparable injury Irreparable harm required for issuance of a preliminary injunction must be actual and imminent rather than speculative.
[8] Civil Rights Preliminary Injunction Alien detainees, who suffered from chronic medical conditions and were detained by Immigration and Customs Enforcement (ICE) in county jails where cases of COVID-19 were confirmed, would suffer irreparable harm absent temporary restraining order (TRO) releasing them on their own recognizance and preventing their arrest for civil immigration detention purposes during pendency of their immigration proceedings; detainees risked imminent, severe, and possibly fatal infection if they remained in detention, as well as deprivation of their right to due process from deliberate indifference to their health. U.S. Const. Amend. 5.
2 Cases that cite this headnote
[9] Evidence Facts relating to human life, health, habits, and acts On motion for temporary restraining order (TRO) by alien detainees seeking release from Immigration and Customs Enforcement (ICE) custody in county jails in which cases of COVID-19 had been confirmed, judicial notice would be taken that for people of advanced age, with underlying health problems, or both, COVID-19 caused severe medical conditions and had increased lethality. Fed. R. Evid. 201(b).
17 Cases that cite this headnote
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[10] Civil Rights Preliminary Injunction An alleged constitutional violation constitutes irreparable harm required for grant of temporary restraining order (TRO). 2 Cases that cite this headnote
[11] Constitutional Law Protections Provided and Deprivations Prohibited in General The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. Amend. 5.
[12] Constitutional Law Persons and Entities Protected Constitutional Law Non-citizens;  aliens Due process protection applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. U.S. Const. Amend. 5.
[13] Habeas Corpus Limitations and conditions;  treatment and discipline An application for § 2241 habeas corpus is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. 28 U.S.C.A. § 2241.
[14] Constitutional Law Arrest, detention, supervision, and parole 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. U.S. Const. Amend. 5. 4 Cases that cite this headnote
[15] Civil Rights Preliminary Injunction
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Basank v. Decker, --- F.Supp.3d ---- (2020) 2020 WL 1481503
Alien detainees seeking temporary restraining order (TRO), releasing them on their own recognizance and preventing their arrest for civil immigration detention purposes during pendency of their immigration proceedings, were likely to succeed on merits of due process claim that Director of New York Field Office of Immigration and Customs Enforcement (ICE) and Acting Secretary of Department of Homeland Security (DHS) were deliberately indifferent to detainees’ conditions of confinement in county jails, where cases of COVID-19 cases were identified, that posed excessive risk of life-threatening illness to detainees who suffered from chronic medical conditions; officials knew or should have known of risk and failed to take sufficient action to protect detainees' future health. U.S. Const. Amend. 5.
7 Cases that cite this headnote
[16] Constitutional Law Restraint, commitment, and detention Government authorities may be deemed deliberately indifferent to an inmate's current health problems in violation of due process, 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. U.S. Const. Amend. 5.
1 Cases that cite this headnote
[17] Constitutional Law Restraint, commitment, and detention Inmates need not demonstrate that they actually suffered from serious injuries to show a due process violation from deliberate indifference to their medical needs; instead, showing that the conditions of confinement pose an unreasonable risk of serious damage to their future health is sufficient. U.S. Const. Amend. 5.
6 Cases that cite this headnote
[18] Civil Rights Preliminary Injunction Balance of equities weighed in favor of temporary restraining order (TRO) releasing alien detainees on their own recognizance from county jails, where they were in Immigration and Customs Enforcement (ICE) custody and COVID-19 cases had been identified, and preventing their arrest for civil immigration detention purposes during pendency of their immigration proceedings; detainees faced irreparable harm to their due process rights
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and their health from continued detention in unsafe conditions, and interest of Director of New York Field Office of ICE and Acting Secretary of Department of Homeland Security (DHS) in detainees’ in-person participation in future immigration proceedings was safeguarded by grave consequences of their failure to appear. U.S. Const. Amend. 5. 3 Cases that cite this headnote
[19] Aliens, Immigration, and Citizenship Judicial Review or Intervention Civil Rights Judgment and relief in general Courts have the authority to order those detained in violation of their due process rights released, notwithstanding statute requiring mandatory detention of criminal aliens. U.S. Const. Amend. 5; Immigration and Nationality Act, § 236, 8 U.S.C.A. § 1226(c). 4 Cases that cite this headnote
[20] Aliens, Immigration, and Citizenship Judicial Review or Intervention Public interest supported grant of temporary restraining order (TRO) releasing alien detainees on their own recognizance from county jails, where they were in Immigration and Customs Enforcement (ICE) custody and COVID-19 cases had been identified, and preventing their arrest for civil immigration detention purposes during pendency of their immigration proceedings, since public interest in health and safety was served best by rapidly decreasing number of individuals detained in confined and unsafe conditions. 5 Cases that cite this headnote
Attorneys and Law Firms Alexandra Lynn Lampert, Hannah McCrea, Mary Sameera Van Houten Harper, Brooke Menschel, Brooklyn Defender Services, Brooklyn, NY, for Petitioner. Michael James Byars, U.S. Attorney's Office, SDNY (Chambers Street), New York, NY, for Respondents.
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MEMORANDUM AND ORDER
ANALISA TORRES, District Judge:
*1 Petitioners, Vasif “Vincent” Basank, Freddy Barrera Carrerro, Manuel Benitez Pineda, Miguel Angel Hernandez Balbuena; Latoya Legall, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Antar Andres Pena, and Isidro Picazo Nicolas, are currently detained by Immigration and Customs Enforcement (“ICE”) in county jails where cases of COVID-19 have been identified. Petition ¶ 1, ECF No. 9.
Last night after 11:00 p.m., Petitioners filed an amended petition for a writ of habeas corpus under 28 U.S.C. § 2241, requesting release from ICE custody because of the public health crisis posed
by COVID-19. See Petition. Petitioners also submitted an application for a temporary restraining order (“TRO”) pursuant to Rule 65 of the Federal Rules of Civil Procedure, seeking an order (1) releasing them on their own recognizance, subject to reasonable and appropriate conditions, and (2) restraining Respondents, Thomas Decker, in his official capacity as Director of the New York Field Office of ICE, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO at 1, ECF No. 6.
For the reasons stated below, the TRO is GRANTED, and (1) Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities, are ORDERED to immediately release Petitioners today on their own recognizance, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.
BACKGROUND
Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. They are housed in New Jersey county jails where either detainees or staff have tested positive for COVID-19. TRO at 3–4. Specifically, Basank, Benitez Pineda, and Mazariegos are detained at the Hudson County Correctional Facility (“Hudson County Jail”). Petition ¶¶ 5, 7, 11. Barrera Carrerro, Hernandez Balbuena, Legall, Martinez, and Menendez are detained at the Bergen County Correctional Facility (“Bergen County Jail”). Id. ¶¶ 6, 8, 9, 10, 12.
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Pena and Picazo Nicolas are detained at the Essex County Correctional Facility (“Essex County Jail”). Id. ¶¶ 13–14. 1
1 During oral argument, Respondents represented to the Court that five Petitioners— Hernandez Balbuena, Legall, Menendez, Basank, and Benitez Pineda—are expected to be released today. However, because Petitioners are not yet released, and because counsel for Petitioners indicated, and Respondents did not dispute, that ICE may take as long as a day to complete the release process, the Court enters the TRO as to all Petitioners directing their immediate release today without fail.
Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of death or serious injury in immigration detention if exposed to COVID-19. Basank is 54 years old and has a lengthy history of smoking. Id. ¶ 5. Barrera Carrerro, age 39, has underlying health conditions, including obesity, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding. Id. ¶ 6. Benitez Pineda is 44, with pulmonary issues and a history of hospitalization for severe pneumonia. Id. ¶ 7. Hernandez Balbuena suffers from diabetes and diabetes-related complications. Id. ¶ 8. Legall is 33 years old, and suffers from respiratory problems, including asthma. Id. ¶ 9. Martinez, age 56, suffers from severe heart disease, and has a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery. Id. ¶ 10. Mazariegos is 44, and suffers from high blood pressure and pre-diabetes. Id. ¶ 11. Menendez is 31 years old and suffers from chronic asthma. Id. ¶ 12. At 36, Pena is asthmatic and has chronic obstructive pulmonary disease (“COPD”), which require inhalers and other medical treatment. Id. ¶ 13. Picazo Nicolas, age 40, suffers from Type II diabetes and morbid obesity. Id. ¶ 14.
*2 On March 16, 2020, Hannah McCrea, an attorney with Brooklyn Defender Services, emailed Assistant United States Attorney Michael Byars, requesting that ICE release particularly vulnerable individuals, including Petitioners Basank, Legall, Martinez, and Picazo Nicolas. Harper Decl. ¶ 2, ECF No. 6-1. On March 18, 2020, AUSA Byars responded that he did “not have a timeframe for ICE's response.” Id. ¶ 3. On March 24, 2020, Alexandra Lampert, also a lawyer with Brooklyn Defender Services, emailed Byars to request the release of additional individuals identified as particularly vulnerable, including Barrera Carrerro, Benitez Pineda, Hernandez Balbuena, Mazariegos, Menendez, and Pena. Id. ¶ 4. On March 25, 2020, Lampert again emailed Byars and informed him of Petitioners' intent to seek a temporary restraining order in the Southern District of New York, with the amended petition attached, thus putting Respondents on notice of Petitioners' serious medical conditions and their request for injunctive relief. Id. ¶¶ 5, 7.
At 12:30 p.m. today, the Court held a telephonic hearing on Petitioners' request for a TRO.
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DISCUSSION
I. Legal Standard [1] “A plaintiff seeking a temporary restraining order 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.” Natera, Inc. v. Bio-Reference Labs., Inc., No. 16 Civ. 9514, 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (internal quotation marks, citation, and alteration omitted).
[2] [3] [4] [5] [6] “It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). “The showing of irreparable harm is perhaps the single most important prerequisite for a preliminary injunction.” CF 135 Flat LLC v. Triadou SPY N.A., No. 15 Civ. 5345, 2016 WL 2349111, at *1 (S.D.N.Y. May 3, 2016) (internal quotation marks, citation, and alteration omitted). Under this prong, the movant “must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.” NAACP v. Town of E. Haven, 70 F.3d 219, 224 (2d Cir. 1995). To satisfy this requirement, a movant must demonstrate “that he would suffer irreparable harm if the TRO does not issue.” Andino, 555 F. Supp. 2d at 419. “The district court has wide discretion in determining whether to grant a preliminary injunction.” Almontaser v. N.Y.C. Dep't of Educ., 519 F.3d 505, 508 (2d Cir. 2008) (internal quotation marks and citation omitted) (per curiam).
II. Analysis
A. Irreparable Harm
[7] In the Second Circuit, a “showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citations omitted). That harm must be “actual and imminent” rather than speculative. Id.
[8] Petitioners have shown irreparable injury by establishing the risk of harm to their health and to their constitutional rights.
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1. Risk of Death
On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. Petition ¶ 26. At that time, there were more than 118,000 cases in 114 countries, and 4,291 people had died. Id. ¶ 27. Merely two weeks later, there have been at least 458,927 cases identified in 172 countries and at least 20,807 people have died. Id. New York and its surrounding areas have become one of the global epicenters of the outbreak. Id. ¶ 35. Petitioners are held at detention facilities located in northern New Jersey. See id. ¶¶ 5–14.
As of March 26, 2020, New Jersey has 4,407 confirmed cases of COVID-19—the second highest number of reported cases by any state after New York. Niko Kommenda and Pablo Gutierrez, Coronavirus map of the US: latest cases state by state, The Guardian (Mar. 26, 2020), https://www.theguardian.com/world/ng-interactive/2020/mar/26/coronavirus-map-of-theus-latest-cases-state-by-state. New Jersey also has the fourth most COVID-19 related deaths in the country. Id. The three counties where the jails are located—Bergen, Essex, and Hudson counties —comprise one-third of the confirmed cases of COVID-19 in New Jersey, with Bergen County reporting 819 positive results, Essex reporting 381 positives, and Hudson 260. Petition ¶ 36. The jails are no exceptions. Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19. Id. ¶ 41. This includes two detainees and one correctional officer in the Hudson County Jail; one detainee at the Bergen County Jail; and a “superior officer” at the Essex County Jail. Id.
*3 The nature of detention facilities makes exposure and spread of the virus particularly harmful. Jaimie Meyer, M.D., M.S., who has worked extensively on infectious disease treatment and prevention in the context of jails and prisons, recently submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers, including the Hudson, Bergen, and Essex County Jails, “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.
Moreover, medical doctors, including two medical experts for the Department of Homeland Security, have warned of a “tinderbox scenario” as COVID-19 spreads to immigration detention centers and the resulting “imminent risk to the health and safety of immigrant detainees” and the public. Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/doctors-icedetention-coronavirus/index.html. “It will be nearly impossible to prevent widespread infections inside the Hudson, Bergen, and Essex County jails now that the virus is in the facilities because
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detainees live, sleep, and use the bathroom in close proximity with others, and because ‘[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’ ” Petition ¶ 47 (internal quotation marks and citation omitted).
[9] Petitioners face serious risks to their health in their confinement. Each has underlying illnesses, including asthma, diabetes, heart disease, hypertension, obesity, and respiratory problems including COPD. Id. ¶¶ 5–14. The Court takes judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality. People at Risk for Serious Illness from COVID-19, Centers for Disease Control (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-riskcomplications.html (“Older people and people of all ages with severe underlying health conditions —like heart disease, lung disease and diabetes, for example—seem to be at higher risk of developing serious COVID-19 illness.”); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, Centers for Disease Control (Mar. 22, 2020), https://www.cdc.gov/ coronavirus/2019-ncov/hcp/underlying-conditions.html (listing, among other medical diagnoses, “moderate to severe asthma,” “heart disease,” “obesity,” and “diabetes” as conditions that trigger higher risk of severe illness from COVID-19); see Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”); Brickey v. Superintendent, Franklin Corr. Facility, No. 10 Civ. 085, 2011 WL 868148, at *2 n.3 (N.D.N.Y. Feb. 17, 2011) (taking judicial notice of the meaning and symptoms of the condition sciatica), report and recommendation adopted, 2011 WL 868087 (N.D.N.Y. Mar. 10, 2011); Lin v. Metro. Life Ins. Co., No. 07 Civ. 03218, 2010 WL 668817, at *1 (S.D.N.Y. Feb. 25, 2010) (“In its decision, the Court took judicial notice of certain medical background information about Hepatitis B.”).
A number of courts in this district and elsewhere have recognized the threat that COVID-19 poses
to individuals held in jails and other detention facilities. See United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”) (collecting authorities); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)); see also Letter from Mike McGrath, Chief Justice, Montana Supreme Court, to Montana Courts of Limited Jurisdiction
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Judges (Mar. 20, 2020), https://courts.mt.gov/Portals/189/virus/Ltr% 20to% 20COLJ% 20Judges % 20re% 20COVID-19% 20032020.pdf?ver=2020-03-20-115517-333 (“Because of the high risk of transmittal of COVID-19, not only to prisoners within correctional facilities but staff and defense attorneys as well, we ask that you review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for nonviolent offenses.... Due to the confines of [correctional] facilities, it will be virtually impossible to contain the spread of the virus.”). Indeed, at least one court has ordered the release on bail of a non-citizen in immigration detention on the ground that detention conditions have been rendered unsafe by COVID-19. Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507. Addressing the situation in New Jersey specifically, the New Jersey Supreme Court has held that “reduction of county jail populations, under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19” in light of “the profound risk posed to people in correctional facilities arising from the spread of COVID-19,” and has ordered the release of many individuals serving sentences in New Jersey county jails. In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020).
*4 Courts have also recognized this health risk to be particularly acute—and of constitutional
significance—for inmates who are elderly or have underlying illnesses. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of
the risk to his health the pandemic poses. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelter-in-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in
immigration detention constitutes irreparable harm warranting a TRO. See Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (upholding finding of irreparable injury “premised ... upon [the district court's] finding that [plaintiff] was subject to risk of injury, infection, and
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humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services ... certainly constitutes irreparable harm.”).
2. Constitutional Violations
[10] Second, Petitioners have also shown irreparable injury because, as discussed below, they face a violation of their constitutional rights. In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm. See, e.g., Connecticut Dep’t of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citations omitted)); Statharos v. New York City Taxi & Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that immigration detainee established irreparable injury by alleging that prolonged immigration detention violated his constitutional due process rights).
The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the TRO.
B. Likelihood of Success on the Merits
The Court concludes that Petitioners have met their burden of showing a likelihood of success on the merits. Petitioners argue that their continued confinement in ICE detention centers where COVID-19 is present and without adequate protection for their health violates their due process rights. TRO at 8. The Court agrees.
[11] [12] [13] The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). An application for habeas corpus under 28
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U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate's “transfer while seriously ill” where that transfer posed a risk of fatal heart failure).
*5 [14] [15] [16] [17] 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 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. 2 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, 113 S.Ct. 2475, 125 L.Ed.2d 22 (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, 113 S.Ct. 2475. 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, 113 S.Ct. 2475) (alteration omitted).
2 Other courts have recognized of the heightened risk to detainees in contracting COVID-19. See, e.g., Xochihua-Jaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020) (unpublished) (“In light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention ....”); Stephens, 2020 WL 1295155, at *2 (ordering “conditions of 24-hour home incarceration and electronic location monitoring”); Chris Villani, Releasing ICE Detainee, Judge Says Jail No Safer Than Court,
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Law360, March 25, 2020 (“We are living in the midst of a coronavirus pandemic, some infected people die, not all, but some infected people die,” U.S. District Judge Wolf said. “Being in a jail enhances risk. Social distancing is difficult or impossible, washing hands repeatedly may be difficult. There is a genuine risk this will spread throughout the jail.”).
Respondents have exhibited, and continue to exhibit, deliberate indifference to Petitioners' medical needs. The spread of COVID-19 is measured in a matter of a single day—not weeks, months, or years—and Respondents appear to ignore this condition of confinement that will likely cause imminent, life-threatening illness. At oral argument, Respondents represented that ICE and the detention facilities in which Petitioners are housed are taking certain measures to prevent the spread of the virus: screening detainees upon intake for risk factors, isolating detainees who report symptoms, conducting video court appearances with only one detainee in the room at a time, providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities.
These measures are patently insufficient to protect Petitioners. At today's hearing, Respondents could not represent that the detention facilities were in a position to allow inmates to remain six feet apart from one another, as recommended by the Centers for Disease Control and Prevention (“CDC”). See How to Protect Yourself, Centers for Disease Control (Mar. 18, 2020), https:// www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html. Nor could Respondents provide the Court with any information about steps taken to protect high-risk detainees like Petitioners. And though Respondents represented that the detention facilities are below their full capacity, the appropriate capacity of a jail during a pandemic obviously differs enormously from its appropriate capacity under ordinary circumstances. Confining vulnerable individuals such as Petitioners without enforcement of requisite social distancing and without specific measures to protect their delicate health “pose[s] an unreasonable risk of serious damage to [their] future health,” Phelps, 308 F.3d at 185 (internal quotation marks and citation omitted), and demonstrates deliberate indifference.
*6 The Court holds, therefore, that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners' conditions of confinement pose excessive risks to their health. 3
3 The Court does not reach Petitioners' additional argument that they are likely to succeed on the merits of the claim that their due process rights were violated because their current conditions of confinement are punitive. TRO at 8–9.
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C. Balance of Equities and Public Interest
[18] The equities and public interest weigh heavily in Petitioners' favor. First, Petitioners face irreparable injury—to their constitutional rights and to their health.
Second, the potential harm to Respondents is limited. At today's hearing, Respondents were unable to identify a single specific reason for Petitioners' continued detention. And the Court finds that there is none. Petitioners' counsel committed to ensuring the continued appearance of Petitioners at immigration hearings. And, of course, Petitioners' failure to appear at those hearings would carry grave consequences for their respective cases. The Court finds that those incentives are sufficient to safeguard Respondents' interest in Petitioners' in-person participation in future immigration court proceedings.
[19] At oral argument, Respondents raised the fact that Petitioners Martinez and Pena are currently mandatorily detained pursuant to 8 U.S.C. § 1226(c). 4 However, courts have the authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). Thus, Respondents have failed to justify Petitioners' continued detention in unsafe conditions.
4 As represented by Petitioners' counsel, Martinez's § 1226(c) detention was triggered by his conviction for controlled substances trafficking in 2014, an offense for which he served no term of imprisonment. Pena's § 1226(c) detention was triggered by misdemeanor marijuana convictions from 2002.
[20] Finally, the public interest favors Petitioners' release. Petitioners are confined for civil violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19 crisis, the continued detention of aging or ill civil detainees does not serve the public's interest. See Declaration of Dr. Homer Venters ¶ 12, Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Declaration of Dr. Carlos Franco-Paredes, id. at ECF No. 81-12 at 1 (“Immigration detention centers in the U.S. are tinderboxes for the transmission of highly transmissible infectious pathogens including the SARS-CoV-2, which causes COVID-19. Given the large population density of immigration detention centers and the ease of transmission of this viral pathogen, the attack rate inside these centers will take exponential proportions, consuming significant medical and financial resources.”); Urgent action needed to prevent COVID-19 “rampaging through places
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of detention” – Bachelet, UNHCR (Mar. 25, 2020), https://www.ohchr.org/en/NewsEvents/Pages/ DisplayNews.aspx?NewsID=25745&LangID=e (United Nations High Commissioner for Human Rights urging that detention of people in jails “should be a measure of last resort, particularly during this crisis”). To the contrary, public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions. See, e.g., Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”).

CONCLUSION
*7 For the reasons stated above, the TRO is GRANTED. Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities are ORDERED to immediately release Petitioners today on their own recognizance without fail. Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.
The TRO will expire on April 9, 2020, at 6:30 p.m. No later than April 2, 2020, at 12:00 p.m., Respondents must show cause why the TRO should not be converted to a preliminary injunction. Petitioners may file a response no later than April 7, 2020, at 12:00 p.m.
SO ORDERED.

All Citations --- F.Supp.3d ----, 2020 WL 1481503
End of Document

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KeyCite Yellow Flag - Negative Treatment Declined to Follow by Sacal-Micha v. Longoria, S.D.Tex., April 9, 2020
2020 WL 1643857 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Vernon JONES, et al., Petitioners, v.
Chad WOLF, et al., Respondents.
20-CV-361 |
Signed 04/02/2020
Attorneys and Law Firms
Joseph David Moravec, Prisoners' Legal Services of New York, Albany, NY, Grace Ellen Zaiman, Journeys End Refugee Services, Rochester, NY, Nicholas John Phillips, Prisoners' Legal Services of New York, Robert F. Graziano, The Law Office of Robert F. Graziano, Buffalo, NY, Siana McLean, Muscato & Shatkin, LLP, Niagara Falls, NY, for Petitioners.
United States Attorney's Office, Western District of New York, Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, for Respondents.
DECISION & ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE
*1 On March 25, 2020, the petitioners, civil immigration detainees held in the custody of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) at the Buffalo Federal Detention Facility in Batavia, New York (“BFDF”), filed an “Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Injunctive Relief.” Docket Item 1. The following day, the petitioners filed a motion for a temporary restraining order (“TRO”). See Docket Item 8. The petitioners allege that their continued civil detention in the wake of the COVID-19 pandemic violates their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, and they seek their immediate release from ICE custody. Docket Item 1 at 23-24. Each petitioner is “either over the age of fifty and/or [has] a
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serious underlying medical condition, making [him] more vulnerable to complications arising from COVID-19.” Id. at 4. On March 31, 2020, this Court held oral argument on the TRO. See Docket Item 43.
For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the petitioners’ motion for a TRO. More specifically, the Court finds that holding the petitioners in the current conditions at the BFDF during the COVID-19 epidemic violates their substantive Due Process rights. Immediate release, however, is not the appropriate remedy—at least at this juncture. The Due Process violation stems from failing to take the steps recommended by public health officials to protect high-risk individuals from contracting COVID-19. Thus, as explained in more detail below, the respondents shall submit a detailed plan to the Court by 5:00 p.m. on April 3, 2020, demonstrating how they will provide those petitioners who are vulnerable individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), with a living situation that facilitates “social distancing.” No later than 9:00 a.m. on April 6, 2020, the respondents shall report to the Court as to whether any or all of the steps outlined in the plan have been taken and, if so, which ones. They also shall identify for which petitioners the measures have been taken and provide a brief explanation why any petitioner does not meet the CDC’s high-risk criteria.
BACKGROUND
The petitioners are twenty-two 1 civil immigration detainees, 2 currently held in the custody of ICE at the BFDF. Docket Item 1. Each petitioner is “either over the age of fifty and/or [has] a serious underlying medical condition, making [him] more vulnerable to complications arising from COVID-19,” a novel coronavirus that has created a global pandemic. Id. at 4. In less than four months, 951,901 people have been diagnosed with the disease. See Coronavirus Resource Center, Johns Hopkins Univ. & Med. (Apr. 2, 2020, 6:31 AM), https://coronavirus.jhu.edu/. 48,283 have died. Id.
1 Petitioner Shantadewie Rahmee was released on March 30, 2020. See Docket Item 42-5 at 1 n.1.
2 An exhaustive review of the law governing immigration detention is not possible—or necessary—here. It is sufficient, for purposes of this motion, to state that immigration detention is a form of civil detention. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
*2 Most of the petitioners allege that they suffer from one or more of the following “medical conditions that influence higher risks of severe illness or death from COVID-19”: “lung disease,
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including moderate to severe asthma; heart disease; immunodeficiency, including cancer; diabetes; and severe obesity.” Docket Item 1 at 2. The petitioners’ medical expert, Joe Goldenson, M.D., classifies such petitioners as being “at grave risk of developing serious complications or dying if [they] contract[ ] COVID-19.” Docket Item 14 at 4-7 (“Goldenson Decl. II”). The remaining petitioners allege that they are at a “higher risk” because of their age or other serious medical conditions. Docket Item 1 at 2. Dr. Goldenson classifies these petitioners as being “at increased risk of developing serious complications or dying if [they] contract[ ] COVID-19.” Docket Item 14 at 3, 5 (Goldenson Decl. II).
Medical professionals, including professionals employed by the United States government, are advising individuals vulnerable to serious complications from COVID-19 to self-isolate in order to reduce their risk of exposure—a measure the petitioners allege is not possible in the congregate settings in which they currently are housed at BFDF. See Section (I)(B), infra. The petitioners have not pointed to any confirmed cases at BFDF but highlight that there are at least two confirmed cases at the Wende Correctional Facility, through which all persons transferring from a New York State prison into ICE custody at BFDF are processed. Docket Item 1 at 4.

LEGAL STANDARD

“A preliminary injunction is an equitable remedy and an act of discretion by the court.” Am. Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015). The same standard governs consideration of an application for a TRO. Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest.” Trump v. Deutsche Bank AG, 943 F.3d 627, 640 (2d Cir.), cert. granted, 140 S. Ct. 660 (2019) (quoting
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)). 3 Moreover, the Second Circuit has instructed that a mandatory injunction—that is, an injunction commanding a positive act, as opposed to one that merely maintains the status quo—“should issue ‘only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very

serious damage will result from a denial of preliminary relief.’ ” Tom Doherty Assocs., Inc. v.

Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (quoting 1015, 1025 (2d Cir. 1985)).

Abdul Wali v. Coughlin, 754 F.2d

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3 Although the Second Circuit also recognizes a “less rigorous standard” of “sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly in their favor,” that standard “cannot be used”—as the petitioners here seek to do—“to preliminarily enjoin governmental action.” Deutsche Bank, 943 F.3d at 637 (citations omitted); see also Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (“As long as the action to be enjoined is taken pursuant to a statutory or regulatory scheme, even government action with respect to one litigant requires application of the ‘likelihood of success’ standard.”).
DISCUSSION
I. LIKELIHOOD OF SUCCESS The petitioners allege that their continued detention during the COVID-19 pandemic violates their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution. See Docket Item 1. The Due Process Clause prohibits the federal government from depriving any “person ... of ... liberty without due process of law.” U.S. Const. amend. V. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint— lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Id. at 693.
*3 “[G]overnment detention violates the Due Process Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Id. (citations omitted) (alteration in original); see also United States v. Haymond, 139 S. Ct. 2369, 2373 (2019) (explaining that, other than those unique, special, and narrow circumstances, “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty”—a “promise [that] stands as one of the Constitution’s most vital protections against arbitrary government”); United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”).
A. Substantive Due Process Violation: Deliberate Indifference
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The petitioners’ claim is best understood as an amalgam of two theories of substantive Due Process violations: unconstitutional conditions of confinement and deliberate indifference to serious medical needs. 4 Both theories derive from the same principle:
[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....
Helling v. McKinney, 509 U.S. 25, 32 (1993) (alterations in original) (quoting DeShaney v. Winnebago Cty. Dept. of Soc. Svcs., 489 U.S. 189, 199-200 (1989)). This rationale applies here because a detainee’s rights are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” See City of Revere, 463 U.S. 239, 244 (1983).
4 Cf. LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (“[The plaintiff] claims that his continuous health problems caused by exposure to friable asbestos in the air went unattended at [the prison] as [the] defendants failed to rid the premises of the asbestos or take measures to insulate [the plaintiff] from the asbestos particles. [The plaintiff’s] request to be kept in an asbestos-free environment constituted a serious medical need.”).
To evaluate the merits of either a conditions-of-confinement or a denial-of-medical-care claim, courts consider whether the complained-of conditions or deprivation “amount to punishment.”
Bell v. Wolfish, 441 U.S. 520, 535 (1979). 5 That is so because “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Id. at 535; see also
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (“A pretrial detainee’s claims are evaluated under the Due Process Clause because[ ] pretrial detainees have not been convicted of a crime and thus may not be punished in any manner—neither cruelly and unusually nor otherwise.” (citations omitted)).
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5 See also Charles v. Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019) (explaining that because “ ‘deliberately indifferent conduct’ is ‘egregious enough to state a substantive due process claim,’ ” a court “need not ... conduct a separate analysis, over and above the deliberate indifference analysis, of whether the state’s conduct ‘shocks the conscience’ ” (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998))).
A complained-of condition or deprivation amounts to punishment if: (a) “the disability is imposed for the purpose of punishment”—that is, there is “an expressed intent to punish on the part of detention facility officials”; (b) no “alternative purpose to which [the condition or deprivation] may rationally be connected is assignable for it”; or (c) the condition or deprivation is “excessive in relation to the alternative purpose assigned [to it].” See Bell, 441 U.S. at 538 (third and fourth quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)).
*4 The petitioners here do not advance the first theory. Nor do they advance the second, and wisely so. There is no dispute that an individual’s unlawful presence in this country is a “special justification” that in many circumstances outweighs the individual’s interest in avoiding restraint. See Zadvydas, 533 U.S. at 690 (recognizing the government’s interests in detaining noncitizens to “ensur[e] the appearance of aliens at future immigration proceedings” and to “prevent[ ] danger to the community” (citations omitted)); see also Demore v. Kim, 538 U.S. 512, 528 (2003) (“[D]etention of deportable criminal aliens pending their removal proceedings ... necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.” (alterations omitted)). 6
6 When analyzing the process due to noncitizens, there is a relevant “distinction between an alien who has effected an entry into the United States and one who has never entered.” Zadvydas, 533 U.S. at 693; see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (explaining that “an alien on the threshold of initial entry stands on a different footing” when it comes to Due Process rights). After all, if release from physical confinement means that noncitizens who have never “entered” our country will “be released into American society,” Chi Thon Ngo. v. I.N.S., 192 F.3d 390, 394 (3d Cir. 1999) (quoting Barrera-Eschavarria, 44 F.3d 1441, 1448 (9th Cir. 1995)), release may “ultimately result in our losing control over our borders,” id. (quoting Jean v. Nelson, 727 F.2d 957, 975 (11th Cir. 1984)). Therefore, the nature of protection under the Due Process Clause “may vary depending upon [a noncitizen’s] status and circumstance.” Zadvydas, 533 U.S. at 694. Although it appears that petitioner Patrick Maduabuchi Nwankwo was never admitted
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to the United States, see Docket Item 26, this Court does not find that his interests as an excludable alien are materially lower than those of removable aliens for purposes of this analysis and, more importantly, for purposes of the injunctive relief ordered today. Both the excludable- and removable-alien petitioners claim that the government is forcing them to live in conditions that fall below acceptable societal standards of decency. By holding Nwankwo in detention, the respondents have assumed a burden they cannot ignore—his status as an excludable alien notwithstanding. This Court also notes that, in light of the injunctive relief it orders today, it need not consider the penological ramifications of releasing the detainees. It nevertheless notes that the analysis in the criminal context would involve a decidedly more intense analysis of the individual’s dangerousness to the community upon release. Cf. Salerno, 481 U.S. at 749, 50 (“The government’s interest in preventing crime by arrestees is both legitimate and compelling ... [and] heightened when the [g]overnment musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community.” (citation omitted)). While it is true that many immigration detainees have criminal histories—including some of the petitioners in this matter—it also is true that all petitioners with criminal records have served their sentences and so any risk of danger to society is necessarily not as high as that posed by someone who has not yet completed his period of rehabilitation.
The central dispute is therefore whether the petitioners’ detention at the BFDF under current conditions during the COVID-19 pandemic is “excessive” in relation to the government’s legitimate interests in keeping them detained.
1. Unsanitary Conditions of Confinement
*5 A civil detainee may establish that he is subject to “excessive” and therefore unconstitutional conditions of confinement by showing that “officers acted with deliberate indifference to the challenged conditions.” Darnell, 849 F.3d at 29 (2d Cir. 2017) (citation omitted). That showing requires the detainee to “satisfy two prongs”: (1) an “objective prong showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process,” and (2) a “subjective” or “mens rea prong ... showing that the officer acted with at least deliberate indifference to the challenged conditions”—that is, that the official “acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed ... even though the [official] knew, or should have known, that the condition posed an excessive risk to health or safety.” Id. at 29, 35.
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With respect to the first prong, “to establish an objective deprivation, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health, which includes the risk of serious damage to physical and mental soundness.” Id. at 30 (citations omitted). “There is no static test to determine whether a deprivation is sufficiently serious; instead, the conditions themselves must be evaluated in light of contemporary standards of decency.” Id. (citations omitted). For example, in the context of the Eighth Amendment, the Second Circuit has explained that “whether exposure to [a specific condition] is cruel and unusual depends on both the duration and the severity of the exposure.” Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015). “The severity of an exposure may be less quantifiable than its duration, but its qualitative offense to a prisoner’s dignity should be given due consideration.” Id. “[A]ny analysis must consider both the duration and the severity of an inmate’s experience of being exposed to unsanitary conditions.” Id. “[A]lthough the seriousness of the harms suffered ... may shed light on the severity of an exposure, serious injury is unequivocally not a necessary element of an [unconstitutional conditions] claim.” Id. (citations omitted).
In Helling, the Supreme Court held that a prisoner could state a cognizable claim under the Eighth Amendment where he alleged that officials had, “with deliberate indifference, exposed him to levels of [environmental tobacco smoke] that pose[d] an unreasonable risk of serious damage to his future health.” 509 U.S. at 35. To succeed on the subjective prong, the plaintiff would need to show that “the prison authorities’ current attitudes and conduct” evinced deliberate indifference.
Id. at 36. To succeed on the objective prong, the Court explained, the plaintiff would need to show both that “he himself [was] being exposed to unreasonably high levels of [environmental tobacco smoke]” and that “society consider[ed] the risk that the prisoner complain[ed] of to be so grave that it violate[d] contempora[neous] standards of decency to expose anyone unwillingly to such a risk”—that is, the plaintiff would need to produce “more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood [of] injury.” Id. at 35, 36 (emphasis in original).
In so holding, the Court rejected the defendants’ argument that the plaintiff’s claim was not cognizable because he had not alleged any present harm, explaining: “We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health problems but may 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.” Id. at 33. The Court noted several other examples of circumstances where inmates might obtain an “injunction” to remedy a “plainly ... unsafe, life-threatening condition in their prison” even though “nothing yet had happened to them.” Id. One such circumstance was “exposure of inmates to a serious,
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communicable disease [even if the] inmate shows no serious current symptoms.” Id. In short, the Court found that “a remedy for unsafe conditions need not await a tragic event.” Id.
2. Serious Medical Needs
*6 A civil detainee also may show that his detention “amounts to punishment” and therefore violates the Due Process Clause by demonstrating that officials are acting with deliberate indifference to his serious medical needs. “That is true whether the deliberate indifference is manifested by prison doctors in their response to the prisoner’s needs, or by prison guards who intentionally deny or delay access to medical care or intentionally deny or delay access to the treatment once prescribed.” Charles v. Orange Cty., 925 F.3d 73, 85 (2d Cir. 2019). A civil detainee may establish an unconstitutional deprivation of medical care by showing “(1) that [he has] a serious medical need ..., and (2) that the [d]efendants [have] acted with deliberate indifference to such needs.” Id. at 86 (citation omitted).
The “objective,” serious-medical-needs prong “contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain.” Id. (citation omitted). “In determining whether a medical need is sufficiently serious to be cognizable as a basis for a constitutional claim for deprivation of medical care, [courts] consider factors such as whether a reasonable doctor or patient would find the injury important and worthy of treatment, whether the medical condition significantly affects an individual’s daily activities, and whether the illness or injury inflicts chronic and substantial pain.” Id. (citation omitted).
The “mens rea,” deliberate-indifference prong mirrors the standard discussed above in the context of a conditions-of-confinement claim. See id. at 86-87. “[A] detainee asserting a [Due Process] claim for deliberate indifference to his medical needs can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee’s health.” Id. at 87 (emphasis in original). “Whether the state knew or should have known of the substantial risk of harm to the detainee is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Id. (citations omitted). “A factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. (quoting Farmer, 511 U.S. 825, 842 (1994)).
B. Application
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1. Objective: Unsanitary Conditions and/or Serious Medical Needs
The petitioners make two separate (though related) arguments. The first is that the conditions at BFDF subject them to a heightened risk of contracting COVID-19. They argue that this heightened risk—together with the high death rates among those over a certain age or with underlying conditions like theirs who contract COVID-19, even if they receive treatment—amounts to an unreasonably high risk of serious injury or death. The second is that if they contract COVID-19, they will not receive adequate care at or through BFDF.
This Court is unpersuaded by the second argument. The petitioners have not presented any evidence that BFDF could not provide them with adequate care, including by transporting them to local hospitals. The point of reference must be what someone would receive were he or she not in state custody. And the petitioners have not persuaded the Court that BFDF could not provide, or would deny them, such care. The respondents, on the other hand, have shown that they are providing detainees with 24/7 access to medical professionals, see Docket Item 42-4 at 2 (Declaration of Jeffrey Searls, administrator of BFDF (“Searls Decl.”)), and have represented that if a detainee is infected, he or she would be kept in isolation and immediately hospitalized if necessary, see Docket 42-1 at 3 (Declaration of Captain Abelardo Montalvo, M.D. (“Montalvo Decl.”)).
*7 So the question is whether the petitioners’ first argument has any teeth. In other words, is the expected risk to the petitioners’ health and safety from COVID-19 so high that the respondents cannot, as a constitutional matter, force the petitioners to live in conditions that pose a heightened risk of contracting the disease? If so, does their current living situation heighten the risk of contraction? In Due Process language: Does forcing high-risk detainees to live in a congregate setting during the COVID-19 pandemic pose a risk that “society considers ... so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk”? See
Helling, 509 U.S. at 36 (emphasis in original). If so, are the efforts the respondents have taken to ameliorate that risk of contraction sufficient?
This Court is trained in the law, not medicine. The best it can do in this situation is turn to the experts. And the guidance from experts, including many government experts, is that the health risks posed by COVID-19 to individuals over a certain age or with certain underlying medical conditions are indeed grave.
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a. Health and Safety Risks Posed by COVID-19
First, COVID-19 poses a grave risk for those over 65 or with certain underlying health conditions. According to one of the petitioners’ medical experts, Robert B. Greifinger, M.D., “COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions.” Docket Item 3 at 1-2 (“Greifinger Decl.”); see also Docket Item 4 at 2 (“Goldenson Decl. I”); Docket Item 7 at 2 (declaration of Jonathan Louis Golob, M.D., Ph.D. (“Golob Decl.”)). There is no vaccine to prevent COVID-19, nor is there a known cure or anti-viral treatment at this time. Docket Item 7 at 2 (Golob Decl.). Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, estimated on March 31, 2020, that between 100,000 and 240,000 will die of COVID-19. Michael D. Shear et al., Coronavirus May Kill 100,000 to 240,000 in U.S. Despite Actions, Officials Say, N.Y. Times, Mar. 31, 2020, https://www.nytimes.com/2020/03/31/us/politics/coronavirus-deathtoll-united-states.html.
The CDC has concluded that “[p]eople aged 65 years and older” might be at higher risk for severe illness from COVID-19. See People who are at higher risk for severe illness, Ctrs. for Disease Control and Prevention (March 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov % 2Fspecific-groups% 2Fhigh-risk-complications.html; see also Docket Item 3 at 1-2 (Greifinger Decl.) (“[T]he risk of serious disease and death among those with COVID-19 increases with age, with 78% of reported deaths occurring in people over the age of 65. More than 50% of COVID-19 related intensive care admissions and more 80% of COVID-19 deaths were among people 65 years old or older.”); cf. Docket Item 4 at 2 (Goldenson Decl. I) (“Older individuals ... are at greater risk of becoming seriously ill or dying from the illness. (It is well-accepted within the medical community that, due to the burden of chronic illnesses and unhealthy lifestyle choices of many of many those housed in correctional facilities, incarcerated individuals over the age of 50 years old are considered to be elderly.)”); Docket Item 5 at 1 (Declaration of Marc F. Stern, M.D. (“Stern Decl.”)) (“Vulnerable people include people over the age of 50.”); Docket Item 7 at 1 (Golob Decl.) (“People over the age of fifty are at higher risk, with those over 70 at serious risk.”).
*8 The CDC also has advised that “[o]ther high-risk conditions could include: [p]eople with chronic lung disease or moderate to severe asthma[; p]eople who have serious heart conditions[; p]eople who are immunocompromised ... [; p]eople of any age with severe obesity (body mass index [BMI] of 40 or higher)[; p]eople with diabetes[; p]eople with chronic kidney disease undergoing dialysis[; or p]eople with liver disease.” See People who are at higher risk for
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severe illness, supra; see also Docket Item 4 at 2 (Goldenson Decl. I) (“[T]hose with serious chronic medical conditions, such as heart disease, diabetes and lung disease, are at greater risk of becoming seriously ill or dying from the illness.”); Docket Item 5 at 1 (Stern Decl.) (“The effects of COVID-19 are very serious, especially for people who are most vulnerable[,] ... includ[ing] people ... of any age with underlying health problems such as—but not limited to—weakened immune systems, hypertension, diabetes, blood, lung, kidney, heart, and liver disease, and possibly pregnancy.”).
The CDC recently released an analysis of 7,162 cases of COVID-19 in the United States for which data on the patient’s underlying health was available. 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, Morbidity and Mortality Weekly Report, at 1-2 (Mar. 31, 2020), http://dx.doi.org/10.15585/ mmwr.mm6913e2. 78% of those admitted to the intensive care unit had at least one pre-existing condition, including diabetes, lung disease, cardiovascular disease, renal disease, or an otherwise compromised immune system. Id.
This Court therefore “takes judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality.”
Basank v. Decker, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020) (citing Fed. R. Evid. 201(b)) (additional citations omitted). Numerous Courts, including several in this circuit, have reached similar conclusions. See Coronel v. Decker, 2020 WL 1487274, at *4 (S.D.N.Y. Mar. 27, 2020); Hernandez v. Decker, 2020 WL 1547459, at *3 (S.D.N.Y. Mar. 31, 2020); Basank, 2020 WL 1481503, at *5.
b. Risk of COVID-19 Infection in a Congregate Setting
The petitioners also have shown that they face a heightened risk of contracting COVID-19. At oral argument, the respondents confirmed that the petitioners are currently being housed within the general population at the BFDF. They eat communally, use shared restrooms, and are housed in either shared cells or in dorm-style housing. 7 Government experts and the petitioners’ experts agree that such a communal-living style congregate setting increases the infection rate.
7 The government could not confirm, however, how many individuals are in each room in the dormitories.
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For example, the CDC advises:
People in correctional and detention facilities are at greater risk for some illnesses, such as COVID-19, because of close living arrangements with other people. The virus is thought to spread mainly from person-to-person, through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or be launched into the air and inhaled into someone’s lungs. It is 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 eyes; however, this is not the most likely way the virus spreads.
See FAQs for administrators, staff, people who are incarcerated, families, Ctrs. for Disease Control and Prevention (Mar. 28, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/ correction-detention/faq.html. The United States Attorney General largely concurs. See, e.g., Docket Item 15 at 4 (United States Attorney General, Memorandum to the Director of the Federal Bureau of Prisons: Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (March 26, 2020)) (“I am hereby directing you to prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic. Many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health.”).
*9 For their part, the petitioners’ experts assert strongly that congregate settings like those at BFDF heighten the risk of contracting COVID-19. “The conditions of congregate settings, such as jails and immigration detention facilities, pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.” Docket Item 3 at 3 (Greifinger Decl.). The experts point to a host of reasons for this heightened risk of contraction, including crowding, the proportion of vulnerable people detained, the lack of ventilation, and often scant medical-care resources. Docket Item 3 at 4-5 (Greifinger Decl.); Docket Item 5 at 2 (Stern Decl.). They point in particular to the fact that detainees cannot practice the “social distancing” measures needed to contain the spread because detainees share toilets, sinks, and showers; sleep in communal dorms or barracks-style rooms and eat communally; and eat food prepared and served communally as well. Docket Item 3 at 5 (Greifinger Decl.); Docket Item 5 at 2 (Stern Decl.). They also highlight that daily staff rotations increase the risk of infection. Docket Item 3 at 5 (Greifinger Decl.); Docket Item 5 at 2 (Stern Decl.); see also Docket Item 5 at 2 (Stern Decl.) (“To the extent that detainees are
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housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, infectious diseases that are transmitted via the air or touch are more likely to spread, placing people at risk.... For these reasons, if—but more likely when—COVID-19 is introduced into the facility, the risks of spread is greatly, if not exponentially, increased as already evidenced by spread of COVID-19 in two other congregate environments: nursing homes and cruise ships.”).
What is more, the findings regarding the risk of contracting COVID-19 in a communal setting are true even though there presently are no reported cases at BFDF. Docket Item 42-1 at 4. 8 Community spread is nationwide at this point, and there are reported cases in all eight of Western New York’s counties. See Live: Coronavirus Cases in Western New York, Rochester Regional Health (Apr. 1, 2020), https://www.rochesterregional.org/news/2020/02/coronavirus-innew-york. Moreover, there are least two confirmed cases at the Wende Correctional Facility, through which all persons transferring from a New York State prison into ICE custody at BFDF are processed. Docket Item 1 at 4. And the petitioners’ expert has concluded that “it is highly likely, and perhaps inevitable, that COVID-19 will reach the immigration detention facilities in New York.” Docket Item 3 at 3 (Greifinger Decl.). “[A] remedy for unsafe conditions need not await a tragic event.” Helling, 509 U.S. at 33; see also Coronel, 2020 WL 1487274, at *1 (granting four immigration detainees’ motion for a TRO and ordering their immediate release where they “represented ... that there [had] been confirmed cases at two of the three facilities where [they were] detained”). What then of the respondents’ efforts to ameliorate the heightened risk of contracting this dangerous disease?
8 The government argues that the petitioners have not met their burden in this case because they have not shown that they would be at lower risk in many of the locations to which they would travel if released. Indeed, the government asserts that most of the petitioners would be no safer outside BFDF than inside because they plan to travel to areas of the country with significant outbreaks of COVID-19. See Docket Item 42-5 at 2, 16-17. A majority of the petitioners represent that, if released, they would reside with friends or family in the New York metropolitan area. See Docket Items 16, 28. In light of the injunctive relief ordered today, the Court need not address this argument in depth. It notes, however, that the government misconstrues the nature of the legal claims at issue here. The Fifth Amendment right to confinement in conditions that do not pose an unreasonable risk to health and safety derives from the fact that “when 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.... [because] it [has] render[ed] him unable to care for himself.” Helling, 509 U.S. at
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32 (alterations in original) (quoting DeShaney, 489 U.S. at 199-200). So a condition can be unconstitutional only when an individual forcibly is held in state custody. The violation necessarily ends when the individual no longer is in state custody. At that point, the state no longer owes him a duty of reasonable care. See DeShaney, 489 U.S. at 199-200. What is more, the respondents’ argument does not, as a factual matter, address the petitioners’ claim. Even if it is true that the petitioners would face greater hurdles to accessing treatment and care in New York, that does not carry the day. As this Court already has found, the petitioners are not being denied access to care. The relevant factual question is whether the petitioners are at an unconstitutionally greater risk of contracting the disease at BFDF than if they were not detained. And on that question, the respondents have not presented any data to that effect. If the petitioners follow the “social distancing” measures put in place by the Governor—and the Court has no reason to believe they would not, given their risk factors —there is no reason to believe they would be at greater risk of contraction in New York than at BFDF.
2. “Mens Rea”: Deliberate Indifference
*10 As an initial matter, there is no dispute that the respondents have actual knowledge of the petitioners’ serious needs. On March 22, 2020, and again on March 25, 2020, the petitioners notified the government about the particular circumstances of their cases and their high risk of harm. See Docket Item 9 at 10 (Petitioners’ Memorandum of Law). The question is what the respondents have done with the knowledge.
The respondents have taken substantial steps toward protecting the health and safety of the individuals detained at BFDF. Captain Abelardo Montalvo, M.D., the Eastern Regional Clinical Director with ICE Health Services Corps, reviewed the measures currently being taken at BFDF to protect the detainees’ health and safety. He attests to the following facts. Docket Item 42-1 (Montalvo Decl.).
Since March 12, 2020, incoming detainees at BFDF are “checked with a thermometer for fever.” Docket Item 42-1 at 3. They also are “asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through areas with sustained community transition in the past two weeks.” Id. at 2-3. “Detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be placed in the BFDF medical bay or referred to a local hospital.” Id. at 3. Detainees with known exposure to a person with confirmed COVID-19 but who are asymptomatic
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“are placed in a quarantine with restricted movement for” up to 14 days and “monitored daily for fever and symptoms of respiratory illness.” Id. Quarantine “involves housing [exposed but asymptomatic] detainees together.” Id. And new detainees arriving at the facility “will be placed in quarantined dorms and separated from the general population for 14 days until cleared. If new persons are added, or someone becomes ill, then the 14-day quarantine restarts.” Id. at 4. 9
9 At oral argument, the respondents stated that all new arrivals are isolated from the general population upon arrival. The respondents’ declarations leave some question as to whether this policy indeed applies to all new arrivals or only to those who confirm contact with an infected individual, see Docket Item 42-1 at 3 (Montalvo Decl.), those arriving from a hospital, see id. at 4, and those arriving from other detention facilities, see Docket Item 42-4 at 4 (Searls Decl.). The Court assumes the veracity of the respondents’ counsel’s representation at argument but expects confirmation of that fact in the isolation plan it orders today.
BFDF also “has increased sanitation frequency and thoroughness.” Id. at 4. The facility uses paid “detainee workers to reduce the contact rate between ICE staff and detainees and ... limit any exposure between populations.” Id. at 4. Personal visits have been temporarily suspended—though counsel is able to visit in “no-contact” rooms—and BFDF has been providing and continues to provide education to detainees regarding best practices to prevent the spread of COVID-19. Id. at 4-5. Additionally, “[g]atherings of detainees have been cancelled or are being completed in dorms and their respective outdoor areas.” Id. at 5.
These measures are commendable and likely have prevented some measure of spread and mitigated some of the risks facing the respondents. But the fact is that none of the steps discussed by Capt. Montalvo includes the “social distancing” measures recommended—especially for high-risk individuals—by the CDC, the New York State Department of Health, and the petitioners’ experts, to name a few.
*11 The CDC has recommended that people who are at higher risk should “[s]tay home.” See People who are at higher risk for severe illness, supra. The State of New York has said even more. On March 20, 2020, the Governor issued an executive order with the following guidance for New Yorkers over 70 and with underlying health conditions: “[r]emain indoors; ... go outside [only] for solitary exercise; [p]re-screen all visitors and aides by taking their temperature and seeing if person is exhibiting other flu-like symptoms; [d]o not visit households with multiple people; [w]ear a mask when in the company of others; [t]o the greatest extent possible, everyone in the presence of vulnerable people should wear a mask; [a]lways stay at least six feet away from individuals; and [d]o not take public transportation unless urgent and absolutely necessary.”
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Governor Cuomo Signs the ‘New York State on Pause’ Executive Order, New York State Office of Governor Andrew Cuomo (Mar. 20, 2020), https://www.governor.ny.gov/news/governor-cuomosigns-new-york-state-pause-executive-order.
In fact, the Governor and state health officials have concluded that the risks posed by COVID-19 are so grave that it has taken a number of unprecedented steps affecting all New Yorkers, even those with no particular vulnerability to the disease. On March 7, 2020, Governor Cuomo declared a state of emergency for all of New York State. See N.Y. Exec. Order No. 202 (Mar. 7, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.pdf. And in stages beginning on March 16, 2020, the Governor ordered the closing of all schools and universities, as well as nearly all businesses and places of public accommodation, and he has prohibited nonessential gatherings of any size through at least April 15, 2020. 10 Governor Cuomo is far from alone in ordering these drastic measures. See Coronavirus: Three out of four Americans under some form of lockdown, BBC World News (Mar. 31, 2020), https://www.bbc.com/news/world-uscanada-52103066. And the New York State Department of Health advises that “[w]hen in public[,] individuals must practice social distancing of at least six feet from others.” Governor Cuomo Signs the ‘New York State on Pause’ Executive Order, supra (emphasis added).
10 See N.Y. Exec. Order No. 202.3 (Mar. 16, 2020), https://www.governor.ny.gov/ sites/governor.ny.gov/files/atoms/files/EO_202.3.pdf; N.Y. Exec. Order No. 202.4 (Mar. 16, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO% 20202.4.pdf; N.Y. Exec. Order No. 202.5 (Mar. 18, 2020), https://www.governor.ny.gov/ sites/governor.ny.gov/files/atoms/files/EO_202_5.pdf; N.Y. Exec. Order No. 202.8 (Mar. 20, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.8.pdf; N.Y. Exec. Order No. 202.11 (Mar. 27, 2020), https://www.governor.ny.gov/ sites/governor.ny.gov/files/atoms/files/EO_202_11.pdf; N.Y. Exec. Order No. 202.12 (Mar. 30, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/ EO_202.13.pdf.
The petitioners’ experts urge the importance of these same “social distancing” measures. “The only way to mitigate the rapid spread of COVID-19 is to use scrupulous hand hygiene and social distancing, self-quarantine for individuals who may have been exposed, and isolation at a home or care facility for those who have been infected.” Docket Item 3 at 2 (Greifinger Decl.); see also Docket Item 4 at 2 (Goldenson Decl. I); Docket Item 5 at 1 (Stern Decl.) (“COVID-19 is a novel virus. There is no vaccine for COVID-19, and there is no cure for COVID-19. No one has prior immunity. The only way to control the virus is to use preventive strategies, including social distancing.”).
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The respondents so far have not made it possible for individuals with the CDC-identified vulnerabilities to take these steps. It has not, for example, isolated higher risk individuals from other detainees or from staff who rotate daily in and out of the facility. Nor is it testing all incoming detainees or the staff that comes and goes. That failure is particularly concerning given that the CDC recently reported that as many as 25 percent of people infected with COVID-19 may not show symptoms. See Apoorva Mandavelli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirusasymptomatic-transmission.html?action=click&module=Spotlight&pgtype=Homepage; see also Docket Item 5 at 1 (Stern Decl.) (“It is believed that people can transmit the virus without being symptomatic and, indeed, that a significant amount of transmission may be from people who are infected but asymptomatic or pre-symptomatic.”). The petitioners also continue to eat their meals in communal settings and share bathing facilities, indicating that “social distancing” is not possible at this time. And the respondents have not provided the petitioners or other high-risk detainees with masks as recommended by the New York State Department of Health. Cf. Docket Item 42-1 at 4 (Montalvo Decl.) (explaining that “[d]etainee workers” are provided goggles” and “gloves” (emphasis added)).
*12 In light of the decisions of a number of executive branch officials at both the state and federal level, it seems clear that “social distancing” for those with heightened COVID-19 risks is the most effective form of preventing a serious threat to the health and safety of those persons. Moreover, the recommended measures for preventing the spread of COVID-19 are unprecedented. Indeed, this Court is not aware of any other disease that caused New York State—let alone most of the nation—to decide that the only reasonable course of action was to shutter the economy, shelter in place, and isolate at home for weeks on end.
In short, the government’s recommendations to the public suggest that those with certain conditions should not assume the risk of social contact. Indeed, New York State has prohibited individuals from assuming that risk. A measure that the government has forcibly—under threat of civil penalties—imposed on all persons within its jurisdiction cannot, at the same time, be forcibly denied to some portion of that population. The result compelled by this finding is that the respondents are acting with deliberate indifference to the health and safety of those petitioners with the conditions identified by the CDC by holding them in a congregate, communal-living setting where “social distancing is an oxymoron.” See Docket Item 9-1 at 5 (Letter from Scott Allen, M.D., F.A.C.P., and Josiah D. Rich, M.D., M.P.H., to the House Committees on Homeland Security and Oversight and Reform, Mar. 19, 2020) (“Allen Letter”); see also Hernandez, 2020 WL 1547459 at *3 (finding that measures such as “modification of the intake process and increasing sanitation frequency ... [were] ‘patently insufficient’ to protect any detainees from infection absent
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‘enforcement of requisite social distancing’ ” (alteration in original) (quoting 1481503, at *5)).

Basank, 2020 WL

In other words, the respondents have actual knowledge of serious risks to the health and well-being of individuals with the vulnerabilities identified by the CDC and have not taken adequate steps to
protect the petitioners who have such vulnerabilities against those risks. See also Hernandez, 2020 WL 1547459 at *2 (concluding that the civil-immigration-detainee petitioner was likely to succeed on his deliberate-indifference claim because the respondents had “not taken any action to address the particular risks that COVID-19 poses to high-risk individuals like [the p]etitioner”);
Coronel, 2020 WL 1487274, at *6 (same); Basank, 2020 WL 1481503, at *5 (same). But see
Sacal-Micha v. Longoria, 2020 WL 1518861 (S.D. Tex. Mar. 27. 2020); Dawson v. Asher, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020). Because the high-risk petitioners are held in the respondents’ “custody ... against [their] will” and therefore “unable to care for [themselves],”
see Helling, 509 U.S. at 32 (citation omitted), the respondents’ failure to take these steps is a violation of their substantive rights under the Due Process Clause.

C. Conclusion This Court finds that those petitioners who have the COVID-19 vulnerabilities identified by the CDC have demonstrated a likelihood of succeeding on their claim that the respondents are acting with deliberate indifference to unreasonably unsafe conditions at BFDF and to those petitioners’ serious medical needs. The Court acknowledges both that such a finding is extraordinary and that the respondents themselves have been impacted by the COVID-19 pandemic in a variety of ways that have affected their ability to respond to the outbreak. But the Court’s goal is neither to assign blame nor to justify past efforts. It is instead to ensure that the petitioners’ constitutional rights— here, their right to liberty and possibly life—are protected.

II. IRREPARABLE HARM *13 “The showing of irreparable harm is ‘[p]erhaps the single most important prerequisite for the issuance of a’ ” temporary restraining order. Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir.
2002) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)). Under this prong, parties seeking a TRO “must show that, on the facts of their case” and in the absence of the requested injunction, they will suffer a harm that “cannot be remedied after a final
adjudication, whether by damages or a permanent injunction.” Salinger v. Colting, 607 F.3d 68, 81-82 (2d Cir. 2010). In addition, the harm must be “neither remote nor speculative, but actual

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and imminent.” Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (citation omitted).
The petitioners have established irreparable harm in two different ways. First, “the alleged violation of a constitutional right ... triggers a finding of irreparable harm.” Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (emphasis in original) (citation omitted). As discussed above, the petitioners have adequately alleged that their substantive due process rights have been violated. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” (citations omitted)).
Second, irreparable harm exists where, as here, the moving individuals “face imminent risk to their health, safety, and lives.” Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 214 (E.D.N.Y. 2000) (citation omitted), aff'd sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003). For all the reasons discussed above, those petitioners with the CDC-identified vulnerabilities face a grave, irreparable risk to their health and safety if they remain confined under current conditions at BFDF.
III. BALANCE OF EQUITIES AND PUBLIC INTEREST Where the government is the opposing party, the final two factors in the temporary restraining order analysis—the balance of the equities and the public interest—merge. Planned Parenthood of New York City, Inc. v. U.S. Dep't of Health & Human Servs., 337 F. Supp. 3d 308, 343 (S.D.N.Y. 2018).
The petitioners and the public both benefit from ensuring public health and safety. See Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”). Moreover, under the circumstances here, the public interest in ensuring public health is also best served by the petitioners’ being confined in conditions that do not pose a substantial risk of their contracting COVID-19. As one of their medical experts points out, a COVID-19 outbreak at a detention facility “could result in multiple detainees—five, ten or more—being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm ventilator resources, those ventilators become unavailable for all the usual critical illnesses.” Docket Item 9-1 at 5 (Allen Letter). And ventilators used to treat detainees cannot be used to treat others who contract the virus. See Docket Item 5 at 3 (Stern Decl.) (“Reducing the spread and severity of infection in a federal immigration detention center slows, if not reduces, the number of people who will become ill enough to require hospitalization where they will be using scarce community resources (ER
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beds, general hospital beds, ICU beds) which in turn reduces the health and economic burden to the local community at large.”); Docket Item 3 at 5 (Greifinger Decl.) (“Releasing individuals, and prioritizing the most vulnerable, reduces the burden on local health care resources, as it reduces the risk of transmission of the disease to a large number of people living in close proximity for an extended period of time. It also reduces the risk of transmission to staff.”). “In the alternate scenario where detainees” are either confined in conditions facilitating “social distancing” or are released, “the tinderbox scenario of a large cohort of people getting sick all at once is less likely to occur, and the peak volume of patients hitting the community hospital would level out.” Docket Item 9-1 at 5 (Allen Letter).
*14 The respondents argue that the Western New York community would be able to serve the needs of the petitioners and that the public interest therefore tips in their favor. In support of that claim, they have presented data on available health beds in the area surrounding BFDF. See Docket Item 42-3 at 6. But they have not provided data on, for example, the number of available ventilators. Nor have they provided projections on the rate of spread in the surrounding community or any expert testimony to the effect that the community could sustain an outbreak at BFDF as community spread outside the facility—including in other carceral facilities—also increases. The Court therefore finds that the public interest favors the petitioners.
IV. REMEDY For the reasons stated above, the petitioners have met the criteria for a TRO. The next question is what remedy is appropriate under the circumstances. The petitioners seek their immediate release under conditions of supervision and, ultimately, a writ of habeas corpus under 22 U.S.C. § 2241.
Section 2241(c)(3) provides: “The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States.” Courts are divided on whether section 2241 provides a vehicle for challenging (and a remedy for addressing) allegedly unconstitutional conditions of confinement. 11
11 Compare Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“This court has long interpreted [ section] 2241 as applying to challenges to the execution of a federal sentence” [and seeking injunctive relief], “including such matters as the administration of parole, ... prison disciplinary actions, prison transfers, type of detention and prison conditions.” (citations omitted)), with Spencer v. Haynes, 774 F.3d 467, 469 (8th Cir. 2014) (drawing a bright line between claims that challenge the “validity” or “length” of
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a conviction, which may be brought under section 2241, and those that challenge “the conditions of confinement,” which may not) and Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (distinguishing between a section 2241 petitioner who requests a “quantum change in the level of custody, which must be addressed by habeas corpus,” and a petitioner who requests “a different program or location or environment, which raises a civil rights claim” and holding that “[i]f an inmate establishe[s] 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.” (citation omitted)) and Gomez v. United States, 899 F.2d 1124 (11th Cir. 1990) (same) and Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (same) and Cook v. Hanberry, 596 F.2d 658, 660 (5th Cir. 1979) (same). Cf. Bell, 441 U.S. at 526 n.6 (1979) (“[L]eav[ing] to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.” (citation omitted)).
This Court need not resolve these difficult questions at this junction because the Second Circuit “has long interpreted [ section] 2241 as applying to challenges to ... prison conditions,”
Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (citation omitted)—at least to the extent the petitioners seek a remedy short of release—and this Court is not convinced that the unconstitutional conditions at BFDF cannot be remedied through an injunction.
That is so because BFDF currently is at roughly half of its capacity to house detainees. Docket Item 42-1 at 4. So it remains plausible that the respondents could rectify the ongoing violation by providing those petitioners who meet the CDC’s definition of vulnerable individuals with a living situation that facilitates “social distancing.” 12 The respondents might, for example, house those individuals in individual cells or units with a limited number of individuals akin to a family unit outside the facility; eat their meals, bathe, and shower in isolation or only among those in their smaller unit; have extremely limited contact with both other detainees and staff, all of whom are screened for fevers; and are provided masks to wear when contact is necessary. The Court leaves the task of identifying which petitioners satisfy the CDC criteria, and how to facilitate their “social distancing,” to the respondents’ medical staff—at least in the first instance. 13
12 Governor Cuomo, in concert with the New York State Department of Health, advises the following actions: “[r]emain indoors; ... go outside [only] for solitary exercise; [p]re-screen all visitors and aides by taking their temperature and seeing if person is exhibiting other flulike symptoms; [d]o not visit households with multiple people; [w]ear a mask when in the company of others; [t]o the greatest extent possible, everyone in the presence of vulnerable people should wear a mask; [a]lways stay at least six feet away from individuals; and [d]o not
© 2020 Thomson Reuters. No claim to original U.SE. Gxohveirbnmiten3t W8or-ks.Jones v. Wolf 22

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Jones v. Wolf, Slip Copy (2020) 2020 WL 1643857
take public transportation unless urgent and absolutely necessary.” Governor Cuomo Signs the ‘New York State on Pause’ Executive Order, supra.
13 As discussed above, the CDC explains that “[o]ther high-risk conditions could include: [p]eople with chronic lung disease or moderate to severe asthma[; p]eople who have serious heart conditions[; p]eople who are immunocompromised ... [; p]eople of any age with severe obesity (body mass index [BMI] of 40 or higher)[; p]eople with diabetes[; p]eople with chronic kidney disease undergoing dialysis[; or p]eople with liver disease.” See People who are at higher risk for severe illness, supra.

ORDER
*15 The respondents shall report to the Court no later than 5:00 p.m. on April 3, 2020, with a detailed plan explaining how they will identify which petitioners meet the CDC’s high-risk criteria and how they will facilitate those individuals’ taking any or all of the “social distancing” measures recommended by the CDC and New York State Department of Health. No later than 9:00 a.m. on April 6, 2020, the respondents shall report to the Court as to whether any or all of the steps outlined in the plan have been taken and, if so, which ones. They also shall identify for which petitioners the measures have been taken and provide a brief explanation why any petitioner does not meet the CDC’s high-risk criteria. The Court then will decide whether the constitutional violation has been remedied and whether further action of the Court is required.
IT IS SO ORDERED.

All Citations Slip Copy, 2020 WL 1643857
End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

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Case 2:20-cv-11053-MAG-RSW MEaCnvFilleN, oD.an2i2el-44/028/2f0il2e0d 05/04/20 PageID.1206 Page 1 of 2
For Educational Use Only
Xochihua-Jaimes v. Barr, 798 Fed.Appx. 52 (2020) 2020 WL 1429877
798 Fed.Appx. 52 (Mem) This case was not selected for publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 9th Cir. Rule 36-3.
United States Court of Appeals, Ninth Circuit.
Lucero XOCHIHUA-JAIMES, Petitioner, v.
William P. BARR, Attorney General, Respondent.
No. 18-71460 |
MARCH 24, 2020
Attorneys and Law Firms
Max Carter-Oberstone, Brian Philip Goldman, Attorney, Orrick Herrington & Sutcliffe LLP, San Francisco, CA, for Petitioner.
Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Anthony Cardozo Payne, Senior Litigation Counsel, Rebecca Hoffberg Phillips, Trial Attorney, Jessica Danielle Strokus, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent.
Before: SILER, * WARDLAW, and M. SMITH, Circuit Judges.
* The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
ORDER
*1 In light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court. See 8 U.S.C. § 1252(b)(3)(B); 28 U.S.C. § 1651(a).
© 2020 Thomson Reuters. ENoxchlaiimbtoitor3ig9inal-UX.S.oGcovherinimheuntaWo-rkJs.aimes v. Barr 1

Case 2:20-cv-11053-MAG-RSW MEaCnvFilleN, oD.an2i2el-44/028/2f0il2e0d 05/04/20 PageID.1207 Page 2 of 2
For Educational Use Only
Xochihua-Jaimes v. Barr, 798 Fed.Appx. 52 (2020) 2020 WL 1429877
The matter is remanded to the BIA for the limited purpose of securing Petitioner’s immediate release.
IT IS SO ORDERED.

All Citations 798 Fed.Appx. 52 (Mem), 2020 WL 1429877
End of Document

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 Case 2:20-cv-11053-MAG-RSW ECF No. 7 filed 04/30/20 PageID.635 Page 1 of 22

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, JERAMINE CAMPBELL, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

Plaintiffs,

-v-
WILLIS CHAPMAN, Warden, Macomb Correctional Facility (MRF) ; NOAH NAGY, Warden at G. Robert Cotton Correctional Facility (JCF); MELINDA BRAMAN, Warden, Parnall Correctional Facility (SMT); BRYAN MORRISON, Warden Lakeland Correctional Facility (LCF); HEIDI WASHINGTON, Director of the Michigan Department of Corrections, sued in their official capacities only,

Case No. 2:20-cv-11053-MAG-RSW Hon. Mark A. Goldsmith Maj. Judge R. Steven Whalen

Defendants.

PLAINTIFF’S MOTION FOR CLASS CERTIFICATION AND
BRIEF IN SUPPORT Plaintiffs, Elliott Abrams, Craig Seegmiller, Vincent Glass, Robert Reeves, Jermaine Campbell, and Lamont Heard, on behalf of themselves and all others similarly situated, by and through their counsel, Daniel E. Manville, Michigan State University Clinical Law Professor, move this Court, to certify a class pursuant to Fed.
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R. Civ. P. 23(a), (b)(1) and (b)(2), as well as four subclasses. This class action seeks to require Defendants, wardens from around the State and Director of the MDOC, to implement procedures that provide reasonable medical care for Plaintiffs and keep them reasonably safe from contracting communicable disease while in custody. 1. Plaintiffs propose to certify a class composed of all inmates who currently are, or who in the future will be, incarcerated in the MDOC’s custody, at its different prisons, and who are subjected to the MDOC’s policies and practices regarding COVID-19. This present class would be more than 37,000 prisoners. 2. Plaintiffs also seek to represent five subclasses of MDOC’s inmates:
A. First subclass would be those inmates who are Double Bunked in individual cells and are not able to engage in social distancing as required by the CDC guidelines based on the conditions within the housing units.
B. Second subclass would be those inmates who are confined in Pole Barns that have two sections, with each section containing at least 20 cubes, holding 8 inmates in an area of 8’x12’.
C. The Third Subclass would consist of those inmates who have been designated by medical staff as Chronic Care inmates and according to the CDC are at high risks of severe illnesses from COVID-19 infection, including death – these high-risk conditions include: People aged 65 or older;
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People with chronic lung disease or moderate to severe asthma; People who have serious heart conditions; People who are immunocompromised including cancer treatment; and People of any age with severe obesity (body mass index [BMI] >40) or certain underlying medical conditions, particularly if not well controlled, such as those with diabetes, renal failure, or liver disease. D. The fourth subclass would be those prisoners confined in open cellblocks where the spread of the COVID-19 cannot be controlled. E. The fifth subclass would be those prisoners who are confined in cell blocks who have tested negative where staff have housed inmates that have tested positive and have taken no or limited medical precautions to prevent the spread of COVID-19 to all the other inmates confined in the same cell block.
Introduction 3. This case is about Defendants’ failure to act to protect the lives of prisoners from novel coronavirus and its resulting disease, COVID-19. Defendants have failed to respond adequately to the urgent threat posed to people confined in prisons across Michigan during this growing and lethal pandemic. Defendants omissions make it
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impossible for the incarcerated class members to observe the precautionary steps necessary to keep themselves safe, such as social distancing, increased personal hygiene, sanitizing one’s personal environment, access to testing, and wearing protective clothing. Defendants’ disregard of the known risks of illness and death exposes all prisoners to a highly fatal infectious disease in violation of their rights under the Eighth Amendment. Plaintiffs challenge these unconstitutional conditions and now move for class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(1) and (b)(2). Plaintiffs also move for appointment of the undersigned as class counsel under Rule 23(g). 4. Class certification is warranted because Plaintiffs seek declaratory and injunctive relief to address the unconstitutional conditions that prevail in the prisons. See Fed. R. Civ. P. 23(b)(2) (allowing class certification where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole”). These conditions pose similar health risks to Plaintiffs and all putative class members by exposing them all (as well as prison staff and the public at large) to a serious risk of infection and, as a result, serious and lasting bodily harm—up to and including death. Resolving Plaintiffs’ claims requires answering the same common questions of law and fact by finding that the conditions in the jail violate the Eighth Amendment. A declaratory judgment and injunction on behalf of the entire class will remedy these issues for all class members. There are far too many class members,
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and the class and subclasses are too fluid, to efficiently resolve these questions individually. The named Plaintiffs and their counsel are dedicated to vindicating the constitutional rights of the proposed class members. Counsel will provide quality representation for the interests of proposed class members—just as they have for other similar classes of incarcerated people in the State of Michigan. 5. Each prison in Michigan is a ticking time bomb—a mass outbreak of COVID19 is imminent due to conditions that create a breeding ground for the rapid transmission of this virus. Necessary social distancing is next to impossible inside Michigan’s prisons because inmates are either (1) confined two person to a cell; (2) confined in cubes in Pole Barn with 8 inmates to a cube and 20 set of cubes on each side of the Pole Barn; (3) inmates placed in dayrooms, gym and class rooms up to sixty people are forced to live in the same jail cell where dozens of bunk beds are placed only one to three feet apart. (Ex. 17, Anderson, ¶ ¶7-8; Ex. 18, Cantrell, ¶¶7-9; Ex. 19, Hawkins, ¶¶12, 14; Ex. 21, Hodges, ¶¶8-9; Ex. 24, Szenay, ¶¶56). 6. Toilets, sinks, and showers are shared without disinfection between each use; inmates are being fed in chow halls or the Pole Barns without social separation; people exhibiting COVID-19 symptoms are being held in the same cells or housing units with people who are asymptomatic. (Ex. 8, Seegmiller, ¶ 2; Ex. 12, Cambpell,
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¶4; Ex. 13, Heard, ¶2) and (Ex. 11, Glass, ¶¶2-4, confined with those who tested positive). 7. There is no way for incarcerated people to keep their cells or the filthy shared toilets and showers clean and hygienic. (Ex. 17, Anderson, ¶6; Ex. 25, Winbush, ¶¶ 4, 5 and 14; Ex. 26, Lyons ¶4). 8. Defendants’ policies and practices violate the rights of all class members to be free from cruel and unusual punishment. U.S. Const. amend. VIII. A prison’s failure to protect the medical needs of the inmates will result in cruel and unusual punishment if consciously ignored. Brown v. Plata, 563 U.S. 493, 510 (2011) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). See DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189, 200 (1989) (“[W]hen 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 and the Due Process Clause.”). Plaintiffs seek class-wide declaratory and injunctive relief declaring the conditions under which the entire class is detained to be unconstitutional, and ordering that conditions be immediately and drastically improved. In the case of the Chronic Care Subclass, that they be immediately separated from other prisoners and placed in a prison or housing units that will allow
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social distancing given the immediate and severe health risk posed by the conditions,
conditions that cannot be abated rapidly or starkly enough to protect these medically
vulnerable individuals.
Legal Analysis of Rule 23 Requirements
A. Requirements of Rule 23(a)
A party seeking to certify a class action must demonstrate that the class is
“ascertainable,” satisfies the prerequisites of Rule 23(a), and qualifies under at least
one of the three subsections of Rule 23(b).1 See Jamie S. v. Milwaukee Pub. Sch.,
1 (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (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. (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient
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668 F.3d 481, 493 (7th Cir. 2012). Rule 23(a) requires (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Fed. R. Civ. P. 23(a). “A party seeking class certification must meet the burden of establishing each prerequisite before a suit may proceed as a class action.” Clemons v. Norton Healthcare Inc. Retirement Plan, 890 F.3d 253, 278 (6th Cir. 2018) (noting Rule 23“(a)” requirements are numerosity, commonality, typicality, and adequate representation). Plaintiffs meet the four requirements for Rule 23(a) and 23(b)(2).
While the Court must perform a “rigorous analysis” to determine whether to certify a class, Wal-Mart v. Dukes, 564 U.S. 338, 351 (2011), the Court may not require the plaintiffs to prove their claims at the class certification stage. See Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455, 466 (2013) (warning “[m]erits questions may be considered . . . only to the extent . . . that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied”). At the certification stage, Plaintiffs need only provide evidence to demonstrate that Rule 23 itself is satisfied; certification is not a “dress rehearsal for the trial on the merits.” In re Whirlpool Corp. Front-Loading Washer Prods. Liab.
adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
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Litig., 722 F.3d 838, 851–52 (6th Cir. 2013) (internal quotations and citation omitted). Moreover, “it is not always necessary . . . to probe behind the pleadings before coming to rest on the certification question, because sometimes there may be no disputed factual and legal issues that strongly influence the wisdom of class treatment.” Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 417 (6th Cir. 2012) (internal quotations and citation omitted).
Class certification is particularly favored when, as here, the named Plaintiffs assert civil rights claims that are of a fleeting or transitory nature, such that mootness concerns would make it difficult or impossible for individuals to litigate the issues outside of the class context. See Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981) (noting that “the substantial risk of mootness presented by the facts of this dispute was sufficient to create a need for certification”); see also Penland v. Warren Cty. Jail, 797 F.2d 332 (6th Cir. 1986) (citing Johnson with approval); Cmtys. for Equity v. Michigan High Sch. Athletic Ass’n, 192 F.R.D. 568, 575 (W.D. Mich. 1999). Due to the spread of the COVID-19 virus in the prison system, there is no telling if any of the members will live for the duration of this lawsuit.
1. Rule 23(a)(1) – Numerosity Given that all current and future inmates will be subjected to the COVID-19 virus, joinder of all MDOC inmates would be impracticable. “Impracticable,” for the purpose of Rule 23, does not mean “impossible”; rather, the named Plaintiffs must
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show that the number of allegedly affected individuals is sufficiently large that “[i]t
would be extremely difficult or inconvenient to join all members of the class.” See
generally 7A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 1762 at 176 (3d ed. 2005) (footnote omitted); see also 1
Alba Conte & Herbert Newberg, Newberg on Class Actions § 3:3 at 225 (4th ed.
2002) (noting “[w]here the exact size of the class is unknown but general knowledge
and common sense indicate that it is large, the numerosity requirement is satisfied”).
Cases have shown that at least 50 members are sufficient to satisfy a class:
There is no “strict numerical test” that must be met for a class to be certified. Senter v. Gen. Motors Corp., 532 F.2d 511, 523, n. 24 (6th Cir.1976). The requirement can be satisfied with a class size as low as 35 people. See Afro Am. Patrolmen's League v. Duck, 503 F.2d 294, 298 (6th Cir.1974) (finding class sufficiently numerous at 35); Ham v. Swift Transp. Co., Inc., 275 F.R.D. 475, 483 (W.D.Tenn.2011) (“Where the number of class members exceeds forty, Rule 23(a)(1) is generally deemed satisfied.”); Kizer v. Summit Partners, L.P., 1:11– CV–38, 2012 WL 1598066 at *4 (E.D. Tenn. May 7, 2012) (“In the WARN Act context, several courts have found that the numerosity requirement was satisfied when at least 50 employees were in the class.”).
Calloway v Caraco Pharm Labs., Ltd, 287 FRD 402, 406 (E.D. Mich. 2012). The
class consists of every inmate incarcerated in Michigan. That number is over 37,000
inmates, and easily satisfies the numerosity requirement.
Plaintiffs’ counsel estimates that the subclass of double bunking would be
over 4,000. The subclass of those confined in the pole barns would be more than
2,000. The subclass of the Chronic Care inmates would be over 550 inmates just
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confined at the Lakeland prison, and the total for all prisons would be in the thousands. The subclass of those inmates confined in the dayrooms, gyms and classrooms would be over 500 inmates. 2. Rule 23(a)(2) – Commonality
In Wal-Mart v. Dukes, the Supreme Court rejected superficial common questions, such as whether each class member “suffered a violation of the same provision of law.” 564 U.S. 338, 350 (2011). The Court held that the common connection “must be of such a nature that it is capable of class-wide 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.” Id. Applying this standard, the Court reversed the district court’s certification of a class of female WalMart employees because the alleged discriminatory employment decisions were not made pursuant to uniform policy or practice. Id. at 359. The fact that Wal-Mart’s local managers used their discretion to make employment decisions vitiated the common question of whether the decisions were discriminatory. Id. at 356.
In this matter, each Defendant has not enforced a social distancing policy of six feet within housing, in the chow hall, or in the yard; each Defendant has allowed the Chronic Care inmates to be housed in units with inmates susceptible to the COVID-19 virus; each Defendant has placed inmates who tested positive in units with those who have not testified positive. The common questions of fact and law
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turn on the lack of prophylactic steps taken by high level officials in the prison system, underscoring their deliberate indifference to the substantial risk of harm presented by COVID-19.
The claims asserted on behalf of the proposed class include common questions of law and fact that satisfy Rule 23(a)(2). Commonality requires that the class members’ claims “depend on a common contention” of fact or law such 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, 564 U.S. at 350. Courts must “start from the premise that there need be only one common question to certify a class.” In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 722 F.3d 838, 853 (6th Cir. 2013). Courts find common questions of both law and fact “at a high level of generality.” Newberg on Class Actions § 3:19 (5th ed.) (internal quotations and citation omitted).
Commonality also requires these common questions “to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 349 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009) (emphasis in original)). These “common answers” must “relate[] to the actual theory of liability in the case.” Rikos v. Procter & Gamble Co., 799 F.3d 497, 505 (6th Cir. 2015); see also Cmtys. For Equity v. Michigan High School Athletics Ass’n, 192 F.R.D. 568, 572 (W.D. Mich. 1999); Newberg on Class
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Actions § 3:20 (5th ed.) (“When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persona affected.”).
Accordingly, courts in the Sixth Circuit have repeatedly certified class actions in which incarcerated people challenge the circumstances or conditions of their detention. See Dearduff v. Washington, 330 F.R.D. 452 (E.D. Mich. 2019) (granting in part and denying in part a class motion on dental care in Michigan’s prison system); McBride v. Michigan Dept. of Corrections, No. 15-1122, 2017 WL 3085785 (E.D. Mich. July 20, 2017) (certifying class of deaf and/or hard of hearing prisoners), see Exhibit 18; Smith v. Ohio Dep’t of Rehab. and Corr., No. 2:08–CV– 15, 2012 WL 1440254 (S.D. Ohio April 26, 2012) (certifying class of prisoners suffering exposure to high levels of asbestos), see Exhibit 19; Hiatt v. County of Adams, Ohio, 155 F.R.D. 605, 609 (S.D. Ohio 1994) (finding commonality satisfied where “[t]he conditions, policies and practices challenged” in the carceral setting impacted all detained people); Gorton v. Johnson, 100 F.R.D. 801 (E.D. Mich. 1984) (certifying class of incarcerated people challenging mental health treatment provided to them); Glover v. Johnson, 85 F.R.D. 1, 5-6 (E.D. Mich. 1977) (certifying class of female prisoners who challenged the MDOC’s unconstitutional policies in providing women with inferior educational and vocational programs).
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The core theory of this case alleges that the Defendants inflict constitutional injuries on each member of the proposed class. Specifically, Defendants unconstitutionally confine Plaintiffs in unsafe and unhygienic conditions prevailing in the prison, ignoring the concomitant risks of contracting COVID-19. All class members suffer the same injury, namely an unconstitutional risk of exposure to an extraordinarily dangerous disease. And all members of the Chronic Care Subclass share a greatly elevated actuarial risk of suffering death or permanent organ damage or failure.
These injuries are “capable of classwide resolution,” Rikos, 799 F.3d at 505 (quoting Dukes, 564 U.S. at 350), because the Court can issue a single declaration finding that the conditions in the prison to be in violation of the Eighth Amendment and ordering immediate measures to address the conditions. And a single additional remedy mandating separate placement of the Chronic Care Subclass can address the increased risk to the subclass. In sum, this case goes far beyond the “single common question [that] will do.” Dukes, 564 U.S. at 359 (internal quotations and citation omitted). Indeed, most questions of fact and law that will arise in this suit are common across the class. Among the most central common questions of fact are:
-What measures did Defendants implemented in the prisons in response to the COVID-19 crisis; -Whether the conditions maintained by the Defendants in the prisons are sufficient to prevent an unreasonable risk of the spread of COVID-19;
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-Whether Defendants’ practices during the COVID-19 pandemic expose people in the prisons to a substantial risk of serious harm; -Whether Defendants knew of and disregarded a substantial risk of serious harm to the safety and health of the class and subclasses; and -Whether COVID-19 presents a heightened risk of harm and potential death to the Chronic Care Subclass. Among the most important common questions of law are: -As to the entire class: whether the conditions in which the class is confined are objectively unreasonable given the health risks to class members. -As the Chronic Care Subclass: whether the threat of harm or death to members of the subclass is so severe that the only constitutionally permissible way to protect them is to place them all in a separate cell block or separate prison. Defendants may claim that each prisoner is affected differently from the COVID-19 virus so there cannot be commonality. This argument was rejected in McBride v. Michigan Dep’t of Corr., where the class consisted of deaf and/or hard of hearing prisoners. Magistrate Judge Grand rejected that argument because it “runs counter to a broad body of Sixth Circuit case law, which has consistently held that the commonality requirement demands that claims share only a single issue, not be identical.” McBride v. Michigan Dep’t of Corr., No. 15-CV-11222, 2017 WL 3097806, at *5 (E.D. Mich. June 30, 2017), report and recommendation adopted, No. 15-11222, 2017 WL 3085785 (E.D. Mich. July 20, 2017) (citing Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 (6th Cir. 1997)), see Exhibit 18; Rikos v.
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Procter & Gamble Co., 799 F.3d 497, 508-09 (6th Cir. 2015); Whirlpool, 722 F.3d at 853; Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 424 (6th Cir. 1998)).
As Chief Judge Feikens once explained in Glover v. Johnson, 85 F.R.D. 1, 45 (E.D. Mich. 1977) (quoting Sweet v. General Tire & Rubber Co., 74 F.R.D. 333, 335 (N.D. Ohio 1976):
Clearly each individual member of the class has a unique situation and has been affected in diverse ways by the alleged discriminatory policy. That there are differences in situation and effect does not preclude a finding by this Court of commonality. That each class member’s case is in other ways unique does not affect the commonality of the action, as long as the members of the class have allegedly been affected by a general policy of the defendant, and the general policy is the focus of the litigation. See also Dowdy-El v. Caruso, No. 06-11765, 2012 WL 6642793, at *4 (E.D. Mich. Aug. 15, 2012), report and recommendation adopted, No. 06-11765, 2012 WL 6642763 (E.D. Mich. Dec. 20, 2012) (quoting same passage), see attached Exhibit 20; McBride, No. 15-CV-11222, 2017 WL 3097806, at * 6 (same), Exhibit 18. Magistrate Judge Grand has also explained that commonality is met in “cases involving enforcement of a uniform policy of procedure, including those relating to prisoners, are often approved as class actions because they involved questions of fact and law common to all members . . . when ‘inmates have a common interest in preventing the recurrence of the objectionable conduct.’” Id. at *5 (quoting Jones v. Goord, 190 F.R.D. 103, 111 (S.D.N.Y. 1999)).
16

Case 2:20-cv-11053-MAG-RSW ECF No. 7 filed 04/30/20 PageID.651 Page 17 of 22
The case here is like McBride, Glover, and Dowdy-El in that, all prisoners who are subjected to the COVID-19 virus but might be affected in different ways. Some could be asymptomatic, others could become mildly infected, or others might die within a few days. The different ultimate effect that COVID-19 might have on the different class members does not prevent this Court from finding commonality. Parsons v. Ryan, 289 F.R.D. 513, 521 (D. Ariz. 2013), aff'd, 754 F.3d 657 (9th Cir. 2014) (noting “[i]t matters not that each inmate may suffer from different ailments or require individualized treatment because commonality may be met where ‘the claims of every class member are based on a common legal theory, even though the factual circumstances differ for each member’”) (internal citation omitted).
In this case, Plaintiffs’ two expert have “identified several accommodations that would address the needs of all or most class members” subject to the COVID19 virus. The main accommodation is to separate everyone by 6-feet. At this stage, social distancing is basic common sense in the outside world. The MDOC’s systemwide failure to implement any sort of policy requiring 6-feet social distancing is the basis of this lawsuit. Such a policy “would benefit all prisoners.” McBride, No. 15CV-11222, 2017 WL 3097806, at * 6, Exhibit 18. Despite specifically varying COVID-19 symptoms among class members, MDOC’s policy and this Court’s remedy would affect them the same. That is all the “commonality” a class requires.
17

Case 2:20-cv-11053-MAG-RSW ECF No. 7 filed 04/30/20 PageID.652 Page 18 of 22
In short, common questions of fact and law pervade this case, satisfying the Rule 23(a)(2) commonality requirement. 3. Rule 23(a)(3) – Typicality
In In re American Medical Systems, Inc., 75 F.3d 1069 (1996), the Sixth Circuit explained that “a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” Id. at 1082 (citation omitted). The conduct complained of in this complaint is the failure to provide protection from COVID-19 within the MDOC’s prisons.
Plaintiffs in this case have claims typical of all of the members of the class, i.e., of all of the people incarcerated in the prison. To meet the typicality requirement, the named plaintiffs’ claims must be “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The commonality and typicality requirements of Rule 23(a) tend to merge.” Dukes, 564 U.S. at 349 n.5. And, “[l]ike the test for commonality, the test for typicality is not demanding and the interests and claims of the various plaintiffs need not be identical.” Reese v. CNH Am., LLC, 227 F.R.D. 483, 487 (E.D. Mich. 2005).
“A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the] claims are based on the same legal theory.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th
18

Case 2:20-cv-11053-MAG-RSW ECF No. 7 filed 04/30/20 PageID.653 Page 19 of 22
Cir. 2007). So long as the class and its representatives have similar legal theories arising from the same practice or course of conduct, the requirement is met “even if substantial factual distinctions exist between the named and unnamed class members.” Rankin v. Rots, 220 F.R.D. 511, 518 (E.D. Mich. 2004).
Courts in the Sixth Circuit have consistently found prisoners’ claims to be “typical” of the class they propose to represent where the claims arise from policies or conditions at an institution affecting all members of the proposed class. In Glover, 85 F.R.D. at 5-6, Chief Judge Feikens held that plaintiffs’ claims regarding the Department of Corrections’ policies were typical of those of the class, regardless of whether each class member was “identically situated.” In Smith v. Ohio Dept. of Rehabilitation and Correction, No. 2:08-cv-15, 2012 WL 1440254 at *4-5 (S.D. Ohio Apr. 6, 2012), see Exhibit 19, the court found that a prisoner’s claims regarding asbestos at the prison were typical of those of the class of prisoners he sought to represent because they arose “from the same events, practice or course of conduct.” And in Brown v. city of Detroit, No. 10-12162, 2012 WL 4470433 (E.D. Mich. Sept. 27, 2012), see Exhibit 21, the court held that the named plaintiff raised claims that were typical of those of the proposed class of pretrial detainees where he was detained for a substantial amount of time without bedding and for more than 48 hours without a probable cause hearing. See also Eddleman v. Jefferson County, 96 F.3d 1448, 1996 WL 495013 at *4 (6th Cir. 1996) (unpublished) (typicality requirement
19

Case 2:20-cv-11053-MAG-RSW ECF No. 7 filed 04/30/20 PageID.654 Page 20 of 22
met where plaintiffs challenged county jail’s blanket strip search policy even though individual searches varied in scope).
Each named Plaintiff’s claim is based on the same or similar conditions in the prisons that do not provide adequate protection for the health and safety of the people incarcerated there. Every named Plaintiff (and every class member) is subject to harm as a result of the unhygienic conditions in the prison. To the extent conditions vary in different prisons or buildings of the prisons, all inmates are still similarly impacted given that they all risk similar transmission vectors such as guards, contract workers and transporting inmates from one prison to another. In other words, the named Plaintiffs’ experiences exemplify the ways that the prison’s Policies and Practices harm the members of the class and demonstrate that the harms arewidespread across all types of class members. 4. Rule 23(a)(4) – Adequacy of Representation
The Sixth Circuit has articulated two criteria the court should examine in determining adequacy of representation: “1) the representative must have common interests with the unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” In re American Medical System, 75 F.3d at 1083 (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976)). In re American Medical System also acknowledges that “[t]he adequate representation requirement overlaps with the
20

Case 2:20-cv-11053-MAG-RSW ECF No. 7 filed 04/30/20 PageID.655 Page 21 of 22
typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members.” Id. Typicality, or the “common interests” of the first criteria of adequacy has already been demonstrated.
Beattie v. CenturyTel, Inc., 511 F.3d at 562-63, expanded on the question of qualified counsel: adequacy requires a determination “whether class counsel are qualified, experienced and generally able to conduct the litigation, and to consider whether the class members have interests that are not antagonistic to one another.” Id. (quoting Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000)).
Professor Daniel Manville is recognized as an expert in the area of the rights of prisoners. The class may be assured that its interests will be vigorously prosecuted through the Civil Rights Clinic, Michigan State University College of Law. Attorney Manville has been class counsel in the matter of Johnson v. Martin, Case No. 2:00cv-75, 2005 WL 3312566 *1 (W.D. Mich. Dec. 7, 2005) (class consisted of over 1000 prisoners), see Exhibit 22. Presently Professor Manville is co-counsel in two other class actions in this court. Ackerman v. Washington, No. 12-14137 (E.D. Mich. Aug. 21, 2018), ECF No. 157 (class of approximately 80 Jewish inmates) and Dearduff v. Washington, 330 F.R.D. 452 (order granting partial class action certification regarding dental issues).
21

Case 2:20-cv-11053-MAG-RSW ECF No. 7 filed 04/30/20 PageID.656 Page 22 of 22
WHEREFORE, this Court should grant this motion as to the class and the
subclasses for the reasons stated above.
Respectfully submitted,
/s/ Daniel E. Manville Daniel Manville (P39731) Director, Civil Rights Clinic, MI. State University College of Law P.O. Box 1570 East Lansing, Michigan 48823 (517) 432-6866 daniel.manville@law.msu.edu
Kevin Ernst (P44223) Ernst Charara & Lovell, PLC Counsel for Plaintiffs and the proposed
Class and Subclass 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 kevin@ecllawfirm.com
PROOF OF SERVICE I, Daniel E. Manville certify, under penalty of perjury, that on April 30, 2020 , I caused a copy of the above document to be served by Email on Cori Barkman and Kevin O’Dowd, AGs in the Corrections Division, Attorney’s Office due to the filing of an emergency motion for temporary restraining order and motion for class certification AND ALSO ECF IF COUNSEL HAS FILED AN APPEARANCE FOR DEFENDANTS.
/s/ Daniel E. Manville Daniel E. Manville
22

Case 2:20-cv-11053-MAG-RSW ECF No. 7-1 filed 04/30/20 PageID.657 Page 1 of 2

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, JERAMINE CAMPBELL, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

Plaintiffs,

-v-
WILLIS CHAPMAN, Warden, Macomb Correctional Facility (MRF) ; NOAH NAGY, Warden at G. Robert Cotton Correctional Facility (JCF); MELINDA BRAMAN, Warden, Parnall Correctional Facility (SMT); BRYAN MORRISON, Warden Lakeland Correctional Facility (LCF); HEIDI WASHINGTON, Director of the Michigan Department of Corrections, sued in their official capacities only,

Case No. 2:20-cv-11053-MAG-RSW Hon. Mark A. Goldsmith Maj. Judge R. Steven Whalen

Defendants.

/

EXHIBIT LISTS Motion to Grant Class Certification
1. Declaration of Elliott Abrams 2. Declaration of Craig Seegmiller 3. Declaration of Robert Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 7-1 filed 04/30/20 PageID.658 Page 2 of 2
4. Declaration of Vincent Glass 5. Declaration of Jermaine Campbell 6. Declaration of Lamont Heard 7. Declaration of Demonte Anderson 8. Declaration of Jason Cantrell 9. Declaration of Dax Hawkins 10. Declaration of Dwight Henley 11. Declaration of Mitchell Hodges 12. Declaration of Trevor Killiam 13. Declaration of Eugene Marr 14. Declaration of Lu Szenay 15. Declaration of Robert Winburn 16. Declaration of David Lyons 17. WITHDRAWN 18. McBride v. Michigan Dept. of Corrections, No. 15-1122, 2017 WL 3085785
(E.D. Mich. July 20, 2017) 19. Smith v. Ohio Dep’t of Rehab. and Corr., No. 2:08–CV–15, 2012 WL
1440254 (S.D. Ohio April 26, 2012) 20. Dowdy-El v. Caruso, No. 06-11765, 2012 WL 6642793, at *4 (E.D. Mich.
Aug. 15, 2012), report and recommendation adopted, No. 06-11765, 2012 WL 6642763 (E.D. Mich. Dec. 20, 2012) 21. Brown v. city of Detroit, No. 10-12162, 2012 WL 4470433 (E.D. Mich. Sept. 27, 2012) 22. Johnson v. Martin, Case No. 2:00-cv-75, 2005 WL 3312566 *1 (W.D. Mich. Dec. 7, 2005)

Case 2:20-cv-11053-MAG-RSW ECF No. 7-2 filed 04/30/20 PageID.659 Page 1 of 3
DECLARATION OF ELLIOTT ABRAMS, 974262 I, Elliott Abrams, under the penalty of perjury, states the following: 1. Presently I am confined at Macomb Correctional Facility, located in Lenox, Michigan. I am required to share a cell with another inmate. Since his incarceration, MDOC has recognized that he has a compromised immune system. 1 2. My parole date is next year. I am scared that I will not live that long. Based on the manner that I am forced to share a cell with another inmate and that there seems to be little if no effort to enforce social distancing and sanitizing of common areas, I am surprised when I wake up each morning without having contacted COVID-19. I have seen inmates removed from this prison in body bags and I think how I would be the next one. I fear that I might die in prison from COVID-19. 3. Defendants have designated numerous cells at MRF to house two prisoners. Each cell includes 2 lockers, 2 desks, 2 chairs, a bunk bed, and the personal property (2 footlockers, 2 TVs, books, paperwork, clothes) of each inmate. At
1 On April 13, 2020, I filed two grievances as to being subjected to COVID-19. One grievance was addressed to the Warden-Defendant and the other directed at the Director­ Defendant A response was provided to both grievances. The grievance against the warden was rejected claiming he was following policy. The grievance against the Director was rejected as being duplicative. I then sought 2d step grievance forms but have not received such forms yet.
1
Exhibit 1 - Decl. Eilliott Abrams

Case 2:20-cv-11053-MAG-RSW ECF No. 7-2 filed 04/30/20 PageID.660 Page 2 of 3
Macomb Correctional Facility some of the cells do not have their own bathrooms. Instead at the beginning of each of the 4 levels or "wings", there is a community bathroom with 3 stalls. 2 urinals, 4 sinks with mirrors, and 2 wall mounted electric hand dryers. Two individual showers stalls are located at the beginning of each of the community bathrooms. Located by the stairs to each of the four wings are 2 telephones, a drinking fountain, a garbage can and a microwave. At least 16 inmates are now housed in the dayroom and these inmates are required to use the same bathroom, kiosk, microwave, telephone, and chow area in the housing unit as the other inmates. 4. I have observed that cleaning of commonly used areas is not consistently wiped down or cleaned. 5. The meals are now fed in the housing unit and inmates are not required to keep spacing of 6-feet while waiting to be serve their food. One person is allowed to use the microwave at a time. There are two telephone that are approximately 6 feet apart and there is no restriction limiting the telephone used to the roommates at the same time. Prison staff did implement a rule that only the two inmates in a cell could use the telephone at the same time. The enforcement of this policy lasted about a week. From what I have observed, it seems that the telephones are not sanitized after each use. There is a kiosk room in the unit that contains the Jpay system (similar to a computer which
2
Exhibit 1 - Decl. Eilliott Abrams

Case 2:20-cv-11053-MAG-RSW ECF No. 7-2 filed 04/30/20 PageID.661 Page 3 of 3
allows inmates to send emails to family members and others) and a store kiosk, where twice a month inmates can order items from the prison store to be delivered to the housing unit. Staff, generally, will allow only the two inmates sharing the cell in the kiosk room at the same time. Plaintiff Abrams is not sure if the kiosk room is sanitized after each use. Plaintiff Abrams has observed the inmate pmiers undertake only one cleaning per each 8-hour shift. Each staff is required to do three shakedown each shift worked. Abrams has observed officer do shakedowns of more than one inmate at a time without changing gloves. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: ------- Signature:[�� �
lJ! p-uu�
3
Exhibit 1 - Decl. Eilliott Abrams

Case 2:20-cv-11053-MAG-RSW ECF No. 7-3 filed 04/30/20 PageID.662 Page 1 of 2
DECLARATION OF CRAIG SEEGMILLER, 373625
I, Craig Seegmiller, under the penalty of perjury, state the following: 1. I am presently confined within the Michigan Department of Corrections at Cotton Correctional Facility, located in Jackson, Michigan. 2. Seegmiller is confined in a Pole Barn at JCF. He is confined in a cube with at least 8 other inmates, in an area that is approximately 10'x12'. There is a total of 20 cubes, for a total population of 160 inmates on each side of the Pole Barn. Seegmiller is currently housed in T-A, one of two sides of the pole-barn. T-A and T-B each house one hundred and sixty (160) inmates. There are two bathrooms in each side of the pole barn. One for the front hall and one for the back hall. There are three (3) showers, three (3) urinals, and four (4) toilets for eighty (80) inmates in each hall. The ceiling in the cubicles is approximate twelve (12) feet high. There is an eight (8) foot divider wall resembling an open case between the back and front of the top of the divider. The ceiling in the cubicles is approximate twelve (12) feet high. There are two (2) JPAY computers, one (1) store kiosk, and five (5) telephones on each side and these are shared by the 160 inmates on each particular side. Plaintiff Seegmiller has not observed any of these items sanitized by prison porters after being used by prisoners. An individual prisoner may wipe one of these items down before using it. Prison staff has made available a limited supply of cleaning materials each day but once the cleaning supplies have been issued for that day none is available until the next day.
1
Exhibit 2 - Decl of Seegmiller

Case 2:20-cv-11053-MAG-RSW ECF No. 7-3 filed 04/30/20 PageID.663 Page 2 of 2
3. As of April 20, 2020, five of the inmates in my cube tested positive. When I heard that, I freaked out. I thought for sure that I also had CORVID-19 and there was nothing I would do about it. I was never tested. The only treatment I was given, if you can call it that, 1 was temporarily moved to the level 2 side of dorm D, a
different housing unit, for approximately 36 hours. and was sent back to the level 1 side to the Pole Barn without first being tested. 1 I constantly live in fear that I will die next because I was given little medical care after five of my bunkies tested positive. 4. On April 17, 2020, in the afternoon, the officers in the Pole Barns at the Cotton Facility went through each Pole Barn and cut the electrical cord to each fan to
prevent the spread of the spread of COVID-19 virus is what the officer told me. However, I was not provided social distancing while confined at the Cotton Prison to help prevent me from becoming infected. It is very fearful to be in prison with a pandemic, knowing that you could easily catch it, and die. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: ------- Signature � �� �
h/1��
1 I filed two grievances. One was against the Warden and the other against Director Washington on April 9, 2020. These grievances were returned to be on April 13, 2020. I filled out and submitted steps ll's appeals for both grievance on April 17, 2020 but have not received responses.
2
Exhibit 2 - Decl of Seegmiller

Case 2:20-cv-11053-MAG-RSW ECF No. 7-4 filed 04/30/20 PageID.664 Page 1 of 4
DECLARATION OF ROBERT REEVES I, Robert Reeves, under penalty of perjury, state the following: 1. I am presently confined at the G. Robert Cotton Correctional facility (JCF), Prior to my confinement at Cotton, I was confined at Parnall Correctional Facility (SMT) in Jackson, Michigan. At SMT, I contracted COVID-19 when I was house in 58-B 10 block at Pamall. I was only at Pamall from February 25, 2020, to March 28, 2020. At Parnall, I was confined in a one-man cell that had open bars. There are more than 300 prisoners confined in the open-bar setting. At Pamall, there are thirteen (13) open showers in IO-block for the use of 300 prisoners. At Parnall, I was allowed to go to chow hall. Prisoners stood in line with other prisoners, but once we got to the chow hall, we sat 2 at a table, about 2 feet from each other. However, prisoners walked to chow together without being told to distance from each other. At Parnall, I was only given a mask after I tested positive for COVID-19. However, I was forced to be around positive prisoners in the same block before I was tested. 2. When I was told that I tested positive for CORVIC-19, I was sure that within days I would be extremely sick and then die. The only care I received was that I was transferred from Parnall to Cotton on March 28, 2020 because I tested positive for COVID-19. When I arrived at Cotton, I was placed in a one-man cell, with closed quarters. The next day another positive inmate was placed in the cell with me.
Exhibit 3 - Decl. of Robert Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 7-4 filed 04/30/20 PageID.665 Page 2 of 4
3. I was given a mask on March 28th, and sixteen (16) days later, I still have the same mask. I was told to wash the mask that I have. When I tried to exchange my mask for a new one, I was told that they don't have extras. 4. On April 14th, staff were not wearing gloves or masks when handing out disbursements for the phone or at the desk. I could not help but consider that these guards don't care if I live or die by their attitudes and I realized that am helpless and can die. 5. At Cotton, there are two prisoners to a cell in a unit, called K-unit, that seems to house all positive tested inmates. These inmates share the same showers, bathroom, phones, and JPay Kiosks. Three (3) to six (6) inmates are allowed out at a time. There are 88 bunks, with 2 inmates to a cell in K-unit. Each cell is 11' x 8'. There are three (3) showers in K-unit, and one inmate is allowed in each shower at a time. I observed he bathroom in K-unit being cleaned only one time per day by an inmate who is positive for COVID-19. 6. There is a nurse in K-unit at all times and the nurse is wearing a mask. The nurse calls each prisoner out of their cell every day to take their blood pressure and temperature. Prisoners sit in the same chair, and the same medical equipment and supplies are being used without being cleaned between inmates. The nurses do not change their gloves from inmate to inmate.
Exhibit 3 - Decl. of Robert Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 7-4 filed 04/30/20 PageID.666 Page 3 of 4
7. I have not been given any supplies to clean my cell. There is a mop and broom in K unit for all prisoners to use; this is the same mop that is used to clean the bathroom. 8. Inmates are fed in their cells. I have not seen a doctor, nor did I receive medical instructions on what to do if my symptoms got worse, despite complaining of chest pain, coughing up blood, and having problems breathing. I was just told it was normal and to go through it. Being told by medical staff this is normal and just suck it up, created extreme levels of fear and anxiety. You cannot help but think that the medical staff do not care if you live or die. 9. Because I tested positive for COVID-19, I am not allowed to send kites, mail, or grievances. 10. After 21 days in quarantine at JCF- Cotton, I was transferred to Gus Harrison in Adrian, Michigan. At Gus Harrison, I am allowed to send out mail and write grievances, but because I keep being transferred, it is hard to get the grievance responses back from the Grievance Coordinator, or a receipt that the grievance was received. 11. Due to prison staff not requiring social distancing, I cannot help but believe MDOC does not care if inmates, such as me, die. Prisons can be violent places and inmates need to fear for their safety but to add to that fear that you right die from COVID-19 is totally unreasonable
Exhibit 3 - Decl. of Robert Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 7-4 filed 04/30/20 PageID.667 Page 4 of 4

I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me.
I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.

Date:

Signature:

Exhibit 3 - Decl. of Robert Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 7-5 filed 04/30/20 PageID.668 Page 1 of 2
DECLARATION OF VINCENT GLASS, 182453
I, VINCENT GLASS, under the penalty of perjury, states the following: 1. Presently I am confined at Parnall Correctional Facility, located in Jackson, Michigan. 2. I am now confined in 10-block in the type of cell that you see in old prison movies, with bars on the front. This cellblock holds approximately 370 inmates. Based on its design, there is no method for preventing the spread of the COVID19 throughout that block. 3. I was told by officers that the Warden- Defendant Melinda Braman approved the placement of positive tested inmates within 10-block and took no additional steps to separate and protect plaintiff and the class members from the COVID-19 virus. A number of officers told me that numerous positive tested COVID-19 inmate had been placed in IO-block. 4. I feared for my life each day I was confined in 10-block. This fear came from the design of the building that did not allow social distancing, the placement of positive tested inmates in 10-block and the failure to require social distancing when using the showers, bathrooms, telephones, and kiosks. The same when going to chow, at the chow hall, and in the yard, there was no social distancing.
1
Exhibit 4 - Decl. Vincent Glass

Case 2:20-cv-11053-MAG-RSW ECF No. 7-5 filed 04/30/20 PageID.669 Page 2 of 2
5. I am familiar with the description of 10-block provided by Plaintiff Mobreg, supra, and agree with the descriptions of the layout of 10-block and how its operate daily. 6. Glass was confined on the upper level of 10-Block. In order for him to leave his cell and go to the base to go to chow, to take a shower, or to use the telephone, Glass had to go within two feet of 10 to 30 prisoners, to get to the stairs that lead to the base. Once on base, if Glass went to use the telephone, Jpay, shower or chow, it was almost impossible not to be within 6-feet of numerous inmates. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: ---------
2
Exhibit 4 - Decl. Vincent Glass

Case 2:20-cv-11053-MAG-RSW ECF No. 7-6 filed 04/30/20 PageID.670 Page 1 of 2
DECLARATION OF JERMAINE CAMPBELL, 745168 I, Jermaine Campbell, under penalty of perjury, declare that the following is true and correct: 1. I am a prisoner housed at G. Robert Cotton Correctional Facility (JCF) in
the Michigan Department of Corrections. 2. I have asthma and have been treated for asthma while housed in MDOC
custody. Therefore, if I am exposed to COVID-19, it is very likely I could suffer severe medical complications. 3. Plaintiff Campbell lives in an 8-man style cube that is 20 feet by 10 feet. He sleeps within three feet away from three of my cube mates and he eat in the same area as other prisoners and cannot adhere to CDC standards for social distancing. I was given two (2) masks made out of state issued clothing. No replacement masks have been issued. 4. I am a parole violator and have served my minimum sentence. Therefore, I am parole eligible but have not been told when I will be released on parole. I am suffering from mental anguish, anxiety, and PTSD by not knowing ifI will die or be exposed to COVID-19, or even when I may be released from Cotton Prison following the major flare up in here (with dozens infected) and some people dying. See Exhibit 2.
Exhibit 5, Decl. of Jermaine Campbell

Case 2:20-cv-11053-MAG-RSW ECF No. 7-6 filed 04/30/20 PageID.671 Page 2 of 2
5. I am familiar with DOM 2020-29 or 30 (for COVID-19) issued by Director Washington. It is flagrantly being ignored by staff. For instance, Officer Dettloffwas confirmed as having COVID-19 on April 18,2010. Yet,although Dettloff has worked with Officer Divish and Officer Brown, they continued to come to our unit to work, and expose all of us in that unit to COVID-19, such as on Aril 20, 2010. We brought this to ARUS Parsons' attention, and she said these officers don't have to self-quarantine and told another inmate, in my presence, that he should not have come to prison and dying was basically part of life.
6. The attitudes of these prison staff are that they don't care whether inmates live or not. Confronted with such an attitude, L fear for my safety and whether I will live to see the future. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Exhibit 5, Decl. of Jermaine Campbell

Case 2:20-cv-11053-MAG-RSW ECF No. 7-7 filed 04/30/20 PageID.672 Page 1 of 3
Plaintiff Lamont Heard, 252329 - Lakeland Correctional Facility I, Lamont Heard, under the penalty of perjury, state the following: 1. Presently I am confined within the Michigan D epartment of Corrections at Lakeland Correctional Facility (LCF), in Coldwater, Michigan. 2. Heard is confined in Pole Barn E-2 at LCF, which means he is confined in a cube with at least 8 other inmates, in an area that is approximately 10'x12'. The height of the wall separating these Cubes is eight feet high. There are approximately 20 other cubes for a total population of 160 inmates on each side of the Pole Barn. 3. As to the cube in the Pole Barn where Plaintiff Heard is confined, the entire unit can leave their cubes starting at 5:50 am and are required to be locked down in the cubes at 11:30 pm. During the time not required to be in the cube, the inmates in Unit E-2 are allowed yard for approximately 30 minutes at least 10 times a day. During this time out of cubes, the inmates are able to commingle in the Pole Barn without social distancing. 4. I and other inmates were recently told by health service and prison staff that due to some inmates already testing positive in that unit and the other unit inmates in that unit already being exposed to these positive tested inmates, that there was no reason to quarantine any of the inmates. 5. Plaintiff Heard was informed by both medical and unit officers not to request medical care unless it was severe. However, when he asked what is
considered severe, no one wEouxldhitbelilt h6im-. DCoemcml.enotfs Llikaemthoant tfrHomeastradff

Case 2:20-cv-11053-MAG-RSW ECF No. 7-7 filed 04/30/20 PageID.673 Page 2 of 3
that I will wake up the next morning with no virus. Due to design of the Pole Barn, no social distancing in the Pole Barn, at chow, or in the yard, I fear that the odds are I will be infected and die in prison. 1 6 This past week MDOC started testing all the inmates confined at Lakeland prison. As of April 23, 2020, the reported test results showed that 600 - or 40% of the population - have tested positive. MDOC has confirmed that not all tests results have been returned. Once I heard that I b ecame convinced that I will only leave this prison in a b ody b ag. I have observed numerous body bags being take out of Lakeland. I fear for my life. 7. Plaintiff Heard was given three masks and told that he had to wash them because staff would not provide more masks. Plaintiff Heard's temperature is not regularly taken
1 On April 13, 2020, I filed two grievances. One grievance against the Warden for failure to protect against COVID-19 and the other grievance against the Director for her failure to protect me against COVID-19. I have received no response as to either grievance. The reasons for no responses might be that I observed the regular grievance coordinator working in the Pole Barn, in a position of correction officer.
Exhibit 6 - Decl. of Lamont Heard

Case 2:20-cv-11053-MAG-RSW ECF No. 7-7 filed 04/30/20 PageID.674 Page 3 of 3
8. Plaintiff Heard has observed prison staff pat downs inmates either without gloves or not changing gloves when they have completed the pat down of one imnate and patting down the next i11111ate. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: L.J-- ·J..- l -JO
Exhibit 6 - Decl. of Lamont Heard

Case 2:20-cv-11053-MAG-RSW ECF No. 7-8 filed 04/30/20 PageID.675 Page 1 of 2
DECLARATION OF DEMONTE ANDERSON, 795078 I, Demonte Anderson, under the penalty of perjury, state the following:
1. I am currently confined within the Michigan Department of Corrections at the G. Robert Cotton Correctional Facility (JCF) in Jackson, Michigan.
2. I am being housed in TA-128, which is in the pole barn. 3. There are 8 men per cube in the pole barn. There are 20 cubes on each side
of the pole barn, totaling 160 men per side of the pole barn- 80 in the front side and 80 in the back side. 4. There are six showers for each side of the pole barn, 3 at the front side and 3 at the back side. 5. I was given three masks and required to reuse them. I am not able to exchange my masks. 6. I have been given no supplies to clean my cell or cube. I am not allowed to clean my area with bleach. I would get a major misconduct ticket ifl did. 7. I am still being fed in the chow hall. Inmates are required to skip a seat between prisoners. 8. We are still being allowed yard time twice per day. All 900 prisoners are allowed at yard twice per day. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me.
Exhibit 7 - Decl of Anderson

Case 2:20-cv-11053-MAG-RSW ECF No. 7-8 filed 04/30/20 PageID.676 Page 2 of 2
I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Exhibit 7 - Decl of Anderson

Case 2:20-cv-11053-MAG-RSW ECF No. 7-9 filed 04/30/20 PageID.677 Page 1 of 2
DECLARATION OF JASON CANTRELL I, Jason Cantrell, under the penalty of perjury, state the following:
I. I am currently confined within the Michigan Department of Corrections at Oaks Correctional Facility in Manistee, Michigan.
2. I am currently housed in Unit 7 in a double bunk cell. 3. On April 9, 2020, I received a mask that was made from sewn prison blues,
which are made from polyester. 4. There have been no adjustments to how we are to clean our cells or our
clothes. 5. During count, our door handles are being sprayed with bleach. 6. At night, the phones are being sprayed with bleach, but this is not being
done during the day. 7. We are being fed in the chow hall and are required to sit two inmates to a
table, which is approximately 2 ½ feet from one another. 8. There is no glass divider separating inmates from kitchen staff when we are
receiving our trays. 9. There has been no change in yard schedules. I have observed groups of
approximately 80 inmates on the yard together, with no social distancing being enforced.
Exhibit 8 - Decl. of Cantrell

Case 2:20-cv-11053-MAG-RSW ECF No. 7-9 filed 04/30/20 PageID.678 Page 2 of 2
10. We are using the same mop, sponges, toilet brushes, and disinfectant rags as our entire "rock," which holds 60 people.
11. I have observed guards patting down inmates without using gloves. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: If/?-l7J/'J-t
Exhibit 8 - Decl. of Cantrell

Case 2:20-cv-11053-MAG-RSW ECF No. 7-10 filed 04/30/20 PageID.679 Page 1 of 4
DECLARATION OF DAX HAWKINS, 532345 I, Dax Hawkins, under the penalty of perjury, state the following: I. I am currently confined within the Michigan Department of Corrections at Kinross Correctional Facility in Kincheloe, Michigan. We are all housed in 8 temporary pole barn style building. The building is separated into 2 sides, (l side and 2 side). 2. Within each of these buildings, there are 20 individual cubical measuring approximately 12' X 20' with 4 bunkbeds strategically placed, less than 6 feet apart along three of the cube's walls, housing 8 prisoners. 3. Each cube also has 8 large lockers, 8 chairs, 1 large table and personal property of each cube mate, including 8 TV's, state issued clothing and at least 8 personal footlockers. 4. The unit has a very narrow hallway on each side. The hallways run between 5 cubicals on each side. The hallway� are wide enough for 2 way traffic to and from cubicals. Each wing is a single floor which house 80 inmates on each wing, a capacity of 160 inmates. 5. At KCF, the cubicals do not have their own bathrooms. Instead, at the entrance of each hallway is a community bathroom with 3 urinals, 4 toilet stalls, 7 sinks, 7 mirrors and 3 individual small shower stalls. There are no mounted electric hand dryers or hand soap dispensers.
Exhibit 9 - Decl. of Hawkins

Case 2:20-cv-11053-MAG-RSW ECF No. 7-10 filed 04/30/20 PageID.680 Page 2 of 4
6. Located right outside of each bathroom is a drinking fountain, and a garbage can beside one of the fountains on (1 side). There are also 3 phones in the front side lobby(l side) and 3 additional phones next to the bathrooms on (2 side.) 7. There are 2 dayrooms, 3 microwaves and a TV in one of the day rooms. The other room is utilized as a quiet room. 8. Three people are allowed at the microwave at a time. However, the day room setting doesn't permit social distancing because it is also an activity room for watching television and card or board game playing. 9. There are 2 store kiosk on the (lside) lobby area. The activity day room where the TV and microwaves are also has 3 Jpay kiosk. 10. We have been issued face masks. We are mandated and expected to wear them only within the education building, the healthcare, the weight pit and whenever conversing with staff. These are the only times the guards enforce their purposes. 11. The masks are not however in accordance to CDC guidelines or regulations. They are made from thin rectangular shaped scrap khaki material and strips of bedding sheets sewn above the top and bottom for tying purposes. 12. We dine in a communal area where over 100 inmates are called to eat. Depending on which shift or which Sgt. is working determines if more will be packed in the communal area or whether it will be social distancing.
Exhibit 9 - Decl. of Hawkins

Case 2:20-cv-11053-MAG-RSW ECF No. 7-10 filed 04/30/20 PageID.681 Page 3 of 4
13. By prison policy staff are required to do a certain number of pat downs per shift. I have observed officers not change their gloves between pat downs exposing us to potential danger. 14. All 3 meals are fed in the communal area i.e. Chow Hall. Recently the staff have made efforts for inmates to stand 6 feet apart while standing in lines. However, the seating arrangements are not 6 feet. The tables that we are seated are elementary school type bleachers of some kind not for adults. 15. We are provided 2 to 3 rolls of tissue every week and 2 small bars of soap. Inmates are expected to clean their respective areas whenever they feel the need to. We are provided heavily watered-down bleach sprays and disinfectant that has to remain on the surface up to 10 minutes before it is effective. 16. Inmates assigned as porters are responsible for cleaning outside the cubicles and throughout the unit, such as day rooms, showers, restrooms, the lobby, officer's restrooms and the microwave and kiosk areas. 17. The facility is still running community laundry, which means that the laundry from every wing goes into one cart on ( 1 side) at one time and then brought to a laundering area where it is washed, dried and returned the same day. This is done 6 times a week. Inmates doing the laundry service are required to wear gloves or protective gear.
Exhibit 9 - Decl. of Hawkins

Case 2:20-cv-11053-MAG-RSW ECF No. 7-10 filed 04/30/20 PageID.682 Page 4 of 4

The things that I have experienced personally that are different from the rest

of the population are as follows:

1) I am in remission from Hodgkin's lymphoma, I had cancer in my lungs.

2) I underwent chemotherapy and radiation which damaged my lungs.

3) I also have asthma, which I use an inhaler for.

4) On March 25-27, 2020, myself and my 7 other cube mates were put in

quarantine at the URF facility across the street in the segregation unit.

5) We were double bunked and not given any of our personal property. Nor were

we given deodorant or a change of underclothes.

6) We were not allowed to make phone calls or write our loved ones to let them

know where we were at.

7) We were issued one mask and one pair of latex gloves which we had to use

every time staff was at our door with food or medication.

8) We were treated as if we were segregation prisoners although we had done

nothing wrong. When we tried to ask staff about what was going on we were

ignored and talked to disrespectfully.

I have read the above declaration and find that it is true and accurate based on my

observations and/or what staff has informed me.

I give permission to Counsel Daniel E. Manville to sign my name to this

declaration due to the restriction placed on communications by prisoners with

outside sources.
" Date: t---j ·- ').,,b l J

Signature�" cf:

Exhibit 9 - Decl. of Hawkins

Case 2:20-cv-11053-MAG-RSW ECF No. 7-11 filed 04/30/20 PageID.683 Page 1 of 3
DECLARATION OF DWIGHT HENLEY, 246521 I, Dwight Henley, under the penalty of perjury, state the following:
1. I am presently confined within the Michigan Department of Corrections at Macomb Correctional Facility in Lenox, Michigan.
2. I am housed in Housing Unit 2, B-wing, top-bunk. 3. My Bunkie and I have been given cloth face masks. We are told to wash our
masks- inmates are permitted to do laundry twice per week. 4. My temperature is not being taken. 5. In Housing Units 1, 2, and 3, the middle dayroom has been turned into a
dorm and houses 16 prisoners. The dayroom is approximately 30 feet by 50 feet. 6. Prisoners in the dayroom use the toilets in the Housing Units. 7. Inmate porters are responsible for cleaning the toilets and showers, and each one cleans differently, if they choose to clean. Porters are given diluted bleach with water. 8. I have been told that the gym and a few classrooms have also been turned into dorms. 9. For the first week of quarantine, prisoners were still being fed in the chow hall. Now we are being fed in our cells.
Exhibit 10 - Decl. of Henley

Case 2:20-cv-11053-MAG-RSW ECF No. 7-11 filed 04/30/20 PageID.684 Page 2 of 3
10. Prisoner's that require medications are to line up in the Unit to receive their medication and are not told to stand 6-feet apart.
11. Officers are required to do a set number of pat downs per shift. I have observed officers using the same gloves to search multiple prisoners.
12.On April 15, 2020, I submitted two grievances, one against Warden Chapman, and the other against Director Washington.
13. My grievance against WardenChapman and Director Washington was for failing to properly protect grievant from contractingCOVID-19 in all, but not limited to, the following ways: a. Failed to implement measures to ensure staff don't carryCOVID-19 into the prison and infect prisoners; b. Failed to ensure that staff engage in and enforce social distancing during food distribution, in the hallways, at prisoner phones, in prisoner bathrooms, and on base; c. Failed to test and segregate appropriately all prisoners who complain ofCOVID-19 symtoms; d. For moving prisoners from unit to unit without testing them for COVID-19; e. Failed to ensure prisoners reportCOVID-19 symptoms and determine which prisoners are infected.
Exhibit 10 - Decl. of Henley

Case 2:20-cv-11053-MAG-RSW ECF No. 7-11 filed 04/30/20 PageID.685 Page 3 of 3
14.The grievance coordinator returned the grievance against Director Washington to me because it was identical to the other grievance. However, while identical, the grievances grieved two different people.
15 .I spoke to the grievance coordinator about this and submitted another grievance against Director Washington.
I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Exhibit 10 - Decl. of Henley

Case 2:20-cv-11053-MAG-RSW ECF No. 7-12 filed 04/30/20 PageID.686 Page 1 of 2
DECLARATION OF MITCHELL HODGES, 495599 I, Mitchell Hodges, under the penalty of perjury, state the following:
1. I am currently confined within the Michigan Department of Corrections at Lakeland Correctional Facility in Coldwater, Michigan.
2. I am housed in a cube setting in Unit E2, which is a contaminated unit. There are 8 men per cube.
3. I was sick for five days with a fever and took aspirin to help with the fever. When I went to healthcare, I was brought through the waiting room without the room being cleared of other prisoners. The nurse took my temperature, but I did not have one because I had taken aspirin. I was then given a mask and taken back to general population.
4. The same day I was released from healthcare, I was called to chow hall. I wore the mask that I had been given. The Lieutenant came and made me take off the mask and stated that it was scaring people.
5. I am responsible for washing my own mask, and I am not able to exchange it for a new one.
6. It was only when COVID-19 had contaminated our Unit that we were given diluted bleach.
7. I observed staff bringing a whole cube to Quarantine, and then bringing the same men back to the Unit before the two-week quarantine process was up.
Exhibit 11 - Decl. of Hodges

Case 2:20-cv-11053-MAG-RSW ECF No. 7-12 filed 04/30/20 PageID.687 Page 2 of 2

8. We were being fed in the unit, but then staff brought us back to chow hall

before our quarantine was over. We are sitting 4 men to a table.

9. We are still being allowed yard time. Our whole Unit is allowed 30 minutes

of yard 3 times per day.

10. I have observed officers searching inmates without wearing gloves.

11. I have observed officers not wearing masks and claiming that because they

already had the virus, they can't catch it again.

I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me.

I give permission to Counsel Daniel E. Manville to sign my name to this

declaration due to the restriction placed on communications by prisoners with

outside sources.

Date:

/JtllJJJ� Signature: �✓

�

Exhibit 11 - Decl. of Hodges

Case 2:20-cv-11053-MAG-RSW ECF No. 7-13 filed 04/30/20 PageID.688 Page 1 of 2
DECLARATION OF TREVOR KILLIAN, 812131 I, Trevor Killian, under the penalty of perjury, state the following:
1. I am a prisoner currently confined within the Michigan Department of Corrections at the Gus Harrison Correctional Facility in Adrian, Michigan.
2. Prior to being transferred to Gus Harrison, I was confined at Parnall Correctional Facility in Jackson, Michigan.
3. At Parnall, I was forced to clean the gym and the weight pit that was: being used to house prisoners that were positive for COVID-19, and I was not given protective gear. I was forced to do this because of my job as a porter.
4. If I were to refuse to clean the gym because of concerns for my health, I was told that I would get a misconduct violation.
5. After being forced to clean the gym, I tested positive for COVID-19. 6. I am currently in quarantine at Gus Harrison. 7. When I first arrived at Gus Harrison, I was told not to come out of my cell
because it was important to social distance myself from others. The next day, another COVID-19-positive prisoner was placed in the cell with me. 8. My personal property is still at Parnall; officers are refusing to get it to me.
I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me.
Exhibit 12- Decl. of Killiam

Case 2:20-cv-11053-MAG-RSW ECF No. 7-13 filed 04/30/20 PageID.689 Page 2 of 2
I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Exhibit 12- Decl. of Killiam

Case 2:20-cv-11053-MAG-RSW ECF No. 7-14 filed 04/30/20 PageID.690 Page 1 of 1
DECLARATION OF EUGENE MARR
I, Eugene Marr, under the penalty of perjury, state the following: 1. I am a Level I prisoner currently confined at Cotton Correctional Facility in Jackson, ML 2. I am being confined in the pole barn unit at Cotton Correctional Facility, which means that I am living with 160 men in a barn the size of a basketball court; social distancing is physically impossible. 3. I am a chronic healthcare patient with a compromised immune system. 4. I have a disease call sarcoidosis which attacks my immune system, lungs, and other organs inside of my body.
I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: ffeifat1
Exhibit 13 - Decl. of Marr

Case 2:20-cv-11053-MAG-RSW ECF No. 7-15 filed 04/30/20 PageID.691 Page 1 of 1
DECLARATION OF LU SZENAY, 214992 I, Lu Szenay, under the penalty of perjury, state the following:
1. I am currently confined within the Michigan Department of Corrections at the Women's Huron Valley Correctional Facility in Ypsilanti, Michigan.
2. I am confined in Unit Gladwin-B. My Unit has approximately 28 two-man rooms, 8 three-man rooms, 2 six-man rooms, and 2 eight-man rooms.
3. Inmates in my Unit were given masks made of the cotton/polyester cloth that our pants are made of.
4. We are given handsoap to wash our hands in one sink out of the five sinks in the Unit. This soap runs out on the weekends.
5. We are permitted to go to yard and the recreational room when it is open. 6. We are permitted to go to the chow hall and medication lines, one Unit at a
time. We are not required to social distance at during yard, in the chow hall, or in the med line. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Date: f/';J_ Lf/i-'
Exhibit 14 - Decl. of Szenay

Case 2:20-cv-11053-MAG-RSW ECF No. 7-16 filed 04/30/20 PageID.692 Page 1 of 6
DECLARATION OF ROBERT WINBURN, 222196 I, Robert Windburn, under the penalty of perjury, states the following:
1. Presently I am confined at G. Robert Cotton Correctional Facility ("JCF") located in Jackson, Michigan.
2. I am housed in general population in a cubical setting with 7 additional inmates. On Temp-Side where I am housed, we have 6 housing units (i.e., dorms).
3. Each cube includes a total of 8 lockers, 4 chairs, 4 bunk beds, 4 garbage cans, and the personal property (2 footlockers, 1 TVs, books, paperwork, clothes, of each inmate).
4. The unit in which I am housed is an open dorm with a front and back hall separated by a mid-wall open divider. Each hall has 10 cubes, with 8 inmates per cube. The cube is about 10 x 20. The housing unit has a capacity of 160 inmates (20 cubes with 8 inmates per cube). We are separated by less than 6 feet nearly everywhere we go.
5. On Temp-Side where I am housed, inmate cubicles do not have their own bathroom. Instead, at the beginning of each of the front and back halls, there is a community bathroom with 3 stalls, 3 urinals, 7 sinks with mirrors, and 2 wall mounted electric hand driers. Toilets, showers, and sinks are cleaned by unit porters, one time in morning, afternoon, and night. No bleach or
Exhibit 15 - Decl. of Winburn

Case 2:20-cv-11053-MAG-RSW ECF No. 7-16 filed 04/30/20 PageID.693 Page 2 of 6
disinfectants are used. Instead, a citrus based cleaner that is watered down is used. 6. Three individual shower stalls are also located in community bathrooms. They are cleaned in the same manner as the sinks and toilets. 7. Located by the front of each hall is common lobby, two rooms (one for community television and one for community television and card tables). There main lobby has 2 JPAY machines for writing family or others, 1 kiosk, and 5 phones. 8. There are no contamination precautions for myself or my hunky, such as an available bleach bottle and rag to clean with. 9. Our temperatures were taken for the first time today (04/l 7/2020). Yet, we were forced to stand in lines tightly bunched together for temperature checks. 10. About 2 weeks ago, we were provided 2 masks that were made by inmates at MSI. They consists of one layer of cloth normally used to make state shirts. We have not been provided the ability to wash them. 11.The same health care personnel (HUM Landfair) is caring for both infected prisoners and non-infected prisoners. I have grieved this issue. It was rejected as non-grievable because it is a purported Warden's Forum issue. I am now at Step II. The grievance number is JCF/2020/04/0693/272.
Exhibit 15 - Decl. of Winburn

Case 2:20-cv-11053-MAG-RSW ECF No. 7-16 filed 04/30/20 PageID.694 Page 3 of 6
12. We are still allowed phone calls (including legal calls) even on quarantine status, per MDOC DOM 2020-30 (Covid-19 Process). Yet, I have not been allowed to speak with Attorney Manville even though he scheduled a call to talk with me.
13.On March 30, 2020 at 5:55 pm Warden Nagy issued a directive that stated: "It is now mandatory that all staff and the prisoner population wear their mask at all time." However, I observed Officer Perhne refuse to obey the Warden's directive, and she is on camera on 4/20/2020 (at 10:15 pm until 12:30 am) not wearing a mask even though she worked in the contaminated TB-Unit. When I brought this to attention of Officer Perhne's supervising Sergeant, he said "so what" and they both threatened to put me in segregation.
14. There is no cleaning supplies (bleach) for each cube, but we can take the citrus based bottle from the bathrooms.
15. Normally we are fed in large groups in main chow hall with bench seating. However, since we are on quarantine status (as we have positives for Covid19) our food is delivered to the dorm. There are no precautions taken when giving us our food on Styrofoam trays. In fact, we are called in groups and then we return to our cubes to eat. Our food is not delivered in hot boxes. Rather, it is put in cardboard boxes. It is cold (below required temperatures),
Exhibit 15 - Decl. of Winburn

Case 2:20-cv-11053-MAG-RSW ECF No. 7-16 filed 04/30/20 PageID.695 Page 4 of 6
and there is no glass dividers between us and the inmates or guards when our tray is provided. On April 17, 2020, the officer passing our food was Officer Dettloff. This officer has had multiple close contact with Covid-19 prisoners, but he has not been placed on 14-day self-quarantine. 16.Being on quarantine status, we get 1 hour of yard twice per day with 160 inmates. 17.As of April 17, 2020, there have been multiple prisoners who tested positive for Covid-19 in our dorm. The prison is responding by taking the potentially positive prisoners to Level-2 (D-Unit) for separation, and if they have a fever, they get tested. They are isolated for 14 days. Further, if they are positive, they go to K-Unit. Also, if one prisoner has a fever the entire cube is evacuated, and unit porters who not certified to clean, are tasked with sanitizing the cubes with no protective equipment on. 18. Healthcare personnel now deliver meds to the unit and go back and forth between the potentially infected prisoners in (Level-2) D-Unit, and (Level-1) TA-Unit. We stand in long lines waiting for our medication. The nurses wear various masks (personal and state issue) and do not change them during each visit. 19. Prisoners are stopped and searched by officers who are reusing the same gloves.
Exhibit 15 - Decl. of Winburn

Case 2:20-cv-11053-MAG-RSW ECF No. 7-16 filed 04/30/20 PageID.696 Page 5 of 6
20. JCF was Coronavirus free until MDOC Director Heidi Washington and Warden Nagy used JCF as the official location for housing infected prisoners in formerly shuttered K-Unit; now called "Korona Unit." K-Unit opened on or about March 27, 2020.
21.The first positive Covid-19 prisoner was in TB Unit and confirmed on April 9, 2020.
22. On information and belief, during each shift change corrections staff are screening body temperatures of all incoming staff. Yet, due to: a) significant understaffing precipitated by early retirements (Officers Blair, Marsh, Patino, Barron) and/or employees simply quitting out of concern of contracting Covid-19; b) low morale induced by mandatory overtime; c) a hostile work environment fostered by the inability to practice social distancing; d) lack of adequate personal protective equipment; and e) discontent induced by Warden Nagy for installing a containment unit at this facility for Covid-19 positive prisoners from other facilities, supervisory officials are skewing the temperature readings used to identify who has a fever. For instance, at least two anonymous officers recently reported to this affiant that when an officer's temperature is checked at the gate, it is common for a temperature reading of 94° or 95° as the norm. This was confirmed by personally observing another officer making a record in their
Exhibit 15 - Decl. of Winburn

Case 2:20-cv-11053-MAG-RSW ECF No. 7-16 filed 04/30/20 PageID.697 Page 6 of 6
own date book which is being used as a recording system of temperature checks. I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
'21/v Date:
Exhibit 15 - Decl. of Winburn

Case 2:20-cv-11053-MAG-RSW ECF No. 7-17 filed 04/30/20 PageID.698 Page 1 of 1

DECLARATION OF DAVID LYONS, 231703

I, David Lyons, under the penalty of perjury, state the following:

1. I am currently confined within the Michigan Department of Corrections at

Macomb Correctional Facility.

2. On April 11, 2020, I filed two grievances. One against Warden Willis

Chapman, and the other against Director Heidi Washington. As of April 19,

2020, I have not received a response, receipt, or the identifier number for my

gnevances.

3. On April 16, 2020, I was moved from Housing Unit 5-26B to Housing Unit

2, cell 108B. In the new unit, I am mixed in with prisoners who are infected

with COVID-19.

4. There is no cleaning supplies issued in Unit-2.

5. Laundry is not being collected or done.

6. Prison staff are most of the time not wearing masks.

7. Prisoners are forced to share facilities (toilets, showers) with those who are

quarantined inside one of the day rooms.

I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me.

I give permission to Counsel Daniel

· le to si n my name to this declaration

due to the restriction placed on co

rs with outside sources.

'¥2 Date:

G / cl--o

7

·p ,�r Signature: _;::,.,,�;.....;;=:;;;..,_.:;._..¥J�;.,;;,_-�;.

w /

DA

3

?,(VYl) r-j:, 0

Exhibit 16 - Decl. of David Lyon

Case 2:20-cv-11053-MAG-RSW ECF No. 7-18 filed 04/30/20 PageID.699 Page 1 of 1
Exhibit 17 - WIthdrawn

Case 2:20-cv-11053-MAG-RSWMaEnCvilFle,NDoan. i7el-14/930/2f0il2e0d 04/30/20 PageID.700 Page 1 of 2
For Educational Use Only
McBride v. Michigan Department of Corrections, Not Reported in Fed. Supp. (2017) 2017 WL 3085785
2017 WL 3085785 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
Mary Ann MCBRIDE, et al., Plaintiffs, v.
MICHIGAN DEPARTMENT OF CORRECTIONS, et al., Defendant.
Case No. 15-11222 |
Signed 07/20/2017
Attorneys and Law Firms
Abraham Singer, Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit, MI, Andrew D. Lazerow, Megan E. Gerking, Philip J. Levitz, Stephen Curtis Bartenstein, Covington & Burling LLP, Washington, DC, Chris E. Davis, Michigan Protection and Advocacy Service, Lansing, MI, for Plaintiffs.
Allan J. Soros, James E. Long, Robert J. Jenkins, Jeanmarie Miller, State of Michigan Department of Attorney General, Gary L. Grant, Michigan Attonrey General's Office, Lansing, MI, for Defendant.
ORDER ADOPTING 6/30/17 REPORT AND RECOMMENDATION
Sean F. Cox, United States District Judge
*1 Plaintiffs filed this putative class action on March 31, 2015. The matter was referred to Magistrate Judge David R. Grand for all pretrial proceedings.
On June 30, 2017, Magistrate Judge Grand issued a Report and Recommendation (“R&R”) wherein he recommends that the Court grant Plaintiffs' Motion for Class Certification. (D.E. No. 94).
The time for filing objections to the R&R has expired and the docket reflects that neither party has filed objections to the R&R. The Court hereby ADOPTS the June 30, 2017, R&R.
Exhibit 18 - McBride © 2020 Thomson Reuters. No claim to original U.S. Government Works. v. MDOC 1

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IT IS ORDERED that Plaintiffs' Motion for Class Certification is GRANTED and the Court hereby CERTIFIES the following class: “all deaf and hard of hearing individuals in the custody of the MDOC (whether now or in the future), who require hearing-related accommodations, including but not limited to interpreters, hearing devices, or other auxiliary aids or services, to communicate effectively and/or to access or participate in programs, services, or activities available to individuals in the custody of the MDOC.”
IT IS SO ORDERED.

All Citations Not Reported in Fed. Supp., 2017 WL 3085785

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

Exhibit 18 - McBride © 2020 Thomson Reuters. No claim to original U.S. Government Works. v. MDOC 2

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Smith v. Ohio Dept. of Rehabilitation and Correction, Not Reported in F.Supp.2d (2012) 2012 WL 1440254
2012 WL 1440254 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Eastern Division.
Gerald SMITH, et al., Plaintiffs, v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al., Defendants.
Civil Action No. 2:08–CV–15. |
April 26, 2012.
Attorneys and Law Firms
Daniel R. Mordarski, Law Offices of Daniel R. Mordarski LLC, Amy K Schermer, Weston Hurd, Jeffrey Donnellon, Donnellon & Ezanidis LLC, John A Harris, IV, Mark Mathew Kitrick, Mark D Lewis, Columbus, OH, for Plaintiffs.
Mindy Ann Worly, Caitlyn Ann Nestleroth, Ohio Attorney General, Criminal Justice Section, Corrections Unit, Columbus, OH, for Defendants.
OPINION AND ORDER
NORAH McCANN KING, United States Magistrate Judge.
*1 This is a class action brought on behalf of inmates at the Chillicothe Correctional Institution (“CCI”) in connection with alleged exposure to unabated asbestos throughout CCI. With the consent of the parties, see 28 U.S.C. § 636(c), and following preliminary approval of the parties' stipulated private settlement agreement and certification of a settlement class, the Court conducted an initial fairness hearing on March 13, 2012 and a reopened hearing on April 2, 2012. This matter is now before the Court for final consideration of the parties' private settlement agreement and certification of the class.
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I. BACKGROUND On January 4, 2008 and with the assistance of counsel, plaintiffs filed a putative class action for declaratory, injunctive and monetary relief under 42 U.S.C. § 1983, alleging that defendant prison officials have been deliberately indifferent to the welfare of CCI inmates by reason of the presence of asbestos in the institution. Complaint, Doc. No. 2. Plaintiffs also asserted a claim of intentional infliction of emotional distress. Id. On November 11, 2008, the First Amended Complaint, Doc. No. 18, was filed which deleted the earlier request for compensatory damages. 1
1 The First Amended Complaint included a request for nominal and punitive damages.
The Court established an initial case schedule, which was later extended, and the parties engaged in extensive discovery, including expert discovery. See, e.g., Continued Preliminary Pretrial Order, Doc. No. 22; Order, Doc. No. 37; Order, Doc. No. 42. On April 15, 2009, plaintiffs filed a motion to certify the class. Doc. No. 23. After that motion was fully briefed, Doc. Nos. 29 and 35, the Court stayed resolution of the motion pending settlement discussions between the parties. Order, Doc. No. 61; Order, Doc. No. 64. The Court also suspended the pretrial schedule to allow the partie to fully explore the possibility of settlement. Order, Doc. No. 60. For months, the parties worked toward resolution of the issues in the case and attempted to formulate a plan for asbestos remediation, which included the appointment of a prison work committee tasked with supplementing an earlier report addressing asbestos in CCI. Id.; Order, Doc. No. 64; Order, Doc. No. 69.
On March 15, 2010, after nearly a year of settlement discussions, the parties filed a joint motion to certify a class for settlement purposes. Doc. No. 73. That motion also sought leave to withdraw the earlier motion to certify and requested that the statute of limitations for all claims of the putative class members in the First Amended Complaint be tolled pending resolution of the joint motion to certify the settlement class. Id. The Honorable John D. Holschuh, to whom the case was assigned at the time, granted that motion. Order, Doc. No. 76.
From early 2010 into August 2010, efforts to conduct a comprehensive inspection of CCI for the presence of asbestos went forward and the parties continued to formulate proposed terms of a joint remediation plan and other terms of settlement. Order, Doc. No. 79; Order, Doc. No. 102; Order, Doc. No. 123. An asbestos consulting firm that had previously inspected CCI for the presence of asbestos was retained. Months were devoted to the completion of that inspection and the preparation of a report, both of which were necessary in order to formulate a remediation plan and finalize terms of proposed settlement. See Order, Doc. No. 123; Order, Doc. No. 129; Order, Doc. No. 132; Order, Doc. No. 134. After the asbestos consulting firm's inspection and report
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were completed in early 2011, the parties participated in a joint discussion with that firm in order to address questions and concerns raised by that inspection and report. See Order, Doc. No. 134. Although the parties made significant progress on a proposed resolution of the action, additional issues related to asbestos remediation remained unresolved. Order, Doc. No. 135.
*2 On March 31, 2011, the parties filed a joint motion to withdraw the earlier motion to certify a settlement class and asked the Court to continue to toll the statute of limitations period for all putative class members. Doc. No. 137. In so moving, the parties explained that any eventual settlement agreement must necessarily include a complex plan for addressing asbestos at CCI and would, in turn, define the class. Id. at 2. The Court granted the parties' request to withdraw the motion to certify and continued to toll the statute of limitations for all putative class members. Order, Doc. No. 138.
From May 2011 through November 2011, the parties continued to negotiate precise terms of a settlement agreement and class definition, utilizing information provided by the asbestos consulting firm. Order, Doc. No. 141; Order, Doc. No. 142; Order, Doc. No. 143; Order, Doc. No. 149; Order, Doc. No. 156; Order, Doc. No. 167.
On November 28, 2011, the parties agreed to final terms of settlement and sought the Court's approval of that agreement. Joint Motion for Preliminary Approval of Proposed Class Action Settlement, Doc. No. 170 (“Joint Motion for Preliminary Approval”); Private Settlement Agreement, attached thereto as Exhibit 1 (“Private Settlement Agreement” ). The Court preliminarily approved the parties' stipulated settlement, certified a settlement class, directed that notice be given to the class and scheduled a fairness hearing. Order Preliminarily Approving Private Settlement Agreement, Authorizing Class Notice, and Setting Fairness Hearing, Doc. No. 172 (“Order of Preliminary Approval” ). Notice was provided to the members of the class in compliance with the direction of the Court and Rule 23(e). Order of Preliminary Approval, ¶¶ 5–6; Notice, attached thereto. Objections to the proposed settlement were to have been filed by January 9, 2012. Order of Preliminary Approval, p. 1.
The initial fairness hearing, conducted pursuant to Fed.R.Civ.P. 23(e), proceeded on March 13, 2012 (“the initial hearing”). Although no members of the class appeared, objections to the proposed settlement were filed with the Court. See Doc. Nos. 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 188, 193, 194. At the initial hearing, counsel for the parties addressed the Private Settlement Agreement, the objections thereto and the factors to be considered under
Fed.R.Civ.P. 23(a), (b)(2) and (e). Evidence was submitted, including the sworn testimony of the former trial attorney for defendants, Richard Cholar, Esq., and one of the attorneys for plaintiffs and the plaintiff class, Jeffrey Donnellon, Esq.
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Additional motions and an affidavit were filed after the initial hearing was held. Doc. Nos. 192, 193, 194. The motions sought to join two individuals as class representatives and questioned the adequacy of representation by class counsel and the current class representative, Alfonsia Perry. Doc. Nos. 192, 193. The Court reopened the fairness hearing on April 2, 2012 (“the reopened hearing”) and issued a writ of habeas corpus ad prosequendum to secure the testimony of Mr. Perry. Doc. No. 197. Following the reopened hearing, defendants expressed their continued agreement with the joint motion to certify a settlement class and request that the Court approve the Private Settlement Agreement. Defendants' Unopposed Clarification of Facts, Doc. No. 199. 2
2 More specifically, defendants' clarification addresses Mr. Perry's testimony at the reopened hearing relating to privileged housing and protective control. Id.
*3 The issues of class certification and whether the Private Settlement Agreement is fair, adequate and reasonable will be addressed in turn.
II. FINAL CERTIFICATION OF THE SETTLEMENT CLASS The parties ask that the Court certify a class consisting of all inmates in areas identified as containing unabated asbestos at CCI (“the Class”). Private Settlement Agreement, ¶ 3. Rule 23 of the Federal Rules of Civil Procedure governs class actions. “To obtain class certification, a claimant must satisfy two sets of requirements: (1) each of the four prerequisites under Rule 23(a), and (2) the prerequisites of one of the three types of class actions provided for by Rule 23(b). A failure on either front dooms the class.” Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 945–46 (6th Cir.2011).
A. Factors Under Fed.R.Civ.P. 23(a) Rule 23(a) provides:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(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;
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(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). See also Coleman v. General Motors Acceptance Corp., 296 F.3d 443, 446 (6th Cir.2002) (“In order to obtain class certification, plaintiff must first satisfy Rule 23(a)'s requirements of numerosity, commonality, typicality, and adequacy of representation.”). The trial court may certify a class only if, “after a rigorous analysis,” these prerequisites have been satisfied.
Alkire v. Irving, 330 F.3d 802, 820 (6th Cir.2003) (quoting Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (internal quotation marks omitted)). Although a trial court has broad discretion in the certification process, the court must nevertheless exercise that discretion within the framework of Rule 23. In re American Medical ys., 75 F.3d 1069, 1079 (6th Cir.1996).
1. Numerosity Rule 23(a) first requires that “the class [be] so numerous that joinder of all members is impracticable[.]” Fed.R.Civ.P. 23(a) (1). This determination does not establish a strict numerical test and a showing of a “substantial” number of class members usually satisfies the requirement. In re American Medical Sys., 75 F.3d at 1079; Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir.2006). See also Bacon v. Honda of Am. Mfg., 370 F.3d 565, 570 (6th Cir.2004) (“However, sheer number of potential litigants in a class, especially if it is more than several hundred, can be the only factor needed to satisfy Rule 23(a)(1).”).
Here, the parties contend that the numerosity element is met. Former lead defense counsel Richard Cholar testified at the initial hearing that there are approximately 2600 inmates currently housed at CCI. Of course, this number does not include future CCI inmates who may also be exposed to asbestos. The Court finds that this class size is sufficiently numerous that joinder of all members is impracticable. See, e.g., Bacon, 370 F.3d at 570; Wess v. Storey, No. 2:08–cv–623, 2011 U.S. Dist. LEXIS 41050, at *17, 2011 WL 1463609 (S.D. Ohio April 14, 2011) (finding that a putative class of 220 members satisfied Rule 23(a)(1)'s numerosity requirement); Salvagne v. Fairfield Ford, Inc., 264 F.R.D. 321, 325–26 (S.D.Ohio 2009) (concluding that a class of 375 members with a subclass of at least 90 members satisfied this element).
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2. Commonality *4 The second requirement under Rule 23(a) is that the class share at least one common question of law or fact “the resolution of which will advance the litigation.” Fed.R.Civ.P. 23(a) (2); Alkire, 330 F.3d at 820. Merely because questions unique to individual class members may remain does not necessarily preclude a finding that the commonality requirement has been satisfied. Bovee v. Coopers & Lybrand, 216 F.R.D. 596, 608 (S.D.Ohio 2003).
The parties contend that the putative class shares common questions of law and fact. This Court agrees. For example, determining whether CCI has deliberately exposed the class to dangerously high levels of unabated, exposed and/or friable asbestos, see, First Amended Complaint, ¶ 72(B), is a material question common to all members of the Class. Other common questions include:
1. Whether CCI has knowingly created unreasonable risks of serious damage to the present and future health of the Class in violation of the Eighth and Fourteenth Amendments to the United States;
2. Whether CCI has knowingly required inmates to abate exposed and/or friable asbestos without proper training, containment or personal protective clothing, masks and/or equipment, thereby exposing the inmates to dangerously high levels of asbestos;
3. Whether CCI failed to implement policies or procedures that would have prevented these unreasonable risks of serious damage to inmates' future health and/or failed to follow existing policies or procedures to prevent such well known risks of harm;
4. Whether injunctive and/or declaratory relief will remedy or alleviate CCI's alleged ongoing class wide constitutional violations.
First Amended Complaint, ¶ 72(B). The Court concludes that all these questions, which are common to all members of the Class, require an intensive factual inquiry and in-depth legal analysis that will be most efficiently resolved in the context of a class action.
3. Typicality Rule 23(a) also requires that the claims of the class representative be typical of the claims and defenses of the class. Fed.R.Civ.P. 23(a)(3). A “typical” claim “arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and [must be]based on the same legal theory.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir.2007)
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(quoting American Med. Sys., 75 F.3d at 1082) (internal quotation marks omitted). However, “a representative's claim need not always involve the same facts or law, provided there is a common element of fact or law.” Id. (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525 n. 31 (6th Cir.1976) (internal quotation marks omitted)). “Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” Sprague v. GMC, 133 F.3d 388, 399 (1998).
*5 Here, the class representative, Alfonsia Perry, is currently incarcerated at CCI. Unopposed Motion to Substitute Class Representative, Doc. No. 147; Order, Doc. No. 148; Transcript of Reopened Fairness Hearing (“Transcript”), p. 8. Mr. Perry has lived at CCI for more than ten years and expects to remain there. Transcript, pp. 8, 10, 36. As a long-term CCI inmate, Mr. Perry's interests arise from the same events, practice or course of conduct that give rise to the claims of the Class, namely, the alleged presence of asbestos in the prison facility. Mr. Perry, who testified at the reopened hearing, shares with the Class an interest in ensuring that asbestos is properly contained or removed from CCI:
Q: Why did you get involved in this case?
A: Again, friends was dying. It's personal to me, because I'm doing an extended sentence to where I'm stuck at Chillicothe. And if I'm to live there, I want it cleaned up.
Q: Do you have an understanding that, as class representative, you bring the case for everyone else that had the same thing happen to them?
A: Yes, sir.
* * * *
Q: What do you believe that this lawsuit is accomplishing, aside from putting money in inmates' pockets?
A: It's really about cleaning up Chillicothe from its hazardous containment there. Chillicothe is filthy.
Q: You want asbestos at Chillicothe cleaned up?
A: Yes, I do.
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Q: You don't want inmates exposed to that?
A: No,—
Q: Do you—go ahead.
A: —because, early on, I said-like I was trying to explain, so many of my friends have died down there behind these, the diseases. And the truth is not getting out there as to why they're dying. And I believe there's a health risk.
Q: You believe they're exposed to a lot of contaminants, and asbestos is one of them?
A: Yes, sir.
Q: Do you explain to other inmates what the private settlement agreement does?
A: Yes.
Transcript, pp. 10, 17. The Court is satisfied that the typicality prerequisite is met.
4. Adequacy The final prerequisite under Rule 23(a) guarantees that the class representative “will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). This inquiry is two-pronged: “1) the representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” In re American Medical Sys., 75 F.3d at 1083 (quoting Senter, 532 F.2d at 525 (internal quotation marks omitted)). The Court concludes that both prongs have been met.
a. Adequacy of Mr. Perry as class representative First, no conflicts of interest exist between Mr. Perry and the putative class. As discussed supra, Mr. Perry shares with the Class the common interest in safely comtaining and removing asbestos from CCI.
Second, Mr. Perry has demonstrated that he has pursued and will continue to vigorously pursue the interests of the Class throughout this litigation. As an initial matter, Mr. Perry has been involved in this matter since 2007, predating the filing of this action, and he was one of the named plaintiffs in the original Complaint. Transcript, pp. 9–10. Before being named a class representative, Mr. Perry communicated with plaintiffs' counsel about this action:
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*6 Q: I want to talk for a minute about your duties as class representative. Prior to becoming class representative, did you have communication with my office?
A: Yes, sir.
Q: Explain that to the Court.
A: Well, I've written you several letters trying to show my support in this lawsuit. I've spent my own monies trying to do the best I can for everybody concerned in this matter.
Q: Were you one of the named plaintiffs on the original complaint that was filed in this case?
A: Yes, sir.
Q: And did you mail to my office information about asbestos at the prison?
A: Yes, sir.
Q: Prior to becoming class representative, the letters you sent to my office, did you receive any responses from my office?
A: Yes, sir.
Q: Did you receive information about the lawsuit?
A: Yes, sir.
Id. at 10–11.
Mr. Perry became the class representative in this case on August 8, 2011. Order, Doc. No. 149. 3 During the reopened hearing, Mr. Perry explained that other inmates had asked him to become the class representative and inmates contacted plaintiffs' counsel to nominate Mr. Perry. Transcript, p. 11.
3 Mr. Perry replaced Jack Frederick, who was transferred out of CCI, as class representative. Id.; Doc. No. 147. During the initial hearing, class counsel advised the Court that the first named class representative, Gerald Smith, was released from prison and later died.
As class representative, Mr. Perry continued to raise questions regarding the litigation, to communicate with class counsel and to receive information from counsel, including Court filings
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and letters. Id. at 11–12. When he receives information from counsel, Mr. Perry spends his own money to make copies of documents and shares information with the Class:
Q: I want you to explain to the Court what you do when you receive something from my office?
A: Okay. When I receive something from your office, I take them, and I go copy them. I make about ten to fifteen copies, and I share them copies with guys from every dorm. So, I make sure that every dorm would have that information, and I make sure that I spend my own monies to do so, because some guys can't afford copies. So, I make sure I have extra copies for them.
Q: Does someone have to ask you to do that?
A: No.
Q: Do you do that every time I send you something?
A: Yes.
Q: And you make sure that someone in each dorm gets a copy?
A: Yes.
Q: And explain to the Court what happens with those copies after you distribute them.
A: Many guys take them, and they will make copies of them copies, and we would more or less just circulate them throughout the prison. And if there is any questions then that they would come to me or we would have group meetings, and I would discuss the documents with them.
Q: Do inmates ever come to you and ask you for documents from the case?
A: Yes.
Q: Explain to the Court what you do when that happens.
A: I have extra copies. I make extra copies, and I make sure that they understand what that document was and what—what we were looking forward to that's next as far as a hearing or whatever.
Q: Have you ever refused anyone copies if they asked you?
*7 A: No.
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Id. at 12–14.
Q: I believe you testified that there were 12 dorms at CCI; is that correct?
A: I think—I'm just thinking 12 dorms. It's more buildings, but I was just talking about the dormitories.
Q: Am I correct in the understanding that you had helpers at each of those dorms to help disseminate information?
A: Yes, ma‘am. What I done was, I chose a guy from each dorm that, whenever information come in, we would all meet together at the yard, since we don't have no place to meet at. So, we'd meet at the yard, at the tables, and I'd make copies, and I'd give a copy of it, and then we would—I would sit down, and we would discuss that information so everybody can go back to their dorms and explain what the motion is, who wants copies or whatever.
Id. at 49–50.
In addition to providing copies of documents, Mr. Perry routinely answers questions from other inmates about this litigation:
Q: ... Are you frequently confronted by other inmates with questions about this case?
A: All the time.
Q: Tell the Court about that.
A: Well, I'm always stopped and asked about what's going on, where the case is, how is it headed. And I try to explain, the best that I can, about what's going on.
Q: Are you up front with other inmates about the case?
A: All the time.
Id. at 15. See also id. at 36.
Mr. Perry testified that one of the documents he received, distributed and discussed was the Private Settlement Agreement. Id. at 19–20. Mr. Perry met with class counsel to go over all of the provisions of the Private Settlement Agreement so that he could understand and explain the agreement to other inmates:
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Q: Let's talk about the private settlement agreement. Did you receive a copy of it? A: Yes, sir. Q: I mailed you a copy? A: Yes, sir. Q: Did I come to CCI to meet with you to go over it? A: Every page. Q: Explain that to the Court. What did we do? A: Well, we came—you came to the prison, and we went page by page, because you wanted
to make sure that I understood so I could explain things to the inmates on the grounds. I've made copies of it. Q: When I was there and we went over the private settlement agreement, how long was I there? A: Two plus hours. Q: Were there any questions that you had that I didn't answer? A: No. Q: Do you want the Court to approve the private settlement agreement? A: Yes. Q: And I think I've asked you this already, but what do you believe the private settlement agreement will accomplish? A: I'm praying that it will clean up Chillicothe. That's my biggest issue. Q: Clean up asbestos at Chillicothe? A: Asbestos, yeah. It's terrible there. Id.
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Prior to the initial hearing, Mr. Perry filed an objection to the Private Settlement Agreement, expressing concern that the terms were unfair for several different reasons. Doc. No. 185. However, after he filed that document, class counsel met again with Mr. Perry to ask him about those concerns. Mr. Donnellon testified that he met with Mr. Perry for more than an hour and learned that Mr. Perry did not intend, by filing that objection, to derail the settlement process. Rather, according to Mr. Donnellon, Mr. Perry now understands that certain provisions in the Private Settlement Agreement permit him and the other inmates to file a claim in state court to enforce the terms of the Private Settlement Agreement. Acting on behalf of Mr. Perry, Mr. Donnellon thereafter filed a notice to withdraw Mr. Perry's objection. Doc. No. 186. 4
4 The Court took that issue under advisement at the initial hearing. See Fed.R.Civ.P. 23(e) (5) (“... the objection may be withdrawn only with the court's approval”).
*8 Mr. Perry's testimony at the reopened hearing supports counsel's testimony in this regard and supports Mr. Perry's repudiation of his objection. Specifically, Mr. Perry testified that he believes that the Private Settlement Agreement is fair and adequate and that it provides an appropriate remedy should prison officials not comply with their obligations under the agreement:
THE COURT: Now, you testified that you believe that the private settlement agreement is fair and adequate and reasonable.
ALFONSIA PERRY: Yes, ma‘am.
THE COURT: And do you want the Court to approve that?
THE WITNESS: Yes, ma‘am. And the reason is because, again, CCI needs cleaned up, but it gives us some type of backing in case CCI do not clean it up, that we've got other avenues to come back into the court to either sue them personally, individually, or to raise them issues back with this Court that they're not doing what they said they was going to do, because I don't believe they'll do it.
Id. at 49. See also id. at 20, 47 (confirming that Mr. Perry wants the Court to approve the Private Settlement Agreement, which he believes is fair, adequate and reasonable).
When Mr. Perry explains the details of the Private Settlement Agreement to other inmates, some inmates are upset to learn that the Private Settlement Agreement does not include the payment of monetary damages to members of the Class. Id. at 15–18. In addressing concerns about the Private Settlement Agreement, Mr. Perry explains to these inmates that they are free to file their own lawsuit for money damages:
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Q: What about inmates that are upset they won't be getting money damages in this lawsuit?
A: They—
Q: Do you ever tell them anything?
A: Well, I've tried to address that. But if somebody don't want to hear something, they just don't want to hear. I give them the basics on what to do and how to do it, and, if they're not satisfied, they could file their own lawsuit.
Q: Have you ever explained that to other inmates: that the private settlement agreement gives them the right to file their own lawsuit, tolls the statute of limitations?
A: Yes.
Id. at 19–20.
In addressing the specific concern that prison officials will not comply with their obligations under the Private Settlement Agreement, Mr. Perry now explains to the inmates that the Class has recourse under those circumstances:
Q: Are some inmates concerned that CCI won't follow through on the agreement?
A: Yes, and I'm one of them.
Q: Are some inmates concerned that, all the areas that it's been agreed that asbestos will be removed, that maybe that won't happen?
A: Yes.
Q: Do you have that conversation with other inmates?
A: All the time.
Q: What do you tell them about that? What does the private settlement agreement do to address that?
A: The private settlement agreement is to address the fact that, if CCI do not keep up with their part of the bargain, that they could file individual lawsuits.
*9 Q: Who could?
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A: Anybody that's at CCI, any inmate. Q: Any inmate? A: Any inmate. Q: Do you explain that to other inmates? A: Yes. Q: Is that a frequent conversation you have? A: Yes. That's the biggest conversation I have. Id. at 18–19.
Mr. Perry's experience as the representative of the Class has not been easy: Q: Because of this lawsuit, do you deal with inmates you ormally wouldn't deal with? A: All the time. Q: Does that create problems for you? A: Yes, and—yes. Q: Tell the Court about that. A: I explain this case probably, give or take, 30, 40, times a day to different guys, some people who dislike me, some people who are prejudiced, but they send other guys to me to see where this case is going. And I explain to them what's what. And there's always attitude because they think that I'm not coming forward enough about what's going on.
Id. at 17–18.
On March 14, 2012, after the initial hearing and more than two months after the date by which objections to the Private Settlement Agreement were due, two documents, signed by Mr. Perry, were filed with the Court. These documents call into question the adequacy of Mr. Perry as a class representative, of class counsel's representation and the of Private Settlement Agreement. See Doc. Nos. 192, 193. More specifically, Mr. Perry signed both pages of a two-page document entitled
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Motion to Intervene By Inclusion of Multiple Class Representatives Pursuant to Rule 23(d) (1), (B)(C) & (2) Federal Rules Of Civil Procedure, Doc. No. 192 (“Motion for Multiple Class Representatives” ). 5 Two other CCI inmates, Michael Roberts and Jerome Royster, also signed this document which asks that Mr. Roberts and Mr. Royster be added as class representatives. Id. 1–2. As an initial matter, the Motion for Multiple Class Representatives does not address the untimeliness of the motion, nor does the motion complain either that the notice to the Class was inadequate or that the movants lacked sufficient time in which to file objections. The Court therefore has no obligation to consider this untimely motion. Cf. UAW v. Gen'l Motors Corp., 497 F.3d 615, 636 (6th Cir.2007) (noting that the district court has “traditionally broad discretion over the evidence it considers when reviewing a proposed class action settlement”).
5 Doc. No. 193, relating to the adequacy of class counsel, will be addressed infra. However, even considering the merits of the Motion for Multiple Class Representatives, that motion does not persuade this Court that additional class representatives are needed and/or that Mr. Perry is an inadequate class representative. The “Memorandum in Support” appearing on page two of the Motion for Multiple Class Representatives advances three reasons to add Mr. Royster and Mr. Roberts as class representatives: (1) Mr. Perry's “transitory conditions” (presumably referring to the possibility that Mr. Perry, like any inmate, might be transferred to another prison); (2) Mr. Perry's “oratory impediment” and (3) having only one class representative for “approximately” 3,000 CCI inmates is unfair and/or prejudicial. Id. at 2. Significantly, however, Mr. Perry testified that the “Memorandum In Support” was not printed on the second page at the time that he signed the Motion for Multiple Class Representatives and that he would not have signed the document had he seen this text:
*10 Q: And you see on the second page, where I'm pointing here, at the top, it says: PAGEID # : 822?
A: Yes.
Q: Okay. I'm going to ask you a few questions about this document, Mr. Perry. I want to start by asking you a couple of questions about the second page,—
A: Okay.
Q: —the page with the “Memorandum in Support” at the top.
A: Okay.
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Q: When you signed the second page, I want you to explain to the Court what was on this document.
A: Okay. When we did this second motion, here, the only thing that was on this page was the “Wherefore” and the end. There was no memorandum in support ever there.
Q: And I just want to clarify—I think we understand what you're saying, but just to make sure, you're saying, the first half of this page, where it says “Memorandum in Support” and all the text beneath that, up until where we get to where it says “Wherefore” was not on this document when you signed it?
A: No, it wasn't. May I explain something?
Q: Sure.
A: When we do motions as pro se, this is how we—we would do the front. Excuse me. And we would end it at the bottom with the “Wherefore” and close off. So, the “Wherefore” would be —the “Wherefore” would be on the bottom, and that would conclude that motion. But there wasn't nothing written prior to that.
Q: When is the first time you read the memorandum in support part of that document?
A: The date you brought it down to the jail.
Q: Had you see that—
THE COURT: Can I interrupt? To the jail or CCI?
THE WITNESS: I mean CCI.
THE COURT: Okay.
BY MR. DONNELLON:
Q: Had you seen that prior to it being filed?
A: No, sir. I want to make sure that the Court understands that, had I have seen these prior to it, they never would have got filed the way they did. These were filed, and I—I don't even have a copy of them.
Id. at 27–28.
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Mr. Perry testified that he was upset when he learned that the “Memorandum in Support” had been added and filed without his consent, pointing out that the additional text even misspelled Mr. Perry's name:
Q: How did you feel when you learned that information with that document, without your knowledge, had been filed?
A: I was upset with that, too. And I wanted to clarify, too, that this document here (indicating), even the spelling of my name should let the Court know that I didn't see it, because he's got my name spelled A–L–FO–N–Z–O.
Id. at 28. See also id. at 53–54 (class counsel Mr. Donnellon testifying regarding Mr. Perry's reaction when meeting with Mr. Perry to review Doc. Nos. 192 and 193 for the first time).
Mr. Perry went on to explain that, at the time he signed the Motion for Multiple Class Representatives, he believed that adding Mr. Roberts and Mr. Royster as “co-reps” simply meant that these inmates would help Mr. Perry, who previously resided in the E–2 dorm, distribute information to Class members residing in CCI's D dorm:
*11 Q: When you signed this paperwork [Doc. Nos. 192 and 193], did you believe that this was for two separate motions, or for one motion?
A: One motion. What I thought, we believed, was that these were only to be co-reps for me at the prison. That's all.
* * * *
Q: You were approached by some inmates in the D dorm—
A: Yes.
Q: —prior to signing these documents?
A: Yes.
Q: And they wanted to be added to this case as co-reps?
A: Yes.
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Q: Explain to the Court your understanding of that. What would a co-rep be? A: Okay. A co-rep would be someone, if I couldn't make it out, as far as—as my
understanding, that they would be able to either go in my place or, if I was busy or caught up in a class or something, that they could go out and meet with the attorneys, and we would all share that information again.
* * * * Q: So, you were approached by some inmates. They asked you to sign your name on a document,
correct? A: Yes. Yeah. After we had discussed the co-rep part, just being co-reps; and just, more so, they were supposed to help me in areas to where I couldn't go, like D dorm two and three. You've got to have permission to go to different dorms or whatever. And that's how we was going to spread information. Q: But at the time you signed that, your understanding is that you would still be the main class representative? A: Yes.
Id. at 29–30. See also id. at 31–32. Q: When you were approached by Mr. Roberts and Mr. Royster, when those documents [Doc. Nos. 192 and 193] were signed, you're listed as class representative, correct? A: Yes, sir. Q: And they're listed as co-class representatives, correct? A: Yes. Q: Was your understanding that they would simply serve the D dorm? A: Yes. Q: Explain that to the Court.
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A: D dorm's got five dorms in there. And there is steps in each dorm that every inmate —you can't go from one up to two without permission to go. Everybody got—you've got to ask permission to go. So, with me giving information out, everybody would have documents to tell everybody in their dorms. Now there is about 12 different dorms in our institution. And, some dorms, I can go in, you know, depending on the officer, to share information with. Some, I can't.
Id. at 33–34. Mr. Perry explained that he agreed to sign the motion in order to ease the burden of distributing information to the members of the Class at CCI. Id. at 31, 34–35. Mr. Perry emphasized that his initial approval of Mr. Roberts and Mr. Royster serving as corepresentatives changed after Mr. Perry saw the “Memorandum in Support.” Id. at 32–33.
Notwithstanding the pressures of serving as class representative, Mr. Perry confirmed that he wants to continue to serve in that capacity, explaining that “a lot of” inmates trust him. Id. at 30, 36– 37. Mr. Perry went on to explain that he enjoys a good relationship with other inmates and that a new class representative would face more pressures and difficulties than those that Mr. Perry currently experiences:
*12 Q: If the Court were to not approve you as class representative and we had to find a new class representative, what kind of pressures would that inmate face?
A: Probably more worse than mine, because I've got a good—I've got a good rapport with a majority of guys, because they know me and they know how I am. They know—they know that I'm about business and I try to treat everybody right.
Q: Would an inmate who has been at CCI for a short period of time make a good class representative?
A: That's a hard question to ask, but I would say no.
Q: Do you think a new class representative would face more pressures than you do?
A: Probably.
Q: Explain that to the Court.
A: I've been used to the process of CCI and how inmates think down there, and I don't let too much sway me from doing what I have to do as a representative. And I can't really speak on someone else, but I don't think that they would be able to deal with the pressure or to share the information that is given the way I do.
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Q: Is it possible that a new class representative could face violence from other prisoners?
A: Sure.
Id. at 37–38. Finally, Mr. Perry testified that his actions and opinions are not influenced by promises or threats:
THE COURT:
Q: Do you feel at all pressured or coerced in your testimony here today? Did anyone threaten you or promise you anything to testify about anything you've testified to here today?
A: No, ma‘am.
Q: Has anybody made you any promises that you'll get some benefit if you testify in a certain way here today?
A: No, sir.
Q: Has anyone threatened you that you would suffer harm or punishment if you testified differently than you've testified here today?
A: No, ma‘am. I'm doing this, again, and I'm telling the truth in this case because so many of my friends, since I've been incarcerated, have died from diseases at that institution. And I'm going to stand up for them and for the guys who is sick now. I'm sick now, I believe, but we can't get the adequate medical attention that we're supposed to have. Okay? And I just wanted to be able to set the record straight as far as the importance of me being the dorm rep here and that I do whatever counsel tells me to do and what this Court tells me to do and, more so, what inmates ask of me to do when it comes to me asking questions to our counsel about things that's going on.
Id. at 47–49. See also id. at 35 (denying that class counsel promised him anything beyond the settlement terms that apply to all inmates).
Considering all this evidence, the Court concludes that Mr. Perry is an adequate class representative because he shares common interests with the Class and will vigorously prosecute the interests of the Class. In reaching this conclusion, the Court credits Mr. Perry's testimony that, at the time he signed the Motion for Multiple Class Representatives, he was unaware of and did not agree to all the language contained in that document at the time it was filed. Moreover, none of the three proffered reasons in the Motion for Multiple Class Representatives persuades this Court that additional class
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representatives are necessary. First, addressing the allegation of Mr. Perry's “transitory conditions,” there is nothing in the record that suggests that Mr. Perry will be transferred from CCI. In fact, Mr. Perry testified that he is serving an “extended sentence” at CCI. Transcript, p. 10. Second, contrary to the suggestion that Mr. Perry suffers from an “oratory impediment,” the Court found Mr. Perry to be an articulate witness who had no difficulty answering questions and expressing his thoughts during the reopened hearing. Third, there is nothing before the Court to suggest that additional class representatives are needed simply because there are “approximately” 3000 CCI inmates in the Class. Mr. Perry explained at length the procedure followed by him in disseminating information, which includes providing copies to inmates from other dorms who in turn further distribute information. Moreover, other filings by Mr. Roberts and Mr. Royster suggest that the primary interest of these inmates may be the recovery of money rather than the safe removal of asbestos from CCI. See Doc. No. 95 (Mr. Royster's objection to the withdrawal of the claim for damages); 6 Doc. No. 183 (Mr. Roberts's objection complaining, inter alia, that the Private Settlement Agreement provides only injunctive relief and not monetary damages). 7 Conversely, Mr. Perry's credible testimony underscores the conclusion that he is genuinely concerned with achieving a safe environment for all inmates at CCI. In sum, Mr. Perry is an articulate and effective class representative who will vigorously represent the interests of the Class.
6 The Court previously overruled this objection, concluding that the class members' “rights to pursue nominal and punitive damages have been adequately preserved by this Court's tolling of the statute of limitations and according to the parties, will continue to be preserved by the proposed settlement agreement.” Memorandum Opinion and Order, Doc. No. 125, p. 6.
7 Mr. Roberts's objection, as well as other inmates' objections, will be addressed infra.
b. Adequacy of class counsel *13 In addition, the Court is satisfied that class counsel is qualified and has vigorously represented the interests of the class. More specifically, class counsel has substantial experience with class actions and civil rights litigation. See Plaintiff's Exhibit 1, attached to Minute Entry, Doc. No. 191, pp. 5–10. In addition, one of the class counsel, Mr. Donnellon, testified at the initial hearing regarding his regular contact with class representatives during the course of this litigation.
On March 14, 2012, following the initial hearing, a document entitled Motion for Signifying Lack of Fair and Adequate Representation Pursuant Rule 23(d)(1)(B)(iii) Federal Rules of Civil Procedure, Doc. No. 193 (“Motion Regarding Adequacy of Class Counsel”), was filed. 8 This document, which appears to be signed on page one by Messrs. Perry, Roberts and Royster, questions the adequacy of class counsel. Id. at 1–2. More specifically, the
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“Memorandum in Support” appearing on page two of the Motion Regarding Adequacy of Class Counsel complains of inadequate representation in four respects: (1) class counsel has failed to include the class representative “in any real meaningful discussion” about the proposed Private Settlement Agreement; (2) class counsel's “lack of communication;” (3) class counsel's “lack of fiduciary duty” to class members' claims for monetary damages; and (4) “failure to hold ODRC accountable[.]” Id. at 2. Only the signature of Mr. Roberts appears on page two below the “Memorandum in Support.” Id.
8 As was the Motion for Multiple Class Representatives, the Motion Regarding Adequacy of Class Counsel was filed more than two months after the deadline for filing objections had passed. The Motion Regarding Adequacy of Class Counsel does not complain that notice to the Class was untimely or that there was inadequate time to file objections. Although this motion is therefore untimely and the Court need not consider it, cf. Gen'l Motors Corp, 497 F.3d at 636, the Court will nevertheless address the merits of the motion.
The Motion Regarding Adequacy of Class Counsel does not alter this Court's conclusion that class counsel is qualified and will continue to vigorously represent the interests of the Class. 9 As with the Motion for Multiple Class Representatives, Mr. Perry testified that the “Memorandum in Support” was not part of the motion when he signed the document and that he disagrees with the assertion that class counsel is inadequate:
9 The other criticism raised in the Motion Regarding Adequacy of Class Counsel, which relates to complaints that the Private Settlement Agreement does not contain a claim for monetary damages or a provision to “hold ODRC accountable,” will be addressed infra.
Q: When is the first time you saw page 2 of that document [Doc. No. 193]?
A: The day you brought it to the court. I mean to the jail.
Q: The day I brought it—
A: Yes.
Q: —to CCI?
A: Yes.
Q: Did you see page 2 of that document prior to it being filed?
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A: No.
Q: Who signed page 2 of that document?
A: Mr. Roberts.
Q: Do you agree with anything that's on the second page of that document?
A: No, I don't.
Q: The second page of that document states that the counsel in this case are inadequate and that they've breached their fiduciary duties. Do you agree with that?
A: No.
Q: What is your opinion of the attorneys that have represented the plaintiffs in this case?
A: Thank you for asking that question. You all have worked hard on this case for years. And I didn't appreciate seeing this document. And when I seen it, because it wasn't present as part of what I had intended and what I meant by getting the co-representatives, I didn't then, I didn't now, want to make this Court know that you all was ineffective, or whatever this document means.
*14 Id. at 23–24. Mr. Perry corroborated the testimony of Mr. Donnellon that counsel maintained routine contact through letters and personal visits to CCI, provided copies of filings and responded to all of Mr. Perry's questions. Id. at 10–12, 14–15, 19–20.
Considering all this evidence, the Court concludes that class counsel is qualified, has competently represented and will continue to vigorously represent the interests of the Class. The Court finds that Mr. Perry, the class representative, does not agree with the suggestion made in the “Memorandum in Support” that counsel's representation of the Class has been in any respect inadequate. Moreover, Mr. Perry's testimony establishes that class counsel maintained meaningful communication and that the in-person meetings at CCI to discuss aspects of this litigation were detailed and never rushed. For example, as discussed supra, Mr. Donnellon met with Mr. Perry for more than two hours in order to explain each page of the Private Settlement Agreement, which Mr. Perry believes is fair, adequate and reasonable. Transcript, pp. 19–20, 49.
Finally, the Court notes that another inmate and former class representative, Jack Frederick, also filed an objection alleging, inter alia, that class counsel has colluded with the defendants and has failed to vigorously represent the interests of the Class. Doc. No. 188, p. 1 (citing to Doc. No. 116–
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1) and Exhibit (a letter dated July 2, 2010 signed by Mr. Donnellon) attached thereto. However, Mr. Frederick lacks standing to object because he is no longer incarcerated at CCI and is therefore not a member of the Class. Id. at 2–3 (providing an address at Pickaway Correctional Institution in Orient, Ohio). Moreover, Mr. Frederick's objection was filed on February 28, 2012, i.e., more than seven weeks after the January 9, 2012 deadline for filing objections, and is therefore untimely. See, e.g., In re: Veritas Software Corp. Sec. Litigation, No.08–3627, 396 Fed. Appx. 815 (3rd Cir. Oct.4, 2010) (finding no abuse of discretion in district court's conclusion that an objection was untimely when it was filed more than four weeks after the deadline provided in the notice to the class). As discussed supra, the Notice was distributed and posted in compliance with the direction of the Court and provided approximately 30 days for members to file objections. Nowhere in his objection does Mr. Frederick complain that the Notice was inadequate or that he had insufficient time in which to file an objection. The Court therefore has no obligation to consider Mr. Frederick's untimely objection. Cf. Gen'l Motors Corp., 497 F.3d at 636.
In any event, nothing in Mr. Frederick's objection establishes that class counsel's representation is inadequate. Mr. Frederick generally alleges that class counsel is “indeed in collusion with the Defendants to cheat the Plaintiffs out of their damage awards[.]” Doc. No. 188, p. 1. However, the Private Settlement Agreement preserves each class member's claim for monetary relief, which means that any class member may file a lawsuit to recover compensatory or other damages. See Private Settlement Agreement, ¶ 6(C). In addition, contrary to Mr. Frederick's assertions, the letter dated July 2, 2010 signed by Mr. Donnellon, Exhibit attached to Doc. No. 188, does not establish that class counsel “coerced” Mr. Frederick into signing an affidavit dated July 7, 2010, Doc. No. 116–1. 10 Counsel's letter simply explained to Mr. Frederick that it is impossible for class counsel to satisfy all the demands of individual inmates. The letter also recognized the real possibility that the class allegations could be dismissed should it be determined that either class counsel or the class representative is inadequate. Doc. No. 116–1. Mr. Frederick offers no evidence that class counsel coerced him into signing an affidavit or that counsel otherwise failed to vigorously represent the interests of the Class. Under these circumstances, the Court is therefore satisfied that the adequacy requirement, as well as the other requirements under Rule 23(a), have been met.
10 This affidavit was offered in support of plaintiffs' memorandum in opposition to objections complaining of the Court's order granting leave to withdraw the original motion to certify and claim for damages, Doc. No. 23. Doc. No. 116 (citing Order, Doc. No. 76).
B. Factors Under Fed.R.Civ.P. 23(b)
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*15 In addition to the requirements of Rule 23(a), a party seeking certification must show that the class action is maintainable under one of the three subsections of Rule 23(b). Pilgrim, 660 F.3d at 945. Here, the parties contend that this action is properly maintained under Rule 23(b) (2), which provides that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]”
This Court concludes that certification under Rule 23(b)(2) is appropriate because plaintiffs' claims are based on conduct (or inaction) by defendants that is generally applicable to the Class. Specifically, the presence of asbestos at CCI, and defendants' response thereto, are generally applicable to the entire proposed Class, who are incarcerated at that facility. Injunctive relief, i.e., the proper maintenance and/or removal of the asbestos at CCI in accordance with applicable laws and safeguards, is therefore appropriate with respect to the Class as a whole. Moreover, courts in this district have previously certified class actions under Rule 23(b)(2) arising from alleged prison conditions that affect the inmate population as a whole. See, e.g., In re Southern Ohio Correctional Facility, 173 F.R.D. 205 (S.D.Ohio 1997) (certifying class under Rule 23(b)(2) based on claims arising from defendants' actions or inaction during a riot at a maximum security prison in Lucasville, Ohio and arising from prison conditions following that riot). Cf. Hiatt v. County of Adams, 155 F.R.D. 605 (S.D.Ohio 1994) (challenging conditions of confinement for pretrial detainees).
For all the foregoing reasons, the Court concludes that certification of the action as a class action under Fed.R.Civ.P. 23(b)(2) is appropriate. The Court therefore CERTIFIES a class of plaintiffs consisting of “[a]ll inmates in areas identified as containing unabated asbestos at CCI.” Private Settlement Agreement, ¶ 3.
III. FINAL APPROVAL OF THE PRIVATE SETTLEMENT AGREEMENT Rule 23(e) governs settlements of class actions and imposes procedural safeguards that must
be followed: the parties must file a statement identifying the proposed settlement agreement, Fed.R.Civ.P. 23(e)(3), and the trial court “must direct notice in a reasonable manner to all class
members who would be bound by the” proposed settlement, Fed.R.Civ.P. 23(e)(1). In addition, the trial court may approve a proposed settlement “only after a hearing and on finding that [the proposed settlement] is fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2).
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Here, as detailed above, the parties submitted the terms of settlement, which the Court has preliminarily approved. Joint Motion for Preliminary Approval; Order of Preliminary Approval. Notice provided to the Class was effected in conformity with the directions of the Court. Order of Preliminary Approval, ¶¶ 5–6; Notice, attached thereto; Unsworn Declaration of Mark Hooks, submitted as Defendant's Exhibit A, attached to Minute Entry, Doc. No. 191, p. 71 (“Hooks Declaration” ). More specifically, Mark Hooks, a Warden's Assistant at CCI, posted copies of the Notice to Class Members of the Proposed Settlement in (1) all housing units; (2) all law libraries; and (3) other prominent common locations where all inmates would have access to read it. Hooks Declaration, ¶ 2. Mr. Hooks also provided that notice directly to each inmate whose access to common areas was limited due to, but not limited to, confinement in segregation or in the infirmary. Id. In addition, copies of the following documents were placed in the CCI library: (1) Order of Preliminary Approval; (2) Notice to Class Members of Proposed Settlement; (3) Private Settlement Agreement; and (4) Defendants' Notice of Supplement to the Private Settlement Agreement (Doc. 170–1), Doc. No. 173 (“Notice of Supplement” ) (supplementing the Private Settlement Agreement with the signature of ODRC Director Gary Mohr). Id. at ¶ 3. According to Mr. Hooks, the Notice was posted and copies were available in the library by December 10, 2011. Hooks Declaration, ¶ 4.
*16 The initial hearing was held on March 13, 2012 and the reopened hearing was held on April 2, 2012. The Court must now determine if the Private Settlement Agreement is “fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2). In making this determination, the Court considers several factors:
(1) the risk of fraud or collusion; (2) the complexity, expense and likely duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and class representatives; (6) the reaction of absent class members; and (7) the public interest.
Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 244 (6th Cir.2011) (quoting UAW v. Gen'l Motors Corp., 497 F.3d 615, 631 (6th Cir.2007)) (internal quotation marks omitted). In considering these factors, the task of the court “is not to decide whether one side is right or even whether one side has the better of these arguments.... The question rather is whether the parties are using settlement to resolve a legitimate legal and factual disagreement.”
Gen'l Motors Corp, 497 F.3d at 632.
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A. The Terms of the Private Settlement Agreement Under the terms of the Private Settlement Agreement, asbestos at CCI will be abated in accordance with a prioritized plan developed by the parties with the assistance of Chryatech, Incorporated (“Chryatech”), a firm that provides, inter alia, asbestos consulting services. Id. at ¶ 5; Chryatech Qualification Statement and Executive Summary, attached as Exhibit 1–A to the Private Settlement Agreement (“Chryatech Report”), p. 628. 11 “All Chryatech, Inc. technical personnel are trained as required by Federal (EPA and OSHA) and State regulations. They are also licensed/certified by applicable State asbestos regulations.” Id. at 626 (stating further that “a successful project is one that completely satisfies ... all applicable environmental, building and safety regulations”); 650 (“All Chryatech, Inc. personnel are licensed through the Ohio Department of Health.”).
11 The Court will refer to the docket page number in the upper right-hand corner when discussing this document.
From December 6, 2010 through January 26, 2011, and acting at the request of state officials, Chryatech visited CCI in order to conduct an asbestos reassessment survey. Id. at 648. On May 9, 2011, Chryatech inspected the tunnels and spaces below CCI's buildings in order to assess suspected asbestos in these areas. Id. In all, Chryatech surveyed 41 buildings at CCI. Id. at 650.
Chryatech reported that the Environmental Protection Agency (“EPA”) had developed a method for ranking materials containing asbestos, which has become the industry's “state-of-the-artmethod[ .]” Id. “The rankings of hazard range from 7—the most hazardous [-] to 1—the least hazardous. The highest rank is reserved for ACBM [friable asbestos-containing building material] that is ‘significantly damaged.’ “ Id. A hazard with “significant damage” “is so extensively damaged or deteriorated that it requires immediate corrective action.” Id. This type of hazard exists in circumstances such as where “[f]riable asbestos-containing building material 12 (ACBM) is in an area regularly used by building occupants, including maintenance personnel, in the course of their normal activities[.]” Id.
12 “Friable asbestos material” is “any material containing more than 1% asbestos that, when dry, can be crumbled, pulverized, or reduced to a powder by hand pressure.” Abestos Operations & Maintenance Program (the “O & M Program”), attached as Exhibit 1–B to Doc. No. 170.
*17 Chryatech also reported that, with few exceptions, CCI's main tunnels and areas below the buildings had been abated and no suspect materials/debris was observed. Id. at 649. Applying the EPA ranking method to the remaining areas, Chryatech created spreadsheets “listing the hazard rank, location, type, quantity, and estimated abatement cost for removal by a State certified contract
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for all of the ACM [asbestos containing materials] we observed.” Id. at 650. See also Chryatech spreadsheets, attached as Exhibit 1–C to Doc. No. 170 (“Chryatech Spreadsheets”). For example, Chryatech identified Dorms D–1, D–2 & D–3 as having friable asbestos-containing materials. Chryatech Spreadsheets, p. 2. Chryatech specifically advised that its spreadsheets “should be used to address potential hazards that may exist [at CCI].” Chryatech Report, p. 650.
As a way of addressing remaining potential asbestos hazards at CCI, Chryatech created the Asbestos Operations and Maintenance Program (“O & M Program”), attached as Exhibit 1–B to the Private Settlement Agreement, which strives to “protect inmates at CCI from exposure to potentially hazardous asbestos conditions, ensure compliance with all applicable environmental laws and regulations relating to asbestos, and establish asbestos operation and management procedures for CCI.” O & M Program, p. 1. In elaborating on the objectives of the O & M Program, Chryatech detailed CCI's responsibilities during the abatement work and the disposal of asbestoscontaining waste in accordance with standards articulated by the Occupational Safety and Health Administration (“OSHA”). Id. at 4–16. For example, the O & M Program requires that individuals performing such work receive training specific to the class 13 of asbestos at issue. Id.
13 OSHA recognizes different classes of asbestos work. Id. at 2–3. “Class I asbestos work” includes “activities involving the removal of thermal systems insulation and surfacing material.” Id. at 2. “Class II asbestos work” includes “activities involving the removal of ACM [asbestos containing material] which is not thermal systems insulation or surfacing material including, but not limited to, the removal of asbestos-containing wallboard, floor tile and sheeting, roofing and siding shingles, and construction mastics.” Id. “Class III asbestos work” includes “repair and maintenance operations where ACM, including thermal systems insulation and surfacing material, is likely to be disturbed.” Id. at 3. “Class IV asbestos work” includes maintenance and custodial activities during which employees/workers contact but do not disturb ACM/PACM [presumed asbestoscontaining materials] and activities to clean up dust, waste, and debris resulting from Class I, II, and III asbestos work.” Id.
Here, the parties “agree that asbestos at CCI should be addressed in a manner that minimizes inmates to the exposure to friable asbestos.” Private Settlement Agreement, ¶ 5(B). Under the terms of the Private Settlement Agreement, CCI agrees to maintain asbestos according to industry standards and, if abatement work is required in areas containing asbestos, the O & M Program will be utilized. Id.
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Utilizing the Chryatech Report and Chryatech Spreadsheets, the Private Settlement Agreement ranks, in descending order of priority, the areas at CCI that contain asbestos-related material. Id. Under the Private Settlement Agreement, funding has already been made available to complete abatement in high priority areas, including (1) Dorms D–1, D–2 and D–3 (priority 1); (2) F–1 Dorm (priority 2); and (3) all remaining areas of the hospital building (priority 3). Id. The parties chose to address these locations because, according to Chryatech, these areas have the greatest amount of asbestos with the highest risk ranking based upon location, accessibility and condition of material. Id. The Private Settlement Agreement also contemplates that CCI will initiate the abatement process for these three priority areas within thirty days after the Court approves the parties' agreement. Id. 14
14 Mr. Cholar testified at the initial hearing that abatement had already been completed in the specified D and F dorms and that abatement in the hospital building was expected to be completed by April 1, 2012.
*18 As for additional locations that contain asbestos-related material beyond the three priority areas identified above, CCI will address those other locations in accordance with the O & M Program until additional funding from the General Assembly becomes available. Id. “CCI will request funding for abatement of the remaining asbestos containing material at CCI at least yearly until all asbestos at CCI” identified in the Private Settlement Agreement has been remediated. Id.
The Private Settlement Agreement is enforceable in state court. Id. at ¶ 6(B). Thus, individual CCI inmates may file in state court an action arising out of the performance or non-performance of CCI's obligations under the Private Settlement Agreement. Id. 15
15 Under the Prison Litigation Reform Act, 18 U.S.C. § 3626, prospective relief in a consent decree must be “narrowly drawn, extend [ ] no further than necessary to correct the violation of the Federal right, and [be] the least intrusive means necessary to correct the violation of the Federal right.” § 3626(a)(1). However, private settlement agreements need not comply with those limitations and “any party claiming that a private settlement agreement has been breached” may seek “in State court any remedy available under State law.” § 3626(c)(2)(B).
The Private Settlement Agreement tolls the statute of limitations (until this case is dismissed) for individual claims for personal injuries or other types of money damages relating to alleged exposure of asbestos in violation of the Eighth Amendment. Id. at ¶ 6(C). Stated differently, the Private Settlement Agreement preserves the right of individual inmates to assert their own claims, in either state or federal court, for personal injury arising from alleged asbestos exposure in violation of the Eighth Amendment. Id.
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With some exceptions, including individual claims for personal injury discussed above, the members of the Class agree to release all defendants of and from any and all claims, whether known or unknown, whether accrued or to accrue, relating to the removal or abatement of asbestos at CCI. Id. at ¶ 6(D).
Under the terms of the Private Settlement Agreement, the State of Ohio, on defendants' behalf, will pay to plaintiffs' class counsel attorneys' fees and expenses in the amount of $70,000. Id . at ¶ 7(D).
The Private Settlement Agreement contemplates that, upon Court approval, the parties will submit a stipulation of dismissal with prejudice. Id. at ¶ 6(A) (citing Exhibit 1–D, attached thereto). The Court will not retain jurisdiction over implementation of the Private Settlement Agreement. Id. 16
16 Indeed, under the Prison Litigation Reform Act, the Court may not retain jurisdiction over enforcement of the terms of the Private Settlement Agreement “other than the reinstatement of the civil proceeding that the agreement settled.” See 18 U.S.C. § 3626(c)(2).
B. There Is No Risk of Fraud or Collusion Having carefully examined the terms of the Private Settlement Agreement, the Court now turns to the first factor of its inquiry, i.e., the risk of fraud or collusion, in determining whether or not the Private Settlement Agreement is fair, reasonable and adequate. See Poplar Creek Dev. Co., 636 F.3d at 244. Unless there is evidence to the contrary, “[c]ourts presume the absence of fraud or collusion in class action settlements[.]” Leonhardt v. ArvinMeritor, Inc., 581 F.Supp.2d 818, 839 (E.D.Mich.2008). At the initial hearing, class counsel represented and Mr. Cholar testified that settlement discussions were extensive and at times heated. The procedural history of this litigation, detailed above, supports this representation and testimony. The parties reached an agreement only after more than three years of litigation, which included two years of settlement discussions. Throughout much of that time, the parties consulted or relied heavily on an independent expert, Chryatech, for guidance. See, e.g., Order, Doc. No. 69; Order, Doc. No. 123; Order, Doc. No. 129; Order, Doc. No. 134; Order, Doc. No. 142; Order, Doc. No. 143; Order, Doc. No. 149. 17 Chryatech's involvement therefore underscores a finding that the Private Settlement Agreement was the product of arms-length negotiations, rather than the result of fraud or collusion.
17 Counsel for both sides confirmed at the initial hearing that the periodic conferences with the undersigned reflected on the docket were status conferences and involved no substantive
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settlement discussions with the undersigned. Stated differently, these conferences simply required counsel to provide periodic updates on the status of the litigation.
*19 The objections filed by two CCI inmates characterizing the Private Settlement Agreement as the product of collusion does not require a different conclusion. Doc. No. 175, pp. 8–10; Doc. No. 189 (offering the letter dated July 2, 2010 signed by Mr. Donnellon as a supplement to Doc. No. 175). 18 Inmates William L. Ridenour and Tommy Lee Brown argue that evidence of collusion can be seen in the fact that the Private Settlement Agreement “affords only non-pecuniary relief to class members[.]” Doc. No. 175, p. 8. This objection misses the mark. To attempt to address the individual claims for compensatory damages on behalf of several thousand inmates would be nearly impossible. Indeed, whether or not such an action would qualify as an appropriate class action is debatable. However, the Private Settlement Agreement tolls the statute of limitations (until this case is dismissed) for individual claims for personal injuries or other types of money damages relating to alleged exposure of asbestos in violation of the Eighth Amendment. Private Settlement Agreement, ¶ 6(C). Therefore, although the Private Settlement Agreement does not offer monetary damages to the Class, the Private Settlement Agreement has preserved to all inmates at CCI the right seek monetary damages in connection with claimed personal injury arising from alleged asbestos exposure in violation of the Eighth Amendment. Id. The suggestion that the Private Settlement Agreement is collusive or fraudulent because it fails to provide monetary damages to a Class of approximately 2600 inmates, Doc. Nos. 175 and 189, is simply without merit. Accordingly, the Court finds no evidence of collusion or fraud, and this factor weighs in favor of finding the Private Settlement Agreement to be fair, reasonable and adequate.
18 A third inmate and former class representative, Jack Frederick, also filed an objection based, in part, on collusion as evidenced by the failure of the Private Settlement Agreement to authorize the payment of monetary damages. Doc. No. 188, p. 1. However, for the reasons discussed supra and infra, Mr. Frederick's objection is without merit.
C. Continued Litigation Would Be Complex, Expensive and Lengthy In considering the next factor, it is indisputable that this action raises complex constitutional factual and legal issues and involves complicated scientific and medical evidence. Absent settlement, resolution of the litigation is likely to require many years more, would be extremely expensive and may entail an appeal from any judgment entered by this Court. This factor therefore weighs in favor of approving the Private Settlement Agreement.
D. The Parties Have Engaged In Extensive Discovery
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The parties have completed a significant amount of discovery over the past four years, producing more than 10,000 documents and taking 17 or 18 depositions. All of this information afforded the parties the opportunity to assess the strengths and weaknesses of each side. This factor therefore weighs in favor of finding the Private Settlement Agreement fair, adequate and reasonable.
E. Plaintiffs' Likelihood of Success on the Merits Is Not Overwhelming “ ‘The most important of the factors to be considered in reviewing a settlement is the probability of success on the merits. The likelihood of success, in turn, provides a gauge from which the benefits of the settlement must be measured.’ “ Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d at 245 (quoting In re Gen. Tire & Rubber Co. Sec. Litig., 726 F.2d at 1086) (internal quotation marks omitted). In order to prevail on an Eighth Amendment claim such as that presented in this case, plaintiffs must establish that defendants were deliberately indifferent to the health or safety of the inmates. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In this regard, plaintiffs must bear “the onerous burden of proving [an] official's subjective knowledge” when establishing deliberate indifference. Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir.2001). See also Jones v. Muskegon County, 625 F.3d 935, 947 (6th Cir.2010) (stating that deliberate indifference “is a very high standard of culpability, exceeding gross negligence”) (quoting Ross v. Duggan, 402 F.3d 575, 590 n. 7 (6th Cir.2004) (internal quotation marks omitted). Failure to meet this high standard would foreclose all possibility of relief for the Class. Experienced counsel on both sides of the case acknowledge that establishing liability and causation in this action would be difficult. 19 The uncertainty surrounding plaintiffs' ability to establish their claims weighs in favor of approving the Private Settlement Agreement.
19 Class counsel represented that, even after conducting a nationwide search, they are unaware of any other prisoner class action asbestos case that survived summary judgment; the cases were either settled or dismissed.
F. Experienced Counsel and the Class Representative Support Approval of the Private Settlement Agreement *20 Experienced counsel on both sides of this case recommend that the Court approve the Private Settlement Agreement and this recommendation is entitled to deference. See, e.g., Williams v. Vukovich, 720 F.2d 909, 922–23 (6th Cir.1983) (“The court should defer to the judgment of experienced counsel who has competently evaluated the strength of his proofs[,]” and that deference “should correspond to the amount of discovery completed and the character of the evidence uncovered”). Here, class counsel have a combined professional experience of
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approximately 40 years. See, e.g., Doc. No. 191, pp. 5–10 (detailing the experience of class counsel). Class counsel ask the Court to approve the Private Settlement Agreement, which they believe is in the best interests of the Class because it will improve prison conditions and bring immediate relief. Former lead counsel for defendants, Mr. Cholar, has practiced law for 20 years and has extensive experience in Section 1983 litigation as well as class actions. Mr. Cholar also agrees with class counsel that the Private Settlement Agreement is fair, adequate and reasonable.
In addition, and as recounted at length supra, class representative Alfonsia Perry testified that he wants the Court to approve the Private Settlement Agreement because he believes that it is fair. Accordingly, the judgment of experienced counsel and the opinion of the class representative support the approval of the Private Settlement Agreement.
G. The Objections to the Private Settlement Agreement Lack Merit In determining whether a class action settlement is fair, adequate and reasonable, a court must also consider the reaction of absent class members. Brotherton v. Cleveland, 141 F.Supp.2d 894, 906 (S.D.Ohio 2001). “The fact that some class members object to the Settlement [Agreement] does not by itself prevent the court from approving the agreement.” Id. Moreover, “if only a small number of objections to a class action settlement are received, that fact can be viewed as indicative of the adequacy of the settlement.” In re Delphi Corp. Sec., 248 F.R.D. 483, 500 (E.D.Mich.2008). See also Hainey v. Parrott, 617 F.Supp.2d 668, 675 (S.D.Ohio 2007) (“Generally, however, a small number of objections, particularly in a class of this size, indicates that the settlement is fair, reasonable and adequate.”).
Here, out of approximately 2600 class members, only 16 objections were filed, for a total objection rate of .6%. See Doc. Nos. 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 188, 189, 193, 194, 202. The actual objection rate is even lower when one considers that some inmates filed more than one objection 20 and that at least one objector lacks standing to object because he is no longer incarcerated at CCI. 21 Finally, Alfonsia Perry, the class representative, repudiated his objection. See Doc. Nos. 185 (filed by Mr. Perry, who later renounced this objection under oath), 186 (purporting to withdraw Doc. No. 185). Therefore, this miniscule percentage of objections relative to the size of the Class weighs in favor of finding the Private Settlement Agreement to be fair, reasonable and adequate. See In re Delphi Corp. Sec., 248 F.R.D. at 500; Hainey, 617 F.Supp.2d at 675.
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20 See Doc. Nos. 175 (filed by William Ridenour and Tommy Lee Brown), 183 (filed by Michael Roberts), 189 (filed by Messrs. Ridenour and Brown), 193 (filed by, inter alios, Mr. Roberts), 194 (filed by Mr. Roberts).
21 See Doc. No. 188 (filed by Jack Frederick from the Pickaway Correctional Institution).
*21 Moreover, even after considering the merits of all the objections, the Court finds no reason to conclude that the Private Settlement Agreement is unfair, inadequate or otherwise unreasonable.
1. Private Settlement Agreement Allows Defendants to Deny Constitutional Culpability Some inmates object to the Private Settlement Agreement because it allows defendants to deny constitutional culpability. See Doc. Nos. 180, 181, 182, 183, 193. As an initial matter, the Court notes that permitting a party to deny legal culpability is a fairly common term in settlement agreements; the fact that defendants do not concede liability on plaintiffs' claims does not render the Private Settlement Agreement unfair or unreasonable. The Court concludes that the Private Settlement Agreement carefully balances the rights of individual Class members to file their own actions for monetary damages and the interest of the Class in obtaining immediate relief. This objection provides no basis for rejecting the Private Settlement Agreement.
2. Relief Under the Private Settlement Agreement Is Contingent on Funding by the General Assembly At least one objection complains that, because defendants' obligations under the Private Settlement Agreement are in certain respects contingent on funding by the Ohio General Assembly, the Class will have no recourse should the Ohio General Assembly fail to fund the remediation. See Doc. No. 175. However, as the Private Settlement Agreement makes clear, Private Settlement Agreement, ¶ 5(B), funding is already available to remediate the areas most affected by asbestos. Mr. Cholar testified that defendants have already obtained funding to deal with approximately 90% of the asbestos-related material. Mr. Cholar also explained that the State cannot, under Ohio law, enter into an agreement that requires the expenditure of public funds that have not yet been allocated. In this regard, the Private Settlement Agreement imposes a continuing yearly obligation to request more funding until all obligations under the Private Settlement Agreement have been met. Id. Finally, and as noted supra, the Class may seek enforcement of any failure on the part of defendants to fulfill their obligations under the Private Settlement Agreement. In short, this feature of the Private Settlement Agreement does not render it unfair, inadequate or unreasonable.
3. Remediation Occurs While Inmates Still Live in CCI and Violates OSHA
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Other inmates object to the Private Settlement Agreement because inmates must continue living in CCI during the remediation process, allegedly in violation of OSHA standards. See Doc. Nos. 176, 177, 178, 179, 180, 181, 182, 183, 194, 202. These objections also note, inter alia, that inmates are to be rotated in and out of dorms D–1, D2 and D–3 in violation of OSHA and that “sociopathic” inmates have access to friable asbestos during the remediation process.
*22 These objections are without merit. The suggestion that “sociopathic” inmates have access to asbestos is unsupported by any evidence whatsoever. Chryatech, whose employees are certified in asbestos remdiation and abatement, has detailed CCI's responsibilities during the abatement work and the disposal of asbestos-containing waste in accordance with OSHA standards. Stated differently, defendants are to follow a plan developed by Chryatech that complies with state and federal law. For example, Mr. Cholar testified that air quality safety testing is required during the remediation process and that prison officials utilize the services of a third party in obtaining air samples. Moreover, defendants utilize a “glovebag” method for containing asbestos, a process that complies with state and federal regulations and which does not require that inmates be removed during the remediation process.
To the extent that inmate Michael Roberts offers his sworn contention that CCI remediation violates OSHA and/or other state and federal laws, Doc. No. 194, the Court is not persuaded that Mr. Roberts is an expert in asbestos remediation. As detailed supra, the Chryatech Report is comprehensive and was developed by experts certified in the field. In short, there is no evidence that the Private Settlement Agreement, in addressing the containment and removal of asbestosrelated material, violates OSHA or any other law.
4. Closure of CCI Is the Only Proper Remedy Some objecting inmates demand that CCI be closed. Doc. Nos. 175, 185. 22 However, Mr. Cholar, who has years of experience in prison litigation, testified that closing CCI—either temporarily or permanently—would be almost impossible: there are simply not enough beds at other Ohio prisons to accommodate the approximately 2600 inmates who would be displaced were CCI to be closed. Based on this evidence, the Court is not persuaded that a fair, adequate and reasonable settlement requires the closure of CCI.
22 Although Mr. Perry later repudiated the objections contained within this document, documents attached to the objection indicate that other inmates, Bill Moralevitz, Charles Soward and Claude Spencer, object to the Private Settlement Agreement for the reasons contained therein. Doc. Nos. 185–1, 185–2.
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5. The Private Settlement Agreement Does Not Provide Monetary Damages Most of the objections relate to the failure of the Private Settlement Agreement to provide any monetary damages to inmates. See Doc. Nos. 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 188, 193. However, as discussed supra, the Private Settlement Agreement preserves each class member's right to pursue a claim for monetary relief. See Private Settlement Agreement, ¶ 6(C). Moreover, the highly individualized analyses necessary to such claims call into question the propriety of the class action as a vehicle for resolving such claims. These objections do not weigh against the approval of the Private Settlement Agreement.
6. Defendants Cannot Be Trusted to Comply with the Terms of the Private Settlement Agreement Finally, some inmates are concerned that defendants cannot be trusted to abide by the terms of the Private Settlement Agreement. See Doc. Nos. 185, 188. These concerns do not militate against approval. First, defendants have already nearly completed much of the remediation required by the Private Settlement Agreement. Second, should defendants fail to fulfill their obligations, the Private Settlement Agreement is, as noted supra, enforceable in state court. Private Settlement Agreement, ¶ 6(B). These objections are without merit.
*23 In sum, none of the objections provide a basis for rejecting the Private Settlement Agreement.
H. The Private Settlement Agreement Supports the Public Interest “There is a strong public interest in encouraging settlement of complex litigation and class-action suits because they are notoriously difficult and unpredictable and settlement conserves judicial resources.” In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D.Mich.2003) (citing Granada Investments, Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir.1992)). Here, the Court agrees with counsel for both sides that removing asbestos from CCI improves prison conditions for inmates and staff, which in turn furthers society's broader interests. Settlement of this case also conserves judicial resources by bringing this litigation to a close. In sum, the Court is persuaded that creating a safer environment at CCI serves the public interest, which weighs in favor of approving the Private Settlement Agreement.
I. Attorneys' Fees and Expenses The Private Settlement Agreement authorizes the payment to class counsel attorneys' fees and expenses in the amount of $70,000.00. Private Settlement Agreement, ¶ 7(D). Pursuant to 42 U.S.C. § 1988, a “court, in its discretion, may allow the prevailing party, other than the United
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States, a reasonable attorney's fee as part of the costs[.]” 42 U.S.C. § 1988(b). One method for determining a “reasonable” fee is the lodestar analysis, which requires the calculation of “ ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.’ “
Wayne v. Village of Sebring, 36 F.3d 517, 531 (6th Cir.1994) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). See also Rawlings v. Prudential–Bache Prop., Inc., 9 F.3d 513, 517 (6th Cir.1993) (noting that the district court “recognized that it had a choice between the two methods [of calculating attorney's fees, the lodestar analysis and the percentage of fund method]”). The United States Supreme Court has recognized several benefits of a lodestar analysis. See Perdue v. Kenny, ––– U.S. ––––, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010). For example, using “prevailing market rates in the relevant community[,]” this method awards approximately what the prevailing attorney would have earned from a client paying hourly attorney wages in a comparable case. Id. (citations and internal quotation marks omitted). In addition, the lodestar approach is “readily administratable.” Id . (citations and internal quotation marks omitted). Finally, the lodestar method provides an “objective” calculation, which “produces reasonably predictable results.” Id. (citations and internal quotation marks omitted). Indeed, the lodestar analysis has “achieved dominance in the federal courts” and has “become the guiding light of our fee-shifting jurisprudence.” Id. (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 801, 122 S.Ct. 1817, 152 L.Ed.2d 996 (1984)) (internal quotation marks omitted). Accordingly, the Court concludes that the lodestar analysis is an appropriate method for determining a reasonable attorneys' fee in this case.
*24 The parties have agreed that an award of $70,000.00 will compensate class counsel for not only all fees and expenses already incurred but also all fees and costs that may be incurred in the future. Private Settlement Agreement, ¶ 7(D). Class counsel have submitted detailed information regarding their normal hourly rates, and that of a paralegal, and have specified the hours expended by them on this matter. Plaintiff's Bench Memorandum Regarding Attorney Fees and Expenses, attached to Minute Entry, Doc. No. 191, pp. 2–70. The amount authorized in the Private Settlement Agreement, i.e., $70,000, is well below the amount suggested by the lodestar calculation. See, e.g., Doc. No. 191, p. 18. 23 The Court is satisfied that the $70,000 award of attorney's fees in this case is reasonable, i.e., “one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers.” Adcock–Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir.2000) (quoting Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir.1999)).
23 The lodestar analysis would suggest an award of attorneys' fees of approximately $175,000.
IV. MOTIONS TO INTERVENE
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Several inmates filed motions “to be added to the on going law suit,” which were docketed as motions for leave to intervene. Doc. Nos. 155, 157, 158, 24 161, 162, 168, 169. 25 The Honorable John D. Holschuh, the former trial judge in the case, ordered that motions for leave to intervene be stayed pending resolution of the joint motion to certify a settlement class. Order, Doc. No. 76. The named parties take the position that, should this Court certify the Class and approve the Private Settlement Agreement, these motions would be rendered moot because any movants still incarcerated at CCI would be included as members of the Class.
24 Shawn Harris, the inmate who filed Doc. No. 158, is no longer incarcerated at CCI. Notice of Change of Address, Doc. No. 195.
25 David Cobb, who may also have expressed an interest in joining the action, see Doc. No. 150, is no longer incarcerated at CCI. Notice of Change of Address, Doc. No. 187.
It is not at all clear to the Court that movants actually seek leave to intervene in the action as named parties. Rather, all the motions appear to express interest in, and support for, the class action. It is notable, in the Court's view, that none of the movants filed objections to the Private Settlement Agreement. In any event, none of the movants demonstrates that he “is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect [his] interest,” Fed.R.Civ.P. 24(a)(2), or that “the existing parties [do not] adequately represent that interest.” Id. Intervention of right is therefore unwarranted. Moreover, although each of the movants articulated “a claim ... that shares with the main action a common question of law or fact,” see Fed.R.Civ.P. 24(b)(1)(B), to permit intervention at this stage of the proceedings would “unduly delay or prejudice the adjudication of the original parties' rights.” Fed.R.Civ.P. 24(b)(3). Permissive intervention is therefore also unwarranted.
The motions for leave to intervene, Doc. Nos. 155, 157, 158, 161, 162, 168, 169, are therefore DENIED.
V. REQUESTS TO WITHDRAW DOC. NOS. 185, 192, 193 *25 Mr. Perry, the class representative, has moved to withdraw his previously filed objection, Doc. No. 185, See Doc. No. 186, and class counsel moved, at the reopened hearing, for leave to withdraw the Motion for Multiple Class Representatives, Doc. No. 192, and Motion Regarding Adequacy of Class Counsel, Doc. No. 193, in light of Mr. Perry's sworn disavowal of the content of those motions. Because the Court has now reviewed the substance of Mr. Perry's objection and motions, the Court DENIES the requests to withdraw that objection and those motions.
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WHEREUPON, plaintiff Alfonsia Perry's notice of withdrawal, Doc. No. 186, of his objection, Doc. No. 185, and class counsel's oral request to withdraw Doc. Nos. 192 and 193, are DENIED. All objections to the Private Settlement Agreement, Doc. Nos. 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 188, 189, 193, 194, 202, are OVERRULED. The motion to add multiple class representatives, Doc. No. 192, as well as the motion signifying lack of fair and adequate representation, Doc. No. 193, are DENIED. The maintenance of the action as a class
action pursuant to Fed.R.Civ.P. 23(b)(2) is APPROVED. The Court CERTIFIES a class of plaintiffs consisting of all inmates in areas identified as containing unabated asbestos at CCI. The parties' request that the Court give final approval to the Private Settlement Agreement, attached as Exhibit 1 to the Joint Motion for Preliminary Approval of Proposed Class Action Settlement, Doc. No. 170, is GRANTED. The Court hereby APPROVES the Private Settlement Agreement. The motions for leave to intervene, Doc. Nos. 155, 157, 158, 161, 162, 168, 169, are DENIED.

All Citations Not Reported in F.Supp.2d, 2012 WL 1440254

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2012 WL 6642793 Only the Westlaw citation is currently available.
United States District Court, E.D. Michigan,
Southern Division.
Eric DOWDY–EL, Averis X. Wilson, Amira Salem, Tom Traini and Roger Hunt, Plaintiffs,
v. Patricia L. CARUSO, Michael Martin, and Dave Burnett, Defendants.
No. 06–11765. |
Aug. 15, 2012.
Attorneys and Law Firms
Daniel D. Quick, Dickinson Wright, Troy, MI, Doron Yitzchaki, Dickinson Wright, Ann Arbor, MI, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI, Todd R. McFarland, General Conference of Seventh–Day Adventists, Silver Spring, MD, for Plaintiffs.
John L. Thurber, Office of the Attorney General, Lansing, MI, for Defendants.
REPORT AND RECOMMENDATION ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION [56]
DAVID R. GRAND, United States Magistrate Judge.
*1 Before the court is the Plaintiffs' Motion for Class Certification [56], which has been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, IT IS RECOMMENDED that Plaintiffs' motion be GRANTED.
I. BACKGROUND Plaintiffs are Muslim 1 inmates housed by the Michigan Department of Corrections (“MDOC”) who challenge the defendant prison officials' alleged failure to accommodate their requests to observe three distinct Islamic religious practices: (1) attending Jum'ah prayer services; (2)
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receiving a halal diet; and (3) participating in the Eid ul-Fitr and Eid ul-Adha Feasts (the “Eid Feasts”). 2 On July 24, 2012, this court issued a Report and Recommendation (the “R & R”) regarding the parties' cross-motions for summary judgment. Doc. # 70. The R & R discussed the factual background behind the Plaintiffs' claims and the Defendants' defenses, R & R at 1–6, and the court incorporates that discussion by reference here. The court will nevertheless briefly describe Plaintiffs' claims as they relate to the instant motion for class certification.
1 This court has recommended that the sole non-Muslim plaintiff's claims be dismissed. Doc. # 70 at 2, fn. 1.
2 Plaintiffs challenge each alleged failure to accommodate under: (1) the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; (2) the Free Exercise Clause of the First Amendment of the United States Constitution, (3) the Michigan Constitution's counterparts to the United States Constitution's Equal Protection Clause and Free Exercise Clause, Article I, §§ 2 and 4, respectively; and (4) the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. (“RLUIPA”).
1. Jum'ahClaims Jum'ah is a weekly congregational prayer service that begins on Fridays at about noon and lasts for approximately one hour. MDOC Policy Directive 05.03.150 (the “Policy Directive”) provides in pertinent part:
V. Staff shall not make special provisions for the observance of religious holidays except as authorized and specifically provided for by Department policy.
* * * *
BB. Prisoners shall not be released from work or school assignments to attend group religious services or activities, consistent with restrictions on attending other personal interest activities. Religious services and activities should be scheduled when the majority of prisoners have leisure time (e.g., evening and weekend hours) ...
Policy Directive, ¶¶ V, BB (collectively, the “Work Release Policy” or the “Policy”). Under the Policy, observant Muslim inmates who are assigned to work and/or school duty that conflict with Jum'ah services are simply unable to attend those services. The parties agree, however, that Defendants employ an unwritten, un-defined, and “sporadic” “policy of granting permission to attend religious services on a case by case basis.” R & R at 4. Plaintiffs request
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either that they not be assigned to work or school duties that conflict with Jum'ah, or that they be freely (as opposed to sporadically) given “call-outs” to attend those services. Defendants argue that the Policy is lawful in light of security concerns that would exist if inmates could self-select a portion of their schedules.
This court recommended dismissing Plaintiffs' related constitutional claims. R & R at 29–31, 35– 37. However, RLUIPA imposes a greater burden on Defendants than does the First or Fourteenth Amendments, and requires them to show the Work Release Policy is the least restrictive means of addressing their safety concerns. Colvin v. Caruso, 605 F.3d 282, 296 (6th Cir.2010) (“The constitutional protection afforded [to inmates] under § 1983 is less strong” than those afforded under RLUIPA). See also R & R at 27. This court found that material questions of fact existed regarding the “least restrictive means” issue, and, as a result, recommended denying summary judgment on the Jum'ah RLUIPA claim. R & R at 18–21.
*2 Plaintiffs seek to certify a class comprised of “all current and future Michigan Muslim inmates who desire but have been denied ... the ability to participate in Jum'ah because of a conflicting work, school or similar detail. [56 at 20].
2. Halal Diet Claims Plaintiffs allege that their faith requires adherence to dietary restrictions that prohibit the consumption of any food that is not “halal”. Compl., ¶ 24. In other words, they desire a diet comprised of halal meats and/or vegetarian foods that have not been “cross-contaminated” by coming into contact with non-halal meats. Defendants contend that they are unable to provide a special halal diet due to cost constraints, but claim that they take measures to ensure that crosscontamination does not occur. This court recommended granting Defendants' summary judgment motion as to Plaintiffs' halal diet claim under the First Amendment's Free Exercise Clause (and related Michigan constitutional provision), but permitting their other halal diet claims to proceed. R & R at 40.
Plaintiffs seek to certify a class comprised of “all current and future Michigan Muslim inmates who desire but have been denied ... a halal diet that is free of contamination by foods considered haram,” i.e., non-halal meats and/or vegetarian foods that have been “contaminated” by coming into contact with such meats. [56 at 20].
3. Eid FeastClaims
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Plaintiffs also challenge the Defendants' alleged failure to accommodate their observance of the Eid Feasts. However, after this action was filed, the MDOC issued a Memo which made clear that observant Muslim inmates would be allowed to participate in the Eid Feasts. R & R at 6, 37. Defendants argued that the Memo rendered Plaintiffs' Eid Feast claims moot. This court found that Plaintiffs' claims were not moot because the Memo's contents had not been sufficiently incorporated into the Policy Directive as other allowable religious observances had been. R & R at 37–39. However, recognizing that Defendants do not dispute observant inmates' right to participate in the Eids, this court recommended granting summary judgment in Plaintiffs' favor on those claims. Id.
Whether or not this court's recommendation is ultimately adopted by the district court, the class certification question on Plaintiffs' Eid feasts claims is clearly moot; if the district court accepts the recommendation, the claims will have been resolved in the Plaintiffs' favor, and if the court rejects the recommendation, the Defendants will have prevailed. Accordingly, the class certification issue on those claims need not be addressed further.
II. STANDARD OF REVIEW Federal Rule of Civil Procedure 23(a) provides that “[o]ne or more members of a class may sue
or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
*3 (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).
“Although Rule 23(a)(2) refers to common questions of law or fact, in the plural, there need only be one question common to the class-though that question must be a ‘common issue the resolution of which will advance the litigation.’ Ultimately, the class may only be certified if, “after a rigorous analysis,” the district court is satisfied that these prerequisites have been met. The burden is on the plaintiff “to establish his right” to class certification.” Alkire v. Irving, 330 F.3d 802, 820 (6th Cir.2003) (citations omitted).
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In addition to satisfying the Rule 23(a) criteria, the proposed representative plaintiffs must also meet one of the criteria listed in Rule 23(b). Here, Plaintiffs claim they satisfy Rule 23(b)(2) [56 at 10], which provides that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole ...” Fed.R.Civ.P. 23(b)(2).
III. ANALYSIS
A. Rule 23(a)(1)—Numerosity Defendants do not dispute that Plaintiffs satisfy Rule 23(a) (1)'s numerosity requirement with respect to either of the proposed classes for their Jum ‘ah or halal diet claims. Doc. # 62 at 2. The court also finds that Plaintiffs easily satisfy this requirement for both sets of claims. Plaintiffs allege (and Defendants do not dispute) that as of December 31, 2009, the MDOC housed in excess of 1,800 Muslim inmates. Id.; Doc. # 56 at 12. Plaintiffs have also shown that the each of the religious practices they seek to observe are sufficiently central to their faith that there are likely to be at least many hundreds of Muslim inmates in the proposed classes. Doc. # 56 at 12. Such numbers, particularly considering their status as inmates, easily satisfies Rule 23(a) (1)'s numerosity requirement. See Glover v. Johnson, 85 F.R.D. 1 (E.D.Mich.1977); Johnson v. Martin, 2002 U.S. Dist. LEXIS 12550 at *13 (W.D.Mich. Apr. 29, 2002); Roman v. Korson, 152 F.R.D. 101, 105 (W.D.Mich.1993) (noting the “modern trend is to require a minimum of between 21 and 40 members” to meet the numerosity requirement).
B. Rule 23(a)(2)—Commonality Rule 23(a) (2)'s “commonality” requirement “deals with shared questions of law or fact,” and requires the representative plaintiffs to show that “there are questions of law or fact common to the class.” Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir.1998); Fed.R.Civ.P. 23(a) (2). As noted above, there “need only be one question common to the class” for the representative Plaintiffs to satisfy this “commonality” requirement. Alkire, 330 F.3d at 820; In re. Whirlpool Corp. Front–Loading Washer Products, 678 F.3d 409, 419 (6th Cir.2012) (“There need only be one question common to the class ...”) (quoting Sprague, 133 F.3d at 397). However, not every “common question” of law or fact will suffice; “[w]hat we are looking for is a common issue the resolution of which will advance the litigation.” Sprague, 133 F.3d at 397.
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*4 “[C]ases involving enforcement of a uniform policy or procedure, including those relating to prisoners, are often approved as class actions because they involved questions of fact and law common to all members.” Johnson, 2002 U.S. Dist. LEXIS 12550 at *14 (citing inter alia,
Armstrong v. Davis, 275 F.3d 849, 868–69 (9th Cir.2001) (“in a civil-rights suit, [ ] commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members ...”)). See also Jones v. Goord, 190 F.R.D. 103, 111 (S.D.N.Y.1999) (“The requirement that there be common questions of law and fact is satisfied in an action by prison inmates when ‘inmates have a common interest in preventing the recurrence of the objectionable conduct.’ ”) (citations omitted). As the court in Glover explained:
Clearly each individual member of the class has a unique situation and has been affected in diverse ways by the alleged discriminatory policy. That there are differences in situation and effect does not preclude a finding by this Court of commonality. That each class member's case is in other ways unique does not affect the commonality of the action, as long as the members of the class have allegedly been affected by a general policy of the defendant, and the general policy is the focus of the litigation.
Glover, 85 F.R.D. at 4–5 (quoting Sweet v. General tire & Rubber Co., 74 F.R.D. 333, 335 (N.D.Ohio 1976)). The court examines each of Plaintiffs' two sets of claims separately in this regard.
i. Jum'ah Claims Plaintiffs' Jum'ah claims present issues common to every prospective class member. The Work Release Policy prohibits inmates from being “released from work or school assignments to attend group religious services or activities, consistent with restrictions on attending other personal interest activities.” Policy Directive, ¶ BB. Thus, all prospective Plaintiffs who wish to attend Jum'ah but who are unable to do so because they have a conflicting work or school assignment, face the same strict impediment to attending those religious services. Glover, 85 F.R.D. at 4–5.
As this court found in its R & R, even if the decision on whether to grant any particular accommodation turns on case-by-case analysis, that alone would not resolve the legal issues in this case because the Policy, at least on its face, prevents such accommodations. R & R at 21. The salient question in this case is whether the Work Release Policy is the least restrictive means of addressing the Defendants' security concerns, because with that Policy in place, an inmate may never obtain
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the individualized case-by-case consideration. R & R at 18–21. Thus, the Policy's underlying legality is a question that is common to all members of the proposed class, and achieving a final answer to that question will certainly advance this litigation. Sprague, 133 F.3d at 397.
Defendants' merged the entirety of their “commonality” and “typicality” arguments into one single paragraph:
*5 It is the Defendants position that the Plaintiffs cannot satisfy prerequisites 2 and 3 because the various faiths represented by the Plaintiffs it is unclear whether there are questions of law common to all of the potential class members and whether the Plaintiffs' claims are typical of the potential class. The Plaintiffs are members of three different faiths, Sunni Islam (Salem and Traini), the Nation of Islam (Wilson), and the Moorish Science Temple of America (Dowdy–El). While all three of the aforementioned faiths share some common beliefs, in practice, they may have very different belief systems. It is unclear whether the injunctive relief the individual Plaintiffs seek would satisfy the membership of three separate faiths. For example, members of the Nation of Islam (NOI) often choose to follow a diet prescribed by Elijah Muhammad. The diet set forth Elijah Muhammad is far more restrictive than a standard halal diet. For example, NOI members who follow Elijah Muhammad's diet cannot eat meat or potatoes. Consequently, any relief this Court might order with respect to halal diets might not satisfy many members of the NOI. Any relief this Court might order that satisfies mainstream Sunni Muslims might not satisfy Shi‘a Muslims, the Nation of Islam, or the Moorish Science Temple of America. Accordingly, the Defendants submit that this Court should deny class certification.
Doc. # 62 at 3.
Defendants' vague response does not alter the above analysis. Defendants focused solely on Plaintiffs' halal diet claim, and made no specific argument with respect to their Jum'ah claims. And, as discussed above, while individual circumstances might be relevant to a case-by-case consideration of accommodation denials, they are irrelevant to the initial question of the Policy's overall legality.
In sum, the Work Release Policy's legality under RLUIPA presents a question of law common to each proposed class member, and Rule 23(a)(2)'s commonality requirement is satisfied. See
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Mayweathers v. Newland, 258 F.3d 930, 933 (9th Cir.2001) (noting that the district court had certified a class of Muslim inmate plaintiffs who had sought relief similar to what the Plaintiffs seek in this case).
ii. Halal Diet Claims Because the MDOC has a policy of not providing a halal diet to observant Muslim inmates, Doc. # 55 at 9, Plaintiffs' claims challenging that policy satisfy Rule 23(a)(2)'s commonality requirement. Glover, 85 F.R.D. at 4–5. Here, common questions of both law and fact underscore Plaintiffs' halal-diet claims, including: (1) whether Defendants are, in general, legally required to provide inmates with a special halal diet under any circumstances; (2) whether, if that question is answered in the affirmative, Defendants have shown that such a requirement ought not to apply with respect to them due to their alleged financial condition; and (3) whether, regardless of the answer to the initial question, Defendants do, in fact, provide a diet that is halal-compliant. See R & R at 21–26; Glover, 85 F.R.D. at 4–5.
*6 As noted above, Defendants' only response to the “commonality” question was to note that the three different forms of Islam practiced by the instant Plaintiffs “may have very different belief systems” and that it was “unclear whether the injunctive relief [requested] would satisfy” their respective faiths. Doc. # 62 at 3 (emphasis added). Defendants' assertions are equivocal on their face, and were not supported by references to any record evidence. Instead, Defendants offered an equally unsupported hypothetical regarding the types of foods that are allowable under the different forms of Islam. Id. Moreover, even if there are some individual discrepancies in the types of foods that Defendants believe would be allowed under the different forms of Islamic practice, those differences are immaterial here where the proposed class is narrowly defined as including only: “all current and future Michigan Muslim inmates who desire but have been denied ... a halal diet that is free of contamination by foods considered haram.” Doc. # 56 at 20. See Abdul– Malik v. Coombe, 1996 WL 706914, at *2 (S.D.N.Y. Dec.6, 1996) (“Clearly, the determination of whether [RLUIPA's precursor and constitutional provisions] mandate the provision of a Halal diet for Muslim inmates is a question of law common to all potential class members.”)
C. Rule 23(a)(3)—Typicality In Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir.2007), the Sixth Circuit explained
Rule 23(a)(3)'s commonality requirement as follows:
Under Rule 23(a)(3), “the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class.” A claim is typical if “it arises from the same event or
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practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” In Sprague, the Court explained that “[t]ypicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” On the other hand, the Sprague Court explained, the typicality requirement is not satisfied when a plaintiff can prove his own claim but not “necessarily have proved anybody's else's claim.” Lastly, for the district court to conclude that the typicality requirement is satisfied, “a representative's claim need not always involve the same facts or law, provided there is a common element of fact or law .”
Here, again, the court conducts a separate analysis for each of Plaintiffs' two sets of claims.
i. Jum'ah Claims In considering whether Plaintiffs have met Rule 23(a)(3)'s “typicality” requirement, it is first helpful to focus on the Defendants' perspective. If Defendants' position is correct, then they could, for no reason other than the verbiage in the Work Release Policy, deny any Muslim inmate's request for a work/study release so that he could attend Jum'ah. In other words, it is the Policy itself which puts all inmates' religious-based scheduling requests on equal footing with each other.
*7 Plaintiffs here are challenging the legality of that specific Policy, including the fact that any request to attend Jum ‘ah is entitled to no more consideration than would be an inmate's request to watch a television program. Work Release Policy, ¶ BB. As a precursor to success, any aggrieved class member would be required to overcome the Policy's facial ban on religious-based “callouts.” Thus, at least at this stage, the Plaintiffs' claims arise from the same “practice or course of conduct that gives rise to the claims of other class members ...” Beattie, 511 F.3d at 561. See also Mayweathers, 258 F.3d at 933.
ii Halal Diet Claims The “typicality” issue in this case is on all fours with the one at issue in Abdul–Malik, 1996 WL 706914, at *3. The Abdul–Malik court was considering a Muslim plaintiff inmate's motion to certify a class of all “Muslims [who] are now or will be incarcerated in [State of New York correctional facilities” who desire a halal diet. Id. at *1. The defendant in that case raised almost precisely the same typicality argument that Defendants raise here, i.e., that Plaintiffs “are members of three different faiths” and that “[w]hile all three [ ] share some common beliefs, in practice they may have very different belief systems. It is unclear whether the injunctive relief the individual
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Plaintiffs seek would satisfy the membership of three separate faiths.” Doc. # 62 at 3. The Abdul– Malik court resoundingly rejected that argument:
The typicality requirement is satisfied when each class member's claim arises from the same events as give rise to the named representative's claims and each class member will make the same legal arguments to prove liability. The typicality requirement is not defeated by minor variations in the fact patterns of individual class member's claims.
The defendant contends that the plaintiff's claims are not typical of the proposed class because there is no evidence in the record that all Muslims follow the same dietary practices as the plaintiff. He points to the fact that members of the Nation of Islam feel that their religion is distinct from other Muslim sects. The defendant does not, however, contend that members of the Nation of Islam would not follow a Halal diet. Moreover, the defendant does not dispute that a Halal diet is a known dietary practice .... the speculation that some Muslim sects may impose stricter dietary restrictions than those contained in a Halal diet does not render plaintiff atypical of other Muslim inmates.
Abdul–Malik, at *3.
The same rationale compels a finding that Plaintiffs here satisfy Rule 23(a)(3)'s “typicality” requirement. Plaintiffs have narrowly defined a proposed class comprised of “all current and future Michigan Muslim inmates who desire but have been denied ... a halal diet that is free of contamination by foods considered haram.” Regardless of the minor dietary differences identified by Defendants (which differences were unsupported, speculative, and lacking in relevance 3 ), the class members' claims arise from the same “practice or course of conduct that gives rise to the claims of other class members ...”—the MDOC's policy of not providing halal meals to its Muslim inmates. Beattie, 511 F.3d at 561. See also Abdul–Malik, at*3. Accordingly, the typicality requirement is met as to the halal diet claims.
3 The only particular dietary difference referenced by Defendants is that Nation of Islam members supposedly do not eat meat or potatoes. Doc. # 62 at 3. However, Defendants themselves have taken the position that they meet those inmates' religious dietary needs by providing vegetarian foods that are not contaminated. Thus, unless Defendants are suggesting that the court might order the MDOC to provide those or other inmates with a meat-only or potato-only diet, the Defendants have failed to meaningfully differentiate between the proposed class members' claims in a way that would impact this court's analysis of the typicality question.
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D. Rule 23(a)(4)—Fair and Adequate Protection of Class Members' Interests *8 Rule 23(a)(4) requires that the that “the representative parties will fairly and adequately protect the interests of the class.” That requirement has two components: “(1) the representative must have common interests with unnamed members of the class, and (2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.”
Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.1976). There is no dispute that both of those prongs are satisfied here. First, the Defendants do not argue otherwise. Second, the representative Plaintiffs clearly have common interests with the unnamed class members, each of whom (by definition) will be an inmate who desires the accommodations being sought by the current Plaintiffs. Moreover, for the reasons stated above, the claims and issues involved are common and typical to all of the proposed plaintiffs. Johnson, 2002 U.S. Dist. LEXIS 12550, at *25–26. Finally, the representative Plaintiffs have personally experienced the alleged burdens imposed by the restrictions they challenge, have testified, and have vigorously pursued this action over a lengthy period of time through qualified counsel, the Dickinson Wright law firm and the ACLU. They have also engaged experts who have provided cogent expert reports in support of their positions. In sum, there is no dispute that Rule 23(a)(4) is satisfied.
E. Rule 23(b)(2) is Satisfied As noted above, in addition to satisfying the Rule 23(a) criteria, representative plaintiffs must also meet one of the criteria listed in Rule 23(b). Here, Plaintiffs claim they satisfy Rule 23(b) (2), which provides that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole ...” Fed.R.Civ.P. 23(b)(2). As noted in Johnson, 2002 U.S. Dist. LEXIS 12550, at *28:
[P]rison section 1983 suits involving an allegedly illegal or unconstitutional prison policy are well situated for certification under Rule 23(b)(2) because the plaintiff classes seek to enjoin the operation of the policy and the grounds for relief depend on the general legality or constitutionality of the policy and on the applicability of common defenses to the entire class.
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That is precisely the case here with respect to both Plaintiffs' Jum'ah and halal diet claims. With respect to each of those claims, the Defendants have adopted a policy—which they believe to be legal—that applies generally to all Muslim inmates seeking the type of relief sought by the Plaintiffs here. Those with a conflicting work or school assignment are prohibited by the Work Release Policy from obtaining a call-out to attend Jum'ah, and those seeking a halal diet cannot obtain one because the MDOC has a policy of not providing them (Doc. # 55 at 9), or at least a professed financial inability to do so. Because Plaintiffs' case as to each claim rises or falls on the general legality of those respective issues, any final injunctive or declaratory relief given to
them will necessarily be “appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2).
Accordingly, Plaintiffs here satisfy Rule 23(b)(2).

IV. CONCLUSION *9 For the foregoing reasons, the court RECOMMENDS that Representative Plaintiffs' Motion for Class Certification [56] be GRANTED.

All Citations Not Reported in F.Supp.2d, 2012 WL 6642793

End of Document

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KeyCite Yellow Flag - Negative Treatment Distinguished by Unknown Parties v. Johnson, D.Ariz., January 11, 2016
2012 WL 4470433 Only the Westlaw citation is currently available.
United States District Court, E.D. Michigan,
Northern Division.
Jonathan BROWN, Plaintiff, v.
CITY OF DETROIT, Defendant.
No. 10–12162. |
Sept. 27, 2012.
Attorneys and Law Firms
Arthur Loevy, Cindy Tsai, Jon Loevy, Michael I. Kanovitz, Loevy & Loevy, Chicago, IL, David L. Haron, Mercedes V. Dordeski, Tamara Fraser, Frank Haron Weiner, Troy, MI, for Plaintiff.
Cindy Tsai, Loevy & Loevy, Chicago, IL, Dennis Burnett, Detroit City Law Department, Detroit, MI, for Defendant.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND ORDERING
SUPPLEMENTAL BRIEFING ON ISSUES GOVERNING LIABILITY
THOMAS L. LUDINGTON, District Judge.
*1 In June 2012, the Supreme Court granted a writ of certiorari on “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir.2011), cert. granted sub nom. Comcast Corp. v. Behrend, 80 U.S.L.W. 3442 (U.S. Jun 25, 2012) (No. 11–864).
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This case raises a related question—specifically, whether liability may be bifurcated from damages in a class action brought pursuant to Federal Rule of Civil Procedure 23(b)(3). Sixth Circuit precedent authorizes the bifurcation of liability from damages in class actions brought pursuant to
Rule 23(b)(3). E.g., Olden v. LaFarge Corp., 203 F.R.D. 254 (E.D.Mich.2001) (Lawson, J.), aff'd 383 F.3d 495 (6th Cir.2004); see also Fed.R.Civ.P. (c)(4) (“When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”). Accordingly, the question presented is answered in the affirmative.
The case arises out of the manner that Defendant City of Detroit allegedly treats those arrested within the city. Plaintiff Jonathan Aaron Brown, asserting § 1983 claims individually and on behalf of tens of thousands of others, filed suit alleging that Defendant routinely violates the constitutional rights of arrestees three distinct ways. First, Defendant does not provide bedding when an arrestee is detained overnight or for more than sixteen hours. Second, Defendant regularly detains arrestees for more than forty-eight hours without a judicial determination of probable cause. And third, Defendant does not feed arrestees at least two meals a day. Plaintiff estimates the size of the proposed “Class I” is about 108,000. “Class II” is about 30,000. And Class III, Plaintiff acknowledges, has not been determined.
Plaintiff filed this suit in June 2010. Over the next several months Defendant did not respond to discovery demands, notwithstanding two court orders compelling their production. Accordingly, in April 2011 the Court entered an order of default against Defendant. ECF No. 27. Since then, the parties have filed two rounds of supplemental briefing on whether damages and liability may be bifurcated, whether class certification is appropriate, and whether the default runs to the putative classes or is limited to Plaintiff's individual claims.
As detailed below, the first two proposed classes will be certified. The third will not be. Damages and liability will be bifurcated. Default will run to the putative classes. And supplemental briefing will be ordered on whether the allegations in the complaint for the first two classes state a valid cause of action.
Briefly, once liability is bifurcated from damages, establishing Defendants' liability does not merely involve common questions of fact and law for the first two proposed classes—it depends on them. To establish municipal liability under “inaction theory,” the first element Plaintiff must prove is “the existence of a clear and persistent pattern of violating federal rights.” Powers v. Hamilton Cnty. Pub. Defender Comm'n, 501 F.3d 592, 607 (6th Cir.2007). Consequently, the individual facts particular to each member's claim are the material facts essential to the claim common to all.
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*2 Moreover, the Supreme Court instructs that the primary purpose of class actions is the “vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (internal quotation marks omitted) (quoting Benjamin Kaplan, A Prefatory Note, 10 B.C. Ind. & Com. L.Rev. 497, 497 (1969)). “The policy at the very core of the class action mechanism,” the Court explains, “is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor.” Amchem, 521 U.S. at 617 (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997)). This case thus presents a quintessential case for class action, the accusation of a serious, ongoing problem that is unlikely to be remedied by an individual plaintiff because of the relatively modest damages.
The Court will certify the first two classes as to liability. But as Plaintiff has not provided sufficient detail regarding the third proposed class, the Court will decline to certify the class at this time.
Additionally, the Court will order supplemental briefing on the issue of whether the allegations in the complaint for the first two classes state a valid cause of action. “The effect of a default,” as a matter of the black letter law, “is to deem admitted all the well-pleaded facts in the complaint.” 49 C.J.S. Judgments § 273 (2012). A default does not, however, deem admitted legal conclusions. Id. Here, when default was entered in April 2011, its scope extended to “all the well-pleaded facts in the complaint.” Id. And the factual allegations in the complaint are not limited to Plaintiff. They extend to the three proposed classes as well. The scope of the default thus extends to these classes. This does not mean, however, that Defendant is liable to each of the three classes. Defendant may still challenge the legal conclusions in the complaint, such as the allegation that depriving bedding to an arrestee held for sixteen hours constitutes a constitutional tort. Accordingly, before deciding Defendant's liability, the Court will direct the parties to brief the legal issues pertinent to the first two classes.
I
A
On June 1, 2010, Plaintiff filed a complaint in this Court. The complaint asserts that Plaintiff was arrested by the Detroit Police Department at 10:00 a.m. on September 21, 2007, and detained in a cold, isolated holding cell without proper food, blankets, or a pillow for fifty-five hours before
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being arraigned. The complaint further alleges that Defendant has treated tens of thousands of other arrestees in a similar manner since May 2007. Accordingly, the complaint seeks class certification for three classes of persons.
*3 Class I is defined in the complaint as “All persons detained in a [Detroit Police Department] lock-up or detective division facility overnight or for more than sixteen hours in a 24–hour period at any time from May 27, 2007 to the present.” Compl. ¶ 38. The complaint contends that these arrestees were subjected to “inhumane conditions of confinement” as Defendant “maintains no bedding and no facilities to allow arrestees to get meaningful sleep, i.e., no beds, cots, mattresses, blankets or pillows.” Id. ¶ 38(d); see id. ¶¶ 17–23.
Class II is defined as “All persons detained by the DPD in excess of 48 hours without a judicial determination of probable cause at anytime from May 27, 2007 until the present.” Id. ¶ 43. As noted, the complaint alleges that Defendant has “an ingrained and long standing practice of detaining arrestees for more than forty-eight hours without a judicial determination of probable cause.” Id. ¶ 44(e). The complaint further asserts: “An analysis of the sample data obtained by the consent decree monitor indicates that during the reporting periods in 2008 and 2009, between 18 and 34 percent of arrestees were detained in excess of 48 hours by the [Detroit Police Department] without a judicial determination of probable cause.” Id. ¶ 44(f).
Elaborating on the basis for certification of this class, paragraph 46 identifies four “questions of law and fact common to the claims of Class II.” The first is “Whether it violates the constitution to detain arrestees in excess of 48 hours without obtaining judicial approval of probable cause for the detention.” Compl. ¶ 46(a). The second is “Whether it violates state law to detain arrestees in excess of 48 hours without obtaining judicial approval of probable cause for the detention.” Id. ¶ 46(b). The third is “Whether the [Detroit Police Department] maintained a policy, custom and/or widespread practice allowing the detention of arrestees in excess of 48 hours without obtaining a judicial determination of probable cause for the detention.” Id. ¶ 46(c). And the fourth is “Whether [department] officials have been deliberately indifferent to the need for training, enforcement, discipline, and/or better policies regarding the length of detention of arrestees in the absence of a judicial determination of probable cause.” Id. ¶ 46(d).
Class III is defined in the complaint as “All persons detained by the [City of Detroit Police Department] in excess of 24 hours [who] did not receive at least two meals at any time from May 27, 2007 to the present.” Id. ¶ 50. Paragraph 51 elaborates: “The [department] maintains or maintained a policy, custom and/or widespread practice permitting officers to detain citizens in excess of 24 hours without feeding them.”
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B
Defendant was served and timely answered in June 2010. ECF Nos. 10, 11. In August 2010, the Court entered a scheduling order. ECF No. 13. It set deadlines for discovery and dispositive motions. It also scheduled the pretrial conference and trial. In September 2010, Plaintiff moved to compel discovery responses. ECF No. 14. Plaintiff explained that he had requested a database of all persons arrested by the Detroit Police Department during the class period. Defendant produced a four-page document regarding Plaintiff's arrest, nothing else. Plaintiff's motion to compel was granted. ECF No. 18. Still, Defendant did not respond to the discovery requests. In November 2010, Plaintiff moved to enforce the order granting Plaintiff's motion to compel. ECF No. 19. The following month, a stipulated order was entered granting Plaintiff's motion. ECF No. 24.
*4 Again, Defendant did not produce the discovery as ordered. In March 2011, Plaintiff moved for sanctions. ECF No. 25. On April 18, 2011, the Court—noting that there had been nine months of unexplained agreements to produce voluminous documents followed by neglect and inattention by Defendant—granted Plaintiff's motion and entered a default against Defendant. ECF No. 27. In entering the order, the Court emphasized that Defendant repeatedly missed discovery deadlines agreed to by the parties and ignored the Court's orders. Indeed, by the time the Court entered the default, Defendant had stopped speaking to Plaintiff's attorneys, responding to Plaintiff's written inquiries, and appearing for Court-ordered hearings.
The day after the default was entered, Defendant moved to set it aside. ECF No. 29. The Court, finding that Defendant had not demonstrated good cause for setting aside the default, denied the motion in May 2011. ECF No. 33. The Court noted, however, that the default was as to liability only. Whether class certification is appropriate in this case, the Court observed, was not resolved by the default.
C
To begin to focus attention on whether class certification is appropriate, on May 31, 2011, the Court held a status conference. Following the conference, an order was entered setting a briefing schedule on two issues. ECF No. 38. First, Defendant was directed to brief all of the reasons it believes that the detention of some persons for more than forty-eight hours following their arrests without a judicial determination of probable cause complied with the Fourth Amendment as interpreted by
County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), and
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progeny. Plaintiff was directed to respond and to brief the interplay between municipal liability under 42 U.S.C. § 1983 (as defined in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and progeny) and Plaintiff's burden under Rule 23 of demonstrating that class certification is appropriate.
Defendant timely filed a brief identifying several exceptions to the forty-eight hour presumption established by McLaughlin, including: (1) “terrorist acts (or bomb threats)”; (2) “extreme weather (floods, snow storms, etc.)”; (3) “power outage”; (4) “illness of detainee”; (5) “mental state of detainee (unable to understand process)”; and (6) “false I.D. given by detainee.” Def .' s Mem. on Permissible Exceptions 3, ECF No. 39.
Plaintiff then filed a response brief. ECF No. 44. He asserted that “none of these defenses, even if legally valid, would defeat Rule 23(b)(3) class certification because each of them can be handled ministerially.” Pl.'s Resp. to Def.'s Mem. on Permissible Exceptions 2, ECF No. 44. Illustrating the argument, Plaintiff explained: “Take, for example, an arrestee's illness—a matter that may constitute an ‘extraordinary circumstance’ under McLaughlin. If an arrestee is sick while in custody, the Department checks a box indicating so on the arrest report at the time of booking. Because there is an arrest report for each detainee, parties can determine the universe of people to whom this circumstance even arguably applies.” Id. If there are only a handful of class members fitting within this exception, Plaintiff elaborated, “then these individualized determinations would not predominate over the common determination of the City's Monell liability for holding class members longer than 48–hours.” Id.
*5 Turning to the interplay between municipal liability under Monell and class certification, Plaintiff asserted that “it has become well-accepted that the common factual questions in proving a Monell claim usually predominate. As a result, courts generally certify Monell claims for class treatment even when there may be some individualized defenses.” Id. at 3 (citing Powers v. Hamilton Cnty. Pub. Defender Comm'n, 501 F.3d 592, 619 (6th Cir.2007)). Plaintiff further noted that in two cases, district courts certified Rule 23(b)(3) class actions based on a municipality's policy of not arraigning or releasing arrestees within forty-eight hours. Pl.'s Resp. 4 (citing Strunk v. LaGrange Cnty. Sheriff, No. 10–CV–23, 2011 WL 839662, at *1 (N.D.Ind. March 7, 2011); and
Dunn v. City of Chicago, 231 F.R.D. 367, 375 (N.D.Ill. Oct.5, 2005)).
Defendant timely filed a reply memorandum. ECF No. 46. “It is not clear what Plaintiff means by ‘handled ministerially,’ “ Defendant wrote, elaborating: “It is clear that with respect to the legal defenses available regarding each putative class member there are several questions of fact on the liability issues, as well as numerous individual damage questions of fact. The unique nature of
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each member[']s case means that these claims cannot be handled on a class basis.” Def.'s Reply to Pl.'s Resp. 2. Defendant concluded: “The simple truth is that in the Sixth Circuit Monell civil rights litigation is not normally certified under Rule 23(b)(3) because of the ‘predominance’ requirement of that rule, which requires that common questions of law and fact ‘predominate’ over individual ones.” Id. at 9.
D
In November 2011, a status conference was held. Shortly before the conference, Plaintiff submitted a status report on the potential size of the three proposed classes. ECF No. 53. Plaintiff estimated the size of Class I is about 108,000, Class II is about 30,000, and Class III had not been determined.
To calculate the size of the classes, Plaintiff explained, he reviewed three of Defendant's databases: LiveScan, Crisnet, and the warrant tracking form database. LiveScan contains “uniform fields of information for all person[s] that the [Detroit Police Department] arrests, including biographical and arrest information. From June 1, 2007 to July 31, 2011, the LiveScan database contains 142,143 valid records.” Pl.'s Report on Potential Size of Class 1, ECF No. 53. Crisnet contains information for all persons the department “encounters,” and, if the encounter results in an arrest, “the record contains a detailed description of the events that transpired, including whether a warrant was issued prior to the arrest.... From June 1, 2007 to July 31, 2011, the Crisnet database contains 298,399 records.” Id. at 2–3. The warrant tracking form database, which contains “the only evidence the [Detroit Police Department] maintains as to why an individual did not get to see a judge for more than 48 hours after arrest,” has just 4,173 records. Id. at 3. Plaintiff specified that he found:
*6 • For Class I, Defendant's databases contained “107,609 records where an individual was detained between 10 p.m. and 6 a.m. or for more than 16 hours.”
• For Class II, Defendant's databases showed “there were 37,064 arrests which lead to detentions longer than 48 hours.... Of the 37,064 arrests where the length of detention exceeded 48 hours, 79.4% were warrantless arrests. The estimated size for Class II is 29, 431.”
• For Class III, Defendant did not maintain an electronic record, and so Plaintiff had not yet determined the size of the potential class. Plaintiff explained: “The meal logs are only available in paper format and have not been data entered electronically yet. As such, this analysis is limited to the length of detention criteria and the estimated class size is overly
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inclusive. With that understanding, the LiveScan database identifies 83,808 records where an arrestee was detained over 24 hours.”
Pl.'s Report on Potential Size of Class 2, 3, 4–5, ECF No. 53.
Plaintiff also elaborated regarding Defendant's affirmative defenses to Class II. Plaintiff first noted that the warrant tracking form database (“the only evidence the DPD maintains as to why an individual did not get to see a judge for more than 48 hours after arrest”) contained 4,173 records. Id. at 3. After reviewing 30 percent of these records, Plaintiff extrapolated that for the potential class of about 30,000 “there are likely to be only 200 records at issue.” Id. at 4.
In February 2012, another status conference was held. Plaintiff again submitted a status report. ECF No. 55. Plaintiff explained that he had had significantly overestimated the number of Class II members for whom Defendant had an affirmative defense. “After reviewing the relevant records from the Warrant Tracking Form database,” Plaintiff elaborated, “[he] identified a total of 110 records which fit in one of Defendant's affirmative defenses.” Pl.'s Report on Number of Individuals Affected by Affirmative Defenses 2, ECF No. 55. Thus, Defendant had affirmative defenses for less than 0.5 percent of the potential Class II members.
Acknowledging that Defendant disagreed regarding whether the 110 records form a complete list of potential class members subject to an affirmative defense, Plaintiff continued: “Defendant has no good-faith basis to take this position. First, the City has made no showing that any other evidence exists. Second, the Defendant, through its Rule 30(b)(6) representative, admitted that when an exigent circumstance exists to justify the judicial review violation, it is always documented on a Warrant Tracking Form.” Id. (citing Romeo Dep. 97:3–7, Sept. 29, 2012). Additionally, Plaintiff reiterated his assertion that the proffered affirmative defenses do not “overshadow” the common factual and legal questions for Class II: “Each putative class member seeks recovery under the same legal theories and must prove the same policies and practices by the Defendant.” Id. at 4.
E
*7 Following the status conference, an order was entered directing supplemental briefing on Plaintiff's pending motion for class certification and entry of default in favor of the class.
Plaintiff filed a supplemental brief in April 2012 asserting that Class II should be certified for “two independently sufficient reasons. First, Defendant forfeited any Riverside justification defense by
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incurring the default. And, second, even if the Court did allow Defendant to assert a Riverside defense, the defense involves only a handful of categorical justifications, which can be excluded from the class definition.” Pl.'s Supp. Mem. on Class Certification 3, ECF No. 57 (internal citations omitted). Elaborating on the first argument, Plaintiff wrote: “Defendant delayed in discovery, violated court orders, and ultimately defaulted. Its affirmative defenses are waived.” Id. at 8.
Addressing the scope of Defendant's default, Plaintiff asserted that because a default deems admitted all the factual allegations in the complaint, liability extends to the entire class. “The order applied to the entire complaint,” Plaintiff wrote, “which included the claims brought on behalf of the classes. It did not parse the named Plaintiff from the claims he brought for himself and the absent class members.” Id. at 8–9.
Plaintiff further asserted that default as to liability is appropriate for the Class I claim because it states a valid cause of action. Plaintiff wrote that “numerous courts have found that withholding bedding as a matter of course ... violates the Fourteenth Amendment.” Id. at 11 (citing Thompson v. City of L.A., 885 F.2d 1439 (9th Cir.1989); Anela v. City of Wildwood, 790 F.2d 1063 (3d Cir.1986)). Likewise, Plaintiff continued, default as to liability is appropriate for Class II since “[a]ll the class needs to prove to meet their burden to establish a Riverside violation is the fact that they were held longer than 48–hours without judicial approval.” Id. at 12. Finally, “Even less analysis is needed to establish the viability of Class III's claim.” Id. at 11. By defaulting, “Defendant admits that it did not provide minimally adequate food to the persons meeting the definition of Class III.” Id. at 12.
Defendant responded on June 5, 2012. ECF No. 58. Defendant first argued that not only should the default not extend to the entire class, the default as to Plaintiff should be set aside. Defendant wrote: “Plaintiff (who waited for three years before filing this suit) will not suffer significant prejudice by setting aside the default and continuing this litigation on the merits.” Def.'s Supp. Br. Opp'n to Class Certification 7, ECF No. 58. Defendant continued: “The named Plaintiff cites no authority for the proposition that (there being no class certification) he has standing to pursue a default or default judgment or any other legal action on behalf of unidentified individuals who may or may not become class members.... A default judgment on their behalf would also be inappropriate inasmuch as the reason for the default judgment (a failure to timely provide discovery) no longer exists and the future members of the class (if certified) have suffered no actual prejudice.” Id. at 10.
*8 Turning to the class certification issue, Defendant asserted that Class II should not be certified because Plaintiff has not established commonality. Specifically, Defendant asserted, “mini-trials would be necessary to determine (from actual testimony from both parties and not simply records) ... what did and did not occur and why. In addition to the subjective and individual
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damages allegedly suffered it would have to be determined in each excessive detention, whether a policy existed which was the moving force behind said detention, or if that detention was simply a one out of 500 clerical or other isolate[d] error.” Id. at 11. In support, Defendant cited Wal– Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), and Alkire v. Irving, 330 F.3d 802 (6th Cir.2003).
Two weeks later, Plaintiff replied. ECF No. 59. Defendant is not entitled to have the default set aside, Plaintiff wrote, because the request is time-barred under the Federal Rules of Civil Procedure. Noting that the Court denied Defendant's request to set aside the default in May 2011, and Defendant's present request was made in June 2012, Plaintiff observed that “requests for relief under Rule 60(b)(1) must be presented within one year after the entry of the order.” Pl.'s Reply Supp. Mot. for Class Certification 2, ECF No. 59.
Addressing the class certification issue, Plaintiff argued Defendant's reliance on Wal–Mart and Alkire was misplaced. Plaintiff argued that the Court rejected class certification in Wal–Mart because “there was no proof that every Wal-mart store in the nation operated under a common standard for promotions and new hires.” Id. at 5. In contrast, Plaintiff continued, “the evidence in this case shows common practices applied throughout all police districts that result in the violation of the putative class members' constitutional rights. For example, the warrant tracking form database shows that time and time again, regardless of district, warrantless arrestees are held over 48 hours without a probable cause hearing due to sloppy report writing.” Id. at 5–6.
II
Two primary issues are now before the Court. First, is Plaintiff entitled to class certification? And second, is Defendant in default as to the entire class?
These two questions must be addressed in this order because absent class certification, no default as to the (nonexistent) class can be made. Davis v. Hutchins, 321 F.3d 641, 648–49 (7th Cir.2003). Notwithstanding the “the general principle that factual allegations in the complaint are deemed admitted by the defendant upon default,” the Seventh Circuit observes: “ Rule 23(c) imposes an independent duty on the district court to determine by order that the requirements of Rule 23(a) are met regardless of the defendant's admissions.” Id. at 648–49. “Allowing certification by default or because the defendant has admitted that the class exists, with no independent analysis or determination by the district judge, would remove this important protection,” the court further
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admonishes. Id. at 649; see also Partington v. Am. Int'l Specialty Lines Ins. Co., 443 F.3d 334, 341 (4th Cir.2006) (“In addition, the Seventh Circuit—the only circuit to address the question of implicit certification in the context of a default judgment—refused to allow it. We agree with its reasoning that although a default judgment has the effect of deeming all factual allegations in the complaint admitted, it does not also have the effect of “admitting” the independent legal question of class certification.”).
*9 Accordingly, the class certification issue is addressed first, the scope of the default second.
A
Rule 23 requires a two-stage analysis for determining whether class certification is appropriate. At stage (a), the plaintiff must establish four elements—numerosity, commonality, typicality, and adequacy of representation. Subsection (a) of Rule 23 provides:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(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); see generally Powers v. Hamilton Cnty. Pub. Defender Comm'n, 501 F.3d 592, 617 (6th Cir.2007).
At stage (b), the plaintiff must satisfy the requirements of one of the types of class actions set forth in Rule 23(b). Here, Plaintiff moves for certification under the “predominance” subsection set forth in subsection (b)(3), which requires “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”
Fed.R.Civ.P. 23(b) (3); see generally Powers, 501 F.3d at 617.
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The analysis of a plaintiff's compliance with the requirements of Rule 23 is “rigorous.” Wal– Mart Stores, Inc. v. Dukes, ––– U.S. ––––, ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). “ Rule 23,” the Supreme Court instructs, “does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. (emphasis in original). Moreover, a class can be certified “only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Frequently that ‘rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.” Id. (citations and internal quotation marks omitted) (quoting Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).
Here, Plaintiff seeks to have three classes certified. Each is addressed in turn.
1
Plaintiff first seeks to certify a class of about one hundred thousand people detained between 10 p.m. and 6 a.m. or for more than sixteen hours without bedding. As this class satisfies the requirements of Rule 23(a) and (b)(3), the Court will certify it.
a
First, the class is sufficiently numerous to make joinder “impracticable.” Fed.R.Civ.P. 23(a) (1); see generally 32B Am.Jur.2d Fed. Courts When Joinder is Impracticable § 1608 (2012). Impracticability is not impossibility—rather, “class representatives must demonstrate only that ‘common sense’ suggests that it would be difficult or inconvenient to join all class members .”
Varacallo v. Mass. Mut. Life Ins. Co., 226 F.R.D. 207, 229 (D.N.J.2005) (quoting In re the Prudential Ins. Co. of Am., 962 F.Supp. 450, 495, 510 (D.N.J.1997)); see Beattie v. CenturyTel, Inc., 234 F.R.D. 160, 168 (E.D.Mich.2006) (“Where the exact size of the class is unknown but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied.”), aff'd 511 F.3d 554 (6th Cir.2007).
*10 “There is no specific number below which class action relief is automatically precluded,” the Sixth Circuit notes, elaborating: “Impracticability of joinder is not determined according to a strict
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numerical test but upon the circumstances surrounding the case.”

Senter v. Gen. Motors Corp.,

532 F.2d 511, 523 n. 24 (1976); cf. Flood v. Dominguez, 270 F.R.D. 413, 417 (N.D.Ind.2010) (“Generally speaking, when the putative class consists of more than 40 members, numerosity is met, but there is nothing magical about that number.”). Common sense suggests that the joinder of more than a hundred thousand people is not practicable.

b
Second, the class shares common issues of fact and law. Commonality, as noted, requires a plaintiff demonstrate that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). “That language is easy to misread,” the Supreme Court cautions, “since any competently crafted class complaint literally raises common questions.” Wal–Mart, 131 S.Ct. at 2551 (internal alterations and quotation marks omitted) (quoting Richard Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.Rev. 97, 131–132 (2009)). In Wal–Mart, for example, ostensibly common questions included “Do all of us plaintiffs indeed work for Wal–Mart? Do our managers have discretion over pay? Is that an unlawful employment practice?” Id. These types of questions were insufficient, the Court observed, as commonality does not mean that the class members “have all suffered a violation of the same provision of law,” but that they “have suffered the same injury.” Id. (quoting Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). Put differently, the common issue must involve—indeed, in fact resolve—an essential element of the class members' claim:
Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
Wal–Mart, 131 S.Ct. at 2551. The Sixth Circuit similarly notes: “Cases alleging a single course of wrongful conduct are particularly well-suited to class certification.” Powers v. Hamilton Cnty. Pub. Defender Comm'n, 501 F.3d 592, 619 (6th Cir.2007) (citing Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988)).

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In Wal–Mart, the plaintiffs sought to certify a class action on behalf of all Wal–Mart's female employees alleging a “pattern or practice” of sex discrimination in violation of Title VII. The theory of the case was “that a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal–Mart's thousands of managers.” 131 S.Ct. at 2548. The Court concluded that the plaintiffs had not established commonality, explaining that “in resolving an individual's Title VII claim, the crux of the inquiry is ‘the reason for a particular employment decision.’ “ Id. at 2252 (quoting Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984)). The plaintiffs, however, had no common contention that would “produce a common answer to the crucial question why was I disfavored.” Wal–Mart, 131 S.Ct. at 2552 (emphasis in original). Rejecting the plaintiffs' theory that the “social framework” of Wal–Mart rendered it “vulnerable to gender bias,” the Court noted that the plaintiffs had no evidence regarding what percentage of the employment decisions were made because of “stereotyped thinking.” Id. The plaintiffs' expert, for example, “conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal–Mart might be determined by stereotyped thinking.” Id. Thus, the Court held, the plaintiffs had not established a common pattern or practice.
*11 In Powers v. Hamilton County Public Defender Commission, 501 F.3d 592 (6th Cir.2007), in contrast, the Sixth Circuit upheld the class certification based on the allegation that the local public defender's office “had a well-settled custom or policy of not asking for an indigency hearing before a probationer is incarcerated for failure to pay a fine.” Id. at 598. Specifically, the plaintiff produced evidence suggesting that “staff members of the Public Defender never ask for an indigency hearing” and, moreover, the defendant was unable to produce “any evidence showing that indigency hearings are ever requested.” Powers v. Hamilton Cnty. Pub. Defender Comm'n, No. 1) 02–CV–00605, 2005 WL 2033696, at *5 (S.D.Ohio Aug.23, 2005), aff'd 501 F.3d 592 (6th Cir.2007). The Sixth Circuit explained that the commonality requirement was met because the plaintiff alleged a “regular practice” causing constitutional injury:
Powers has alleged that the Public Defender engaged in an ongoing and regular practice of failing to seek indigency hearings for criminal defendants facing incarceration for non-payment of fines. Powers has asserted a single factual theory of wrongdoing and seeks to recover based on the single legal claim that the Public Defender's practice violated class members' due process rights. The dispositive facts and law are the same as to each class member. This is sufficient to satisfy both the commonality and predominance requirements.
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Id. at 619 (citing Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988)).
In this case, Defendant does not dispute the fact that each member of the putative class was detained overnight or for more than sixteen hours without bedding. The reason that they did not receive bedding, Defendant again acknowledges, is because Defendant “maintains no bedding and no facilities to allow arrestees to get meaningful sleep, i.e., no beds, cots, mattresses, blankets or pillows.” Compl. ¶ 38(d).
Legally, the question of whether this is a cognizable constitutional injury is the same for each of the putative class members. As in Powers, the dispositive facts and law are the same as to each class member. 1 Plaintiff has established the commonality required by Rule 23(a)(2).
1 This should not be interpreted to mean that Plaintiff is correct as a substantive matter that being detained overnight or for more than sixteen hours without bedding alleges a cognizable constitutional injury. The substantive question is addressed in the discussion of the scope of the default.
c
Plaintiff has likewise established typicality required by Rule 23(a)(3). Conceptually, typicality and commonality may be distinct. As a practical matter, however, they “tend to merge.” Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 158 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); see generally Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992) (“The question of typicality in Rule 23(a)(3) is closely related to the preceding question of commonality.”).
The purpose of the requirement, the Court explains, is a screening mechanism “for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Falcon, 457 U.S. at 158 n. 13.
*12 Here, Plaintiff's alleged constitutional injury is typical of the class: he was detained for a substantial period of time without bedding. Plaintiff has established the commonality required by
Rule 23(a)(3).
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d
Finally, Plaintiff has established that he “will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). This requirement again “tends to merge with the commonality and typicality criteria of Rule 23(a).” Amchem Prods. ., Inc. v. Windsor, 521 U.S. 591, 626 n. 20, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (internal quotation mark omitted) (quoting Falcon, 457 U.S. at 158 n. 13).
The purpose of the requirement, the Court explains, is “to uncover conflicts of interest between named parties and the class they seek to represent.” Id. at 625 (citing Falcon, 457 U.S. at 157–58); see generally Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 1768 (3d ed. 2005) (“It is axiomatic that a putative representative cannot adequately protect the class if his interests are antagonistic to or in conflict with the objectives of those he purports to represent.”); Richard Posner, Economic Analysis of Law 586 (6th ed.2003) (discussing incentives in class actions for the plaintiffs' counsel and the defendant). The Sixth Circuit therefore holds that “to satisfy the adequate representation requirements under Rule 23 ... there must be an absence of a conflict of interest, and the presence of common interests and injury.” Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir.1998).
Here, there is no evidence a conflict of interest and, conversely, substantial evidence of vigorous prosecution. Put simply, the incentives of the class members are aligned with each other and with Plaintiff's counsel: maximizing recovery. Moreover, this is not the first large class action that counsel for Plaintiff has brought on behalf of arrestees. See, e.g., Dunn v. City of Chicago, 231 F.R.D. 367 (N.D.Ill.2005). Plaintiff has established the adequacy of representation required by
Rule 23(a) (4).
e
Finally, the common questions pertinent to Class I “predominate over any questions affecting only individual members” and a class action is a superior vehicle “for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
To establish predominance, the plaintiff must demonstrate that “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, predominate over those
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issues that are subject only to individualized proof.”

Beattie v. CenturyTel, Inc., 511 F.3d 554,

564 (6th Cir.2007) (quotation marks omitted) (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir.2001)); see generally Wright, Miller, and Kane, supra, at § 1778 (observing “that it is not sufficient that common questions merely exist, as is true for purposes of

Rule 23(a)(2), and that the court is under a duty to evaluate the relationship between the common

and individual issues in all actions under Rule 23(b)(3)” (footnotes omitted)).

*13 The Supreme Court explains that the “predominance inquiry tests whether proposed classes
are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In Windsor, the Court looked to the advisory committee notes for guidance regarding the requirement's purpose, finding: “the Advisory Committee had dominantly in mind vindication of the rights of groups of people who
individually would be without effective strength to bring their opponents into court at all.” Id. at 617 (internal quotation marks omitted) (quoting Benjamin Kaplan, A Prefatory Note, 10 B.C. Ind. & Com. L.Rev. 497, 497 (1969)).

In this case, whether Defendant denies bedding to arrestees is subject to generalized proof. Likewise, as Defendant concedes that the answer to this is a categorical “yes,” whether this deprivation for those held overnight or for more than sixteen hours is a cognizable constitutional injury is likewise subject to generalized proof.

To elaborate on this second point, “in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word,” the Supreme Court instructs, the court must evaluate whether the deprivation “is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental
purpose.” Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (citing
Flemming v. Nestor, 363 U.S. 603, 613–17, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)). The Court continues: “Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on whether an alternative purpose to which [the deprivation] may rationally be connected is assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned to it.” Wolfish, 441 U.S. at 538 (internal alteration
and quotation marks omitted) (quoting Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)).

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In this case, because Defendant has a uniform policy of not providing bedding, evaluating what Defendant's purpose is and whether the deprivation is excessive in relation to that purpose is subject to generalized proof.
Moreover, the likely recoveries (small) do not provide a sufficient incentive for an individual to bring a solo action. A class action solves this problem by aggregating the relatively paltry potential recoveries into something of sufficient value to attract an attorney's services, while also providing an incentive for correcting a pattern of alleged constitutional violations. The Court will certify Class I.
2 Class II presents a somewhat closer question. Plaintiff seeks to certify a class of about 30,000 people detained for forty-eight hours or more without a judicial finding of probable cause. (This comprises about 20 percent of the total arrestees during the relevant period. 2 ) Again, however, the Court will certify the class.
2 From June 1, 2007 to July 31, 2011, Plaintiff reports, the Detroit Police Department made 142,143 arrests (an atypic figure for a city of 700,000). Of the 37,064 arrests where the length of detention exceeded 48 hours, 79.4 percent were warrantless arrests. After excluding the 100 for which a Riverside defense applied, the estimated size for Class II is 29,300.
a
*14 First, the class is sufficiently numerous to make joinder “impracticable.” Fed.R.Civ.P. 23(a) (1). As detailed above, numerosity is not a bright-line rule, but a common sense standard. Senter v. Gen. Motors Corp., 532 F.2d 511, 523 n. 24 (1976). Joining nearly thirty thousand persons may not be impossible, but it is certainly impracticable. Plaintiff has established the numerosity required by Rule 23(a)(1).
b
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Second, Plaintiff has established the commonality required by Rule 23(a)(2). To establish municipal liability under an “inaction theory,” the first element that a plaintiff must prove is “the existence of a clear and persistent pattern of violating federal rights.” Powers v. Hamilton Cnty. Pub. Defender Comm'n, 501 F.3d 592, 607 (6th Cir.2007). Plaintiff not only can, but must, point to a common contention to produce a common answer to this question: about 20 percent of the total warrantless detentions resulted in constitutional violations.
Consequently, this case is the analytical flipside of Wal–Mart. There, the class members had to each individually “answer the crucial question why was I disfavored.” Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, ––––, 131 S.Ct. 2541, 2552, 180 L.Ed.2d 374 (2011) (emphasis in original). Class certification was inappropriate because they had no common answer to this common question. Here, the crucial question is whether Defendant had a “clear and persistent pattern of violating federal rights.” Powers, 501 F.3d at 607. The focus is not the individual violation (“why was I disfavored?”), but the pattern of violations. Thus, unlike in Wal–Mart, the dispositive facts and law are common to the class. Plaintiff has established the commonality required by Rule 23(a)(2).
Reinforcing this conclusion are the decisions of the district courts in Illinois and Indiana. In Dunn v. City of Chicago, 231 F.R.D. 367 (N.D.Ill.2005), the plaintiffs' claim focused on a “well-
established and widespread practice within the [Chicago Police Department] of using unlawfully long detentions.” Id. at 375. Defendant opposed class certification, asserting “the case law establishes valid exceptions to the 48 hour rule, and thus it may have other defenses to some class members' claims.” Id. Concluding common questions were not only present, but predominated, the court explained:
As plaintiffs point out, such an exception is inherently unusual, and thus would apply to no more than a handful of identifiable class members. In other words, the common predominant issues cannot be ignored in favor of the existence of a handful of extraordinary circumstances.... Moreover, the existence of individualized defenses does not preclude class certification.... Indeed, [ County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ] was a class action.
Id. at 375–76 (footnote and citations omitted).
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Likewise, in Strunk v. LaGrange County Sherriff, No. 1:10–cv–23, 2011 WL 839662 (N.D.Ind. Mar.7, 2011), the court concluded that common questions predominated. The plaintiffs alleged that 239 of the 261 arrestees during the relevant period were detained for more than forty-eight hours. “The primary, and likely dispositive issue involved in this case,” the court wrote, “the constitutionality of the jail's detention length prior to an arraignment, are common to all LaGrange County Jail detainees arrested without a warrant—the potential class members. To win on the merits, each class member would have to advance the same legal theory.” Id. at 4. Like the plaintiffs in Dunn and Strunk, in this case Plaintiff has established commonality.
*15 Opposing this conclusion, Defendant relies on two cases, Wal–Mart and Alkire v. Irving, 330 F.3d 802 (6th Cir.2003). For the reasons discussed above, Wal–Mart is inapposite. Alkire, while relevant, does not support the weight Defendant attempts to assign to it. The case involved an attempt to certify a class of persons “incarcerated due to failure to pay a civil debt or court costs.” Id. at 820. The district court denied certification based on numerosity, explaining that although the plaintiff alleged hundreds of potential plaintiffs, a “search of jail records produced only nine potential class members.” Id. In the alternative, the district court concluded that the common questions would not “predominate” under stage two of the class certification analysis because “the varying reasons for the arrests, varying lengths of stay in jail, varying financial situations, varying reasons for contempt adjudications would [too greatly] impact on the amount of damages any individual class member might be entitled to.” Id. (internal alteration omitted). The Sixth Circuit succinctly affirmed the judgment of the district court, writing: “The district court neither applied the wrong legal standard in examining these two elements, nor did it misapply the correct legal standard.” Id. at 821. In this case, as noted, Plaintiff satisfies the numerosity requirement. The predominance requirement (as a general matter and as it relates to damages in particular) is discussed below. And while the Sixth Circuit's discussion Alkire informs this Court's predominance analysis, that case does not support the proposition that this case lacks a common question of law or fact. For Class II, Plaintiff has established the commonality required by Rule 23(a)(2).
c
Plaintiff has likewise established the typicality required by Rule 23(a)(3). As noted, the inquiry into typicality and commonality “tend to merge.” Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 158 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Here, Plaintiff alleges that he—like each of the roughly 30,000 members of Class II—was detained for more than forty-eight hours without a judicial determination of probable cause and without extraordinary circumstances meriting the
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extended detention. Because his claim is typical of the class, he has established the typicality required by Rule 23(a)(3).
d
Plaintiff has also established, for reasons discussed above, that he “will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). There is no evidence a conflict of interest and, conversely, substantial evidence of vigorous prosecution. As with Class I, the incentives of the members of Class II are aligned with each other and with Plaintiff's counsel: maximizing recovery. Plaintiff has established the commonality required by Rule 23(a)(4).
e
Finally, although a closer question, Plaintiff has also established that the common questions pertinent to Class I “predominate over any questions affecting only individual members” and a class action is a superior vehicle “for fairly and efficiently adjudicating the controversy.”
Fed.R.Civ.P. 23(b) (3).
*16 The question is closer because, although for liability the common questions necessarily predominate over those affecting only individual members, the damages questions do not. Liability depends on Defendant engaging in a pattern of deliberate inaction—a pattern common to all class members. Damages, however, may depend on a variety of circumstances. See, e.g., Alkire v. Irving, 330 F.3d 802, 820 (6th Cir.2003). Thus, the issue is whether damages and liability can appropriately be bifurcated. Put differently, must the case be susceptible to both imposing liability and awarding damages on a class-wide basis?
Plaintiff's position is that the two issues can be bifurcated, writing: “Liability is often determined in a class action context separately from damages—be it at summary judgment or through a trial where liability is bifurcated from damages.” Pl.'s Resp. to Def.'s Mem. on Permissible Exceptions 2.
As the law presently stands, Plaintiff is correct that “many courts, including the Sixth Circuit, have held that variations in potential damages awards will not defeat class certification.” Laichev v. JBM, Inc., 269 F.R.D. 633, 641–42 (S.D.Ohio 2008) (citing Olden v. LaFarge Corp., 383 F.3d
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495, 508–09 (6th Cir.2004); Bentley v. Honeywell Intern., Inc., 223 F.R.D. 471, 487 (S.D.Ohio 2004)).
In Olden v. LaFarge Corp., 203 F.R.D. 254 (E.D.Mich.2001), aff'd 383 F.3d 495 (6th Cir.2004), the district court certified a class of “property owners in the City of Alpena, Michigan who claim that their real and personal property have been damaged by toxic pollutants and air contaminants emitted by the defendant during the course of its cement manufacturing operation.”
Id. at 258. Rejecting the defendant's argument that certification was not appropriate “because of the great variance in damages sought by the named class members,” the district court explained that the issue of liability from the issue of damages is properly bifurcated in appropriate circumstances. Id. at 269, 271 (citing Little Caesar Enters., Inc. v. Smith, 172 F.R.D. 236, 267 (E.D.Mich.1997)).
The Sixth Circuit affirmed the judgment, explaining: “As the district court properly noted, it can bifurcate the issue of liability from the issue of damages, and if liability is found, the issue of damages can be decided by a special master or by another method.” 383 F.3d at 509 (citing
Fed.R.Civ.P. 23(c)(4)(A); Simon v. Philip Morris Inc., 200 F.R.D. 21, 30 (E.D.N.Y.2001)); see generally Carnegie v. Household Int'l, Inc., 376 F.3d 656, 661 (7th Cir.2004) (“ Rule 23 allows district courts to devise imaginative solutions to problems created by the presence in a class action litigation of individual damages issues. Those solutions include (1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class.” (internal quotation marks omitted)).
*17 While this is the current state of the law, which this Court is obligated to follow, as noted the Supreme Court has granted a writ of certiorari on the following question: “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir.2011), cert. granted sub nom. Comcast Corp. v. Behrend, 80 U.S.L.W. 3442 (U.S. Jun 25, 2012) (No. 11–864).
In Behrend, an antitrust class action, a proposed class of two million cable television subscribers in Philadelphia alleged that a cable television company violated the Sherman Act by conspiring with other cable companies to allocate, and thus concentrate, local market share by entering into unlawful “swap agreements.” 655 F.3d at 186 (citing 15 U.S.C. §§ 1, 2). Specifically, the
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plaintiffs alleged that “Comcast contracted with competing cable providers to either acquire them or to ‘swap’ cable systems it owned in areas outside the Philadelphia [market] for cable systems within the Philadelphia [market].” Id. By gaining monopoly power, the plaintiffs alleged, Comcast was able to overcharge its customers. The district court certified the class, finding in pertinent part that the plaintiffs' “damages model provides a methodology that can establish damages on a classwide basis using common proof.” Id. at 203. Third Circuit affirmed the judgment of the district court, explaining:
If allowed to proceed to trial, the class must establish that the injury it suffered from the violation of the antitrust laws is measurable.... The inquiry for a district court at the class certification stage is whether the plaintiffs have demonstrated by a preponderance of the evidence that they will be able to measure damages on a class-wide basis using common proof. Some variation of damages among class members does not defeat certification. Complex and individual questions of damages, however, weigh against finding predominance.
Id. at 203, 204 (internal citations omitted) (citing In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir.2008)). The court then found that the plaintiffs established they could measure damages through common proof, writing that the defendant's “attacks on the merits of the methodology ... have no place in the class certification inquiry.” Id. at 207.
Comcast petitioned the Supreme Court for a writ of certiorari. As noted, the writ has been granted to determine: “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” 80 U.S.L.W. 3442.
It is possible, of course, that the Court will answer this question in the negative. See generally Judith Resnik, A Comment on AT & T v. Conception, Wal–Mart v. Dukes, and Turner v. Rodgers, 125 Harv. L.Rev. 78, 134–153 (2011). It is also possible that the Court will limit its holding to antitrust litigation. But compare Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (applying “plausibility” pleading standard to antitrust claim), with Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions.’ ”). Prior to a decision, however, this Court is bound by the Sixth Circuit precedent, under which liability may be bifurcated from the damages. The Court will certify Class II.
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3
*18 Finally, the parties have informally agreed to defer resolution of Class III. Plaintiff therefore has not identified how many persons are in the class, what the commonality is between the claims, or why these commonalities predominate. The Court declines to certify Class III at present.
B
Having certified Classes I and II, the next issue is the scope of the default. “The effect of a default is to deem admitted all the well-pleaded facts in the complaint.” 49 C.J.S. Judgments § 273 (2012). Consequently, as a general matter, and as applied to class actions in particular, by defaulting a defendant “has foregone its right to challenge any of the well-pleaded factual allegations in Plaintiff's complaint.” Davis v. Precise Comm'n Servs., Inc., No. 1:07–CV–3128–JOF, 2009 WL 812276, at *1 (N.D.Ga. Mar.27, 2009) (citing Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1976)).
While a default admits well-pleaded facts, it does not admit legal conclusions. “That is, a default does not admit that the facts alleged are in law sufficient to constitute a good cause of action or to entitle the plaintiff to the relief prayed for. Thus, although a defaulting party admits the factual basis of the claims asserted against it, the defaulting party does not admit the legal sufficiency of those claims.” 49 C.J.S. Judgments § 273 (footnote omitted) (citing State ex rel. Saginaw Prosecuting Attorney v. Bobenal Investments, Inc., 111 Mich.App. 16, 314 N.W.2d 512 (Mich.Ct.App.1981)).
Accordingly, the factual allegations in the complaint are deemed admitted for the entire class. Nevertheless, default is only proper to Class I and II if the factual allegations state claims on which relief can be granted.
1
The Class I claim alleges that being detained overnight or for more than sixteen hours without bedding alleges a cognizable constitutional injury. For the following reasons, the Court will order supplemental briefing on this allegation.
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“In evaluating the constitutionality of conditions or restrictions of pretrial detention,” the Supreme Court instructs, “we think that the proper inquiry is whether those conditions amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The Court explains that the Due Process Clause requires that “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. A person lawfully committed to pretrial detention has not been adjudged guilty of any crime.” Id. (internal citations omitted) (citing Ingraham v. Wright, 430 U.S. 651, 671–72 n. 40, 674, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); Kennedy v. Mendoza–Martinez, 372 U.S. 144, 165–67, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Wong Wing v. United States, 163 U.S. 228, 237, 16 S.Ct. 977, 41 L.Ed. 140 (1896)).
“Not every disability imposed during pretrial detention amounts to ‘punishment’ in the constitutional sense,” the Court cautions. Bell, 441 U.S. at 537. For example, “Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee's understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into ‘punishment.’ “ Id. Therefore a court must draw “a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may.” Id .
*19 Put differently, the Court must determine whether the conditions of incarceration serve a “legitimate governmental objective” or are punitive. Thompson v. City of L.A., 885 F.2d 1439, 1448 (9th Cir.1989), overruled on other grounds by Bull v. City and County of S.F., 595 F.3d 964 (9th Cir.2010) (en banc) (holding “that the rights of arrestees placed in custodial housing with the general jail population are not violated by a policy or practice of strip searching each one of them as part of the booking process”).
In Anela v. City of Wildwood, 790 F.2d 1063, 1064 (3d Cir.1986), for example, the Third Circuit held that confining arrestees “through the night until almost noon of the next day without drinking water, food, or sleeping facilities ... constituted privation and punishment in violation of the fourteenth amendment.” Id. at 1069. Likewise, in Thompson, the Ninth Circuit held that that confining arrestee without “a bed or even a mattress for two of the nights spent in county jail ... constitutes a cognizable Fourteenth Amendment claim” because it serves no legitimate governmental objective. 885 F.2d at 1448 (collecting cases). And in Lareau v. Manson, 651 F.2d 96, (2d Cir.1981) the Second Circuit held that use of floor mattresses for pretrial detainees violated the Fourteenth Amendment when it was “without regard to the number of days for which a prisoner is so confined.” Id. at 105.
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Based on these authorities, detention overnight without any bedding materials is sufficient to state a constitutional injury. It is not obvious, however, that detention for sixteen hours is sufficient. It may be that sixteen hours is insufficient, but that twenty is, or that twenty hours is insufficient, but that twenty-four is. Supplemental briefing on this issue will be ordered.
2
The Class II claim asserts that Defendant is liable under Monell for “an ingrained and long standing” practice of detaining arrestees for more than forty-eight hours without a judicial determination of probable cause. To demonstrate municipal-liability under an “inaction theory,” the Sixth Circuit explains, the plaintiff must establish four elements:
(1) the existence of a clear and persistent pattern of violating federal rights[;] ...
(2) notice or constructive notice on the part of defendants;
(3) the defendants' tacit approval of the unconstitutional conduct, such that their deliberate indifference in failing to act can be said to amount to an official policy of inaction; and
(4) that the defendants' custom was the “moving force,” or direct causal link for the constitutional deprivation.
Powers v. Hamilton Cnty. Pub. Defender Comm'n, 501 F.3d 592, 607 (6th Cir.2007) (citing Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir.1996)).
“Deliberate indifference in this context,” the Sixth Circuit emphasizes, “does not mean a collection of sloppy, or even reckless, oversights; it means evidence showing an obvious, deliberate indifference.” Doe, 103 F.3d at 507.
*20 In Powers, for example, the plaintiff sought to impose § 1983 municipal-liability on the public defender's office under an “inaction theory.” 501 F.3d at 607. The Sixth Circuit first noted that “[a] municipality cannot be liable for the constitutional torts of its employees; that is, it cannot be liable on a respondeat superior theory.” Id. at 607 (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Instead, the municipality is only liable if “the plaintiff establishes that the municipality engaged in a ‘policy or custom’ that was the ‘moving force’ behind the deprivation of the plaintiff's rights.” Id. Pertinent to that case (and
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this), the Sixth Circuit continued: “A § 1983 plaintiff may establish the existence of a custom by showing that policymaking officials knew about and acquiesced in the practice at issue.” Id. (citing Memphis, Tenn. Area Local, Am. Postal Workers Union v. City of Memphis, 361 F.3d 898, 902 (6th Cir.2004)). As the plaintiff was proceeding under an “inaction theory,” the court then enumerated the four elements set forth above. The court concluded by finding that the plaintiff had established three of the four elements, but that a genuine issue of fact existed as to the third element —whether the defendant's conduct (more precisely, their lack of conduct 3 ) was so deliberately indifferent as to amount to an official policy of inaction.
3 Cf. Nat'l Fed'n of Indep. Bus. v. Sebelius, –––U.S. ––––, ––––, 132 S.Ct. 2566, 2589, 183 L.Ed.2d 450 (2012) (Roberts, C.J.) (“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers.”).
In this case, supplemental briefing will be directed to this element as well. Specifically, the parties will be directed to focus attention on the legal authority regarding whether the factual allegations in the complaint “show a ‘clear and persistent pattern’ of abuse that the Defendants knew about and acquiesced in.” Powers, 501 F.3d at 616.

III
Accordingly, it is ORDERED that Plaintiff's motion for class certification (ECF No. 32) GRANTED IN PART AND DENIED IN PART. Classes I and II are certified; Class III is not.
It is further ORDERED that supplemental briefing be provided addressing: (1) whether detention for sixteen hours without any bedding materials is sufficient to state a constitutional injury; and (2) whether the factual allegations in the complaint are sufficient to state a claim under an “inaction theory.” Plaintiff's brief is due on or before October 25, 2012. Defendant's response is due on or before November 8, 2012. Plaintiff's reply is due on or before November 15, 2012.

All Citations Not Reported in F.Supp.2d, 2012 WL 4470433

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2005 WL 3312566 Only the Westlaw citation is currently available.
United States District Court, W.D. Michigan, Northern Division.
Fingal E. JOHNSON, Plaintiff, v.
Bill MARTIN, et al., Defendants. Michael JENKINS, et al., Plaintiffs,
v. Bill MARTIN, et al., Defendants.
No. 2:00-CV-75, 1:01-CV-515. |
Dec. 7, 2005.
Attorneys and Law Firms
Fingal Johnson, Ionia, MI, pro se.
Daniel E. Manville, Daniel E. Manville P.C., Ferndale, MI, Kary L. Moss, Michael J. Steinberg, ACLU Fund of Michigan, Detroit, MI, for Plaintiffs.
Linda M. Olivieri, John L. Thurber, MI Dept. Attorney General, Lansing, MI, for Defendants.
OPINION
ENSLEN, Senior J.
*1 This matter is before the Court on class Plaintiffs' Motion for Partial Summary Judgment. Also before the Court is Defendants' Motion to Dismiss or in the Alternative for Summary Judgment. The Court has reviewed the parties' exhaustive briefings and finds oral argument unnecessary. W.D. MICH. LCIVR 7.2(d).
I. BACKGROUND On March 28, 2000, Plaintiff Fingal E. Johnson filed his Complaint in this matter in pro per. Since then, the Court has witnessed nearly five and one half years of litigation and on April 25, 2003, this
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case was certified as a class action. A complete rendition of the entire factual background would add needless complexity and confusion, and therefore, only facts relevant for today's discussion are summarized as follows. 1
1 An all-inclusive account can be assembled by review of this Court's Opinions dated March 20, 2001; April 29, 2002; September 27, 2002; January 27, 2003; April 25, 2003; and October 7, 2003.
The dispute in this case arose when the Michigan Department of Corrections (“MDOC”) classified the Melanic Islamic Palace of the Rising Sun and its incarcerated members (“Melanics”) as a security threat group. 2 Because of their security status, MDOC ordered Melanics to renounce their membership or face a higher security classification. Pursuant to MDOC policy, prisoners designated as security threat group members are prohibited from possessing “documents, materials, symbols, colors or pictures of an identified [security threat group].” MDOC POLICY DIRECTIVE 04.04.113 (effective Dec. 12, 1996). As a result of the Melanic's designation, MDOC Deputy Director Dan Bolden issued a January 12, 2000 memorandum wherein he advised that:
2 According to Plaintiffs, the Melanics are a religious sect significantly influenced by Islam and other spiritual philosophies. Purposefully nondescript, the Court will endeavor to describe the Melanics no further as the Court recognizes it wades in dangerous waters when attempting to depict another's faith with any sort of precision.
Each facility should get a current roster of Melanics. Prisoners should be given seven (7) business days to turn in [Melanic] literature and materials. In addition, they should have the opportunity to renounce their affiliation/change affiliation at the time of the interview. Picking up literature should be handled carefully (items like Qurans and Bibles should be left alone). Group worship materials such as the Melanic flag should be removed from the facility and disposed of with care to avoid a negative/violent response.... As ordered, Melanics were then given seven business days to either deliver all Melanic materials to MDOC or dispose of it on their own. Melanic material was identified as anything evidencing Melanic membership (pictures, clothing, jewelry, flags, writings, etc.).
In January 2000, Melanics residing outside MDOC institutions began mailing Melanic writings to those incarcerated. MDOC rejected the mailings as violative of MDOC mail policy. MDOC POLICY DIRECTIVE 05.03.118 (effective July 19, 1999) (prohibiting mail “that is a threat to the security, good order, or discipline of the facility....”). Of specific concern to Plaintiffs are five related Melanic writings (hereinafter “Melanic Literature”) that they were ordered to relinquish and are now prohibited from possessing. Plaintiffs contend that Melanic Literature is essential to
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practicing their religion. On March 16, 2000, MDOC Administrative Assistant Julie Southwick wrote:
*2 Based upon correspondence with the Attorney General, it appears that MDOC facilities issued a “total ban” on Melanic literature. Even though we have withdrawn recognition of the Melanics as an organized religion, a total ban has been held contrary to case law. [referencing, Murphy v. Miss. Dep't of Corr., 814 F.2d 1252 (8th Cir.1987) ].... Facilities must review each peace of literature before banning it to determine whether the particular item is a threat to security or the good order of the institution.
(emphasis in original). Plaintiffs claim they have not had access to Melanic Literature since January 2000.
II. STANDARD OF REVIEW Because Defendants' Motion to Dismiss has asked this Court to consider matters outside of the pleadings, the Court will construe Defendants' dismissal arguments, as well as their summary judgment arguments, under a summary judgment standard. FED. R. CIV. P. 12(b). Deciding a motion for summary judgment requires the Court to determine if there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The Court must consider the record as a whole by reviewing all pleadings, depositions, affidavits and admissions on file. Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The facts are to be considered in a light most favorable to the non-moving party, and “... all justifiable inferences are to be drawn in his favor.”
Schaffer v. A.O. Smith Harvestore Prod., 74 F.3d 722, 727 (6th Cir.1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (other citations omitted).
Once the movant satisfies his burden of demonstrating an absence of a genuine issue of material fact, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Kramer v. Bachan Aerospace Corp., 912 F.2d 151, 153-54 (6th Cir.1990). The non-moving party may not rest on its pleadings but must present “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting FED. R. CIV. P. 56(e)). It is the function of the Court to decide
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“whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. The question is “whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented.” Id. at 252. Since both parties have moved for summary judgment or for partial summary judgment, each will be accorded the status of movant and non-movant when applicable.
III. ANALYSIS Plaintiffs have brought these consolidated suits under Title 42 of the United States Code, sections 1983 and 2000cc-1, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 3 Section 1983, while needing no introduction, provides a cause of action to redress violations of federal law at the hands of state actors. Using
section 1983, Plaintiffs claim Defendants violated their First Amendment rights. Section 2000cc-1 of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) does not share the same celebrity. The Act provides in pertinent part that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... unless the government demonstrates that imposition of the burden ...” furthers “a compelling governmental interest” and is done so by the least restrictive means. As for Plaintiffs' constitutional claim, the Due Process Clause prohibits states from depriving any person of life, liberty, or property without due process of law. U.S. CONST. amend. XIV, § 1.
3 Neither Plaintiffs nor Defendants have moved for summary judgment on Plaintiffs' equal protection claim in their instant Motions.
*3 The parties, and prior Opinions of this Court, have distilled the Courts' focus today to whether a ban on Melanic Literature violates the First Amendment, Due Process Clause, or RLUIPA. However, before addressing this question the Court must pause to assess Defendants' asserted qualified immunity because the privilege invoked “is an immunity from suit rather than a mere defense to liability....” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (citing Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)) (emphasis in original).
A. First Amendment and Qualified Immunity Plaintiffs claim that Defendants violated their First Amendment rights by confiscating all Melanic materials and banning incoming Melanic material by mail. 4 In other words, Plaintiffs claim
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Defendants totally banned Melanic material from MDOC institutions. Defendants contend the deprivation of Melanic material was reasonable in light of security concerns and that they enjoy qualified immunity. 5
4 In a January 27, 2003 Opinion the Court observed that it did not have enough information regarding what Melanic materials were banned to decide on Defendants' entitlement to qualified immunity. The Court has since been sufficiently advised in the premises and is now prepared to make this decision.
5 Defendants also assert that Melanic materials were never totally banned; however, because the Court finds Defendants enjoy qualified immunity even if they did totally ban Melanic material, this point will be taken up in the Court's discussion of injunctive relief. See Section III, D1, infra.
Qualified immunity protects government officials from monetary liability unless they violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). When determining if an officer is entitled to qualified immunity, the Sixth Circuit Court of Appeals endorses a three-part test. Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999). First, Plaintiffs have to show a violation of a constitutionally or statutorily protected right; second, they must be shown that the right was clearly established at the time such that a reasonable official would have understood his behavior violated that right; and third, Plaintiffs have to allege sufficient facts, and support the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established rights. Scicluna v. Wells, 345 F.3d 441, 445 (6th Cir.2003).
On January 12, 2001, Plaintiffs enjoyed a constitutionally protected right to freely exercise their religion while incarcerated, Cruz v. Beto, 450 U.S. 319, 322 n. 2 (1972), and, subject to limitation, receive mail. Thornburgh v. Abbott, 490 U.S. 401, 407-09, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). The more difficult question is whether this right was clearly established, or specifically, whether it was clearly a constitutional violation to totally ban all Melanic material in light of Plaintiffs' security threat group status.
When determining what behavior is clearly constitutionally proscribed, the Sixth Circuit has instructed that:
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[A] district court must find binding precedent by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law. For the decisions of other courts to provide such “clearly established law,” these decisions must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting. [A] mere handful of decisions of other circuit and district courts, which are admittedly novel, cannot form the basis for a clearly established constitutional right in this circuit.
*4 Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1177-78 (6th Cir.1988); see also Fisher v. Harden, 398 F.3d 837, 845-46 (6th Cir.2005). Neither the parties nor the Court is
aware of any controlling Sixth Circuit precedent prior to January 12, 2001, and consequently, Plaintiffs have pinned their hopes on Murphy v. Miss. Dep't of Corr., 814 F.2d 1252 (8th Cir.1987) and Williams v. Brimeyer, 116 F.3d 351, 353 (8th Cir.1997), to defeat Defendants' qualified immunity. 6 In Murphy and Williams, the Eighth Circuit Court of Appeals held that a blanket denial of religious materials, even when such materials were also in violation of prison rules, was too broad a policy and ran afoul of the First Amendment. “A total ban on [prohibited religious] materials is more restrictive of prisoner First Amendment rights than necessary to maintain prison security.” Murphy, 814 F.2d at 1257.
6 Plaintiffs' citation to McCabe v. Arave, 827 F.2d 634 (9th Cir.1987) is unavailing as there was no total ban in that case. In McCabe, prisoners were limited but never completely prevented from possessing religious materials.
As in Seiter, this Court is unwilling to find that Murphy and Williams clearly established a constitutional violation in Plaintiffs' favor. Neither decision issued from the Sixth Circuit and:
Unless the defendants in this case (all of whom are presumably non-lawyers) had a quite extraordinary familiarity with the contents of the Federal Reporter, it is difficult to see how [two][ ] decision[s] of another circuit could reasonably be expected to have changed the defendants' perception of how the Constitution is
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understood in this circuit. Harlow v. Fitzgerald teaches that if a qualified-immunity defense is to be defeated on the ground that the constitutional violation was obvious, the constitutional rights in question must have been “clearly established” and must have been the sort that a “reasonable person” would have known about.
Harlow, 457 U.S. at 818.[Two] idiosyncratic opinions[s] from the court of appeals for another circuit w[ere] hardly sufficient to put the defendants on notice of where this circuit or the Supreme Court might come out on the issue in question.
Davis v. Holly, 835 F.2d 1175, 1182 (6th Cir.1987). Furthermore, Murphy and Williams are readily distinguishable from Defendants' confiscation order as neither decision involved a security threat group within the prison on the same level as the case at bar. Thus, the Court finds that because it was not clearly established law that a total ban of Melanic material was constitutionally forbidden, Defendants are immune from suit in damages on Plaintiffs' First Amendment claim.
B. Due Process and Qualified Immunity Plaintiffs also claim that Defendants violated their procedural due process rights when Defendants banned Melanic material without a hearing. Defendants contend that a hearing was not required before confiscating Melanic material and that Plaintiffs could have grieved this issue had they chose to.
The Supreme Court has “repeatedly held that prisons are not beyond the reach of the Constitution. No ‘iron curtain’ separates one from the other ... and thus, [p]risoners may [ ] claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law.” Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Thus, it is clearly established that at a minimum, the Due Process Clause requires that prisoners receive notice and the opportunity to be heard before deprived of life, liberty, or property. Id.
*5 In this case, Defendants gave Plaintiffs sufficient notice that MDOC was going to confiscate all Melanic material within seven business days; and furthermore, there was an ample opportunity for an inmate to grieve that confiscation order because prisoners who remained in possession of Melanic materials were afforded contraband hearings. In fact, 80 such hearings were held and six inmates successfully proved that their Melanic materials were not contraband. Thus, contrary to Plaintiffs' assertion, Plaintiffs did receive the constitutionally required notice and opportunity to be heard before they were dispossessed of their property. Consequently, Plaintiffs have not shown
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that Defendants' behavior was objectively unreasonable under the Due Process Clause.

Scicluna,

345 F.3d at 445 (citing Williams, 186 F.3d at 691). Therefore, Defendants are immune from suit in damages on Plaintiffs' due process claim.

C. RLUIPA and Qualified Immunity Plaintiffs further claim that Defendants violated RLUIPA by confiscating all Melanic materials. On November 7, 2003, the Sixth Circuit Court of Appeals found RLUIPA violated the Establishment Clause and was unconstitutional. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir.2003). The Supreme Court granted certiorari on October 12, 2004, and this Court stayed decision of the parties' motions until the Supreme Court decided Cutter. On May 31, 2005, the Supreme Court issued its decision on the constitutionality of RLUIPA. Cutter v. Wilkinson, --- U.S. ----, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). In an opinion written by Justice Ginsburg, the Court held that RLUIPA was compatible with the Establishment Clause as it found RLUIPA alleviates exceptional governmentcreated burdens on private religious exercise, adequately accounts for burdens on nonbeneficiaries, and is faith neutral. Id. at 2121.
Turning to Defendants' asserted qualified immunity in light of the Supreme Court's decision in Cutter, Defendants contend that the statutory framework controlling religious exercise within the prison setting was either not protected by an act of Congress or was not clearly established, and therefore, they are entitled to qualified immunity. Congress has twice passed legislation aimed at reinforcing prisoners' religious freedoms. Congress first passed the Religious Freedom Restoration Act of 1993 (“RFRA”) to prohibit government from substantially burdening a person's exercise of religion unless it demonstrates such burdens are in furtherance of a compelling governmental interest and are the least restrictive means to do so. 42 U.S.C. § 2000bb-1. On June 25, 1997, the Supreme Court found that in enacting RFRA, Congress had exceeded its remedial powers under the Fourteenth Amendment and invalidated RFRA. City of Boerne v. Flores, 521 U.S. 507, 532-36, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
On September 22, 2000, Congress went back to the drawing board and passed RLUIPA. RLUIPA was specifically limited in scope to programs receiving federal funds or affecting commerce. 42 U.S.C. § 2000cc-1. Save for the inserted congressional limitations and stylistic changes, 42 U.S.C. § 2000cc-1 (RLUIPA) and 42 U.S.C. § 2000bb-1 (RFRA) are functional equivalents. Thus, between June 1997 and September 2000, the legislative landscape was devoid of any statutory guidance for prison administrators to evaluate a prisoner's religious needs.

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*6 As noted, Deputy Director Bolden issued his order to confiscate Melanic material on January 12, 2000, in the middle of the statutory gap. The Court finds that at the time of the confiscation order, Plaintiffs did not enjoy any statutory religious protection, and thus, Defendants are immune from suit in damages on Plaintiffs' RLUIPA claim. In addition, the Court finds its reasoning in section A of this Opinion duly applicable and would also entitle Defendants to qualified immunity.
D. Injunctive Relief While Defendants enjoy qualified immunity from suit in damages, no such privilege exists for claims seeking declaratory or injunctive relief. Flagner v. Wilkinson, 241 F.3d 475, 484 (2001). Plaintiffs Motion seeks a declaration that their rights were violated and injunctive relief prohibiting Defendants from totally banning Melanic Literature. 7 Therefore, the Court will address the merits of Plaintiffs' First Amendment, Due Process, and RLUIPA claims in equity.
7 Plaintiffs have also sought an injunctive order requiring Defendants to replace seized Melanic materials and reimburse Plaintiffs for the cost of mailing Melanic materials out of MDOC institutions. The Court finds this relief is actually a compensatory damage award styled as injunctive relief and as discussed earlier, Defendants are immune from suit in damages. Cf. Edelman v. Jordan, 415 U.S. 651, 666, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (when a defendant is immune from damages, merely labeling relief sought as “equitable” does not create an available injunctive remedy when effect of injunction is essentially a money judgment).
1. First Amendment Central to Plaintiffs' First Amendment claim is whether Defendants' ban on Melanic Literature is reasonably related to a legitimate penological objective within the meaning of Turner v. Safley, 482 U.S. 78, 88-89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). 8 The Supreme Court has articulated a four-factor test to assure that “prison administrators ... and not the courts ... make the difficult judgments concerning institutional operations.” Id. at 89 (citing Jones v. North Carolina Prisoner's Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977)). First, there must be a “valid, rational connection” between the prison regulation and the legitimate governmental interest put forward to justify it. Id. (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984)). Second, the reviewing court is advised to consider whether there are “alternative means of exercising the right that remain open to the prison inmate.” Id. at 90. Third, the impact of the accommodation that the “asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally” is also relevant.
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Id. Finally, the existence or absence of ready alternatives is evidence of the reasonableness of a prison regulation. Id.
8 The parties' motions overlap as to whether the confiscation order was reasonable and will therefore be considered as competing motions for summary judgment. See Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994).
After applying the Turner test to the facts of this case, it is apparent that no First Amendment violation may follow. First, the confiscation order bears a rational relationship to prison security. Several Melanics, though the exact number is controverted, were involved in a prison riot at MDOC's Chippewa Valley facility. Thereafter, Melanics were designated a security threat group. Defendants have articulated that Melanic Literature espouses violence, racism, and an alternate hierarchical order within the prison. The confiscation order clearly bears a rational relationship to Defendants' important security interests.
With regard to Turner' s second factor, Defendants contend that because Plaintiffs were allowed access to Bibles and Qurans and were allowed to practice individual rituals, alternate means of practicing the Melanic faith remained open. Plaintiffs have introduced expert testimony indicating that inmate access to Melanic Literature is essential to their faith. While this factor may tip in Plaintiffs' favor, the Court is mindful that it is to be “particularly conscious of the ‘measure of judicial deference owed to corrections officials.” ’ Id. at 89 (citing Pell v. Procunier, 417 U.S. 817, 827 (1974)).
*7 As for the third Turner factor, allowing Melanic material into MDOC institutions would have a negative impact on guards, other inmates, and prison resources as Melanic Literature advocates and embeds an alternate power structure within MDOC institutions that is detrimental to the working order and security of those institutions. Prisoners would be under the authority of two masters with undoubtedly contradictory orders. Plaintiffs have challenged Defendants' appraisal of such hierarchical organizations with expert testimony, suggesting that Defendants' concerns are exaggerated. In light of Turner' s deferential posture, this Court will not supplant the experience and judgment of MDOC officials for the opinion of a retained penologist.
In line with the final Turner factor, Plaintiffs posit that because Melanic Literature was previously allowed in MDOC institutions, allowing its return will have a de minimis effect on Defendants' penological interest. Plaintiffs' supposition overlooks a critical aspect of the Melanics in that they are now a security threat group. MDOC officials would have to scrutinize each piece of Melanic Literature with greater detail, now being forewarned of Melanic Literature's proclivity for violence and racism. The Court has observed that Melanic Literature numbers in the hundreds of pages,
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most single-space type. Requiring MDOC officials to weed through Melanic Literature and excise prohibited materials would certainly not engender a de minimis effect.
On the balance, and especially in light of Turner, the Court finds that Defendants' confiscation order was reasonably related to their penological needs and will grant their motion for summary judgment on this ground. Conversely, Plaintiffs' motion will be denied.
2. Due Process 9 9 The parties' motions overlap on Plaintiffs' due process claim and will therefore be considered
as competing motions for summary judgment. See Lansing Dairy, 39 F.3d at 1347. As observed in section B, Plaintiffs were afforded notice and the opportunity to be heard before their Melanic materials were confiscated. It is clear to the Court that Plaintiffs have been accorded all the process they are due. Wolff, 418 U.S. at 555-56. Thus, the Court will grant Defendants' Motion and deny Plaintiffs' motion on this ground.
3. RLUIPA 10 10 The parties' motions overlap on Plaintiffs' RLUIPA claim and will therefore be considered
as competing motions for summary judgment. See Lansing Dairy, 39 F.3d at 1347. Apparently Turner v. Safely did not sit well with members of Congress as they worked to pass RFRA, and eventually RLUIPA, effectively overruling Turner. RLUIPA provides in pertinent part that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... unless the government demonstrates that imposition of the burden ...” furthers “a compelling governmental interest” and is done so “by the least restrictive means.” 42 U.S.C. § 2000cc-1. (emphasis supplied). It is no longer sufficient for prison officials to show a reasonable relation between its regulation and penological interests.
Assuming without deciding that Defendants' security interest is compelling, less restrictive means exist to satisfy their penological interests. Section D1 of this Opinion evinces that MDOC officials can screen Melanic Literature to assure prohibited materials are prevented entry into MDOC institutions. 11 While this is just one example, it demonstrates that a total ban on Melanic Literature is not the least restrictive means available to assure prison security, and consequently, Defendants have not met their burden under 42 U.S.C. § 2000cc-1.
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11 The Court recognizes its Opinion may appear somewhat schizophrenic in that section D1 appears contradictory to section D3. This is purely the result of the heightened burden imposed on Defendants by RLUIPA.
*8 Thus, the Court will reluctantly grant Plaintiffs' motion and deny Defendants' motion as they relate to RLUIPA. Congress has taken the Supreme Court's fears in Turner and made them a reality. Courts are now “the primary arbiters of what constitutes the best solution to every administrative problem,” as RLUIPA “ ‘unnecessarily perpetuate[s] the involvement of the federal courts in affairs of prison administration.” ’ Turner, 482 U.S. at 89 (citing Procunier v. Martinez, 416 U.S. 396, 407, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974)). RLUIPA obligates this Court to cast aside its doubts about the dubious role it will play in prison administration, and therefore, this will Court enjoin MDOC from totally banning Melanic Literature from its institutions. 12
12 The Court finds that an injunction preventing Defendants from totally banning Melanic materials is narrowly tailored, extends no further than necessary, and represents the least intrusive means necessary to correct Defendants' RLUIPA violation. 18 U.S.C. § 3626. The Court has also considered the potential adverse impact on prison security. Id.
E. Administrative Exhaustion Defendants have reiterated through various filings, most recently their instant Motion, that Plaintiffs' failure to exhaust is fatal to their claims. In an April 29, 2002 Opinion, this Court found exhaustion was not required and has been presented nothing since then to upset that finding.
F. Defendants' Dismissal Arguments as to Plaintiffs Jenkins and the Melanic Islamic Palace of the Rising Sun As noted, Defendants have moved to dismiss this action based on evidence outside the pleadings, and therefore, the Court is guided by Rule 56 rather than Rule 12(b). See FED. R. CIV. P. 12(b). Defendants contend that Plaintiffs' Amended Complaint is devoid of any allegations applicable to Plaintiff Michael Jenkins and aver that he cannot demonstrate any facts supporting a cause of action. Defendants also contend that no facts support a claim in favor of Plaintiff Melanic Islamic Palace of the Rising Sun. 13
13 The Melanic Islamic Palace of the Rising Sun is also a non-profit religious corporation recognized by the state of Michigan and Plaintiff Jenkins is its president.
Plaintiffs Jenkins and the Melanic Islamic Palace of the Rising Sun oppose dismissal and believe they have alleged facts that support a finding of associational standing on behalf of their members.
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To assert associational standing, three prerequisites must be met: (1) the members of the association must otherwise have standing to sue; (2) the interests that the organization seeks to protect must be germane to the purpose of the organization; and (3) neither the claim asserted nor the requested
relief necessitates the participation of the individual members of the lawsuit. Warth v. Seldin,
422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); See also Pennell v. City of San Jose, 485 U.S. 1, 7, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988). The Court finds that Plaintiffs Jenkins and the Melanic Islamic Palace of the Rising Sun have a sufficient standing to remain in this action. This is particularly true given the injunctive nature of this case that will inure to the benefit of
Melanics actually injured. Warth, 422 U.S. at 515. Thus, the Court will deny Defendants' Motion concerning dismissal of Plaintiffs Jenkins and the Melanic Islamic Palace of the Rising Sun.

IV. CONCLUSION Therefore, the Court will grant Plaintiffs' Motion for Partial Summary Judgment as to their claim under RUILPA and deny the Motion in all other respects. The Court will further grant Defendants summary judgment as to qualified immunity and summary judgment as to Plaintiffs' due process claim. In all other respects, Defendants' Motion will be denied. An Order, Injunction and Partial Judgment consistent with Opinion shall be entered.

All Citations Not Reported in F.Supp.2d, 2005 WL 3312566

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No cElaixmhtoiobriigtina2l 2U.S-. G2ov2e.rnmentJWoohrksn. son v. Martin 13

 
 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1218 Page 1 of 53

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

No. 2:20-cv-11053 HON. MARK A. GOLDSMITH

Plaintiffs, v
WILLIS CHAPMAN, NOAH NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,
Defendants.

MAG. R. STEVEN WHALEN
DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING
ORDER & INJUNCTIVE RELIEF

Daniel Manville (P39731) Attorney for Plaintiffs Civil Rights Clinic, MSU College of Law P.O. Box 1570 East Lansing, MI 48823 (517) 432-6866 daniel.manville@law.msu.edu

Kevin J. O’Dowd (P39383) Kristin M. Heyse (P64353) Scott A. Mertens (P60069) Sara E. Trudgeon (P82155) Cori E. Barkman (P61470) Allan J. Soros (P43702) Assistants Attorney General Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov

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Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 kevin@ecllawfirm.com
/
DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING
ORDER & INJUNCTIVE RELIEF
Dana Nessel Attorney General
Kevin J. O’Dowd Assistant Attorney General Attorneys for MDOC Defendants MDOC Division P.O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov P39383
Dated: May 12, 2020

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TABLE OF CONTENTS

Page

Table of Contents .......................................................................................i
Index of Authorities................................................................................. iii
Concise Statement of Issue Presented.....................................................vi
Controlling or Most Appropriate Authority.............................................vi
INTRODUCTION ...................................................................................... 1
Statement of Facts ....................................................................................4
Argument ................................................................................................. 19
I. Plaintiffs fail to establish a basis for this Court to grant the extraordinary remedy they seek of a temporary restraining order and/or injunctive relief. ........................................................ 19
A. Plaintiffs are not likely to succeed on the merits of their Eighth Amendment deliberate indifference claim. ..... 21
1. The Eleventh Amendment prohibits this Court from granting the injunctive relief Plaintiffs seek here—forcing MDOC to follow its already existing COVID-19 policies. ....................................................... 22
2. Plaintiffs cannot maintain an action where they have failed to exhaust their administrative remedies. ...................................................................... 24
3. Plaintiffs’ Eighth Amendment claim fails given the MDOC’s swift and robust efforts to prevent and contain the spread of the COVID-19 virus. .......... 30
4. Plaintiffs’ request for early release fails because such relief is not available in a § 1983 claim, it violates the PLRA, and the MDOC does not have authority to release prisoners......................................36

i

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B. Given the breadth of MDOC’s COVID-19 response efforts, Plaintiffs cannot show that they will suffer irreparable injury absent this Court’s intervention.............39
C. Both the public interest and that of the MDOC strongly weigh against a TRO or injunction. ...................................... 40
Conclusion and Relief Requested............................................................43
ii

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INDEX OF AUTHORITIES

Page

Cases
Abney v. Amgen, Inc., 443 F.3d 540 (6th Cir. 2006) ............................... 38
Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636 (6th Cir. 2015) ................................................................ 18
Amos v. Taylor, Case No. 4:20-CV-7, 2020 U.S. Dist. LEXIS 72532, *28 (N.D. Miss. Apr. 24, 2020) ............................................................. 35
Baxley v. Jividen, No. 3:18-1526, 2020 U.S. Dist. LEXIS 61894 (S.D. W.Va. Apr. 8, 2020) ..................................................................... 35
Bell v. Wolfish, 441 U.S. 520 (1979)........................................................20
Burnett v. Howard, No. 2:09-cv-37, 2010 U.S. Dist. LEXIS 30499, at *3 (W.D. Mich. Mar. 30, 2010) ......................................................... 25
Essroc Cement Corp. v. CPRIN, Inc., 593 F. Supp. 2d 962 (W.D. Mich. 2008) ...........................................................................................38
Farmer v. Brennan, 511 U.S. 825 (1994) .............................. 25, 29, 30, 32
Farnsworth v. Nationstar Mortgage, LLC, 569 Fed. Appx. 421 (6th Cir. 2014) .............................................................................................. 19
Foster v. Gueory, 655 F.2d 1319 (D.C. Cir. 1981) ................................... 28
FTC v. Dean Foods Co., 384 U.S. 597 (1966)..........................................27
Glover v. Johnson, 855 F.2d 277 (6th Cir. 1988) .................................... 41
Gonzales v. National Bd. of Med. Exam’rs, 225 F.3d 620 (6th Cir. 2000) ..................................................................................................... 20
Gulley v. Ogondo, Case No. 3:19-cv-612, 2020 U.S. Dist. LEXIS 64193 (D. Conn. Apr. 13, 2020) ............................................................ 36
iii

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Hanna v. Toner, 630 F.2d 442 (6th Cir. 1980)........................................40 Helling v. McKinney, 509 U.S. 25 (1993) ................................................ 30 Jackson v. D.C., 254 F.3d 262 (D.C. Cir. 2001) ...................................... 28 Jones v. Bock, 549 U.S. 199 (2007) ......................................................... 25 Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119
(1977) .................................................................................................... 40 Kendrick v. Bland, 740 F.2d 432 (6th Cir. 1984)....................................20 Marlowe v. LeBlanc, Case No. 20-30276, 2020 U.S. App. LEXIS
14063 (5th Cir. Apr. 27, 2020) ....................................................... 23, 28 Maryland v. King, ___ U.S. ___; 133 S. Ct. 1, 3 (2012)...........................40 McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) ..................................... 19 Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997)........20 Money v. Pritzker, 20-cv-2094, 2020 U.S. Dist. LEXIS 63599, *61
(ND. Ill. Apr. 10, 2020)............................................................. 35, 37, 41 Nellson v. Barnhart, 20-cv-00756, 2020 U.S. Dist. LEXIS 66971
(D. Colo. Apr. 16, 2020) ............................................................ 32, 34, 39 Northeast Ohio Coal. For Homeless and Serv. Emps. Intern.
Union, Local 1199 v. Blackwell, 467 F.3d 999 (6th Cir. 2006)............20 Overstreet v. Lexington–Fayette Urban County Gov't, 305 F.3d 566
(6th Cir. 2002) ...................................................................................... 19 Patio Enclosures, Inc. v. Herbst, 39 Fed. Appx. 964 (6th Cir. 2002) ......39 Pennhurst State School & Hospital v. Halderman, 465 U.S. 89
(1984) .............................................................................................. 22, 23 Preiser v. Rodriguez, 411 U.S. 475 (1973)...............................................36 Ross v. Blake, 136 S. Ct. 1850 (2016)......................................................24
iv

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Surles v. Andison, 678 F.3d 452 (6th Cir. 2012).....................................25 Swain v. Junior, Case No. 20-11622-C, 2020 U.S. App. LEXIS
14301 (11th Cir. May 5, 2020) ....................................................... 32, 41 Valentine, et al. v. Collier, et al., Case No. 20-20207, 2020 U.S.
App. LEXIS 12941 (5th Cir. Apr. 22, 2020) ............................ 23, 39, 41 Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987)....................................27 Williams v. Mehra, 186 F.3d 685 (6th Cir. 1999) ................................... 30 Statutes 18 U.S.C. § 3626(a)(1)-(2) ........................................................................ 37 18 U.S.C. § 3626(a)(2)..............................................................................24 18 U.S.C. § 3626(a)(3)..............................................................................37 18 U.S.C. § 3626(a)(3)(E)(i)-(ii) ............................................................... 37 42 U.S.C. § 1997e(a) ................................................................................ 24 Mich. Comp. Laws 791.233(1)(a) and 791.234........................................38
v

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CONCISE STATEMENT OF ISSUE PRESENTED Where the MDOC has taken swift and comprehensive action to prevent and treat COVID-19 within its prisons, implementing many measures that go above and beyond CDC guidelines, should this Court deny Plaintiffs’ request for a TRO and/or preliminary injunction? CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: 42 U.S.C. § 1983; 42 U.S.C. § 3626; Gonzales v. National Bd. of Med. Exam’rs, 225 F.3d 620 (6th Cir. 2000); Bell v. Wolfish, 441 U.S. 520 (1979); Kendrick v. Bland, 740 F.2d 432 (6th Cir. 1984); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Ross v. Blake, 136 S. Ct. 1850 (2016); Farmer v. Brennan, 511 U.S. 825 (1994); Swain v. Junior, Case No. 20-11622-C, 2020 U.S. App. LEXIS 14301 (11th Cir. May 5, 2020); Nellson v. Barnhart, 20-cv-00756, 2020 U.S. Dist. LEXIS 66971 (D. Colo. Apr. 16, 2020); Baxley v. Jividen, No. 3:18-1526, 2020 U.S. Dist. LEXIS 61894 (S.D. W.Va. Apr. 8, 2020);
vi

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Amos v. Taylor, Case No. 4:20-CV-7, 2020 U.S. Dist. LEXIS 72532, *28 (N.D. Miss. Apr. 24, 2020); Money v. Pritzker, 20-cv-2094, 2020 U.S. Dist. LEXIS 63599, *61 (ND. Ill. Apr. 10, 2020).
vii

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INTRODUCTION From the first moment the coronavirus (COVID-19) pandemic surfaced in Michigan, the Michigan Department of Corrections (MDOC) acted swiftly and effectively in minimizing the spread of COVID-19 within its correctional facilities. Within a day of the Michigan Governor declaring a state of emergency after announcing two Michigan residents had tested presumptive positive for COVID-19, the MDOC issued its first of many press releases advising Michigan residents of the emergency measures being taken to protect its staff, prison population, and the community from COVID-19. Very quickly and decisively, MDOC Director Heidi Washington provided executive leadership and direction, outlining the many steps being taken, under the professional guidance of its Chief Medical Officer (CMO) and in consultation with the Centers for Disease Control and Prevention (CDC) and the Michigan Department of Health and Human Services (MDHHS). Through this top-down coordinated effort, from the Director and her Executive Team, to the Wardens, to the correctional and healthcare staff, and everyone in between, the MDOC implemented and enforced a comprehensive COVID-19 response across all MDOC correctional
1

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facilities. These emergency measures address everything from the creation of isolation areas, COVID-19 testing protocols, and screening measures, the provision of personal protection equipment (PPE) to prisoners and staff, social distancing requirements and wearing of masks in facilities, the modification of prison programs and daily procedures, the modification and use of living areas and non-traditional areas to increase social distancing and to cohort prisoners, unprecedented cleaning and hygiene measures, and the education of staff and prisoners regarding MDOC’s COVID-19 protocols.
In the following discussion, based on a timeline summary of the facts and from the multiple affidavits attached and discussed herein, including the MDOC’s Director, the Acting Assistant Deputy Director, the Wardens from the four subject correctional facilities named as Defendants, and the MDOC’s CMO, this Court will see MDOC operating at the highest professional governmental level in response to an unprecedented public-health crisis.
Despite all of this, Plaintiffs ask this Court to order the MDOC to do more. More than what is required by the CDC. And, in some
2

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instances, more than what is readily available to the public out in the community.
Plaintiffs also ask this Court to do what our Supreme Court has routinely counseled federal courts against—becoming involved in the day-to-day administration of prison systems. Plaintiffs’ counsel and their experts profess to know better than the MDOC1 about how to deal with this novel virus within its facilities, and they ask this Court to impose their processes on the MDOC—processes that do not sufficiently take into account safety, security, or limited MDOC resources. And what Plaintiffs fail to understand is that any order requiring MDOC to take specific measures (and only those measures) to combat COVID-19 would actually inhibit MDOC’s ability to protect its prison population because of the ever-changing and ever-evolving nature of the pandemic.
For all these reasons, and those set forth below, Plaintiff’s motion for temporary restraining order (TRO) and/or injunctive relief must be denied.
1 MDOC’s response efforts have been crafted and implemented in conjunction with the CDC and the MDHHS.
3

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STATEMENT OF FACTS The first case of COVID-19 in the United States of America was confirmed on January 21, 2020 in Washington State. (Ex. A, CDC Jan. 21, 2020 Press Release.) Seven weeks later, on the night of March 10, 2020, the first two presumptive positive cases of COVID-19 materialized in the State of Michigan. (Ex. B, Executive Order No. 2020-4.) That day, Michigan Governor Gretchen Whitmer declared a state of emergency. (Id.) Even though no MDOC prisoner or staff member had yet tested positive, MDOC had already begun taking steps to prevent the introduction of the virus into the 29 facilities MDOC operates. I. Timeline of MDOC’s Ongoing Safety Precautions The MDOC’s actions in responding to the risk of COVID-19 impacting its facilities occurred well before any prisoners or staff tested positive and before the CDC issued its Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, which was not posted until March 23, 2020. (Ex. C.)
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Some of the early measures MDOC Director Heidi Washington implemented included engaging in close consultation with local health departments, the MDHHS, and the CDC to examine options on prevention of the spread of the virus, and this information was in turn communicated to the prison population and MDOC staff. (Ex. D, Director Aff., ¶ 8.) Director Washington ensured that each facility underwent additional and more frequent cleanings. (Id.) Bleach, normally forbidden within a prison, was provided to each facility for disinfecting purposes.2 (Id.) The MDOC memorialized these actions in a March 11, 2020, press release detailing the measures being taken to protect its staff, prison population, and the community from COVID-19. (Id., Attach. 1, March 11, 2020 Press Release.)
On March 11, 2020, the MDOC began taking the temperature of all staff and anyone else entering the secured prison area, as well as completing a screening for any other signs or symptoms of the virus. (Id.) Anyone with a temperature higher than 100.4 degrees is prohibited from entering the facility and staff are prohibited from
2 Bleach has previously not been allowed to be used inside of a prison as a cleaning agent due to security reasons as bleach can cause permanent skin and nerve damage if thrown onto another person.
5

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returning to work until their fever dissipates and they have no additional symptoms of COVID-19. (Id., at ¶ 9.) Additionally, on March 13, 2020, the MDOC ceased all in-person visitation with prisoners. (Id., Attach. 2, March 13, 2020 Press Release.) This was done for the safety of staff, prisoners, and the public, to minimize the risk of introducing COVID-19 into the facilities. (Id., at ¶ 9.) On that date, there were only 12 known cases of COVID-19 in the state, but none yet impacting the MDOC. (Id.)
By March 16, 2020, various additional measures had been implemented within the MDOC, and in order to keep the public informed about what the MDOC was doing to keep its prisoners and staff safe, the MDOC posted MDOC Coronavirus (COVID-19) Response Q&A on its own website, as well as on social media platforms, advising the public of early measures taken to ensure the safety and well-being of the prison population, staff, and the public. (Id., Attach. 3.) In addition to these early measures discussed above, other measures the MDOC has taken include, but are not limited to:
x Enhanced services for prisoners to communicate with family and friends such as free phone calls twice per week in most cases and a number of free JPay (email) messages. (Id. ¶ 10.)
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x Stopping transfers between facilities without the approval of the Assistant Deputy Director or higher. (Id.)
x Ensuring that diligent cleaning protocols were implemented and used, including the sanitizing of common areas and cells, more frequent cleaning using bleach, and requiring cleaning products to be placed next to phones and in other high traffic areas. (Id.)
x Ensuring that all prisoners had access to soap, that there was an adequate supply being produced in the Michigan State Industries labs, and that an increased supply of soap was being freely provided to prisoners for their personal use and stocked in bathrooms. (Id.)
x Requiring CDC posters detailing proper hygiene practices to be posted and displayed digitally on TV screens throughout the facilities. (Id.)
x Encouraging social distancing throughout its facilities, including halting certain programming and group activities or running smaller groups for programs and classrooms and limiting the number of people in the chow hall at any one time in order to seat prisoners further apart. (Id.)
x Increasing the processing of parole reviews and modifying procedures to minimize in-person attendance, including conducting parole interviews by video. (Id.)
On March 23, 2020, the CDC posted its Interim Guidelines for
Correctional Facilities. (Ex. C.) This document provided specific
guidance to correctional and detention facilities related to COVID-19,
outlining best practices concerning: (1) operational and communications
preparations for COVID-19; (2) enhanced cleaning, disinfecting, and
hygiene practices; (3) social distancing strategies; (4) visitor policies; (5)
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infection control; (6) screening of staff, inmates, and visitors; (7) medical isolation for those testing positive; (8) healthcare for suspected cases; and (9) considerations for persons at higher risk of COVID-19. (Id.) By the time these guidelines were issued, the MDOC, as evidenced by the above-mentioned early measures, was already incorporating these “best practices” in its COVID-19 response strategies.
Two MDOC staff members3 tested positive for COVID-19 on March 17, 2020. (Ex. E, MDOC March 17, 2020 Press Release.) On March 24, 2020, an inmate tested positive for COVID-19 for the first time in an MDOC facility.4 (Ex. F, Aff. Dr. McIntyre, ¶ 5.) As with all subsequent COVID-19 positive inmates and persons under investigation (PUIs), the MDOC moved swiftly to isolate that inmate and to ensure that any of his close contacts were placed under observation to ensure that they did not develop COVID-19 symptoms. (Id., ¶ 25.)
3 A probation agent and a Detroit Detention Center employee. (Ex. E.) 4 There was an inmate that tested positive on March 22, 2020. However, he had been hospitalized for a non-COVID-related health issue since March 11 at two different outside hospitals. He was transferred to MDOC’s Duane Waters Health Clinic to a negative pressure room. He was not released from COVID isolation until repeat testing was negative. (Aff. Dr. McIntyre, Ex. F, ¶ 4)
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On March 29, 2020, Governor Whitmer issued Executive Order No. 2020-29 specifically addressing the transfer of jail inmates into the MDOC. (Ex. G, Executive Order No. 2020-29.) Pursuant to this Executive Order, effective immediately, all transfers into the MDOC’s custody from a county jail or local lockup were suspended until it was determined that the county jail or local lockup had satisfactorily implemented risk-reduction protocols of their own. (Id., ¶ 4.) The Executive Order also ordered the continuation of numerous riskreduction protocols, recognizing that MDOC was already implementing the enumerated protocols at all facilities. (Id., ¶ 1.)
On April 8, 2020, to reinforce the MDOC’s efforts to contain COVID-19, and to ensure that all facilities were uniformly operating in the face of this crisis, Director Washington issued Director’s Office Memorandum (DOM) 2020-30 to the MDOC’s Executive Policy Team, the Administrative Management Team, and Wardens. (Ex. H, DOM 2020-30; Compl., R. 1-28, Ex. 27, Page ID # 164-71.) DOM 2020-30 states, “The MDOC is taking many steps to protect staff and prisoners from the spread of COVID-19, including developing isolation areas to place and treat prisoners who tested positive for COVID-19 or who are
9

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under investigation for having COVID-19, as well as those who have
had close contact with a known-positive COVID-19 individual.” (Ex. H.)
The DOM issues specific guidelines for the following topics: x Personal Protection Equipment (PPE); x Screening of individuals before entering a facility or office building; x Social distancing; x Isolation areas; x Prisoners under investigation for COVID-19; x Prisoner personal property; x Precautions in correctional facilities administration (CFA) facilities; x Credit restorations; x Precautions to be taken by field operations administration (FOA); x Disciplinary conferences, and x Working remotely. (Id.)
II. Compliance with CDC Guidelines
The MDOC has continued to meet and exceed the March 23, 2020
CDC guidelines. (Ex. C.) Specifically, prisoners and staff are provided
with three reusable cloth masks that can be laundered, which are
replaced as needed. (Ex. D, Aff. Director, ¶ 16.) This practice began on
March 26, 2020, and by April 6, all facilities had been issued three
washable and reusable masks per prisoner and per staff. (Id.) It was
10

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not until April 3, 2020, that the CDC issued a recommendation that masks should be worn in public. (Ex. I, CDC Apr. 3, 2020 Recommendation.) Governor Whitmer did not order the people of Michigan to wear face masks in public buildings until April 26, 2020. (Ex. J, Executive Order No. 2020-59.) By April 6, 2020, the MDOC provided over 152,000 masks to staff and prisoners and continues to ensure that all staff and prisoners are wearing masks in accordance with CDC guidelines. (Ex. D, Aff. Director, ¶ 16.)
The MDOC has also opened a previously closed facility and previously closed housing units and transformed non-traditional areas, such as gyms and dayrooms, to separate prisoners and cohort PUIs, close contacts, and prisoners in step-down—a recovery unit for those medically cleared after having recovered from the virus. (Id., ¶¶ 17, 20.) Portable showers were installed in these new arrangements so individuals from one cohort would not have to mix with individuals in another group. (Id., ¶ 19.) This expansion also allowed the MDOC to reduce the population among the COVID-negative prisoners in dormstyle housing units to the greatest extent possible. (Id., ¶ 18.)
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Meanwhile, the MDOC is providing COVID-19 testing at all facilities in accordance with CDC guidelines. To ensure continuing compliance with CDC guidelines and MDOC’s COVID-19 protocols, MDOC facilities provide a daily update to the Executive Team addressing all COVID-19 related developments. (Id., ¶¶ 22, 26.) A detailed comparison of Plaintiffs’ requests for relief, the CDC guidelines, and MDOC’s actions is provided in Exhibit K.
The named class representatives are currently housed at Lakeland Correctional Facility (LCF), Parnall Correctional Facility (SMT), Cotton Correctional Facility (JCF), and Macomb Correctional Facility (MRF). (Compl., R. 1, Page ID # 7-17.) The respective Wardens of these facilities, Warden Morrison, Warden Braman, Warden Nagy, and Warden Chapman have implemented and are following CDC guidelines throughout their facilities. As evidenced by the Wardens’ affidavits, each of these facilities is meeting, if not exceeding, CDC guidelines. (Ex. L, Aff. Morrison; Ex. M, Aff. Braman; Ex. N, Aff. Nagy; Ex. O, Chapman.) Their affidavits illustrate the effectiveness of the MDOC’s coordinated COVID-19 response measures at the facility level. The affidavits also explain the measures being implemented by the
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individual facilities to promote social distancing in housing units, such as reducing the number of prisoners living in cube, or dorm-style, units to the extent possible and requiring inmates in bunks sleep head-to-toe or every other bunk. (Id.)
Acting Assistant Deputy Director (ADD) Jeremy Bush, oversees all of the facilities in MDOC’s Jackson Region Facilities. (Ex. P, Aff. ADD Bush, ¶ 3.) The Jackson Region includes LCF, SMT, JCF and MRF, among additional facilities. (Id. ¶ 2.) ADD Bush began providing COVID-19 risk-reduction protocols to Wardens at all facilities in the Jackson Region on March 11, 2020 and receives briefings from these facilities. (Id. ¶¶ 4, 7.) As evidenced from the affidavits of ADD Bush, Warden Morrison, Warden Braman, Warden Nagy, and Warden Chapman, MDOC is in compliance with CDC and MDHHS guidelines and will continue to implement and enforce COVID-19 risk-reduction measures for the duration of the pandemic. III. Population Reduction Efforts
In addition to MDOC’s swift and robust efforts to contain the spread of COVID-19 within its facilities, as well as its methods for containment when positive cases are identified, MDOC has also taken
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the following actions to safely reduce its prison population during this
crisis:
x On March 30, 2020, after seeking and receiving permission from Wayne County Circuit Court, 26 probationers, who were completing the Westside Residential Alternative to Prison (WRAP) program, were released from custody to community supervision (Ex. D, Director Affidavit, ¶ 28(a));
x MDOC accelerated programming for parole violators so they could be re-paroled more quickly (Id., at ¶ 28(b));
x All Holmes Youthful Trainee Act cases were reviewed, and release eligible cases were sent to the sentencing judge for consideration. The courts approved the release of trainees housed at the Thumb Correctional Facility (Id., at ¶ 28(c));
x Wardens reviewed pre-1998 prisoner cases to determine eligibility for credit restoration, which resulted in 78 prisoners becoming eligible for parole with the Parole Board granting parole in 55 cases (Id., at ¶ 28(d));
x MDOC has also worked with the Parole Board to expedite its review process and reduce its number of deferrals, with the priority of moving vulnerable prisoners into the process first, i.e., those over the age of 60. Once the Parole Board grants a parole, MDOC is actively seeking prosecutor waivers of the 28day wait time before release (Id., at ¶ 28(g));
x All of the strategies implemented by the MDOC has resulted in the following parole numbers for weeks ending on Saturday:  April 11, 2020: 198 paroles
 April 18, 2020: 153 paroles
 April 25, 2020: 233 paroles
 May 2, 2020: 197 paroles
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 May 9, 2020: 214 paroles (Id., at ¶ 28.) On March 13, 2020, the MDOC population was 38,196. As of May 9, 2020, the MDOC population was 36,781, which represents a population decrease of 1,415 since March 13, 2020. (Id., at ¶ 29.) In April 2020, the prison population declined by 866. This is the largest monthly decline in known MDOC history. Previously, the largest prison population drop in a single month was 592 in July 2007. (Id.) IV. Medical Treatment and Testing
Under the guidance of MDOC Chief Medical Officer (CMO), Dr. McIntyre, the MDOC has implemented specific COVID-19 infection control guidelines. (Ex. F, Aff. Dr. McIntyre, ¶ 5.) In addition to all the measures taken and described above, a COVID-19 Protocol, most recently updated on April 29, 2020, was provided to all MDOC healthcare staff and Wardens. (Id., Attach. 1, MDOC COVID-19 Guidelines Protocol.) The COVID-19 Guidelines Protocol addresses prevention, screening, evaluation, and management of COVID-19 in MDOC facilities. (Id., at ¶ 6.) The protocol includes, in part:
x Separate housing units dedicated as management units for all COVID-positive prisoners to provide all medically necessary treatment and separate positive inmates from the rest of the population. (Id., Attach. 1, at pp. 10-12.)
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x Step-down units for all prisoners who previously tested positive for COVID-19 and have since been cleared by the MDOC’s CMO, are symptom free, and are no longer considered contagious. Prisoners remain in the step-down unit for at least 14 days and until the prisoner tests negative before being returned to general population. (Id., at p. 14.)
x Updated parole/discharge criteria addressing specific release requirements for COVID-positive prisoners, PUIs, and those in close contact (i.e., COVID-positive prisoners will not be released until they are cleared by health care according to the COVID19 protocol). (Id., at pp. 12-14.)
x Screening procedures for necessary intakes and transfers, incorporating current CDC screening guidelines. (Id., at p. 46.)
x Staff and prisoner COVID-19 evaluation requirements in accordance with CDC guidelines. (Id., at pp. 15-16.)
x Social distancing protocols applicable to programs, classrooms, chow lines, staff meetings, and any other type of gathering in accordance with current CDC guidelines. (Id., at pp. 3-4, 30; Ex. Q, social distancing example photos.)
x Hygiene and facility cleaning requirements in accordance with current CDC guidelines. (Ex. F, Aff. Dr. McIntyre, Attach. 1, at pp. 3, 17-19.)
The MDOC has opened previously closed housing units separate
from the main prison at Carson City Correctional Facility (DRF), G.
Robert Cotton Correctional Facility (JCF) K unit, Green Oaks
Temporary Facility (former Maxey Boys Training School), a wing in the
Duane Waters Health Center (DWH), and a wing in the C unit at the
Charles Egeler Reception & Guidance Center (RGC) to establish
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COVID-19 response units and transported COVID-positive prisoners to these sites. (Ex. D, Director Aff., ¶ 20.) Macomb Correctional Facility (MRF), Cotton (JCF), Lakeland Correctional Facility (LCF), Women’s Huron Valley Correctional Facility (WHV), and Detroit Reentry (DRC) (dialysis) also have their own COVID response units. (Id., at ¶ 21.) These units are used to separate COVID-positive prisoners from the rest of the population, to prevent spread of the virus, and to allow for proper medical care. (Id.) Prisoners remain in these units until healthcare clears them to be transferred to a step-down unit. (Ex. F, Aff. Dr. McIntyre, Attach. 1, at pgs. 10-12.)
Testing conducted in the MDOC is more expansive than CDC and MDHHS guidelines. (Id., ¶¶ 20-21, 48.) COVID-19 tests are given to all prisoners who show any CDC recognized symptoms, at a minimum. (Ex D, Director Aff., ¶ 22.) Additionally, the entire prisoner population of Lakeland Correctional Facility (LCF) and Cotton Correctional Facility (JCF) have been tested for COVID-19. (Id., ¶ 23.) Further, the MDOC, with the assistance of the Michigan National Guard, completed testing of all six MDOC correctional facilities in the upper peninsula during the week of May 4, 2020, including Baraga Correctional Facility
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(AMF), Marquette Branch Prison (MBP), Alger Correctional Facility (LMF), Newberry Correctional Facility (NCF), Chippewa Correctional Facility (URF), and Kinross Correctional Facility (KCF), as well as Oaks Correctional Facility (ECF) in the lower peninsula. (Id.) MDOC is continuing mass testing, including antibody testing, at facilities in the lower peninsula. (Id., ¶ 23.)
As of May 11, 2020, at 12:30 PM, of the 13,235 total number of prisoners tested for COVID-19, 2,152 have tested positive, and there have been 50 COVID-19 related prisoner deaths, which is a 2.32 percent death rate of known positives. The death of a single prisoner is tragic, but through the collective efforts of the MDOC staff, consistent with CDC guidelines, MDOC continues to minimize these numbers as this unprecedented pandemic continues to evolve.
As this Court can see, even before the first COVID-19 positive case was identified within the MDOC, the MDOC had already developed a comprehensive plan to prevent, contain, and control the spread of COVID-19 within its 29 facilities with the goal of protecting the 36,000+ prisoners in the care of MDOC. MDOC continues to meet
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and exceed the CDC’s guidelines. Accordingly, Plaintiffs’ motion should be denied.
ARGUMENT I. Plaintiffs fail to establish a basis for this Court to grant the
extraordinary remedy they seek of a temporary restraining order and/or injunctive relief. Temporary restraining orders (TRO) and/or preliminary injunctions “are extraordinary and drastic remedies . . . never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015) (internal quotations and citation omitted). The moving party “bears the burden of justifying such relief.” McNeilly v. Land, 684 F.3d 611, 614-15 (6th Cir. 2012). This requires a far more stringent showing of proof than that required to survive summary judgment. See Farnsworth v. Nationstar Mortgage, LLC, 569 Fed. Appx. 421, 425 (6th Cir. 2014). And such relief should be granted “only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington–Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002); Roghan v. Block, 590 F. Supp. 150, 153 (W.D. Mich. 1984), aff'd 790 F.2d 540 (6th Cir. 1986) (“There is no power the exercise of which requires greater
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caution, deliberation, and sound discretion, or more dangers in a doubtful case, than the issuing of an injunction.”) (internal quotations and citation omitted). Thus, Plaintiffs here must affirmatively demonstrate entitlement to injunctive relief.
A party seeking a TRO or preliminary injunction must establish four factors: (1) a strong likelihood of success on the merits; (2) that irreparable injury would result absent an injunction; (3) that granting the injunction would not cause substantial harm to others; and (4) that the public interest would be served by granting the injunction. Northeast Ohio Coal. For Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006).
“Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. National Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000); Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997) (“While, as a general matter, none of these four factors are given controlling weight, a preliminary injunction issued where there is simply no likelihood of success on the merits must be reversed.”).
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Moreover, the United States Supreme Court has cautioned that “the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of Government, not the Judicial.” Bell v. Wolfish, 441 U.S. 520, 548 (1979). Thus, where a prisoner seeks to enjoin state prison officials, courts must proceed with care, recognizing the unique nature of the prison setting. See Kendrick v. Bland, 740 F.2d 432, 438, n. 3 (6th Cir. 1984).
For the reasons set forth below, Plaintiffs fail to satisfy any of the factors for a TRO and/or injunctive relief. Therefore, their motion must be denied.
A. Plaintiffs are not likely to succeed on the merits of their Eighth Amendment deliberate indifference claim.
Plaintiffs allege a violation of their Eighth Amendment right based on what they deem as MDOC’s inadequate response to the COVID-19 pandemic. More specifically, Plaintiffs assert that MDOC has “fail[ed] to provide [them] with reasonably safe living conditions in the face of the current COVID-19 pandemic.” (Plf.s’ re-filed motion for TRO, R. 22, Page ID # 826.) Because nothing could be further from the
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truth, and because Plaintiffs seek relief that is not available to them,
Plaintiffs are not likely to succeed on the merits of their claim.
1. The Eleventh Amendment prohibits this Court from granting the injunctive relief Plaintiffs seek here—forcing MDOC to follow its already existing COVID-19 policies.
In their complaint,5 Plaintiffs set forth a laundry list of 21 items
that they ask this Court to order MDOC to do what they believe will
reduce the spread of COVID-19. (Compl., R. 1, Page ID # 53-54.) A
majority of these items—all but items 1, 2, 8,6 15, and 16—were already
included in MDOC’s policies and procedures before this lawsuit was
initiated. (Ex. H.)
5 Unlike Plaintiffs’ motion for TRO and/or permanent injunction, which does not indicate exactly what relief Plaintiffs seek, their complaint does set forth a 21-item request for relief. (Complaint, D/E 1, Pg. ID. 53-54.) Defendants rely on that list for purposes of this response brief. Also, it is Defendants understanding that Plaintiffs have conceded that, based on the parties’ discussions and information that has been provided about what MDOC is already doing, items 5, 7, and 21 on Plaintiffs’ list are no longer at issue. 6 To be clear, the MDOC is addressing these items in other ways than what is proposed by Plaintiffs. For specific measures that are being taken, see Director Washington’s affidavit (Ex. D) at ¶¶14, 22, 23, 24, 25, and 28.
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Indeed, Plaintiffs’ counsel has conceded this point7 and acknowledged that what they really take issue with is the MDOC’s implementation of its policies. So, for the bulk of Plaintiffs’ requested relief, they ask this Court to enjoin the State to follow its own laws and procedures, essentially asking this Court to force MDOC to comply with its existing policies. But such relief is prohibited by the Eleventh Amendment and was squarely rejected by our Supreme Court in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 103-23 (1984) (holding that the Eleventh Amendment prohibits federal courts from enjoining state facilities to follow state law.)
Pennhurst was recently applied by the Fifth Circuit in the context of two COVID-19-related prison cases. Valentine, et al. v. Collier, et al., Case No. 20-20207, 2020 U.S. App. LEXIS 12941 (5th Cir. Apr. 22, 2020) (Ex. R.); Marlowe v. LeBlanc, Case No. 20-30276, 2020 U.S. App. LEXIS 14063 (5th Cir. Apr. 27, 2020) (Ex. S). In both of those cases, the Fifth Circuit stayed the district courts’ injunctions granted against state correctional departments, finding that plaintiffs were not likely to
7 Plaintiffs’ counsel advised the Court of such during the parties May 4, 2020 telephone status conference. (Not. of Status Conf., R. 16, Page ID # 814.)
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succeed on the merits of their Eighth Amendment claims because the district courts’ orders merely required the departments to implement their own policies. (Ex. R, Valentine, ** 9-10; Ex. S, Marlowe, ** 5-6.) The Fifth Circuit reasoned that “the essence of Pennhurst is that a federal court lacks jurisdiction to sit as a super-state executive by ordering a state entity to comply with its own law.” (Ex. S, Marlowe, *6.)
Here, Pennhurst also applies to bar the majority of Plaintiffs’ requested relief because, for all but items 1, 2, 8, 15, and 16, Plaintiffs, too, are asking this Court to force MDOC to implement its already existing policies. As such, Plaintiffs’ motion for TRO and/or injunctive relief must be denied.
2. Plaintiffs cannot maintain an action where they have failed to exhaust their administrative remedies.
Plaintiffs’ motion is subject to the limitations on injunctive relief set forth in the Prison Litigation Reform Act (PLRA), which states in part:
Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial
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weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. 18 U.S.C. § 3626(a)(2). It further requires that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal Law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has deemed this language as mandatory and has rejected attempts to deviate from this mandate. Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016). Thus, “a court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Id. The PLRA exhaustion requirement applies to requests for TROs and injunctive relief. See Farmer v. Brennan, 511 U.S. 825, 847 (1994). Further, the Supreme Court has held that “to properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules,’ rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation
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omitted). Indeed, the Sixth Circuit has held that “[a] grievant must undertake all steps of the MDOC process for his grievance to be considered fully exhausted.” Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012). Where a grievance is rejected on the basis of policy, “[a]s long as the state clearly rejects a grievance for a reason explicitly set forth in the applicable grievance procedure, a subsequent § 1983 claim based on the grievance will be subject to dismissal for failure to properly exhaust.” Burnett v. Howard, No. 2:09-cv-37, 2010 U.S. Dist. LEXIS 30499, at *3 (W.D. Mich. Mar. 30, 2010) (internal citations omitted) (Ex. T.) MDOC’s grievance policies are set forth in Policy Directive 03.02.130, “Prisoner/Parolee Grievances,” effective March 18, 2019. (Ex. U, PD 03.02.130, eff. 3/18/19.)
Here, Plaintiffs have failed to properly exhaust their administrative remedies. Plaintiff Elliott Abrams, #974262, filed two grievances related to COVID-19 issues.8 Both were properly rejected as being too general, and thus non-grievable, and neither were appealed through
8 Grievance MRF-20-04-0561-27z asserts that Warden Chapman is not creating a sustainable plan that prevents the spread of COVID-19. Grievance MRF-20-04-0562-28a asserts that Director Heidi Washington is putting the grievant (Abrams) at a higher risk by not creating a sustainable plan that prevents the spread of COVID-19.
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Step III.9 Plaintiff Craig Seegmiller, #373625, filed one COVID-19
related grievance—Grievance JCF-20-04-0694-27z10—which was
rejected because the proper procedure is to address the issue at the
Warden’s Forum, and it has not been appealed through Step III.
Plaintiff Lamont Heard, #252329, has filed two grievances regarding
COVID-19.11 Again, both were rejected as being too general and they
were also not appealed through Step III.
Plaintiff Jermaine Campbell, #745168, has filed two COVID-19-
related grievances.12 Both claim that a female housing unit staff
member was not wearing her facemask. These grievances are still
pending. Robert Reeves, #222810, has filed one COVID-19-related
9 Grievance MRF-20-04-0561-27z was rejected at Step I for being a nongrievable issue. Abrams appealed the Step I grievance response, and the grievance was upheld at Step II. MRF-20-04-0562-2a was rejected as a duplicate issue. This grievance was also upheld at Step II. 10 In that grievance, Seegmiller made the very general claim that the supervisory level staff are using an unconstitutional practice and custom related to COVID-19 that puts his life in danger. 11 Grievance LCF-20-04-0261-27z asserts that staff failed to protect Heard from the coronavirus. This grievance was rejected at Step I as a non-grievable issue. Grievance LCF-20-04-0026-27z also asserts that staff failed to protect Heard from the virus. This grievance was also rejected at Step I as a non-grievable issue. 12 Grievances JCF-20-04-0795-03b and JCF-20-04-0797-03b.
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grievance—grievance SMT-20-04-0491-27z—which alleges that the Warden and staff failed to protect him, and as a result Reeves was infected with COVID-19 and was not treated. This grievance was rejected due to not following the proper procedure to direct comments to the Warden’s Forum. Plaintiff Vincent Glass, #182453, has not filed any COVID-19-related grievances.
Plaintiffs attempt to side-step this exhaustion requirement by arguing that this Court’s “equitable powers” are not impaired by the PLRA. (Plf.s’ re-filed motion for TRO, R. 22, Page ID # 843-44.) However, the cases they cite to support this proposition are non-binding and inapplicable. As an initial point, FTC v. Dean Foods Co., 384 U.S. 597 (1966); Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987); and Foster v. Gueory, 655 F.2d 1319, 1321-22 (D.C. Cir. 1981) have nothing to do with the PLRA.13 Further, FTC, Wagner, and Jackson v. D.C., 254 F.3d 262, 268 (D.C. Cir. 2001) discuss entering an injunction to maintain the status quo pending the outcome of administrative proceedings.
13 The PLRA was enacted in 1996, well after any of the cases were decided.
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Plaintiffs here ask this Court to waive their PLRA exhaustion requirement altogether, and they seek affirmative relief from this Court, not to simply maintain the status quo. Finally, the district court decision in Marlowe v. LeBlanc, Case No. CV-18-63, 2020 U.S. Dist. LEXIS 72146, (M.D. La. Apr. 23, 2020), upon which Plaintiffs rely, has recently been stayed by the Fifth Circuit. (See Ex. S, Marlowe v. LeBlanc.) The Fifth Circuit rejected the district court’s PLRA exhaustion analysis, which excused plaintiff’s failure to exhaust because “‘the interests of justice’ compelled it to act on an emergency basis[,]” finding that it “runs counter to Supreme Court precedent.” (Id. at *9 (internal citation omitted.))
In sum, while Plaintiffs attempted to file COVID-19 related grievances, none of those grievances were properly exhausted. In every case, Plaintiffs either failed to appeal their grievances through Step III, or their grievances were still pending at the time this lawsuit was commenced. Accordingly, because Plaintiffs have failed to properly exhaust their administrative remedies, their § 1983 claim fails as a matter of law.
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3. Plaintiffs’ Eighth Amendment claim fails given the MDOC’s swift and robust efforts to prevent and contain the spread of the COVID-19 virus.
Even if Plaintiffs had exhausted their administrative remedies as required under the PLRA and they were not seeking relief barred by the Eleventh Amendment, their motion for TRO and/or injunctive relief must still be denied because MDOC has been anything but deliberately indifferent to their health and safety during the COVID-19 pandemic.
The Eighth Amendment requires prison officials to provide humane conditions of confinement. Farmer, 511 U.S. at 832. To establish an Eighth Amendment deliberate indifference claim, a plaintiff must satisfy both an objective component and subjective component. Farmer, 511 U.S. at 834.
Under the objective component of a conditions-of-confinement claim, a plaintiff must show that he was deprived of “the minimal civilized measures of life’s necessities.” Id. “In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25, 36 (1993). The subjective component, on the other hand, is broken down into three discrete questions: (1) whether a defendant was “aware of
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facts” from which he could draw an inference that the plaintiff was exposed to a “substantial risk of serious harm”; (2) whether the defendant actually drew the inference; and (3) whether the defendant disregarded the risk. Farmer, 511 U.S. at 837. In other words, the subjective component requires a plaintiff to show that the defendant possessed a “sufficiently culpable state of mind.” Id. at 834. Mere negligence, or even gross negligence, will not suffice. Id. at 835-836; see also Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc).
Plaintiffs fail to establish a viable Eighth Amendment claim. Given the multitude of measures that have been put in place by the MDOC to combat, contain, and treat COVID-19 within its prisons, Plaintiffs cannot show that the MDOC has been indifferent to the safety of its prisoners, including Plaintiffs, during this pandemic.
Indeed, as discussed above and as evidenced in the attached exhibits, MDOC has gone to great lengths to combat COVID-19. There has been an unprecedented level of leadership, oversight, and communication with all MDOC facilities. These efforts began well before any prisoners or staff tested positive, and even before the CDC issued its guidelines, and they continue daily as the MDOC works to
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reduce the spread of the virus. And these efforts have been done in conjunction and consultation with MDOC’s partners at the CDC and MDHHS. (Ex. D, Director Aff., ¶ 8.)14
Plaintiffs point to the following alleged failures as evidence that Defendants are “disregarding the grave risk posed by COVID-19”: (1) “fail[ure] to provide adequate space and cleaning/disinfectant supplies” and (2) failure to “provide[] timely and adequate medical care to identify, isolate, and treat people who develop symptoms.” (Plf.s’ refiled motion for TRO, R. 22, Page ID # 853.) But these claims are belied by the various affidavits submitted in support of this brief.
Plaintiffs make much ado about the dorm-style settings in some facilities, arguing they are evidence of the MDOC’s deliberate indifference. But this argument was recently rejected by the Eleventh Circuit. Swain v. Junior, Case No. 20-11622-C, 2020 U.S. App. LEXIS 14301 (11th Cir. May 5, 2020). (Ex. V.) There, the Eleventh Circuit concluded that the district court likely erred in finding that a
14 Director Washington is a member of the Correctional Leaders Association and is an elected representative of the Executive Committee. Director Washington provides guidance to other Midwest states’ directors in developing bests practices to minimize the spread of COVID-19 in correctional facilities. (Ex. D, Director Aff., ¶ 3.)
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corrections department’s “inability to achieve meaningful social distancing” was evidence of the requisite reckless state of mind for an Eighth Amendment deliberate indifference claim. (Ex. V, Swain, at ** 11-12.) Citing Farmer, the court noted that “the inability to take a positive action likely does not constitute ‘a state of mind more blameworthy than negligence.’” (Ex. V, Swain, at *12, quoting Farmer, 511 U.S. at 835; see also Nellson v. Barnhart, 20-cv-00756, 2020 U.S. Dist. LEXIS 66971, *17 (D. Colo. Apr. 16, 2020) (stating that “[a] lack of social distancing in the law library and communal restrooms . . . does not demonstrate that defendants have disregarded the risk of COVID19.”). (Ex. W.) Further, being housed in these dorm-style units does not necessarily correlate with a higher incidence of COVID-19, as the majority of MDOC facilities with these types of units have a very low rate of COVID-positive prisoners. (Ex. X, Chart.)
MDOC has created space within the confines of its limited facilities and resources and is requiring social distancing to the maximum extent possible, including during recreation and dining. To the extent that six-foot distance cannot always be maintained other measures have been taken to promote social distancing, such as head-
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to-toe placement of bunks, staggering of prisoners in chow hall lines, limiting the number of prisoners seated at a table, and delivering meals to prisoners to eliminate the use of the chow hall. (Ex. L, Aff. Morrison; Ex. M., Aff. Braman; Ex. N, Nagy; Ex. O, Aff. Chapman.)
Also, prisoners have been provided three reusable face masks that can be laundered and an ample supply of soap and cleaning materials. In addition, bleach disinfectant is being supplied for use within living quarters, in common areas, and on frequently touched items, such as phones, computers, etc. (Id., Wardens’ Aff.) Likewise, MDOC has put in place a comprehensive system for identifying, isolating, and treating people with COVID-19. (Ex. F, Aff. Dr. McIntyre.)
Thus, despite Plaintiffs’ allegations, MDOC has not disregarded the risk of COVID-19. Rather, MDOC has clearly acted with a conscious regard toward the safety and security of the offenders and staff. It has conducted its duties and responsibilities with the highest degree of integrity and with a great deal of respect for the value and dignity of human life.
Plaintiffs refer the Court to several cases as support for the success of their deliberate indifference claim, but those cases are
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distinguishable from the instant action, as they deal with detainees (not convicted prisoners) and they involved habeas claims for compassionate release. None of these cases support Plaintiffs’ claim of deliberate indifference in this case, where the MDOC has swiftly implemented and enforced robust COVID-19 response measures for the specific purpose of protecting prisoners from the spread and impact of COVID-19.
Courts have determined that there is no likelihood of success on the merits of a deliberate indifference claim where robust COVID-19related measures, similar to those implemented by the MDOC, have been put in place. Nellson v. Barnhart, 20-cv-00756, 2020 U.S. Dist. LEXIS 66971 (D. Colo. Apr. 16, 2020) (concluding that plaintiffs were not likely to succeed on the merits of their Eighth Amendment claim where defendants took numerous steps to reduce the risk of transmission of COVID-19) (Ex. W.); Baxley v. Jividen, No. 3:18-1526, 2020 U.S. Dist. LEXIS 61894 (S.D. W.Va. Apr. 8, 2020) (finding no deliberate indifference where “[d]efendants . . . demonstrated actual knowledge of the risk of COVID-19, and regard it with the seriousness it deserves.”) (Ex. Y.); Amos v. Taylor, Case No. 4:20-CV-7, 2020 U.S. Dist. LEXIS 72532, *28 (N.D. Miss. Apr. 24, 2020) (rejecting Eighth
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Amendment deliberate indifference claim where the defendant “has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus.”) (Ex. Z.); Money v. Pritzker, 20-cv-2094, 2020 U.S. Dist. LEXIS 63599, *61 (ND. Ill. Apr. 10, 2020) (holding that plaintiffs had “no chance of success” on their deliberate indifference claim where defendants had come forward with “a lengthy list of the actions” they had taken to protect inmates) (Ex. AA.)
This Court should apply that same logic here to conclude that Plaintiffs have no likelihood of success on the merits of their Eighth Amendment claim and deny Plaintiffs’ request/motion for TRO and/or injunctive relief.
4. Plaintiffs’ request for early release fails because such relief is not available in a § 1983 claim, it violates the PLRA, and the MDOC does not have authority to release prisoners.
In item 8 of their requested relief, Plaintiffs ask this Court to order MDOC to: “Release lowest-level security inmates to home confinement after quarantine for 14 days.” (Compl., R. 1, Page ID # 54.) There are three reasons this request must be rejected.
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First and foremost, an Eighth Amendment § 1983 action is not the appropriate mechanism to seek the release of an inmate. State prisoners seeking relief in federal court regarding the duration of their confinement can only do so by a petition writ of habeas. Preiser v. Rodriguez, 411 U.S. 475, 487-90 (1973) (holding that a state prisoner requesting immediate release must do so by a habeas petition, not by a § 1983 action); see also Gulley v. Ogondo, Case No. 3:19-cv-612, 2020 U.S. Dist. LEXIS 64193 (D. Conn. Apr. 13, 2020) (applying Preiser to deny a motion for TRO in a COVID-19-related § 1983 action requesting release). (Ex. BB.)
Second, Plaintiffs’ request for this Court to unilaterally release them runs afoul of PLRA. Indeed, the PLRA contains special procedures for consideration of a “prisoner release order.” 18 U.S.C. § 3626(a)(3). Those procedures apply to “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4). A court may not enter a prisoner release order unless it “has previously entered an order for less intrusive relief that
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has failed to remedy the deprivation of the Federal right sought to be remedied” and “the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(1)-(2). After those requirements have been satisfied, only a three-judge court can consider and issue a prisoner release order, and only if it finds by clear and convincing evidence that “crowding is the primary cause of the violation of a Federal right” and “no other relief will remedy the violation.” 18 U.S.C. § 3626(a)(3)(E)(i)-(ii). See Money v. Pritzker, 20cv-2094, 2020 U.S. Dist. LEXIS 63599, *31 (N.D. Ill. Apr. 10, 2020) (Ex. AA.).
Finally, MDOC has no authority to unilaterally release a prisoner unless that prisoner meets the conditions for parole including reaching their earliest release date as required by Michigan’s truth-in-sentencing requirements. See, e.g., Mich. Comp. Laws 791.233(1)(a) and 791.234. And MDOC has taken all reasonable measures within the confines of its parole-related authority to safely reduce its prison population. (Ex. D, pp. 21-22, ¶¶ 28-29.) Again, between April 11, 2020 and May 9, 2020, 995 prisoners were paroled due to MDOC’s reduction efforts. (Id.) As such, Plaintiffs’ release claim fails.
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B. Given the breadth of MDOC’s COVID-19 response efforts, Plaintiffs cannot show that they will suffer irreparable injury absent this Court’s intervention.
Plaintiffs have the burden to show that, without injunctive relief, they “will suffer actual and imminent harm rather than harm that is speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006) (internal quotation marks and citation omitted). “The failure to show irreparable harm, by itself, can justify the denial of preliminary injunctive relief without consideration of the other three factors.” Essroc Cement Corp. v. CPRIN, Inc., 593 F. Supp. 2d 962, 970 (W.D. Mich. 2008). The demonstration of some irreparable injury is a sine qua non for issuance of an injunction. Patio Enclosures, Inc. v. Herbst, 39 Fed. Appx. 964, 967 (6th Cir. 2002).
In COVID-19-related cases, courts have held that where the corrections department is already implementing the measures being sought, there is no irreparable harm. (Ex. W, Nellson, pp. **13-16.) Likewise, courts have determined that the irreparable harm element, as it relates to COVID-19 claims, should be analyzed by asking: “whether Plaintiffs . . . will suffer irreparable injuries even after accounting for
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the protective measures” put in place by the corrections department. (Ex. R, Valentine, Ex R, at *14.)
MDOC is implementing every measure Plaintiffs ask for that is allowed by law to the maximum extent feasible. And, like the general public, they are at risk of contracting the virus even so. Also, like the general public, and to an even greater degree, the MDOC is constantly learning, evaluating, and changing to adapt to this pandemic. After accounting for the extensive protective measures MDOC has put in place, Plaintiffs cannot establish irreparable harm in the absence of this Court’s intervention, and their motion for TRO and/or injunctive relief should be denied.
C. Both the public interest and that of the MDOC strongly weigh against a TRO or injunction.
Departments of Corrections enjoy considerable latitude in the administration of state prisons. Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 126 (1977) (“Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators.”); see also Hanna v. Toner, 630 F.2d 442, 444 (6th Cir. 1980) (noting that “courts, especially federal courts, should be
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reluctant to become involved in the internal administration of state prisons.”). Thus, MDOC has a strong interest in promulgating and implementing its own policies for prison management. And an injunction prohibiting MDOC from doing so would be harmful. See Maryland v. King, ___ U.S. ___; 133 S. Ct. 1, 3 (2012) (“[A]ny time a State is enjoined by a court from effectuating statutes15 enacted by representative of its people, it suffers a form of irreparable injury.”); see also Glover v. Johnson, 855 F.2d 277, 286-87 (6th Cir. 1988) (recognizing that any interference by the federal court in the administration of state prisons is necessarily disruptive).
Further, because responses to this novel and ever-evolving COVID-19 pandemic necessarily change on a rapid basis, any injunction requiring the MDOC to implement certain, specific measures, and only those measures, within certain timeframes, as Plaintiffs seek would
15 While these are MDOC policies and not statutes at issue, this rationale was applied by the Fifth Circuit to corrections policies because the legislature had assigned prison policymaking duties to the corrections department. (Ex. R, Valentine, at *11.) The same is true in Michigan. The MDOC Director has been delegated “full power and authority to supervise and control the affairs of the department, including policymaking authority by the Michigan Legislature.” Mich. Comp. Laws 791.203.
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actually inhibit MDOC’s ability to effectively combat this virus and protect its prisoners. Other courts have already recognized this fact. Valentine, Ex. R, p. *12, (finding harm to the corrections department “because the district court’s order interferes with the rapidly changing and flexible system-wide approach that [it] used to respond to the pandemic. . . .”); Swain, Ex. V, at *15 (noting that the district court’s injunction “hamstrings [defendants] with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented [COVID-19] pandemic); Money, Ex. AA, at *55 (“The judiciary is ill-equipped to manage decisions about how best to manage any inmate population—let alone a statewide population of tens of thousands of people scattered across more than a dozen facilities. And the concern about institutional competence is especially great where, as here, there is an ongoing, fastmoving public health emergency.”)
Finally, while the public certainly has an interest in ensuring the safety and well-being of prison inmates, it also has an interest in a wellregulated and operated prison system, as well as an interest in ensuring convicted offenders complete their required sentences.
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For all these reasons, both the public interest and that of MDOC weigh heavily against the grant of a TRO and/or injunction.
CONCLUSION AND RELIEF REQUESTED Plaintiffs are not likely to succeed on the merits of their Eighth Amendment claim—their requested relief is barred by the Eleventh Amendment, they have failed to exhaust their administrative remedies as required by the PLRA, they cannot show that MDOC has acted deliberately indifferent to their health and safety in the face of the COVID-19 pandemic, and they cannot seek release in the context of a § 1983 action. Additionally, given the multitude of protections that have already put in place by MDOC, Plaintiffs cannot establish that they will be irreparably harmed in the absence of this Court’s intervention. Finally, both the public and MDOC’s interests weigh heavily against a grant of injunctive relief. Therefore, MDOC respectfully requests that this Court deny Plaintiffs’ motion for a TRO and/or preliminary injunction and award costs and attorney fees associated with defending this motion.
Respectfully submitted, Dana Nessel Attorney General
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/s/Kevin J. O’Dowd Kevin J. O’Dowd (P39383) Assistant Attorney General Attorney for State Defendants Michigan Dept. of Attorney General MDOC Division P.O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov Dated: May 12, 2020 CERTIFICATE OF SERVICE I hereby certify that on May 12, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing as well as via US Mail to all non-ECF participants. /s/Kevin J. O’Dowd Kevin J. O’Dowd (P39383)
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-1 filed 05/12/20 PageID.1271 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

No. 2:20-cv-11053 HON. MARK A. GOLDSMITH

Plaintiffs,

MAG. R. STEVEN WHALEN

WILLIS CHAPMAN, NOAH NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,

INDEX OF EXHIBITS

Defendants.

Daniel Manville (P39731) Attorney for Plaintiffs Civil Rights Clinic, MSU College of Law P.O. Box 1570 East Lansing, MI 48823 (517) 432-6866 daniel.manville@law.msu.edu

Kevin J. O’Dowd (P39383) Kristin M. Heyse (P64353) Scott A. Mertens (P60069) Sara E. Trudgeon (P82155) Cori E. Barkman (P61470) Allan J. Soros (P43702) Assistants Attorney General Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov

Case 2:20-cv-11053-MAG-RSW ECF No. 27-1 filed 05/12/20 PageID.1272 Page 2 of 3
Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 kevin@ecllawfirm.com
/
DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING
ORDER & INJUNCTIVE RELIEF
INDEX OF EXHIBITS
Exhibit A............................................... 1-21-20 CDC Press Release Exhibit B...................................................... Executive Order 2020-4 Exhibit C........................................CDC 3-23-20 Interim Guidelines Exhibit D ................................................. Dir. Washington Affidavit Exhibit E.............................................3-17-20 MDOC Press Release Exhibit F........................................................ Dr. McIntyre Affidavit Exhibit G ................................................... Executive Order 2020-29 Exhibit H ..................................................................... DOM 2020-30 Exhibit I............................................. 4-3-20 CDC Recommendation Exhibit J ................................................... Executive Order 2020-59 Exhibit K ........... Comparison of CDC Guidelines & MDOC Actions Exhibit L.................................................Warden Morrison Affidavit Exhibit M ................................................. Warden Braman Affidavit Exhibit N ......................................................Warden Nagy Affidavit Exhibit O .............................................. Warden Chapman Affidavit Exhibit P............................................................ADD Bush Affidavit Exhibit Q .................................... Social Distancing Example Photos Exhibit R.......................................... Valentine, et al. v Collier, et al. Exhibit S ............................................................. Marlowe v LeBlanc Exhibit T............................................................... Burnett v Howard Exhibit U ..................................................PD 03.02.130, eff. 3-18-10 Exhibit V................................................................... Swain v Junior Exhibit W............................................................ Nellson v Barnhart Exhibit X......................................................................... Dorm Chart

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Exhibit Y.................................................................. Baxley v Jividen Exhibit Z ..................................................................... Amos v Taylor Exhibit AA .............................................................. Money v Pritzker Exhibit BB ............................................................... Gulley v Ogondo

Case 2:20-cv-11053-MAG-RSW ECF No. 27-2 filed 05/12/20 PageID.1274 Page 1 of 3 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT A

Case 2:20-cv-11053-MAG-RSW ECF No. 27-2 filed 05/12/20 PageID.1275 Page 2 of 3
CDC Newsroom
First Travel-related Case of 2019 Novel Coronavirus Detected in United States
Press Release
For Immediate Release: Tuesday, January 21, 2020 Contact: Media Relations (404) 639-3286
The Centers for Disease Control and Prevention (CDC) today conﬁrmed the ﬁrst case of 2019 Novel Coronavirus (2019nCoV) in the United States in the state of Washington. The patient recently returned from Wuhan, China, where an outbreak of pneumonia caused by this novel coronavirus has been ongoing since December 2019. While originally thought to be spreading from animal-to-person, there are growing indications that limited person-to-person spread is happening. It’s unclear how easily this virus is spreading between people.
The patient from Washington with conﬁrmed 2019-nCoV infection returned to the United States from Wuhan on January 15, 2020. The patient sought care at a medical facility in the state of Washington, where the patient was treated for the illness. Based on the patient’s travel history and symptoms, healthcare professionals suspected this new coronavirus. A clinical specimen was collected and sent to CDC overnight, where laboratory testing yesterday conﬁrmed the diagnosis via CDC’s Real time Reverse Transcription-Polymerase Chain Reaction (rRT-PCR) test.
CDC has been proactively preparing for the introduction of 2019-nCoV in the United States for weeks, including:
First alerting clinicians on January 8, 2020, to be on the look-out for patients with respiratory symptoms and a history of travel to Wuhan, China. Developing guidance for clinicians for testing and management of 2019-nCoV, as well as guidance for home care of patients with 2019-nCoV. Developing a diagnostic test to detect this virus in clinical specimens, accelerating the time it takes to detect infection. Currently, testing for this virus must take place at CDC, but in the coming days and weeks, CDC will share these tests with domestic and international partners On January 17, 2020, CDC began implementing public health entry screening at San Francisco (SFO), New York (JFK), and Los Angeles (LAX) airports. This week CDC will add entry health screening at two more airports – Atlanta (ATL) and Chicago (ORD). CDC has activated its Emergency Operations Center to better provide ongoing support to the 2019-nCoV response.
CDC is working closely with the state of Washington and local partners. A CDC team has been deployed to support the ongoing investigation in the state of Washington, including potentially tracing close contacts to determine if anyone else has become ill.
Coronaviruses are a large family of viruses, some causing respiratory illness in people and others circulating among animals including camels, cats and bats. Rarely, animal coronaviruses can evolve and infect people and then spread between people, such as has been seen with Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS). When person-to-person spread has occurred with SARS and MERS, it is thought to happen via respiratory droplets with close contacts, similar to how inﬂuenza and other respiratory pathogens spread. The situation with regard to 2019-nCoV is still unclear. While severe illness, including illness resulting in several deaths, has been reported in China, other patients have had milder illness and been discharged. Symptoms associated with this virus have included fever, cough and trouble breathing. The conﬁrmation that some limited person-to-person spread with this virus is occurring in Asia raises the level of concern about this virus, but CDC continues to believe the risk of 2019-nCoV to the American public at large remains low at this time.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-2 filed 05/12/20 PageID.1276 Page 3 of 3
This is a rapidly evolving situation. CDC will continue to update the public as circumstances warrant.
For more information about the current outbreak in China, visit: https://www.cdc.gov/coronavirus/novel-coronavirus2019.html
For more information about Coronaviruses: https://www.cdc.gov/coronavirus/index.html For travel health information: https://wwwnc.cdc.gov/travel/notices/watch/pneumonia-china
### U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES ÿ
CDC works 24/7 protecting America’s health, safety and security. Whether disease start at home or abroad, are curable or preventable, chronic or acute, or from human activity or deliberate attack, CDC responds to America’s most
pressing health threats. CDC is headquartered in Atlanta and has experts located throughout the United States and the world.
Page last reviewed: January 21, 2020

Case 2:20-cv-11053-MAG-RSW ECF No. 27-3 filed 05/12/20 PageID.1277 Page 1 of 4 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT B

5/6/2020 Case 2:20-cv-11053-MAG-RWShWitmerE- ECxeFcuNtivoe .Or2d7er-23020f-0il4e-dDe0c5la/r1at2ion/2o0f StatePoaf gEmeeIDrge.n1c2y 78 Page 2 of 4
Executive Order 2020-04 - Declaration of State of Emergency
EXECUTIVE ORDER
No. 2020-4
Declaration of State of Emergency
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus that had not been previously identiﬁed in humans and can easily spread from person to person.
COVID-19 has been identiﬁed as the cause of an outbreak of respiratory illness ﬁrst detected in Wuhan City in the Hubei Province of China. Person-to-person spread of the virus has occurred in the United States, with some of those occurring in people with no travel history and no known source of exposure. On January 31, 2020, the United States Department of Health and Human Services Secretary Alex Azar declared a public health emergency for COVID-19, and aﬀected state and local governments have also declared states of emergency.

The State of Michigan has been taking proactive steps to prevent and prepare for the spread of this disease. On February 3, 2020, the Michigan Department of Health and Human Services (MDHHS) activated the Community Health Emergency Coordination Center, and has been working diligently with local health departments, health systems, and medical providers throughout Michigan to make sure appropriate screening and preparations for COVID-19 are being made. On February 28, 2020, I activated the State Emergency Operations Center to maximize coordination with state, local and federal agencies, as well as private partners, and to help prevent the spread of the disease. On March 3, 2020, I created four task forces comprising key state government agencies to coordinate the state’s response and work closely with the appropriate community and non-governmental stakeholders to combat the spread of COVID-19 and assess the impact it may have on Michiganders’ day-to-day lives. And

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521576--,00.html

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5/6/2020 Case 2:20-cv-11053-MAG-RWShWitmerE- ECxeFcuNtivoe .Or2d7er-23020f-0il4e-dDe0c5la/r1at2ion/2o0f StatePoaf gEmeeIDrge.n1c2y 79 Page 3 of 4 throughout this time, the State has been working with schools, businesses, medical providers, local health departments, and residents to make sure they have the information they need to prepare for potential cases.
On March 10, 2020, MDHHS identiﬁed the ﬁrst two presumptive-positive cases of COVID-19 in Michigan.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.

The Emergency Management Act, 1976 PA 390, as amended, MCL 30.403(4), provides that “[t]he governor shall, by executive order or proclamation, declare a state of emergency if he or she ﬁnds that an emergency has occurred or that the threat of an emergency exists.”
The Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31(1), provides that “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, . . . the governor may proclaim a state of emergency and designate the area involved.”
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. A state of emergency is declared across the State of Michigan.
2. The Emergency Management and Homeland Security Division of the Department of State Police must coordinate and maximize all state eﬀorts that may be activated to state service to assist local governments and oﬃcials and may call upon all state departments to utilize available resources to assist.

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5/6/2020 Case 2:20-cv-11053-MAG-RWShWitmerE- ECxeFcuNtivoe .Or2d7er-23020f-0il4e-dDe0c5la/r1at2ion/2o0f StatePoaf gEmeeIDrge.n1c2y 80 Page 4 of 4 3. The state of emergency is terminated when emergency conditions no longer exist and appropriate programs have been implemented to recover from any eﬀects of the emergency conditions, consistent with the legal authorities upon which this declaration is based and any limits on duration imposed by those authorities.
Given under my hand and the Great Seal of the State of Michigan.

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Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1281 Page 1 of 27 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT C

Interim Guidance on Management of Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 CPoargoeIDn.1a2v82iruPasgeD2isofe2a7 se 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

Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1283 Page 3 of 27
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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Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1297 Page 17 of 27
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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Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1299 Page 19 of 27
√ 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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Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1300 Page 20 of 27
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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Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1301 Page 21 of 27
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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Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1302 Page 22 of 27
√ 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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Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1303 Page 23 of 27
√ 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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Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1304 Page 24 of 27
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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Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1305 Page 25 of 27
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 spent time

Additional PPE may be needed based on 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 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1308 Page 1 of 38 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT D

Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1309 Page 2 of 38

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

No. 2:20-cv-11053 HON. MARK A. GOLDSMITH

Plaintiffs, V
WILLIS CHAPMAN, NOAH NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,

MAG. R. STEVEN WHALEN
AFFIDAVIT OF HEIDI E. WASHINGTON

Defendants.

Daniel Manville (P39731) Attorney for Plaintiffs Civil Rights Clinic, MSU College of Law P.O. Box 1570 East Lansing, MI 48823 (517) 432-6866 daniel.manville@law.msu.edu

Kevin J. O’Dowd (P39383) Kristin M. Heyse (P64353) Scott A. Mertens (P60069) Sara E. Trudgeon (P82155) Cori E. Barkman (P61470) Allan J. Soros (P43702) Assistants Attorney General Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov

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Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 kevin@ecllawfirm.com
/ AFFIDAVIT OF HEIDI E. WASHINGTON Heidi E. Washington, being first duly sworn, deposes and says as follows: 1. I make this affidavit on personal knowledge, and, if called upon to testify, I can competently testify as to the matters contained herein. 2. I am the Director of the Michigan Department of Corrections (MDOC) and a named defendant in the above-captioned lawsuit. I have been employed with the MDOC in positions of increasing responsibility since 1998, including serving as Warden at two facilities and acting Operations Administrator for the Correctional Facilities Administration (CFA). I have been the Director of MDOC since July of 2015. 3. I serve as an elected representative on the Executive Committee of the Correctional Leaders Association. In my role as representative I lead other Midwest directors in weekly conference
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calls, where we share information related to other states’ responses to COVID-19, and I provide guidance and collaborate with other states’ directors in developing best practices to minimize the spread of COVID19 within our facilities.
4. As part of my official dues as Director, and in collaboration with the Deputy Directors, Assistant Deputy Directors, Administrative Management Team, Chief Medical Officer, Wardens, Deputy Wardens, Assistant Deputy Wardens, and staff, I manage and direct the activities of a multi-disciplinary team responsible for providing for the physical, medical, and psychological well-being of the inmate population.
5. With respect to COVID-19, specifically, I am involved daily in the identification, planning, creation, and implementation of all MDOC policies and directives for preventing the spread of COVID-19 within MDOC facilities. Through this role, I have knowledge of the MDOC’s directives relating to COVID-19 within MDOC facilities, and I have personal knowledge regarding the numerous measures discussed below that have been swiftly implemented throughout MDOC facilities state-wide in order to minimize and manage the spread of COVID-19.
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6. The MDOC acted swiftly in responding to the risk of COVID19 impacting its facilities, well before any prisoners or staff tested positive, and before the CDC issued its Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“Interim Guidelines for Correctional Facilities”), which was posted on March 23, 2020.
7. On March 10, 2020, Michigan Governor Gretchen Whitmer declared a state of emergency after announcing two Michigan residents had tested presumptive positive for COVID-19.
8. On March 11, 2020, the MDOC issued a press release (Attachment 1) advising that it was taking a series of measures to protect its staff, prison population, and the community from COVID-19, though there were no known cases impacting the MDOC. By this time, the MDOC was already consulting with local health departments, the Michigan Department of Health and Human Services (MDHHS), and the Center for Disease Control and Prevention (CDC) to examine whether it should disallow all visits and outside contact from anyone other than MDOC personnel. This press release further advised that information on prevention was being provided to the prison population
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and MDOC staff, and that facilities had undergone additional and more frequent cleaning.
9. On March 13, 2020, the MDOC issued a second press release (Attachment 2) advising that, effective immediately, it was ceasing all in-person visitation of prisoners for the safety of staff, prisoner and the public. As noted in this press release, at this time there were only 12 known community cases of COVID-19 in the State of Michigan, but none impacting the MDOC. This press release discussed staff screening measures being implemented by the MDOC, and that staff displaying any signs or symptoms (i.e. temperature above 100.4) would not be allowed to return to work.
10. On March 16, 2020, the MDOC posted “MDOC Coronavirus (COVID-19) Response Q&A” (Attachment 3) on social media platforms, advising the public of early measures taken to ensure the safety and well-being of the prison population, staff and the public, including but not limited to the following:
a. That the MDOC had ceased all in-person visitation effective March 13, 2020, but while visits were suspended, enhanced services were being made for prisoners to communicate with family and friends, including two free phone call and two free JPay stamps per week.
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b. That transfers between facilities would not be authorized without the approval of the Assistant Deputy Director or higher.
c. That all persons seeking entry into the facility would be subject to screening questions and a temperature check.
d. That extra care was going into cleaning prisons and sanitizing cells, including more frequent cleaning and the authorization to use bleach, and that cleaning products were being placed next to phones and in other high traffic areas.
e. That all prisoners had access to soap, there was an adequate supply, and that an increased supply of soap was being provided in bathrooms and upon prisoner request.
f. CDC posters detailing proper hygiene practices were posted and displayed digitally on TV screens and throughout the facilities.
g. That the MDOC was encouraging and enforcing social distancing throughout its facilities, including running smaller groups for programs and classrooms, and limiting the number of people going to the chow hall at any one time to seat prisoners further apart.
h. That the MDOC would continue to process paroles and releases as scheduled but the Parole Board would be modifying its procedures to minimize in-person attendance, including having personal representatives conduct parole interviews by video.
11. On March 23, 2020, the CDC posted its Interim Guidelines
for Correctional Facilities. This document provided, among other
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things, specific “guidance” to correctional and detention facilities related to COVID-19, outlining “best practices” concerning: (1) operational and communications preparations for COVID-19; (2) enhanced cleaning, disinfecting and hygiene practices; (3) social distancing strategies; (4) visitor policies; (5) infection control; (6) screening of staff, inmate and visitors; (7) medial isolation for those testing positive; (8) healthcare for suspected cases; (9) and considerations for persons at higher risk of COVID-19. By this time, the MDOC was already incorporating these best practices in its COVID19 response strategies.
12. On March 29, 2020, Governor Whitmer issued Executive Order (EO) 2020-29. This order immediately halted all transfers from county jails and local lockups to MDOC. This order also provided that the MDOC “must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which [the MDOC] has already developed and implemented at the facilities it operates.” (Ex G to Defendants’’ response brief.)
13. On April 8, 2020, in furtherance of risk-reduction protocols already in place and the Governor’s EO, I issued Director’s Office
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Memorandum (DOM) 2020-30 (Ex. H to Defendants’ response brief) to the MDOC’s Executive Policy Team, the Administrative Management Team and Wardens, regarding the subject of COVID-19. As noted in the first paragraph of the DOM, “[t]he MDOC is taking many steps to protect staff and prisoners from the spread of COVID-19, including developing isolation areas to place and treat prisoner who tested positive for COVID-19 or who are under investigation for having COVID-19, as well as those who have had close contact with a knownpositive COVID-19 individual.” (Id., pg. 1.)
14. In addition to the early measures discussed above, the DOM includes a detailed outline of the many steps MDOC is taking to address the COVID-19 pandemic, discussing the precautions staff are directed to take to help prevent COVID-19 from spreading. These precautions include, but are not limited to, the following advisories:
a. PERSONAL PROTECTIVE EQUIPMENT (PPE) All staff and prisoners are required to wear a mask. Staff are always required to wear PPE when they are in an isolation area, when transporting a prisoner with a confirmed or suspected case of COVID -19, or at any time the staff member has close contact (i.e., within six feet) with a prisoner who has a confirmed or suspected case of COVID-19. PPE worn in an isolation area shall be removed before
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going to another area of the facility. PPE shall include an N95 or other mask, a gown, eye protection, and gloves.
b. SCREENING OF INDIVIDUALS BEFORE ENTERING A FACILITY OR OFFICE BUILDING
All individuals shall be screened for potential signs and symptoms of COVID-19 before entering a correctional facility or office building. Any individual who shows symptoms of COVID-19 or answers “yes” to any screening question is denied entry. Consistent with Executive Order 2020-36, employees who are feeling sick with any illness must stay home.
c. SOCIAL DISTANCING
In accordance with the CDC recommendations, social distancing recommendations shall always be followed. This requires that there be a distance of at least six feet between all individuals, including programming, classrooms, chow lines, staff screenings, office buildings, etc. Staff meetings and other group interactions of 10 or more individuals shall be limited and technology must be used in place of group interactions, when possible.
d. ISOLATION AREAS
The CFA Deputy Director shall determine where isolation areas are located. A prisoner who tests positive for COVID-19 shall be placed in quarantine in a designated isolation area as soon as resources permit, regardless of their security level or prior criminal history.
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Staffing levels in an isolation area shall be determined by the Warden and only staff approved by the Warden or designee may enter an isolation area. The Bureau of Healthcare Services (BHCS) Administrator shall ensure cleaning procedures are in place for isolation areas. A prisoner shall only be released from an isolation area after they have been cleared by a Physician, and approval from the BHCS Administrator or Chief Medical Officer/Assistant Chief Medical Officer has been obtained.
e. PRISONERS UNDER INVESTIGATION FOR COVID-19
Separate isolation areas shall also be developed for prisoners who are under investigation (PUIs) for having COVID-19 as well as for those who have had close contact with a PUI or known-positive COVID-19 individual (Close Contacts), as necessary. The isolation areas for PUIs shall follow the same criteria as the isolation areas for prisoners with confirmed cases of COVID-19. A PUI shall be placed alone in a cell pending the outcome of their test results. Staff transporting a PUI shall wear the same PPE that is required for transporting a prisoner with confirmed COVID-19.
f. PRISONER PERSONAL PROPERTY
To control the spread of the COVID-19 virus that may be lying dormant, facility staff shall secure and inventory the property of prisoners with confirmed COVID-19, as well as PUIs and Close Contacts if the prisoner is placed in an isolation area. Prisoner property shall not be allowed while in an isolation area. Staff shall wear gowns, face shields, masks, and gloves when handling the property.
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g. ADDITIONAL PRECAUTIONS IN MDOC FACILITIES
i. Alcohol-Based Hand Sanitizer and Wipes
Alcohol-based hand sanitizer and wipes that are provided to correctional facilities by the Department are permitted within the secure perimeter of a correctional facility for use by staff. Hand sanitizer shall not be used in place of good hand washing technique. When not in use, the hand sanitizer and wipes shall be stored in accordance with Chapter 12 of the Environmental and Waste Management Plan. Staff are not be permitted to bring personal alcoholbased hand sanitizer or wipes through the gate.
ii. Gate Security
During the pendency of this pandemic only, Directors of Nursing (DONs) are authorized to possess their Department-issued cellular telephones inside the secure perimeter of a facility. Staff are permitted to bring in the following items without a gate manifest: o Department-issued hand sanitizer and wipes; o Acceptable gloves made of vinyl, nitrile, or latex; o Surgical masks made from polypropylene,
polystyrene, polycarbonate, polyethylene, cotton, or polyester. They may be disposable or reusable (require washing); and o Disposable or reusable fabric gowns.
iii. Visits, Telephone Calls, and JPay (email)
Prisoner visits are suspended until further notice, including visits/programming from volunteers.
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In lieu of visits, prisoners are given two free phone calls (each lasting five minutes) and two free JPay stamps per week.
iv. Attorney Visits
To reduce the number of people entering facilities, attorneys shall be encouraged to speak with their clients via phone instead of conducting an in-person visit. While prisoners may continue to use the GTL phone system to call their attorneys, attorneys may contact the facility to request the opportunity to speak with their clients in lieu of an attorney visit. Accommodations shall also be made to assist attorneys with getting documents signed and returned via email or fax, if requested, to prevent unnecessary attorney visits to the facility. All in-person attorney visits must be approved by the appropriate ADD.
v. Parole Board Representatives
Prisoners are allowed one representative at Parole Board hearings, but the representative may only attend via telephone or other available electronic means.
vi. Large Gatherings
All large in-person gatherings shall be canceled including graduations, trainings, and job fairs. Other events requiring large gatherings are postponed as necessary.
vii. Transfers and cell moves
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No transfers shall be made unless approved by the CFA Deputy Director. Cell moves shall only be made if absolutely necessary (e.g., medical). If a prisoner needs to be transferred to an isolation area, transportation staff shall wear all required PPE.
viii. School and Programming
School classes and programming may be canceled as determined by the Warden or their designee in consultation with the appropriate ADD. The number of prisoners in each program shall be reduced to allow for appropriate social distancing. When possible, prisoners attending the class/program shall be seated a minimum of six feet apart. Face-to-face college courses shall be suspended.
ix. Searches
Clothed-body or thorough pat-down searches of prisoners are suspended for (1) prisoners who have tested positive for COVID-19, (2) PUIs, and (3) are a Close Contact. Similarly, the searches of prisoner living areas are suspended for cells or areas whose occupants (1) have tested positive for COVID-19, (2) are a PUI, and (3) Close Contacts. The search of common areas is still required and shall be completed when prisoners are not present. In the event a suspended pat-down search or cell search is required, the staff conducting the search shall wear PPE.
x. Prisoner Hygiene and Housing Unit Cleanliness
Prisoners shall always have an adequate supply of soap.
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An increased production of soap is authorized to maintain adequate supplies. Bleach is permitted to be used and stored in the housing units, and other areas of the facility as determined by the Warden. Only prisoners who are assigned as a porter may clean with bleach, and they shall be under direct staff supervision while cleaning with bleach.
xii. Food Service
The Business Manager shall ensure extra food is ordered (14 days on hand). The number of prisoners allowed to attend a meal at one time shall be reduced as determined by the Warden. Prisoners eating in the dining hall shall be seated in a fashion that allows them to avoid close contact with each other (i.e., six feet apart) and tables shall be sanitized between use. Prisoners shall stand at least six feet apart while waiting in line to receive their meal.
(DOM 2020-30, Ex. H to Defendants’ response brief.)
15. On April 20, 2020, in furtherance of the DOM, a COVID-19
Protocol Update was provided to all MDOC Healthcare Staff and
Wardens, in recognition of the fact that COVID-19 information,
including protocols and procedures, was changing rapidly as the MDOC
received updated information from the CDC, MDHHS, local health
departments and staff. These updated protocols and procedures include
but are not limited to:
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a. Creating separate housing units dedicated as management units for all COVID-positive prisoners to provide all medically necessary treatment and separate the positive inmates from the rest of the population.
b. Creating a step-down unit for all prisoners who previously tested positive for COVID-19 and have since been cleared by the MDOC’s chief medical officer, are symptom free, and are no longer considered contagious. Prisoners remain in the step-down unit for at least 14 days and until a negative COVID test is obtained before being released to general population.
c. Establishing updated parole/discharge criteria, addressing specific release requirements for COVID positive prisoners, PUIs and those in close contact (i.e., COVID positive prisoners will not be released until they are cleared by health care according to the COVID protocol).
d. Updating screening procedures for necessary intakes and transfers, incorporating current CDC screening guidelines.
e. Updating staff and prisoner COVID-19 evaluation requirements in accordance with CDC guidelines.
f. Updating social distancing protocols applicable to MDOC staff meetings, programs, classrooms, chow lines, and any other type of “gathering” in accordance with current CDC guidelines.
g. Updating hygiene and facility cleaning requirements in accordance with current CDC guidelines.
16. As of April 6, 2020, the MDOC has provided over 152,000
reusable cloth masks to staff and prisoners and continues to ensure that
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all staff and prisoners are wearing masks in accordance with CDC guidelines (every staff and prisoner received three masks to rotate through while soiled masks were laundered).
17. The MDOC is using non-traditional areas, such as gym areas, to cohort PUIs, Close Contacts, and prisoners going through stepdown.
18. The MDOC is reducing the number of prisoners housed in communal living arrangements (dorm-style settings or “cubes”) to the fullest extent feasible to further promote social distancing. Additional measures such as sleeping head-to-toe and every other bunk where space allows have been implemented at the facilities. The MDOC’s normal dorm-style capacity is 12,924 across all MDOC facilities, but presently, the occupancy is closer to 11,300, and will be further reduced whenever feasible as prisoners are further separated, isolated, and paroled. The MDOC is taking unprecedented measures and utilizing previously closed units to house inmates to the extent available staffing levels allow.
19. Portable showers have been purchased and installed for use by prisoners in non-traditional areas to minimize movement of
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prisoners through the housing units and avoid contact with other cohorts to minimize individuals congregating in shower areas.
20. The MDOC has established a COVID positive response unit (“COVID response units”) separated from housing units where nonpositive COVID-19 inmates are housed. These COVID response units are located at Carson City Correctional Facility (DRF), G. Robert Cotton Correctional Facility (JCF) K Unit, Green Oaks Temporary Facility (formerly Maxey Boys Training School), a wing in the Duane Waters Health Center (DWH), and a wing in the C unit at the Charles Egeler Reception & Guidance Center (RGC). These units are used to provide proper medical care to COVID-positive prisoners and to house them separately from the rest of the prison population to contain the virus. Gus Harrison Correctional Facility (ARF) has a step-down unit where recovering inmates are sent.
21. Several MDOC facilities have their own COVID response unit for their own inmates who test positive: JCF (in addition to K Unit), Lakeland Correctional Facility (LCF), Women’s Huron Valley Correctional Facility (WHV), Detroit Reentry Center (DRC) (dialysis), and Macomb Correctional Facility (MRF).
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22. The MDOC is providing COVID testing at all facilities in accordance with CDC guidelines.
23. Mass testing of all prisoners has already occurred at LCF and JCF, including nasal swab testing of all prisoners and antibody testing of prisoners who previously tested negative for COVID-19. Additionally, the Michigan National Guard assisted in nasal swab testing of all inmates housed in MDOC facilities in the Upper Peninsula the week of May 4, 2020. On May 11, 2020, the Guard also assisted in nasal swab testing all inmates housed at Oaks Correctional Facility. On May 12, 2020, all inmates housed at ARF and Thumb Correctional Facility (TCF) will be nasal swab tested, and all inmates housed at Parnall Correctional Facility (SMT) who previously tested negative will receive antibody testing. On May 13, 2020, all inmates at WHV will be nasal swab tested and all inmates housed at DWH and C-unit will receive both a nasal swab test and an antibody test. On May 14, 2020, all inmates housed at St. Louis (SLF) and Central Michigan (STF) Correctional Facilities will receive a nasal swab test.
24. The MDOC is developing a COVID-19 testing plan for staff. For example, on May 13, 2020, about 400 staff in the Jackson area will
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receive voluntary nasal swab testing and antibody testing—this testing was offered to all staff in the Jackson area. On May 14, 2020 we will begin conducting the same staff testing at SLF and STF. Additional plans to offer testing of staff are ongoing.
25. It is not feasible to verbally assess and take the temperature of all 36,000+ prisoners in MDOC custody everyday due to staffing and time constraints. However, PUIs, Close Contacts, and positive cases are closely monitored and assessed daily in accordance with CDC guidelines.
26. Further, to ensure continuing compliance with CDC guidelines and MDOC’s COVID-19 protocols, I conduct daily meetings (remotely, using Microsoft Teams) with my Deputy Directors, Assistant Deputy Directors, the Healthcare Administrator and other top-level staff, and near-daily telephonic meetings with every facility (including Wardens and healthcare), to discuss MDOC’s ongoing COVID-19 response. Further, all MDOC facilities, through their Wardens, provide a daily update that is distributed to the Executive Team addressing all COVID-19 related developments, including but not limited to:
a. Procedures for movement of prisoners within the facility to maintain social distancing.
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b. Staffing levels and staffing issues in daily meetings.
c. Staggering of breaks and lunch times for staff to maintain social distancing.
d. Procedures for maintaining social distancing in chow halls and other areas, such as painting lines in food service area to maintain six-foot minimum distance between prisoners and restricting numbers of individuals per table.
e. Restricting access to programs, classrooms and other gatherings to maintain social distancing.
f. Updated procedures for cleaning cells, including procedures for using bleach.
g. Ensuring that prisoners receive frequent updates and are well informed of any changes in COVID-19 policies and procedures.
h. Ensuring that supplies of masks, soap, gloves and other PPE for prisoners remain in adequate supply, including N95 masks for prisoner transfers when necessary.
i. Ensuring that staff have an adequate supply handsanitizer, cleaning materials and PPE.
27. As of May 11, 2020, at 12:30 PM, of the 13,235 total number
of prisoners tested for COVID-19, 2,152 have tested positive, and there
have been 50 COVID-19 related prisoner deaths, which is a 2.32 percent
death rate of known positives. Test results for URF, KCF, and ECF,
where there are no known cases, are still pending. We have also had
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two COVID-19 related staff member deaths. While the death of a single
prisoner or staff member is tragic, through the collective efforts
discussed above, the MDOC has implemented numerous measures
consistent with, and, in some cases exceeding, CDC guidelines to
minimize these numbers as this unprecedented situation evolves.
28. In addition to MDOC’s swift and robust efforts to contain the
spread of COVID-19 within its facilities, as well as its methods for
containment when positive cases are identified, MDOC has also taken
the following actions to safely reduce its prison population during this
crisis:
a. On March 30, 2020, after seeking and receiving permission from Wayne County Circuit Court, 26 probationers, who were completing the reentry program, were released from custody to community supervision;
b. MDOC accelerated programming for parole violators (such violators are generally only returned for serious issues), so they could be re-paroled quicker;
c. All Holmes Youthful Trainee Act cases were reviewed, and release-eligible cases were sent to the sentencing judge for consideration, resulting in release of 22 trainees;
d. Wardens reviewed files of prisoners who were sentenced prior to Truth-in-Sentencing laws and were eligible for good-time credit but had previously forfeited earned time due to misconduct. In 79 cases, Wardens determined that prisoners were eligible for restoration of forfeited time. Of
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those 79 cases, 55 prisoners were paroled and 15 are still under review (9 received continuances);
e. The Parole Board can request a circuit court sentencing judge or their successor judge to allow the Parole Board to parole a habitual offender prior to the calendar minimum date. The Parole Board sent out 18 letters making such a request and to date have received 3 approvals;
f. The Parole Board has identified cases for public hearing for prisoners who were sentenced to life with the possibility of parole, and those hearings will resume virtually on June 1, 2020;
g. MDOC has also worked with the Parole Board to expedite its review process and reduce its number of deferrals, with the focus being on vulnerable prisoners, i.e., those over the age of 60; and
h. Once the Parole Board grants a parole, MDOC is actively seeking prosecutor waivers of the 28-day wait time before release.
These unprecedented population-reduction methods MDOC has
implemented have resulted in the following parole numbers for weeks
ending on Saturday:
April 11, 2020: 198 paroles
April 18, 2020: 153 paroles
April 25, 2020: 233 paroles
May 2, 2020: 197 paroles
May 9, 2020: 214 paroles
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29. On March 13, 2020, the MDOC population was 38,196. As of May 9, 2020, the MDOC population was 36,781, which represents a population decrease of 1,415 since March 13, 2020. In April 2020, the prison population declined by 866. This is the largest monthly decline in known MDOC history. Previously, the largest prison population drop in a single month was 592 in July, 2007.
30. The MDOC is taking unprecedented measures to address this pandemic, ranging from the opening of closed facilities to help isolate PUIs, Close Contacts, and COVID-positive prisoners, and expediting the review of parole eligibility wherever feasible, while balancing MDOC’s responsibility to protect the safety of the public, and minimizing the risk of releasing COVID-positive prisoners who may endanger their communities.
31. In sum, acting in collaboration with my executive team and staff, and in anticipation of the risks this unprecedented pandemic presents to MDOC’s prison population, staff, and surrounding communities, I have directed the swift implementation of COVID-19 policies and procedures, in consultation with local, state, and national public health officials, to minimize the spread of COVID-19 to the
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fullest extent possible. The MDOC will continue to utilize every means available, along with CDC guidelines, to combat the spread of COVID19 as this unprecedented situation evolves.
32. I make this affidavit on personal knowledge, and, if called upon to testify, I can competently testify as to the matters contained herein.
____________________________ Heidi E. Washington, Director
Subscribed and sworn before me in accordance with Executive Order 2020-74 this ___1_2__ day of May, 2020. _________________________________ Notary Public, State of Michigan County of ___E_a_t_o_n_________________ My commission expires: __8_/_2_4_/2_0__2_3_ Notarized using electronic/remote technology
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Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 1 Affidavit of Heidi E. Washington

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Contact MDOC FAQs MDOC Home

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CORRECTIONS / NEWS & PUBLICATIONS / PRESS RELEASES
MDOC Puts Screening Measures in Place to Protect Facilities
Contact: Chris Gautz, Public Information Officer 517-241-0363, GautzC@michigan.gov
FOR IMMEDIATE RELEASE
MDOC Puts Screening Measures in Place to Protect Facilities
Lansing, Mich. - The Michigan Department of Corrections (MDOC) is taking a series of measures to protect its staff, the prison population and the community as the first presumptive positive cases of coronavirus disease 2019 (COVID-19) have been identified in the state. These are community cases and there is no known connection between these cases and the MDOC. Until further notice, anyone coming into a prison facility will be asked a series of screening questions and may have their temperature checked before being allowed entrance into a prison. This includes all staff, visitors, volunteers and contractors. On Tuesday night, Gov. Gretchen Whitmer declared a state of emergency after announcing two Michigan residents have tested presumptive positive for COVID-19. “Our primary focus is on public safety,” said MDOC Dir. Heidi Washington. “We take this issue seriously and we will do all we can to keep the public safe, as well as those we supervise across this state.” In communities where there are outbreaks, the department will consult with the local health department and the Michigan Department of Health and Human Services (MDHHS) and will potentially disallow all visits and outside contact from anyone other than MDOC personnel. If visits are cancelled, prisoners will have increased time for phone calls and for sending electronic messages to family and friends. Information on prevention is being provided to the prison population and MDOC staff. For the past week, facilities have undergone additional and more frequent cleaning of all facilities. The department is also reviewing all previously scheduled large events including graduations, corrections officer training academies and other training events. Staff and visitors can also access information about their facility by signing up for Nixle alerts.
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To signCuapsfeor2:N2i0x-lecva-1le1r0ts5,3g-oMtAoGw-wRwS.WmicEhiCgaFnN.goo.v2/c7o-5rrecfitleiodns05a/n1d2/s2e0lecPt tahgeepIDa.g1e33fo5r thPeacgoerr2e8ctioofn3a8l facility in your area to register via the Nixle Widget, or text the zip code of the facility you would like to receive updates from to 888777. Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1336 Page 29 of 38 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 2 Affidavit of Heidi E. Washington

Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1337 Page 30 of 38

Contact MDOC FAQs MDOC Home

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CORRECTIONS / NEWS & PUBLICATIONS / PRESS RELEASES
MDOC Halts All Visits at State Prisons
Contact: Chris Gautz, Public Information Officer GautzC@michigan.gov, 517-241-0363
FOR IMMEDIATE RELEASE
MDOC Halts All Visits at State Prisons
LANSING, MICH. The Michigan Department of Corrections (MDOC) will cease in-person visiting of prisoners effective immediately for the safety of staff, prisoners and the public. This will also include outside volunteers and other tours and groups who routinely come into the prisons. There are now 12 cases of coronavirus disease 2019 (COVID-19) in the state, and in seven counties. These are community cases and there is no known connection between these cases and the MDOC. “This was not a decision we arrived at lightly, as we understand and recognize the importance of family contact with the prison population,” said MDOC Director Heidi Washington. “Our primary concern has to be public safety and reducing the number of people who enter our facilities is a key factor in limiting the potential spread of this illness into our prisoner population.” The department will monitor the situation to determine when visits will be restored. During the period without visits, the department is working with its vendors that provide communication services to the prison population on enhanced services that may be able to be offered. For staff working in the facilities, all will be asked a series of screening questions and will have their temperature checked before being allowed entrance into the prison. For those with a temperature above 100.4, they will not be allowed to work. Information on prevention has been provided to the prison population and MDOC staff. For the past week, facilities have undergone additional and more frequent cleaning of the prisons. Staff and visitors can also access information about their facility by signing up for Nixle alerts. To sign up for Nixle alerts, go to www.michigan.gov/corrections and select the page for the correctional facility in your area to register via the Nixle Widget, or text the zip code of the facility you would like to receive updates from to 888777. Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1338 Page 31 of 38 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 3 Affidavit of Heidi E. Washington

Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1339 Page 32 of 38
MDOC Coronavirus (COVID-19) Response Q&A
MI Dept. of Corrections Follow Mar 16 · 7 min read
The Michigan Department of Corrections is committed to ensuring the safety and well-being of staff, the public and those under our supervision. The following information will help address many commonly-asked questions regarding the MDOC’s response to coronavirus (COVID-19) and preventative steps we’re taking to help protect the health of employees, prisoners and those in the community. 1. Q. Is the MDOC allowing visitors at this time? A. No, the Michigan Department of Corrections has ceased all in-person visiting of prisoners effective March 13. This also includes outside volunteers and other tours and groups who routinely come into the prisons. 2. Q. Does this include visits to my local county jail?

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A. The Michigan Department of Corrections does not operate or have jurisdiction over county jails. Please contact your local county or sheriff’s office for information on county jails.
3. Q. Will COVID-19 disrupt or delay the transfer of inmates between facilities?
A. During this time, transfers between facilities will not be authorized without the approval of the Assistant Deputy Director or higher.
4. Q. Will the MDOC continue to process paroles and release prisoners as scheduled?
A. The MDOC will continue to process paroles and release prisoners as scheduled at this time.
5. Q. Is the Parole Board still having public hearings?
A. The Parole Board has started to schedule public hearings, which will be held remotely, while ensuring those who need it have access. Links to these public hearings and information on when they are taking place are being provided on our website here.
6. Q: Is the parole board still having parole interviews?
A. The parole board will continue to conduct parole interviews via video conference as scheduled at this time.
7. Q. Can representatives still attend parole board interviews?
A. UPDATE: March 31, 2020. We are no longer allowing parole representatives to come into the prison for interviews. Please contact the facility the prisoner is housed at to see about options to phone in.
8. Q. Are attorney visits allowed?
A. Yes, attorney visits will continue at this time. All attorneys are subject to the same screening process as facility staff.

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9. Q. Since we can’t see our loved ones is the department offering enhanced communication services?
A. During this time when visits are suspended, we have worked with GTL and JPay to provide enhanced services for you to communicate with your family and friends. Detailed information from those companies is being relayed to the prisoner population, but initially GTL has offered two free, five-minute phone calls each week and JPay is offering two free stamps per week. These both begin Tuesday, March 17.
UPDATE: As of April 15, 2020, in addition to the weekly 2-free JPay Stamps that are credited to your account, JPay will be offering MORE JPay Stamps in the JPay Stamp packages at no additional cost. This Stamp Package promotion will be available through May 6, 2020.
Current Offering:
20 JPay Stamp Bundle: $5.00
50 JPay Stamp Bundle: $10.00
100 JPay Stamp Bundle: $20.00
Bonus Offering:
22 Stamp Bundle: $5.00
TWO additional JPay Stamp
55 Stamp Bundle: $10.00
FIVE additional JPay Stamps
110 Stamp Bundle: $20.00
TEN additional JPay Stamps
We will continue to work with the companies on anything else they may be willing to provide.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1342 Page 35 of 38
10. Q. Do you know when the visitation suspension will be lifted?
A. Not at this time. The department will monitor the situation to determine when visits will be restored.
11. Q. Are deliveries of food and cleaning supplies still being accepted at the facilities? People are worried there is a shortage of food or sanitation supplies.
A. Yes. Deliveries continue as scheduled. The MDOC currently has adequate supplies of food and sanitation items and is monitoring supply levels continually.
12. Q. Will inmates still get their SecurePak orders?
A. Yes. SecurePak is on schedule.
13. Q. Is MDOC handing out bars of soap? What precautions is MDOC implementing regarding inmates washing their hands longer?
A. All prisoners have access to soap. We have increased soap in bathrooms as well as have directed MSI to increase production. CDC posters detailing proper hygiene practices have been posted in prisons and have also been recreated digitally so they play on TV screens throughout our facilities. These are the same posters you will see in your community and throughout State of Michigan office buildings.
14. Q. What is the department doing to encourage social distancing in the facilities?
A. The department continues to urge prisoners not to gather in unnecessary small or large groups and to practice social distancing when possible. We are running smaller groups, such as programs and classrooms, and we have limited the number of people going to the chow hall at any one time so we can seat prisoners further apart.
15. Q. Are prisoners being tested for COVID-19?
A. Facility healthcare staff will meet with prisoners who have presented with symptoms of coronavirus. The MDOC does not make the diagnosis of the coronavirus. The department is following the Michigan Department of Health and

Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1343 Page 36 of 38
Human Services protocol. The department also started a system of mass testing that began at Lakeland and G. Robert Cotton Correctional Facilities in April. The department partnered with the Michigan National Guard to begin facility-wide testing for COVID-19 at facilities in the Upper Peninsula beginning May 4. Every prisoner at each of the six U.P. facilities will be tested during this process with the help of medical specialists from the Michigan National Guard.
16. Q. Do you have tests on site?
A. The department has secured testing kits so the prison population who meet the criteria can be tested quickly.
17. Q. Do prisoners have to pay to get tested?
A. Co-pays will be waived for any prisoner being tested for COVID-19.
18. Q. Are prisoners still receiving regular health care, dental care and medications?
A. Consistent with Gov. Gretchen Whitmer’s Executive Order 2020–17, the MDOC is postponing all non-urgent and emergent healthcare visits. To be clear, if a prisoner is sick, they will still be seen. There are no co-pays for urgent and emergent care as well as for suspected cases of the flu and COVD-19. Appointments for chronic care cases and med lines continue to operate. Medication renewals continue as well. Routine medical and dental visits, including annual health care screenings, will be rescheduled when the issue passes.
19. Q. My loved one has a scheduled release date. Am I still allowed to pick them up at the facility? Can I bring them clothes to change in to?
A. Yes, as of March 23, family and friends of prisoners who are being released may still pick them up at the facility. We are asking that you remain in the parking lot until they come out. The facilities will provide dress out clothing for prisoners being released.
20. Q. Are the classes that inmates take also cancelled?

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A. Face-to-face college classes at all facilities have been suspended. This is also a proactive step to keep all staff, volunteers, contractors, and prisoners safe. The MDOC will work with higher education institutions willing and able to deliver classes as correspondence courses. Core programming and school classes will continue at those facilities not currently under an Influenza quarantine.
21. Q. Is extra care going into cleaning prisons and sanitizing cells?
A. Facilities have undergone increased and more frequent cleaning. Bleach was also authorized for use to clean all facilities. Additional soap is being provided for prisoners and in the bathrooms. Cleaning products haven been placed next to the phones and in other high traffic areas.
22. Q. What actions are being taken to protect officers?
A. For staff working in the facilities, all will be asked a series of screening questions and will have their temperature checked before being allowed entrance into the prison. For those with a temperature above 100.4, they will not be allowed to work. Information on prevention has been provided to the prison population and MDOC staff. Facilities have also undergone additional and more frequent cleaning and the use of bleach has been authorized. The MDOC also provided masks to all prison employees and they are required to wear them at all times during their shift. They can also bring in their own PPE if they prefer theirs over the what the department provides.
23. Q. I’m a staff member and I had training and/or out of state travel scheduled. Is it cancelled?
A. No out-of-state business travel will be allowed through May 15. All in-state business travel should be for essential matters only. We are encouraging staff to refrain from conducting large meetings and instead use email or conference calls. If you had any travel or training scheduled between now and May 15, please speak with your immediate supervisor.
24. Q. Are you going to release prisoners early?

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A. No. The MDOC has no legal authority to release prisoners before their earliest release date. The Parole Board is working seven days a week to expedite paroles for parole eligible prisoners at this time.
25. Q. Are you testing prisoners before they are released on parole?
A. The MDOC is working to expedite the parole release of those individuals who can safely and legally be released at this time. There are a number of steps that are included in the parole release process, which now includes testing for COVID-19 to ensure the individual will not pose a risk to loved ones or the community upon release. As a result, a limited number of parole dates may be changed to accommodate these processes.
Michigan Corrections Public Health

Case 2:20-cv-11053-MAG-RSW ECF No. 27-6 filed 05/12/20 PageID.1346 Page 1 of 2 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT E

Case 2:20-cv-11053-MAG-RSW ECF No. 27-6 filed 05/12/20 PageID.1347 Page 2 of 2

Contact MDOC FAQs MDOC Home

MI.gov

CORRECTIONS / NEWS & PUBLICATIONS / PRESS RELEASES
UPDATE -Two MDOC Employees Test Positive For COVID-19
Contact: Chris Gautz, Public Information Officer GautzC@michigan.gov, 517-241-0363
FOR IMMEDIATE RELEASE Two MDOC Employees Test Posi ve for COVID-19
LANSING, MICH. On Tuesday, March 17, the Michigan Department of Corrections was notified that two of its employees have tested positive for coronavirus disease 2019 (COVID-19). One is an employee at the Jackson County Probation Office, who had a recent history of international travel. The second is an employee at the Detroit Detention Center, who does not have a history of domestic or international travel. These are the first two MDOC employees who have tested positive for COVID-19. The MDOC has been in contact with the individuals and the department is proactively working to determine any other employees and offenders these individuals have been in contact with. “Our primary focus is the health and safety of our staff, the offenders and the public,” said MDOC Director Heidi Washington. “This is a matter we take seriously and are taking the advice of public health professionals and have notified employees who need to be quarantined.” The Detroit Detention Center operates under an interagency agreement between the Detroit Police Department and the Michigan Department of Corrections and holds all pre-arraigned detainees 17 years of age or older in the City of Detroit for up to 72 hours. The detainees are arrested by the Detroit Police Department and are not prisoners of the MDOC. Offenders at that facility are not transferred to MDOC facilities. The department will provide further information as it becomes available. Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus. Information about steps the MDOC is taking in response to the virus is also available here.
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1348 Page 1 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT F

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1349 Page 2 of 80

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

No. 2:20-cv-11053 HON. MARK A. GOLDSMITH

Plaintiffs, V
WILLIS CHAPMAN, NOAH NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,

MAG. R. STEVEN WHALEN
AFFIDAVIT OF DR. CARMEN MCINTYRE

Defendants.

Daniel Manville (P39731) Attorney for Plaintiffs Civil Rights Clinic, MSU College of Law P.O. Box 1570 East Lansing, MI 48823 (517) 432-6866 daniel.manville@law.msu.edu

Kevin J. O’Dowd (P39383) Kristin M. Heyse (P64353) Scott A. Mertens (P60069) Sara E. Trudgeon (P82155) Cori E. Barkman (P61470) Allan J. Soros (P43702) Assistants Attorney General Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1350 Page 3 of 80
Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 kevin@ecllawfirm.com
/ AFFIDAVIT OF DR. CARMEN MCINTYRE Dr. Carmen McIntyre, being first duly sworn, deposes and says as follows: 1. I am the Chief Medical Officer for the Michigan Department of Corrections where I have been employed since December 17, 2017. 2. In general my responsibilities are to help set policy respective to the clinical delivery of healthcare within the MDOC; to chair various committees related to practice oversight and quality improvement including Gender Dysphoria Review Committee, Mortality Review, Infectious Disease Control, Pharmacy and Therapeutics, Medical Services Advisory Committee, and Quality Improvement. I liaise with Corizon Healthcare leadership to improve practice standards and outcomes. 3. I am also employed with Wayne State University where I am Associate Chair of Community Affairs, Director of Public Psychiatry
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Fellowship, Assistant Professor for the Department of Psychiatry and Behavioral Neurosciences.
4. The first case of a prisoner testing positive for COVID-19 was on March 22, 2020. However, he was hospitalized for a non-COVID related health issue at War Memorial Hospital on March 11, 2020. He was transferred to McClaren Northern hospital March 17, 2020, where he was tested for COVID-19 on March 20, 2020 and reported positive March 22, 2020. On March 25, 2020, he was discharged to DWHC to a negative pressure room and was not released from COVID isolation until repeat testing was negative.
5. March 24, 2020 was the first date any inmates tested positive at an MDOC facility. The inmates were isolated and tested on March 22, 2020, when they first became symptomatic.
6. Under my guidance and supervision, the MDOC has implemented specific COVID-19 Infection Control Guidelines. (Attach. 1.)
7. These Infection Control Guidelines address three main issues: Prevention, Screening and Evaluation, and Management.
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Prevention:
8. The MDOC has implemented and advised employees and
inmates of the following COVID-19 prevention steps:
Hygiene:
i. Wash your hands often with soap and water. If not available, use hand sanitizer with at least 60% alcohol content (staff).
ii. Avoid touching your eyes, nose or mouth with unwashed hands.
iii. Cover your mouth and nose with a tissue when coughing, and promptly dispose of the tissue.
iv. Stay home if you are sick. v. Routinely clean all frequently touched surfaces in the
workplace, such as workstations, countertops, keyboards, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. vi. No additional disinfection beyond routine cleaning is recommended at this time. vii. MDOC is requiring that a facemask always be worn by inmates and by staff.
Social Distancing:
i. In accordance with the CDC recommendations to prevent transmission of the COVID-19 virus, it is directed that the social distancing recommendation be followed in all programs, classrooms, chow lines, staff screenings, and any other types of “gatherings.”
ii. This means that there should be a distance of at least six feet between prisoners and staff to the extent 4

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1353 Page 6 of 80
feasible. Given the diversity of room sizes throughout CFA, some facilities may be able to accommodate the current group sizes. However when the normal group size cannot be accommodated with social distancing, rather than removing participants from the activity, it is directed that staff seek a larger space or schedule additional times to run those activities with smaller cohorts so that opportunities for prisoners are not reduced. iii. Staff meetings and other group interactions of 10 or more should be limited. It is recommended that technology be used in place of group interactions when possible. If technology cannnot be used, it is imperative that social distancing be practiced.
Screening and Evaluation:
Intake:
9. The MDOC, with my guidance, has also developed a
comprehensive screening and evaluation protocol that either meets or
exceeds guidelines established by the Centers for Disease Control and
Prevention (CDC) as they pertain to correctional facilities.
10. All inmates arriving to the reception center or transferring
from facility to facility complete basic screening questions with a nurse.
(Attach. 2.)
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11. Inmates complete the same screening questions prior to
being sent to any offsite appointments, i.e. doctor appointments, WRITs, etc….
12. The inmate screening evaluation is also completed on all
inmates who parole or discharge. Evaluation:
13. If an inmate reports signs or symptoms of fever, new onset
(within 14 days) or worsening cough, or shortness of breath, (screening, kite or telephone contact) or answers “yes” to any of the travel screening
questions, the inmate is examined immediately by an RN and referred
directly to a medical provider for evaluation.
14. If the inmate is symptomatic: • The inmate is provided with a facemask as quickly as possible. • The inmate is triaged and assessed in an area that is separate from other inmates separated by six or more feet. • Healthcare workers assessing the inmate implement standard, contact, and airborne precautions, including the use of Personal Protection Equipment (PPE) and eye protection during evaluation. • Escorting officers/staff also implement standard, contact, and airborne precautions, including the use of PPE and eye protection during evaluation. 6

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15. The PPE mandated by the MDOC is consistent with or
exceeds CDC Guidelines and at a minimum consists of gowns, gloves,
NIOSH-certified disposable N95 respirator, and eye protection.
16. If the inmate is an asymptomatic close contact: • The inmate is provided with a facemask. • The inmate is triaged and assessed in an area that is separate from other inmates separated by six or more feet. • Healthcare workers assessing the inmate implement standard, contact, and airborne precautions, including the use of Personal Protection Equipment (PPE) and eye protection during evaluation. • Escorting officers/staff also implement standard, contact, and airborne precautions, including the use of PPE and eye protection during evaluation.
17. The MDOC, with my guidance, has also developed a
comprehensive protocol for diagnosing COVID-19 that either meets or
exceeds guidelines established by the CDC as they pertain to
correctional facilities. This protocol is subject to change as additional
information becomes available.
18. Currently, healthcare looks for the following symptoms to
determine whether or not an individual is a Person Under Investigation
(PUI): 7

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• Fever and/or • Acute respiratory illness (e.g., cough, difficulty breathing).
Clinicians are strongly encouraged to test for other causes of respiratory illness, including infections such as influenza. • Other symptoms include chills, muscle pain, headache, sore throat, repeated shaking with chills, and loss of taste or smell. • Epidemiologic factors that may help guide decisions on whether to test for COVID-19 include: any persons, including healthcare workers, who have had close contact with a laboratory-confirmed COVID-19 inmate within 14 days of symptom onset, or a history of travel from affected geographic areas within 14 days of symptom onset.
19. A PUI is specifically defined as a person suspected of
having symptoms of COVID-19. This designation is made by the
Michigan Department of Health and Human Services (MDHHS) or the
primary care provider based on travel history, exposure to confirmed
cases of COVID-19, and the presence of symptoms.
20. Consistent with CDC and MDHHS guidelines, the
following priorities are observed for testing:
• Priority 1 o Ensures optimal care options for all hospitalized inmates, lessen the risk of healthcare-associated infections, and maintain the integrity of the U.S. healthcare system o Hospitalized inmates
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o Healthcare facility workers with symptoms • Priority 2
o Ensures those at highest risk of complication of infection are rapidly identified and appropriately triaged
o Inmates in long-term care facilities (including prison) with symptoms
o Inmates 65 years of age and older with symptoms o Inmates with underlying conditions with symptoms o First responders with symptoms
21. If MDHHS determines the inmate meets the criteria for a
PUI, specimen testing will be recommended.
22. Inmates are informed of their result promptly, and educated
on their healthcare condition, including prevention and management. Management:
23. The MDOC, with my guidance, has established a
comprehensive inmate management protocol.
24. Inmates are managed, in large part, based on the criteria set
forth in the attached Acuity Scoring & Management Guide (Attach. 3.)
25. For inmates who are to remain onsite or who are discharged
from the hospital, very specific protocols have been implemented (see
Attach. 1, Sec. 3.), including but not limited to:
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• The facilities are to designate a sick room or cell for isolation, i.e a single cell. An inmate who is a PUI is isolated in the sick room or isolation cell. Signs are posted outside of the sick room or cell that clearly describes the type of precautions needed and required PPE.
• The inmate has access to PPE. • The PUI is evaluated by nursing daily and referred to a
medical provider for signs/symptoms of deterioration. Temperature, pulse oximetry, heart rate, and respiratory rate is documented along with screening for worsening symptoms. • Close contacts are identified, evaluated, and quarantined. • The close contacts have their vitals obtained once a day by the RN or any medically licensed/certified personnel and complete the symptom screen. Temperature, pulse oximetry, heart rate, and respiratory rate is documented. If the inmate develops symptoms, they are referred to the medical provider immediately for evaluation and placed in isolation. • A COVID positive inmate is evaluated by nursing twice daily utilizing the MDOC COVID-19 Acuity Scoring and Management Guide. • Appropriate PPE devices are used by health care and custody staff during each encounter. Signs are posted outside of the sick room or cell that clearly describes the type of precautions needed and required PPE. • Access in and out of the cells for the PUI and close contacts who are isolated is limited. Meals are administered in the cell. Inmates are allowed access to showers three times per week. If the inmate must leave the cell, they must wear a mask. Any equipment that is used is sanitized.
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• Quarantine duration for close contacts is 14 days from the date of last contact with the PUI.
26. A lab positive PUI can be housed with another lab positive PUI. PUI’s who have a pending lab test are not housed with other PUI’s with a pending test. They are isolated in a single cell.
27. When possible, close contacts are isolated in a single cell. When this is not possible, close contacts of a single PUI can be cohorted. Housing together cohorts of close contacts from multiple PUI cases should be avoided when feasible. When close contacts of multiple PUIs must be housed together, they are masked, and bunks are arranged head to toe to maximize social distancing and to minimize viral transmission.
28. In accordance with MDHHS guidelines, an inmate is eligible for consideration to be released from COVID isolation following:
• At least 30 days have passed since the onset of symptoms, or since the date of test-confirmation of COVID-19, when onset date is unknown.
• A negative test for COVID-19 has been returned no sooner than day 29 since onset, or date of test when onset date is unknown.
• Resolution of COVID-19 symptoms.
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29. Close contacts of a COVID positive inmate are quarantined for 14 days from the last contact with the COVID positive inmate.
30. If a PUI has a negative test, the PUI and close contacts are released from COVID related precautions if the inmates are asymptomatic. If symptoms remain including fever, they are evaluated by a medical provider prior to release.
31. A PUI or close contact who is being discharged or released will be advised to self-isolate for the appropriate time frame upon discharge.
32. A COVID positive inmate may be housed/remain at the current facility for some or all of the stages toward their recovery.
33. A COVID positive inmate may be transferred to a COVID positive cohort unit.
34. Consideration for transfer is made on a case by case basis by utilizing the MDOC COVID Placement Flow Chart. (Attach. 4.) Factors for consideration include:
• The number of positive cases and close contacts at the current facility.
• The arrangement of housing at the facility. Cubes, dorms, pods, and open bar cells are given preference for consideration to transfer. 12

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35. The MDOC has established specialized units to help treat COVID positive inmates. Eligibility for these units is determined on a case by case basis by the onsite medical team, the regional Medical Director, and the Chief Medical Officer.
36. All staff and contractors are screened prior to entering the facility utilizing the Michigan Department of Corrections Staff Screening Questionnaire. (Attach. 5.)
37. The individual’s temperature is also taken before entry. 38. If a staff member or contractor is deemed to be symptomatic, the individual is sent home where they must isolate for a minimum of seven days since the onset of symptoms. 39. In order to return to work, the individual must be symptom and fever free for 72 hours without the use of fever reducing medications. 40. If a staff member or contractor has traveled outside of the United States to a country designated as a warning level three in the last 14 days, they are sent home and instructed to isolate for a period of 14 days from the time they returned to the United States.
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41. If a staff member or contractor has been a close contact with a COVID positive person without wearing appropriate PPE, the individual is sent home and must quarantine for 14 days from the date of last contact.
42. In order to return to work, the individual must be symptom and fever free for 72 hours without the use of fever reducing medications and completed the 14-day quarantine.
43. For healthcare workers, if in the past 14 days, they have been a close contact of a COVID positive person without wearing appropriate PPE the healthcare worker must check their temperature twice a day, preferably eight hours apart, and self-monitor for any COVID symptoms.
44. If their temperature is 100.0 degrees Fahrenheit or greater or symptoms develop, the licensed healthcare worker is sent home where they must isolate at home for a minimum of seven days since the onset of the fever.
45. In order to return to work, the individual must be symptom and fever free for 72 hours without the use of fever reducing medications.
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46. If the individual develops any additional symptoms or have been a close contact of a confirmed COVID positive patient, they must seek out medical attention. Plaintiffs’ Dr. Adam Lauring:
47. I have reviewed the declaration of Dr. Adam Lauring. (Ex. 25 of Plaintiffs’ motion).
48. In response to paragraph 7 of his declaration, while it is generally true that congregate living settings carry a higher contagion transmission risk than the general community, and incarcerated persons have higher rates of comorbid general and behavioral health disorders than the general population, one must consider the comparators. The majority of our prison population upon release would be returning to the City of Detroit, and Wayne County Michigan. Their cohorts in those settings have higher rates of comorbid disorders and other health and social risks than the general community, which is part of the reason why Michigan, in particular, Detroit/Wayne County are such hotspots for COVID-19. Based on May 6, 2020 data found on the Detroit and MDHHS websites, Detroit has tested 20,272 persons, which is only 2.8% of their population, received results for 18,113, has an
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average wait time of 4.9 days for test results, has had 8,332 cases and 786 deaths. Most would concur that there is vast under identification of the disease, and COVID-related deaths, as well as actual incidence and prevalence are under-reported, in part due to poor testing availability. Detroit’s death rate is 9.4%. Wayne County has reported 17,571 cases, 1,973 deaths, a mortality rate of 11%. The MDOC, however, is testing all individuals who are complaining of symptoms, typically at the point of the complaint. We are also conducing mass testing of all individuals, whether symptomatic or not, in many of our facilities. Once persons suspected of having COVID-19 are identified, they are immediately isolated, their close contacts are isolated and clinically assessed, and COVID positive persons cohorted and isolated separately. These positive patients receive nursing assessments daily, including oxygen saturation and other vital signs. The MDOC as of May 3, 2020 has tested 11% of our population, will have completed mass testing of all the upper peninsula facilities by week’s end, and will move on to mass testing of numerous other facilities soon including antibody testing. The mortality rate has been at 2% when the testing was only conducted
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on symptomatic patients. Now that we are identifying asymptomatic positive cases, I expect our mortality rate to decrease.
49. Hence, within a reasonable degree of medical certainty, I would argue that our prisoners, compared to their Southeastern Michigan comparators, while likely equal in pre-morbid health conditions, have far greater access to healthcare, testing, and quality clinical care resulting in better outcomes than those in the communities from where they came.
50. In response to paragraph 8 of his declaration, the MDOC does not allow visitors, and most contractors and vendors have been excluded as well. Anyone currently entering any MDOC facility is screened including temperature prior to being allowed in the facility. Of course, there are asymptomatic carriers throughout the community. We do not have rapid turnover in the prisons, we have restricted any movement between facilities except for medical management or significant security concerns. Court proceedings have been electronic or postponed.
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51. In response to paragraph 9 of his declaration, it is true that many prisoners live in close quarters allowing person-to-person transmission of contagious diseases. However, the MDOC has greater control of the movement of its residents than is available to the community. Therefore, we have a greater ability to isolate effectively COVID positive persons. The MDOC has taken measures to maximize the opportunities for social distancing, including movement by small units to meals, outdoor activities, reducing the size of or temporarily eliminating groups and classes. The need to sanitize the phones after every use along with community bathrooms and kiosks is in place. The facilities have taken measures to mark out places where prisoners should stand to reinforce social distancing. This information has been reinforced through ongoing JPay messages to the population, communication with the Warden’s Forum and regular communication with the population.
52. In response to paragraph 12 of his declaration, while our infection rate is higher than Michigan county communities, our testing rates are much higher, a large proportion of our positive cases were asymptomatic cases found through mass testing, and our
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mortality rates are lower than many Michigan communities including Detroit and Wayne County.
53. In response to paragraph 13 of his declaration, the MDOC does not use disciplinary segregation for infection control. PUIs are housed singly pending the testing results, which are typically received within 24 hours. If positive, prisoners are cohorted together. Close contacts are cohorted together, separated by PUI when possible, until the PUI’s test results are known. Hospitals are known to isolate individually due to illness, for example, tuberculosis, chicken pox, shingles, measles…, to minimize contagion risk. At the MDOC we do the same, including negative pressure rooms when appropriate for tuberculosis. The short-term use of single cells for medical isolation is not punitive and is within community standards for management of diseases which spread through droplets and fomites.
54. In response to paragraph 14 of his declaration, the MDOC makes soap readily available. During outbreaks, we make bleach-based cleaning solutions more readily available and have done so with this pandemic. In fact, special authorization was provided to allow prisoners to use bleach-based cleaning materials during this pandemic.
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With this pandemic we have added alcohol-based sanitizers available for staff as well.
55. In response to paragraph 15 of his declaration, the MDOC has made several masks available, and required, for all prisoners and staff. PPE is available for staff, both corrections officers and health care staff, as appropriate to the setting.
56. In response to paragraphs 17 and 18, every facility has onsite health care. Many have on-site 24-hour health care, and all have on-call medical providers for all off hours. Our care is evidence- and best-practice based. We are working closely with MDHHS, CDC, infectious disease specialists, and our community hospital providers to develop and constantly update our management protocols. Our access to testing kits and laboratory services has outpaced reported community access.
57. In response to paragraph 19 of his declaration, the MDOC does refer urgent cases to area hospital emergency departments. We have not experienced as many denials of care that members of the community have reported from their emergency departments. We have close relationships and pre-existing contractual relationships with
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many community hospitals, and are having frequent planning meetings with the hospitals, often facilitated by the MDHHS Bureau of EMS, Trauma and Preparedness (BETP) Medical Director Dr. Fales. A majority of our community hospital resources are not in Wayne and Oakland Counties, so their lack of capacity does not significantly impact us.
58. In response to paragraph 20 of his declaration, the MDOC has increased its use of technology to support telemedicine to fulfill our medical provider needs. We have been aggressive in pursuing adequate testing supplies and capacity to address our assertive testing strategy. We have been innovative in getting masks, gowns and other PPE made within our facilities. We have not had disruptions to our medication availability. Any supply chain disruptions that would impact us would at least equally disrupt community care as well. We are monitoring supplies daily to ensure we have the appropriate supplies through our emergency management process. As for providers, we continue to shift coverage as needed and added resources to COVID positive prisons as needed. We continue to recruit for staff throughout this
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process and have even secured resources through MDHHS, and our temporary staffing contracts.
59. In response to paragraph 27 of his declaration, the MDOC has been planning and updating our plan and response since February, in conjunction with MDHHS and the Michigan CDC representatives. We have had a plan in place that has gone through updates throughout the pandemic.
60. In response to paragraphs 28 and 29 of his declaration, we do not endorse the prisoners’ claims and disagree that we are “obviously under-equipped and ill prepared…”. The facts show otherwise.
61. In response to paragraphs 34 and 35, every facility has onsite health care. Many have on-site 24-hour health care, and all have on-call medical providers for all off hours. MDOC’s health care policy (Attach. 6.), specifically addresses in detail the availability of medical services in response to prisoner requests for routine health services and urgent/emergent health services.
62. In response to paragraph 36, MDOC is testing all individuals who are complaining of symptoms, typically at the point of the complaint. We are also conducting mass testing of all individuals,
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whether symptomatic or not, in many of our facilities. Once persons are suspected of having COVID-19 are identified, they are immediately isolated, their close contacts are isolated and clinically assessed, and COVID positive persons cohorted and isolated separately. These positive patients receive nursing assessments daily, including oxygen saturation and other vital signs.
63. In response to paragraph 37, MDOC is following the order of preference for housing of individuals under medical isolation as outlined by the CDC Updated Guidance on Management of Coronavirus Disease 2019 in Correctional and Detention Facilities.
64. In response to paragraph 39, MDOC’s objective is to minimize COVID-19 transmission within its facilities to the fullest extent feasible through the implementation of the specific COVID-19 Infection Control Guidelines discussed above.
65. In response to paragraph 40, we have used the Corizon Risk Scores to help identify persons whose comorbid conditions put them at higher risk for more severe presentation of COVID-19. We have used these scores, as well as our Acuity Scores for persons who are COVID19 positive, baseline lab testing, and frequent monitoring of vital signs
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to identify groups that should receive more assertive monitoring, supportive care, and earlier transition to community hospital.
66. In response to paragraph 41, I can verify that the MDOC is complying with the CDC’s guidelines. Plaintiffs’ Dr. Jeremy D. Young:
67. I have reviewed the declaration of Dr. Jeremy D. Young. (Ex. 26 of Plfs.’ motion.)
68. In response to paragraph 5, I re-state my responses in paragraphs 47-49 supra.
69. In response to paragraph 6, it is true that many prisoners live in close quarters allowing person-to-person transmission of contagious diseases. However, the MDOC has greater control of the movement of its residents than is available to the community. Therefore, we have a greater ability to isolate effectively COVID positive persons. We control the visitors (none currently), contractors and vendors (the few allowed in are all screened prior to entry) and have limited movement between facilities.
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70. In response to paragraph 7, the MDOC has taken many measures to maximize the opportunities for social distancing, including moving prisoners in small groups, placing social distancing markers throughout the facility, staggering visits to dining areas, minimizing the number of prisoners seated at a table, enforcing rules against groups congregating in common areas, delivering meals in lieu of using dining halls, suspending group activities, classes and programs as necessary and/or significantly reducing the size of groups and classes.
71. In response to paragraph 8, I restate my response in paragraph 53 regarding the availability of soap and bleach-based cleaning solutions.
72. In response to paragraph 9, I restate my response in paragraph 54 above regarding the availability of masks and PPE.
73. In response to paragraph 10, I restate my response to paragraph 55 above regarding on-site health care.
74. In response to paragraph 11, I restate my response to paragraph 56 above regarding referral of urgent cases to area hospital emergency departments.
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75. In response to paragraph 12, I incorporate my response to paragraph 5 of Dr. Young’s declaration wherein I re-state my responses in paragraphs 47-49 supra. By way of further response, I state that as compared to the community, we are well-aware of the medical history and current chronic conditions and medications that our prisoners have. We are able identify those at highest risk for severe outcomes from COVID and monitor them closely so we can provide supports and baseline labs.
76. In response to paragraph 22, I can verify that the MDOC has appropriate medical isolation, social distancing, hand hygiene and PPE protocols at all our facilities.
77. In response to paragraph 23, persons in nursing homes typically are limited by cognitive disorders or physical frailty from complying with social distancing and other infection control interventions. While some of our population are similarly disabled, most can understand the education around COVID-19 prevention and can choose to comply or not. Unlike people in some congregate settings, many of our residents are not able to refuse to comply with social distancing and medical cohorting.
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78. In response to paragraph 29, MDOC’s policies have been well informed by and formulated in accordance with the CDC’s specific guidance for carceral settings and have been developed with the input from the CDC’s Dr. McFadden, a medical epidemiologist.
79. I make this affidavit on personal knowledge, and, if called upon to testify, I can competently testify as to the matters contained herein.
____________________________ Dr. Carmen McIntyre Chief Medical Officer, MDOC
Subscribed and sworn in accordance with Executive Order 2020-74 before me This __12____ day of May, 2020.
_________________________________ Notary Public, State of Michigan County of _Eaton_______________________ My commission expires: _8/24/2023__________ Notarized using electronic/remote technology
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1376 Page 29 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 1 Affidavit of Dr. Carmen McIntyre

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1377 Page 30 of 80
Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
OVERVIEW:
Coronaviruses are a large family of viruses. Some cause illness in people, and others, such as canine and feline coronaviruses, only infect animals. Rarely, animal coronaviruses have emerged to infect people and can then spread between people. This is suspected to have occurred for the virus that causes COVID-19. Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS) are two other examples of coronaviruses that originated from animals and then spread to people.
SARS-CoV-2 is a new coronavirus that has not been previously identified. This virus causes the disease of COVID-19. The virus causing COVID-19 is not the same as the coronavirus that commonly circulate among humans and cause mild illness, like the common cold.
This virus was first detected in Wuhan City, Hubei Province, China. The first infections were linked to a live animal market, but the virus is now spreading from person-to-person. It’s important to note that person-to-person spread can happen on a continuum. Some viruses are highly contagious (like measles), while other viruses are less so.
Information regarding COVID-19 in Michigan can be found here: https://www.michigan.gov/Coronavirus
Who is at risk:
Currently, COVID-19 exposure is rapidly increasing in Michigan. Persons at risk for severe disease include people aged 65 years and older; and people with certain health conditions such as chronic lung disease or moderate to severe asthma; serious heart conditions; compromised immune systems; severe obesity; or uncontrolled diabetes. To minimize the risk of spread State health officials are working with healthcare providers to promptly identify, evaluate, and complete diagnostic testing on suspected cases.
The MDOC will comply with all State orders and directives issued intended to address risk and manage illness, which can be found here:
https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455---,00.html
Suspected cases are classified as persons under investigation (PUI). This designation is made by the Michigan Department of Health and Human Services (MDHHS) in conjunction with the CDC guidelines and medical providers performing assessments.
Transmission:
The virus that causes COVID-19 seems to be spreading easily and sustainably in the community (community spread) in some affected geographic areas. Community spread means people have
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Coronavirus 2019 (COVID-19) Guidelines Updated 4/29/2020
been infected with the virus within a specified area, including those who are not sure how or where they became infected.
The virus is thought to spread mainly from person-to-person via respiratory droplets, resembling the spread of influenza.
It could be spread through:
the air by coughing and sneezing. close personal contact, such as touching or shaking hands. touching an object or surface with the virus on it, then touching your mouth, nose, or eyes. in rare cases, contact with feces.
It is possible that a person can contract 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. According to the World Health Organization (WHO), coronaviruses may survive on surfaces for just a few hours or several days. Many factors will influence this, including surface material and weather.
Symptoms: People who have been diagnosed with COVID-19 have reported symptoms that may appear in as few as two days or as long as 14 days after exposure to the virus. Most cases are occurring approximately five days after exposure. Symptoms may include fever, cough, and difficulty breathing (shortness of breath). Other symptoms may include body aches, sore throat, diarrhea, nausea and vomiting. Pneumonia appears to be the most frequent serious manifestation of infection. Older people and people of all ages with severe underlying health conditions such as heart disease, lung disease and diabetes, seem to be at higher risk of developing serious COVID-19 illness.
DEFINITIONS:
Close Contact: a) Being within approximately 6 feet of an individual with COVID-19 for a period of 10 minutes or longer. Close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case while the patient was symptomatic. b) Having direct contact with infectious secretions of a COVID-19 case. One example of this would be being coughed or sneezed on.
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Coronavirus 2019 (COVID-19) Guidelines Updated 4/29/2020
c) To identify close contacts, you determine the date of onset of symptoms and go back two days prior to the onset of symptoms.
COVID-19: An infectious disease caused by the virus SARS-Cov-2
Fever: A temperature of 100.4 F or higher.
Persons Under Investigation (PUI): Persons suspected of having symptoms of COVID-19. This designation is made by the Michigan Department of Health and Human Services (MDHHS) or your primary care provider based on travel history, exposure to confirmed cases of COVID-19, and the presence of symptoms. A PUI has a pending confirmation test.
COVID positive: A PUI who now has a lab confirmed/positive test.
Isolation: Separation of people who are/may be contagious from those who are not sick.
Quarantine: A state, period, or place of isolation. A patient may be placed in quarantine if they have been diagnosed as a PUI by MDHHS or their PCP. A person may also self-quarantine. Selfquarantine is not considered a PUI.
INFECTION CONTROL:
1. PREVENTION: Steps you can take to prevent spread of flu and the common cold will also help prevent COVID-19. a. Hygiene: 1. Wash your hands often with soap and water. If not available, use hand sanitizer with at least 60% alcohol content. 2. Avoid touching your eyes, nose or mouth with unwashed hands. 3. Cover your mouth and nose with a tissue when coughing, and promptly dispose of the tissue. 4. Stay home if you are sick. 5. Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, keyboards, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. 6. No additional disinfection beyond routine cleaning is recommended at this time. 7. MDOC is requiring that a facemask be worn during your shift.
b. Social Distancing:
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
1. In accordance with the CDC recommendations to prevent transmission of the Covid-19 virus, it is directed that the social distancing recommendation be followed in all programs, classrooms, chow lines, staff screenings, and any other types of “gatherings.”
2. This means that there should be a distance of at least 6 feet between prisoners and staff. Given the diversity of room sizes throughout CFA, some facilities may be able to accommodate the current group sizes. However when the normal group size cannot be accommodated with social distancing, rather than removing participants from the activity, it is directed that staff seek a larger space or schedule additional times to run those activities with smaller cohorts so that opportunities for prisoners are not reduced.
3. Staff meetings and other group interactions of 10 or more should be limited. It is recommended that technology be used in place of group interactions when possible. If technology can’t be used, its imperative that social distancing be practiced.
4. Additional information and resources can be found at the CDC, Michigan Department of Health and Human Services (MDHHS), and World Health Organization (WHO): https://www.cdc.gov/coronavirus/2019-ncov/index.html
https://www.michigan.gov/mdhhs/0,5885,7-339-71550_5104_97675--,00.html
https://www.who.int/
2. SCREENING AND EVALUATION for COVID-19
Due to the severity of the COVID-19 disease, the Michigan Department of Corrections has developed a screening and evaluation protocol. As part of the protocol, it will be necessary to screen and limit MDOC visitors and staff into the MDOC facilities. This is an important step to reduce the risk of exposure to the prison population, staff, and attempt to minimize the spread of the virus.
a. Screening 1. Intakes: All inmates arriving to the reception center or transferring from facility to facility will complete basic screening questions with a nurse. This can be completed during the normal intake/transfer assessments. A brief discussion about the screening will be
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
entered into COMS if the patient screens negative. If the patient screens positive, the screening form will be scanned into COMS.
Screening questions: o Have you traveled or reside in an area with coronavirus activity within the last 14 days?  a. If yes, where:  b. Dates: o Have you been in close contact with a Person Under Investigation (PUI) who has tested positive for COVID-19 in the last 14 days?  a. Where:  b. Date:
Presence of symptoms: o Fever  Temperature  Sweats or chills  Sore throat o Lower Respiratory Illness  New onset (within 14 days) or worsening cough  New onset of shortness of breath o GI symptoms  New onset of nausea  New onset of diarrhea
2. Offsite appointments/WRITs:
Patients will complete the same screening questions prior to being sent to their offsite appointment, ie doctor appointments, WRITs, etc.
3. Paroles/discharges: The prisoner screening evaluation will be completed on all inmates who parole or discharge. If the prisoner screens positive the HUM will notify Elizabeth Turner, Stephanie Smoyer, and Marti Kay Sherry via email. The provider will complete an evaluation of the patient. Screening for paroles and discharges: complete within 24 hours before leaving – the closer to the time of leaving the facility, the better.
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Screening for offsites and WRITS: complete within 1-2 hours before they leave. It is recognized that there are times when the facility will not have health care staff 1-2 hours prior to their leaving (i.e. no night shift nurse), in that case, you need to conduct the screening at the latest time possible.
b. Evaluation: 1. If a patient reports signs or symptoms of fever, new onset (within 14 days) or worsening cough, or shortness of breath, (screening, kite or telephone contact) or answers “yes” to any of the travel screening questions, the patient will be examined immediately by an RN and referred directly to a medical provider for evaluation. If there is high concern for COVID-19, based on the initial screening, follow the below PPE recommendations.
2. If the patient is symptomatic: The patient will be provided with a facemask as quickly as possible. The patient will be triaged and assessed in an area that is separate from other patients. Separated by 6 or more feet. Healthcare workers assessing the patient will implement standard, contact, and airborne precautions, including use of eye protection during evaluation (PPE). If there are escorting officers/staff they will implement standard, contact, and airborne precautions, including use of eye protection during evaluation (PPE). Personal Protection Equipment (PPE): a. Recommended personal protective equipment: gowns, gloves, NIOSH-certified disposable N95 respirator, eye protection b. *For donning instructions, see attachment.
3. Evaluating an asymptomatic close contact The patient will be provided with a facemask The patient will be triaged and assessed in an area that is separate from other patients. Separated by 6 or more feet. Healthcare workers assessing the patient including taking a temperature, will put on a facemask, eye protection, gown, and gloves. If they are not taking a temperature, PPE required would
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
be a facemask, eye protection, and gloves. N95 mask is not necessary. If there are escorting officers/staff they will put on a facemask, eye protection, and gloves. N95 mask is not necessary. If the patient is found to be symptomatic, the patient now becomes a PUI and you would follow the PPE recommendations for a symptomatic PUI. After hours: If a medical provider is not available on site for evaluation, the RN will evaluate the patient, complete the MDHHS PUI form and contact the on call medical provider for direction. If there is not an RN onsite, custody shift command will contact the on call medical provider for direction.

4. History/Assessment:

c. Diagnosis:

The medical provider will complete the Human Infection with 2019 Novel Coronavirus Person Under Investigation (PUI) and Case Report Form. https://www.michigan.gov/documents/coronavirus/MDHHS_PUI_For m_Fillable_v04.09.2020_686599_7.pdf The evaluation will be documented in the electronic prisoner health record (COMS). After hours: If a medical provider is not onsite to complete the case report form and evaluation, an RN will complete the form and discuss the results of the form with the on call medical provider.

The CDC clinical criteria for COVID-19 PUIs has been developed based on available information about this novel virus, as well as what is known about Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS). The criteria is subject to change as additional information becomes available.

1. Criteria Fever and/or Acute respiratory illness (e.g., cough, difficulty breathing). Clinicians are strongly encouraged to test for other causes of respiratory illness, including infections such as influenza.
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Other symptoms include chills, muscle pain, headache, sore throat, repeated shaking with chills, and loss of taste or smell. Epidemiologic factors that may help guide decisions on whether to test for COVID-19 include: any persons, including healthcare workers, who have had close contact with a laboratoryconfirmed COVID-19 patient within 14 days of symptom onset, or a history of travel from affected geographic areas within 14 days of symptom onset 2. If a prisoner meets the Person Under Investigation (PUI) criteria, the medical provider must:
A. Call the Michigan COVID-19 Laboratory Emergency Response Network (MI-CLERN) at: 888-277-9894. Between hours of 8 am and 8 pm seven days per week.
B. The Human Infection with 2019 Novel Coronavirus Person Under Investigation (PUI) and Case Report Form will be emailed to the MDOC Covid-19 distribution group: MDOC-COMSCOVID@MI.GOV
C. The COVID-19 notification form will also be emailed to the MDOC COVID distribution group.
D. The medical provider will notify ACMO Buskirk and facility HUM. The HUM will notify the Warden/warden designee.
After hours: If a medical provider is not onsite, the on call medical provider will be responsible for contacting the MICLERN hotline or the regional epidemiologist to discuss the case and confirm the patient meets criteria for testing If the MI-CLERN hotline is closed. Proceed with the protocol and call the next day when the hotline is open. d. Lab testing 1. Effective March 26, 2020 the following priorities will be observed for testing of patients with suspected COVID-19 infection consistent with CDC and MDHHS guidelines: Priority 1
a. Ensures optimal care options for all hospitalized patients, lessen the risk of healthcare-associated infections, and maintain the integrity of the U.S. healthcare system
b. Hospitalized patients
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
c. Healthcare facility workers with symptoms Priority 2
a. Ensures those at highest risk of complication of infection are rapidly identified and appropriately triaged
b. Patients in long-term care facilities (including prison) with symptoms
c. Patients 65 years of age and older with symptoms d. Patients with underlying conditions with symptoms e. First responders with symptoms
2. If MDHHS determines the patient meets the criteria for a PUI, specimen testing will be recommended. Specimen testing is only to be completed if specifically recommended by MDHHS. The specimen test kit will be completed by the medical provider when the provider is onsite and the test kit will be sent to the Garcia Laboratory. Specimens are sampled from the upper respiratory tract (nasopharyngeal and oropharyngeal swab). If a provider is not onsite, an RN can complete the specimen test kit. Please ensure that the NP swab is completed with precise technique. The current testing kits from MDHHS can continue to be used and sent to Garcia. The lab test is listed as “SARS COV 2 RNA, RT PCR (COV19)” in COMS, you can find it in the ID Tab or can search for COV 19 and it will take you to the “S” section for all labs and to the test.
3. The COVID-19 lab test kit inventory worksheet must be completed each time a kit is used for testing. The HUM will secure the tests with the critical tools so they can be accessed after hours.
4. Consider a complete blood count (CBC) and complete metabolic profile (CMP). WBC abnormalities and elevated aminotransferase levels are common abnormalities.
5. Garcia Laboratory must be contacted when a COVID testing kit is completed. https://www.garcialab.com/covid-19-coronavirus-testingupdate/
1-800-888-8598
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Updated 4/29/2020
6. Prisoners must be informed of the result promptly, and educated on their healthcare condition, including prevention, management, etc.
7. If the patient is currently admitted to a hospital, RN Stephanie Smoyer will notify the hospital case manager of the positive result during normal business hours: Mon-Friday 8 am to 430 pm. If the positive result is received after business hours or during the weekend, Dr Coleman will be notified by RN Smoyer and Dr Coleman or designee will notify the hospital of the positive test.
3. MANAGEMENT a. Facility Isolation 1. If the patient is a candidate to remain onsite or discharged from the hospital, the following precautions will be implemented: Designate a sick room or cell for isolation, ie a single cell. A patient who is now a PUI (fever, acute respiratory symptoms, diagnosed after consult with MDHSS), will be isolated in the sick room or isolation cell. Post signs outside of the sick room or cell that clearly describes the type of precautions needed and required PPE. The patient has access to PPE (surgical mask) Close contacts identified, evaluated, and quarantined. At this time, close contacts will not be tested unless. The PUI will be evaluated by nursing daily and referred to a medical provider for signs/symptoms of deterioration. Temperature, pulse oximetry, heart rate, and respiratory rate must be documented along with screening for worsening symptoms. Obtaining a blood pressure is optional. The close contacts will have their vitals obtained once a day by the RN or any medically licensed/certified personnel and complete the symptom screen. Temperature, pulse oximetry, heart rate, and respiratory rate must be documented, BP optional. If they develop symptoms, they will be referred to the medical provider immediately for evaluation and placed in isolation. The COVID positive patient will be evaluated by nursing twice daily utilizing the MDOC COVID-19 Acuity Scoring and Management Guide. Appropriate PPE devices will be used by health care and custody staff during each encounter. Appropriate PPE is defined under
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Updated 4/29/2020
the evaluation section. Post signs outside of the sick room or cell that clearly describes the type of precautions needed and required PPE. Limit access in and out of the cell for the PUI and close contacts who are isolated. Meals will be administered in cell. Allow access to shower three times per week. Allow access to J pay, tablets, and cordless phones. Yard time is allowed but must be separate from general population yard time. If they must leave the room, have them wear a mask. Sanitize any equipment that is used. Quarantine duration for close contacts is 14 days from the date of last contact with the PUI. When a facility has a suspected or confirmed COVID-19 case appropriate notification must be made, including facility postings which must be up for 14 days. Those postings are provided by DTMB to the warden. When a patient returns from an inpatient hospital stay, ER evaluation (does not apply to DWHC), or returning from a WRIT; that patient will be placed in isolation for 24 hours and evaluated by an RN after 24 hours using the COVID prisoner screening evaluation. If the patient screens negative, the patient will be discharged from isolation. If the patient screens positive, the patient will be evaluated by the medical provider. The 24 hr isolation requirement for inpatient stays or ER evaluation does not apply to DWHC. 2. Housing A lab positive PUI can be housed with another lab positive PUI. PUI’s who have a pending lab test should not be housed with other PUI’s with pending test. They should be isolated in a single cell. Close contacts:
a. Ideally, close contacts should be isolated in a single cell. b. When this is not possible, close contacts of a single PUI can
be cohorted. Housing together cohorts of close contacts from multiple PUI cases should be avoided when possible. c. When close contacts of multiple PUIs must be housed together, it is recommended that they be masked, and arrange bunks head to toe to minimize viral transmission. 3. Duration of isolation:
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
As of April 2020 the MDHHS reports RECOVERY data for those alive 30 days since the onset of symptoms. To align with this timeframe MDOC will determine that a person is eligible for consideration to be released from COVID isolation following:
a. At least 30 days have passed since the onset of symptoms, or since the date of test-confirmation of COVID-19, when onset date is unknown.
b. A negative test for COVID-19 has been returned no sooner than day 29 since onset, or date of test when onset date is unknown.
c. Resolution of COVID-19 symptoms. There are three stages in the management of COVID-19
a. Stage 1: This acute care follows initial onset of symptoms and/or identification of infection. This period is for at least two weeks after onset of symptoms. Persons at this stage are considered to be infectious, and are typically most symptomatic at this stage. Some infected persons never develop noticeable symptoms.
b. Stage 2: This is a period of recovery, where severe symptoms are gone, and persons are medically stable. They may still test positive for COVID-19 genetic material, but are thought to be less infectious when no longer symptomatic. This stage is at least through 30 days since the onset of symptoms.
c. Stage 3: Recovered. People at this stage have seen their symptoms resolve, and have had a negative COVID-19 test for viral genetic material.
4. PUIs and Close Contacts Close contacts of a Covid positive prisoner will be quarantined for 14 days from last contact with the Covid positive patient. PUI and close contacts of a PUI: If a PUI has a negative test, the PUI and close contacts will be released from COVID related precautions if the patients are asymptomatic. If symptoms remain including fever, they must be evaluated by a medical provider prior to release. a. Consider alternative diagnosis. Confirm influenza negative, RSV, allergic rhinitis. b. Consider false negative COVID test for the PUI and consider need to retest.
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Updated 4/29/2020
c. Discuss case with RMD. d. When requesting the release of a person with a negative
test who remains symptomatic, it should be communicated that these additional assessments have occurred. A PUI or close contact who is being discharged or released will be advised to self-isolate for the appropriate time frame upon discharge.
5. Location of Isolation for COVID positive patient: A COVID positive patient may be housed/remain at the current facility for some or all of the stages toward their recovery A COVID positive patient may be transferred to a COVID positive cohort unit. a. Consideration for transfer will be made on a case by case basis by utilizing the MDOC COVID Placement Flow Chart. Factors for consideration: i. The number of positive cases and close contacts at the current facility. ii. The arrangement of housing at the facility. Cubes, dorms, pods, open bar cells, etc pose a significant challenge for housing and will be given preference for consideration to transfer. b. Staff are to follow COVID-19 processes for prisoner movement in transitioning between housing settings. Specialized Units a. Eligibility for these units is determined on a case by case basis by the onsite medical team, RMD, and CMO/designee and includes meeting all of the following requirements: b. Stage 1 i. Prisoner has a confirmed COVID-19 diagnosis ii. Less than 14 days since the onset of symptoms, or the prisoner continues to be symptomatic. iii. Determination of which unit will house a prisoner is based on their medical support needs, and available appropriate housing. c. Stage 2
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Updated 4/29/2020
i. Prior to release to Stage 2 the following must be met: 1. The patient is free from fever without the use of fever-reducing medications for 72 hours AND 2. The patient’s other symptoms have resolved (cough, shortness of breath...) AND 3. At least 14 days have passed since the onset of symptoms
ii. Once the patient is cleared to be released, the patient may be released to a step down unit, or may remain in their Stage 1 housing depending on prisoner needs and bed availability. They will continue to be isolated away from general population.
iii. The patient will remain housed at Stage 2, until at least 29 days after symptom onset, or date of first positive test if onset date is unknown, and until a negative COVID test is obtained. The first test can be completed at day 29. If the test returns positive, the patient will remain in Stage 2 and a second test will be completed after 5 days. Subsequent tests will be completed every five days if the until testing returns negative.
d. PPE for the step down unit: MDHHS has updated their recommendation and full PPE (COVID positive PPE protocol) will be worn by all staff working in the step down unit and healthcare staff entering the unit or evaluating patients. Stage 3 i. Once the above criteria have been met, a prisoner may be discharged from COVID medical isolation. ii. Patients may be discharged to a COVID-recovered unit rather than to general population. iii. The PPE requirements are the same as for the general population. iv. When requesting to discontinue isolation it should be communicated that the onsite medical team and RMD have reviewed the cases.
b. Management:
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Updated 4/29/2020
1. WHO and CDC recommend glucocorticoids not be used in patients with COVID-19 pneumonia unless there are other indications (exacerbation of COPD, sepsis.)
2. Symptomatic treatment with antipyretics, cough suppressants, antinausea medications, antidiarrhea medications, or IV fluids as clinically indicated.
3. MDOC COVID-19 Acuity Scoring and Management Guide has been created to assist in management of COVID positive patients.
4. The COVID Placement Flow Chart has been created to assist in identifying appropriate housing for COVID positive patients based on their medical needs and stability.
c. Hospitalization 1. If the patient is in respiratory distress, pneumonia is suspected, or meets criteria on the Risk Scoring and Management Guide, the patient will be transferred to the local ER. The ER and paramedics must be notified this is a PUI confirmed by MDHHS. 2. Transporting officers should implement standard, contact, and airborne precautions, including eye protection (PPE).
d. Emergency response/CPR
1. If a PUI/Covid positive/close contact requires CPR:
a. The patient should have a mask.
b. Responding staff should have full PPE. N95, eye protection, gloves, and gown.
c. Chest compression only CPR should be initiated until the ambu bag is available.
d. Once the ambu bag is available with appropriate filter, the patient’s mask can be removed and the ambu bag applied and CPR continued.
e. Incoming Visitors/Staff/Contractors
1. It is highly recommended that anyone who is not feeling well refrain from working, visiting inmates, etc. especially if they have a fever or cough. Now that there are confirmed cases in Michigan, staff will initiate a basic screening for everyone entering the facility. If anyone screens positive, the visit will be canceled.
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Effective March 15, 2020 prisoner visitation has been temporarily suspended.
3. Staff Screening If a staff person is screened positive, then they should be sent home and then notify Jonathan Patterson (pattersonj6@michigan.gov) letting him know a staff person was sent home. Staff who report contact with a PUI: a. If you come in contact with a PUI who has not received a confirmed diagnosis (lab specimen positive), ie the lab is pending or a lab was never completed, you can come to work and do not require any additional isolation or quarantine measures. b. If the lab specimen of the PUI that you have come into close contact with is positive for COVID-19, you should not come to work and should contact your local health department and primary care provider for additional recommendations. c. Screening questions: See staff screening form.
4. Screener PPE requirements: For staff who are screening and taking a temperature, it is recommended that they wear a face mask and gloves. This should be implemented as supplies are received. There is no need to change gloves between screening unless contact is made with the person being screened or potentially contaminated secretions.
d. Outbreak 1. An outbreak will be declared by the CMO on a case by case basis. Considerations for an outbreak would include if two or more PUI are identified at the facility or one confirmed case identified at the facility. In the event that an outbreak is declared, facility movement will follow the Seasonal Influenza Plan. Please reference the FACILITY ACTIVITIES DURING OUTBREAK section of the influenza protocol. 2. Once an outbreak has been declared at a facility, close contact prisoners no longer require daily assessments. They shall be advised to contact healthcare immediately if they become symptomatic. They would then follow the protocol for a PUI including isolation and testing.
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
3. Environmental Cleaning: The facility will seek approval from the regional sanitation officer to use bleach during cleaning of the facility.

e. Test Kits

1. Obtain and send the following test kits as follows:

Insert a swab into nostril parallel to the palate. Swab should

reach a depth equal to the distance from nostrils to outer

opening of the ear.

Leave swab in place for several seconds to absorb secretion.

Slowly remove the swab while rotating it.

Place the swab inside of the Multi-Collect transport tube and

break off the swabs so the tip is in solution and the stick is

below the cap (make sure the cap is on TIGHT).

Pack up each Multi-Collect transport tube in ITS OWN bio-

hazard bag.

Place the bio-hazard bag upright in the foam provided, inside

the shipping boxes (paperwork and Multi-Collect can be placed

with other bloodwork sent that day).

Place ice-pack inside the box with the specimen.

2. Please notify lab of incoming COVID testing by either phone or email.

Phone:

1-800-888-8598

Email:

stat@garcialab.com

CLEANING
Laundry Recommendations:
Wear disposable gloves and gown when handling dirty laundry from an ill person and then discard after each use. If using reusable gloves, those gloves should be dedicated for cleaning and disinfection of surfaces for COVID-19 and should not be used for other household purposes. Clean hands immediately after gloves are removed. If no gloves are used when handling dirty laundry, be sure to wash hands afterwards. If possible, do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. 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
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
dry items completely. Dirty laundry from an ill person can be washed with other people’s items. Clean and disinfect clothes hampers according as you would for cleaning surfaces. If possible, consider placing a bag liner that is either disposable (can be thrown away) or can be laundered. Training must be provided to Laundry Operations prisoner workers – based on written policies (Job Safety Analysis):
• Use of equipment (Washers and Dryers) Safety features and cautions Correct operation
• Procedures – Cross contamination (surfaces, including carts and tables, contacted by soiled laundry disinfected prior to contact with clean laundry). No items on the floor. Biohazards General cleanliness of room and hygiene Personal Protective Equipment (PPE) available and used (elbow – length rubber gloves, waterproof apron and chemical splash goggles) Handling and dispensing laundry chemicals
Floors, walls ceilings and attached equipment (i.e. plumbing, light fixtures) easily cleanable, non-absorbent. Lighting – minimum of 50-foot candles recommended. MRSA informational poster (Infection Control In Laundry Areas); spray disinfectant available. Eye wash station (if laundry chemicals SDS’s specify); weekly check. Sorting tables non-absorbent materials; separate for clean and dirty laundry recommended or disinfected between uses. Laundry carts must be constructed of non-absorbent materials and capable of being cleaned and disinfected; separate for clean and dirty laundry recommended or disinfected between uses. Hand washing sink available and equipped with hot and cold or tempered water, antibacterial soap dispenser, paper towels (or electric hand drying device) and fire-safe waste basket. Cleaning cordless phones and tablets: Use the previously approved surface sanitizing wipes for Healthcare. Clorox Health Care Hydrogen Peroxide Cleaner Disinfectant Wipes. Make sure they are not dripping or oversaturated and wipe down the tablet or phone thoroughly giving manufacturers recommended contact time before reissue.
Sanitization:
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Facilities need to ensure they are sanitizing equipment for staff use. Telephones; handcuffs; radios, restraint chairs; emergency equipment (e.g. shields, helmets, gear); and other equipment exchanged by staff should be cleaned frequently. Facilities should also sanitize any equipment that is being used by prisoners. An example would be pull up bars and other equipment in the weight pit.
Recommendations on Cleaning and Securing Property:
A. PROPERTY
1) The inmate’s property may be secured immediately, but it is preferable to wait for 24 hours before cleaning and disinfecting the areas most used by the inmate.
2) PPE for those securing the property. For officers who are securing the inmates property, they should wear disposable gloves and a gown when handling belongings and dirty laundry from an ill person and then discard after each use. Clean hands immediately after gloves are removed. Avoid shaking dirty laundry to minimize the possibility of dispersing virus through the air. Keep soiled items away from your body. 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. Place all used disposable gloves and other contaminated items in a lined container before disposing of them with other waste. Clean your hands (with soap and water or an alcohol-based hand sanitizer) immediately after handling these items. Soap and water should be used preferentially if hands are visibly dirty.
Clean and disinfect clothes hampers according to guidance below for surfaces. If possible, consider placing a bag liner that is either disposable (can be thrown away) or can be laundered.
3) Recommendations for a Bay or Pod with a large group of inmates living together: the PUI should be isolated and the bay cleared of all close contacts. The room should be cleaned and disinfected as recommended by the CDC. If possible, wait at least 24 hours before conducting the cleaning and disinfection of the pod. The disinfection process will kill any remaining alive virus instantly. Once that process is completed, the other inmates may return as they do after routine cleaning of any pod.
B. CLEANING AND DISINFECTION
CDC recommendations:
It is recommended to close off areas used by the ill persons and wait as long as practical before beginning cleaning and disinfection to minimize potential for exposure to respiratory droplets. Open outside doors and windows to increase air circulation in the area. If possible, wait up to 24 hours before beginning cleaning and disinfection.
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Close off areas used by the patient. Open outside doors and windows to increase air circulation in the area and then begin cleaning and disinfection. Cleaning staff should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the COVID-19 patient focusing especially on frequently touched surfaces. If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. For disinfection most common EPAregistered household disinfectants should be effective.
For soft (porous) surfaces such as carpeted floor, rugs, and drapes, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces.
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, or use products with the EPA-approved emerging viral pathogens claims that are suitable for porous surfaces.
C. PPE for CLEANING AND DISINFECTION
Cleaning staff should wear disposable gloves and gowns for all tasks in the cleaning process, including handling trash. Gloves and gowns should be compatible with the disinfectant products being used. Additional PPE might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash. Gloves and gowns should be removed carefully to avoid contamination of the wearer and the surrounding area. Be sure to clean hands immediately after removing gloves. Cleaning staff should immediately report breaches in PPE (e.g., tear in gloves) or any potential exposures to their supervisor. Cleaning staff should wear disposable gloves and gowns for all tasks in the cleaning process, including handling trash. Gloves and gowns should be compatible with the disinfectant products being used. Additional PPE might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash. Gloves and gowns should be removed carefully to avoid contamination of the wearer and the surrounding area. Be sure to clean hands immediately after removing gloves. Cleaning staff should immediately report breaches in PPE (e.g., tear in gloves) or any potential exposures to their supervisor.
Relevant sections of each of the following CDC guidance documents were compiled to create these recommendations for this unique population and setting:
https://www.cdc.gov/coronavirus/2019-ncov/prepare/cleaning-disinfection.html
https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaningdisinfection.html
https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-ihe-response.html
https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-prevent-spread.html
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Coronavirus 2019 (COVID-19) Guidelines Updated 4/29/2020
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Coronavirus 2019 (COVID-19) Guidelines Updated 4/29/2020
Attachment I: Pandemic Situation: Pandemic COVID-19 Plan.
I. Specific Planning
In the event that the World Health Organization, CDC, and Chief Medical Officer have declared an MDOC institution to have a highly virulent coronavirus outbreak, the institution Emergency Management System and the Central Office Emergency Services Manager shall be notified. The Chief Medical Officer, Medical Practitioner and Health Unit Manager (HUM) shall be included in the institution command staff. The institution shall provide contact information for the warden, and another person who will serve as the alternate decision maker.
In the event of a declared outbreak of highly virulent coronavirus in the MDOC, all activities shall be coordinated through the MDOC Emergency Services Manager and local and state health agencies. All internal and external offender movement will be strictly curtailed. A written plan must be in place to include:
A. Deliver medications to prisoner cells if medication lines have to be canceled due to a declared emergency at the institution.
B. Maintain sanitation levels within the facility with minimum staff and prisoner workers.
C. Reporting increase in coronavirus cases, and medical resources available in the institution. (Note: This information must be sent daily during a Declared Emergency, due to coronavirus, to the Health Services Administrator, Assistant Health Services Administrator, Assistant Chief Medical Officers, and Chief Medical Officer.)
D. All contingency plans, which are to be immediately implemented, including: food and re-hydration bags delivered to housing units designated for housing offenders with confirmed coronavirus. Actions that will be triggered if the outbreak is declared a disaster, including the initiation of the Institutional Disaster Plan.
PANDEMIC CORONAVIRUS PLAN:
Mode 1: Standby Mode WHO Phase 4: Small cluster(s) with limited human-to-human transmission but spread is highly localized, suggesting that the virus is not well adapted to humans.
FGR Stage 2: Confirmed human outbreak overseas.
Command and Management: (address facility management and where work occurs)
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Michigan Department of Community Health (MDCH) is in Standby Mode for NonPharmaceutical Measure Implementation (NPI). State Emergency Operating Center (SEOC) would be in a Standby Mode. Ensure inter-pandemic and pandemic alert activities/responses are accomplished or in place. Review COOPs, complete cross training.
Human Resources: (address HR tools and absenteeism)
Review COOPs-all staff. Educate staff on the impact of pandemic coronavirus (Management of Human Capital).
Alternate Work Sites/Telecommuting, Modification of Assigned Duties, CrossTraining of Personnel, Conversion to 24/7 Operations – Department-Wide, Rotation of Staff, Just-in-Time Training for Personnel and Managing an Unpredictable Work Force and Environment. Ensure understanding of impact of pandemic coronavirus on employees (ProfessionalPersonal Preparedness). Family Emergency Preparedness Plan (mandatory departmental training). Job Go-Kits with critical document and equipment. Employee awareness of their 24/7 roles/responsibilities in PH emergency response. Establish/implement policies to be employed during a period of pandemic. Inter-agency mutual aid agreements to augment essential functions. Departmental policies to recognize and support employees who demonstrate extraordinary commitment in time of public health emergency.
Communications: (address internal and external communications and tools used)
Public service announcements, a central hotline (including link to current hotline information on the MDOC website), shall be prepared to be activated in the event of a coronavirus pandemic in the MDOC. The Chief Medical Officer and MDOC Public Information Officer shall be responsible for maintaining the accuracy of the information posted on the hotline. Medical briefings shall be scheduled based on the declared pandemic phase. Time, place, and content of the briefing will be determined by the Chief Medical Officer and the Public Information Officer.
Education: (address need to protect employees/offenders if needed)
The Bureau of Health Care Services in conjunction with the Professional Development Section shall develop a comprehensive program of education, for offenders and staff, related to pandemic coronavirus that includes the following topics:
Signs and symptoms of coronavirus.
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Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Infection prevention and control procedures including proper hand washing techniques, cough etiquette, and the use of isolation and segregation to control spread of coronavirus.
Response/Operations: (address department’s response as needed)
Institution nurses shall utilize the Electronic Medical Record Nursing Assessment for Respiratory Illness to document assessments of patients that complain of symptoms strongly suggestive of coronavirus. If the nurse conducting the assessment notes all sentinel symptoms of coronavirus noted on the form, the HUM shall be notified immediately. Additionally, the nurse conducting the assessment shall clearly note the presence of coronavirus symptoms in the patient’s electronic medical record. (These records shall also note laboratory confirmation of the pandemic coronavirus virus, as needed.) The HUM or Nursing Supervisor will daily review the electronic medical records of any prisoners presenting with symptoms of pandemic coronavirus, diagnostic testing will be performed, and antiviral medication will be administered as available. The institution HUM or designee shall review appointment information to ascertain those patients being treated for the common symptoms of coronavirus daily during a pandemic coronavirus outbreak.
Case Reporting:
Each HUM shall report the number of cases of pandemic coronavirus to following, Health Services Administrator, Chief Medical Officer, and State Infection Control Coordinator daily.
Mode 2: Standby Mode WHO Phase 5: Larger cluster(s) but human-to-human spread still localized, suggesting that the virus is becoming increasingly better adapted to humans, but may not yet be fully transmissible (substantial pandemic risk). FGR Stage 2: Confirmed human outbreak overseas.
Command and Management: (address facility management and where work occurs)
MDCH is in Alert mode for NPI. SEOC is in Standby Mode and can be elevated if situation deems necessary. Ensure inter-pandemic and pandemic alert activities/responses are accomplished or in place. Provide fit testing and a supply of respirators for all employees who have the potential of coming into contact with anyone who has pandemic. This includes custody, healthcare, or any staff who may be assigned in a position where there is potential contact with prisoners quarantined for pandemic coronavirus.
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Coronavirus 2019 (COVID-19) Guidelines Updated 4/29/2020
Human Resources: (address HR tools and absenteeism)
Prepare for increased absenteeism of staff and assess sick leave/administration policies for employees. Ensure capability for cross training within agency. Ensure compensation for those performing outside of job description. Communicate with third party insurance and relay to employees any pertinent information.
Communications: (address internal and external communications and tools used)
All external communications will be addressed by the Public Information Officer in consultation with the Chief Medical Officer.
Education: (address need to protect employees/offenders if needed)
Space and accommodation for meals and sleep must be identified for those staff who will not be returning to their homes during the coronavirus outbreak.
Response/Operations: (address department’s response as needed)
All institutions shall designate an area that may be used for quarantine purposes when the number of infectious and exposed contacts exceeds the number of single cells. The quarantine area must be self-contained (i.e. have bathing and toilet facilities), for exclusive use by ill offenders.
Case Reporting:
Each HUM shall report the number of cases of pandemic coronavirus to the Health Services Administrator, Assistant Health Services Administrator, Assistant Chief Medical Officers, Chief Medical Officer, and State Infection Control Coordinator daily.. The BHCS State Infection Control Coordinator shall be responsible for reporting outbreaks of pandemic coronavirus to the Michigan Department of Community Health, Chief Medical Officer, Deputy Director CFA/FOA, and the MDOC Director’s Office as soon as the presence of an outbreak in an institution is confirmed. The Human Resources Office upon notification must report all self-reported cases of pandemic coronavirus among staff that have been confirmed by their medical practitioner, to the facility HUM/designee without employee identifiers. All employee cases shall be self-reported. The HUM/designee shall also report these cases to the Regional Infection Control Coordinator.
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Coronavirus 2019 (COVID-19) Guidelines Updated 4/29/2020
Mode 3: Alert Mode WHO Phase 6: Pandemic phase: increased and sustained transmission in general population. FGR Stage 3: Widespread human outbreaks in multiple locations overseas.
Command and Management: (address facility management and where work occurs)
MDCH is in Alert mode for NPI. SEOC is in Standby Mode and can be elevated if situation deems necessary. Ensure inter-pandemic and pandemic alert activities/responses accomplished or in place. Complete review COOP’s, complete cross training.
Human Resources: (address HR tools and absenteeism)
Continue employee education/risk messaging. Update policies for sick or administrative leave as needed. Assess potential gaps in critical functions. Communicate with third party insurance and relay to employees any pertinent information.
Communications: (address internal and external communications and tools used)
All external communications will be addressed by the Public Information Officer in consultation with the Chief Medical Officer. Address rumor control.
Mode 4: Alert Mode WHO Phase 6: Pandemic phase: increased and sustained transmission in general population. FGR Stage 3: Widespread human outbreaks in multiple locations overseas.
Command and Management: (address facility management and where work occurs)
MDCH is in Alert Mode for NPI. Ensure inter-pandemic and pandemic alert activities/responses are accomplished or in place. Complete review COOPs, complete cross training.
26

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1403 Page 56 of 80
Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Human Resources: (address HR tools and absenteeism)
Continue Employee Education/risk messaging. Review COOP’s Prepare for increased absenteeism of staff and assess sick leave/administration policies for employees. Ensure capability for cross training within agency. Ensure compensation for those performing outside of job description.
Communicate with third party insurance and relay to employees any pertinent information. Address Rumor Control
Communications: (address internal and external communications and tools used)
All external communications will be addressed by the Public Information Officer in consultation with the Chief Medical Officer.
Employee Health/Education: (address need to protect employees/offenders if needed)
Ensure that the institution has a full 5-day supply of personal protective equipment (PPE) including gloves, surgical masks, N95 respirator masks, eye shields and gowns for all medical staff. Ensure that the institution has a 5-day supply of gloves and surgical masks for all staff having direct contact with offenders.
Response/Operations (as appropriate): (address department’s response as needed)
All institutions shall follow normal operations. All MDOC institutions shall maintain adequate emergency medical pandemic coronavirus supplies which includes antiviral medication (as available), vaccines (as available), gloves, and respirators of all sizes for use by health care staff in the health services area and an emergency non-medical coronavirus supply cart to be kept where needed in a secured and locked area. Supplies must include:
A minimum of a 30 day supply of all routinely used medical supplies including respirator masks, vaccine (as available), anti-viral medication (as available), non-alcohol based hand sanitizer, gloves, and masks (for at least 10% of the offender population). Mode 5: Monitoring Mode
WHO Phase 6: Pandemic phase: increased and sustained transmission in general population.
FGR Stage 4: First human case in North America.
Command and Management: (address facility management and where work occurs).
27

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1404 Page 57 of 80
Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
If not done already, activate CHECC protocols and Incident Management System. SEOC will be in Monitoring or Activation Mode, depending on the situation. Coordination with SEOC, regional and local partners.
Human Resources: (address HR tools and absenteeism).
Assess employee absenteeism/cross-training needs/preparedness. Implement emergency policies as needed.
Communications: (address internal and external communications and tools used).
In the event of a pandemic coronavirus outbreak at a MDOC facility, a prepared notice of the coronavirus outbreak shall be posted at the facility entrance. The Chief Medical Officer and the MDOC Public Information Office shall be responsible for disseminating information to the families and visitors of MDOC inmates as needed during periods of social distancing. Public service announcements, a central hotline (including link to current hotline information on the MDOC website), shall be activated in the event of an coronavirus pandemic in the MDOC. The Chief Medical Officer and MDOC Public Information Officer shall be responsible for maintaining the accuracy of the information posted on the hotline.
Employee Health/Education: (address need to protect employees if needed).
Social distancing within an institution shall be implemented when the institution is declared to be at Pandemic Phase 4. Health care and other staff who must have close contact with the pandemic coronavirus patient (i.e. with-in 6 feet) shall wear a respirator.
Response/Operations (as appropriate): (address department’s response as needed).
All institution pharmacies shall secure a 30-day supply of medications deemed necessary to maintain life or prevent progression of a life-threatening disease. MDOC will not independently stockpile vaccines or antiviral medications. MDOC will follow Centers for Disease Control guidelines for procurement and distribution of vaccines and antiviral medications. “Re-hydration Bags” and re-hydration formula; the re-hydration bag is for offenders who have contracted the flu and are experiencing hydration problems due to vomiting. The re-hydration bags contain powdered broth packets, juice and saltine crackers and shall be obtained from Foodservice. Social distancing within an institution shall be implemented when the institution is declared to be at Pandemic Phase 4. Social distancing includes the following actions:
28

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1405 Page 58 of 80
Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Cancellation of all elective or nonessential trips outside of the institution including elective clinic appointments, scheduled elective tests and surgical procedures, intersystem transfers and court visits upon the direction of the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. All recreational activities outside of the housing units shall be stopped upon the direction of the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. Suspension of visits as determined by the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. Offenders whose work assignment places them in close contact with others, e.g., porters, meal distribution, shall be required to wear surgical masks while on duty. Masks may be worn up to 6 hours. Efficacy is dependent on how much the mask is soiled with saliva or respiratory secretions. Isolation and Quarantine: Patients with confirmed pandemic coronavirus shall be admitted to single cells in the institution when space allows. Additionally, the patients may be admitted to a multi-bed housing unit. When admitted to these locations, respiratory/droplet isolation techniques shall be employed. The institution nurses and Medical Practitioner shall be responsible for ordering isolation when necessary. The MDOC Chief Medical Officer shall be responsible for declaring the necessity of quarantine of a facility. Co-pay shall be waived for an offender exhibiting coronavirus symptoms during a pandemic coronavirus setting, as provided for in PD 03.04.101, Prisoner Health Care Co-payment.
Mode 6: Monitoring Mode
WHO Phase 6: Pandemic phase: increased and sustained transmission in general population.
Command and Management: (address facility management and where work occurs).
CHECC activated, ICS used to manage the incident. Activate COOP plans if needed. Monitor agency-wide on daily basis to identify number of staff available. Predict future unavailability of staff.
Human Resources: (address HR tools and absenteeism).
Monitor stressors on staff. Monitor absenteeism. Assess adequacy of leave polices.
29

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1406 Page 59 of 80
Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines
Updated 4/29/2020
Monitor third party insurance coverage.
Communications: (address internal and external communications and tools used).
All external communications will be addressed by the Public Information Officer in consultation with the Chief Medical Officer. The Chief Medical Officer and MDOC Public Information Officer shall be responsible for maintaining the accuracy of the information posted on the hotline.
Employee Health/Education: (address need to protect employees if needed).
Surgical Masks shall be used for actively coughing patients during movement and mandatory programming during phase 4-6 as long as supplies are available.
Response/Operations (as appropriate): (address department’s response as needed).
MDOC will not independently stockpile vaccines or antiviral medications. MDOC will follow Centers for Disease Control guidelines for procurement and distribution of vaccines and antiviral medications. “Re-hydration Bags” and re-hydration formula. The re-hydration bag is for offenders who have contracted the flu and are experiencing hydration problems due to vomiting. The rehydration bags contain powdered broth packets, juice and saltine crackers and shall be obtained from Foodservice. Social distancing within an institution shall continue. Social distancing includes the following actions: Cancellation of all elective or nonessential trips outside of the institution including elective clinic appointments scheduled elective tests and surgical procedures, intersystem transfers and court visits, upon the direction of the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA.
All recreational activities outside of the housing units shall be stopped upon the direction of the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. Suspension of visits as determined by the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. Isolation and Quarantine: Patients with confirmed pandemic coronavirus shall be admitted to single cells in the institution when space allows. Additionally, the patients may be admitted to a multibed Housing Unit. When admitted to these locations, respiratory/droplet isolation techniques shall be employed. The institution nurses and Medical Practitioner shall be responsible for ordering isolation when necessary. The MDOC Chief Medical Officer shall be responsible for declaring the necessity of quarantine of a facility.
30

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1407 Page 60 of 80 Michigan Department of Corrections
Coronavirus 2019 (COVID-19) Guidelines Updated 4/29/2020
Co-pay shall be waived for an offender exhibiting coronavirus symptoms during a pandemic coronavirus setting, as provided for in PD 03.04.101, Prisoner Health Care Co-payment.
Mode 7: Recovery Mode WHO Phase 6: Pandemic phase: increased and sustained transmission in general population.
FGR Stage 6: Recovery and preparation for subsequent waves.
Command and Management: (address facility management and where work occurs).
Return CHECC to Watch or Alert Phase as indicated. Return SEOC to Standby or Monitoring Mode. Develop hotwash. Create after action report.
Human Resources: (address HR tools and absenteeism).
Assess impact staff, need for TISM. Assess third party payer/payee benefits. Review leave policies and revise if necessary.
Communications: (address internal and external communications and tools used).
Information on the central hotline (including link to current hotline information on the MDOC website), shall be updated as the coronavirus outbreak subsides. The Chief Medical Officer and MDOC Public Information Officer shall be responsible for maintaining the accuracy of the information posted on the hotline.
Employee Health/Well-being: (address need to protect employees if needed).
Make TISM available to staff as needed. Make Human Resources available to staff as needed.
Response/Operations (as appropriate): (address department’s response as needed).
All internal and external offender movement shall be strictly curtailed. Movement shall be limited to in-unit movement, except that movement which is necessary for health and safety. Treatment of offenders with confirmed pandemic coronavirus shall continue as medical supplies, medication, and staff resources allow. Each institution will refer to its local disaster plan provide direction on local activities.
31

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1408 Page 61 of 80 Michigan Department of Corrections
Coronavirus 2019 (COVID-19) Guidelines Updated 4/29/2020
The institution medical staff shall continue strict surveillance procedures by reporting confirmed cases of coronavirus to the BHCS Infection Control Coordinator on a daily basis. The Infection Control Coordinator will analyze and report morbidity and mortality cases weekly and as needed to the Michigan Department of Community Health, and the Chief Medical Officer.
32

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1409 Page 62 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 2 Affidavit of Dr. Carmen McIntyre

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1410 Page 63 of 80 Updated 4/30/2020

MDOC COVID-19 Prisoner Screening Questions

Demographics

Prisoner Name:

Number:

Date of Screening:

Facility:

Lock:

Time of Screening: Location of Screening:

Date of Birth:

Age:

Sex:

Travel Screen Have you traveled or reside in an area with Coronavirus within the last 14 days?

Male ☐ Yes/No Yes ☐ No ☐

Female ☐ Additional Information Where: Date:

Have you been in close contact with a Person Under

Investigation (PUI) who has tested positive for COVID-19 in

the last 14 days?

Physical Screen

In the past 24 hours, have you experienced any of the

following symptoms:

☐ New/worsening cough

☐ Fever

☐ Sweats/Chills/Shaking

☐ Sudden fatigue

☐ New sore throat

☐ Muscle aches/pain

☐ Muscle aches/pain

☐ Loss of taste/smell

☐ New onset of headache

☐ Nausea

☐ Diarrhea

☐ New/worsening shortness of breath

Yes ☐ No ☐

Where: Date:

Additional Information

Temperature:

F/C

Evaluation If a patient reports signs or symptoms listed under the physical screen or answers “yes” to any of the travel screening questions, the patient will be examined immediately by a RN and referred directly to a Medical Provider for evaluation.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1411 Page 64 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 3 Affidavit of Dr. Carmen McIntyre

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1412 Page 65 of 80
MDOC COVID-19 ACUITY SCORING and MANAGEMENT GUIDE

MEASUREMENT/POINTS
AGE
RESPIRATORY RATE
HEART RATE
TEMPERATURE (Oral-F) OXYGEN SATURATION (after >1-minute walking if feasible) SUPPLEMENTAL OXYGEN MENTAL STATUS SYSTOLIC BLOOD PRESSURE (optional if 0 points on other data) TOTAL POINT SCORE

3* </=8 </=40 </=95 <92*
</=90

COVID-19 PATIENT ASSESSMENT

2

1

0

1

<65

9-11

12-20

41-50

51-90

91-110

95.1 – 96.8

96.9-100.4 100.5-102.2

2
21-24 111-130 102.3+

92-93

94-95

96+

Yes

No

Normal/Usual

91-100

101-110

111-140

141-159

160-179

3* 65+ 25+ 131+
Altered 180+

04-2020
POINTS

If on supplemental oxygen: LPM:
*CONTACT PROVIDER IMMEDIATELY FOR CONSIDERATION OF TRANSPORT TO HOSPITAL IF: Ambulatory or resting oxygen saturation < 92% (or, for patients on chronic oxygen, >2 LPM above baseline O2). Or three (3) points on any one parameter (unless the only three points is based on age alone).

SCORE
0 1-4 5+

NURSING PROTOCOL (at a minimum)**
Vital signs (as above) attempt twice a day Vital signs (as above) twice a day and report to physician/PA/NP (ASAP if 02 Sat abnormal) Immediately contact physician/PA/NP

** Guidelines, which may be exceeded and/or supplemented, including with more frequent monitoring, based on professional judgement. Adapted from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7042184/.
Page 1 of 3

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1413 Page 66 of 80
MDOC COVID-19 ACUITY SCORING and MANAGEMENT GUIDE
On-Site Clinical Management Principles (As of 04/09/2020) DO these:
1. Know the current local/referral hospital (and EMS) position on accepting COVID-19 cases. This may change daily. If transferring, call (pre transport if possible) with a concise summary of the patient
2. To improve oxygenation, treat fever. Fever increases oxygen demand and worsens hypoxia. Up to 2 grams acetaminophen daily is safe unless decompensated cirrhosis. No credible evidence indicates NSAIDs worsen outcome. Consider prone positioning up to 12 hours daily to improve oxygenation.
3. Continue and complete antimicrobials started at the hospital, including hydroxychloroquine, azithromycin and others. Hydroxychloroquine can increase QTc interval, so check for and stop nonessential co-administered meds that increase risk of absorption and hold if QTc > 500ms. If > 450, follow QTc daily
4. Test for influenza as long as community activity is significant, and treat as appropriate 5. Use DVT prophylaxis for appropriate patients 6. For patients being monitored pre-hospital, include comp panel, CBC, ferritin, vitamin D level and CRP in initial lab studies 7. Know the risk factors for severe disease (older age, especially > 65, cancer, immunosuppression, diabetes, CKD, cardiovascular diagnosis, HTN, COPD, severe obesity),
and the “typical” clinical symptoms (rhinitis/pharyngitis, fever, myalgia, with progression heralded by cough/pneumonia, dyspnea, GI symptoms, mental status changes). Around 80% not severe, 20% severe, and progression can occur rapidly after days of non-severe symptom
DO NOT do these: 1. Stop or start ACE inhibitors or ARBs based on COVID-19 infection. There is currently no credible evidence that these change outcome 2. Routinely administer systemic steroids pre-hospital, OR stop inhaled steroids based solely on COVID-19 diagnosis. No evidence suggests inhaled steroids change outcome. WHO and CDC recommend against starting systemic steroids unless indicated for a non-COVID-19 diagnosis. 3. Give inhaled beta agonists by nebulizer for wheezing unless using a negative pressure or dedicated isolation room and an MDI tube spacer. 4. Aggressively administer fluids 5. Initiate hydroxychloroquine +/- azithromycin for non-hospitalized patients, pending more data on outcomes, inpatient supply & regulatory approval of chloroquine products for COVID-19 in non-hospitalized patients
Page 2 of 3

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1414 Page 67 of 80
MDOC COVID-19 ACUITY SCORING and MANAGEMENT GUIDE

Considerations for supportive care for persons who are COVID-19 exposed:

COVID-19 positive persons will be offered:

Vitamin C

1000 mg PO BID X 7 days

Vitamin D

5,000 IU daily X 7 days

Thiamine 200 mg (2-100 mg) bid X 7 days

Zinc Sulfate 220 mg

PO BID X 7 days

Counsel on the benefits of lying prone or on the side if comfortable.

Close contacts will be offered a multivitamin.

Page 3 of 3

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1415 Page 68 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 4 Affidavit of Dr. Carmen McIntyre

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1416 Page 69 of 80
COVID Placement Flowchart
INITIAL PLACEMENT

COVID-19 Test

Positive

Comorbidities?

Yes

No

Wheelchair/Stair Accomodations?
Intensive Support Needs

Yes

No

No

Yes

No

No

Independent ADLS, No incontinence

Yes

No

Yes

Yes

Placement

C-Unit or Green Oaks

DWHC

JCF

DRF

Comorbidities:
*BMI>30, Hypertension, cardiovascular disease
*Steroid or statin use
*Asthma/COPD, diabetes, cancer, immunocompro mised, elderly

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1417 Page 70 of 80 INCREASING MEDICAL NEEDS WHILE ON COVID+ UNIT

DRF/JCF ↑ Needs?

Twice Daily RN
Assessments

Yes

No

Can needs be met by C-Unit or Green Oaks?

Yes

Can needs be met by DWHC?

C-Unit or Green Oaks

No

Remain at DRF or JCF

Yes

No

Transfer to

DWHC

Hospital

Daily RN Assessments:
Twice daily for respiratory rate, heart rate, temperature, O2 saturation (with exertion if feasible).
Follow-up:
*Risk Score 0, none
*Risk Score 1-4, or change in risk score report to medical provider; urgently if O2 saturation abnormal.
*Risk score 5+, emergent contact to medical provider.
*Transport to hospital if O2 saturation <92%, or O2 needs rise >2 liters per minute above baseline

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1418 Page 71 of 80 STABLE OR IMPROVING CONDITION

Stable or Improving

Yes

Current Facility

DWHC

Meets Stage 2 (Recovering)

Criteria?

Yes

Placement

Stage 2/Recovery Unit that meets medical needs

No but no DWHC needs
Stage 1 Unit as appropriate

Stage 1 Unit

Yes

No

Stage 2 Unit

Remains in Stage 1 Unit

Meets Stage 3 (Recovered) Criteria?

Yes
Stage 3 Unit

Yes
Stage 3 Unit

Stage 2 (Recovering) Criteria:
*At least 14 days since onset of symptoms *In the last 72 hours:
No fever, off fever-reducing medications No shortness of breath Cough improved or resolved Stage 3 (Recovered) Criteria *Negative test no earlier than 29 days since onset of symptoms *Resolution of symptoms.

STAGE 1 DESIGNATED UNITS INCLUDE: DWHC, C-UNIT, DRF, GREEN OAKS AND JCF. OTHER FACILITIES MAY BE MANAGING STAGE 1 AS WELL. STAGE 2 DESIGNATED UNITS INCLUDE: ARF. OTHER FACILITIES MAY BE MANAGING STAGE 2 AS WELL. STAGE 3 DESIGNATED UNITS INCLUDE: STF. OTHER FACILITIES MAY BE MANAGING STAGE 3 AS WELL.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1419 Page 72 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 5 Affidavit of Dr. Carmen McIntyre

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1420 Page 73 of 80 Updated 4/30/2020

Name:

Michigan Department of Corrections Staff Screening Questionnaire

Demographics Facility:

Date of Screening:

Employee ID (if applicable):

1) In the past 24 hours, have you experienced any of the following symptoms

☐ New/worsening cough ☐ New/worsening shortness of breath ☐ Fever

☐ Sweats/Chills/Shaking ☐ New sore throat

☐ Sudden fatigue

☐ Muscle aches/pain

☐ New onset of headache

☐ Loss of taste/smell

If “yes” to any of the above symptoms, the employee will be sent home. o You will isolate at home for a minimum of 7 days since the onset of symptoms. o In order to return to work, you must be symptom and fever free for 72 hours without the use of fever reducing medications.
If “no”, proceed to question 2.

2) Have you traveled outside of the USA to a country designated as a warning level 3 (see attachment, #2) in the last 14 days?

If “yes” you will be sent home and instructed to isolate for a period of 14 days from the time you returned to the USA. If “no”, proceed to question 3.
3) Are you a licensed healthcare worker: Any healthcare employee with direct patient contact. This includes, primary care providers, nurses (RN, LPN, CAN, medical assistant), dentist, dental hygienist, dental assistants, psychiatric providers, QMHPs, and x-ray technicians.
If “yes” proceed to question 6. If “no” proceed to question 4.
4) In the past 14 days, have you been a close contact without wearing appropriate PPE of a COVID positive person?

If “yes,” date of contact: o The employee will be sent home and will quarantine for 14 days from the date of last contact. o In order to return to work, you must be symptom and fever free for 72 hours without the use of fever reducing medications and completed the 14 day quarantine.
If “no” proceed to question 5.

5) Check to see if the employee has a temperature of 100.4 degrees F or greater.

Temperature: _____________

If “yes” the employee will be sent home. o You will isolate at home for a minimum of 7 days since the onset of the fever.

1

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1421 Page 74 of 80 Updated 4/30/2020
o In order to return to work, you must be symptom and fever free for 72 hours without the use of fever reducing medications.
o If you develop any additional symptoms or have been a close contact of a confirmed COVID positive patient, you should seek out medical attention.
o If your temperature is 99.0 to 100.3, you will be given a mask and allowed to work. You must wear the mask and will repeat your temperature check in 2 hrs. If you are 100.4 or greater, you will be sent home. If your temperature is <100.4, you may continue to work with a mask.
If “no,” you are able to work. It is recommended that you wear a mask during your shift.
Licensed Healthcare Worker 6) In the past 14 days, has the licensed healthcare worker been a close contact without wearing
appropriate PPE of a COVID positive person?
If “yes”, the healthcare worker must check their temperature twice a day, preferably 8 hours apart, and self-monitor for any COVID symptoms (question 1). If the temperature is 100.0 degrees F or greater or symptoms develop, the licensed healthcare worker will be sent home. Follow question 7 guidelines for returning to work. If “no” proceed to question 7.
7) Check to see if the licensed healthcare worker has a temperature of 100.0 degrees F or greater.
Temperature_____________
If “yes” the licensed healthcare worker will be sent home. o You will isolate at home for a minimum of 7 days since the onset of the fever. o In order to return to work, you must be symptom and fever free for 72 hours without the use of fever reducing medications. o If you develop any additional symptoms or have been a close contact of a confirmed COVID positive patient, you should seek out medical attention. o If your temperature is 99.0 to 99.9, you will be given a mask and allowed to work. You must wear the mask and will repeat your temperature check in 2 hrs. If you are 100.0 or greater, you will be sent home. If your temperature is <100.0, you may continue to work with a mask.
If “no” the licensed healthcare worker may work. It is recommended that you wear a mask during your shift.
I do hereby attest that this information is true, accurate and complete to the best of my knowledge and I understand that any falsification, omission or concealment of material fact may subject me to.
Signature: ______________________________________________ Date: ___________________
2

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1422 Page 75 of 80 Updated 4/30/2020
Attachment 1 1) Close contact: a) Being within approximately 6 feet of an individual with COVID-19 for a period of 10 minutes or longer. Close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case. b) Having direct contact with infectious secretions of a COVID-19 case. One example of this would be being coughed or sneezed on. 2) Level 3 Travel Health Notice: Widespread ongoing transmission with restrictions on entry to the United States CDC recommends that travelers avoid all nonessential travel to the following destinations. Most foreign nationals who have been in one of these countries during the previous 14 days will not be allowed to enter the United States.
China Iran Most European Countries United Kingdom and Ireland 3) Licensed healthcare worker: Any healthcare employee with direct patient contact. This includes, primary care providers, nurses (RN, LPN, CNA, medical assistant), dentist, dental hygienist, dental assistants, psychiatric providers, QMHPs and x-ray technicians.
3

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1423 Page 76 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 6 Affidavit of Dr. Carmen McIntyre

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1424 Page 77 of 80

MICHIGAN DEPARTMENT OF CORRECTIONS
POLICY DIRECTIVE
SUBJECT
MEDICAL EMERGENCIES

EFFECTIVE DATE
05/20/2019

NUMBER
03.04.125

SUPERSEDES
03.04.125 (04/01/2019)

AUTHORITY
MCL 333.1032, MCL 333.1033, MCL 750.411,

MCL 791.203

PAGE

1 OF 4

POLICY STATEMENT:

Employees shall provide appropriate and timely response to medical emergencies consistent with the employee's training and the use of universal precautions.

RELATED POLICY:

04.06.110 Deaths: Natural, Accidental, Suicide, Homicide

DEFINITIONS:

A.

Medical Provider: A qualified health professional who is a physician, physician assistant, or nurse

practitioner licensed to practice in the State of Michigan.

B.

Qualified Health Professional (QHP): A physician, psychiatrist, nurse practitioner, physician assistant,

psychologist, social worker, licensed professional counselor, dentist, or registered nurse who is licensed

and registered/certified by the State of Michigan to practice within the scope of his or her training.

POLICY:

GENERAL INFORMATION

C.

For purposes of this policy, "employee" refers to Department employees, employees of other state

agencies, and contractual employees whose primary work location is in a correctional facility or Field

Operations Administration (FOA) field office, unless otherwise specified.

D.

Central Office and each correctional facility and FOA field office shall have first aid kits available in

standardized locations where they will be readily available to employees. Each correctional facility shall

also have cardiopulmonary resuscitation (CPR) emergency kits available in standardized locations. The

first aid kit and CPR kit may be combined into one kit. The Administrator of the Bureau of Health Care

Services (BHCS) or designee shall identify those items required to be included in the CPR emergency

kit. However, the kit shall include at least two resuscitation devices and protective gloves. Each Warden

and Field Office Supervisor and, for Central Office, the Manager of the Emergency Management Section

in the Operations Division, Correctional Facilities Administration (CFA), shall ensure that employees in

their respective areas are notified as to the location of all kits, that all kits are inspected at least

quarterly, and that non-serviceable items are replaced immediately.

E.

Uniformed custody employees shall carry the approved resuscitation device and protective gloves while

on duty. The uniformed custody employees shall inspect the resuscitation device issued to them at least

monthly to ensure that the device is serviceable. Non-serviceable devices shall be reported to a

supervisor and replaced immediately.

F.

Personal protective clothing and equipment shall be available for employee use, inspected, and replaced

if unserviceable as specified in the Exposure Control Plan developed pursuant to PD 03.04.120 "Control

of Communicable Bloodborne Diseases.”

G. Department employees, as determined by the appropriate Deputy Director, shall be required to attend training in first aid and CPR. Training shall be made available both as a component of new employee training offered pursuant to PD 02.05.100 "New Employee Training Program" and as mandatory training offered pursuant to PD 02.05.101 "In-Service Training.” Medical providers and nurses also shall be

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20

DOCUMENT TYPE
POLICY DIRECTIVE

EFFECTIVE DATE
05/20/2019

NUMBER
03.04.125

PageID.1425 Page 78 of 80
PAGE 2 OF 4

trained in first aid and CPR. Dentists, dental hygienists, and dental assistants shall be trained in CPR as part of continuing certification process.

H.

At least one automatic external defibrillator (AED) shall be available at Central Office and each

correctional facility. an AED shall be available in the Control Center of every correctional facility, and

additional AEDs may also be available in other locations of the facility as determined by the Warden.

On-site supervisors and, for Central Office, the Emergency Management Section Manager shall identify

employees in their respective areas who shall be trained in the use of an AED. AEDs shall be used only

by employees trained in their use. Worksite supervisors and, for Central Office, the Emergency

Management Section Manager shall ensure for their respective areas that employees trained in the use

of the AED are notified as to its location, that AEDs are inspected at least quarterly, and that

non-serviceable AEDs are replaced immediately. Worksite supervisors and, for Central Office, the

Emergency Management Section Manager shall ensure that a list of employees in their respective areas

who are trained in the use of an AED is available to all employees at that worksite.

MEDICAL EMERGENCIES IN A CORRECTIONAL FACILITY

I.

Whenever a person is determined to be in need of emergency medical attention, employee response to

that emergency shall be as soon as possible and in accordance with their training. Employees first upon

the scene shall ensure emergency medical assistance is summoned. If available, the AED shall be

automatically sent to all medical emergencies. Employees shall initiate emergency first aid as they are

qualified to provide as soon as possible, including using the appropriate resuscitation device, unless the

victim is clearly deceased and has obvious signs of irreversible death. Once initiated, emergency first

aid shall continue until one of the following occurs:

1.

Relief is provided by an emergency medical response team.

2.

A QHP verifies an executed Prisoner Advance Directive form (CHJ-233) exists.

3.

A medical provider, emergency medical service provider or registered nurse has pronounced

the victim deceased.

J.

A seriously ill or injured person, unless clearly deceased, shall be transported to an appropriate medical

facility as soon as his/her medical condition permits. Movement of a seriously ill or injured person,

including mode of transportation, shall be consistent with accepted principles of first aid and as directed

by Health Care employees unless there is an immediate physical threat to the injured person (e.g., fire,

assault). PD 04.06.110 "Deaths: Natural, Accidental, Suicide, Homicide" shall be followed if the person

is deceased.

K.

If a person is found unconscious or unresponsive and correctional facility employees suspect a possible

drug overdose due to witness statement(s) of drug use, or the presence of drug paraphernalia in the

immediate area, NARCAN (Naloxone) shall be administered in accordance with the employee’s training.

L.

In a correctional facility, NARCAN (Naloxone) will be kept in the Control Center in the AED box and in

the Mailroom sealed in the first aid kit. Healthcare shall be contacted whenever the medication has been

used or expires. Inventory and the checking of expiration date shall be completed quarterly by facility

Health Care employees when AED checks are performed. Training on NARCAN (Naloxone) use shall

be provided by the facility Human Resources Developer (HRD) to appropriate personnel. Employees

need to be aware that possible side effects of NARCAN (Naloxone) use can cause the recipient to

become easily angered or annoyed or become agitated and should be prepared to address these

symptoms in accordance with their training.

M. Employees shall immediately call emergency medical services and notify the on-call medical provider when NARCAN (Naloxone) is administered. Employees shall also monitor the recipient and ensure an AED is applied to them until emergency medical services arrives.

N.

The Michigan State Police or other appropriate law enforcement agency shall be contacted if criminal

behavior is suspected or whenever personal injuries appear to have been inflicted with a deadly weapon.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20

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POLICY DIRECTIVE

EFFECTIVE DATE
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NUMBER
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PageID.1426 Page 79 of 80
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In such cases, employees shall secure the scene and other appropriate areas, using caution to not disturb physical evidence unnecessarily, until otherwise directed by the Michigan State Police or other appropriate law enforcement agency.

O. Medical emergencies shall be reported in accordance with PD 01.05.120 "Critical Incident Reporting Correctional facilities Administration (CFA)" and PD 06.04.136 “Critical Incident Reporting - Field Operations Administration (FOA) and Reentry Services.” Prisoner injuries shall be reported using the Prisoner Injury Report (CSJ-156). Employee injuries shall be reported using the State of Michigan Accident/Illness Report (CS-1836). All other injuries shall be reported using the Visitor Accident Report (CAJ-243).

P.

The Warden shall ensure that an immediate investigation of the circumstances surrounding a medical

emergency is conducted. The Internal Affairs Section, Office of Executive Affairs, shall be contacted as

set forth in PD 01.01.140 "Internal Affairs,” if appropriate.

MEDICAL EMERGENCIES IN FOA

Q. FOA employees who observe a medical emergency in the office or while on duty in the field shall immediately call 911 for medical assistance.

R.

FOA employees who witness, or suspect, an offender overdose, either in the office or field, shall

administer NARCAN (Naloxone), if available, and then immediately call 911 for medical assistance.

Employees need to be aware that possible side effects of NARCAN (Naloxone) use can cause the

recipient to become easily angered or annoyed or become agitated and should be prepared to address

these symptoms in accordance with their training.

MEDICAL EMERGENCIES INVOLVING PRISONER SEXUAL ABUSE

S.

Medical emergencies involving prisoner sexual abuse shall be handled as set forth below and in

accordance with PD 03.03.140 “Prison Rape Elimination Act (PREA) and Prohibited Sexual Conduct

Involving Prisoners” and the PREA Manual. Upon learning of an allegation of sexual abuse occurring

within the previous 96 hours and where forensic evidence may be present, initial employee response

shall be as follows:

1.

Non-Custody employees shall immediately notify their chain of command and an appropriate

custody supervisor. The non-custody employee shall request that the prisoner victim not take

any action that could destroy potential evidence such as washing, drinking, brushing teeth,

changing clothes, urinating, defecating, or eating.

2.

Custody employees shall separate the alleged victim and abuser and preserve and protect any

crime scene until appropriate steps can be taken to collect any evidence. Custody employees

shall ensure that the victim and abuser do not take any action that could destroy potential

evidence such as washing, drinking, brushing teeth, changing clothes, urinating, defecating, or

eating.

3.

The victim shall be transported to a local hospital for a forensic medical examination.

NOTIFICATION IN CASE OF MEDICAL EMERGENCY

EMPLOYEES

T.

Upon initial hire, each Department employee shall complete an Emergency Notification form (CAJ-184)

and enter this information on the MI HR Employee Self Service database. The Department employee

shall be responsible for updating this information on the MI HR Employee Self Service database

whenever there is a change. Supervisors shall have access to this information for employees under

their direct supervision for notification purposes in case of an emergency. The employee’s emergency

contact person must be at least 18 years of age.

U.

If an employee dies or requires medical care while at work and is physically unable to notify his/her

Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20

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POLICY DIRECTIVE

EFFECTIVE DATE
05/20/2019

NUMBER
03.04.125

PageID.1427 Page 80 of 80
PAGE 4 OF 4

emergency contact person, a supervisor or, in a correctional facility or an FOA field office, the Warden, field office supervisor, or designee shall immediately notify the emergency contact in person or by telephone. When deemed appropriate, local law enforcement may be asked to provide this notification. All attempts to contact the emergency contact person shall be documented in the employee's Human Resources file. Deaths and hospitalizations shall be reported to the Michigan Occupational Safety and Health Administration (MIOSHA) as set forth in the Department’s “Occupational Safety and Health Plan” Manual.

OFFENDERS

V.

Each offender received at a reception facility or Special Alternative Incarceration facility (SAI) shall be

requested to provide the name and telephone number of a person to be contacted in case of an

emergency. The emergency contact person must be at least 18 years of age. Designated employees

shall enter this information in the Department’s computerized database and document the information

on the Basic Information Sheet (CSX-104). The offender shall be responsible for providing the

Department with updated information whenever there is a change. The offender will also be offered the

ability to update the information during their annual health screen. Designated employees shall enter the

updated information in the Department’s computerized database and issue and distribute a revised

Basic Information Sheet (CSX-104).

W. The appropriate Warden or field office supervisor or designee shall be notified when an offender dies or, as determined by the medical provider, is seriously or critically injured or becomes seriously or critically ill. The Warden or field office supervisor shall ensure that attempts are made to immediately notify the offender's emergency contact person by telephone or, if contact cannot be made by telephone, by certified mail. BHCS employees shall assist in this process upon request. When deemed appropriate, local law enforcement may be asked to provide this notification. All attempts by Department employees to notify the offender's emergency contact person shall be documented in the offender's Record Office file, or in FOA, in the Department’s computerized database.

RELEASE OF INFORMATION

X.

An offender’s medical information shall be released only as set forth in PD 03.04.108 "Prisoner Health

Information.”

Y.

If an offender is transported off-site to a medical care facility, the location of the medical care facility

shall not be released to the emergency contact person or others. unless the offender is critically ill, as

determined by the appropriate medical provider. Visiting shall be permitted for a CFA/FOA offender only

as set forth in PD 05.03.140 "Prisoner Visiting.”

Z.

Information regarding a medical emergency shall be released to news media representatives in

accordance with PD 01.06.130 "Media Relations.”

PROCEDURES

AA. If necessary, to implement requirements set forth in this policy directive, Wardens, in conjunction with the BHCS Administrator or designee, and the FOA Deputy Director shall ensure that operating procedures are developed or updated.

AUDIT ELEMENTS

BB. A Primary Audit Elements List has been developed and is available on the Department’s Document Access System to assist with self-audit of this policy pursuant to PD 01.05.100 "Self-Audits and Performance Audits.”

APPROVED: HEW 04/10/2019

Case 2:20-cv-11053-MAG-RSW ECF No. 27-8 filed 05/12/20 PageID.1428 Page 1 of 6 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT G

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Executive Order 2020-29 (COVID-19)
EXECUTIVE ORDER

No. 2020-29
Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody;
temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identiﬁed in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Michigan Department of Health and Human Services identiﬁed the ﬁrst two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and eﬀect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the aﬀected area under control.” MCL 10.31(1).

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Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. The Michigan Department of Corrections (the “Department”) must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which the Department has already developed and implemented at the facilities it operates and which include the following:

a. Screening all persons arriving at or departing from a facility, including staﬀ, incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.

b. Restricting all visits, except for attorney-related visits, and conducting those visits without physical contact to the extent feasible.

c. Limiting oﬀ-site appointments for incarcerated persons to only appointments for urgent or emergency medical treatment.

d. Developing and implementing protocols for incarcerated persons who display symptoms of COVID-19, including methods for evaluation and processes for testing, notiﬁcation of the Department of Health and Human Services (“DHHS”), and isolation during testing, while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments.

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e. Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.

f. Providing, to the fullest extent possible, appropriate personal protective equipment to all staﬀ as recommended by the CDC.

g. Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.

h. Ensuring access to personal hygiene products for incarcerated persons and correctional staﬀ, including soap and water suﬃcient for regular handwashing.

i. Ensuring that protective laundering protocols are in place.

j. Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.

k. Practicing social distancing in all programs and classrooms—meaning a distance of at least six feet between people in any meeting, classroom, or other group.

Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.

2. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the capacity and procedural requirements regarding county jail overcrowding states of emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq., is temporarily suspended. While this order is in eﬀect, all actions that would be authorized under the CJOA in the event of a declaration of a county jail overcrowding state of emergency are authorized and shall remain authorized without regard to any

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3. Anyone authorized to act under section 2 of this order is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:
a. Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.
b. Anyone who is incarcerated for a traﬃc violation.
c. Anyone who is incarcerated for failure to appear or failure to pay.
d. Anyone with behavioral health problems who can safely be diverted for treatment.
4. Eﬀective immediately, all transfers into the Department’s custody are temporarily suspended. Beginning seven (7) days from the eﬀective date of this order, and no more than once every seven (7) days, a county jail or local lockup may request that the director of the Department determine that the jail or lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order. Upon inspection, if the director of the Department determines that a county jail or local lockup has satisfactorily implemented risk reduction protocols, transfers from that jail or lockup will resume in accordance with the Department’s risk reduction protocols. The director of the Department may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.
5. Parole violators in the Department’s custody must not be transported to or lodged in a county jail or local lockup unless the director of the Department has determined that such county jail or local lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order.

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7. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:
a. Removing from the general population any juveniles who have COVID-19 symptoms.
b. Eliminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.
c. Providing written and verbal communications to all juveniles at such facilities regarding COVID-19, access to medical care, and community-based support.
d. To the extent feasible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.
8. Unless otherwise directed by court order, for juveniles on court-ordered probation, the use of out-of-home conﬁnement for technical violations of probation and any requirements for in-person meetings with probation oﬃcers are temporarily suspended.
9. This order is eﬀective immediately and continues through April 26, 2020 at 11:59 pm.
Given under my hand and the Great Seal of the State of Michigan.

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Case 2:20-cv-11053-MAG-RSW ECF No. 27-9 filed 05/12/20 PageID.1434 Page 1 of 9 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT H

Case 2:20-cv-11053-MAG-RSW ECF No. 27-9 filed 05/12/20 PageID.1435 Page 2 of 9

GRETCHEN WHITMER GOVERNOR

STATE OF MICHIGAN
DEPARTMENT OF CORRECTIONS LANSING

HEIDI E. WASHINGTON DIRECTOR

DIRECTOR'S OFFICE MEMORANDUM 2020 - 30

EFFECTIVE: Immediately

DATE:

April 8, 2020

TO:

Executive Policy Team

Administrative Management Team

Wardens

FROM:

Heidi E. Washington, Director

SUBJECT: COVID-19

The MDOC is taking many steps to protect staff and prisoners from the spread of COVID-19, including developing isolation areas to place and treat prisoners who have tested positive for COVID-19 or who are under investigation for having COVID-19, as well as those who have had close contact with a known-positive COVID-19 individual. This DOM outlines the precautions staff shall take to help prevent COVID-19 from spreading. This DOM controls when in conflict with any other DOM or Department policy or procedure.

PERSONAL PROTECTIVE EQUIPMENT (PPE)

At a minimum, all staff and prisoners shall always wear a mask. Additionally, required PPE shall be worn by staff at all times when they are in an isolation area, transporting a prisoner with a confirmed or suspected case of COVID-19, packing the property of a prisoner with a confirmed or suspected case of COVID-19, or at any time the staff member has close contact (i.e., within six feet) with an offender (i.e., prisoner, parolee, probationer) who has a confirmed or suspected case of COVID-19. As outlined in the approved protocol, PPE shall include an N95 or other mask, a gown, eye protection, and gloves. PPE worn in an isolation area shall be removed before going to another area of the facility.

SCREENING OF INDIVIDUALS BEFORE ENTERING A FACILITY OR OFFICE BUILDING

All individuals shall be screened for potential signs and symptoms of COVID-19 before entering a correctional facility or office building. Any individual who shows symptoms of COVID-19 shall be denied entry. Consistent with Executive Order 2020-36, employees who are feeling sick with any illness must stay home.

GRANDVIEW PLAZA • P.O. BOX 30003 • LANSING, MICHIGAN 48909 www.michigan.gov • (517) 335-1426

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2020-30 PAGE 2
SOCIAL DISTANCING
In accordance with the Centers of Disease Control (CDC) recommendations, social distancing recommendations shall be followed at all times, including programing, classrooms, chow lines, staff screenings, office buildings, etc. This means that there shall be a distance of at least six feet between all individuals. Staff meetings and other group interactions of 10 or more individuals shall be limited. Technology must be used in place of group interactions, when possible.
ISOLATION AREAS
The CFA Deputy Director shall determine where isolation areas are located. A prisoner who tests positive for COVID-19 shall be placed in quarantine in a designated isolation area as soon as resources permit regardless of their security level or prior criminal history. All of the requirements set forth in PD 03.03.130 “Humane Treatment and Living Conditions for Prisoners” apply to prisoners in an isolation area with the exception of two hours of indoor/outdoor recreation. Psychological services shall be provided to a prisoner in an isolation area only when immediate intervention is needed as determined by the Chief Psychiatric Officer (CPO). The CFA Deputy Director shall consult with the Office of Legal Affairs Administrator and the BHCS Administrator to determine what movement and activities may take place in an isolation area including access to programming, religious services, and law library material. At no time shall a prisoner who is placed in an isolation area be permitted outside of the area, unless it is for an emergency, or as approved by the Assistant Deputy Director (ADD). If a prisoner becomes extremely disruptive while in an isolation area, staff may use management techniques and equipment as set forth in PD 04.05.112 “Managing Disruptive Prisoners.” Staffing levels in an isolation area shall be determined by the Warden.
A sign shall be placed outside of each isolation area that notifies staff that they are about to enter a restricted area, and what PPE shall be worn before entering the area. Only staff approved by the Warden or designee may enter an isolation area, unless an emergent situation (e.g., any situation that would require a critical incident report to be written) arises.
The BHCS Administrator shall ensure cleaning procedures are in place for isolation areas. Volunteer prisoner porters will be assigned to the isolation area and will clean as needed. Prisoner porters will be provided with appropriate PPE, when available. Staff shall document that PPE was provided to the porters in the logbook.
A prisoner shall only be released from an isolation area after they have been cleared by a Physician, and approval from the BHCS Administrator or Chief Medical Officer/Assistant Chief Medical Officer has been obtained.
PRISONERS UNDER INVESTIGATION FOR COVID-19
Separate isolation areas shall also be developed for prisoners who are under investigation (PUIs) for having COVID-19 as well as for those who have had close contact with a PUI or known-positive COVID-19 individual (Close Contacts), as necessary. The isolation areas for PUIs shall follow the same criteria as the isolation areas for prisoners with confirmed cases of COVID-19. A PUI shall be placed alone in a cell pending the outcome of their test results. Staff transporting a PUI shall wear the

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2020-30 PAGE 3
same PPE that is required for transporting a prisoner with confirmed COVID-19.
PRISONER PERSONAL PROPERTY
To control the spread of the COVID-19 virus that may be lying dormant, facility staff shall secure and inventory the property of prisoners with confirmed COVID-19 as well as PUIs and Close Contacts if the prisoner is placed in an isolation area. Prisoner property shall not be allowed while in an isolation area. Staff shall wear gowns, face shields, masks, and gloves when handling the property. Perishable food items that are not in a sealed or unopened container shall be discarded. A prisoner’s property shall be immediately returned to them once they are released from the isolation area.
PRECAUTIONS IN CFA FACILITIES
Alcohol-Based Hand Sanitizer and Wipes
Until further notice, alcohol-based hand sanitizer and wipes that are provided to correctional facilities by the Department shall be permitted within the secure perimeter of a correctional facility for use by staff. Hand sanitizer shall not be used in place of good hand washing technique. When not in use, the hand sanitizer and wipes shall be stored in accordance with Chapter 12 of the Environmental and Waste Management Plan. Staff shall not be permitted to bring personal alcohol-based hand sanitizer or wipes through the gate.
Gate Security
During the pendency of this pandemic only, Directors of Nursing (DONs) are authorized to possess their Department-issued cellular telephones inside the secure perimeter of a facility.
Staff are permitted to bring in the following items without a gate manifest:
Department-issued hand sanitizer and wipes Acceptable gloves made of vinyl, nitrile, or latex; Surgical masks made from polypropylene, polystyrene, polycarbonate, polyethylene,
cotton, or polyester. They may be disposable or reusable (require washing); and Disposable or reusable fabric gowns.
Reassignment of Staff
Staff shall be reassigned as necessary to meet the needs of the facility or the Department. Corrections Transportation Officers (CTOs) shall be reassigned to facilities as necessary to augment custody staff.
Visits, Telephone Calls, and JPay
Prisoner visits shall be suspended until further notice, including visits/programming from volunteers. In lieu of visits, prisoners shall be given two free phone calls (each lasting five minutes) and two free JPay stamps per week. Security Threat Group (STG) prisoners shall also be allowed the two free phone calls and two free JPay stamps per week.

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Attorney Visits
To reduce the number of people entering facilities, attorneys shall be encouraged to speak with their clients via phone instead of conducting an in-person visit. While prisoners may continue to use the GTL phone system to call their attorneys, attorneys may contact the facility to request the opportunity to speak with their clients in lieu of an attorney visit. If requested, staff shall promptly arrange calls between attorneys and their clients and provide the prisoners with an opportunity to make this call. Accommodations shall also be made to assist attorneys with getting documents signed and returned via email or fax, if requested, to prevent unnecessary attorney visits to the facility. All in-person attorney visits must be approved by the appropriate ADD.
Parole Board Representatives
Prisoners are allowed one representative at Parole Board hearings, but the representative may only attend via telephone or other available electronic means.
Large Gatherings
All large in-person gatherings shall be canceled including graduations, trainings, and job fairs. Annual fit testing shall be postponed. The following training shall be permitted:
Weapons SCBA Expirations CCMW Court-ordered/settlements Deaf and/or Hard of Hearing Prisoners New Orientation
All staff are still required to complete computer-based training (CBT).
Transfers and Cell Moves
No transfers shall be made unless approved by the CFA Deputy Director. Cell moves shall only be made if absolutely necessary (e.g., medical, PREA). If a prisoner needs to be transferred to an isolation area, transportation staff shall wear all required PPE.
Overtime Procedures for Security Unit Employees
With approval of the appropriate ADD, probationary employees may be authorized to work voluntary and mandatory overtime prior to completing six months of satisfactory service. During the pendency of this pandemic, mandatory overtime shall be assigned using 100 percent of the shift seniority list for the departing shift on a rotational basis. Mandatory overtime shall be tracked in accordance with DOM 2020-26 “Overtime Distribution Process for Security Unit Employees.”

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2020-30 PAGE 5
School and Programming
School classes and programming may be canceled as determined by the Warden or their designee in consultation with the appropriate ADD. The number of prisoners in each program shall be reduced to allow for appropriate social distancing. When possible, prisoners attending the class/program shall be seated a minimum of six feet apart. Face-to-face college courses shall be suspended.
Searches
Clothed-body or thorough pat-down searches of prisoners, as outlined in PD 04.04.110 “Search and Arrest in Correctional Facilities” Paragraph T, are suspended for (1) prisoners who have tested positive for COVID-19, (2) PUIs, and (3) are a Close Contact. Similarly, the searches of prisoner living areas, as outlined in PD 04.04.110 Paragraph V, are suspended for cells or areas whose occupants (1) have tested positive for COVID-19, (2) are a PUI, and (3) Close Contacts. The search of common areas is still required and shall be completed when prisoners are not present.
In the event a suspended pat-down search or cell search is required, the staff conducting the search shall wear PPE.
Prisoner Hygiene and Housing Unit Cleanliness
Adequate soap shall be provided to prisoners at all times. Bleach is permitted to be used and stored in the housing units, and other areas of the facility as determined by the Warden. Only prisoners who are assigned as a porter may clean with bleach, and they shall be under direct staff supervision while cleaning with bleach. When the bleach is not in use, it shall be stored in accordance with Chapter 12 of the Environmental and Waste Management Plan. The bleach shall be inventoried daily on the Hazardous Material Inventory Checklist (CAH-159) even if the NFPA/HMIS hazardous rating is not two or higher.
Health Care
Prisoners shall not be charged a copay for COVID-19 testing and management. All non-urgent and non-emergent Health Care appointments, including dental, shall be postponed. All annual Health Care screens shall be postponed and rescheduled. TB testing for employees shall also be postponed. Prisoners who are paroling shall be provided with a 60-day supply of medication due to possible shortages in the community. Due to the need for nurses to be on duty, nurses shall be allowed to accrue up to a maximum of 80 hours of compensatory time. Prisoner Palliative Care Aids shall not be utilized unless there is a prisoner in vigil status.
Due to the COVID-19 Emergency Declaration, employees responding to victims of cardiac and/or respiratory emergencies are directed to respond as follows:
When delivering Cardiopulmonary Resuscitation (CPR), employees shall follow the American Heart Association (AHA) guidelines for “Hands-Only” CPR. Hands-Only CPR eliminates the delivery of rescue breaths by non-Health Care employees while delivering consistent compressions to the victim at a rate of 120 bpm.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-9 filed 05/12/20 PageID.1440 Page 7 of 9
2020-30 PAGE 6
Rescue breaths will only be delivered by Health Care employees using the Ambu bag with the spacer and filter. Non-Health Care employees will continue to assist with compressions, scene safety, and the AED as trained. This direction includes any victim found to be unconscious due to an obstructed airway, opiate overdose, or all other emergencies that may require CPR or rescue breaths.
Food Service
The Business Manager shall ensure extra food is ordered (14 days on hand). The number of prisoners allowed to attend a meal at one time shall be reduced as determined by the Warden. Prisoners eating in the dining hall shall be seated in a fashion that allows them to avoid close contact with each other (i.e., six feet apart) and tables shall be sanitized between use. Prisoners shall stand at least six feet apart while waiting in line to receive their meal.
Gate Traffic
The number of individuals allowed in the gate area has decreased from eight to four.
Warden’s Forum
Warden’s forum may continue to be held in the units and counted as a monthly meeting.
Prisoner Store
A prisoner may spend up to $150 plus any applicable sales tax once every two weeks (i.e., 26 times per calendar year) to purchase Standardized Store List items from the vendor.
Additional Suspensions/Postponements
Along with the items noted above, the following shall be suspended or postponed in CFA:
Mobilizations shall be suspended. Weight pits for prisoners and staff weight rooms shall be closed at facilities on quarantine
status. Gate pass prisoners may be laid in and will only be assigned in essential positions. Performance audits and all inspections that are not conducted at the facility level shall be
postponed. Hiring shall be suspended except for Corrections Officers, Food Service, and Health Care staff. Pest control shall be postponed unless there is an urgent need. Construction projects shall be postponed unless they are emergent.
Any other decision to change or suspend facility operations shall be made on a case by case basis as determined by the CFA Deputy Director.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-9 filed 05/12/20 PageID.1441 Page 8 of 9
2020-30 PAGE 7
CREDIT RESTORATIONS
The following requirements for credit restorations listed in PD 03.01.100 “Good Time Credits” and PD 03.01.101 “Disciplinary Credits” will be modified:
Restorations may be initiated at a Warden’s discretion and may impanel committee members to assist in providing recommendation for restoration. Initiation of a restoration will not be limited to an annual review period or exemplary or meritorious acts. Prisoners are not automatically ineligible for restoration of credits because of their disciplinary history; however, a Warden may consider disciplinary history when deciding whether or not to restore credits. All recommendations for restoration must continue to be referred to the CFA Deputy Director for approval.
PRECAUTIONS TO BE TAKEN BY FOA
The following precautions shall be taken by FOA to protect staff, parolees, and probationers:
In-person contacts (IPC) shall be held by telephone or video whenever possible. IPCs that cannot be held by telephone or video shall be limited as much as possible. No Preliminary Breath Tests (PBT) shall be administered. Telehealth shall be utilized for community programming when feasible. Case notes can document why forms were not signed/initialed in person when not able to be
signed/initialed in person. Parole Board public hearings are placed on hold. In-reach services may be accelerated. The ADD of OPPS must approve all return-to-prison parole violation decisions. Because Absconder Recovery Unit (ARU) investigators are currently working at a facility,
the standards listed in the ARU Operations Manual are suspended. Suspend placing parole violators (PVs) in the Intensive Detention Reentry Programs (IDRP)
at Clinton and Ingham counties. Only PV returns will be held in custody; reinstatements will be expedited. All PV intake at the Detroit Reentry Center (DRC) has been suspended. Detroit Detention
Center (DDC) parole arrestees shall not be sent to DRC; Arrests that are returns shall be sent directly to Charles Egeler Reception and Guidance
Center (RGC), Women’s Huron Valley Correctional Facility (WHV), or Marquette Branch Prison (MBP), as appropriate. Masks and hand sanitizer shall be given to field staff. Oral swabs have been purchased for substance abuse testing. Instructions have been provided on how to eliminate face-to-face installation of EMS. A phone call from the transportation officer to the Agent shall replace a signature when dropping off a parolee at their destination.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-9 filed 05/12/20 PageID.1442 Page 9 of 9
2020-30 PAGE 8
Parolee Substance Abuse Testing
The standard of six months with no positive alcohol or drug tests (and no refusals) and no arrests, or citations for drug or alcohol-related offenses will be reduced to three. After three months of sobriety, the Substance Abuse (SA) designation can be removed and testing thereafter will be at the discretion of the Agent. However, if at any time the parolee’s behavior warrants reinstatement of the SA designation, it shall remain until the parolee has maintained sobriety for a term of three months and has completed any required SA programming.
Screening of New Parolees
All new parolees must be screened by Health Care staff for COVID-19 symptoms prior to release and provided instruction on what to do if they become symptomatic. Additionally, all known-positive COVID-19 parolees, PUIs, and Close Contacts shall be reported to the local county health department.
DISCIPLINARY CONFERENCES
All investigations, including those in progress, shall be postponed except for stop orders and investigations involving PREA. Notification shall be sent to the Office of Executive Affairs (OEA) Administrator or designee of all investigations that are continued. All new allegations shall be entered into AIM and left as pending.
WORKING REMOTELY
All staff who have the ability to work remotely shall be required to do so, as approved by their supervisor. Staff shall be permitted to take their work computers and any other supplies that are required for them to perform their duties outside of the office to work remotely. Staff working remotely are required to check their work e-mail, work voice mail, and shall be available by phone during business hours. Staff working remotely shall also keep a daily log of their activities, and the log shall be turned into their immediate supervisor at the end of the week.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-10 filed 05/12/20 PageID.1443 Page 1 of 2 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT I

Case 2:20-cv-11053-MAG-RSW ECF No. 27-10 filed 05/12/20 PageID.1444 Page 2 of 2

Coronavirus Disease 2019 (COVID-19)

Recommendation Regarding the Use of Cloth Face Coverings,

Especially in Areas of Signi cant Community-Based

Transmission

CDC continues to study the spread and eﬀects of the novel coronavirus across the United States. We now know from recent studies that a signiﬁcant portion of individuals with coronavirus

w

lack symptoms (“asymptomatic”) and that even those who

eventually develop symptoms (“pre-symptomatic”) can transmit

Use of Cloth Face Coverings to Help Slow the Spread of COVID-19

the virus to others before showing symptoms. This means that

the virus can spread between people interacting in close

proximity—for example, speaking, coughing, or sneezing—even if

those people are not exhibiting symptoms. In light of this new evidence, CDC recommends wearing cloth face coverings in public settings

where other social distancing measures are diﬃcult to maintain (e.g., grocery stores and pharmacies) especially in areas of signiﬁcant

community-based transmission.

It is critical to emphasize that maintaining 6-feet social distancing remains important to slowing the spread of the virus. CDC is additionally advising the use of simple cloth face coverings to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others. Cloth face coverings fashioned from household items or made at home from common materials at low cost can be used as an additional, voluntary public health measure.

The cloth face coverings recommended are not surgical masks or N-95 respirators. Those are critical supplies that must continue to be reserved for healthcare workers and other medical ﬁrst responders, as recommended by current CDC guidance.

This recommendation complements and does not replace the President’s Coronavirus Guidelines for America, 30 Days to Slow the Spread ÿ , which remains the cornerstone of our national eﬀort to slow the spread of the coronavirus. CDC will make additional recommendations as the evidence regarding appropriate public health measures continues to develop.

How to Make Your own Face Covering

Recent Studies:
Rothe C, Schunk M, Sothmann P, et al. Transmission of 2019-nCoV Infection from an Asymptomatic Contact in Germany. The New England journal of medicine. 2020;382(10):970-971. Zou L, Ruan F, Huang M, et al. SARS-CoV-2 Viral Load in Upper Respiratory Specimens of Infected Patients. The New England journal of medicine. 2020;382(12):1177-1179. Pan X, Chen D, Xia Y, et al. Asymptomatic cases in a family cluster with SARS-CoV-2 infection. The Lancet Infectious diseases. 2020. Bai Y, Yao L, Wei T, et al. Presumed Asymptomatic Carrier Transmission of COVID-19. Jama. 2020. Kimball A HK, Arons M, et al. Asymptomatic and Presymptomatic SARS-CoV-2 Infections in Residents of a Long-Term Care Skilled Nursing Facility — King County, Washington, March 2020. MMWR Morbidity and mortality weekly report. 2020; ePub: 27 March 2020. Wei WE LZ, Chiew CJ, Yong SE, Toh MP, Lee VJ. Presymptomatic Transmission of SARS-CoV-2 — Singapore, January 23–March 16, 2020. MMWR Morbidity and mortality weekly report. 2020;ePub: 1 April 2020. Li R, Pei S, Chen B, et al. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARS-CoV2). Science (New York, NY). 2020.
Page last reviewed: April 3, 2020
/

Case 2:20-cv-11053-MAG-RSW ECF No. 27-11 filed 05/12/20 PageID.1445 Page 1 of 13 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT J

Case 2:20-cv-11053-MAG-RSW ECF No. 27-11 filed 05/12/20 PageID.1446 Page 2 of 13
EXECUTIVE ORDER No. 2020-59
Temporary requirement to suspend activities that are not necessary to sustain or protect life Rescission of Executive Order 2020-42
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
In the three weeks that followed, the virus spread across Michigan, bringing deaths in the hundreds, confirmed cases in the thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945, provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

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To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, to establish the public health infrastructure necessary to contain the spread of infection, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe, and then extended that order through April 30, 2020, with Executive Order 2020-42. The orders limited gatherings and travel, and required all workers who are not necessary to sustain or protect life to stay home.
The measures put in place by Executive Orders 2020-21 and 2020-42 have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on April 23, 2020, Michigan reported 35,291 confirmed cases and 2,977 deaths—the strain on our health care system has begun to relent, even as our testing capacity has increased. We can now start the process of gradually resuming inperson work and activities that were temporarily suspended under my prior orders. But in doing so, we must move with care, patience, and vigilance, recognizing the grave harm that this virus continues to inflict on our state and how quickly our progress in suppressing it can be undone. Accordingly, with this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-42, amend their scope, and extend their duration to May 15, 2020, unless modified earlier. With this order, Executive Order 2020-42 is rescinded.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life, to conduct minimum basic operations, or to perform a resumed activity within the meaning of this order.
(a) For purposes of this order, workers who are necessary to sustain or protect life are defined as “critical infrastructure workers,” as described in sections 8 and 9 of this order.
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(b) For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.
Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 11 of this order.
(c) Workers who perform resumed activities are defined in section 10 of this order.
5. Businesses and operations that employ critical infrastructure workers or workers who perform resumed activities may continue in-person operations, subject to the following conditions:
(a) Consistent with sections 8, 9, and 10 of this order, businesses and operations must determine which of their workers are critical infrastructure workers or workers who perform resumed activities and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work. Businesses and operations need not designate:
(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 6 of this order.
(3) Workers and volunteers described in section 9(d) of this order.
(b) In-person activities that are not necessary to sustain or protect life or to perform a resumed activity must be suspended.
(c) Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 11 of this order. Stores that are open for in-
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person sales must also adhere to the rules described in section 12 of this order.
(d) Any business or operation that employs workers who perform resumed activities under section 10(a) of this order, but that does not sell necessary supplies, may sell any goods through remote sales via delivery or at the curbside. Such a business or operation, however, must otherwise remain closed to the public.
6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to support those businesses and operations that are maintaining in-person activities under this order, are suspended.
(a) For purposes of this order, necessary government activities include activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and first responders.
(b) Such activities also include, but are not limited to, public transit, trash pickup and disposal (including recycling and composting), activities necessary to manage and oversee elections, operations necessary to enable transactions that support the work of a business’s or operation’s critical infrastructure workers, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.
(c) For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.
(d) Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 11 of this order.
7. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor recreational activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor recreational activity includes walking, hiking, running, cycling, boating, golfing, or other similar activity, as well as any comparable activity for those with limited mobility.
(2) To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)
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(3) To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.
(4) To perform resumed activities, as described in section 10 of this order, after being designated to perform such work by their employers.
(5) To perform necessary government activities, as described in section 6 of this order.
(6) To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including in-person procedures or veterinary services that, in accordance with a duly implemented non-essential procedure or veterinary services postponement plan, have not been postponed).
(7) To obtain necessary services or supplies for themselves, their family or household members, their pets, and their motor vehicles.
(A) Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences or motor vehicles.
(B) Individuals may also leave the home to pick up or return a motor vehicle as permitted under section 9(i) of this order, or to have a motor vehicle or bicycle repaired or maintained.
(C) Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
(8) To pick up non-necessary supplies at the curbside from a store that must otherwise remain closed to the public.
(9) To care for a family member or a family member’s pet in another household.
(10) To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
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(11) To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
(12) To visit a child in out-of-home care, or to facilitate a visit between a parent and a child in out-of-home care, when there is agreement between the child placing agency, the parent, and the caregiver about a safe visitation plan, or when, failing such agreement, the individual secures an exception from the executive director of the Children’s Services Agency.
(13) To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
(14) To work or volunteer for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(15) To attend a funeral, provided that no more than 10 people are in attendance.
(16) To attend a meeting of an addiction recovery mutual aid society, provided that no more than 10 people are in attendance.
(b) Individuals may also travel:
(1) To return to a home or place of residence from outside this state.
(2) To leave this state for a home or residence elsewhere.
(3) Between two residences in this state, including moving to a new residence.
(4) As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.
(c) All other travel is prohibited, including all travel to vacation rentals.
8. For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency.
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Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors: (a) Health care and public health. (b) Law enforcement, public safety, and first responders. (c) Food and agriculture. (d) Energy. (e) Water and wastewater. (f) Transportation and logistics. (g) Public works. (h) Communications and information technology, including news media. (i) Other community-based government operations and essential functions. (j) Critical manufacturing. (k) Hazardous materials. (l) Financial services. (m) Chemical supply chains and safety. (n) Defense industrial base. 9. For purposes of this order, critical infrastructure workers also include: (a) Child care workers (including workers at disaster relief child care centers),
but only to the extent necessary to serve the children or dependents of critical infrastructure workers, workers who conduct minimum basic operations, workers who perform necessary government activities, or workers who perform resumed activities. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers. (b) Workers at suppliers, distribution centers, or service providers, as described below. (1) Any suppliers, distribution centers, or service providers whose
continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided
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that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(2) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(3) Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(4) Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
(c) Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
(d) Workers and volunteers for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(e) Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.
(f) Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences or motor vehicles, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.
(g) Workers at laundromats, coin laundries, and dry cleaners.
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(h) Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
(i) Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.
10. For purposes of this order, workers who perform resumed activities are defined as follows:
(a) Workers who process or fulfill remote orders for goods for delivery or curbside pick-up.
(b) Workers who perform bicycle maintenance or repair.
(c) Workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations, subject to the enhanced social-distancing rules described in section 11(h) of this order.
(d) Maintenance workers and groundskeepers who are necessary to maintain the safety and sanitation of places of outdoor recreation not otherwise closed under Executive Order 2020-43 or any order that may follow from it, provided that the places and their workers do not provide goods, equipment, supplies, or services to individuals, and subject to the enhanced social-distancing rules described in section 11(h) of this order.
(e) Workers for moving or storage operations, subject to the enhanced socialdistancing rules described in section 11(h) of this order.
11. Businesses, operations, and government agencies that remain open for in-person work must adhere to sound social distancing practices and measures, which include but are not limited to:
(a) Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.
(b) Restricting the number of workers present on premises to no more than is strictly necessary to perform the in-person work permitted under this order.
(c) Promoting remote work to the fullest extent possible.
(d) Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
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(e) Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
(f) Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.
(g) Any other social distancing practices and mitigation measures recommended by the CDC.
(h) For businesses and operations whose in-person work is permitted under sections 10(c) through 10(e) of this order, the following additional measures must also be taken:
(1) Barring gatherings of any size in which people cannot maintain six feet of distance from one another.
(2) Limiting in-person interaction with clients and patrons to the maximum extent possible, and barring any such interaction in which people cannot maintain six feet of distance from one another.
(3) Providing personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed.
(4) Adopting protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough cleaning of tools, equipment, and frequently touched surfaces.
12. Any store that remains open for in-store sales under section 9(f) or section 10(c) of this order:
(a) Must establish lines to regulate entry in accordance with subsection (b) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
(b) Must adhere to the following restrictions:
(1) For stores of less than 50,000 square feet of customer floor space, must limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal.
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(2) For stores of more than 50,000 square feet, must:
(A) Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space.
(B) Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.
(3) The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in this subsection as necessary to protect the public health.
(c) May continue to sell goods other than necessary supplies if the sale of such goods is in the ordinary course of business.
(d) Must consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
13. No one shall rent a short-term vacation property except as necessary to assist in housing a health care professional aiding in the response to the COVID-19 pandemic or a volunteer who is aiding the same.
14. Michigan state parks remain open for day use, subject to any reductions in services and specific closures that, in the judgment of the director of the Department of Natural Resources, are necessary to minimize large gatherings and to prevent the spread of COVID-19.
15. Effective on April 26, 2020 at 11:59 pm:
(a) Any individual able to medically tolerate a face covering must wear a covering over his or her nose and mouth—such as a homemade mask, scarf, bandana, or handkerchief—when in any enclosed public space.
(b) All businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.
(c) Supplies of N95 masks and surgical masks should generally be reserved, for now, for health care professionals, first responders (e.g., police officers, fire fighters, paramedics), and other critical workers who interact with the public.
(d) The protections against discrimination in the Elliott-Larsen Civil Rights Act, 1976 PA 453, as amended, MCL 37.2101 et seq., and any other protections against discrimination in Michigan law, apply in full force to persons who wear a mask under this order.
11

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16. Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place. No individual is subject to penalty under section 20 of this order for violating section 15(a) of this order.
17. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority.
18. This order takes effect immediately, unless otherwise specified in this order, and continues through May 15, 2020 at 11:59 pm. Executive Order 2020-42 is rescinded. All references to that order in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
19. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether sufficient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health care workforce; (4) the state’s capacity to test for COVID19 cases and isolate infected people; and (5) economic conditions in the state.
20. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 24, 2020 Time: 11:00 am

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
12

Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1458 Page 1 of 8 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT K

Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1459 Page 2 of 8

Plaintiffs’ Request 1. Provide testing for all prisoners within 14 days

Exhibit K – Comparison Chart

CDC Recommendation1

MDOC’s Action(s)2

Medical staff should

MDOC tests all inmates who have

evaluate symptomatic

symptoms of COVID-19. Mass testing

individuals to determine

of the entire population at eight

whether COVID-19 testing facilities has been completed. Mass

is indicated. Pg. 22.

testing at additional facilities will be

conducted as more testing kites, lab

resources and nursing become

available.

2. Test all COs, prison staff within 14 days

Staff should be reminded to stay home if they are sick. A verbal screening and temperature checks should be completed. If staff show symptoms of COVID, they should follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.3 Pg. 12.

All staff is screened daily upon entry to the facility. Staff must answer a series of questions, have their temperature taken, and show no COVID-19 symptoms. Staff with symptoms or with a fever over 100.4 are not permitted to enter the facility. Like members of the community, staff are responsible for their own COVID testing.
However, a voluntary testing plan is being developed for staff.

3. Provide immediate referral to hospital upon display of severe symptoms for any inmate with a positive test

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 can provide. Pg. 23.

MDOC uses an acuity chart4 to assess the health conditions of inmates. The acuity chart indicates that a prisoner must be transported to a hospital in specific circumstances.

4. Sanitize all commonly touched areas after every use

Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Pg. 9.

Bleach is available for cleaning and disinfecting in all common areas including at telephones, JPay machines, and dayrooms.

1 Exhibit C of Defendants’ response brief 2 The sources for the information in this column are the Affidavits of MDOC Director Washington, Dr. McIntyre, ADD Bush, and Wardens Morrison, Braman, Nagy, and Chapman, exhibits D, F, P, L, M, N, and O, respectively and the attachments thereto. 3 https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html 4 Attachment 3 to Dr. McIntyre’s Affidavit (Ex. F).
Page 1 of 7

Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1460 Page 3 of 8

5. Immediate stop all inmate and CO transfers except for those related to separating COVID-19 inmates/Cos
6. Make disinfectant supplies available at all times, free of charge
7. Provide instruction materials on proper use of PPE to prevent cross-contamination, especially with gloves and masks.
8. Release lowest-level security inmates to home confinement after quarantine for 14 days.

Exhibit K – Comparison Chart

Restrict transfers of

All transfers, unless necessary for

incarcerated persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation, clinical care, extenuating security concerns, or to prevent overcrowding. Pg. 9.

medical or intake purposes, were suspended on March 16, 2020. Authorized approval from the Assistant Deputy Director or high authority is required for any and all transfers.

Provide incarcerated persons and staff no-cost access to soap, running water, hand drying machines or disposable paper towel, tissues, and notouch trash receptacles. Pg. 8, 10.

Soap and disinfectant products are available to prisoners at all times at no costs. Paper towels and/or hand dryers are also available to prisoners.

Ensure that all staff and incarcerated 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. Pg. 23.

MDOC staff and inmate porters that clean COVID areas complete bloodborne pathogen training that includes proper donning and doffing PPE instructions. Additionally, there are posters throughout the facilities that show proper hand washing, PPE usage, and social distancing.

None

Due to the Truth-in-Sentencing Act, this request is illegal. However, MDOC has paroled 995 prisoners through population-reduction measures in response to COVID-19.

Page 2 of 7

Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1461 Page 4 of 8

9. Provide and require use of PPE for all inmates
10. Enforce social distancing of at least six feet at all times

Exhibit K – Comparison Chart

Asymptomatic incarcerated All inmates are provided three

persons that are quarantined as a close contact of a known COVID-19 case should wear a face mask as feasible based on local supply.
Incarcerated persons who are confirmed or suspected COVID cases or are showing COVID symptoms should wear a face mask.
Incarcerated persons in a work placement handling laundry or used food service items should wear gloves and a gown.

reusable fabric face masks that can be laundered. The face masks are replaced as needed.
Prisoners are provided additional PPE based on need. For example, an inmate porter cleaning a COVIDarea would also be provided an eye protection, face mask, gloves, and gown. Additionally, inmates handling food or laundry are provided a face mask, gloves, and a gown.

Incarcerated persons in a work placement that are cleaning areas where a COVID case has spent time should wear a mask, gloves, and gown. Pg. 25.

Implement social distancing
strategies to increase the
physical space between incarcerated 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. Pg. 11. (emphasis
added)

MDOC implements many CDC strategies where feasible including enforcing social distancing in lines and waiting areas by marking lines on the ground; staggering yard times; restricting yard time to a single housing unit at a time; staggering meal times; marking off seating in chow halls to increase space in between seats; providing meals inside housing units and cells where feasible; limiting the size of programs and classes; reassigning bunks; and arranging bunks so inmates sleep head-to-toe.

Page 3 of 7

Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1462 Page 5 of 8

11. Frequently communicate to all incarcerated people information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices

Exhibit K – Comparison Chart

Communicate clearly and

CDC information cards are

frequently with incarcerated persons about changes to their daily routine and how they can contribute to risk reduction. Pg. 12.

posted throughout MDOC facilities. Additional safety and hygiene information is displayed on TV monitors throughout the facilities as well.

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. Pg. 22.

MDOC also sends mass emails (through JPAY) to prisoners to keep them informed of COVID-19 updates.

12. Ensure that each incarcerated person receives, free of charge, an individual supply of hand soap and paper towels sufficient to allow frequent hand washing and drying each day; an adequate supply of clean implements for cleaning such as sponges and brushes and disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings

See response to #4 and #6

See response to #4 and #6

13. Require that all prison staff wear person protective equipment, including CDC-recommended surgical masks, when interacting with any person or when touching surfaces in cells or common areas

Staff having direct contact with asymptomatic incarcerated persons under quarantine as close contacts of a COVID-19 case (but not performing temperature checks or providing medical care) should wear a face mask, eye protection, and gloves as local supply and scope of duties allow. Staff handling laundry or used food service items should wear gloves and a gown.

Staff are required to wear a face mask at all times. Other required PPE depends on where they are working and what they are doing. For instance, if a CO is working in a housing unit with no positive cases, he or she would be required to wear a mask and only wear gloves when making physical contact with an inmate (transport, pat down). A CO that has direct contact with a COVIDpositive inmate or PUI would be

Page 4 of 7

Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1463 Page 6 of 8

Exhibit K – Comparison Chart

Staff that are cleaning areas

required to wear a face mask,

where a COVID case has spent time should wear a mask, gloves, and gown.

gloves, and eye protection, and a gown.

Staff performing temperature checks on any group of people or providing medical care to asymptomatic quarantined persons should were a face mask, eye protection, gloves, and a gown.

Staff having direct contact with a confirmed or suspected COVID-19 case should wear a N95 respirator, eye protection, gloves, and a gown. Pg. 25.

14. Require that all prison staff wash their hands, apply hand sanitizer containing at least 60% alcohol, or change their gloves both before and after interacting with any person or touching surfaces in cells or common areas

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 alcoholbased hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual sized bottles for their personal hand hygiene while on duty. Pg. 8

Staff are required to follow CDC guidelines for personal hygiene.
Alcohol-based hand sanitizer is readily available throughout the facilities for staff use. They also follow procedure to ensure there is no cross contamination through gloves.

Reinforce healthy hygiene practices. Pg. 10.

Page 5 of 7

Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1464 Page 7 of 8

Exhibit K – Comparison Chart

15. Take each incarcerated person's temperature daily (with a functioning and properly operated and sanitized thermometer) to identify potential new COVID-19 infections

Temperature checks are recommended for incarcerated individuals who enter correctional facilities, are transferred to another facility, or are released from custody. Pg. 9, 10, 14, 26.
Quarantined individuals should have their temperature checked twice a day. Pg. 21.

It is not feasible to take the temperature of all 36,000+ inmates every day.
The temperature of COVID-positive inmates is taken twice a day.
Close Contacts are separated and monitored.
Inmates that are symptomatic but do not notify staff of symptoms are identified through monitoring of JPay emails and phone calls.

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. Pg. 22.

The temperature of inmate food service workers is taken at the beginning of every shift.
The temperature of an inmate that transfers into a facility or is released from a facility is also taken.

16. Assess (through questioning) each incarcerated person daily to identify potential COVID-19 infections

Verbal screening is recommended for incarcerated individuals who enter correctional facilities, are transferred to another facility, or are released from custody. Pg. 9, 10, 14, 26.

See response to #15. These identified individuals are also verbally screened.

17. Conduct immediate testing for anyone displaying known symptoms of COVID19 and quarantine pending results

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. Pg. 15, 21

MDOC immediately isolates and tests any inmate that shows symptoms of COVID-19.
The inmate’s Close Contacts are also separated, monitored, and largely tested.

Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Pg. 22.

Page 6 of 7

Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1465 Page 8 of 8

Exhibit K – Comparison Chart

18. Ensure that

Incarcerated individuals

All inmates are given three reusable

inmates identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a nonpunitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video visitation with loved ones, communications with counsel, and personal property

with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Pg. 21
None regarding isolation amenities.

fabric masks that can be laundered.
Confirmed COVID-positive inmates, persons under investigation (PUIs), and Close Contacts, are isolated from the general population.
Personal property is removed in order to better contain the virus.
Isolated inmates have access to mail, telephones, JPay, yard, medical health services (including mental health), and showers.

19. Respond to all emergency (as defined by the medical community) requests for medical attention within an hour

None

Emergent Medical conditions are addressed as soon as staff are aware of the emergency. Please refer to Policy Directives 03.04.100 and 03.04.125.5

20. Provide sufficient disinfecting supplies, free of charge, so inmates can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use

See response to #4 and #6

See response to #4 and #6

21. Waive all medical co-pays for those experiencing COVID19-related symptoms

Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms. Pg. 9.

The MDOC has already waived all medical co-pays for those with COVID symptoms.

5 Available publicly at https://www.michigan.gov/corrections/0,4551,7-119-1441_44369--,00.html.
Page 7 of 7

Case 2:20-cv-11053-MAG-RSW ECF No. 27-13 filed 05/12/20 PageID.1466 Page 1 of 31 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT L

Case 2:20-cv-11053-MAG-RSW ECF No. 27-13 filed 05/12/20 PageID.1467 Page 2 of 31

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

No. 2:20-cv-11053 HON. MARK A. GOLDSMITH

Plaintiffs, V
WILLIS CHAPMAN, NOAH NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,

MAG. R. STEVEN WHALEN
AFFIDAVIT OF BRYAN MORRISON

Defendants.

Daniel Manville (P39731) Attorney for Plaintiffs Civil Rights Clinic, MSU College of Law P.O. Box 1570 East Lansing, MI 48823 (517) 432-6866 daniel.manville@law.msu.edu

Kevin J. O’Dowd (P39383) Kristin M. Heyse (P64353) Scott A. Mertens (P60069) Sara E. Trudgeon (P P82155) Cori E. Barkman (P61470) Allan J. Soros (P43702) Assistants Attorney General Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov

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Case 2:20-cv-11053-MAG-RSW ECF No. 27-13 filed 05/12/20 PageID.1487 31
Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen

Page 22 of

Attachment A Affidavit of Bryan Morrison

Case 2:20-cv-11053-MAG-RSW ECF No. 27-13 filed 05/12/20 PageID.1488 Page 23 of 31
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-13 filed 05/12/20 PageID.1493 31
Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen

Page 28 of

Attachment B Affidavit of Bryan Morrison

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Case 2:20-cv-11053-MAG-RSW ECF No. 27-14 filed 05/12/20 PageID.1497 Page 1 of 27 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT M

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Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen

Page 19 of

Attachment 1 Affidavit of Melinda Braman

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Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen

Page 25 of

Attachment 2 Affidavit of Melinda Braman

SMT - Con e e

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 Case 2:20-cv-11053-MAG-RSW ECF No. 27-15 filed 05/12/20 PageID.1524 Page 1 of 48 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT N

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Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen

Page 23 of

Attachment 1 Affidavit of Noah Nagy

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Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen

Page 29 of

Attachment 2 Affidavit of Noah Nagy

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Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen

Page 45 of

Attachment 3 Affidavit of Noah Nagy

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Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT O

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Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen

Page 16 of

Attachment 1 Affidavit of Willis Chapman

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Macomb Correctional Facility 4/22/2020
Social Distancing

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Sidewalks

Food Service

New Handicap Ramp

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Garden Walk

Main Walk

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RTP Unit

Big Yard Gate

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Housing Units 4 and 5

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Unit Entrances

Level II Units

Level IV Units

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RTP Unit

Level II Units

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Unit Stairs

Medication Window

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Unit Podiums

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Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen

Page 27 of

Attachment 2 Affidavit of Willis Chapman

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Macomb Correctional Facility
This power point was created to track the progress at MRF
• Quarantine began with first COVID-19 Positive prisoner, March 26th
• MRF received notification on March 28th that there were 23 additional positive prisoners which initiated multiple operational changes

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Initial Task Board

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Initial Staging of Prisoner Beds

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Initial Staging of Prisoner Beds

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Staging

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Staging

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Initial Screening/Triage

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Testing Kits

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PUIs

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COVID-19 Positives

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Close Contacts

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Close Contact Cohorts – 16 Beds Each Side

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Dayroom Expansion for General Population

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Dayrooms

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PPE - Tracking

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PPE Return for Washing

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Social Distancing

Food Service

New Handicap Ramp

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Garden Walk

Main Walk

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RTP Unit

Big Yard Gate

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Housing Units 4 and 5

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Unit Entrances

Level II Units

Level IV Units

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RTP Unit

Level II Units

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Unit Stairs

Unit Podiums

RTP

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Medication Windows
RTP

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Signage - Building Entrances

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Unit Podiums

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Gates and Doors

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Unit Entrances

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Other Areas

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Lobby

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Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT P

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

No. 2:20-cv-11053 HON. MARK A. GOLDSMITH

Plaintiffs, V
WILLIS CHAPMAN, NOAH NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,

MAG. R. STEVEN WHALEN
AFFIDAVIT OF JEREMY BUSH

Defendants.

Daniel Manville (P39731) Attorney for Plaintiffs Civil Rights Clinic, MSU College of Law P.O. Box 1570 East Lansing, MI 48823 (517) 432-6866 daniel.manville@law.msu.edu

Kevin J. O’Dowd (P39383) Kristin M. Heyse (P64353) Scott A. Mertens (P60069) Sara E. Trudgeon (P82155) Cori E. Barkman (P61470) Allan J. Soros (P43702) Assistants Attorney General Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov

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facility; limiting and cancelling certain group gatherings; implementing social distancing measures; and ensuring an adequate supply of hand soap, disinfectants and cleaning materials for prisoners and staff so that they were never in short supply and available upon request. Wardens at these facilities were also instructed to provide additional and more frequent cleaning of their entire facility, including prisoner cells, bathrooms, showers, dining halls and all common areas.
5. On March 13, 2020, and effective immediately, the Michigan Department of Corrections ceased all in-person visitation of prisoners for the safety of staff, prisoners and the public. Additionally, any MDOC staff member or contractor entering the facility was not allowed to enter if they displayed signs or symptoms of the virus, and were screened for temperatures above 100.4 degrees. Symptomatic staff members were not allowed to enter any MDOC Correctional Facility and would not be allowed to return to work.
6. In addition to the early measures discussed above, the Director’s Office Memorandum (DOM) includes a detailed outline of the many steps MDOC is taking to address the COVID-19 pandemic. In compliance with the DOM (Ex. H to Defendants’ response brief), I communicated directly with Wardens and their staff in the Jackson Region to ensure that the required COVID-19 risk reduction protocols were promptly implemented. While some measures were uniquely designed for specific facilities, uniform measures applied to all facilities included, but were not limited to:
3

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g. MDOC has released prisoners at the Jackson Region facilities early in response to COVID-19 where it is within MDOC’s jurisdiction to do so, such as prisoners who have early parole eligibility.
h. Proper screening and testing of staff and prisoners is taking place at the facilities within CDC guidelines, and at some facilities, mass testing of the prisoner population has been performed, such as at Lakeland (LCF) and Cotton (JCF).
i. Correctional and healthcare staff closely monitor and immediately respond to any signs, symptoms or prisoner complaints associated with COVID-19. Prisoners are also well informed on the symptoms associated with COVID-19 by staff, Jpay messages, signs and digital displays throughout the facility and are encouraged to notify staff by any means available, including the kite system, regarding any concerns they may have related to COVID-19.
9. As Acting Assistant Deputy Director over the Jackson Region facilities, I can verify that MDOC will continue to fully implement and enforce COVID-19 risk reduction measures for the duration of this unprecedented pandemic to minimize the spread of COVID-19.
10. I make this affidavit on personal knowledge, and, if called upon to testify, I can competently testify as to the matters contained herein.
8

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Case 2:20-cv-11053-MAG-RSW ECF No. 27-18 filed 05/12/20 PageID.1644 Page 1 of 4 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT Q

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Abrams000022

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Abrams000023

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SOCIAL DISTANCING PRACTICES
Abrams000024

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Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT R

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Caution As of: May 11, 2020 4:29 PM Z

Valentine v. Collier

United States Court of Appeals for the Fifth Circuit April 22, 2020, Filed No. 20-20207

Reporter 2020 U.S. App. LEXIS 12941 *
LADDY CURTIS VALENTINE; RICHARD ELVIN KING, Plaintiffs-Appellees, v. BRYAN COLLIER; ROBERT HERRERA; TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Defendants-Appellants.

[2]-The second reason was that the district court committed legal error in its application of Farmer v. Brennan. Even assuming that there was a substantial risk of serious harm, plaintiffs lacked evidence of defendants' subjective deliberate indifference to that risk. The evidence showed that TDCJ had taken and continued to take measures to abate and control the spread of the virus.

Prior History: [*1] Appeal from the United States District Court for the Southern District of Texas.

Valentine v. Collier, 2020 U.S. Dist. LEXIS 59781 (S.D. Tex., Apr. 6, 2020)

Outcome TDCJ's motion to stay the preliminary injunction pending appeal was granted. The appeal was expedited to the next available argument calendar.

Core Terms

inmates, district court, exhaustion, injunction, cleaning, grievance, preliminary injunction, measures, prison, pandemic, masks, staff, required to exhaust, irreparable, deliberate indifference, administrative remedy, protective measures, state law, recommendations, circumstances, housing
Case Summary

LexisNexis® Headnotes
Civil Procedure > Judgments > Entry of Judgments > Stays of Judgments HN1[ ] Entry of Judgments, Stays of Judgments

Overview HOLDINGS: [1]-In a case that implicated the State of Texas's response to the COVID-19 virus, the circuit court concluded that Texas Department of Criminal Justice (TDCJ) was likely to prevail on the merits of its appeal of the issuance of a reticulated preliminary injunction for two reasons. The first reason was that after accounting for the protective measures TDCJ had taken, plaintiffs had not shown a substantial risk of serious harm that amounted to cruel and unusual punishment;

When considering a stay, a court 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. The first two factors are the most critical.
Civil Rights Law > Protection of Rights > Prisoner

Case 2:20-cv-11053-MAG-RSW ECF No. 27-19 filed 05/12/20 PageID.1650 PagPaege32ooff 190
2020 U.S. App. LEXIS 12941, *1

Rights > Confinement Conditions
Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment

confinement requires the defendant to have a subjective state of mind more blameworthy than negligence, akin to criminal recklessness.

HN2[ ] Prisoner Rights, Confinement Conditions
In a constitutional claim alleging deliberate indifference to the conditions of a prisoner's confinement, the plaintiff must satisfy both the subjective and objective requirements of the Eighth Amendment inquiry. To satisfy the objective requirement, the plaintiff must show an objectively intolerable risk of harm. To satisfy the subjective requirement, the plaintiff must show that the defendant: (1) was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists; (2) subjectively drew the inference that the risk existed; and (3) disregarded the risk. The incidence of diseases or infections, standing alone, do not imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks. Instead, the plaintiff must show a denial of basic human needs. Deliberate indifference is an extremely high standard to meet.

Civil Rights Law > Protection of Rights > Prisoner Rights > Medical Treatment
Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment
HN6[ ] Prisoner Rights, Medical Treatment
Mere disagreement with a prison administrator's medical decisions does not establish deliberate indifference.
Civil Procedure > ... > Injunctions > Grounds for Injunctions > Irreparable Harm
Civil Procedure > Judgments > Entry of Judgments > Stays of Judgments

Civil Procedure > Remedies > Injunctions > Preliminary & Temporary Injunctions

Civil Procedure > Remedies > Injunctions > Preliminary & Temporary Injunctions
HN7[ ] Grounds for Injunctions, Irreparable Harm

HN3[ ] Injunctions, Preliminary & Temporary Injunctions
Parties can present evidence at the preliminary-injunction stage with declarations or affidavits.

When the State is seeking to stay a preliminary injunction, it's generally enough to say any time a state is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.

Constitutional Law > State Sovereign Immunity
HN4[ ] Constitutional Law, State Sovereign Immunity
The Eleventh Amendment prohibits federal courts from enjoining state facilities to follow state law.

Civil Procedure > Remedies > Injunctions
HN8[ ] Remedies, Injunctions
Where the State is the appealing party with respect to an injunction, its interest and harm merge with that of the public.

Civil Rights Law > Protection of Rights > Prisoner Rights > Confinement Conditions

Civil Rights Law > ... > Prisoner Rights > Prison Litigation Reform Act > Exhaustion of Administrative Remedies

Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment

HN9[ ] Prison Litigation Reform Act, Exhaustion of Administrative Remedies

HN5[ ] Prisoner Rights, Confinement Conditions Deliberate indifference to the conditions of a prisoner's

The Prison Litigation Reform Act requires inmates to exhaust such administrative remedies as are available before filing suit in federal court to challenge prison conditions. 42 U.S.C.S. §

Case 2:20-cv-11053-MAG-RSW ECF No. 27-19 filed 05/12/20 PageID.1651 PagPaege43ooff 190
2020 U.S. App. LEXIS 12941, *1

1997e(a). This exhaustion obligation is mandatory - there are no futility or other judicially created exceptions to the statutory exhaustion requirements. So long as the State's administrative procedure grants authority to take some action in response to a complaint, that procedure is considered available, even if it cannot provide the remedial action an inmate demands. By contrast, a remedy is not available - and exhaustion is not required - when: (1) the procedure operates as a simple dead end because the relevant administrative procedure lacks authority to provide any relief, or administrative officials have apparent authority, but decline ever to exercise it; (2) the administrative scheme is so opaque that no reasonable prisoner can use them; or (3) prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.
Civil Procedure > Remedies > Injunctions > Preliminary & Temporary Injunctions
Civil Rights Law > ... > Prisoner Rights > Prison Litigation Reform Act > Remedies
HN10[ ] Injunctions, Preliminary & Temporary Injunctions
The Prison Litigation Reform Act (PLRA) mandates that preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. 18 U.S.C.S. § 3626(a)(2). The PLRA says courts shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in § 3626(1)(B) in tailoring any preliminary relief.

Judges: Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
Opinion
PER CURIAM:
This case implicates the State of Texas's response to COVID19. On April 16, 2020, the United States District Court for the Southern District of Texas issued a reticulated preliminary injunction against the executive director of the Texas prison system and the warden of one of its prisons. The injunction regulates in minute detail the cleaning intervals for common areas, the types of bleach-based disinfectants the prison must use, the alcohol content of hand sanitizer that inmates must receive, mask requirements for inmates, and inmates' access to tissues (amongst [*2] many other things). The district court admitted that its injunction "goes beyond" the recommendations of the Centers for Disease Control and Prevention. But in the district court's view, anything less than this injunction—including, presumably, the CDC guidelines— violates the Eighth Amendment. Pursuant to Federal Rule of Appellate Procedure 8, we stay the injunction pending appeal.
I.
As with every other part of the country, our Nation's correctional facilities have not escaped the reach of COVID19. To mitigate the spread of the virus, the Texas Department of Criminal Justice ("TDCJ") has adopted and implemented several rounds of measures guided by ever-changing CDC recommendations. Plaintiffs are two inmates at the TDCJ Wallace Pack Unit ("Pack Unit"), a prison for the elderly and the infirm. They say TDCJ's measures don't go far enough.

Counsel: For Laddy Curtis Valentine, Richard Elvin King, Plaintiffs - Appellees: Brandon W. Duke, John R. Keville, Attorney, Winston & Strawn, L.L.P., Houston, TX; Jeff S. Edwards, Edwards Law, Austin, TX.
For Bryan Collier, Robert Herrera, Texas Department of Criminal Justice, Defendants - Appellants: Kyle Douglas Hawkins, Jason R. LaFond, Office of the Attorney General, Office of the Solicitor General, Austin, TX; Christin Cobe Vasquez, Office of Attorney General for the State of Texas, Austin, TX.

On March 30, 2020, Plaintiffs filed a class action lawsuit on behalf of disabled and high-risk Pack Unit inmates against TDCJ, its executive director, and the warden of the Pack Unit. The complaint alleges violations of the Eighth Amendment's prohibition against cruel and unusual punishment, and of the Americans with Disabilities Act. In addition, Plaintiffs sought a preliminary injunction.
After considering Defendants' [*3] written evidence and Plaintiffs' live witness testimony, the district court granted that injunction, finding it likely that Plaintiffs could prove an

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Eighth Amendment violation. The district court enjoined TDCJ to:
• "Provide Plaintiffs and the class members with unrestricted access to hand soap and disposable hand towels to facilitate handwashing." • "Provide Plaintiffs and the class members with access to hand sanitizer that contains at least 60% alcohol in the housing areas, cafeteria, clinic, commissary line, pill line, and laundry exchange." • "Provide Plaintiffs and the class members with access to tissues, or if tissues are not available, additional toilet paper above their normal allotment." • "Provide cleaning supplies for each housing area, including bleach-based cleaning agents and CDCrecommended disinfectants in sufficient quantities to facilitate frequent cleaning, including in quantities sufficient for each inmate to clean and disinfect the floor and all surfaces of his own housing cubicle, and provide new gloves and masks for each inmate during each time they are cleaning or performing janitorial services."
• "Provide all inmates and staff members with masks. If TDCJ chooses to provide [*4] inmates with cotton masks, such masks must be laundered regularly." • "Require common surfaces in housing areas, bathrooms, and the dining hall to be cleaned every thirty minutes from 7 a.m. to 10 p.m. with bleach-based cleaning agents, including table tops, telephones, door handles, and restroom fixtures." • "Increase regular cleaning and disinfecting of all common areas and surfaces, including common-use items such as television controls, books, and gym and sports equipment." • "Institute a prohibition on new prisoners entering the Pack Unit for the duration of the pandemic. In the alternative, test all new prisoners entering the Pack Unit for COVID-19 or place all new prisoners in quarantine for 14 days if no COVID-19 tests are available." • "Limit transportation of Pack Unit inmates out of the prison to transportation involving immediately necessary medical appointments and release from custody." • "For transportation necessary for prisoners to receive medical treatment or be released, CDC-recommended social distancing requirements should be strictly enforced in TDCJ buses and vans."
• "Post signage and information in common areas that provides: (i) general updates and information about [*5] the COVID-19 pandemic; (ii) information on how inmates can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands. Among other locations, all signage must be posted in every housing area and above every sink."

• "Educate inmates on the COVID-19 pandemic by providing information about the COVID-19 pandemic, COVID-19 symptoms, COVID-19 transmission, and how to protect oneself from COVID-19. A TDCJ staff person must give an oral presentation or show an educational video with the above-listed information to all inmates, and give all inmates an opportunity to ask questions. Inmates should be provided physical handouts containing COVID-19 educational information, such as the CDC's 'Share Facts About COVID-19' fact sheet already in TDCJ's possession." • "TDCJ must also orally inform all inmates that co-pays for medical treatment are suspended for the duration of the pandemic, and encourage all inmates to seek treatment if they are feeling ill."
• "TDCJ must, within three (3) days, provide the Plaintiffs and the Court with a detailed plan to test all Pack Unit inmates for COVID-19, prioritizing those who are members of Dorm A and of vulnerable populations [*6] that are the most at-risk for serious illness or death from exposure to COVID-19. For any inmates who test positive, TDCJ shall provide a plan to quarantine them while minimizing their exposure to inmates who test negative. TDCJ must also provide a plan for testing all staff who will continue to enter the Pack Unit, and for any staff that test positive, provide a plan for minimizing inmates' exposure to staff who have tested positive." Prelim. Inj. Order at 2-4 [hereinafter PI Order].
In its memorandum opinion explaining this injunction, the district court acknowledged that "many of the measures ordered in the preliminary injunction largely overlap with TDCJ's COVID-19 policy requirements and recommendations." D. Ct. Op. at 23. Yet the court believed the injunction necessary "to promote compliance" with TDCJ's policy, as well as CDC guidelines. Id. at 24. Some of the conduct required of Defendants under the injunction goes even further than CDC guidelines. But the district court found that compliance with those guidelines alone could be constitutionally insufficient. Id. at 25-26.
The district court stayed its preliminary injunction until April 22, 2020, at 5 p.m. Defendants timely appealed and sought a stay [*7] of the preliminary injunction pending appeal.
II.
HN1[ ] When considering a stay, "a court 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

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parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder, 556 U.S. 418, 426, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009) (quotation omitted). The first two factors are the most critical. Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016).
A.

the district court ordered—including "access to soap, tissues, gloves, masks, regular cleaning, signage and education, quarantine of new prisoners, and social distancing during transport." D. Ct. Op. at 24. The legal question [*9] is whether the Eighth Amendment requires TDCJ to do more to mitigate the risk of harm.

We start with TDCJ's likelihood of success on appeal. HN2[ ] In a constitutional claim alleging deliberate indifference
to the conditions of a prisoner's confinement, the plaintiff must satisfy both the "subjective and objective requirements" of the Eighth Amendment inquiry. Farmer v. Brennan, 511 U.S. 825, 846, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). To satisfy the objective requirement, the plaintiff must show an "objectively intolerable risk of harm." Ibid. To satisfy the subjective requirement, the plaintiff must show that the defendant: "(1) was 'aware of facts from which the inference could be drawn that a substantial risk of serious harm exists'; (2) subjectively 'dr[e]w the inference' that the risk existed; and (3) disregarded the risk." Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (quoting Farmer, 511 U.S. at 837). The "incidence of diseases or infections, [*8] standing alone," do not "imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks." Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). Instead, the plaintiff must show a denial of "basic human needs." Ibid. "Deliberate indifference is an extremely high standard to meet." Cadena v. El Paso Cty., 946 F.3d 717, 728 (5th Cir. 2020).
TDCJ is likely to prevail on the merits of its appeal. That's for two reasons: (1) after accounting for the protective measures TDCJ has taken, the Plaintiffs have not shown a "substantial risk of serious harm" that amounts to "cruel and unusual punishment"; and (2) the district court committed legal error in its application of Farmer v. Brennan.
1.
First, the harm analysis. There is no doubt that infectious diseases generally and COVID-19 specifically can pose a risk of serious or fatal harm to prison inmates. TDCJ acknowledges that fact. And it submitted evidence to the district court of the protective measures it has taken as a result.1 Those protective measures include many of the things
1 The district court made much of the fact that TDCJ did not present "live testimony" at the preliminary-injunction hearing. It's unclear to us why that matters. It long has been true that HN3[ ] parties can present evidence at the preliminary-injunction stage with declarations or affidavits. See, e.g., Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir. 1993). And, of course, it's the

The district court said yes. It acknowledged the numerous protections TDCJ provided, but it wanted to see "extra measures," such as providing alcohol-based sanitizer and additional paper products. D. Ct. Op. at 26. The district court further acknowledged that the "extra measures" it required "go[] beyond TDCJ and CDC policies." Id. at 25. Plaintiffs have cited no precedent holding that the CDC's recommendations are insufficient to satisfy the Eighth Amendment.
TDCJ also is likely to succeed on appeal insofar as the district court enjoined the State to follow its own laws and procedures. In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), a plaintiff class brought suit under inter alia the Eighth Amendment and state law to challenge the conditions at a state facility for people with mental disabilities. See id. at 92. The Supreme Court held that HN4[ ] the Eleventh Amendment prohibits federal courts from enjoining state facilities to follow state law. See id. at 103-23. Here, however, the district court acknowledged that its injunction "largely overlap[ped] with TDCJ's COVID-19 policy requirements and recommendations." D. Ct. Op. at 23. In the district court's view, this was a virtue not a vice because its injunction would "promote compliance" [*10] with TDCJ's own policies. Id. at 24. Pennhurst plainly prohibits such an injunction.
2.
Second, even assuming that there is a substantial risk of serious harm, the Plaintiffs lack evidence of the Defendants' subjective deliberate indifference to that risk. In Farmer v. Brennan, the Supreme Court held that HN5[ ] deliberate indifference requires the defendant to have a subjective "state of mind more blameworthy than negligence," Farmer, 511 U.S. at 835, akin to criminal recklessness, id. at 839-40. The district court misapplied this standard. It appeared to think that the question was "whether [the Defendants] reasonably abate[d] the risk" of infection, D. Ct. Op. at 20, or stated differently, "whether and how [TDCJ's] policy is being administered," id. at 23.
The district court thus collapsed the objective and subjective
Plaintiffs' burden to prove their entitlement to an injunction, not the Defendants' burden to prove the opposite.

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components of the Eighth Amendment inquiry established in Farmer, treating inadequate measures as dispositive of the Defendants' mental state. Such an approach resembles the standard for civil negligence, which Farmer explicitly rejected. Though the district court cited the Defendants' general awareness of the dangers posed by COVID-19, it cited no evidence that they subjectively believe the measures they are taking are inadequate. To the contrary, [*11] the evidence shows that TDCJ has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus. See Dkt. 36-7 (declaration of TDCJ Health Services Director); Dkt. 36 at 13-20 (compiling evidence of protective measures taken by TDCJ). Although the district court might do things differently, HN6[ ] mere "disagreement" with TDCJ's medical decisions does not establish deliberate indifference. Cadena, 946 F.3d at 729.
B.
TDCJ also has shown that it will be irreparably injured absent a stay. See Nken, 556 U.S. at 434. HN7[ ] When the State is seeking to stay a preliminary injunction, it's generally enough to say "'[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.'" Maryland v. King, 567 U.S. 1301, 133 S. Ct. 1, 3, 183 L. Ed. 2d 667 (2012) (Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 98 S. Ct. 359, 54 L. Ed. 2d 439 (1977) (Rehnquist, J., in chambers)). The Texas Legislature assigned the prerogatives of prison policy to TDCJ. See, e.g., TEX. GOV'T CODE ch. 501. The district court's injunction prevents the State from effectuating the Legislature's choice and hence imposes irreparable injury.
Moreover, the Supreme Court has repeatedly warned that "it is 'difficult to imagine an activity in [*12] 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, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973)); see also Missouri v. Jenkins, 495 U.S. 33, 51, 110 S. Ct. 1651, 109 L. Ed. 2d 31 (1990). Yet the district court in this case imposed a number of immediate demands on TDCJ. Among these is a plan within three days to test all Pack Unit inmates for COVID-19, as well as a new plan to quarantine those who test positive, distribute physical handouts with COVID-19 information to the inmates, clean common surfaces every thirty minutes for fifteen hours each and every day, and to provide masks to all inmates and staff members. As we've said before about such intrusive orders, this one creates "an administrative nightmare" for TDCJ "to

comply with the district court's quotas and deadlines." Ruiz v. Estelle, 650 F.2d 555, 571 (5th Cir. Unit A June 1981). "[T]he burden upon TDC[J] in terms of time, expense, and administrative red tape is too great" while it must respond in other ways to the crisis. Ibid.
The harm to TDCJ is particularly acute because the district court's order interferes with the rapidly changing and flexible system-wide approach that TDCJ has used to respond to the pandemic so far. The TDCJ's Director of Health Services explained this statewide [*13] approach in her declaration. See Dkt. 36-7. The Director worked with a team of medical directors to develop Policy B-14.52 in response to COVID19. Id. at 2. TDCJ first implemented that policy on March 20, 2020. It was designed "to adhere to guidance issued" by the CDC. Ibid. And the policy was then disseminated to staff, placed in the "Correctional Managed Health Care Infection Control Policy Manual[,] and posted on the TDCJ website." Id. at 3. But just three days later, the CDC updated its guidance, so TDCJ implemented a revised policy on March 27, 2020. Id. at 4. More changes came again on April 2, 2020, and again TDCJ disseminated and implemented the updated policy. Ibid. And on April 15, 2020, TDCJ disseminated and began implementation of yet another policy. Id. at 4-5. TDCJ's ability to continue to adjust its policies is significantly hampered by the preliminary injunction, which locks in place a set of policies for a crisis that defies fixed approaches. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 28-29, 25 S. Ct. 358, 49 L. Ed. 643 (1905); In re Abbott, No. 20-50264, 2020 U.S. App. LEXIS 10893, 2020 WL 1685929, at *12 (5th Cir. 2020) (describing COVID-19 as a "massive and rapidlyescalating threat"). And it prevents TDCJ from responding to the COVID-19 threat without a permission slip from the district court. That constitutes irreparable harm.
C.
The remaining two factors of the [*14] stay standard are the balance of the harms and the public interest. See Nken, 556 U.S. at 426. Both weigh in favor of staying the district court's injunction. There is no doubt that COVID-19 poses risks of harm to all Americans, including those in the Pack Unit. But the question is whether Plaintiffs have shown that they will suffer irreparable injuries even after accounting for the protective measures in TDCJ Policy B-14.52. Neither the Plaintiffs nor the district court suggest the evidence satisfies that standard. And HN8[ ] "[b]ecause the State is the appealing party, its interest and harm merge with that of the public." Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017) (citing Nken, 556 U.S. at 435). Therefore, TDCJ has satisfied all four requirements of the stay standard.
III.

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Plaintiffs also face several obstacles to relief under the Prison Litigation Reform Act ("PLRA"). Two bear emphasis at this stage: exhaustion and narrowness.
A.
First, exhaustion. HN9[ ] The PLRA requires inmates to exhaust "such administrative remedies as are available" before filing suit in federal court to challenge prison conditions. 42 U.S.C. § 1997e(a). This exhaustion obligation is mandatory—there are no "futility or other [judicially created] exceptions [to the] statutory exhaustion requirements . . . ." Booth v. Churner, 532 U.S. 731, 741 n.6, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). So long as the State's [*15] administrative procedure grants "authority to take some action in response to a complaint," that procedure is considered "available," even if it cannot provide "the remedial action an inmate demands." Id. at 736 (emphasis added); see also id. at 739 ("Congress meant to require procedural exhaustion regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible.").
By contrast, a remedy is not "available"—and exhaustion is not required—when:
1. The procedure "operates as a simple dead end" because "the relevant administrative procedure lacks authority to provide any relief," or "administrative officials have apparent authority, but decline ever to exercise it." 2. The "administrative scheme [is] so opaque that . . . no reasonable prisoner can use them."
3. Or when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation."

tried this argument before. In Blake v. Ross, 787 F.3d 693 (4th Cir. 2015), the court of appeals held that true exhaustion was not required when the inmate had "exhausted his remedies in a substantive sense by affording corrections officials time and opportunity to address complaints internally." Id. at 698 (quoting Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007)).
The Supreme Court rejected this "special circumstances" exception "as inconsistent with the PLRA." Ross, 136 S. Ct. at 1855. In so holding, the Court noted that the precursor to today's § 1997e(a) "would require exhaustion only if a State provided 'plain, speedy, and effective' remedies . . . ." Id. at 1858 (quoting § 7(a), 94 Stat. 352 (1980)). By enacting the PLRA (which removed that proviso), Congress rejected this "weak exhaustion provision" [*17] in favor of an "invigorated" and absolute "exhaustion provision." Ibid. (quotation omitted). In the Supreme Court's view, reading a "special circumstances" exception into the PLRA would undo the PLRA and "resurrect" its predecessor. Ibid.
The district court's understanding of the exhaustion requirement similarly revivifies the rejected portions of the old regime. The crux of the court's concern is that TDCJ has not acted speedily enough. But that was an exception to exhaustion under the old § 1997e(a), not the current one. Moreover, the district court held that TDCJ's procedure would be unduly lengthy if TDCJ were to use the full time allotted for a response to the grievance under state law. See D. Ct. Op. at 17. But the district court never found that TDCJ would take the full time if given the chance. The holding that the TDCJ process "presents no 'possibility of some relief,'" id. at 17-18 (citing Ross, 136 S. Ct. at 1859), is therefore unsupported by the evidence.

Ross v. Blake, 136 S. Ct. 1850, 1859-60, 195 L. Ed. 2d 117 (2016) (quotation omitted).
Under these standards, Plaintiffs' suit appears premature. All parties agree that the TDCJ administrative process is open for Plaintiffs' use. And Plaintiffs do not argue that TDCJ is incapable of providing some (albeit inadequate) relief. Nor do they [*16] contend that TDCJ always "decline[s] to exercise" its authority, id. at 1859, that the scheme is unworkably opaque, or that administrators thwart use of the system, see id. at 1859-60. Therefore, according to the standards the Supreme Court has given us, TDCJ's grievance procedure is "available," and Plaintiffs were required to exhaust.
The district court disagreed. It considered the TDCJ process too lengthy to provide timely relief, and therefore incapable of use and unavailable under the special circumstances of the COVID-19 crisis. See D. Ct. Op. at 16. Other inmates have

Nor are we persuaded by the district court's reliance on Fletcher v. Menard Correctional Center, 623 F.3d 1171 (7th Cir. 2010). In that case, Judge Posner hypothesized that administrative remedies might "offer no possible relief in time to prevent . . . imminent danger from becoming an actual harm." Fletcher, 623 F.3d at 1174. But, in that hypothetical, the State [*18] procedure could "offer no possible relief" because State law prohibited a response to the grievance until two weeks after it was filed—rendering the procedure of no use to an inmate threatened with death in 24 hours. Ibid. (emphasis added). In those circumstances, of course the procedure is unavailable—"it lacks authority to provide any relief," Ross, 136 S. Ct. at 1859, because as a matter of law it cannot respond quickly enough. We need not confront Judge Posner's hypothetical because TDCJ faces no legal bar to offering timely relief. TDCJ is empowered to act on a grievance any time up to—not after, as in Fletcher—the statutory limit. Relief by TDCJ therefore remains possible

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(and the procedure available), even if TDCJ has not acted as STEPHEN A. HIGGINSON, Circuit Judge, [*20] concurring

swiftly as Plaintiffs would like.2

in the judgment:

B.
Finally, it appears that the district court's injunction goes well beyond the limits of what the PLRA would allow even if the Plaintiffs had properly exhausted their claims. HN10[ ] The PLRA mandates that "[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm." 18 U.S.C. § 3626(a)(2). And the PLRA says courts [*19] "shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief." Ibid.
The district court's order recited these propositions, see PI Order at 1-2, but the injunction's substance contravenes them. This is a class-action injunction that applies to all inmates— disabled and non-disabled alike—in the Pack Unit. And it's hard to see how an injunction that prescribes both a prisonwide testing regime and a cleaning schedule down to the halfhour interval is "narrowly drawn" or the "least intrusive means" available. See id. at 3-4. So too with the requirement that every single sink have a sign over it with COVID-19 information. See id. at 3. These may be salutary health measures. But that level of micromanagement, enforced upon threat of contempt, does not reflect the principles of comity commanded by the PLRA.
* * *

I agree that Appellants have demonstrated a substantial likelihood of success on their claim that Appellees failed to exhaust prison remedies prior to seeking relief in federal court. Appellees did not submit any grievance request to prison authorities before filing this lawsuit, and I am not aware of any case, nor do Appellees or the district court cite one, in which a prisoner has been deemed compliant with the Prison Litigation Reform Act (PLRA) when there has been no attempt to file a grievance prior to suit in federal court.1
I write separately, however, to emphasize two points as governments, state and federal, respond to the COVID-19 crisis, which presents enormous and imminent health risks for prisoners and correctional officers alike.
First, the instant stay order does not foreclose the possibility that, upon expedited consideration, our court may nonetheless conclude that a remedy using the Texas Department of Criminal Justice's (TDCJ) grievance system is not "available" because of the immediacy of the COVID-19 medical emergency coupled with statements credited by the district court that prisoners' grievances may [*21] not be addressed promptly. If these plaintiffs—geriatric prisoners, many of whom are medically compromised—have no opportunity to expedite systemic medical emergency grievances, our court might hold that prison administrative remedies "operate[] as a simple dead end" giving prison officials apparent authority though they decline to exercise it. See Ross v. Blake, 136 S. Ct. 1850, 1859, 195 L. Ed. 2d 117 (2016).2 However, here it is undisputed that the plaintiffs sought relief in federal district

For the foregoing reasons, TDCJ's motion to stay the preliminary injunction pending appeal is GRANTED. The appeal is EXPEDITED to the next available argument calendar.
Concur by: STEPHEN A. HIGGINSON

1 Cf. United States v. Vigna, No. S1 16-CR-786-3 (NSR), 2020 U.S. Dist. LEXIS 68432, 2020 WL 1900495, at *5 (S.D.N.Y. Apr. 17, 2020) (noting that the court is not aware of any case where an inmate's failure to exhaust has been excused without the inmate "at least submitting a request [to the prison] . . . prior to, or in conjunction with, his or her application to the court").

Concur
2 Nor is the possibility of TDCJ action speculative. As noted above in Part II.B, Defendants offered uncontroverted testimony from the Director of TDCJ Health Services that TDCJ adopted an infection control policy as early as March 20, 2020. Dkt. 36-7 at 3. TDCJ's medical directors have updated the policy periodically in response to ever-evolving CDC guidelines and other input. Id. at 4.

2 See also Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1174 (7th Cir. 2010); Nellson v. Barnhart, No. 20-CV-00756-PAB, 2020 U.S. Dist. LEXIS 66971, 2020 WL 1890670, at *4 (D. Colo. Apr. 16, 2020) (discussing importance of an imminent-danger exception while also noting that the Supreme Court clarified that "total and immediate relief is not the standard for exhaustion, 'the possibility of some relief' is"). Cf. Muhammad v. Mayfield, 933 F.3d 993, 1000 (8th Cir. 2019) (identifying the examples in Ross as "at least three" of the circumstances where the administrative process may be "unavailable" (emphasis added)); Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016) ("We note that the three circumstances discussed in Ross do not appear to be exhaustive . . . .").

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court prior to filing any grievance, and Appellees cite no PLRA exhaustion caselaw supporting a not "available" determination ex ante.
Second, our reasoning on PLRA's exhaustion requirement does not foreclose federal prisoners from seeking relief under the First Step Act's provisions for compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i). Though that statute contains its own administrative exhaustion requirement, several courts have concluded that this requirement is not absolute and that it can be waived by the government or by the court, therefore justifying an exception in the unique circumstances of the COVID-19 pandemic. See, e.g., United States v. Russo, No. 16-cr-441 (LJL), 2020 U.S. Dist. LEXIS 65390, 2020 WL 1862294, at *4-5 (S.D.N.Y. Apr. 14, 2020) (holding that, "[d]espite the mandatory nature of [the [*22] statute's] exhaustion requirement," the exhaustion bar is "not jurisdictional" and can therefore be waived); United States v. Smith, No. 12 Cr. 133 (JFK), 2020 U.S. Dist. LEXIS 64371, 2020 WL 1849748, at *2-3 (S.D.N.Y. Apr. 13, 2020) (citing cases); see also Vigna, 2020 U.S. Dist. LEXIS 68432, 2020 WL 1900495, at *5-6 (identifying the difficulties of the First Step Act exhaustion question while ultimately deferring a ruling until the petitioner exhausted his remedies); but see United States v. Raia, F.3d , 2020 WL 1647922, at *2 (3d Cir. 2020); United States v. Clark, No. 17-85-SDD-RLB, 2020 U.S. Dist. LEXIS 59439, 2020 WL 1557397, at *3 (M.D. La. Apr. 1, 2020).3

also are intensely [*23] fact-based.5 The district court assessed lay and expert testimony before making extensive and careful findings of fact showing that mitigation deficiencies still exist. D. Ct. Op. at 7-14. However, given the TDCJ's systemic and ongoing responses to fast-changing guidance, I would reserve for the merits panel the complex question of whether and which of these deficiencies amount to a cognizable violation.
End of Document

Because Appellants are substantially likely to succeed on their argument that statutory exhaustion of administrative remedies was not even sought prior to filing this lawsuit, I would not reach the merits of Appellees' ADA and 42 U.S.C. § 1983 claims. Whereas those claims face high legal hurdles,4 they

3 I note that, unlike the PLRA, Section 3582 does not limit the exhaustion requirement to "available" remedies. See 18 U.S.C. § 3582(c)(1)(A) (authorizing a motion for a sentence reduction "after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility"). The "availability" caveat— PLRA's "built-in exception to the exhaustion requirement," Ross, 136 S. Ct. at 1855—arguably presents a stronger basis from which to conclude that Appellants were not required to exhaust their remedies here.
4 See Gobert v. Caldwell, 463 F.3d 339, 349 (5th Cir. 2006) (holding that "deliberate indifference exists wholly independent of an optimal standard of care"); see also Alexander v. Choate, 469 U.S. 287, 301, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985) (holding that an accommodation is reasonable under the ADA if it provides "meaningful access to the benefit[s] that the [prison] offers"); Love v.

Westville Corr. Ctr., 103 F.3d 558, 561 (7th Cir. 1996) (holding that in the prison context, it is appropriate to consider "[s]ecurity concerns, safety concerns, and administrative exigencies"); cf. Garza v. City of Donna, 922 F.3d 626, 636-37 (5th Cir. 2019) (holding that a deliberate indifference claim does not "require[] proof that officials subjectively intend that the harm occur" (emphasis added)).
5 See, e.g., Banks v. Booth, No. 1:20-cv-00849, 2020 U.S. Dist. LEXIS 68287 (D.D.C. Apr. 19, 2020) (order granting temporary restraining order in COVID-19 prison context); cf. Fraher v. Heyne, No. 1:10-cv-00951-MJS (PC), 2011 U.S. Dist. LEXIS 125581, 2011 WL 5240441, *2 (E.D. Cal. Oct. 31, 2011) (prisoner with preexisting heart condition who was refused a swine flu test could state a claim for violation of constitutional rights).

Case 2:20-cv-11053-MAG-RSW ECF No. 27-20 filed 05/12/20 PageID.1658 Page 1 of 6 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT S

Case 2:20-cv-11053-MAG-RSW ECF No. 27-20 filed 05/12/20 PageID.1659 Page 2 of 6

Neutral As of: May 11, 2020 4:33 PM Z

Marlowe v. Leblanc

United States Court of Appeals for the Fifth Circuit April 27, 2020, Decided No. 20-30276

Reporter 2020 U.S. App. LEXIS 14063 *
CHRISTOPHER MARLOWE, Plaintiff - Appellee v. JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; RAMAN SINGH, Doctor; TIMOTHY HOOPER, Warden; STEPHANIE MICHEL, Deputy Warden; MORGAN LEBLANC, Assistant Warden; PREETY SINGH, Doctor; GAIL LEVY; POLLY SMITH; FALLON STEWART; ELIZABETH GAUTHREAUX; JONATHAN TRAVIS; STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; PAM HEARD, Doctor; DARRYL CAMPBELL, Assistant Warden; JOHN MORRISON; ANGEL HORN, Master Sergeant; ROLANDA PALMER, Master Sergeant; CHERMAINE BROWN, Sergeant, Defendants - Appellants

TIMOTHY HOOPER, Warden, STEPHANIE MICHEL, Deputy Warden, MORGAN LEBLANC, Assistant Warden, PREETY SINGH, Doctor, Gail Levy, Polly Smith, Fallon Stewart, Elizabeth Gauthreaux, Jonathan Travis, State of Louisiana Through The Department of Public Safety And Corrections, PAM HEARD, Doctor, DARRYL CAMPBELL, Assistant Warden, John Morrison, ANGEL HORN, Master Sergeant, ROLANDA PALMER, Master Sergeant, CHERMAINE BROWN, Sergeant, Defendants - Appellants: Phyllis Esther Glazer, Louisiana Department of Justice, Office of the Attorney General, Baton Rouge, LA; James Garrison Evans, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA; Suzanne Quinlan Mooney, Louisiana Department of Justice, Baton Rouge, LA.

Prior History: [*1] Appeal from the United States District Court for the Middle District of Louisiana.

Judges: Before JONES, HIGGINSON, and OLDHAM, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge, concurring in the judgment.

Marlowe v. Leblanc, 2020 U.S. Dist. LEXIS 72146 (M.D. La.,

Apr. 23, 2020)

Opinion

Core Terms
district court, injunction, measures, grievance, spread, prison, distancing, practices, exhaust, pending appeal, indifference, irreparable, deliberate, virus
Counsel: For Christopher Marlowe, Plaintiff - Appellee: Emily Henrion Posner, New Orleans, LA.
For James M. Leblanc, Secretary, Department of Public Safety And Corrections, RAMAN SINGH, Doctor,

PER CURIAM:
This appeal concerns the efforts of Louisiana's Department of Public Safety and [*2] Corrections ("DPSC") to respond to the rapidly evolving COVID-19 pandemic on behalf of one prisoner in one unit. On April 23, 2020, the United States District Court for the Middle District of Louisiana issued an injunction requiring Defendants to comply with their own internal policies and submit a plan to ensure proper social distancing and hygiene practices. Dist. Ct. Order at 13-14. This order came just one day after this court stayed a similar injunction against the Texas Department of Criminal Justice. Valentine v. Collier, No. 20-20207, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431 (5th Cir. Apr. 22, 2020). We conclude that Valentine's reasoning controls here and

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2020 U.S. App. LEXIS 14063, *2

accordingly stay the district court's injunction pending appeal. ANALYSIS1

BACKGROUND
Plaintiff, a prisoner currently detained at the Rayburn Correctional Center ("RCC"), originally filed suit against Defendants in 2018, alleging they exhibited deliberate indifference toward his medical needs by providing a constitutionally deficient meal service that resulted in his developing diabetes and then failing to adequately treat his illness. On April 1, 2020, Plaintiff filed a motion tangential to the ongoing dispute, requesting a temporary restraining order authorizing his supervised release until spread of the COVID19 virus is no longer [*3] a threat within the Department of Corrections. Defendants opposed the motion on the basis of jurisdictional obstacles, Plaintiff's failure to exhaust administrative remedies, and the deficiency of Plaintiff's constitutional claim on its merits.
The district court conducted a telephonic evidentiary hearing on April 7. Following the evidentiary hearing, Defendants submitted a memorandum updating the district court on the numerous procedures taken at RCC to contain the spread of COVID-19. Plaintiff responded that these procedures were "woefully inadequate" and "deliberately indifferent" to his medical needs. He also suggested, for the first time, that, in lieu of temporary release, the court could order that RCC create conditions that allow for proper social distancing to protect him. The district court latched on to this eleventh-hour request. After determining that Plaintiff was likely to prevail on the merits of his deliberate indifference claim, it ordered Defendants to "comply with the Governor's recommendations and their own internal policies concerning disinfection of common areas and the wearing of masks by staff and certain categories of offenders." Dist. Ct. Order at 13. It further [*4] ordered Defendants to "submit to the [c]ourt a [p]lan to ensure the implementation of proper hygiene practices in the dormitory in which Plaintiff is assigned, and to implement social distancing practices to limit the spread of COVID-19." Id. at 14. The Defendants were ordered to submit said plan within five days, i.e. by Tuesday, April 28. Id.

Four well established factors govern the propriety of a stay pending appeal: "(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, 129 S. Ct. 1749, 1761, 173 L. Ed. 2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119, 95 L. Ed. 2d 724 (1987)). "The first two factors . . . are the most critical." Id. at 434.
We begin by considering Defendants' likelihood of success on appeal. In making this assessment, we are bound by a decision [*5] in which this court recently resolved a motion for stay raising nearly identical issues. See Valentine v. Collier, No. 20-20207, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431 (5th Cir. Apr. 22, 2020). Although Valentine's facts are slightly different from the facts of this case, we might have expected the district court to at least mention Valentine. Perhaps Defendants did not apprise the district court of our decision before the issuance of its injunction. Valentine was decided just one day earlier. But Defendants repeatedly cite Valentine in their motion to stay enforcement of the injunction pending appeal. And yet, for whatever reason, the district court has not ruled on that motion. Regardless of the basis for the district court's decision, we must consider Defendants' arguments in light of Valentine, and, for three independent reasons, conclude that Defendants are likely to succeed on appeal.
First, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), prohibits the injunction imposed by the district court. As this court explained in Valentine, a district court cannot enjoin a state facility to follow state law. Valentine, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *4. Yet that is exactly what the district court did here. It concluded that "Defendants do not appear to be following" their own policy statements. Dist. Ct.

Defendants, relying heavily on this court's just-issued Valentine decision, requested that the district court stay enforcement of the injunction. The district court has yet to rule on that motion. Defendants then appealed to this court, requesting a stay pending appeal.

1 Plaintiff contends that the district court's order is a TRO, governed by Fed. R. Civ. P. 65(b) and normally unappealable. See Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999). However, precedent makes clear that when a court holds a hearing on a preliminary motion and the motion is strongly contested, its resulting order constitutes an injunction appealable under 28 U.S.C. § 1291(a)(1). See Sampson v. Murray, 415 U.S. 61, 87, 94 S. Ct. 937, 951, 39 L. Ed. 2d 166 (1974) ("[W]here an adversary hearing has been held, and the court's basis for issuing the order strongly challenged, classification of [a] potentially unlimited order as a temporary restraining order seems particularly unjustified.").

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2020 U.S. App. LEXIS 14063, *5

Order at 10. For instance, "despite taking some steps to deter the spread [*6] of the virus, [RCC] has not effectively implemented the [Department of Correction] policies that require staff members and orderlies to wear masks and other [personal protective equipment] to protect the prison population, including the Plaintiff." Id. at 11. The court further determined that RCC "failed to meaningfully implement social-distancing procedures and other measures aimed at thwarting the spread of the coronavirus." Id. The court therefore ordered Defendants to comply with "their own internal policies" and "implement social distancing practices to limit the spread of COVID-19." Id. at 13-14. Pennhurst forbids this.
Plaintiff contends the court's injunction does not run afoul of Pennhurst because it is intended to correct constitutionally deficient medical care. The court did not so express itself, and in any event, the essence of Pennhurst is that a federal court lacks jurisdiction to sit as a super-state executive by ordering a state entity to comply with its own law.
Second, the district court's analysis falls woefully short of satisfying either the objective or subjective requirements of Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). We do not question that COVID-19 presents a risk of serious harm to those confined in prisons, nor that [*7] Plaintiff, as a diabetic, is particularly vulnerable to the virus's effects. But, for purposes of resolving Plaintiff's Eighth Amendment claim, we are not tasked with resolving whether, absent RCC's precautionary measures, the COVID19 pandemic presents a substantial risk of serious harm to prisoners like Plaintiff. Rather, the question here is whether the Eighth Amendment requires RCC to do more than it has already done to mitigate the risk of harm. The district court's laconic analysis provides little basis for concluding that RCC's mitigation efforts are insufficient. Indeed, because the district court made few (if any) factual findings, it left no reviewable basis to conclude that the measures implemented by Defendants are constitutionally deficient.2 Plaintiff cites no precedent supporting a contrary conclusion, and we are aware of none.
Even assuming that Plaintiff's testimony somehow satisfies Farmer's objective requirement, the district court cited no evidence establishing that Defendants subjectively believed that the measures they were (and continue) taking were
2 Warden Robert Tanner, the Warden of RCC, offered a declaration that blunts many (if not all) of Plaintiff's concerns, giving us further cause to doubt that Plaintiff has come close to satisfying the "extremely high standard" of deliberate indifference. Cadena v. El Paso Cty., 946 F.3d 717, 728 (5th Cir. 2020).

inadequate. If anything, the record proves just the opposite. Defendants point to a plethora of measures they are taking to abate the risks posed [*8] by COVID-19, from providing prisoners with disinfectant spray and two cloth masks to limiting the number of prisoners in the infirmary lobby and painting markers on walkways to promote social distancing. Plaintiff's own counsel conceded at the April 7 evidentiary hearing that "everyone here is trying their very, very best to make sure that nobody gets sick at [RCC]." The district court's analysis resembles the analysis we condemned in Valentine, where the district court had treated inadequate measures as dispositive of the defendants' mental state. "Such an approach," we explained, "resembles the standard for civil negligence, which Farmer explicitly rejected." Valentine, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *4.
In opposing this stay, Plaintiff now asserts, contrary to the above-quoted statement, that RCC's measures in fact demonstrate deliberate indifference. Plaintiff's evidence is no different, however, and indeed, Defendants have been heightening their efforts to contain the virus. Although the virus has spread within RCC, given the many prevention measures RCC has taken, an increase in infection rate alone is insufficient to prove deliberate indifference.
Third, the district court's exhaustion analysis under the Prison Litigation [*9] Reform Act runs counter to Supreme Court precedent. The district court acknowledged that Plaintiff failed to exhaust administrative remedies. It nonetheless excused Plaintiff, reasoning that "the interests of justice" compelled it to act on an emergency basis. See Johnson v. Ford, 261 F. App'x 752, 755 (5th Cir. 2008). As this court explained in Valentine, such an approach is out-of-step with Supreme Court precedent, see Valentine, 2020 1934431, at *6-7, and this court has disavowed the "interests of justice" exception embraced in Johnson, see Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (holding that Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998), which Johnson relied on, was "tacitly overruled and is no longer good law to the extent it permits prisoner lawsuits challenging prison conditions to proceed in the absence of pre-filing administrative exhaustion"). It must be acknowledged that Superintendent LeBlanc issued an order on March 23 temporarily suspending the administrative deadlines for replying to grievances, and such order may have affected the "availability" of exhaustion. But Plaintiff makes no effort to explain the impact of that order on his refusing to file a grievance or on the way in which it would have been processed. The record, moreover, indicates that grievances are currently being processed within 48 hours. [*10] Dist. Ct. Order at 6 n.3.

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2020 U.S. App. LEXIS 14063, *10

For at least these three, independent reasons,3 we conclude that Defendants have demonstrated a substantial likelihood of success on the merits.

to respond to the pandemic so far." Valentine, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *5. In light of these concerns, the second factor weighs in Defendants' favor.

Turning to the second stay factor, Defendants have shown that they will be irreparably injured absent a stay. "When the State is seeking to stay a preliminary injunction, it's generally enough to say '[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.'" Valentine, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *4 (quoting Maryland v. King, 567 U.S. 1301, 133 S. Ct. 1, 3, 183 L. Ed. 2d 667 (2012)). The Louisiana Legislature assigned the prerogatives of prison policy to DPSC. See La. Stat. § 36:401. "The district court's injunction prevents the State from effectuating the Legislature's choice and hence imposes irreparable injury." Valentine, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *4.4
As if that weren't enough, the Supreme Court has repeatedly warned that "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, 126 S. Ct. 2378, 2388, 165 L. Ed. 2d 368 (2006) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S. Ct. 1827, 1837, 36 L. Ed. 2d 439 (1973)). Here, the district court invaded Louisiana's interests by requiring Defendants to create a plan within five days "to ensure [*11] the implementation of proper hygiene practices in the dormitory in which Plaintiff is assigned," "to implement social distancing practices to limit the spread of COVID-19," and "to minimize Plaintiff's exposure to possible infected persons while visiting infirmary and cafeteria areas of the prison." Dist. Ct. Order at 14. The harm to Louisiana's interests is "particularly acute because the district court's order interferes with the rapidly changing . . . approach that [DPSC] has used
3 Defendants also argue that they are likely to succeed on appeal "because the claims upon which the injunctive relief were granted are not pleaded in this lawsuit." We offer no opinion on this argument at this stage of the appeal.
4 See also In re Abbott, 954 F.3d 772, 792 (5th Cir. 2020) ("As Jacobson repeatedly instructs, . . . if the choice is between two reasonable responses to a public crisis, the judgment must be left to the governing state authorities. 'It is no part of the function of a court or a jury to determine which one of two modes [i]s likely to be the most effective for the protection of the public against disease.' . . . Such authority properly belongs to the legislative and executive branches of the governing authority." (second alteration in original) (quoting Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 30, 25 S. Ct. 358, 363, 49 L. Ed. 643 (1905))).

The remaining two factors—balance of the harms and the public interest—likewise weigh in favor of staying the district court's injunction. COVID-19 unquestionably poses risks of harm to all Americans—particularly those like Plaintiff who have underlying health conditions. "But the question is whether Plaintiff[] has shown that [he] will suffer irreparable injuries even after accounting for the [DPSC's] protective measures . . . . Neither the Plaintiff[] nor the district court suggest the evidence satisfies that standard. And '[b]ecause the State is the appealing party, its interest and harm merge [*12] with that of the public.'" Id. (emphasis in original) (quoting Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017)).
Because Defendants have satisfied all four stay factors, their motion to stay the preliminary injunction pending appeal is GRANTED.
Concur by: STEPHEN A. HIGGINSON
Concur
STEPHEN A. HIGGINSON, Circuit Judge, concurring in the judgment:
I concur in the court's stay order because I agree that the Appellants have demonstrated a substantial likelihood of success on their claim that Marlowe failed to exhaust his administrative remedies. It is undisputed that Marlowe did not file a grievance with the prison until several days after he filed his motion with the district court. See Valentine v. Collier, F.3d , No. 20-20207, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *7 (5th Cir. Apr. 22, 2020) (Higginson, J., concurring in judgment). Though Marlowe now argues that Appellants' suspension of the grievance deadline process renders the prison's administrative remedies "unavailable," the district court was apparently presented with this evidence and still came to the conclusion that the prison is required to adjudicate Marlowe's grievance by May 7, 2020. In their request for a stay, the Appellants do not dispute that May 7, 2020 is the deadline for their response. Should the prison fail to adjudicate Marlowe's grievance by May 7, 2020, there may well be an argument [*13] that the administrative grievance process is "unavailable." See Ross v. Blake, 136 S. Ct. 1850, 1859, 195 L. Ed. 2d 117 (2016).

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2020 U.S. App. LEXIS 14063, *13 Finally, this order does not foreclose Marlowe, a diabetic, from continuing to seek relief through other appropriate channels, such as the state parole process. Marlowe's September 2019 application for commutation, which appears to be pending, includes over 100 pages of exhibits and letters that purport to show that he has been a model prisoner while in the custody of the Louisiana Department of Corrections.5
End of Document
5 Although we respect that it is the exclusive prerogative of the Louisiana Pardon and Parole Board to conclude if this evidence demonstrates that he is entitled to relief, all judges on this panel concur that the clemency petition appears well-supported.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-21 filed 05/12/20 PageID.1664 Page 1 of 5 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT T

Case 2:20-cv-11053-MAG-RSW ECF No. 27-21 filed 05/12/20 PageID.1665 Page 2 of 5

Positive As of: May 11, 2020 4:46 PM Z

Burnett v. Howard

United States District Court for the Western District of Michigan, Northern Division March 30, 2010, Decided; March 30, 2010, Filed CASE NO. 2:09-cv-37

Reporter 2010 U.S. Dist. LEXIS 30499 *; 2010 WL 1286256
MICHAEL ANGELO BURNETT, Plaintiff, v. TYREE HOWARD, et al., Defendants.
Prior History: Burnett v. Howard, 2010 U.S. Dist. LEXIS 30501 (W.D. Mich., Feb. 16, 2010)
Core Terms
grievance, exhaustion, administrative remedy, motion to dismiss, fail to exhaust, summary judgment motion, preliminary injunction

determination that defendants were not entitled to dismissal of plaintiff's claims because plaintiff failed to exhaust his administrative remedies as required by 42 U.S.C.S. § 1997e(a). The court sustained defendants' objection and granted their motions to dismiss. Defendants attached four grievances filed by plaintiff, claiming that these were the only "relevant grievances," and correctly pointed out that none of them properly exhaust plaintiff's administrative remedies because none of them specifically stated a grievance against any of the six defendants named in plaintiff's § 1983 action as required by the prison grievance policies in effect when the grievances were filed. Defendants put plaintiff to his proofs when they introduced evidence of failure to exhaust with their motion to dismiss, and plaintiff failed to introduce any evidence in opposition. Whether the issue was properly decided under the standard governing motions for summary judgment or motions to dismiss, the court held that as a matter of law plaintiff failed to exhaust his administrative remedies against any of the defendants.

Case Summary

Procedural Posture
Plaintiff, a pro se inmate, sued under 42 U.S.C.S. § 1983. Defendants filed two motions to dismiss, one before and one after plaintiff filed his amended complaint. Plaintiff moved for a temporary restraining order/preliminary injunction. A magistrate judge recommended, inter alia, that defendants' motions to dismiss be denied and plaintiff's motion for a temporary restraining order/preliminary injunction be denied. The parties filed objections.

Outcome Defendants' objections to the report and recommendation were approved in part and overruled in part. To the extent defendants objected to the magistrate judge's determination that they were not entitled to dismissal of plaintiff's claims based on plaintiff's failure to exhaust, the objection was sustained. All other objections were overruled. Defendants' motions to dismiss were granted. Plaintiff's objections were overruled.

Overview

LexisNexis® Headnotes

Defendants objected, inter alia, to the magistrate judge's

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2010 U.S. Dist. LEXIS 30499, *30499

Civil Procedure > Judicial Officers > Magistrates > Standards of Review
HN1[ ] Magistrates, Standards of Review
The court must review de novo those portions of the report and recommendation to which specific objection has been made, and may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Civil Rights Law > ... > Prisoner Rights > Prison Litigation Reform Act > Exhaustion of Administrative Remedies

Counsel: [*1] Michael Angelo Burnett # 200640, plaintiff, Pro se, Kincheloe, MI.
For Tyree Howard, Physician, in his individual and official capacity, W. M. Warren, Physician, in their individual and official capacity, defendants: Anthony D. Pignotti, Brian J. Richtarcik, Randall Alan Juip, The JuipRichtarcik Law Firm, Detroit, MI.
For Richard Miller, Physician, in his individual and official capacity, Jerry Rocco, Physician, in their individual and official capacity, Brenda Parker, Physician, in her individual and official capacity, defendants: Anthony D. Pignotti, The JuipRichtarcik Law Firm, Detroit, MI.

HN2[ ] Prison Litigation Reform Act, Exhaustion of Judges: HON. ROBERT HOLMES BELL, UNITED

Administrative Remedies

STATES DISTRICT JUDGE.

Proper exhaustion of administrative remedies is required

before a prisoner may bring suit under 42 U.S.C.S. § 1983. 42

U.S.C.S. § 1997e(a).

Opinion by: ROBERT HOLMES BELL

Civil Rights Law > ... > Prisoner Rights > Prison Litigation Reform Act > Exhaustion of Administrative Remedies

Opinion

HN3[ ] Prison Litigation Reform Act, Exhaustion of

Administrative Remedies

MEMORANDUM OPINION AND ORDER

To properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the applicable procedural rules--rules that are defined not by the Prison Litigation Reform Act (PLRA), but by the prison grievance process itself. Compliance with prison grievance procedures is all that is required by the PLRA to "properly exhaust." The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion. As long as the state clearly rejects a grievance for a reason explicitly set forth in the applicable grievance procedure, a subsequent § 1983 claim based on the grievance will be subject to dismissal for failure to properly exhaust.

This is an action brought by Plaintiff Michael Angelo Burnett pursuant to 42 U.S.C. § 1983. Defendants Howard, Miller, Parker, Warren, and Roco have filed two motions to dismiss, one before and one after Plaintiff filed his amended complaint on April 3, 2009. (Dkt. Nos. 9, 61.) Plaintiff has filed a motion for a temporary restraining order/preliminary injunction (Dkt. No. 21) and a motion to amend his complaint (Dkt. No. 34). On February 16, 2010, Magistrate Judge Timothy P. Greeley issued a report [*2] and recommendation ("R&R") recommending that Defendants' motions to dismiss be denied, Plaintiff's motion for a temporary restraining order/preliminary injunction be denied, and that Plaintiff's motion for leave to amend his complaint be denied. (Dkt. No. 70.) Defendants filed objections to the R&R on March 2, 2010, and Plaintiff filed objections on March 5, 2010. HN1[
] This Court must review de novo those portions of the R&R to which specific objection has been made, and may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R.

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2010 U.S. Dist. LEXIS 30499, *2

Civ. P. 72(b).
I. Defendant's Objections
Defendants first object to the Magistrate Judge's determination that Defendants are not entitled to dismissal of Plaintiff's claims because Plaintiff failed to exhaust his administrative remedies. HN2[ ] Proper exhaustion of administrative remedies is required before a prisoner may bring suit under § 1983. 42 U.S.C. § 1997e(a). The Supreme Court has held:
HN3[ ] To properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the applicable procedural rules - rules that are defined not by the PLRA, but by the prison [*3] grievance process itself. Compliance with prison grievance procedures, is all that is required by the PLRA to "properly exhaust." The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.
Jones v. Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007) (citations omitted). As long as the state clearly rejects a grievance for a reason explicitly set forth in the applicable grievance procedure, "a subsequent § 1983 claim based on the grievance will be subject to dismissal for failure to properly exhaust." Grear v. Gelabert, No. 07-cv-203, 2008 U.S. Dist. LEXIS 11669, 2008 WL 474098, at *2 n.1 (W.D. Mich. Feb. 15, 2008).
Although the Supreme Court has held that failure to exhaust is an affirmative defense and that the defendant bears the burden of proving it, Bock, 549 U.S. at 216, neither the Supreme Court nor the Sixth Circuit has specified whether a defendant should use a motion to dismiss under Rule 12(b) or a motion for summary judgment under Rule 56 to make the required showing. At least two circuits have explicitly concluded that, because the issue of exhaustion [*4] is a matter in abatement, defendants should raise the issue in a motion to dismiss rather than a motion for summary judgment. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Under this procedure, the Court is permitted to make factual findings as to whether the exhaustion requirement has been satisfied. Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 481 (6th Cir. 2009); Bryant, 530 F.3d at 1374-75; Wyatt, 315 F.3d at 1119. However, the Sixth Circuit has determined that although the exhaustion requirement has "jurisdictional characteristics," it is not a jurisdictional requirement. Wyatt v. Leonard, 193

F.3d 876, 879 (6th Cir. 1999). Such a conclusion would suggest that Defendants should raise the issue of exhaustion in a motion for summary judgment rather than a motion to dismiss, in which case the Court should permit the jury to determine whether the exhaustion requirement has been satisfied when genuine issues of material fact exist. See Fed. R. Civ. P. 56.
Though the Sixth Circuit has not provided guidance as to whether the exhaustion issue should be analyzed the under the standard governing motions for summary judgment [*5] or the standard governing motions to dismiss, the question is merely academic in this case. If the Court were to treat Plaintiff's motion as a motion to dismiss, it would use its factfinding power to determine that Defendants have carried their burden of demonstrating that Plaintiff failed to exhaust his administrative remedies. If the Court were to treat Defendant's motion as a motion for summary judgment, the Court would determine that there are no genuine issues of material fact as to whether Plaintiff failed to exhaust his administrative remedies.
Defendants filed their original motion to dismiss on March 30, 2009. (Dkt. No. 9.) To this motion Defendants attached four grievances filed by Plaintiff on June 20, 2006, April 8, 2007, December 1, 2008, and December 15, 2008. (Id. at Ex. B.) Defendants claim that these are the only "relevant grievances," and correctly point out that none of them properly exhaust Plaintiff's administrative remedies because none of them specifically state a grievance against any of the six Defendants named in Plaintiff's § 1983 action as required by the MDOC grievance policies in effect when the grievances were filed. (Dkt. No. 61, Ex. A P T (effective [*6] 12/19/03), P R (effective 03/05/07), P R (effective 07/09/07) ("names of all those involved in the issue being grieved are to be included [in the grievance]."); see Sullivan v. Kasajaru, 316 F. App'x 469 (6th Cir. 2009) (unpublished). Defendants' evidence is certainly probative of whether Plaintiff failed to exhaust his administrative remedies, and should be considered in determining whether Defendants have satisfied their burden of showing lack of exhaustion. 1 Defendants' March 30, 2009, showing is sufficient to shift the burden to Plaintiff to demonstrate that there is an issue of fact as to whether he failed to exhaust his administrative remedies. Fed. R. Civ. P. 56(e)(2).
1 It can be difficult to prove a negative. The Magistrate Judge suggests that Defendants should have provided the Court with an affidavit verifying that no other relevant grievances exist. Though such an affidavit would have been helpful, the Court does not believe it to be necessary. The evidence of failure to exhaust that Defendants did submit in this case was sufficient to meet its burden.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-21 filed 05/12/20 PageID.1668 PaPgaege54 ooff45
2010 U.S. Dist. LEXIS 30499, *6

Plaintiff attempts to create an issue of fact by attaching a grievance filed January 20, 2008, to his response to Defendants' [*7] March 30, 2009, motion. (Dkt. No. 18, Ex. 2) However, this grievance does not help Plaintiff. It cannot serve as the grievance that exhausts Plaintiff's administrative remedies because it is duplicative of other grievances and thus does not comply with the MDOC grievance policy. (Dkt. No. 61, Ex. A P G(1) (all policies) ("A grievance may also be rejected [if it is] duplicative of [the issues] raised in another grievance by the grievant.")); see Grear, 2008 U.S. Dist. LEXIS 11669, 2008 WL 474098, at *2 n.1. Plaintiff does not introduce evidence, or even allege, that he filed any other grievances that properly exhausted his administrative remedies. Thus, Defendants put Plaintiff to his proofs when they introduced evidence of failure to exhaust with their March 30, 2009, motion, and Plaintiff failed to introduce any evidence in opposition. Whether the issue is properly decided under the standard governing motions for summary judgment or motions to dismiss, the Court holds that as a matter of law Plaintiff failed to exhaust his administrative remedies against any of the Defendants.
Defendants next object to the Magistrate Judge's determination that Plaintiff's complaint states an Eighth Amendment claim for deliberate [*8] indifference to a serious medical need. The Court agrees with the Magistrate Judge. Plaintiff has pleaded facts relating to both deliberate indifference and the seriousness of his medical condition that, if true, are sufficient to entitle him to relief. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998).
Finally, Defendants object to the Magistrate Judge's determination that Plaintiff's claims are not precluded by the applicable three-year limitations period. The Court agrees with the Magistrate Judge. To the extent Plaintiff contends that his Eighth Amendment rights were violated at any point after February 13, 2006, Plaintiff's claims are not barred by the limitations period. However, Eighth Amendment claims based on the denial of medical attention prior to February 13, 2006, are barred by the limitations period.

Plaintiff is likely to suffer irreparable harm in the absence of a preliminary injunction, a preliminary injunction is still not appropriate. See In re Delorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985) (noting that the Court must balance the four factors of the preliminary injunction analysis). Accordingly,
IT IS HEREBY ORDERED that Defendants' objections to the R&R (Dkt. No. 73) are approved in part and overruled in part. To the extent Defendants object to the Magistrate Judge's determination that they are not entitled to dismissal of Plaintiff's claims based on Plaintiff's failure to exhaust, the objection is SUSTAINED. All other objections are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff's objections to the R&R (Dkt. No. 74) are OVERRULED.
IT IS FURTHER ORDERED that the R&R (Dkt. No. 70) is rejected in part and approved in part. To the extent the Magistrate Judge determined that Defendants are not entitled to dismissal of Plaintiff's claims for Plaintiff's failure to exhaust, that [*10] determination is REJECTED, and replaced with the opinion set forth herein. In all other respects the R&R is APPROVED and, combined with the opinion set forth herein, ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Defendants' motions to dismiss (Dkt. Nos. 9, 61) are GRANTED.
IT IS FURTHER ORDERED that Plaintiff's motion for a temporary restraining order/preliminary injunction (Dkt. No. 21) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's motion for leave to amend his complaint (Dkt. No. 34) is DENIED.
A judgment consistent with this opinion and order will be entered.
Dated: March 30, 2010
/s/ Robert Holmes Bell

II. Plaintiff's Objections

ROBERT HOLMES BELL

Plaintiff objects to the Magistrate Judge's determination that he is not entitled to preliminary injunctive relief because he has failed to establish a likelihood of success on the merits and that he will suffer irreparable harm absent such relief. The Court agrees with the Magistrate Judge. As discussed above, Plaintiff has not shown a likelihood [*9] of succeeding on his Eighth Amendment claim because he failed to exhaust his administrative remedies prior to bringing suit under § 1983. For this reason, even if the Court were to conclude that

UNITED STATES DISTRICT JUDGE
End of Document

Case 2:20-cv-11053-MAG-RSW ECF No. 27-22 filed 05/12/20 PageID.1669 Page 1 of 9 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT U

Case 2:20-cv-11053-MAG-RSW ECF No. 27-22 filed 05/12/20 PageID.1670 Page 2 of 9

MICHIGAN DEPARTMENT OF CORRECTIONS
POLICY DIRECTIVE

EFFECTIVE DATE
03/18/2019

NUMBER
03.02.130

SUBJECT
PRISONER/PAROLEE GRIEVANCES

SUPERSEDES
03.02.130 (07/09/2007)
AUTHORITY
MCL 791.203

PAGE

1

OF

8

POLICY STATEMENT:

Prisoners and parolees shall be provided with an effective method of seeking redress for alleged violations of policy and procedure or unsatisfactory conditions of confinement.

RELATED POLICIES:

01.01.140 Internal Affairs 03.02.131 Prisoner State Administrative Board Property Claims 03.03.140 Prison Rape Elimination Act (PREA) and Prohibited Sexual Conduct Involving Prisoners

DEPARTMENT-WIDE OPERATING PROCEDURE:

03.02.130 Prisoner/Parole Grievances

POLICY:

DEFINITIONS

A.

Business day: Monday through Friday, 8:00 to 4:30, excluding State observed holidays.

B.

Respondent: The staff person who investigates and responds to a grievance.

GENERAL INFORMATION

C.

Complaints filed by prisoners regarding grievable issues as defined in this policy serve to exhaust a

prisoner's administrative remedies only when filed as a grievance through all three steps of the

grievance process in compliance with this policy.

D.

Grievances filed regarding sexual abuse, including those filed by a third party, shall not be processed

as grievances under this policy but shall be reported in accordance with PD 03.03.140 “Prison Rape

Elimination Act (PREA) and Prohibited Sexual Conduct Involving Prisoners.” Any grievance submitted

under this policy that contains an allegation of sexual abuse shall be copied by the Grievance

Coordinator and forwarded to the PREA Coordinator. The original grievance shall be returned to the

prisoner. If the grievance also includes a non-PREA grievable issue, it will need to be refiled by the

prisoner.

E.

The grievance process shall be equally available to all prisoners housed in a correctional facility,

including prisoners incarcerated under the Holmes Youthful Trainee Act, and all parolees unless placed

on modified access pursuant to this policy. Probationers are not covered by this policy but may resolve

specific problems and complaints with supervising staff and, if not resolved, with the sentencing court. If

the probationer is housed in the Special Alternative Incarceration Program, s/he shall follow the

grievance process set forth in PD 05.01.142 "Special Alternative Incarceration Program.” Prisoners

housed in non-MDOC facilities shall follow the established grievance process for the facility in which

they are confined.

F.

Grievances may be submitted regarding alleged violations of policy or procedure or unsatisfactory

conditions of confinement that personally affect the grievant, including alleged violations of this policy

and related procedures.

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G

If a prisoner chooses to file a claim for reimbursement of personal property allegedly lost or damaged

while in the Department’s sole possession, s/he shall request a Prisoner Claim Against the State of

Michigan (DTMB-1104-P) form from the Grievance Coordinator in accordance with PD 03.02.131

“Prisoner State Administrative Board Property Claims.”

H.

Grievances shall not be rejected or denied solely because the prisoner has not included with his/her

grievance exhibits or other documents related to the grievance; funds shall not be loaned to a prisoner

to pay for photocopying of such documents. If the grievance references documents that are not in the

prisoner's files or otherwise available to the Grievance Coordinator or respondent except through the

prisoner, the documents shall be reviewed with the prisoner as part of the grievance investigation

process if necessary to respond on the merits. If the Grievance Coordinator or respondent determines

that a copy of a document is needed for the grievance investigation, the copy shall be made at

Department expense.

I.

A grievant whose grievance is rejected may appeal the rejection to the next step as set forth in this

policy. A new grievance shall not be filed regarding the rejection.

REASONS FOR REJECTION

J.

Prisoners and parolees are required to file grievances in a responsible manner. A grievance shall be

rejected by the Grievance Coordinator if:

1.

It is vague, illegible, or contains multiple unrelated issues.

2.

It raises issues that are duplicative of those raised in another grievance filed by the grievant.

3.

The grievant is on modified access pursuant to Paragraphs JJ through NN and has filed a

grievance in violation of those paragraphs.

4.

The grievant did not attempt to resolve the issue with the staff member involved prior to filing

the grievance unless prevented by circumstances beyond his/her control or if the issue falls

within the jurisdiction of Internal Affairs in the Office of Executive Affairs.

5.

The grievance is filed in an untimely manner. The grievance shall not be rejected if there is a

valid reason for the delay; e.g., transfer.

6.

It contains profanity, threats of physical harm, or language that demeans the character, race,

ethnicity, physical appearance, gender, religion, or national origin of any person, unless it is part

of the description of the grieved behavior and is essential to that description.

7.

Two or more prisoners and/or parolees have jointly filed a single grievance regarding an issue

of mutual impact or submit identical individual grievances regarding a given issue as an

organized protest.

8.

The prisoner is grieving content of the policy or procedure except as it was specifically applied

to the grievant. If a prisoner has a concern with the content of a policy or procedure, s/he may

direct comments to the Warden's Forum as provided in PD 04.01.105 "Prisoner Housing Unit

Representatives/Warden's Forum.”

9.

The prisoner is grieving a decision made in a Class I misconduct hearing or other hearings

conducted by Administrative Law Judges (ALJ’s) employed by the Michigan Department of

Licensing and Regulatory Affairs (LARA), including property disposition and issues directly

related to the hearing process (e.g., sufficiency of witness statements; timeliness of misconduct

review; timeliness of hearing). Prisoners are provided an appeal process for Class I decisions

pursuant to PD 03.03.105 “Prisoner Discipline.”

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10. The prisoner is grieving a decision made by the Parole Board to grant, deny, rescind, amend or revoke parole, or not to proceed with a lifer interview or a public hearing. This includes grieving the tools (scoring weights and ranges) utilized in developing guideline scores. However, a prisoner may challenge the calculation of his/her parole guideline score, including the accuracy of the information used in calculating the score by filing a grievance.

11. The prisoner is grieving a decision made in a Class II or Class III misconduct hearing, including property disposition, and issues directly related to the hearing process (e.g., sufficiency of witness statements, timeliness of misconduct review, timeliness of hearing). Prisoners are provided an appeal process for Class II and Class III decisions pursuant to PD 03.03.105 “Prisoner Discipline.”

12. The prisoner is grieving issues not within the authority of the Department to resolve (e.g., disputes between a prisoner and an MDOC vendor or an outside agency (courts), etc.). The grievant shall be told who to contact in order to attempt to resolve the issue, if known.

13. The prisoner is grieving the result of a Risk Assessment Instrument (e.g., COMPAS) or Transition Accountability Plan (TAP). However, a prisoner may challenge the accuracy of the information used in assessments, including in the TAP.

14. The prisoner is seeking reimbursement for property loss or damage that must be submitted pursuant to PD 03.02.131 “Prisoner State Administrative Board Property Claims.”

K.

Grievances shall not be placed in Counselor files, Record Office files, or Central Office files, or placed in

the prisoner health record. Grievances also shall not be referenced on any document placed in these

files or the prisoner health record, except as necessary pursuant to Paragraph M. Grievance

documents and files shall be accessed only to investigate or respond to a pending grievance, to

respond to a request under the Freedom of Information Act, to respond to a request from the

Department of Attorney General or appropriate Central Office staff, for audits, for statistical reporting, or

to the Warden or his/her supervisor.

L.

A grievant shall not be penalized in any way for filing a grievance except as provided in this policy for

misusing the grievance process. Staff shall avoid any action that gives the appearance of reprisal for

using the grievance process.

M. With the Warden’s approval, a prisoner may be issued a Class II misconduct report (e.g., Interference With Administration of Rules) if the grievant intentionally files a grievance that is investigated and determined to be unfounded that, if proven true, may have caused an employee or a prisoner to be disciplined or an employee to receive corrective action. The Class II misconduct may be elevated to a Class I misconduct only if approved by the Warden. The misconduct report shall be processed as set forth in PD 03.03.105 "Prisoner Discipline.” If the grievant is found guilty of the misconduct, the grievant shall be placed on modified access consistent with Paragraphs JJ through NN.

N.

Wardens and FOA Region Managers shall ensure prisoners and parolees are provided assistance in

completing a grievance form, if s/he determines it is needed. In such cases, assistance shall be

provided by a staff member who is not involved in the grievance.

GRIEVANCE COORDINATORS

O. Each Warden shall designate at least one staff member to serve as the Step I Grievance Coordinator and at least one staff member to serve as the Step II Grievance Coordinator. The FOA Deputy Director shall designate staff members to serve as Step I Grievance Coordinators and Step II Grievance Coordinators for each FOA field office. Step III grievances shall be processed by the Grievance Section in the Office of Legal Affairs (OLA).

P.

Each Step I Grievance Coordinator shall prepare and submit monthly reports on grievances filed in

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his/her respective facility or office to the Grievance Section, as directed by the Manager of the Grievance Section. The monthly report shall include information on the subject matter of each grievance filed and, for rejected grievances, the basis for the rejection.

GRIEVANCE PROCESS

Q. Prior to submitting a written grievance, the grievant shall attempt to resolve the issue with the staff member involved within two business days after becoming aware of a grievable issue, unless prevented by circumstances beyond his/her control or if the issue is believed to fall within the jurisdiction of Internal Affairs. If the issue is not resolved, the grievant may file a Step I grievance. The Step I grievance must be filed within five business days after the grievant attempted to resolve the issue with appropriate staff.

R.

All grievances alleging conduct that falls under the jurisdiction of Internal Affairs shall be referred to

Internal Affairs as set forth in PD 01.01.140 “Internal Affairs” even if they would otherwise be rejected.

The Manager of Internal Affairs or designee shall notify the Warden or FOA Deputy Director or

designee, and either the Inspector or Grievance Coordinator as appropriate, in writing if the grievance is

determined to fall within the jurisdiction of Internal Affairs; in such cases, an investigation shall be

conducted in accordance with PD 01.01.140 and the grievant notified that an extension of time is

therefore needed to respond to the grievance. The Manager of Internal Affairs or designee also shall

notify the Warden or FOA Deputy Director or designee, and the Inspector or Grievance Coordinator as

appropriate, if it is determined that the grievance is not within the jurisdiction of Internal Affairs; in such

cases, the grievance shall continue to be processed as a Step I grievance in accordance with this

policy.

S.

A grievant shall use a Prisoner/Parolee Grievance (CSJ-247A) to file a Step I grievance. A

Prisoner/Parolee Grievance Appeal (CSJ-247B) shall be used to file a Step II or Step III grievance.

The forms may be completed by hand or by typewriter; however, handwriting must be legible. The

issues should be stated briefly but concisely. Information provided is to be limited to the facts involving

the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places, and names of

all those involved in the issue being grieved are to be included. Information should be confined to the

form and not written on the back, sides, or margins of the form, or in the response area. Additional

pages may be attached to the grievance form if necessary to provide required information; however,

grievants are encouraged to limit the information to the grievance form itself. If the grievant believes

additional pages are necessary, s/he is to submit four copies of each additional page; Departmental

forms are not to be used for this purpose. The grievant may use an intradepartmental mail run, if

available, to send a grievance to another facility, or to send a Step III grievance, to the Grievance

Section. If an intradepartmental mail run is not available and the grievant does not have sufficient

funds to mail the grievance, postage shall be loaned as set forth in PD 05.03.118 "Prisoner Mail.”

T.

Grievances and grievance appeals at all steps shall be considered filed on the date received by the

Department. All grievances and appeals shall be date stamped upon receipt. Time frames for

responding to grievances are set forth in this policy directive. An extension may be granted at the

discretion of the Grievance Coordinator for a Step I or II response. However, the extension shall not

exceed 15 business days. The Grievance Coordinator shall immediately notify the grievant in writing

whenever an extension has been approved. The extension also shall be noted in the grievance

response.

U.

If a grievant chooses to pursue a grievance that has not been responded to by staff within required time

frames, including any extensions granted, the grievant may forward the grievance to the next step of the

grievance process within ten business days after the response deadline expired, including any

extensions that have been granted.

V.

Prisoners and staff who may be involved in the issue being grieved shall not participate in any capacity

in the grievance investigation, review, or response, except as necessary to provide information to the

respondent.

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Step I

W. Within five business days after attempting to resolve a grievable issue with staff, a grievant wishing to advance a grievance must send a completed Prisoner/Parolee Grievance form (CSJ-247A) to the Step I Grievance Coordinator designated for the facility or other office being grieved. If the office being grieved does not have a designated Grievance Coordinator, the grievance shall instead be sent to the Step I Grievance Coordinator for the facility in which the grievant is housed. A grievant in a CFA facility alleging conduct under the jurisdiction of the Internal Affairs Division may send the grievance to the Inspector for investigation and processing as set forth in Paragraph R.

X.

The Grievance Coordinator shall log and assign a unique identifying number to each Step I grievance

received, including those that may be rejected. A computerized grievance tracking system shall be

used for this purpose.

Y.

After receipt of the grievance, the Grievance Coordinator shall determine if the grievance should be

rejected pursuant to this policy. If the grievance is rejected, the grievance response shall state the

reason for the rejection without addressing the merits of the grievance. The Grievance Coordinator's

supervisor shall review the reason for the rejection to ensure it is in accordance with policy; both the

Grievance Coordinator and the supervisor shall sign the grievance before returning the grievance to the

grievant. If the grievance is accepted, the Grievance Coordinator shall assign an appropriate

respondent and identify the date by which the response is due. The respondent shall generally be the

supervisor of the person being grieved except:

1.

For grievances involving Clinical Issues, the Health Unit Manager shall designate the

respondent.

2.

For grievances regarding Michigan State Industries (MSI), the Administrator of MSI shall

designate the respondent.

3.

For grievances involving administrative support functions for correctional facilities, the

appropriate Administrative Manager shall designate the respondent.

4.

For grievances referred to Internal Affairs, the Internal Affairs Manager or designee shall be the

respondent. However, if the grievance is determined not to fall under the jurisdiction of Internal

Affairs, it shall be returned to the Grievance Coordinator at the facility at which the grievance is

filed to complete grievance processing.

5.

For grievances involving court-ordered payment of victim restitution, filing fees, criminal

fines/fees/costs or other assessments, child support obligations or bankruptcy actions, the

responder shall be designated by the Business Administrator in the Jackson Business Office.

6.

For grievances involving transportation issues, the Transportation Section Manager in the

Operations Division, CFA shall designate the respondent.

7.

For grievances regarding time computation, the Manager of the Time Computation Unit (TCU),

Operations Division, CFA shall designate the respondent.

8.

For grievances involving the Parole Board, the Parole Board Chairperson shall designate the

respondent for grievances involving the Parole Board.

Z.

A Step I grievance shall be responded to within 15 business days after receipt of the grievance unless

an extension is granted pursuant to Paragraph T. If the issue is of an emergent nature, the Grievance

Coordinator may order a Step I response within two business days. The Grievance Coordinator may

respond at Step I to grievances that require only minimal investigation or are rejected for reasons

authorized by this policy.

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AA. The respondent shall interview the grievant to clarify issues of merit, to further an investigation, or otherwise aid in resolution of the grievance at Step I. An interview is not required when:

1.

The grievance is rejected pursuant to policy.

2.

The prisoner refuses to participate in the interview. The date and time the interview was

attempted shall be recorded in the Step I response.

3.

The respondent is not assigned to the location at which the grievant is confined.

4.

The grievant is on parole in the community, and the respondent does not have ready access to

the field office to which the grievant is assigned.

5.

No further clarification is needed.

At any time, the Grievance Coordinator may require an interview if s/he determines it to be essential to an adequate response. At Step II, the Warden or designee may conduct an interview whether or not one was performed at Step I. If the grievant is not interviewed at Step I the reason shall be recorded in the Step I response. Prisoners do not have a due process right to an interview.

BB. Each Step I grievance response shall be reviewed by the respondent's supervisor prior to the grievance being returned to the Step I Grievance Coordinator to ensure that it appropriately addresses the issue raised in the grievance and accurately reflects Department policy and procedure. The respondent shall identify in the response applicable policies, rules, or procedures that are directly related to the issue or conduct being grieved.

CC. The Step I Grievance Coordinator shall ensure that a thorough investigation was completed for each Step I grievance accepted, that the response was reviewed by the appropriate supervisor, and that a copy of the response is provided to the grievant by the due date, including any extension granted.

Step II

DD. A grievant may file a Step II grievance if s/he is dissatisfied with the response received at Step I or if s/he did not receive a timely response. To file a Step II grievance, the grievant must request a Prisoner/Parolee Grievance Appeal (CSJ-247B) from the Step I Grievance Coordinator and send the completed form to the Step II Grievance Coordinator designated for the facility, field office, or other office being grieved within ten business days after receiving the Step I response or, if no response was received, within ten business days after the date the response was due, including any extensions. If the office being grieved does not have a designated Grievance Coordinator, the grievant is to send the grievance to the Step II Grievance Coordinator for the facility in which s/he is housed.

EE. The Grievance Coordinator shall log each Step II grievance received, including those that may be rejected. The Grievance Coordinator shall use a computerized grievance tracking system to do so. The Grievance Coordinator shall determine if the grievance should be rejected pursuant to this policy. If the grievance is rejected, the grievance response shall state the reason for the rejection without addressing the merits of the grievance. If accepted, the Grievance Coordinator shall assign an appropriate respondent and indicate the date by which the response is due. The due date shall be within 15 business days after receipt of the grievance, unless an extension is granted as set forth in Paragraph T.

FF. The respondents for Step II grievances shall be as follows:

1.

The Warden, except that s/he may delegate this responsibility to the appropriate Deputy

Warden if more than one institution is supervised.

2.

For grievances regarding clinical issues, the Step II clinical authority as determined by the

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Bureau of Health Care Services (BHCS) Administrator or for Duane L. Waters Health Center (DWH), the Warden of the Charles E. Egeler Reception and Guidance Center (RGC).

3.

For grievances regarding Michigan State Industries (MSI), the Administrator of MSI or designee.

4.

For grievances involving administrative support functions for correctional facilities, the

appropriate Administrative Manager.

5.

The appropriate Region Manager for FOA area offices and facilities.

6.

The FOA Deputy Director or designee for all other FOA grievances.

7.

For grievances involving court-ordered payment of victim restitution, filing fees, criminal

fines/fees/costs or other assessments, child support obligations or bankruptcy actions, the

responder shall be designated by the Business Administrator in the Jackson Business Office.

8.

For grievances involving transportation issues, the Transportation Section Manager in the

Operations Division, CFA.

9.

For grievances regarding time computation, the Manager of TCU, Operations Division, CFA.

10. For grievances involving the Parole Board, the Parole Board Chairperson.

GG. The Grievance Coordinator shall ensure that any additional investigation was completed as necessary for each Step II grievance accepted and that a copy of the response is provided to the grievant by the due date.

Step III

HH. A grievant may file a Step III grievance if s/he is dissatisfied with the Step II response or does not receive a timely response. To file a Step III grievance, the grievant must send a completed Prisoner/Parolee Grievance Appeal form (CSJ-247B) to the Grievance Section within ten business days after receiving the Step II response or, if no response was received, within ten business days after the date the response was due, including any extensions.

II.

The Grievance Section shall be the respondent for Step III grievances on behalf of the Director. Each

grievance received at Step III, including those that may be rejected, shall be logged on a computerized

grievance tracking system. The tracking system shall include information on the subject matter of each

grievance received and, for rejected grievances, the basis for the rejection. The Grievance Section

shall forward grievances regarding clinical issues to the Administrator of the BHCS. The BHCS

Administrator shall ensure the referred grievance is investigated and a response is provided to the

Grievance Section in a timely manner. The Manager of the Grievance Section shall ensure that any

additional investigation is completed as necessary for each Step III grievance accepted, including

referral to the Internal Affairs and, for disability issues, to the Equal Employment Opportunity Office, as

appropriate, and that a copy of the Step III response is provided to the grievant. Generally, Step III

responses will be responded to within 60 business days. The Step III response is final.

MODIFIED ACCESS

JJ. A prisoner or parolee who files an excessive number of grievances (three within a 30 calendar day span) that are rejected or the prisoner is found guilty of misconduct for filing an unfounded grievance as set forth in Paragraph M, may have access to the grievance process limited by the Warden or FOA Region Manager for an initial period of not more than 90 calendar days. If the prisoner or parolee continues to file such grievances while on modified access, the Warden or FOA Region Manager may extend the prisoner's or parolee's modified access status for not more than an additional 30 calendar days for each violation. A recommendation to place a prisoner on modified access shall be submitted

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only by the Grievance Coordinator or the Grievance Section Manager and shall include a list of the grievances forming the basis for the recommendation and the reason for the recommendation.
KK. The Warden or FOA Region Manager, as appropriate, shall ensure that a prisoner or parolee placed on modified access, or who has had that status extended, is immediately notified in writing of this determination, including a list of the grievances upon which the determination was based. The Warden or FOA Region Manager also shall immediately notify the appropriate Assistant Deputy Director, and the Grievance Section Manager in writing whenever s/he places a prisoner or parolee on modified access or extends that status.
LL. The Manager of the Grievance Section also may place a prisoner or parolee on modified access, or extend that status, for the reasons set forth in Paragraph JJ. The Manager of the Grievance Section shall ensure that each prisoner or parolee placed on modified access or who has that status extended is immediately notified in writing of that determination, including a list of the grievances upon which the determination was based. The Manager of the Grievance Section also shall ensure that the appropriate Warden or FOA Region Manager is notified in writing of the determination.
MM. While on modified access, the prisoner or parolee shall be able to obtain grievance forms only through the Step I Grievance Coordinator. A grievance form shall be provided if the Step I Grievance Coordinator determines that the issue the prisoner or parolee wishes to grieve is grievable and otherwise meets the criteria outlined in this policy. The Grievance Coordinator shall maintain a record of requests received for grievance forms and whether the request was approved or denied and, if denied, the reason for the denial. If a prisoner or parolee on modified access attempts to file a grievance using a form not provided by the Grievance Coordinator, the Grievance Coordinator may reject the grievance in accordance with Paragraph J. The Warden, FOA Region Manager, or Manager of the Grievance Section may extend the prisoner's or parolee's modified access status for not more than an additional 30 days for each violation. Notification of such extensions shall be consistent with the requirements set forth in Paragraphs KK and LL.
NN. A prisoner or parolee shall remain on modified access for the approved period even if transferred to another facility. The Grievance Coordinator for the sending facility shall ensure that the Grievance Coordinator for the receiving facility is notified of this information.
OPERATING PROCEDURE
OO. If necessary, the Administrator of the Office of Legal Affairs shall ensure that procedures are developed/updated to implement requirements set forth in this policy directive.
AUDIT ELEMENTS
PP. A Primary Audit Elements List has been developed and is available on the Department’s Document Access System to assist with self-audit of this policy pursuant to PD 01.05.100 "Self-Audits and Performance Audits.”

APPROVED: HEW 02/18/2019

Case 2:20-cv-11053-MAG-RSW ECF No. 27-23 filed 05/12/20 PageID.1678 Page 1 of 10 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT V

Case 2:20-cv-11053-MAG-RSW ECF No. 27-23 filed 05/12/20 PageID.1679 Page 2 of 10

Neutral As of: May 11, 2020 5:21 PM Z

Swain v. Junior

United States Court of Appeals for the Eleventh Circuit May 5, 2020, Decided No. 20-11622-C

Reporter 2020 U.S. App. LEXIS 14301 *
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.

the inmates were likely to satisfy the requirements as to the director, he was likely to succeed in having the injunction against him vacated; [4]-The district court could not determine that the inmates were likely to succeed on their 42 U.S.C.S. § 1983 claim without finding the county and director were unlikely to show failure to exhaust under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and because it failed to do so, the were likely to succeed on appeal.

Prior History: [*1] On Appeal from the United States District Court for the Southern District of Florida.

Swain v. Junior, 2020 U.S. Dist. LEXIS 60878 (S.D. Fla., Apr. 7, 2020)

Outcome Motion for stay pending appeal and motion to expedite appeal granted.

Core Terms
district court, inmates, preliminary injunction, injunction, measures, distancing, staff, deliberate indifference, succeed, irreparable, exhaustion, cleaning, masks, failure to exhaust, public interest, pending appeal, municipality, confinement, implemented, facilities, pandemic
Case Summary

LexisNexis® Headnotes
Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Civil Procedure > Remedies > Injunctions > Preliminary & Temporary Injunctions

Overview
HOLDINGS: [1]-A county and director of the corrections and rehabilitation department were likely to prevail on appeal because the district court committed errors in granting inmates a preliminary injunction; [2]-The district court ruled the inmates did not need to establish a likelihood of success, and thus, the county was likely to succeed in arguing error on appeal; [3]-Because the district court did not address whether

Civil Procedure > Appeals > Standards of Review > De Novo Review
Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review
Civil Procedure > ... > Stays of Judgments > Appellate Stays > Nonmoney Judgments

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HN1[ ] Standards of Review, Abuse of Discretion
In considering whether to stay a preliminary injunction the court of appeals examines 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.
Civil Procedure > ... > Stays of Judgments > Appellate Stays > Nonmoney Judgments
HN2[ ] Appellate Stays, Nonmoney Judgments
A court considering whether to issue a stay considers four factors: (1) whether the stay applicant has made a strong showing that he or she 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. The first two factors are the most critical.

conditions of a prisoner's confinement. An Eighth Amendment challenge to the conditions of confinement has two components: one objective and the other subjective. First, to satisfy the objective component, the prisoner must show an objectively intolerable risk of harm. He or she must show that the challenged conditions were extreme and presented an unreasonable risk of serious damage to his or her future health or safety. Second, to satisfy the subjective component, the prisoner must show that the prison official acted with deliberate indifference. A prison official acts with deliberate indifference when he or she knows of and disregards an excessive risk to inmate health or safety. A prison official may escape liability for known risks if he or she responded reasonably to the risk, even if the harm ultimately was not averted. Deliberate indifference requires the defendant to have a subjective state of mind more blameworthy than negligence, closer to criminal recklessness.
Civil Rights Law > Protection of Rights > Prisoner Rights > Confinement Conditions

Civil Procedure > Remedies > Injunctions > Grounds for Injunctions

HN5[ ] Prisoner Rights, Confinement Conditions Resultant harm does not establish a liable state of mind.

Civil Procedure > Remedies > Injunctions > Preliminary & Temporary Injunctions
HN3[ ] Injunctions, Grounds for Injunctions
To obtain a preliminary injunction, the plaintiffs are 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 them outweighs any harm the injunction might cause the defendants, and (4) if issued, the injunction would not be adverse to the public interest.

Civil Rights Law > Protection of Rights > Prisoner Rights > Confinement Conditions HN6[ ] Prisoner Rights, Confinement Conditions The inability to take a positive action likely does not constitute a state of mind more blameworthy than negligence.
Criminal Law & Procedure > Postconviction Proceedings > Imprisonment

Civil Rights Law > Protection of Rights > Prisoner Rights > Confinement Conditions
Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment

HN7[ ] Postconviction Proceedings, Imprisonment
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.

HN4[ ] Prisoner Rights, Confinement Conditions

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

Civil Procedure > ... > Injunctions > Grounds for Injunctions > Irreparable Harm
HN8[ ] Grounds for Injunctions, Irreparable Harm

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The question is whether the plaintiffs have shown that they will suffer irreparable injuries that they would not otherwise suffer in the absence of an injunction.
Civil Procedure > ... > Injunctions > Grounds for Injunctions > Public Interest

U.S.C.S. § 1983, 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.S. § 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.

Governments > Local Governments > Claims By & Against
HN9[ ] Grounds for Injunctions, Public Interest
Where the government is the party opposing the preliminary injunction, its interest and harm merge with the public interest.

Civil Procedure > ... > Defenses, Demurrers & Objections > Affirmative Defenses > Burdens of Proof
Civil Rights Law > ... > Prisoner Rights > Prison Litigation Reform Act > Exhaustion of Administrative Remedies
Civil Procedure > Remedies > Injunctions > Preliminary & Temporary Injunctions

Civil Procedure > ... > Injunctions > Grounds for Injunctions > Likelihood of Success
Civil Rights Law > ... > Section 1983 Actions > Scope > Government Actions
Governments > Local Governments > Claims By & Against
Civil Procedure > Remedies > Injunctions > Preliminary & Temporary Injunctions
HN10[ ] Grounds for Injunctions, Likelihood of Success

HN12[ ] Affirmative Defenses, Burdens of Proof
Just because failure to exhaust is an affirmative defense and not a pleading requirement, does not render exhaustion irrelevant to determining whether the plaintiffs are entitled to a preliminary injunction. The burdens at the preliminary injunction stage track the burdens at trial. Failure to exhaust is an affirmative defense, so the defendants bear the burden of proving it. Exhaustion under the Prison Litigation Reform Act (PLRA) is a threshold matter that a court must address before reaching the merits. District courts are required to resolve factual disputes regarding PLRA exhaustion, a "preliminary issue," at the outset of a case.

A municipality may not be held liable under 42 U.S.C.S. § 1983 unless a municipal policy or custom caused the plaintiffs' injury. The policy or custom requirement applies to § 1983 claims for declaratory or injunctive relief no less than claims for damages. Because a district court cannot award prospective relief against a municipality unless the requirements are satisfied,, the plaintiffs must establish that they are likely to satisfy the requirements to obtain a preliminary injunction against a municipality.

Counsel: For Anthony Swain, Plaintiff - Appellee: Alec George Karakatsanis, Katherine Claire Hubbard, Alexandria Twinem, Civil Rights Corps, Washington, DC; Thomas B. Harvey, Tiffany Yang, Advancement Project, Washington, DC; Meena Jagannath, Community Justice Project, Inc., Miami, FL; Lida Rodriguez-Taseff, DLA Piper, LLP (US), Miami, FL; Katherine A. Sanoja, Rodney Quinn Smith II, Gst, Llp, Miami, FL.

Civil Rights Law > ... > Prisoner Rights > Prison Litigation Reform Act > Exhaustion of Administrative Remedies
HN11[ ] Prison Litigation Reform Act, Exhaustion of Administrative Remedies
The Prison Litigation Reform Act provides: No action shall be brought with respect to prison conditions under 42

For Alen Blanco, Bayardo Cruz, Ronniel Flores, Winfred Hill, Plaintiffs - Appellees: Thomas B. Harvey, Tiffany Yang, Advancement Project, Washington, DC; Katherine Claire Hubbard, Alec George Karakatsanis, Alexandria Twinem, Civil Rights Corps, Washington, DC; Meena Jagannath, Community Justice Project, Inc., Miami, FL; Lida RodriguezTaseff, DLA Piper, LLP (US), Miami, FL; Katherine A. Sanoja, Rodney Quinn Smith II, Gst, Llp, Miami, FL.

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For Daniel Junior, Miami-Dade County, Defendants Appellants: Ezra Saul Greenberg, Bernard Pastor, Oren Rosenthal, Zachary Edward Vosseler, Jennifer L. Hochstadt, Ana Angelica Viciana, Erica S. Zaron, Miami-Dade County Attorney's Office, Miami, FL.
Judges: Before: WILSON, WILLIAM PRYOR [*2] and BRANCH, Circuit Judges. WILSON, Circuit Judge, dissenting from the order granting the stay.
Opinion
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 West")—the largest directsupervision 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 [*3] requirements. Pursuant to Rule 8 of the Federal Rules of Appellate Procedure, we stay the injunction pending appeal and expedite the appeal.

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 [*4] 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 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 [*5] 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.

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 2020, MDCR began enacting measures to protect inmates. Those measures included cancelling inmate visitation; screening arrestees,

On April 29, following a telephonic evidentiary hearing, the district court entered a preliminary injunction against the defendants on the plaintiffs' § 1983 claim.1 The preliminary
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

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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";

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 high-touch areas or any other items in the unit between each use";

• "Ensure that each incarcerated person receives, [*6] 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";
• "Require that all MDCR staff regularly wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol";

• "Waive all medical co-pays for those experiencing COVID19-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 [*8] 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:
• "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

• "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 [*7] 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
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.

• "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.
HN1[ ] "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).

The district court also denied the plaintiffs' requested habeas relief III. under § 2241 without prejudice.

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HN2[ ] A court considering whether to issue a stay "considers four factors: '(1) [*9] 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, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (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. HN3[ ] 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 [*10] interest. Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016) (internal quotation marks omitted).
HN4[ ] 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 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, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (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, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (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 [*11] 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 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 HN5[ ] 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 [*12] 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. HN6[ ] 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. 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

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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 [*13] that the defendants subjectively believed the measures they were taking were inadequate. See Valentine v. Collier, No. No. 20-20207, 2020 U.S. App. LEXIS 12941, 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 socialdistancing policies are "not uniformly enforced." But the district court made no finding that the defendants are ignoring or approving the alleged lapses in enforcement of socialdistancing 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 deliberate-indifference 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 [*14] 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 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 [*15] 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).
HN7[ ] 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, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (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 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 U.S. App. LEXIS 12941, 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 [*16] 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. HN8[ ] 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 U.S. App. LEXIS 12941, 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 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.
HN9[ ] 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

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requirements for a stay.

appeal.

IV.
Before concluding, we address [*17] 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. HN10[ ] A municipality may not be held liable under § 1983 unless a municipal policy or custom caused the plaintiffs' injury. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (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, 131 S. Ct. 447, 178 L. Ed. 2d 460 (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. [*18] 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, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (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. MacArthur, No. 18-12238, 2020 U.S. App. LEXIS 11856, 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

Second, the district court also likely erred in declining to address PLRA exhaustion at the preliminary injunction stage. HN11[ ] 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 [*19] 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, 195 L. Ed. 2d 117 (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.
HN12[ ] Just because failure to exhaust is an affirmative defense and not a pleading requirement, see Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007), does not render exhaustion irrelevant to determining whether the plaintiffs are entitled to a 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, 126 S. Ct. 1211, 163 L. Ed. 2d 1017 (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 [*20] 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.
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

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PageID.1687

PaPgagee 190ofo9f

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 [*21] 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.

Dissent by: WILSON

Dissent
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, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (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, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (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, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (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.
End of Document

Case 2:20-cv-11053-MAG-RSW ECF No. 27-24 filed 05/12/20 PageID.1688 Page 1 of 7 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT W

Case 2:20-cv-11053-MAG-RSW ECF No. 27-24 filed 05/12/20 PageID.1689 Page 2 of 7

Neutral As of: May 11, 2020 5:26 PM Z

Nellson v. Barnhart

Reporter 2020 U.S. Dist. LEXIS 66971 *

United States District Court for the District of Colorado April 16, 2020, Decided; April 16, 2020, Filed Civil Case No. 20-cv-00756-PAB

EDWARD NELLSON, individually, and on behalf of others similarly situated, Plaintiff, v. WARDEN J. BARNHART, in his individual and official capacity, and UNITED STATES FEDERAL BUREAU OF PRISONS, Defendants.

Opinion
ORDER

Core Terms
inmates, exhaust, administrative remedy, staff, symptoms, screening, injunction, BOP, testing, preliminary injunction, masks, quarantine, requests, steps, staff member, isolation, merits, soap, prison, temperature, quotations, mandatory, CDC, grievance process, disregarded, implemented, unavailable, distancing, grievance, measures
Counsel: [*1] For Edward Nellson, Individually, and a Class of similarly-situated persons, Plaintiff: Mario Bernard Williams, LEAD ATTORNEY, NDH LLC, Atlanta, GA; Alexandra Lee Parrott, Maria-Vittoria G. Carminati, NDH LLC-Denver, Denver, CO.
For J. Barnhart, Warden, in his Official capacity, United States Federal Bureau of Prisons, Defendants: Lauren Marie Dickey, U.S. Attorney's Office-Denver, Denver, CO.

This matter is before the Court on Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 10]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND
Edward Nellson is an inmate at the United States Penitentiary in Florence, Colorado ("USP Florence"). Docket No. 10 at 1. He purports to represent a class of similarly situated inmates. Docket No. 1 at 1, 18. Plaintiff alleges that USP Florence is (1) not screening inmates or staff members for COVID-19, (2) not testing prisoners for COVID-19, (3) not isolating prisoners who test positive for COVID-19, and (4) not preventing infected staff members from working. Docket No. 10 at 1. Mr. Nellson filed a complaint on March 18, 2020, alleging that [*2] the failure to take the above steps violates his rights, and those of the class, under the Eighth Amendment. See Docket No. 1. On March 31, 2020, Mr. Nellson filed a motion for temporary restraining order ("TRO"), requesting that the Court order USP Florence to begin instituting screening, testing, and isolation of both inmates and staff. Docket No. 10 at 1-2.

Judges: PHILIP A. BRIMMER, Chief United States District Judge.

Defendants filed a response on April 6, 2020, wherein they outline the steps that the Bureau of Prisons ("BOP") and USP Florence have taken to reduce the risk to inmates from COVID-19. See Docket No. 17.1 Defendants indicate that the

Opinion by: PHILIP A. BRIMMER

1 The response attaches as Exhibit 1 the declaration of Shari Himlie, the Health Services Administrator for USP Florence and the three other federal prisons located in Florence Colorado. See Docket No. 17-1. Ms. Himlie oversees the health services operations at each of

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2020 U.S. Dist. LEXIS 66971, *2

BOP has adopted a multiphase "Action Plan." Docket No. 171 at 4, ¶¶ 6-7. On a nationwide basis, the BOP has
implemented screening requirements for inmates and staff; temporarily suspended social visits, legal visits, inmate transfers, official travel, and contractor access; updated its quarantine and isolation procedures; and instituted a 'modified operations' plan, which directs BOP facilities to adjust their daily operations in a manner that permits inmates to engage in physical distancing while in common areas, such as during mealtimes and recreation.
Docket No. 17 at 2-3 (citing Docket No. 17-1 at 5-7, ¶¶ 815). [*3] Additionally, on April 1, 2020, the BOP required "all inmates to remain 'secured in their assigned cells' for a period of 14 days . . . to decrease the spread of the virus." Id. at 3 (citing Docket No. 17-1 at 7-8, ¶ 16). As a result, "BOP inmates across the country are currently being confined to their cells for the majority of each day." Id. (citing Docket No. 17-1 at 8-9, ¶ 17).
At USP Florence, the following measures have been taken regarding inmates: (1) new inmates are screened and quarantined for 14 days regardless of whether the inmate displays symptoms; (2) high-risk individuals, as defined by the Centers for Disease Control and Prevention ("CDC"), are screened, given temperature checks, and provided "additional education regarding COVID-19 prevention"; (3) medical staff check on general population housing units twice a day; (4) inmates with work details are screened for symptoms and have their temperatures taken before shifts begin and then again before returning to their housing units; (5) any inmate presenting COVID-19 symptoms is immediately evaluated to determine whether testing or isolation is appropriate and whether any other inmate who had contact with the symptomatic inmate [*4] should be quarantined; (6) designated quarantine and isolation units have been created; and (7) inmate testing is based on CDC guidance, looking to the nature and severity of symptoms, an inmate's potential exposure to COVID-19 and risk profile, and whether an inmate has a work detail that requires contact with other inmates or staff. Docket No. 17-1 at 13-16, 18, ¶¶ 33-50, 58.
Regarding staff and visitors, USP Florence has implemented the following measures: (1) all staff and visitors must have their temperature taken, disclose symptoms of illness, and answer questions designed to evaluate their risk of exposure before entering USP Florence; (2) any staff member or visitor who reports symptoms or has a temperature of above 100.4 degrees Fahrenheit may be excluded from the building; and (3) any staff member who has been tested for COVID-19 is
the Florence prisons. Id. at 2-3, ¶ 1-4.

not permitted to return to work until she receives a negative test result. Id. at 16-17, ¶¶ 52-53, 55.
USP Florence has taken additional, staff-related steps by: (1) limiting the number of in-person meetings; (2) capping the number of attendees at in-person meetings; (3) replacing inperson meetings with video-conferencing to the extent practicable; and (4) [*5] requiring staff members to work at only one institution in the complex where USP Florence is located. Id. at 19-20, ¶¶ 65, 69
As to sanitation, USP Florence: (1) provides all inmates with access to sinks, water, and soap at all times; (2) offers new soap weekly; (3) gives all new inmates soap upon arrival; (4) provides soap at no cost to any inmate without sufficient funds to purchase it; (5) cleans housing common areas at least once daily, "typically" multiple times a day, with a disinfectant that kills coronavirus; (6) provides inmates with the disinfectant so that they may clean their cells with it; (7) cleans common areas outside the living areas with the disinfectant on a daily basis and "often multiple times a day"; (8) disinfects staff common equipment, such as radios and keys, whenever an item is checked out or returned; (9) provides personal protective equipment, such as respirator masks, surgical masks, and rubber gloves, to staff in quarantined areas, isolation units, and screening sites; and (10) provides all inmates and staff protective masks for daily use. Id., ¶¶ 62-64, 67-68
As of the date of this order, the BOP website shows no reported COVID-19 cases among prisoners or staff as [*6] USP Florence. See COVID-19 Coronavirus, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus (last updated Apr. 15, 2020).
II. LEGAL STANDARD
The standard for a TRO is the same as that for a preliminary injunction. See Wiechmann v. Ritter, 44 F. App'x 346, 347 (10th Cir. 2002). To succeed on a motion for a preliminary injunction, the moving party must show (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the movant's favor; and (4) the injunction is in the public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)). "[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir.

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2020 U.S. Dist. LEXIS 66971, *6

2009) (quotations and citation omitted). Granting such "drastic relief," United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989), is the "exception rather than the rule." GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).
There are three types of preliminary injunctions that are disfavored: (1) injunctions that disturb the status quo, (2) injunctions that are mandatory rather than prohibitory, and (3) injunctions that provide the movant substantially all the relief it could feasibly attain after a full trial on the merits. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005). In seeking a disfavored injunction, "the movant must make a strong showing both with regard to [*7] the likelihood of success on the merits and with regard to the balance of harms." Fish v. Kobach, 840 F.3d 710, 724 (10th Cir. 2016) (quotations and alterations omitted); see also Schrier, 427 F.3d at 1259 (stating that such injunctions "must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course" (quotations omitted)).
Plaintiff here seeks an injunction that alters the status quo. Therefore, plaintiff's motion falls under the heightened standard for preliminary injunctions. See Schrier, 427 F.3d at 1260.
III. ANALYSIS
Before reaching the merits of plaintiff's motion, the Court addresses defendants' argument that plaintiff is required to exhaust administrative remedies before seeking a TRO. The Prison Litigation Reform Act ("PLRA") states that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This language is mandatory. See Ross v. Blake, 136 S. Ct. 1850, 1856, 195 L. Ed. 2d 117 (2016); see also Jones v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007) ("There is no question that exhaustion is mandatory under the PLRA."). "[T]he PLRA's text suggests no limits on an inmate's obligation to exhaust," except [*8] that administrative remedies must be "available." Ross, 136 S. Ct. at 1856. As a result, "a court may not excuse a failure to exhaust, even to take [special] circumstances into account." Id. at 1856-57. Availability, however, does not turn on the types of remedies available through the administrative procedures, but on the administrative procedures themselves. Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819, 1825, 149 L. Ed. 2d 958 (2001).

There must be "the possibility of some relief," not all relief an inmate hopes to receive through the grievance process. Ross, 136 S. Ct. at 1859 (quotations omitted).
A plaintiff is required to exhaust administrative remedies before seeking a TRO or a preliminary injunction, just as he is required to do before seeking other remedies covered by the PLRA. See Farmer v. Brennan, 511 U.S. 825, 847, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) ("When a prison inmate seeks injunctive relief, a court not need ignore the inmate's failure to take advantage of adequate prison procedures, and an inmate who needlessly bypasses such procedures may properly be compelled to pursue them."); Little, 607 F.3d at 1249 (addressing exhaustion before reaching the merits of a plaintiff's request for a preliminary injunction due to prison conditions).
The Supreme Court has described the PLRA as a "mandatory exhaustion" statute and has "reject[ed] every attempt to deviate . . . from its textual mandate." Ross, 136 S. Ct. at 1857. "Because [*9] the prison's procedural requirements define the steps necessary for exhaustion, an inmate may only exhaust by properly following all of the steps laid out in the prison system's grievance procedure." Little, 607 F.3d at 1249. The only "textual exception to mandatory exhaustion" in the PLRA is the "availability" of administrative remedies. Ross, 136 S. Ct. at 1858. The Supreme Court has noted three types of administrative remedies that, "although officially on the books, [are] not capable of use to obtain relief." Id. at 1859. First, "an administrative procedure is unavailable when . . . it operates as a simple dead end — with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. Second, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Third, a remedy can become unavailable when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
Here, Mr. Nellson has not alleged that he has attempted to "follow[] . . . the steps laid out in the prison system's grievance procedure[s]." Little, 607 F.3d at 1249. Plaintiff does, however, argue that the administrative grievance process is unavailable to [*10] him because it is a "dead end" that would take ninety days to complete, which would put plaintiff and other inmates at USP Florence at risk of COVID19. Docket No. 19 at 7-8. However, the dead-end exception to exhaustion is only relevant when "officers [are] unable or consistently unwilling to provide any relief to aggrieved inmates." Ross, 136 S. Ct. at 1859. Plaintiff does not argue that defendants are unwilling or unable to implement the type of relief that he requests. The steps outlined by defendants belie plaintiff's argument that defendants are unable or

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2020 U.S. Dist. LEXIS 66971, *10

unwilling to provide relief in response to COVID-19.
Plaintiff's dead-end argument is another formulation of his argument that, because plaintiff is at risk, he is not required to exhaust his administrative remedies since the grievance process can "offer no possible relief in time to prevent the imminent danger." Docket No. 19 at 4 (citing Fletcher v. Menard Correctional Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010)). Plaintiff relies on Fletcher, a case from the Seventh Circuit, to support his argument. See 623 F.3d at 1173. Fletcher, however, does not support the unavailability of administrative remedies in plaintiff's situation.

Additionally, the Supreme Court defines availability as some relief, not all relief, that an inmate seeks. See Ross, 136 S. Ct. at 1859. Plaintiff does not argue that he would be able to receive no relief whatsoever through the administrative grievance process but, rather, that the process would not be able to institute all the relief he requests immediately. But total and immediate relief is not the standard for exhaustion, "the possibility of some relief" is. Id. (quotations omitted). Moreover, as defendants point out, plaintiff is not required to complete the [*13] entire administrative process before receiving some relief; he may get relief at any stage of the administrative process. See Docket No. 21 at 1-2.

First, Fletcher was decided before Ross. Second, and more importantly, Fletcher did not hold that any inmate in [*11] imminent danger is always exempted from exhausting administrative remedies. Fletcher held that, where there are no administrative remedies that can redress an immediate danger to inmate health or safety, administrative remedies are unavailable. 623 F.3d at 1173. But, in Fletcher, the Seventh Circuit found that the plaintiff had emergency grievance procedures available to him, which the plaintiff did not exhaust. Id. at 1175. As a result, the Seventh Circuit held that the plaintiff had not exhausted his administrative remedies. Id. ("[T]he imminent-danger exception does not excuse a prisoner from exhausting remedies tailored to imminent dangers. Fletcher had an available such remedy.").

Here, 28 C.F.R. § 542.18 offers inmates an emergency

procedure where, "[i]f the Request is determined to be of an

emergency nature which threatens the inmate's immediate

health or welfare, the Warden shall respond not later than the

third calendar day after filing." 28 C.F.R. § 542.18; see also

Ray v. Aztec Well Serv. Co., 748 F.2d 888, 889 (10th Cir.

1984) ("This court can take judicial notice of agency rules and

regulations."). Plaintiff is thus incorrect that "[t]here is no

guarantee that any individual responding to Mr. Nellson's

requests will, in fact, do so in the time promised." Docket No.

22-1 at 2. Notification of this [*12] regulation is provided to

prisoners through the BOP's Program Statement for the

Administrative Remedy Program. See Docket No. 21 at 7

(citing Fed. Bureau of Prisons, Administrative Remedy

program

(2014),

https://www.bop.gov/policy/progstat/1330_018.pdf). Thus,

under Fletcher, plaintiff had an administrative remedy

available to him that takes into account the speed and nature

of the COVID-19 emergency. Plaintiff makes no allegation

that he attempted to utilize this emergency procedure or that it

was a dead end. See Brown v. Eardley, 184 F. App'x 689, 692

(10th Cir. 2006) (unpublished) (holding that, if the emergency

grievance procedure applies, a plaintiff is "required to exhaust

fully those grievances").

The Court finds that plaintiff has failed to exhaust his administrative remedies before seeking judicial relief. In reaching this conclusion, the Court does not overlook the risks of COVID-19 at USP Florence or in the prison system generally. But the Court may not alter the mandatory requirements of the PLRA for COVID-19 or any other special circumstance. See Ross, 136 S. Ct. at 1856-57 ("[A] court may not excuse a failure to exhaust, even to take [special] circumstances into account.").
Even assuming that plaintiff exhausted his administrative remedies, he still would not be entitled to a TRO because defendants have already implemented the relief that he requests. As a result, plaintiff cannot show "that irreparable injury is likely in the absence of an injunction." Winter, 555 U.S. at 22. Plaintiff requests the following relief: (1) screening of prisoners and staff for symptoms of COVID-19; (2) testing of prisoners and staff demonstrating symptoms of COVID-19; (3) quarantining of inmates testing positive for COVID-19; and (4) preventing staff testing positive for COVID-19 from contact [*14] with inmates. Docket No. 10 at 1-2. The BOP states that it has implemented all four of plaintiff's requests.
First, as to screening, all new inmates and high-risk inmates USP Florence are screened for symptoms of COVID-19. Docket No. 17-1 at 13-14, ¶¶ 33-35, 41. Medical staff checks on general population inmates twice daily to ensure that general population inmates are not exhibiting symptoms. Id. at 15, ¶ 46. Additionally, inmates with a work detail are screened and have their temperatures taken each time they begin and end their work detail. Id., ¶ 45. Staff are also screened for symptoms and are required to have their temperatures taken. Id. at 16-17, ¶ 52.
Second, as to testing, USP Florence tests inmates in accordance with CDC protocols. Id. at 17-18, ¶¶ 56-58. This includes analyzing an inmate's exposure risk profile and determining whether an inmate has had potential exposure to COVID-19 or is exhibiting symptoms. Id. at 18, ¶ 58.

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2020 U.S. Dist. LEXIS 66971, *14

Third, as to quarantine, the BOP has instituted a stay in place order, requiring all prisoners to limit movement as much as practicable. Id. at 7-8, ¶ 16. USP Florence has set up special units for isolation and quarantine. Id. at 16, ¶¶ 48-51. USP Florence also considers quarantining individuals who have had contact [*15] with those exhibiting symptoms of COVID-19, even if those individuals do not exhibit symptoms themselves. Id.
Fourth, as to exclusion of staff, any staff members exhibiting symptoms or measuring a fever of 100.4 degrees Fahrenheit or above may be excluded, regardless of whether they have tested positive for COVID-19. Id. at 16-17, ¶¶ 52-54. Any staff member who has been tested is not allowed to return to work until that staff member tests negative. Id. at 17, ¶ 55.
Because defendants have instituted all the relief that plaintiff requests, the Court finds that plaintiff will not suffer likely irreparable harm if the Court denies plaintiff's request for a TRO. Winter, 555 U.S. at 22. The lack of an injunction cannot harm plaintiff when the injunctive relief would add no additional measures beyond defendants' current screening, testing, and isolation procedures. Because granting a preliminary injunction requires a showing on each factor and plaintiff cannot show irreparable harm, he cannot succeed on his TRO motion. See Winter, 555 U.S. at 23-24 (holding that "[a] proper consideration" of the balance of equities and public interest "alone requires denial of the requested injunctive relief" and, therefore, declining to address the likelihood of success on [*16] the merits); see also Big O Tires, LLC v. Felix Bros., Inc. 724 F. Supp. 2d 1107, 1121 (D. Colo. 2010) (declining to address every factor because "the resolution of them will have no bearing on the outcome").
In reply, plaintiff argues that not all of the defendants' measures are being implemented. Specifically, plaintiff argues that only cloth masks, and not N95 medical masks, are being offered to inmates. Docket No. 19 at 8. Additionally, plaintiff argues that it is impossible to maintain physical distancing in the "restrooms or the law library" and that inmates are not being provided with soap. Id. at 8-9. Defendants indicate, however, that when inmates are allowed out of their cells, they have been directed to maintain appropriate physical distancing. Docket No. 17-1 at 8-9, ¶ 17. Plaintiff does not explain why he must use the communal restrooms, as opposed to a toilet in his cell, and why he must use the law library at times when physical distancing is not possible. However, if plaintiff's allegations are true, they would not be enough to show deliberate indifference and, as a result, plaintiff does not have a likelihood of success on the merits.
A claim for deliberate indifference to serious medical needs has an objective and a subjective component. The objective

component [*17] requires that the medical need be "sufficiently serious." Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The subjective component requires that "a prison official knows of and disregards an excessive risk to inmate health or safety." Id. (citation and quotations omitted).
Assuming that the objective component is met, and that prison officials know of the risk of COVID-19, plaintiff has not demonstrated that defendants have disregarded that risk. As outlined above, defendants have taken numerous steps to reduce the risk of transmission at USP Florence. A lack of social distancing in the law library and communal restrooms, as well as the provision of cloth, rather than N95 masks, does not demonstrate that defendants have disregarded the risk of COVID-19 at USP Florence. The CDC has stated that cloth masks are sufficient for non-medical workers and suggests that only medical professionals use N95 masks because they are in short supply. See Cloth Face Coverings: Questions and Answers, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/cloth-face-cover-faq.html (last updated Apr. 4, 2020) ("Surgical masks and N95 respirators are in short supply and should be reserved for healthcare [*18] workers or other medical first responders, as recommended by CDC guidance."). Providing CDC-recommended face masks does not demonstrate that defendants are disregarding a risk to inmate health or safety.
As to plaintiff's contention that inmates have not been provided soap, Ms. Himlie's declaration states that USP Florence is providing prisoners with soap weekly and at no cost if an inmate cannot afford it. Docket No. 17-1 at 19, ¶ 62. Additionally, plaintiff purchased soap as recently as April 14, 2020. Docket No. 21-1 at 3, ¶ 6. Given these considerations, and the steps that defendants have taken, the Cour t finds that defendants have not disregarded a substantial risk to inmate safety and, therefore, plaintiff is not likely to succeed on the merits.
IV. CONCLUSION
For the foregoing reasons it is
ORDERED that Plaintiff's Motion for Leave to File Surreply [Docket No. 22] is GRANTED. Accordingly the Clerk's office shall docket Exhibit 1 to Docket No. 22 as plaintiff's surreply. It is further
ORDERED that the portion of Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 10] that requests a temporary restraining order is DENIED.

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2020 U.S. Dist. LEXIS 66971, *18 DATED April 16, 2020. [*19] BY THE COURT: /s/ Philip A. Brimmer PHILIP A. BRIMMER Chief United States District Judge
End of Document

Case 2:20-cv-11053-MAG-RSW ECF No. 27-25 filed 05/12/20 PageID.1695 Page 1 of 2 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT X

Case 2:20-cv-11053-MAG-RSW ECF No. 27-25 filed 05/12/20 PageID.1696 Page 2 of 2 Exhibit X - Dorm Chart

Facility Capacity

AMF ARF DRF IBC-A ICF JCF JCS KCF LCF MBP NCF SMT URF WCC/GO ZLI ZPM Total

252 1280 1280
110 280 960 1600 1600 1378 640 1104 1008 1208
72 52 100 12924

Head Count as of 5/4/2020

Security Level

I

SI

II

Positive COVID-19 Vacancies Cases in Facility as
of 5/5

232

20

0

973

307

52

1240

40

0

37

73

1

272

8

2

837

123

669

1450

150

0

271

1232

97

1

1216

162

791

451

189

0

1049

55

1

774

234

177

1204

4

0

20

52

8

14

38

N/A

39

61

N/A

560

6827 3924

1613

1702

OVERALL CAPACITY OCCUPIED CAPACITY NET OPERATING CAPACITY

40,872 36,980 40,175

DORM CAPACITY DORM OCCUPIED

12,924 11,311

Dorm %

CAP Occupied

31.62% 30.59%

Case 2:20-cv-11053-MAG-RSW ECF No. 27-26 filed 05/12/20 PageID.1697 Page 1 of 10 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT Y

Case 2:20-cv-11053-MAG-RSW ECF No. 27-26 filed 05/12/20 PageID.1698 Page 2 of 10

Neutral As of: May 11, 2020 5:35 PM Z

Baxley v. Jividen

United States District Court for the Southern District of West Virginia, Huntington Division April 8, 2020, Decided; April 8, 2020, Filed
CIVIL ACTION NO. 3:18-1526; 3:18-1533; 3:18-1436

Reporter 2020 U.S. Dist. LEXIS 61894 *
JOHN BAXLEY, JR., ERIC L. JONES, SAMUEL STOUT, AMBER ARNETT, EARL EDMONDSON, JOSHUA HALL, DONNA WELLS-WRIGHT, ROBERT WATSON, HEATHER REED, and DANNY SPIKER, JR., on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. BETSY JIVIDEN, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation and THE WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, and SHELBY SEARLS, in his official capacity as the Superintendent of Western Regional Jail and Correctional Facility, Defendants.

01526): Jennifer S. Wagner, Lydia C. Milnes, LEAD ATTORNEYS, Rachel Kincaid, MOUNTAIN STATE JUSTICE, INC., Morgantown, WV.
For Betsy Jividen, in her official capacity as Commissioner of the West Virginia Division of Corrections and Rehabilitation, Defendant, Third Party Plaintiff (3:18-cv-01526): Briana J. Marino, LEAD ATTORNEY, WV ATTORNEY GENERAL'S OFFICE, Charleston, WV; James C. Stebbins, Richard L. Gottlieb, Valerie Harris Raupp, Webster J. Arceneaux, III, LEWIS GLASSER, CASEY & ROLLINS PLLC, Charleston, WV.

Prior History: Baxley v. Western Reg'l Jail, 2018 U.S. Dist. LEXIS 215724 (S.D. W. Va., Dec. 20, 2018)
Core Terms

For Shelbey Searls, in his official capacity as the Superintendent of, Western Regional Jail and Correctional Facility, Defendant (3:18-cv-01526): Briana J. Marino, LEAD ATTORNEY, WV ATTORNEY GENERAL'S OFFICE, Charleston, WV; James C. Stebbins, Richard L. Gottlieb, Valerie Harris Raupp, Webster J. Arceneaux, III, LEWIS GLASSER, CASEY & ROLLINS PLLC, Charleston, WV.

Plaintiffs', inmates, jails, prisons, irreparable harm, pandemic, merits, deliberate indifference, exhaustion, disease, injunction, state prison, preliminary injunction, spread, medical need, infected, virus, injunctive relief, circumstances, facilities, memorandum, furlough, remedies, parties, Reply, public interest, declaration, distancing, responding, Directive

For Shelbey Searls, in his official capacity as the Superintendent of, Third Party Plaintiff (3:18-cv-01526): Briana J. Marino, LEAD ATTORNEY, WV ATTORNEY GENERAL'S OFFICE, Charleston, WV; James C. Stebbins, Richard L. Gottlieb, Valerie Harris Raupp, Webster J. Arceneaux, III, LEWIS GLASSER, CASEY & ROLLINS PLLC, Charleston, WV.

Counsel: [*1] For John Baxley, Jr., Amber Arnett, Earl Edmondson, Joshua Hall, Donna Wells-Wright, Robert Watson, Heather Reed, and, Danny Spiker, Jr., on their own behalf and on behalf of all others similarly situated, Plaintiffs (3:18-cv-01526): Jennifer S. Wagner, Lydia C. Milnes, LEAD ATTORNEYS, MOUNTAIN STATE JUSTICE, INC., Morgantown, WV.

For Eric L. Jones, Plaintiff (3:18-cv-01533): [*2] Jennifer S. Wagner, Lydia C. Milnes, LEAD ATTORNEYS, MOUNTAIN STATE JUSTICE, INC., Morgantown, WV.
For Western Regional Jail, Defendant (3:18-cv-01533): Briana J. Marino, LEAD ATTORNEY, WV ATTORNEY GENERAL'S OFFICE, Charleston, WV.

For Eric L. Jones, Samuel Stout, Consol Plaintiffs (3:18-cv- For Samuel W. Stout, Plaintiff (3:18-cv-01436): Jennifer S.

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2020 U.S. Dist. LEXIS 61894, *2

Wagner, Lydia C. Milnes, LEAD ATTORNEYS, Rachel Kincaid, MOUNTAIN STATE JUSTICE, INC., Morgantown, WV.
For Western Regional Jail Authority, Captain Aldrage, Captain Savilla, Defendants (3:18-cv-01436): Briana J. Marino, LEAD ATTORNEY, WV ATTORNEY GENERAL'S OFFICE, Charleston, WV; James C. Stebbins, Richard L. Gottlieb, Valerie Harris Raupp, Webster J. Arceneaux, III, LEWIS GLASSER, CASEY & ROLLINS PLLC, Charleston, WV.
Judges: ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
Opinion by: ROBERT C. CHAMBERS

medical needs of inmates at the time of admission to jails in West Virginia." Second Am. Compl.,1 ECF No. 67, at ¶ 182. The plaintiffs are divided into two putative classes: Class A, which "includes all persons who were at any time on or after December 18, 2018, or who will be, admitted to a jail in West Virginia with a discernable, treatable medical and/or mental health problem," and Class B, which only "includes all persons who were at any time on or after December 18, 2018, inmates housed at Western Regional Jail and Correctional Facility, in Barboursville, West Virginia." See id. at ¶¶ 24241.
As this action entered its second year, [*4] the COVID-19 pandemic began its rapid spread across the world and into West Virginia.2 Elected officials reacted swiftly at the state and federal level, with both the President of the United States and the Governor of West Virginia declaring states of emergency in an attempt to slow the spread of the coronavirus pandemic.3 Given the unique characteristics of both jails and the disease, commentators and public health officials have remarked upon the outsized danger it may pose to prisoners and pretrial detainees who are housed in confined spaces and who share many communal resources and spaces.4

Opinion

In light of these concerns, Plaintiffs filed the instant Motion for a Preliminary Injunction on March 25, 2020. See Mot. for

MEMORANDUM OPINION AND ORDER
Presently pending before the Court is Plaintiffs' "Emergency Motion for Preliminary Injunction Regarding Defendants' Prevention, Management, and Treatment of COVID-19." Mot. for Prelim. Inj., ECF No. 161. Defendants timely filed a Response in Opposition, Resp. in Opp'n, ECF No. 168, and Plaintiffs did the same with their Reply, Reply, ECF No. 173. The parties also provided supplemental information to the Court, which has all been filed under seal. See Exs., ECF No. 181. The Court held a hearing on Plaintiffs' Motion on April 6, 2020 and determined [*3] that the issues had been adequately presented through the parties' submissions and oral argument, and therefore dispensed with the need for further witness testimony. Video Mot. Hr'g, ECF No. 180. For the reasons set forth below—as well as for those announced on the record at the hearing—the Court DENIES Plaintiffs' Motion.
I. BACKGROUND
This putative class action stems from allegations that the West Virginia Department of Corrections and Rehabilitation ("WVDCR") has "acted with deliberate indifference to serious

1 Though styled and docketed as the "First Amended Class Action Complaint for Injunctive and Declaratory Relief," it is really the Second Amended Complaint and is referred to as such throughout this Memorandum Opinion and Order. See Mot. to File Second Am. Compl., ECF No. 62.
2 See Phil Kabler, Justice confirms WV's first case of coronavirus, Herald-Dispatch (Mar. 17, 2020), available at https://www.heralddispatch.-com/coronavirus/justice-confirms-wv-s-first-case-ofcoronavirus/article_7e034a25-949e-5085-8494-87ae9b570016.html .
3 See President Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), available at https://www.whitehouse.gov/presidential-actions/proclamationdeclaring-national-emergency-concerning-novel-coronavirusdisease-covid-19-outbreak/ ; Anthony Izaguirre, Justice Declares Emergency as Virus Threatens, Herald-Dispatch (Mar. 16, 2020), available at https://www.herald-dispatch.com/coronavirus/justicedeclares-emergency-as-virus-threatens/-article_56b82394-6d705f0c-9b67-054200edb616.html .
4 See German Lopez, A Coronavirus Outbreak in Jails or Prisons Could Turn Into a Nightmare, Vox.com (Mar. 17, 2020), available at https://www.vox.com/policy-andpolitics/2020/3/17/21181515/coronavirus-covid-19-jails-prisonsmass-incarceration ; see also Beyrer Dec., ECF No. 161-1.

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Prelim. Inj., at 3. Plaintiffs sought two forms of injunctive relief. First, they moved for an order requiring Defendants to "develop, disclose, and implement a plan that undertakes all appropriate actions [*5] to protect Plaintiffs and others who are similarly situated." Id. at 12. Second, they requested the Court order "WVDCR to release a sufficient number of inmates [to] reduce overcrowding and allow for appropriate social distancing within the jails and prisons to protect medically vulnerable inmates." Id. at 13.
Given the unprecedented nature of the COVID-19 pandemic, the Court ordered an accelerated briefing schedule in response to Plaintiffs' Motion. Order, ECF No. 165. Defendants timely filed their Response in Opposition, and raised several objections to Plaintiffs' Motion. Resp. in Opp'n, at 3-20. Plaintiffs responded to many of these points in their Reply filed days later. Reply, at 1-21. The parties and the Court participated in a telephonic status conference on April 1, 2020, during which Defendants agreed to provide redacted copies of their COVID-19 response plan to opposing counsel and the Court for review. The Court issued an order reflecting these discussions that same day, Order, ECF No. 176, and Defendants provided a redacted copy of their response plan. Plaintiffs responded to this plan with a verified declaration from their expert witness, Dr. Homer Venters, Venters Dec., ECF No. 9, and [*6] Defendants replied in turn with their own set of affidavits and their own memorandum addressing his concerns, Second Jividen Aff., ECF No. 181-1, Plumley Aff., ECF No. 181-2, Hissom Aff., ECF No. 181-3. The Court proceeded with the hearing scheduled for April 6, 2020, and heard argument from counsel on the merits of their respective positions. After entertaining argument, the Court determined that Plaintiffs had not established a likelihood of success on the merits of their claim for deliberate indifference.
II. LEGAL STANDARD
"[P]reliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances." MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (internal citations and quotations omitted). It follows that a court may not issue a preliminary injunction absent "a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). "A plaintiff seeking a preliminary injunction must establish that [1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Id. at 20. These factors are [*7] not weighted equally; instead, "the two most

important are those of probable irreparable injury to the plaintiff if an injunction is not issued and likely harm to the defendant if an injunction is issued." N.C. State Ports Auth. v. Dart Containerline Co., 592 F.2d 749, 750 (4th Cir. 1979). The burden of proof rests with the party seeking a preliminary injunction, not with the party opposing its issuance. Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 445, 94 S. Ct. 1113, 39 L. Ed. 2d 435 (1974).
High though this initial threshold may be for Plaintiffs, it perhaps understates the legal implications raised by the instant case. "[S]weeping intervention in the management of state prisons is rarely appropriate when exercising the equitable powers of the federal courts," and this "is especially true where mandatory injunctive relief is sought and only preliminary findings as to the plaintiffs' likelihood of success on the merits have been made." Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir. 1994). This makes sense, inasmuch as "[m]andatory injunctions alter the status quo" by requiring a party to take a particular action, whereas "prohibitory injunctions aim to maintain the status quo and prevent irreparable harm while a lawsuit remains pending." League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (internal citations and quotations omitted). In fact, mandatory preliminary relief "goes well beyond simply maintaining the status quo pendent lite, is particularly [*8] disfavored, and should not be issued unless the facts and law clearly favor the moving party." Taylor, at 270 n.2 (quoting Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976)). Indeed, "absent the most extraordinary circumstances, federal courts are not to immerse themselves in the management of state prisons or substitute their judgment for that of the trained penological authorities charged with the administration of such facilities." Id. at 268; see also Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) ("[J]udicial restraint is especially called for in dealing with the complex and intractable problems of prison administration."). Put succinctly: "it is not for the federal courts to . . . micromange the Nation's prisons." O'Dell v. Netherland, 112 F.3d 773, 777 (4th Cir. 1997).
III. DISCUSSION
Both parties raise several arguments in support of their positions that warrant a careful and searching examination of the record. The Court will first consider Defendants' contentions that both exhaustion and the substance of Plaintiffs' operative Second Amended Complaint do not permit consideration of their Motion.5 Having disposed of
5 Defendants also expend considerable energy in their Response in Opposition fixating on the fact that portions of Plaintiffs' Motion and

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both arguments, the Court will turn to an analysis of the substance of Plaintiffs' Motion. With the evidence presently before the Court, it is clear that Plaintiffs cannot meet their burden and their Motion must be denied.

(2007)). It follows that Plaintiffs' purported failure to exhaust administrative remedies is an insufficient justification for denying their pending Motion.

A. Defendants' Arguments
1. Exhaustion
Defendants first contend that the Prison Litigation Reform Act ("PLRA") imposes an exhaustion requirement that bars Plaintiffs' Motion. See Resp. in Opp'n, at 5-6. They point specifically to § 803 of the PLRA, which provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). This exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002). Exhaustion is mandatory, regardless of the type of relief sought or offered through administrative channels. Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001).

2. Relevance to this Case
Defendants next point out that this action was initiated long before the COVID-19 pandemic reached the United States (and, indeed, likely long before the disease infected a single person). Resp. in Opp'n, at 11-12. They claim that "Plaintiffs are now improperly attempting to bootstrap claims related to the COVID-19 pandemic that have nothing to do with the claims previously pled and which claims did not even exist at the time the Amended Complaint was filed." Id. at 11. This is a bold argument, as Defendants themselves recognize that "this case as pled is about . . . statewide claims related to how inmates generally receive medical and mental health treatment upon admission." Id. The Court believes this [*11] language is sufficiently broad to encompass claims for medical treatment for COVID-19, but even if it were not the Court would grant leave for Plaintiffs to serve a supplemental pleading on Defendants pursuant to Rule 15(d) of the Federal Rules of Civil Procedure.6 Rather than tangle this timely Motion in avoidable procedural knots, the Court construes Plaintiffs' Second Amended Complaint—which, at bottom, seeks to address medical care available in West Virginia jails and prisons—as encompassing just the sort of claims raised by Plaintiffs' Motion.

Here, Defendants' argument is belied by the plain text of the PLRA's exhaustion requirement. In pertinent part, the provision mandates that "no action shall be brought" with respect to prison conditions prior to exhaustion—not that no motion may be filed with respect to the same. See 42 U.S.C. § 1997e(a). To the extent Defendants are attempting to argue that this entire action is not properly [*10] before the Court for Plaintiffs' failure to exhaust administrative remedies, the Court reminds Defendants that "failure to exhaust available administrative remedies is an affirmative defense, not a jurisdictional requirement, and thus inmates need not plead exhaustion, nor do they bear the burden of proving it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citing Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798

B. Merits Analysis
Having considered Defendants' procedural defenses, the Court turns to the merits of Plaintiffs' Motion. As part of doing so, it is worthwhile to review the significant amount of evidence that both parties put before the Court prior to oral argument. In responding to Plaintiffs' Motion, Defendants attached an Affidavit from Defendant Betsy Jividen detailing the actions that she and the WVDCR had so far taken with respect to the COVID-19 pandemic. First Jividen Aff., ECF No. 168-1. Jividen affirmed that she issued a memorandum to all WVDCR employees on March 11, 2020 that provided information about the virus and issued instructions for

supporting affidavits are drawn from documents filed in Dawson v. Asher, Case No. C20-0409JLR-MAT, in the Western District of Washington. See [*9] Resp. in Opp'n, at 9-11. This may well be the case, but it is of no import whatsoever for the purposes of resolving the pending Motion. The Court will carefully consider Plaintiffs' claims and supporting evidence as it would in any other case, and attaches no significance to the fact that some of Plaintiffs' arguments may be drawn from other material.

6 In pertinent part, Rule 15(d) provides that "[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P. 15(d). The COVID-19 pandemic is exactly the sort of occurrence or event that would justify service of a supplemental pleading.

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responding to it. Id. at ¶¶ 2-12. She [*12] further explained that the WVDCR adopted a Policy Directive on March 20, 2020 that provided for a comprehensive response to COVID19 in state prisons and jails. Id. at ¶¶ 13-23. Finally, she issued a memorandum on March 26, 2020 that included the Centers for Disease Control and Prevention's ("CDC's") guidance for correctional and detention facilities. Id. at ¶ 26.
In reply, Plaintiffs provided a "Sample COVID-19 Plan" that had been developed by VitalCore Health Strategies.7 See Sample COVID-19 Plan, ECF No. 173-1. The forty-three page document provides clear instructions to prison staff for preventing and isolating the disease, as well as a series of worksheets for facilities to complete in order to gauge compliance with the plan. Id. Pursuant to this Court's order, Defendants subsequently produced a redacted copy of their COVID-19 response plan to the Court, Plaintiffs' counsel, and Plaintiffs' expert witness. Policy Directive, ECF No. 181-4; CDC Guidance, ECF No. 181-5. The plan—adapted from an earlier plan prepared by VitalCore—addressed many of the same issues as Plaintiffs' proposed plan, and included many of the same worksheets.8 Plaintiffs' expert, Dr. Homer Venters, reviewed the [*13] plan and provided a declaration addressing its purported weaknesses. Venters Dec., at ¶¶ 1718. Many of his conclusions did not address the adequacy of the plan itself, but rather the adequacy of its implementation.9 See id. at ¶ 18.
Nevertheless, the Court directed Defendants to provide a memorandum10 responding to Venters' Declaration along with verified affidavits or declarations of their own. Order,

ECF No. 179. Defendants did so, and their affidavits demonstrated that Defendants had already taken steps to implement the plan they had earlier provided to the Court.11 See generally Second Jividen Aff.; Plumley Aff.; Hissom Aff. Two of these steps are of particular importance: the expanded use of furlough programs to reduce crowding in West Virginia jails and prisons, Second Jividen Aff., at 2, and the timely completion of the worksheets attached to Defendants' response plan, Plumley Aff., at 1. All this demonstrates that Defendants are implementing the plan developed by the very sources Plaintiffs themselves have relied on for guidance in their submissions and expert declarations—namely, VitalCore and the CDC.
The probative weight [*14] of this evidence is what has permitted the Court to consider Plaintiffs' Motion without further witness testimony.12 This is reinforced by the witnesses set to testify at the hearing; there is extremely limited probative value in calling several incarcerated witnesses to testify out of a system filled with thousands, and Plaintiffs' expert was permitted to respond to Defendants at whatever length and depth he chose. Moreover, much of what inmates could testify to—say, the crowded conditions in various state correctional facilities—is already apparent from the evidence the parties have provided. See, e.g., Occupancy Chart, ECF No. 181-8 (showing over-capacity populations at five state jails). Any notes that Plaintiffs have collected regarding insufficient preparations for COVID-19 are not enough to outweigh Defendants' evidence of ongoing implementation of their plan, including posted signs and notices across jail facilities.

7 VitalCore is a private company that aims to improve health care services in correctional facilities. See https://vitalcorehs.com/ (last visited Apr. 7, 2020).
8 The CDC guidance—incorporated by reference into Defendants' plan—accounts for many of the subsequent changes in VitalCore's own plan that Plaintiffs submitted as a sample. See Sample COVID19 Plan, at 1 ("Below are substantive updates primarily based on the new CDC guidance.").
9 Indeed, Venters urged the WVDCR to fully implement the plan immediately. Venters Dec., at ¶ 18(i).
10 In their Memorandum, Defendants mention that they requested and reviewed notes of conversations with five inmates that formed the basis of Dr. Venters' expert opinions. Resp. Mem., ECF No. 181-6, at 2 n.1. As Defendants point out, these notes revealed far from uniform condemnation of WVDCR's response to the COVID-19 crisis. See, e.g., id. at 6 ("Plaintiff Edmondson . . . thought that his facility had '[r]eally done a good job with disinfectants' . . . . Plaintiff Baxley admitted that . . . the facility is 'pretty decent about getting them hygiene there.'").

Turning again to the substance of that Motion, Plaintiffs are seeking two forms of injunctive relief: an order requiring Defendants to "develop, disclose, and implement a plan that undertakes all appropriate actions to protect Plaintiffs and others who are similarly [*15] situated," and an order directing "WVDCR to release a sufficient number of inmates
11 Lending further support to this finding are photographs of signs— and examples of the signs themselves—provided to the Court by Defendants in advance of the hearing.
12 The Court recognizes that Plaintiffs have maintained their objection to its decision to end the hearing without entertaining testimony. Nevertheless, Court notes that Rule 65 of the Federal Rules of Civil Procedure "does not require an evidentiary hearing" if "the party opposing the preliminary injunction [has] a fair opportunity to oppose the application and to prepare for such opposition." McDonald's Corp. v. Robertson, 147 F.3d 1301, 1311 (11th Cir. 1998). The Court afforded Defendants every opportunity to oppose Plaintiffs' Motion, and in any event has ruled in their favor.

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[to] reduce overcrowding and allow for appropriate social distancing within the jails and prisons to protect medically vulnerable inmates." Mot. for Prelim. Inj., at 12-13. It bears repeating that this injunctive relief is sought in the context of a 42 U.S.C. § 1983 action alleging deliberate indifference to prisoners' medical needs under the Eighth and Fourteenth Amendments to the United States Constitution. See Second Am. Compl., at ¶ 244. It is this legal and procedural framework that shapes the Court's approach to Plaintiffs' Motion.
1. Likelihood of Irreparable Harm
The Court begins its analysis by considering the likelihood of irreparable harm, as "[t]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Sampson v. Murray, 415 U.S. 61, 88, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974). "'Establishing a risk of irreparable harm is not enough. A plaintiff has the burden of proving a 'clear showing of immediate irreparable injury.'" Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 812 (4th Cir. 1991) (quoting ECRI v. McGrawHill, Inc., 809 F.2d 223, 226 (3d Cir. 1987)). High though this standard may be, the Court concludes that Plaintiffs have met it here.

Provided the likelihood of serious illness and even death accompanying the COVID-19 pandemic, the Court has little trouble concluding that the absence of a plan to mitigate its effects could result in irreparable harm to Plaintiffs. This reasoning aligns with that of many other [*17] courts that have confronted this issue in the context of the COVID-19 pandemic. See, e.g., Coronel v. Decker, No. 20-cv-2472 (AJN), 2020 U.S. Dist. LEXIS 53954, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Castillo v. Barr, CV 20-00605 TJH (AFMx), 2020 U.S. Dist. LEXIS 54425, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020); Zhang v. Barr, No. ED CV 2000331-AB (RAOx), 2020 U.S. Dist. LEXIS 54424, 2020 WL 1502607 (C.D. Cal. Mar. 27, 2020); Basank v. Decker, 20 Civ. 2518(AT), 2020 U.S. Dist. LEXIS 53191, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020). Even Defendants concede that the disease poses a degree of risk, though they characterize it as "low and certainly not any greater than the risk of the public at large."14 Resp. in Opp'n, at 18. The possibility that Plaintiffs could face a life-threatening—or even deadly—infection in prison constitutes exactly the sort of irreparable harm that injunctive relief is intended to remedy. It follows that the Court finds that Plaintiffs have made a clear showing that irreparable harm will result from inaction on Defendants' part during the COVID-19 pandemic. As has already been discussed, however, Defendants have been far from inactive in preparing for the disease.

The COVID-19 pandemic is unprecedented, both as a matter of public health and as a matter of societal disruption. The disease itself appears highly communicable, [*16] and evidence suggests that the immediate likelihood of infection is only elevated in prisons. See, e.g., Meyer Dec., ECF No. 1614. That prisoners have not yet been infected with COVID-19 is no bar to a finding of irreparable harm; indeed, as the United States Supreme Court has clarified, prison officials may be deliberately indifferent "to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms." Helling v. McKinney, 509 U.S. 25, 34, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993). The question for West Virginia prisons is not the current rate of infection—to date, there have been no reported cases of COVID-19 in West Virginia jails or prisons—but rather the immediate likelihood of such infection. Given the rapidly-increasing numbers of infected individuals in West Virginia's general population,13 the risk of transmission to prisoners is quite high.

2. Likelihood of Success on the Merits
Having determined that Plaintiffs would likely suffer irreparable harm absent a plan to mitigate the spread of COVID-19 in state prisons, the Court next considers whether they are likely to succeed on the merits of their deliberate indifference [*18] claims. As an initial matter, the Court recognizes that "the Eighth Amendment's proscription of cruel and unusual punishments is violated by deliberate indifference to serious medical needs of prisoners." Deliberate indifference, in turn, "is a very high standard [and] a showing of mere negligence will not meet it." Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). For a prisoner to state a claim for deliberate indifference to her medical needs under § 1983, she "must demonstrate (1) a deprivation of [her] rights by the defendant that is, objectively, sufficiently serious and (2) that the defendant's state of mind was one of deliberate indifference to inmate health or safety." Carroll v. W. Va.

13 See Fred Pace, COVID-19 Cases Increase In West Virginia, Ohio, Kentucky, Herald-Dispatch (Apr. 4, 2020), available at https://www.herald-dispatch.com/coronavirus/covid-19-casesincrease-in-west-virginia-ohio-kentucky/article_93faca28-6bd9515f-b5a2-b44234c36e9a.html.

14 As noted throughout this Memorandum Opinion and Order, Plaintiffs have presented substantial evidence suggesting that the risk of contracting COVID-19 is higher in prisons than within the general population. See generally Meyer Dec. The Court is persuaded by this evidence.

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Reg'l Jail & Corr. Facility Auth., No. 3:14-1702, 2015 U.S. Dist. LEXIS 37581, 2015 WL 1395886, at *6 (S.D.W. Va. Mar. 25, 2015) (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)) (internal quotations omitted). Regarding the second prong in particular, a plaintiff must demonstrate that a defendant "actually knew of and disregarded a substantial risk of serious injury to the detainee." Young v. City of Mount Rainer, 238 F.3d 567, 57576 (4th Cir. 2001). "The subjective component therefore sets a particularly high bar to recovery." Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). It is this high bar that makes it unlikely that Plaintiffs could succeed on the merits of their claims.15
This is true for several reasons. First, the evidence before the Court suggests that Defendants have been anything [*19] but unresponsive to the threat posed by COVID-19. Although "[f]ailure to respond to an inmate's known medical needs raises an inference [of] deliberate indifference to those needs," Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990), no such failure is apparent here. In fact, Defendants have produced what appears to be a comprehensive plan addressing the spread of COVID-19 in state jails and prisons. The plan addresses procedures to limit the entrance of COVID-19 into the corrections system, as well as methods to limit intrafacility transmission and to transport infected individuals to hospitals for medical care. Policy Directive, at 2-3. Of course, a legal education is not a medical education and the Court is cognizant of its own limitations in reviewing the Defendants' proffered plan. Yet Plaintiffs' medical expert was provided an opportunity to review Defendants' plan and comment upon it, and Defendants have provided what the Court considers adequate responses to each alleged shortcoming. The existence and ongoing implementation of Defendants' COVID-19 response plan makes it impossible to conclude that Defendants "actually knew of and disregarded a substantial risk of serious injury to the detainee." Young, 238 F.3d at 575-76. In fact, the opposite seems to be the case: Defendants [*20] have demonstrated actual knowledge of the risk of COVID-19, and regard it with the seriousness it deserves.
A second consideration for the Court is the intangibility of Plaintiffs' actual requests. The Court notes that this Motion was filed with the principal goal of obtaining an order that would require Defendants to develop and execute an adequate COVID-19 response plan. This goal has since somewhat evolved, as Plaintiffs now recognize that Defendants have
15 For the purposes of this analysis, the Court assumes that COVID19 is "sufficiently serious" to warrant medical attention. See Iko, 535 F.3d at 241.

adopted a COVID-19 response plan drawn from the same source as their own proposed response plan. Instead of focusing on the adequacy of the plan, Plaintiffs argue that its implementation has been ineffective and that an indeterminate number of prisoners and detainees must be released to provide for increased social distancing within prisons and jail facilities. With respect to the first contention, the Court is mindful that—even apart from questions of its own authority—it cannot act as an administrator of state prison facilities to ensure that every element of Defendants' plan is implemented to the letter. With respect to the second contention, Plaintiffs have been unable to provide any clear guidance to the Court as to how it [*21] could begin to approach the process of reducing crowding in state prisons. The Court is unwilling (and potentially unable) to simply pick an arbitrary occupancy target that would allay Plaintiffs' concerns, and lacks the capacity to administer any sort of release or furlough policy based on "reasonableness" or another imprecise standard.16 As Defendants' justifiably note, they are already attempting to reduce jail populations through the use of furlough programs. Second Jividen Aff., at 2. Yet determinations regarding release and furlough must be made on a case-by-case basis, taking into account the seriousness of an inmate's underlying offense and the support network into which she will be discharged. Defendants have continually represented to the Court that they are already taking steps to reduce overcrowding and are considering others, and any order requiring them to do the same would be superfluous.
Finally, the timing of Plaintiffs' Motion factors into the Court's decision. At present, there have been no reported cases of COVID-19 in West Virginia prisons. This will likely change in the coming days and weeks, and Defendants' plan will be stress-tested by the virus. It is possible [*22] that the measures Defendants propose to implement will be insufficient in confronting the virus, and may eventually give rise to a finding that Defendants are acting with deliberate indifference to the medical needs of West Virginia inmates. Yet, at present, it is impossible to conclude that Defendants have acted with the sort of deliberate indifference that could give rise to a constitutional violation under the Eighth and Fourteenth Amendments. As such, the Court finds that Plaintiffs have not demonstrated a substantial likelihood of success on the merits of their claims.
16 At the hearing, Plaintiffs suggested the appointment of a Special Master or an order directing the parties to engage in mediation as potential means for increasing the administrability of any injunction. The Court does not believe either option deals effectively with the problems inherent in making case-by-case determinations regarding the furlough or release of inmates.

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2020 U.S. Dist. LEXIS 61894, *22

3. Balance of Equities
As Plaintiffs have succeeded in showing a likelihood of irreparable harm but failed in showing a likelihood of success on the merits, the Court is left to weigh the equities presented by this case. The threat of COVID-19 is the primary factor in the Court's analysis, and would likely be dispositive had Defendants not taken any action to plan for the arrival of the virus in the West Virginia correctional system. Of course, this is not the case here; as noted earlier, Defendants have prepared a plan that appears to mitigate the threat of the disease. And mitigation is all that can be demanded in this case, as no technology [*23] yet exists that can cure or entirely prevent COVID-19. The best scientists in the world have been unable to eliminate the risk of the disease, and the Court can expect no more of Defendants. This alters the Court's analysis significantly, and lessens the weight that Plaintiffs' risk of irreparable harm would otherwise carry.

interest. This factor does not weigh heavily in either direction, as any injunction would likely be narrowly tailored to the West Virginia prison system rather than the public at large. Nevertheless, the Court sees obvious implications for public safety were it to issue a broader injunction and order the immediate release of a certain number of incarcerated individuals to allow for greater social distancing [*25] within prisons. On the other hand, public health is naturally a matter of public concern and limiting the spread of the COVID-19 virus is therefore well within the public interest. Preventing an outbreak within a prison from overwhelming local hospitals is another consideration in Plaintiffs' favor, though the Court is not entirely sure an injunction could do more to prevent any such outbreak than Defendants' current plan. It follows that, once again, Defendants' policy tempers public health worries and persuades the Court that a preliminary injunction is not in the public interest at this time.

On the opposite side of the scale, Defendants maintain a strong interest in promulgating their own policies for prison management outside the rare circumstances where the intervention of a court is absolutely necessary. See O'Dell, 112 F.3d at 777. There is also Defendants' obvious interest in ensuring that incarcerated individuals actually complete their terms of incarceration. Defendants have also already made use of various state-authorized furlough programs, which allow them to advance their interests alongside Plaintiffs' stated interest in increased social distancing. Second Jividen Aff., at 2. Finally—and perhaps most importantly—it is readily apparent that COVID-19 is a fast-moving threat that requires efficient and efficacious responses from state authorities. Defendants will need to make rapid decisions and take immediate action to stem the spread of the virus, and the Court's [*24] intervention in these considerations would only inhibit their ability to do so. It is likely that any injunction would leave Defendants unsure of precisely what actions they could take without notifying Plaintiffs and the Court, thereby slowing any response and making disease prevention more difficult.
As the Court has noted at several points, evidence of an outbreak and the insufficiency of Defendants' plan could alter this calculus. Yet, for the moment, Plaintiffs have failed to show that their interest in fending off COVID-19—which is tempered by Defendants' plan to aid them in doing so— outweighs Defendants' strong interest in managing state prisons.
4. Public Interest
The fourth and final factor for the Court's consideration asks whether a preliminary injunction would favor the public

5. Result
Plaintiffs are right to be concerned for their health the midst of an unprecedented pandemic that has already transformed American life in fundamental ways. The likelihood that Plaintiffs will face irreparable harm from the spread of COVID-19 is no small matter, and is one that will only grow in significance as this pandemic progresses. Yet the Court is not free to ignore the steps Defendants have already taken to address the virus, which are comprehensive and based on best practices promulgated by a source Plaintiffs already appear to trust. These facts make it exceedingly unlikely [*26] that Plaintiffs could succeed on the merits of their claim that Defendants have acted with deliberate indifference toward inmates' medical needs in light of COVID-19. It would be redundant for the Court to order relief that Defendants are in the midst of granting, and so the Court concludes that a preliminary injunction is not warranted here.
Nevertheless, it is worth reiterating that the coronavirus pandemic is an ever-changing crisis that evolves by the hour more often than by the day. If Defendants' plan is unable to adequately address the spread of COVID-19 in state prisons, Plaintiffs will likely have a much stronger likelihood of succeeding on the merits of their claims. As noted at the hearing, the Court believes that Defendants would be served well by consulting experts on disease transmission in prisons and taking their advice seriously. The Court similarly believes that exercising available furlough and other crowd-reduction policies available under West Virginia law is a prudent step in view of the recommendations contained in Defendants' own plan. Nevertheless, the Court will not "immerse [itself] in the management of state prisons" absent the most extraordinary circumstances. [*27] Taylor, 34 F.3d at 268. Given

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PageID.1706

PaPgagee 190ofo9f

Defendants' actions, such circumstances do not exist in West Virginia jails or prisons at this time. Plaintiffs' Motion is therefore denied.

IV. CONCLUSION
For the foregoing reasons and for those announced on the record at the hearing, the Court DENIES Plaintiffs' Motion, ECF No. 161, and DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to counsel of record and any unrepresented parties.
ENTER: April 8, 2020
/s/ Robert C. Chambers
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

End of Document

Case 2:20-cv-11053-MAG-RSW ECF No. 27-27 filed 05/12/20 PageID.1707 Page 1 of 11 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT Z

Case 2:20-cv-11053-MAG-RSW ECF No. 27-27 filed 05/12/20 PageID.1708 Page 2 of 11

Neutral As of: May 11, 2020 5:49 PM Z

Amos v. Taylor

United States District Court for the Northern District of Mississippi, Greenville Division April 24, 2020, Decided; April 24, 2020, Filed NO. 4:20-CV-7-DMB-JMV

Reporter 2020 U.S. Dist. LEXIS 72532 *
MICHAEL AMOS, et al., PLAINTIFFS v. TOMMY TAYLOR, et al., DEFENDANTS

JUDGE. Opinion by: Debra M. Brown

Prior History: Amos v. Hall, 2020 U.S. Dist. LEXIS 11931 (N.D. Miss., Jan. 24, 2020)

Opinion

Core Terms
inmates, staff, symptoms, cleaning, screening, deliberate indifference, visitors, distancing, quarantine, injunctive relief, recommendations, injunction, measures, soap, visitation, plaintiffs', practices, sanitizer, isolated, housed, fever, masks, wear, preliminary injunction, conditions, co-pays, testing, defendants', facilities, Disease

ORDER
The plaintiffs, all inmates at the state penitentiary in Parchman, Mississippi, seek emergency injunctive relief requiring the Mississippi Department of Corrections' interim commissioner and superintendent to implement certain measures to prevent or mitigate the spread of COVID-19. Because the plaintiffs have not satisfied the requisite elements for injunctive relief, their request for injunctive relief will be denied. [*2]

Counsel: [*1] For Michael Amos, Pitrell Brister, Antonio Davis, Willie Friend, Charles Gayles, Daniel Guthrie, Jonathan J. Ham, Desmond Hardy, Billy James, Jr., Justin James, Quenten Johnson, Challis Lewis, Deaunte Lewis, Larry Maxwell, Terrance McKinney, Derrick Pan, Brandon Robertson, Kuriaki Riley, Derrick Rogers, Tyree Ross, H. D. Alexander Scott, Deangelo Taylor, Lemartine Taylor, Conti Tillis, Demarcus Timmons, Adrian Willard, Curtis Wilson, Carlos Varnado, Plaintiffs: Carson H. Thurman, LEAD ATTORNEY, MARON MARVEL BRADLEY ANDERSON & TARDY LLC, Jackson, MS; Lawrence S. Blackmon, LEAD ATTORNEY, THE BLACKMON FIRM, PLLC, Canton, MS; Marcy Bryan Croft, LEAD ATTORNEY, Maron Marvel Bradley Anderson & Tardy, Jackson, MS.
Judges: Debra M. Brown, UNITED STATES DISTRICT

I
Procedural History
On January 28, 2020, thirty-three inmates at the Mississippi State Penitentiary at Parchman filed a "First Amended ClassAction Complaint and Demand for Jury Trial" against Tommy Taylor, in his official capacity as the Interim Commissioner of the Mississippi Department of Corrections, and Marshal Turner, in his official capacity as the Superintendent of Parchman. Doc. #22. In their complaint, the plaintiffs allege that the defendants' policies and practices caused years of neglect at Parchman, which placed them in imminent danger of serious physical injury, in violation of the Cruel and Unusual Punishment Clause of the Eighth

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2020 U.S. Dist. LEXIS 72532, *2

Amendment, as incorporated by the Fourteenth Amendment. unnecessary. See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, The pleading, which includes a proposed class action, seeks 628 (5th Cir. 1996). monetary and injunctive relief.

On March 16, 2020, the plaintiffs filed an emergency motion for a temporary restraining order and mandatory preliminary injunction. Doc. #59. The motion seeks an "order directing mandatory and affirmative action to safeguard Plaintiffs at Parchman from SARS-CoV-2, also known as COVID-19." Id. at 1.
After this Court directed expedited briefing on the motion, the defendants filed a response on March 19, 2020. Doc. #62. The plaintiffs replied a day later. Doc. #64. Three days after the completion [*3] of the expedited briefing, the Centers for Disease Control and Prevention issued a document titled, "Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities."1 Accordingly, the Court directed the parties to supplement their filings in light of the CDC's guidance. Doc. #70. The parties complied with this directive. Docs. #74, #75.
II

A. Background [*4]
The unfortunate backdrop to this case is known to all. The United States of America, and most of the world, is in the midst of an outbreak of a respiratory illness known as COVID-19. As of April 22, 2020, the Centers for Disease Control reported 828,441 cases in American territories, resulting in 46,379 deaths.4 Also as of April 22, 2020, the State of Mississippi reported 5,153 cases, with 201 resulting deaths.5
"The virus that causes COVID-19 is spreading very easily and sustainably between people," typically through respiratory droplets produced by an infected person.6 Symptoms of the disease include fever, cough, and shortness of breath. Doc. #74-1 at 4. Transmission "mainly" occurs "[b]etween people who are in close contact with one another (within about 6 feet)."7 Because, according to the CDC, "[l]imiting face-toface contact with others is the best way to reduce the spread" of the virus,8 the CDC recommends that people "practice social or physical distancing" by staying at least six feet from other people, not gathering in groups, and avoiding "crowded

Relevant Facts

The facts relevant to this motion are derived from the numerous exhibits submitted by the parties, including (1) an affidavit of Marc Stern, an expert for the plaintiffs; (2) redacted declarations and questionnaires executed under penalty of perjury by six inmates housed in Unit 30; (3) affidavits from various MDOC officials;2 (4) affidavits from employees of Centurion of Mississippi, LLC,3 MDOC's thirdparty health care provider; (5) affidavits from one of the plaintiffs' attorneys and a private investigator retained by the plaintiffs; and (6) an array of documentary evidence. Because these documents reveal no material disputed facts, and because no party has requested an evidentiary hearing, the Court concludes that no hearing on the plaintiffs' motion is

1 Accessible

at

https://www.cdc.gov/coronavirus/2019-

ncov/downloads/guidance-correctional-detention.pdf.

2 The officials are Jeworski Mallett, MDOC's Acting Deputy Commissioner of Institutions; Gloria Perry, MDOC's Chief Medical Officer; and Marshal Turner, the Superintendent of Parchman.

3 The employees are John May, Centurion's Chief Medical Officer; Willie Knighten, Centurion's Health Services Administrator at Parchman; and Clayton Ramsue, Centurion's Mississippi Statewide Medical Director.

4 Centers for Disease Control and Prevention, Coronavirus Disease

2019

(COVID-19):

Cases

in

the

U.S.,

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-

us.html (last visited April 24, 2020). The Court takes judicial notice

of this and other CDC statements regarding the virus. See In re

Abbott, 954 F.3d 772, 779 (5th Cir. 2019) (apparently taking judicial

notice of CDC facts related to COVID-19); Gent v. CUNA Mut. Ins.

Soc., 611 F.3d 79, 84 & n.5 (1st Cir. 2010) (taking judicial notice of

CDC guidance and facts related to Lyme disease). The Court will

also take judicial notice of state and local statements. See Coleman v.

Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (taking judicial notice of

information on state website).

5 Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19): COVID-19 in Mississippi and the U.S., https://msdh.ms.gov/msdhsite/_static/14,0,420.html (last visited April 24, 2020).

6 Centers for Disease Control and Prevention, Coronavirus Disease

2019

(COVID-19):

How

COVID-19

Spreads,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

sick/how-covid-spreads.html (last visited April 24, 2020).

7 Id.
8 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Social Distancing, Quarantine, and Isolation, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

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places" and "mass gatherings."9
B. Pre-COVID-19 Parchman Conditions
According to Marc Stern, a board-certified internist [*5] with a specialty in correctional healthcare, the pre-COVID-19 "health-related and environmental conditions" at Parchman were the worst he had seen in his twenty-year career. Doc. #59-6 at ¶¶ 3, 8. In his affidavit, Stern states that a COVID-19 outbreak at Parchman "would be catastrophic, and potentially fatal to many residents with already compromised immune systems and underlying chronic conditions." Id. at ¶ 10.

operational and communications planning and personnel practices" "intended to help facilities prepare for potential COVID-19 transmission in the facility;" (2) "prevention" strategies, which [*7] 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); and (3) "management" strategies, such as "medical isolation" and quarantines, "intended to help facilities clinically manage confirmed and suspected COVID19 cases inside the facility and prevent further transmission." Id. at 5.

Based on the conditions at Parchman, which Stern observed during a February 11, 2020, inspection of the facility, Stern opines the defendants "should immediately ... mandate[]" the following steps: (1) test patients who require testing, "based on public health recommendations and the opinion of a qualified medical professional; (2) screen on a daily basis every visitor to the facility (including employees) for a fever over 100 degrees, cough, shortness of breath, recent travel to a high risk country, or exposure to a symptomatic individual; (3) isolate inmates "believed to have been exposed to COVID-19" and those "believed to be infected ... and potentially infectious;" (4) "increase the sanitation and cleaning protocol and frequency for all public spaces, highly traveled [*6] areas, and cells;" (5) provide inmates sufficient "hand soap, disposable paper towels, and access to water, ... free of charge," and lift Parchman's ban on hand sanitizer and allow use of sanitizer by inmates; (6) "require[] or increase non-contact visitation;" (7) waive copays "related in any way to COVID-19 and/or its symptoms; and (8) "identify the supplies and other materials upon which the institution is dependent, such as food, medical supplies, certain medicines, cleaning products, etcetera and prepare for shortages, delays or disruptions in the supply chain." Doc. #59-6 at ¶ 11.
C. The CDC Guidance
On March 23, 2020, the CDC issued "Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities" ("CDC Guidance"). Doc. #74-1. The document "provides ... recommended best practices specifically for correctional and detention facilities." Id. at 3.
The CDC Guidance is divided into three categories: (1) "operational preparedness" strategies, which focus "on

Of relevance to the plaintiffs' motion, the CDC Guidance, which "may need to be adapted based on individual facilities' physical space, staffing, population, operations, and other resources and conditions,"10 includes the following recommendations for correctional facilities:
1. Post signage "throughout the facility" which communicates the "symptoms of COVID-19 and hand hygiene instructions," and which informs inmates to "report symptoms to staff." Doc. #74-1 at 6.
2. Provide to inmates on a regular basis "up-to date information about COVID-19," including "[s]ymptoms of COVID-19 and its health risks," and "[r]eminders to report COVID-19 symptoms to staff at the first sign of illness." Doc. [*8] #74-1 at 12.
3. "If soap and water are not available," "[c]onsider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow." Id. at 8.
4. "Provide a no-cost supply of soap to [inmates], sufficient to allow frequent hand washing." Doc. #74-1 at 8. The soap should preferably be liquid and should be in sufficient quantities to allow the inmate to "[re]gularly wash [his] hands with soap and water for at least 20 seconds." Id. at 8, 10.
5. "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)." Doc. #74-1 at 10. Hand sanitizer should be placed "in visitor entrances, exits, and waiting areas." Id. at 13. 6. "[C]onsider suspending co-pays for [inmates] seeking

sick/social-distancing.html (last visited April 24, 2020).

9 Id.

10 Doc. #74-1 at 1.

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medical evaluation or respiratory symptoms." Doc. #741 at 9.
7. Implement "intensified cleaning and disinfecting procedures" by cleaning and disinfecting "[s]everal times per day ... surfaces and objects that are frequently touched, especially [*9] in common areas," such as "doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones." Doc. #74-1 at 9. 8. Consider eliminating in-person visits and, if eliminated, promote non-contact by reducing or eliminating the cost of telephone calls, and increasing telephone privileges. Doc. #74-1 at 13.
9. "Perform verbal screening ... and temperature checks for all visitors and volunteers on entry" to screen for COVID-19 symptoms and potential exposure to the virus. Doc. #74-1 at 13. The screening process should be administered by staff wearing personal protective equipment (such as respiratory protection) and should exclude visitors who do not clear the screening process or who decline screening. Id. Perform the same screening daily for staff. Id. at 12.
10. "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)." Doc. #74-1 at 11. Example strategies include, staggering recreation and meal times, rearranging seating in the dining halls, providing meals to inmates in cells, limiting group activities, reassigning [*10] bunks, and arranging bunks so that individuals sleep head to foot. Id.
11. When an inmate develops COVID-19, the inmate should wear a face mask and "should be immediately placed under medical isolation in a separate environment from other individuals." Doc. #74-1 at 15. Facility staff "should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated." Id. at 22.
D. Parchman's COVID-19 Measures and Procedures
Before the issuance of the CDC Guidance, MDOC and Centurion officials were working to implement the provisions of "Centurion Pandemic Preparedness and Emergency Response Plan" ("Centurion Plan"), a document setting forth "protocols for the diagnosis, treatment, and management of conditions related to infectious diseases such as COVID-19." Doc. #62-1 at ¶ 8. Since then, the following measures and procedures have been established at Parchman:

1. Centurion staff distributed COVID-19 informational handouts to health care staff, security staff, and inmates at Parchman. Doc. #75-2 at PageID #1477. The forms all listed the symptoms of COVID-19 and provided additional instructions and procedures for each group. Doc. #75-3 at PageID #1491-97. The inmate forms recommended that [*11] inmates wash hands "often with soap and water," practice social distancing of six feet or more, cover coughs and sneezes, and stop smoking. Id. at PageID #1497. The healthcare staff forms provided that if an inmate was exposed to COVID-19 or displayed symptoms of COVID-19, the inmate should be placed in a separate and closed room for further testing. Id. at PageID #1491-92. 2. MDOC suspended in-person visitation and allowed inmates to make two free phone calls per week through April 13, 2020. Doc. #62-1 at 6 & PageID #1042.
3. MDOC posted signs at the entrances to all housing units at Parchman stating that anyone experiencing fever, coughing, sneezing, cold symptoms, or difficulty breathing should not enter the facility. Doc. #75-2 at PageID #1477. MDOC also posted signs regarding handwashing in Parchman's restrooms. Id.
4. MDOC is supplying Parchman inmates extra hand soap and placed signage "in each unit, building, and zone to remind inmates to regularly wash their hands and to do so for at least 20 seconds." Doc. #75-5 at ¶ 8. Hand sanitizer is available to staff "at the areas where they clock-in and clock-out" but has not been made available to inmates. Id.
5. MDOC requires that all [*12] staff wear masks and gloves "while inside the buildings and zones of a unit at [Parchman] and while interacting with inmates." Doc. #75-5 at ¶ 8. Inmate workers are provided masks and gloves "to wear while they are performing their duties or interacting with other inmates." Id. Centurion imposed a similar requirement for its staff on April 15, 2020. Doc. #75-2 at 3.
6. Three times per day, MDOC issues cleaning supplies to inmate workers to disinfect common areas in each zone. Doc. #75-5 at ¶ 9. MDOC staff have also "been instructed to frequently clean any shared equipment and upon conclusion of any use of that equipment." Id.
7. MDOC requires screening of "staff and all visitors at [Parchman] daily upon entrance to the facility for symptoms and other indicators of exposure to COVID19." Doc. #75-5 at ¶ 10. This process "includes questions about symptoms, if any, including headaches, fevers, coughing, shortness of breath, and any trouble breathing,

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travel history, and includes the administration of a temperature reading." Id. Staff or visitors with temperatures greater than 100 degrees are asked to leave the premises. Id.
8. MDOC directed staff "to announce daily to all inmates in each [*13] zone that they should immediately report any symptoms of COVID-19 to MDOC staff." Doc. #755 at ¶ 10. If an inmate exhibits symptoms of COVID-19, Centurion screens all inmates in that zone. Id.
9. When dealing with a symptomatic inmate, Centurion employees are to follow an "Assessment Protocol for Patients Presenting with Febrile Respiratory Illness." Doc. #75-3 at ¶ 23 & PageID #1499. Under this protocol, the on-duty RN must apply a surgical mask to the inmate before conducting an assessment. Id. at PageID #1499. If the RN determines the inmate does not have a fever and is "not exhibiting respiratory symptoms consistent with viral illness" then the patient should be educated and returned to housing. Id. Otherwise, the RN should confirm whether there is a "flu-like illness" and then administer a rapid Influenza test. Id. If the influenza test is positive, the patient should be isolated. Id. If the influenza test is negative or not available, the RN may test one or two patients in the area for COVID-19 or presume the population to be positive, if tests are unavailable. Id. If the patient has a fever and is otherwise "ill or compromised" the inmate should be transported to the ER. Id. [*14]
10. MDOC ceased in-person visits with inmates, except for visits with attorneys. Doc. #75-5 at ¶ 10. Attorneys are asked to wear gowns, gloves, and masks. Id. All visitation areas are sanitized after each visit. Id. 11. MDOC posted signage at Parchman to advise inmates of social distancing recommendations and directed staff "to verbally encourage social distancing," including encouraging sleeping head to foot. Doc. #75-5 at ¶ 11. 12. MDOC suspended inter-facility transfers of inmates in and out of Parchman, "except for cases of an emergency or a serious security threat." Doc. #75-5 at ¶
12. When a new inmate is transferred into Parchman, the new inmate is screened and isolated for fourteen days. Id. However, intra-facility transfers are still occurring. Id. Parchman inmates who are transported outside Parchman for medical care are quarantined upon return. Doc. #75-2 at ¶ 12.

which the potentially sick person had direct contact is quarantined for fourteen days. Doc. #75-5 at ¶ 13. The potentially sick person is then medically isolated. [*15] Id. Staff with direct contact with the individual must wear personal protective equipment (PPE), including masks and gloves. Doc. #75-2 at ¶ 16. 14. Centurion waived all co-pays related to COVID-19, effective March 19, 2020. Doc. #75-5 at ¶ 16; Doc. #753 at ¶ 20. 15. Inmates with underlying medical conditions are housed separately in Parchman's medical unit. Doc. #752 at ¶ 13.
16. Centurion nurses travel to housing units twice a day to answer inmate questions. Id. at ¶ 10.
E. Challenges to Implementation of Measures and Procedures in Unit 30
As explained above, the plaintiffs submitted questionnaires and declarations executed under penalty of perjury by six inmates housed in Unit 30, as well as affidavits from a private investigator and the plaintiffs' counsel. See Docs. #74-3, #744, #74-5, #74-6. Taken together, these documents show:
1. On March 24 and 25, 2020, Parchman staff did not wear personal protective equipment while screening visitors, did not ask screening questions, and did not disinfect the contact thermometer after each use. Doc. #74-5 at ¶¶ 10-11, 14-15. On these dates, vehicles containing MDOC or Centurion employees were allowed to enter Parchman without any screening. [*16] Id.
2. As of March 25, 2020, the Parchman visitor center had no COVID-19 signage. Doc. #74-6 at ¶ 11. The visitor restroom had no hand soap or hand sanitizer. Id. at ¶ 8.
3. Inmates in Unit 30 are receiving two bars of soap weekly, rather than the one they are normally provided. See Doc. #74-4 at PageID #1375.
4. Except for the quarantines, the defendants have made no effort to enforce social distancing guidelines between the inmates in Unit 30. See Doc.# 74-4 at PageID #1388. For example, inmates can play basketball. Doc. #74-4 at PageID #1392.
5. Inmates in Unit 30 have received limited information on the virus and some were not informed by the defendants that co-pays had been waived.11 See Doc.

13. MDOC implemented a quarantine plan under which if an inmate or staff person is tested for COVID-1 or is suspected of having COVID-19, any housing unit in

11 Of the six inmate declarants, three stated definitively they were not

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#74-3 at PageID #1331, #1338. 6. The defendants did not clean the bedding and property of an inmate in Unit 30 who was taken to the medical unit for COVID-19 related symptoms. Doc. #74-4 at PageID #1375. 7. While inmates in Unit 30 are provided supplies to clean portions of Parchman, bunks are never cleaned, and laundry service is not used often by inmates because inmates believe the laundry "comes back dirty." Doc. #74-4 at PageID #1375.
8. During daily temperature checks in Unit 30, nurses do not [*17] ask about symptoms. Doc. #74-4 at PageID #1375. Inmates with fevers and coughs are not consistently referred to the medical unit or evaluated in any way. Doc. #74-4 at PageID #1392. On at least one occasion an inmate was threatened with mace when he tried to inform a nurse of his COVID-19 symptoms. Id. at PageID #1376. 9. Inmates in Unit 30 have not been provided paper towels, tissues, or no-touch trash cans. Doc. #74-4 at PageID #1375, #1377-78. 10. Guards in Unit 30 do not always use masks or maintain social distancing. Doc. #74-4 at PageID #1374. 11. "Most" but not all medical staff wear gloves. Doc. #74-4 at PageID #1374.
F. Quarantines in Unit 30
On or about March 26, 2020, Parchman officials learned that a staff member who worked with inmate kitchen workers had tested positive for COVID-19. Doc. #75-2 at ¶ 18. In response to this development, MDOC "quarantined" for fourteen days all inmates housed with the exposed inmate kitchen workers. Id. From March 26 until April 2, 2020, inmates in Buildings C and D of Unit 30 (the impacted buildings) were still eating meals with inmates in other buildings. Doc. #74-4 at ¶ 4. It was not until April 2, 2020, that the buildings were locked [*18] down. See id. at PageID #1373, #1377, #1389, #1383, #1386, #1390. Regardless, no inmates developed a fever before the quarantine ended on April 9, 2020. Doc. #752 at ¶ 18.
On April 8, 2020, an inmate previously admitted to the Parchman hospital was tested for COVID-19. Id. at ¶ 19. Two days later, after his condition deteriorated, the inmate was transferred to a hospital off the Parchman site. Id. On April
told of the waiver, one said he was told "3rd hand," one said it was not "emphasized," and one is "not sure" he was told. See Doc. #74-3. In their accompanying declarations, two of the inmates who stated they were not told, and the inmate who stated he was "not sure," all clarified that the waiver was not "emphasized."

11, 2020, the inmate passed away. Id. Later that evening, the defendants learned that the inmate tested positive for COVID19. Id.
Following the positive test, Parchman officials cleaned with Biovex and bleach both the medical unit and the building where the inmate had been housed. Doc. #75-2 at ¶ 20. Additionally, the defendants quarantined for fourteen days all inmates housed in the buildings where the sick inmate was previously housed and all inmates housed in the buildings where the sick inmate previously worked. Id. at ¶ 21. The quarantined inmates were provided face masks and are being monitored for COVID-19 symptoms two times a day. Id. Inmates who had been "in close contact" with the sick inmate were tested for COVID-19 in addition to being placed in quarantine. Id. at ¶ 22. [*19]
III
Standards for Injunctive Relief
"Federal court procedural rules distinguish preliminary injunctions from temporary restraining orders. Issuance of an injunction may occur only after notice to the parties, while a temporary restraining order may be issued ex parte and without notice." Knoles v. Wells Fargo Bank, N.A., 513 F. App'x 414, 415 (5th Cir. 2013) (comparing Fed. R. Civ. P. 65(a) and (b)(1)). Nevertheless, the standards are similar. To issue a temporary restraining order or a preliminary injunction, a court must find (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury in the absence of injunctive relief; (3) the threatened injury outweighs the harm in granting the injunction; and (4) granting the injunction would not harm the public interest. Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011) (elements for preliminary injunction); Turner v. Epps, 460 F. App'x 322, 325 n.3 (5th Cir. 2012) (elements for TRO).
While the elements are the same, a plaintiff seeking a temporary restraining order must ordinarily make a stronger showing than a plaintiff seeking a preliminary injunction. Esparza v. Bd. of Trs., 182 F.3d 915 (5th Cir. 1999) (table decision). "Mandatory preliminary relief, which goes well beyond simply maintaining the status quo pendente lite, is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party." Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976).
In addition to the [*20] above standards applicable to injunction motions generally, the Prison Litigation Reform

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Act provides: Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1)(A). Necessarily, "when a district court fashions prospective relief in prison litigation, the relief must meet the standards set forth in the Act." Williams v. Edwards, 87 F.3d 126, 133 (5th Cir. 1996). However, "[a]lthough the PLRA significantly affects the type of prospective injunctive relief that may be awarded, it has not substantially changed the threshold findings and standards required to justify an injunction." Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001) (emphases added).
IV
Analysis
As supplemented, the plaintiffs' motion seeks a court order requiring [*21] that the defendants: (1) implement the CDC Guidance;12 (2) implement the Centurion Plan;13 (3) enact a variety of screening, visitation, and cleaning protocols;14 (4)
12 "Defendants shall immediately, or as soon as practicable, implement at Parchman, and shall follow through the life of this pandemic, or until further order of this Court, the [CDC Guidance]." Doc. #74 at 18.
13 "Defendants shall immediately, or as soon as is practicable, implement at Parchman, and shall follow throughout the life of this pandemic, or until further order of this Court, their plans, policies and procedures pertaining to their response to this pandemic including, without limitation, [the Centurion Plan]." Id.
14 The requested procedures are: (1) daily screening of all persons entering Parchman; (2) active monitoring of all inmates for symptoms of COVID-19; (3) implementation of isolation policies for inmates who test positive for COVID-19, have symptoms of COVID-19, and new inmates; (4) continuing to offer free telephone calls to inmates; (5) ensuring Parchman has "sufficient cleaning agents;" (6) ensuring inmates have "a continuous supply" of soap and

make regular reports to the Court and the plaintiffs;15 and (5) provide access to a Mississippi Department of Health official who will monitor compliance with the Court's order, and report to the Court and the plaintiffs.16 Doc. #74 at 18-21.
The defendants contend that the relief the plaintiffs' seek is inappropriate because (1) there is no underlying violation of a federal right which would justify the relief; (2) even if there was an underlying constitutional violation, the requested relief is more intrusive than necessary; and (3) all the requested measures "are either already being undertaken, ... are in many respects not possible or recommended (such as testing every single inmate), or ... have not been shown by Plaintiffs to have any reasonable relation to preventing the alleged harm." Doc. #63 at 7-8.
A. Likelihood of Success
"[T]here must be a relationship between the injury claimed in [a] motion for injunctive relief and the conduct asserted in the underlying complaint." Pac. Radiation Oncology, LLC v. Queens' Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (collecting cases). "The relationship between [*22] the preliminary injunction and the underlying complaint is sufficiently strong where the preliminary injunction would grant 'relief of the same character as that which may be granted finally.'" Id. (quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 220, 65 S. Ct. 1130, 89 L. Ed. 1566 (1945)). Accordingly, the substantial likelihood of success inquiry focuses on the "merits of [the] underlying
access to running water; and (7) waiver of all co-pays related to COVID-19. Id. at 19-20.
15 The plaintiffs ask that the reports include (1) the number of inmates who have tested positive for COVID-19, and the names of such people if they are named plaintiffs; (2) the number of inmates who are in medical isolation related to COVID-19, and the names of such people if they are named plaintiffs; (3) "confirmation" that cleaning supplies are available and being utilized; and (4) "confirmation" that soap is available to each inmate and that each inmate has access to clean running water. Id. at 20. The plaintiffs also ask that the defendants "report to the Court weekly by email, with copy to Named Plaintiffs, and provide a copy of all filed reports as required by local, state, and federal laws and regulations, as is required by Centurion's Infectious Disease Prevention and Control Policy, Policy No. PB-02, p. 2." Id.
16 "Defendants shall allow a competent employee of the Mississippi Department of Health, who is educated on the CDC's COVID-19 Guidelines, to be given reasonable access at any given time to Parchman for the purpose of ensuring compliance with the Court's order and reporting his/her findings to the Court, with a copy to Named Plaintiffs." Id. at 20.

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claim." Walgreen Co. v. Hood, 275 F.3d 475, 478 (5th Cir. 2001). "The importance of this requirement varies with the relative balance of threatened hardships facing each of the parties." Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974).
The plaintiffs' ground their motion for injunctive relief related to COVID-19 protections in their underlying Eighth Amendment claims regarding the defendants' "duty to provide adequate medical care, shelter, and to take reasonable measures to guarantee the safety of inmates." Doc. #60 at 6-7 (quotation marks omitted). The question, therefore, is whether the plaintiffs are likely to succeed on their claims that the defendants' response to COVID-19 violates the plaintiffs' Eighth Amendment rights. See Valentine v. Collier, F.3d , No. 20-20207, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *3 (5th Cir. Apr. 22, 2020) (prisoners' entitlement to injunctive relief depends on showing of deliberate indifference); see generally Baxley v. Jividen, 2020 U.S. Dist. LEXIS 61894, 2020 WL 1802935, at *3 (S.D.W.V. Apr. 8, 2020) ("[T]his case as pled is about statewide claims related to how inmates generally receive medical and mental health treatment upon admission. The Court believes this language [*23] is sufficiently broad to encompass claims for medical treatment for COVID-19.") (cleaned up).
Section 198317 claims brought against defendants in their official capacities are suits against the entity the officials represent. Rayborn v. Bossier Par. Sch. Bd., 881 F.3d 409, 417 (5th Cir. 2018). "To establish liability against a governmental entity ... a plaintiff must ... show the existence of (1) a policy maker; (2) an official policy; and (3) causation, or a violation of rights whose moving force is the policy." Doe v. United States, 831 F.3d 309, 317-18 (5th Cir. 2016). While this standard ordinarily requires a policy, "a custom may also suffice." Id. (quotation marks omitted). A custom is "a persistent widespread practice of governmental officials or employees that is so common and well-settled as to constitute a custom that fairly represents policy." Id. (cleaned up). A claim for injunctive relief against a governmental entity or a supervisory official must be likely to satisfy this standard. Gale v. O'Donohue, 751 F. App'x 876, 884 (6th Cir. 2018); see also Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994); Zinter v. Salvaggio, No. 5-18-cv-680, 2018 U.S. Dist. LEXIS 179563, 2018 WL 5098785, at *4 (W.D. Tex.
17 As this Court has previously explained, 42 U.S.C. § 1983 "is the exclusive vehicle for an Eighth Amendment claim against a state actor." Duren v. Carroll-Montgomery Reg'l Corr. Facility, No. 4:17cv-154, 2019 U.S. Dist. LEXIS 158702, 2019 WL 4482531, at *4 n.6 (N.D. Miss. Sep. 18, 2019) (citing Berger v. City of New Orleans, 273 F.3d 1095 (5th Cir. 2001) (table decision)).

Oct. 19, 2018); Proctor v. District of Columbia, 310 F. Supp. 3d 107, 115 (D.D.C. 2018).
The Eighth Amendment imposes on prison authorities a duty to protect prisoners. Jason v. Tanner, 938 F.3d 191, 195 (5th Cir. 2019). This duty is violated by an official "only when two requirements are met. First, as an objective matter, the deprivation or harm must be sufficiently serious. Second, [*24] the official must have been deliberately indifferent." Id. (cleaned up). To satisfy the first element, "the plaintiff must show an objectively intolerable risk of harm." Valentine, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *3 (quotation marks omitted). The second requirement is subjective and requires that the plaintiff show the defendant "(1) was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists; (2) subjectively drew the inference that the risk existed; and (3) disregarded the risk." Id. (cleaned up). Here, the defendants do not dispute that "COVD-19 presents serious health risks." Doc. #63 at 5. Rather, they contend they are not responding to this threat with deliberate indifference. Id.
Even if the plaintiffs could establish likelihood of success on the objective prong, they cannot make a similar showing as to the subjective prong. The deliberate indifference standard may be satisfied when officials respond to an infectious disease "outbreak with a series of negligent and reckless actions." DeGidio v. Pung, 920 F.2d 525, 533 (8th Cir. 1990). "[K]nown noncompliance with generally accepted guidelines for inmate health strongly indicates deliberate indifference to a substantial risk of serious harm." Hernandez v. County of Monterey, 110 F. Supp. 3d 929, 943 (N.D. Cal. 2015). Such guidelines may include CDC [*25] guidance, even if the guidance is not mandatory. Id. However, mere departure from recommended best practices is insufficient to show deliberate indifference. See M.D. ex rel Stukenberg v. Abbot, 929 F.3d 272, 289 (5th Cir. 2019) (Higginbotham, J., concurring in part) ("Best practices are not the handmaiden of deliberate indifference."). Rather, the known noncompliance must result in an excessive risk to inmate health or safety. Tanner, 938 F.3d at 195.
Analytically, the deficiencies identified by the plaintiffs fall into one of two categories—deficiencies in Parchman's measures and procedures or deficiencies in implementation of those measures and procedures. Claims premised on deficiencies in the measures and procedures themselves must likely meet the deliberate indifference standard. When a claim is premised on a failure to implement, the failure must be so prevalent to be deemed a custom and must rise to the level of deliberate indifference.
Here, the defendants have undoubtedly taken steps to address

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the risk of COVID-19 in Parchman. Such undisputed steps include the creation and updating of the Centurion Plan, posting of signs, promulgation of quarantine and screening policies for both inmates and visitors, suspension of in-person visitation except for attorneys, implementing [*26] cleaning procedures in the housing units, the waiving of co-pays for inmates, limitations on transfers, and the provision of extra soap to inmates. However, the record is also undisputed that the implementation of these steps has been inconsistent or ineffectual. On at least two occasions, Parchman staff did not verbally screen attorney visitors, and did not screen staff at the entrance to the facility. Signage and hygiene at the visitors center appears insufficient and contrary to the CDC Guidance. In Unit 30, not all inmates were notified of the waiver of copays; not all prison employees wear PPE; bunks are not cleaned; a quarantine was apparently not enforced for a week; and inmates with fevers, sore throats, or coughs are allowed to remain in their units and, in at least one instance, have been threatened with mace when discussing symptoms.
Additionally, portions of the defendants' stated policies conflict in some ways with some of the general recommendations of the CDC Guidance. The CDC Guidance recommends taking affirmative steps to produce social distancing, such as the staggering of meals and recreation times, limiting group activities, and reassigning bunks. Doc. #74-1 at [*27] 11. However, it is undisputed the defendants have made no efforts to enforce, rather than merely recommend adherence to, social distancing guidelines.18 The CDC Guidance also recommends that facilities provide inmates "hand drying machines or disposable paper towels for hand washing" and "tissues and no-touch trash receptacles for disposal." Id. at 10. None of these items are provided as a part of Parchman's response.
The facts of this case are very similar to those in Valentine v.
18 The plaintiffs have advanced other arguments regarding alleged non-compliance which are facially frivolous. First, the plaintiffs seem to suggest that the failure to provide sanitizers is contrary to the CDC Guidance. However, the CDC Guidance only recommends the use of sanitizer "[i]f soap and water are not available." Doc. #74-1 at 8. The plaintiffs also contend, without support, that the extra bar of soap provided to the inmates is insufficient to support frequent hand washing. No support is offered for this proposition and no evidence is cited that inmates who run out of soap are denied extra soap. Similarly, the plaintiffs argue in conclusory fashion that the defendants' laundry practices violate the CDC Guidance's provisions requiring that facilities "launder items in accordance with the manufacturer's instructions using the warmest appropriate water setting ...." Id. at 18. While the plaintiffs have offered some evidence that the laundry services are not particularly efficient, there is no evidence of what procedures the laundry service follows.

Collier, a case in which the Fifth Circuit stayed pending appeal an injunction issued by a district court against a prison because the plaintiffs were unlikely to be able to show deliberate indifference.19 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *4. In Valentine, as here, the prison took numerous steps to prevent transmission, including employee screenings, copay waivers, suspension of in-person visits, isolation for symptomatic inmates, masks for staff, increased cleaning in inmate areas, and increased soap access. No. 4:20cv-1115, 2020 U.S. Dist. LEXIS 68644, 2020 WL 1916883, at *10 (S.D. Tex. Apr. 20, 2020). Also as here, the Valentine plaintiffs submitted evidence showing that at least one symptomatic inmate was not isolated; some cleaning policies were not being implemented; the prison refused to give inmates hand sanitizer, facial [*28] tissues or paper towels; information on co-pays and COVID-19 were not adequately presented to inmates; and social distancing was not being enforced. 2020 U.S. Dist. LEXIS 68644, [WL] at *4-6.
While the district court in Valentine found the plaintiffs were likely to succeed on the deliberate indifference claim, the Fifth Circuit stayed the injunction, concluding the prison was likely to succeed on the merits of its appeal because "the Plaintiffs lack evidence of the Defendants' subjective deliberate indifference" to the risk of COVID-19. Valentine, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *4. In reaching this conclusion, the Fifth Circuit held:
Though the district court cited the Defendants' general awareness of the dangers posed by COVID-19, it cited no evidence that they subjectively believe the measures they are taking are inadequate. To the contrary, the evidence shows that TDCJ has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus. Although the district court might do things differently, mere "disagreement" with TDCJ's medical decisions does not establish deliberate indifference.
Id. (citations omitted).
Here, as in Valentine, there is insufficient evidence to support [*29] a finding of deliberate indifference, at least with respect to COVID-19.20 The defendants have taken
19 The Fifth Circuit's decision in Valentine addressed the issue of a stay of an ordered injunction rather than the ultimate entitlement to the injunction itself. In this sense, the opinion is not dispositive of the case. However, the evaluation of the merits of the Valentine plaintiffs' claims should not be ignored.
20 Stern's affidavit, which is uncontradicted by any evidence, paints a very grim picture of the general conditions at Parchman. See Doc.

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numerous proactive steps to prevent the transmission of COVID-19, which they believe to be consistent with the CDC Guidance. Doc. #75-2 at ¶ 5. While there is some evidence showing incomplete implementation of the procedures, the evidence is either limited to sporadic instances, limited to two buildings in a single unit of Parchman, or both, and therefore fails to show a policy or custom which would justify the facility-wide injunctive relief sought by the plaintiffs. See Foster v. Tarrant Cty. Sheriff's Dep't, No. 4:20-cv-113, 2020 U.S. Dist. LEXIS 67582, 2020 WL 1906095, at *3 (N.D. Tex. Apr. 17, 2020) ("The general rule is that allegations of isolated incidents are insufficient to establish a custom or policy.") (collecting cases).
Similarly, while elements of Parchman's protocols appear to conflict with a handful of provisions in the CDC Guidance (provision of paper towels and tissues and policies enforcing social distancing), these departures are insufficient on their own to show a likelihood of success regarding deliberate indifference, particularly in light of the comprehensive and far reaching steps taken by the defendants. Valentine, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at * 4; cf. Hernandez, 110 F. Supp. 3d at 943 ("At least since the [*30] CDC released its guidelines, and since Puisis issued his report showing Defendants' policies and practices fell below the constitutional standard of care, Defendants have known about the risks of harm but have not changed their practices."). Indeed, as in Valentine, the evidence shows that Parchman "has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus." 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at * 4. Accordingly, the Court concludes that the plaintiffs are unlikely to succeed on their claims.

2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *4. Accordingly, when a legislature assigns prison policy to an administration, an injunction modifying such policy "imposes irreparable injury." Id. Here, the Mississippi legislature has responsibility for [*31] prison policy to MDOC. See Miss. Code Ann. § 47-5-23. Accordingly, the injunction sought in this case would impose irreparable injury which outweighs the potential threat to the plaintiffs.
D. Public Interest
When "state officials are the parties against whom the injunction is sought, .... consideration of the harm to them should the injunction issue merges with consideration of the public interest." Dean v. Leake, 550 F. Supp. 2d 594, 605 (E.D.N.C. 2008); see also Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) ("As the State is the appealing party, its interest and harm merges with that of the public."). Accordingly, for the reasons above, the Court concludes that the public interest would be harmed by granting the injunction.
V
Conclusion
The plaintiffs' motion for a temporary restraining order and a preliminary injunction [59] is DENIED.
SO ORDERED, this 24th day of April, 2020.
/s/ Debra M. Brown

B. Substantial Threat of Irreparable Injury

UNITED STATES DISTRICT JUDGE

The plaintiffs must show "that they will suffer irreparable injuries even after accounting for the protective measures" in place. Valentine, 2020 U.S. App. LEXIS 12941, 2020 WL 1934431, at *5. There is no evidence to support such a finding.

End of Document

C. Whether Threatened Injury Outweighs Harm to NonMovant
"[A]ny time a state is enjoined by a court from effectuating from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury." Valentine,
#59-6.

Case 2:20-cv-11053-MAG-RSW ECF No. 27-28 filed 05/12/20 PageID.1718 Page 1 of 21 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT AA

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Caution As of: May 11, 2020 5:52 PM Z

Money v. Pritzker

United States District Court for the Northern District of Illinois, Eastern Division April 10, 2020, Decided; April 10, 2020, Filed Case No. 20-cv-2093; Case No. 20-cv-2094

Reporter 2020 U.S. Dist. LEXIS 63599 *
JAMES MONEY, et al., Plaintiffs, v. J.B. PRITZKER, et al., Defendants.JAMES MONEY, et al., Petitioners, v. ROB JEFFREYS, in his official capacity as DIRECTOR OF THE ILLINOIS DEPARTMENT OF CORRECTIONS, Respondent.

Office Of The Illinois Attorney General, Chicago, IL USA; R. Douglas Rees, LEAD ATTORNEY, Colleen Marie Shannon, Office of the Illinois Attorney General, Chicago, IL USA. [*2]
Jennifer Bishop-Jenkins, Intervenor (1:20cv2093), Pro se, Northfield, IL.

Core Terms
inmates, prison, subclasses, custody, furlough, cases, threejudge, conditions, prison population, distancing, facilities, home detention, vulnerable, virus, preliminary injunction, federal court, spread, disabilities, congregate, courts, merits, state court, confinement, injunction, pandemic, habeas corpus, violations, crowding, sentence, housed
Counsel: [*1] For James Money, William Richard, Gerald Reed, Amber Watters, Tewkunzi Green, Danny Labosette, Carl Reed, Carl "tay Tay" Tate, Patrice Daniels, Anthony Rodesky, on behalf of themselves and all similarly situated individuals, Plaintiffs (1:20cv2093): Sheila A Bedi, LEAD ATTORNEY, Roderick Macarthur Justice Center, Chicago, IL USA; Vanessa Del Valle, LEAD ATTORNEY, Roderick And Solange Macarthur Justice Center, Northwestern University School Of Law, Chicago, IL USA; Alan S. Mills, Elizabeth N. Mazur, Nicole Rae Schult, Uptown People's Law Center, Chicago, IL USA; Amanda C Antholt, Samantha Reed, Equip For Equality, Chicago, IL USA; Carolyn E. Shapiro, Chicago, IL USA; Jennifer Soble, Illinois Prison Project, Chicago, IL USA; Sarah Copeland Grady, Stephen H. Weil, Loevy & Loevy, Chicago, IL USA.

For James Money, William Richard, Gerald Reed, Amber Watters, Tewkunzi Green, Danny Labosette, Carl Reed, Carl "tay Tay" Tate, Patrice Daniels, Anthony Rodesky, Plaintiffs (1:20cv2094): Jennifer Soble, LEAD ATTORNEY, Illinois Prison Project, Chicago, IL USA Sheila A Bedi, LEAD ATTORNEY, Roderick Macarthur Justice Center, Chicago, IL USA; Vanessa Del Valle, LEAD ATTORNEY, Roderick And Solange Macarthur Justice Center, Northwestern University School Of Law, Chicago, IL USA; Alan S. Mills, Elizabeth N. Mazur, Nicole Rae Schult, Uptown People's Law Center, Chicago, IL USA; Amanda C Antholt, Samantha Reed, Equip For Equality, Chicago, IL USA; Sarah Copeland Grady, Loevy & Loevy, Chicago, IL USA.
For Director of Idoc Rob Jeffreys, Defendant (1:20cv2094: Gopi Kashyap, Illinois Attorney General's Office (100 West Randolph), Chicago, IL USA; Katherine Marie Doersch, Illinois Attorney General's Office, Chicago, IL USA.
Judges: Robert M. Dow, Jr., United States District Judge. Judge Steven C. Seeger, assigned. Judge John F. Kness, assigned.

For J.B. Pritzker, n his official capacity as Governor of the State of Illinois, Rob Jeffreys, in his official capacities as Director of the Department of Corrections, Defendants (1:20cv2093): Nicholas Scott Staley, LEAD ATTORNEY,

Opinion by: Robert M. Dow, Jr.

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Opinion
MEMORANDUM OPINION AND ORDER1
In these two cases, Plaintiffs have raised issues [*3] of great importance concerning the safety and well-being of inmates in the custody of the Illinois Department of Corrections during the current national crisis occasioned by the COVID-19 pandemic. As myriad citations in both sides' briefs confirm, this issue has occupied all three branches of government in both the federal and state governments in recent weeks. News reports are replete with actions taken by Governors, Attorneys General, state Supreme Courts, and individual trial judges to accelerate the release of inmates and detainees where consistent with overall public safety and to protect those who remain in custodial settings. And rightly so, for the stakes are incredibly high for Plaintiffs, their families, and the public at large. As emphasized by the medical experts whose appearances at daily press briefings rivet the nation, nobody is immune from this virus. However, due to the way in which the virus spreads, individuals living in congregate settings— such as nursing homes and prisons—are especially vulnerable because of difficulty of observing social distancing and recommended hygiene practices in close quarters.
At the outset, it is worth mentioning that Plaintiffs do not [*4] ask this Court to order the Illinois Department of Corrections to improve the conditions of confinement. That is, Plaintiffs do not ask to improve the cleanliness of the prisons, or increase the amount of space between inmates at each facility, and so on. Instead, Plaintiffs ask this Court to force the state executive branch to start a process for the potential release of thousands of inmates, through medical furlough or home detention under state law, and do so within one week. The scope of the potential release is sweeping. By their own admission, Plaintiffs want a process to potentially release at least 12,000 inmates, almost one-third of the prison population in Illinois. Defendants submit that they have a process and already are doing most of what Plaintiffs are requesting in their proposed remedial plan—albeit not at the pace Plaintiffs would like to see.

requested relief. Plaintiffs are correct in asserting that the issue of inmate health and safety is deserving of the highest degree of attention. And the record here shows that the authorities in this state are doing just that, with constantly evolving procedures increasing the number of inmates released on a daily basis. But the release of inmates requires a process that gives close attention to detail, for the safety of each inmate, his or her family, and the community at large demands a sensible and individualized release plan— especially during a pandemic. Even if the steps Illinois has taken and the pace with which they are proceeding is not exactly what Plaintiffs want, those steps and that pace plainly pass constitutional muster. Plaintiffs have provided no convincing reason for a federal court to intrude here and now—either to issue a blanket order for the release of thousands of inmates or to superimpose a court-mandated and court-superintended process on the mechanisms currently in place to determine which IDOC inmates can and should be safely removed from prison facilities at this time.
The care of state inmates is entrusted, in the first instance, [*6] to state officials, unless the conditions rise to the level of constitutional violations. And state law empowers state officials with the discretion to release individual inmates for medical furlough or home detention, if they deem it appropriate. This Court concludes that Plaintiffs have no likelihood of success on their constitutional claims because the record does not support the notion that the Defendants are showing deliberate indifference to the inmates' plight or discriminating against inmates with disabilities. Even if they had a colorable claim, Plaintiffs' request for release is untenable on a class-wide basis because the possibility of release is an inherently inmate-specific inquiry. Other considerations — such as the public interest from the potential release of thousands of inmates — weigh heavily in the analysis, too. In the end, this Court concludes that Plaintiffs are not entitled to their request for extraordinary relief, even in these extraordinary times.
I. Background2
The named Plaintiffs are ten individuals convicted of a range

The immediate question before the Court is whether Plaintiffs are entitled to some form of immediate relief—in the form of a temporary restraining order, a preliminary injunction, or writs of habeas corpus—imposed by a federal court on state officials. For several reasons explained below, the Court answers that question in the [*5] negative and denies the
1 Judge Dow is addressing this matter as emergency judge pursuant to paragraph 5 of Second Amended General Order 20-0012.

2 The facts are taken from the plaintiffs' complaints and from materials cited by the parties that are the proper subject of judicial notice. The Court may take judicial notice of material whose contents are "capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned," Driebel v. City of Milwaukee, 298 F.3d 622, 622 n.2 (7th Cir. 2002) (quoting Fed. R. Evid. 201(b)), and documents incorporated in a complaint, Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002).

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of felonies, including murder, aggravated kidnapping, and attempted robbery. See Money v. Pritzker, 20-cv-2093 (hereinafter "Pritzker [*7] "), [26 at ¶¶ 93-102]. They are currently serving sentences in various Illinois Department of Corrections ("IDOC") facilities, none of which are in Cook County. See [id. at ¶¶ 8-17.] IDOC operates 28 adult correctional facilities throughout the State of Illinois, houses around 37,000 individuals, and has 11,600 employees. [Id. at ¶ 69.] Plaintiffs have brought two purported class action lawsuits—Pritzker and Money v. Jeffreys (hereinafter "Jeffreys"), 20-cv-2094—seeking release of prisoners from IDOC facilities in light of the COVID-19 pandemic.
Money v. Pritzker, 20-cv-2093, contains three counts, of which the first two are brought under 42 U.S.C. § 1983. Count I asserts that Defendants are violating the Eighth Amendment through deliberate indifference to a serious risk of harm, while Count II asserts a violation of Plaintiffs' right to due process under the Fourteenth Amendment. Count III asserts violations of the Americans with Disabilities Act ("ADA"). The complaint names as defendants J.B. Pritzker, Governor of Illinois, and Rob Jeffreys, Director of the Illinois Department of Corrections. Money v. Jeffreys, 20-cv-2094, is a petition for writs of habeas corpus under 28 U.S.C. § 2254 for relief from custody in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. It names Rob [*8] Jeffreys as the respondent. Both suits are purportedly brought on behalf of the named plaintiffs and all similarly situated individuals.
The foundation of each suit is essentially the same: Plaintiffs argue that the prison setting makes them (and other purported class members) especially vulnerable to COVID-19, that the state government's responses to the danger are insufficient or not fast enough or both, and that the only way to solve the problem is moving prisoners out of prisons.
A. Factual Background
COVID-19 is a disease caused by a novel coronavirus that began infecting humans in late 2019. Symptoms include fever, cough, shortness of breath, congestion, sneezing, fatigue, and diarrhea. Pritzker, [1 at ¶ 25.]3 While some cases are mild, others require medical intervention, including hospitalization and intensive care. [Id.] The virus spreads from person to person through respiratory droplets, close
3 The complaints in the Pritzker Section 1983 action and the Jeffreys habeas action are quite similar, and in some places identical. For simplicity and to avoid duplication, where a fact applies to both matters and is cited in both complaints, the Court cites to the Pritzker complaint, as it was filed first.

personal contact, and from contact with contaminated surfaces and objects. [Id.] It is highly contagious.
Currently, there is no vaccine to protect against infection by COVID-19. To prevent infection and mitigate the spread of the virus, the Center for Disease Control [*9] ("CDC") and other public health agencies have universally prescribed social distancing—every person should remain at a distance of at least six feet from every other person—and rigorous hygiene—including regular and thorough hand washing with soap and water, the use of alcohol-based hand sanitizer, proper sneeze and cough etiquette, and frequent cleaning of all surfaces. [1. at ¶ 31.] The CDC recommends avoiding gatherings of more than 10 people. [Id. at ¶ 32.] Individuals in congregate environments—places where people live, eat, and sleep in close proximity—face increased danger of contracting COVID-19, as demonstrated by the rapid spread of the virus through cruise ships and nursing homes. [Id.]
Despite social distancing recommendations, the disease has continued to spread. The World Health Organization has declared COVID-19 to be a global pandemic. [1 at ¶ 20.] On March 9, 2020, Illinois Governor J.B. Pritzker issued a proclamation declaring a disaster in the State of Illinois. [Id.] On March 13, 2020, President Trump declared a national emergency. [Id.] In the United States alone, as of April 1, 2020, there were over 186,000 confirmed cases and over 3,600 deaths. In Illinois, there [*10] were over 6,900 confirmed cases and 141 deaths. [Id. at ¶ 21.] On the same date, 52 prisoners in IDOC facilities in two different correctional centers (Stateville and North Lawndale ATC) had confirmed cases of COVID-19, and 25 staff in seven different correctional centers (Stateville NRC, Stateville, Sheridan, North Lawndale ATC, Menard, Joliet Treatment Center, and Crossroads ATC) had confirmed cases. [Id. at ¶ 71.] St. Joseph Hospital in Joliet, Illinois was, at the time the parties filed briefs in these matters, caring for 17 prisoners from Stateville, 9 of whom are in intensive care on ventilators. [Id. at ¶ 44.] On March 30, 2020, health officials announced that a prisoner in his 50s housed at Stateville Correctional Center had died from COVID-19. [Id. at ¶ 72.]4
As things stand, the coronavirus continues to spread. According to the Coronavirus Resource Center of Johns Hopkins University, the United States has reported 461,437
4 As of today, IDOC reports 134 confirmed cases of COVID-19 among the population of incarcerated individuals in all of its facilities [see 36, at 3]. 118 of those cases involve inmates at Stateville, with the remaining 16 spread out among a handful of the 27 other facilities in the IDOC system. See https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.asp x (last visited April 10, 2020).

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cases, and 16,478 deaths, as of yesterday evening. See https://coronavirus.jhu.edu/data/new-cases (last visited April 10, 2020). According to the Illinois Department of Health, there are 16,422 confirmed cases in Illinois, including 528 deaths. See https://coronavirus.illinois.gov [*11] (last visited April 10, 2020).
Plaintiffs attached to both complaints a series of affidavits from medical professionals describing the seriousness of COVID-19 in a prison context and the limits of correctional facilities' ability to prevent or mitigate the spread of the disease. See Pritzker, [2]; Jeffreys, [1-1 through 1-10]. Among the primary points of those declarations are the following. Plaintiffs allege that none of the recommended measures for mitigating the spread of COVID-19 are available for persons confined in correctional facilities and for those who must interact with them. Correctional facilities are congregate environments, where large groups of people live, eat, and sleep in close contact with one another, making social distancing impossible. Pritzker, [1 at ¶ 36.] People share toilets, sinks, and showers, and often have limited access to soap, hand sanitizer, hot water, and other necessary hygiene items. Surfaces are infrequently washed, if at all, and cleaning supplies are limited. [Id. at ¶ 37.]

Pritzker, [1 at ¶ 91], [9 at 48].
• Governor Pritzker continues to review and grant commutation petitions. [*13] • To allow for faster releases of prisoners, Governor Pritzker suspended the required 14-day notification to State's Attorneys for inmates released early as a result of earned sentence credit for good conduct. Executive Order 2020-11; see also Executive Order 2020-18 (extending Executive Order 2020-11 through April 30, 2020). • On April 6, 2020, Governor Pritzker suspended the 14day limit for medical furloughs and allowed furloughs for medical purposes at the Director's discretion and consistent with the guidance of IDOC's medical director. Executive Order 2020-21. • IDOC created a population management task force for the purpose of prioritizing the review of individuals for possible release through statutorily permissible means. • IDOC, as of April 6, 2020, had released approximately 450 prisoners through various forms of sentence credit, restoration of credit and electronic detention and had provided an additional 65 furloughs. • Between March 2 and April 6, 2020, IDOC reduced its population by more than 1,000 prisoners.

B. Responses by the State of Illinois to the COVID-19 Crisis
The State of Illinois has taken a variety of actions in response to the COVID-19 crisis, including Governor Pritzker's [*12] March 20, 2020 "stay at home" order directing all nonessential business operations to cease and all residents to stay in their homes except for essential activities. [1 at ¶ 33.] The order is currently in place through April 30, 2020. [Id.]
IDOC has enacted measures consistent with CDC guidelines to protect those who are housed and work in Illinois prisons, including a pandemic response plan (including a plan specific to Stateville), enhanced screening and testing for COVID-19, increased hygiene and sanitation, new limits (and now a prohibition) on outside visitors, and increased separation of prisoners through an administrative quarantine. Pritzker, [26, at 2.] Governor Pritzker and IDOC have taken a number of actions to address COVID-19 in Illinois' prisons, the most relevant of which are listed below. See [id. at 4-6].
• Governor Pritzker suspended admissions of new prisoners from all Illinois county jails, with limited exceptions (Executive Order 2020-13; see also Executive Order 2020-18 (extending Executive Order 2020-13 through April 30, 2020).
• Governor Pritzker activated the Illinois National Guard to provide additional medical support at Stateville.

• IDOC continues to award up to 180 days of Earned Discretionary Sentencing Credit (EDSC) for eligible offenders pursuant to 730 ILCS 5/3-6-3(a)(3).5
• On a daily basis, IDOC identifies offenders within nine months of their release date and conducts individualized reviews to determine [*14] whether they are eligible for early release. This process requires examining an offender's file for disciplinary history, commitment to rehabilitation, and criminal history.6
• IDOC continues to place offenders on electronic monitoring or home detention pursuant to 730 ILCS 5/58A-3, including 16 of 21 pregnant and postpartum offenders on home detention. IDOC is now concentrating
5 The sentencing credit is within the sole discretion of the Director, but must be based on the results of a risk or needs assessment, circumstances of the crime, any history of conviction for a forcible felony, the offender's behavior and disciplinary history, and the inmate's commitment to rehabilitation, including participation in programming. 730 ILCS 5/3-6-3(a)(3). The Director is prohibited from awarding discretionary sentencing credit to any inmate unless the inmate has served a minimum of 60 days. Id.
6 Offenders with forcible felonies, violent criminal histories, significant disciplinary issues, and outstanding warrants are not approved for the sentencing credit.

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on inmates who are 55 years or older, have served at least 25% of their sentence and are within 12 months of release. This process also requires individual assessments to determine whether placement outside of a secure facility is appropriate. • The Prison Review Board ("PRB") continues to conduct release revocation hearings and make individualized assessments that include the alleged violations, the safety of those in custody, and overall public health concerns. • The Governor's Office is working with outside groups such as the SAFER Foundation7 and TASC8 to identify and secure safe host sites and provide wraparound services to support potential releasees.
• Lt. Governor Juliana Stratton, along with the SAFER Foundation, developed the Prison Emergency Early Release Response (PEERR) team, which is creating a referral network of human [*15] services, healthcare, housing, and reentry providers that are open, whether in person or remotely, and can deliver services to people being released from IDOC custody. • Effective March 14, 2020, all correctional facilities, impact incarceration programs, and work camps are under administrative quarantine with no visitors permitted. • Facilities with confirmed COVID-19 cases are placed on lockdown, which means there is no movement around the facility except for medical care. • Staff who work with individuals in isolation and quarantine, as well as in healthcare units, are wearing full personal protective equipment (PPE) and all staff are wearing some PPE. • Staff members' temperatures are checked daily as they enter the facility. • IDOC has (1) educated staff on infection control, (2) promoted good health habits that interrupt transmission, (3) conducted frequent environmental cleaning of high touch surfaces and high volume locations, (4) made efforts to separate the sick from the well and employ social distancing and (5) provided ongoing infection control education to prisoners.
It also bears mentioning that as of today at noon, 644 inmates have been released from IDOC custody using all [*16] of the

methods available and the total IDOC inmate population has been reduced by 1,441 since March 2, 2020. [See 36, at 2.] Included within these totals are the commutations of two of the named Plaintiffs, James Money and Carl Reed, announced by Governor Pritzker on April 8, 2020. [34, at 4.]
Plaintiffs assert that reducing the prison population is the only meaningful way to prevent the harms posed by COVID-19 in the prison setting, writing:
Public health experts with experience in correctional settings have similarly recommended the release from custody of people most vulnerable to COVID-19 to protect the communities inside and outside the prisons, and to slow the spread of the COVID-19 infection. Population reduction protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for all people held or working in a correctional facility. Because prisons are often located in small rural communities, removing the most vulnerable people from custody also reduces the burden on those region's limited health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously [*17] ill from COVID-19 at the same time and require hospitalization in these small communities.
Pritzker, [1 at ¶46] (emphasis added).
C. Procedural Background
On April 2, 2020, plaintiffs filed a purported class action complaint under 42 U.S.C. § 1983 alleging violations of the Eighth Amendment and the due process clause of the Fourteenth Amendment, as well as violations of the ADA. Pritzker, [1]. Plaintiffs also filed a motion for class certification, Pritzker, [8], seeking to certify a class of "all people who are currently or who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic," [id. at 5-6], with the following subclasses:
Subclass 1: People who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19 * * * and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.

7 The SAFER Foundation is a nonprofit social impact organization that focuses on human capital development for people with criminal records.
8 TASC is a nonprofit organization that provides direct services and performs advocacy and consulting work for individuals and families affected by substance abuse and mental health issues.

Subclass 2: People who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
Subclass 3: People who are 55 years of age and older with less than one year remaining on their sentence and

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eligible for home detention pursuant to 730 ILCS 5/5-8A3(d).
Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and who are eligible for home detention [*18] pursuant to 730 ILCS 5/5-8A-3(e).
Subclass 5: People who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(b) and (c).
Subclass 6: People who are scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Admin. Code 107.210.
[Id. at 6-7]. Subclass 1 contains approximately 12,000 individuals, and subclass 2 contains approximately 4,800 individuals. Pritzker, [1 at ¶105].
Plaintiffs also filed a motion for a temporary restraining order ("TRO") or a preliminary injunction. Pritzker, [9]. That motion asks the Court to preliminarily certify Plaintiffs' proposed subclasses 1 and 2 and to order Defendants to transfer members of subclasses 1 and 2 to their homes to selfisolate via a temporary medical furlough. [Id. at 70-71].
On the same day that the Section 1983 complaint was filed, Plaintiffs also filed a petition for writs of habeas corpus, Jeffreys, [1], purportedly on behalf of themselves and all other similarly situated individuals. They seek to represent a class consisting of "all people who are currently or who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic." [Id. at ¶ 111.] Plaintiffs [*19] (or Petitioners in habeas parlance) articulate the same six subclasses they claim to represent as are laid out in the Section 1983 complaint. See [id.]. The petition seeks immediate medical furlough for individuals in subclasses 1 and 2, immediate transfer to home detention of members of subclasses 3, 4, and 5, and immediate award of 180 days of sentencing credit to members of subclass 6. [Id.] With the petition, Plaintiffs filed a motion for an expedited hearing. Jeffreys, [3].
II. Legal Standard
Preliminary injunctive relief 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, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (emphasis in original) (quotation marks and citation omitted); see also Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998) (same). The

Seventh Circuit uses a two-step analysis to assess whether preliminary injunctive relief is warranted. See Girl Scouts of Manitou Council, Inc. v. Girl Scouts of USA, Inc., 549 F.3d 1079, 1085-86 (7th Cir. 2008). This analysis is the same one that is used to determine if a TRO is warranted. Gray v. Orr, 4 F. Supp. 3d 984, 989 n.2 (N.D. Ill. 2013). "In the first phase, the party seeking a preliminary injunction must make a threshold showing that: (1) absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and [*20] (3) he has a reasonable likelihood of success on the merits." Turnell v. CentiMark Corp., 796 F.3d 656, 661-62 (7th Cir. 2015). If the movant makes the required threshold showing, then the court moves on to the second stage and considers: "(4) the irreparable harm the moving party will endure if the preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties," i.e., the public interest. Id. at 662. The court must pay "particular regard for the public consequences in employing the extraordinary remedy of injunction." Winter v. NRDC, Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). The Court balances the potential harms on a sliding scale against the movant's likelihood of success. The greater the movant's likelihood of success, "the less strong a showing" the movant "must make that the balance of harm is in its favor." Foodcomm Int'l v. Barry, 328 F.3d 300, 303 (7th Cir. 2003).
Plaintiffs seek a mandatory preliminary injunction—that is, an injunction requiring an affirmative act by the defendant. Because a mandatory injunction requires the court to command the defendant to take a particular action, it is "cautiously viewed and sparingly issued." Knox v. Shearing, 637 F. App'x 226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)); see also W. A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) ("mandatory injunctions are rarely issued [*21] and interlocutory mandatory injunctions are even more rarely issued, and neither except upon the clearest equitable grounds" (quotation marks and citation omitted)); ChoiceParts, LLC v. Gen. Motors Corp., 203 F. Supp. 2d 905, 914 (N.D. Ill. 2002) (same).
The preliminary injunction, or even TRO, that Plaintiffs seek would give them much of the relief the Pritzker action requests, and likely all of the relief that subclasses 1 and 2 request. This type of request, which "give[s] the movant substantially all the relief he seeks," "is disfavored, and courts have imposed a higher burden on a movant in such cases." Boucher, 134 F.3d at 827 (citing Selchow & Righter Co. v. Western Printing and Lithographing Co., 112 F.2d 430, 431

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(7th Cir. 1940); Phillip v. Fairfield University, 118 F.3d 131, 133 (2d Cir.1997); SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098-99 (10th Cir. 1991); Dakota Indus., Inc. v. Ever Best Ltd., 944 F.2d 438, 440 (8th Cir. 1991); and Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963)); see also W.A. Mack, Inc. v. General Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) ("A preliminary injunction does not issue which gives to a plaintiff the actual advantage which would be obtained in a final decree."); Hanover Ins. Group v. Singles Roofing Co., 2012 U.S. Dist. LEXIS 85813, 2012 WL 2368328, at *11 (N.D. Ill. June 21, 2012) (because the plaintiff amended the complaint to seek both preliminary and permanent relief, granting a TRO or preliminary injunction would not give the plaintiff "the actual advantage which would be obtained in the final decree" (quoting W.A. Mack, 260 F.2d at 890)); Harlem Algonquin LLC v. Canadian Funding Corp., 742 F. Supp. 2d 957, 962 (N.D. Ill. 2010) ("'[i]t is one thing for a court to preserve its power to grant effectual relief by preventing parties from making unilateral and irremediable changes during the course of litigation, and quite another for a court to force the parties to make significant [*22] alterations in their practices' before a trial on the merits. So much more so if the alteration would amount to irreversible final relief." (citation omitted)).
III. Discussion
A. Section 1983, Habeas, or Both?
Since the initiation of this litigation the question of why Plaintiffs filed two separate lawsuits advancing essentially the same allegations and requesting essentially the same relief has perplexed the Court. It appears to have challenged the parties as well. In their reply brief, Plaintiffs complain that "Respondent cannot have it both ways." [24, at 8.] Indeed, a careful review of the briefs shows that both sides are guilty of taking somewhat inconsistent positions across the two cases. This observation is not surprising, nor is it meant disparagingly, for the briefs were remarkable both in their quantity and quality—and all the more so in the time frame given to accommodate the exigent circumstances. But the question remains, is it even proper to bring a Section 1983 action and a petition for writ of habeas corpus at the same time on the same facts seeking the same remedy? As explained below, the answer (though not without doubt) seems to be yes.
It is an accepted practice to plead alternative—and [*23] even inconsistent—theories of relief, but ordinarily this takes place within a single action. Nonetheless, as the declaration of

Professor Resnik filed with Plaintiffs' reply brief explains, "the intersection of habeas and civil rights claims brought under 42 U.S.C. § 1983" constitutes "a dense area of law and doctrine that can be daunting for litigants and jurists alike."9 [24-3 at 5-6.] As Professor Resnik notes, the "shorthand" version of the divide between habeas and Section 1983 goes like this: "when the fact or duration of confinement is at issue and release is the remedy, habeas is the preferred route. If prisoners are challenging conditions of confinement, § 1983 is the method." [Id. at 6.] This shorthand is a bit too simple, however, because a habeas petitioner seeks release from custody. See 28 U.S.C. § 2254(a) (habeas statute allows challenges to "custody in violation of the Constitution or laws or treaties of the United States"). This is an important point, because Plaintiffs here stress that "they do not seek relief from the underlying criminal judgments * * * [n]or do they seek speedier release from custody." [28, at 9.] See Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (explaining that a claim seeking to reinstate "work release" with "less confinement than ordinary imprisonment" [*24] was a Section 1983 claim because it did not challenge the inmate's custodial status). Instead, they are asking to be released from prison temporarily, "while remaining in the custody and control of IDOC." [24, at 2.] They also emphasize that they "challenge only the conditions of their confinement." [28, at 9.] Those concessions support the proposition that Section 1983 provides a proper rubric for analysis. Yet, Plaintiffs do seek as a remedy at least temporary release from the physical confines of not only their cells, but the entire prison environment, which they contend is unsafe because (in Professor Resnik's words) "density puts people at medical risk." [24-3 at 6.]
This conundrum is not simply an academic exercise, for "Congress has channeled and circumscribed some of federal judicial authority" in this area, through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Prison Litigation Reform Act (PLRA) of 1996, and the Supreme Court too has provided guidance in this area. [24-3 at 5.] The case law clearly holds that the PLRA applies in Section 1983 suits, but not to habeas petitions. See, e.g., Jones v. Bock, 549 U.S. 199, 200, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007) ("PLRA claims are typically brought under 42 U.S.C. § 1983[.]"); Walker v. O'Brien, 216 F.3d 626, 639 (7th Cir. 2000) ("the requirements of the PLRA do not apply [*25] to
9 Professor Resnik's work is well-known to the Court. She is unquestionably one of the nation's leading experts in civil procedure and prison litigation, both as an academic and as a practitioner on behalf of plaintiffs. Her succinct discussion of the "legal thicket" in which the parties find themselves in these two cases has provided the equivalent of an amicus brief for which the Court is most appreciative.

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properly characterized habeas corpus actions"). And it expressly reflects the traditional shorthand understanding of the differences between the two types of actions, as its provisions apply to civil actions "arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison," but expressly exclude "habeas proceedings challenging the fact or duration of confinement in prison." 18 U.S.C. § 3626(g)(2).

open a crack for habeas corpus claims challenging prison conditions, it has never found anything that qualified"). As Petitioners recognize [24, at 17], the Seventh Circuit's reading of Preiser "is narrower than that of other circuits." Still, given (1) Ziglar's continued recognition that the question remains open and (2) the exigent circumstances present in this litigation, the Court will consider Petitioners' habeas claim after assessing Plaintiffs' request for the same relief under Section 1983.

Together, the statutes and case law weave a thick and tangled web. As Professor Resnik further explains, "because state prisoners who rely on 28 U.S.C. § 2254 have to exhaust state judicial remedies, they may seek to use § 1983, to which that requirement does not apply. And, because the PLRA affects § 1983 litigants, prisoners may hope to avoid its strictures by filing under habeas." [24-3 at 6.] Those two sentences identify the precise dilemma that faced counsel for Plaintiffs as they contemplated their legal options in the present circumstances. On the one hand, many cases view Eighth Amendment claims like those asserted here "to be appropriate for § 1983 because they relate to conditions." [Id.] On the other hand, the unique context in which litigation over [*26] COVID-19 arises may cast some doubt on that seemingly obvious proposition because the sudden threat to mortality from the spread of the virus in a congregate setting may affect the fact or duration of confinement. These unprecedented circumstances, Professor Resnik posits, "collapse the utility and purpose of drawing distinctions between what once could be coherently distinguished" and lead to the conclusion that "COVID-19 claims ought to be cognizable under both provisions." [Id.]
The upshot of the foregoing analysis is that it is abundantly clear that Plaintiffs may proceed on their claims under Section 1983 and at least plausible—though far less certain—that they also have a right to seek habeas relief as well. To test the latter proposition, the Court looks to the controlling decisions of the Supreme Court and the Seventh Circuit. Those cases reveal neither a ringing endorsement nor an outright prohibition. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1862, 198 L. Ed. 2d 290 (U.S. 2017) ("we have left open the question whether [detainees] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus"); Bell v. Wolfish, 441 U.S. 520, 526 n.6, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) ("we leave to another day the question off the propriety of using a writ of habeas corpus to obtain review of the conditions [*27] of confinement"); Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) ("When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the constraints making custody illegal"); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) ("While the Supreme Court left the door

B. Direct Release or a "Process"?
There is a second threshold issue to note at the outset. In their complaint—and likewise in the habeas action—Plaintiffs requested immediate medical furloughs for subclasses 1 and 2, immediate transfers to home detention for subclasses 3, 4, and 5, and an immediate award of good time credit for subclass 6, along with the appointment of a special master. Their opening brief in support of emergency injunctive relief on [*28] behalf of subclasses 1 and 2 likewise sought a direct transfer order [see 9, at 55.] In their reply, Plaintiffs complain that Defendants have "mischaracterize[d] the relief plaintiffs are seeking, suggesting that plaintiffs seek to unleash a tsunami of dangerous 'felons' on unwitting communities, when in reality no such thing is true." [28, at 1.] Perhaps that is not what Plaintiffs intended by initiating this lawsuit, but one can hardly blame Defendants for drawing that conclusion based on how Plaintiffs' request for relief was framed at the start of this litigation.
In an ordinary case, a significant transformation in how the plaintiff frames the object of the case often is dealt with by the filing of an amended complaint that puts Defendants on notice that the game has changed. Needless to say, this is no ordinary case and allowance must be made for adjustments on the fly. As of this Monday, Plaintiffs had provided a clear indication of such a change in direction, explaining that they do not assert a right to an order directly commanding an immediate furlough—as the complaint stated—but instead "seek a process through which subclass members eligible for medical furlough will be identified [*29] and evaluated based on a balancing of public safety and public health needs, and transferred accordingly" [24, at 6.] Plaintiffs have further proposed a "remedial plan" pursuant to which this courtordered and court-supervised process would unfold. [Id. at 5.] Given the disconnect between Plaintiffs' initial filings last week and their briefs filed this week, one cannot fault Defendants for characterizing Plaintiffs' revised position as "backpedaling" [26, at 16] or for seeking leave to file a surreply [32], which the Court has accepted. Nor can one cast aspersions on Plaintiffs for crafting an evolving proposal to deal with an evolving situation on the ground. The important

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thing for purposes of the litigation is that the parties have had an adequate opportunity to understand the claims as they exist today and to state their positions in advance of a ruling. The extensive briefs reflect a fair—indeed, an extensive— exposition of the issues, both as presented in the complaint and initial brief and as modified in the later briefs. In the interest of completeness, the Court will address both iterations of Plaintiffs' claims.
C. Section 1983 Claim
1. The PLRA
Turning first to Plaintiffs' Section 1983 claims, the Court [*30] must confront yet another threshold issue which the parties have briefed extensively—namely, the application of the PLRA to Plaintiffs' claims. As noted above, through the PLRA, Congress "channeled and circumscribed some of federal judicial authority" in ways that "affect[] § 1983 litigants." [24-3 at 5.] Although the PLRA is codified at 42 U.S.C. § 1997e, it encompasses the provisions of 18 U.S.C. § 3626, which is titled "appropriate remedies with respect to prison conditions." Section 3626 begins by stating that "[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." 18 U.S.C. § 3626(a)(1). It also directs courts to "give substantial weight to any adverse impact on public safety or the operation of the criminal justice system caused by the relief." Id. The term "civil action with respect to prison conditions" is defined broadly to include "any civil proceeding arising under Federal law with respect to the conditions of confinement and the effects of actions by government officials on the lives of persons confined in prison," but explicitly "does not include habeas corpus proceedings challenging the fact or duration [*31] of confinement in prison." 18 U.S.C. § 3626(g)(2). The statute specifically addresses preliminary injunctive relief, mandating that any such relief in a case involving prison conditions "must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm." 18 U.S.C. § 3626(a)(2).
The application of the provisions discussed in the preceding paragraph is not disputed between the parties. The parties part ways, however, in regard to whether the relief requested falls within the meaning of the PLRA's special procedures for consideration of a "prisoner release order." 18 U.S.C. § 3626(a)(3). The statute defines that term to "include[] any

order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison." 18 U.S.C. § 3626(g)(4). No court may enter a prisoner release order unless it "has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied" and "the defendant has had a reasonable amount of time to comply with the [*32] previous court orders." 18 U.S.C. § 3626(a)(1)-(2). If those strictures have been satisfied, only a three-judge court can actually consider and issue a prisoner release order—and even then only if it finds by clear and convincing evidence that "crowding is the primary cause of the violation of a Federal right" and "no other relief will remedy the violation." 18 U.S.C. § 3626(a)(3)(E)(i)-(ii).
2. Prisoner Release Orders Under the PLRA
In looking for guidance on how to address the parties' dispute concerning the reach of the PLRA's limitations on "prisoner release orders," the Court has endeavored to locate prior decisions in which a federal court has been asked to get involved in the potential transfer of thousands of state inmates out of state prisons through any available vehicle on the basis of their conditions of confinement. The Court has found—and the parties have cited—just two, which went together from the federal district courts in California all the way to the Supreme Court and then back again, and still remain open today, though in a largely dormant phase. See Coleman v. Newsom,
F. Supp. 3d. , 2020 U.S. Dist. LEXIS 62575, 2020 WL 1675775, at *3 (Three-Judge Court 2020) (explaining that since 2015, the three-judge court has "largely stepped [*33] back as the individual Coleman and Plata courts have continued to work" on the compliance phase of the cases). Because of the uniqueness of the relief requested here, a discussion of the most analogous cases appears in order.
In Brown v. Plata, 563 U.S. 493, 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011), the Supreme Court upheld an order of a threejudge district court requiring California to reduce its prison population to 137.5 percent of design capacity within two years. In that case, two lawsuits were brought by California prisoners with serious mental disorders challenging prison crowding and inadequate mental health care as Eighth Amendment violations. In one of the cases, a special master was appointed to oversee development and implementation of a remedial plan. In the other case, the state stipulated to a remedial injunction, but failed to comply with the injunction, after which the district court appointed a receiver to oversee remedial efforts. The plaintiffs in both cases requested that a three-judge panel of the district court be convened pursuant to

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the PLRA, 18 U.S.C. § 3626(a)(3). Both district courts granted the motions and the cases were consolidated before a three-judge panel. The three-judge court, after determining that plaintiffs suffered from constitutional violations that [*34] were caused primarily by overcrowding, entered a remedial order requiring the State of California to reduce its prison population to 137.5 percent of design capacity within two years.
The Governor appealed and the Supreme Court affirmed. The Court determined that the PLRA's requirement of allowing the state a reasonable amount of time to comply with previous court orders was satisfied where, when the three-judge district court was convened, 12 years had passed since the appointment of a special master to oversee development and implementation of a remedial plan and the basic plan to solve the crisis through construction, hiring, and procedural reforms had remained unchanged for years. Plata, 563 U.S. at 514-15. The Court also held that the evidence supported the threejudge court's determination that crowding was the primary cause of the Eighth Amendment violations and that no other relief would remedy the violations. The evidence showed that there were severe, months-long delays and backlogs for prisoners needing urgent mental health and physical care, as well as unsafe and unsanitary living conditions caused by crowding. Id. at 519-20. Further, the Court determined that the three-judge court properly gave substantial weight to public [*35] safety, finding various available methods of reducing overcrowding that would have little or no impact on public safety, such as expansion of good-time credits and diversion of low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring. The Court noted that the three-judge court's order "took account of public safety concerns by giving the State substantial flexibility to select among these and other means of reducing overcrowding." Id. at 537. Finally, the Court concluded that the cap of 137.5 percent capacity was supported by evidence in the record, including expert witnesses who recommended a 130 percent population limit and the federal BOP's own long-term goal of 130 percent. Id. at 539-40.
As the foregoing illustrates, the only instance of which the Court is aware that a federal court has been involved in ordering the release of thousands of state prisoners took place in radically different circumstances—after the passage of 12 years, the development of a full record, the input of both a special master and a receiver, and a trial lasting almost three weeks. Clearly there is no time for even a fraction of that attention, so the Coleman/Plata experience [*36] may have little to offer in the way of guidance, except in its application of the order of operations under the PLRA—the preliminary requirements for issuing a less intrusive order, the reasonable

opportunity to comply, and what type of claim requires the appointment of a three-judge court. But there is a recent postscript that may offer greater insight on how the PLRA should apply in this case.
Less than a week ago, the same three-judge panel in California whose work was reviewed by the Supreme Court in Plata issued an order denying an emergency motion seeking release of "an unspecified, but significant, number of prisoners so that the prison population can be reduced to a level sufficient to allow physical distancing to prevent the spread of COVID-19." Coleman & Plata, 2020 U.S. Dist. LEXIS 62575, 2020 WL 1675775, at *1. As in this case, the plaintiffs there sought an order directing the Governor of California and other state officials "to release to parole or post-release community supervision" certain categories of inmates who were low risk, non-violent, and/or close to their release dates and "to release or relocate inmates who, because of their age or other medical conditions, are at a high risk of developing a severe form of COVID-19." 2020 U.S. Dist. LEXIS 62575, [WL] at *3. Although [*37] the plaintiffs did not specify a number of inmates who fall within those categories, they argued that the number should be sufficient "to allow all remaining inmates to practice physical distancing, especially those who reside in crowded dorm housing." Id. They requested that specific relief based on the CDC's guidance that "[t]hus far, the only way to stop [COVID-19's] spread is through preventive measures— principal among them maintaining *** physical distancing sufficient to hinder airborne person-to-person transmission," which is "uniquely difficult in a congregate environment like a prison." 2020 U.S. Dist. LEXIS 62575, [WL] at *5 (citing CDC guidance).
The panel determined that it lacked authority to consider the request because it was "not actually a modification of the 2009 order but rather new relief based on the new threat of harm posed by COVID-19." Coleman & Plata, 2020 U.S. Dist. LEXIS 62575, 2020 WL 1675775, at *4. But perhaps significantly for present purposes, the panel gave every indication that all phases of the PLRA's remedial scheme— including the appointment of a new three-judge court—could apply to the type of relief sought by the Plaintiffs in California, which closely mirrors the relief sought for subclasses 1 and 2 in the complaint here—especially in regard to the [*38] request to "release or relocate" older inmates and those who are especially vulnerable due to medical conditions. To begin, the panel noted that as of the time of its ruling the Plaintiffs "likely cannot satisfy the [PLRA's] prior order requirement because there have not yet been any orders requiring Defendants to take measures short of release to address the threat of the virus; nor have Defendants had a reasonable time in which to comply." 2020 U.S. Dist. LEXIS

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62575, [WL] at *4.10 The panel further observed that the plaintiffs retained the option to "go before a single judge to press their claim that Defendants' response to the COVID-19 epidemic is constitutionally inadequate." 2020 U.S. Dist. LEXIS 62575, [WL] at *7. It added that "[i]f a single-judge court finds a constitutional violation, it may order Defendants to take steps short of release necessary to remedy that violation." Id. However, "if that less intrusive process proves inadequate," the Court concluded, "Plaintiffs may request, or the district court may order sua sponte, the convening of a three-judge court to determine whether a release order is appropriate." Id. In this Court's view, the clear impression to be drawn from the California panel's opinion is that, in its view, claims seeking an order [*39] to "release or relocate" inmates on account of the COVID-19 pandemic may implicate every aspect of the PLRA's remedial scheme, including the appointment of a three-judge court.
3. Are Plaintiffs Requesting a "Prisoner Release Order"?
With that discussion as prelude, the next question is whether Plaintiffs seek a "prisoner release order" within the meaning of Section 3626(a)(3) and (g)(4). If one focuses on Plaintiffs' complaint and initial brief, this is obvious. Plaintiffs devote pages to describing the congregate conditions in IDOC facilities in support of the proposition that crowded conditions inherent in living arrangements in a prison setting are unsafe during a pandemic. They then offer the opinions of numerous affiants who universally advance one message: the only solution is the immediate release of inmates in large numbers. A fair summary of the bulk of the complaint and brief in support of immediate injunctive relief is that the crowded conditions of IDOC facilities require the Court to issue an order immediately reducing the prison population in Illinois by ordering the members of proposed subclasses 1 and 2 to medical furloughs. In the Court's view, if that were the relief Plaintiffs seek in [*40] this litigation, it unquestionably could be awarded only by a three-judge court under the PLRA.
As noted above, in their more recent filings, Plaintiffs submit that are not seeking a "mass release order." Instead, Plaintiffs seek a "process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly." [24, at 5.] All of Defendants' briefs in this matter contend that such a process already is in place. But Plaintiffs find Defendants' efforts wanting, and thus they
10 The panel recognized, as does this Court, "that what is reasonable in ordinary times may be quite different from what is reasonable in these extraordinary times." Id. n.9.

request the Court's involvement in the creation and oversight of a remedial plan that would result in "an expedited, individualized review and relocation" of inmates who qualify. [Id. at 10.] The order that the Court would issue to set that process in motion, Plaintiffs say, is not a "prisoner release order" within the meaning of the PLRA. Such orders, they argue, involve mass prisoner releases or population caps and issue only to remedy violations primarily caused by overcrowding. [See 24, at 7.] And that is not the kind of order they want.
The Court must look to the language of the PLRA, which speaks in detail and [*41] uses broad and categorical language in defining its scope. It does not speak of "mass" releases, "population caps," or even "overcrowding"—though it does refer to "crowding," which must be the "primary cause of the violation of a Federal right" to serve as the predicate for a release order under the statute. 18 U.S.C. § 3626(a)(3)(E). What it does say is that any order "that has the purpose or effect of reducing or limiting a prison population, or that directs the release from or nonadmission of prisoners to a prison" lies exclusively within the province of three-judge courts. 18 U.S.C. § 3626(g)(4). The reference to "crowding" may have the effect of removing single-plaintiff cases from within the ambit of Section 3626(a)(3), because an order involving only one inmate might not be viewed as reducing a prison population in any meaningful way.11
Plaintiffs stress that the transfers they hope to accomplish would not release any class members from custody; they would simply effectuate changes in the inmates' physical locations, and the changes would be of a limited duration. Plaintiffs rely on Illinois statutes to show that they would remain in custody within the meaning of state law. But the PLRA does not focus on custodial status under state law, [*42] nor does it say anything about whether the reduction of population is temporary or permanent. The question is not whether Plaintiffs would remain in custody under state law. The question is whether the requested relief would have the "purpose" or the "effect" of "reducing or limiting the prison population," or whether it would "direct[]
11 A single judge in California did order an "exclusionary order for medically vulnerable prisoners" during a "Valley Fever" epidemic several years ago. Plata v. Brown, 2013 U.S. Dist. LEXIS 90669, 2013 WL 3200587, at *9 (N.D. Cal. June 24, 2013). In so doing, the judge rejected the notion that "a court could only order that prisoners be transferred from one prison to another if overcrowding were the primary cause of the violation." Id. That seems correct and consistent with the orders entered not infrequently in cases involving inmate medical problems that may require hospitalization. [See 24, at 10]. But it does not help Plaintiffs, because there was no crowding issue at all raised in that instance.

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the release from * * * a prison." 18 U.S.C. § 3626(g)(4). There is no doubt that Plaintiffs' request — even if couched in terms of a process — would have the purpose and the effect of reducing the population in Illinois prisons.
Plaintiffs also suggest that they do not seek a remedy for crowding (as the statute frames the issue) or overcrowding (as Plaintiffs frame it). But that contradicts the allegations of their complaint and their entire theory of the case. One of the central allegations in the complaint is that inmates are particularly vulnerable because they live in "congregate settings" in "close quarters" with each other. See Cmplt. at ¶ 1 (alleging that "[n]early 37,000 people are incarcerated in Illinois, living in close quarters"); id. ("social distancing guidelines can never be fully or effectively implemented in prison"); id. at ¶ 32 (alleging that "[p]eople [*43] in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19."); id. at ¶ 36 ("Correctional facilities are inherently congregate environments, where large groups of people live, eat, and sleep in close contact with one another."); id. at ¶¶ 37-38 (alleging that inmates are "all congregated together" and cannot "adequately distance themselves"); id. at ¶ 43 (alleging the "heightened risk posed by correctional settings" because of the close proximity); id. at ¶ 45 (alleging that there is a need to "eliminat[e] close contact in congregate environments").
In addition, as the ultimate aim of these lawsuits Plaintiffs unmistakably seek to reduce the prison population. Reducing the prison population is not just a side effect of the case — it is the whole point. They want to remove inmates from prison because they are vulnerable in those facilities. See Cmplt. at ¶ 1 (alleging that the Governor and the IDOC need to "drastically reduce Illinois's prison population"); id. at ¶ 3 ("[T]he state must take urgent steps to reduce, furlough, or transfer to home detention all that qualify."); id. at ¶ 4 (alleging that [*44] the IDOC is "refusing to reduce the number of people living in IDOC"); id. at ¶ 5 ("Class members . . . must be released now."); id. at ¶ 103 (discussing "Plaintiffs' request for release from physical custody"). The Complaint cites declarations from five public health and correctional experts, all of whom "recommend[] the release from custody" of certain individuals. Id. at ¶ 46; see also id. at ¶ 47 (Dr. Robert Greifinger discussing the "release of individuals"); id. at ¶ 49 (Dr. Craig Haney discussing that "adult prisons must reduce their populations"); id. at ¶ 50 (Prof. Chris Breyer discussing the need to "reduce the number of persons in detention as quickly as possible"); id. at ¶ 51 (Dr. Jaimie Meyer discussing "[r]educing the size of the population in jails"); id. at ¶ 52 (Dan Pacholke discussing the need to "reduce the prison population").

Moreover, the impetus for Plaintiffs' claims is the living conditions inherent in a congregate setting during the COVID-19 epidemic. They do not distinguish in any respect among the 28 facilities and the myriad living arrangements within those facilities. All prison facilities, by definition, have living conditions that prevent inmates from [*45] practicing the social distancing required by current guidance from the CDC and our state government. As Plaintiffs write in their reply brief, there is "no way to make conditions safe within the congregate prison setting." [24, at 11.] Defendants do not contest these allegations; in fact, they have repeated them publicly. But in asking that inmates be physically transferred from inside the prison to outside of it on the basis of these conditions, Plaintiffs plainly are implicating "crowding" as the primary cause of their concern. If prisons could be reconfigured to permit social distancing and observance of the CDC's hygiene recommendations, Plaintiffs would have no claim.
Finally, shifting the focus from an order directly releasing subclasses 1 and 2 (as the complaint requested) to an order imposing a court-ordered and court-managed "process" for determining who should be released (as the briefs request) does not place this case outside of Section 3626(a)(3). Although there is a dispute over the exact number of inmates within proposed subclasses 1 and 2—because some inmates are members of both subclasses—the minimum number of inmates who would be subject to the procedures in any remedial plan is approximately [*46] 12,000. See Cmplt. at ¶ 105 ("Plaintiffs estimate that Subclass 1 contains approximately 12,000" inmates).12 Plaintiffs insist that Defendants must act faster to move as many of those individuals to medical furlough as possible. The "purpose" of any order compelling the State to engage in that process would be to reduce the prison population, and the "effect" of its successful implementation would be the same, albeit indirectly. As Plaintiffs' acknowledge, Defendants already have in place several mechanisms to reduce the IDOC census and hundreds of inmates have already been released. An order granting the requested relief would simply accelerate that process, placing the request squarely within Section 3626(a)(3)—which forbids this Court from granting it.
The upshot is that the PLRA prevents this Court from
12 That figure is the floor, assuming that subclass 1 contains all of the inmates in subclasses 2-6. In reality, the number of eligible inmates covered by Plaintiffs' plan is probably much higher. Subclass 1 contains 12,000 inmates. See Cmplt. at ¶ 105. Subclass 2 contains 4,807 inmates. Id. Subclass 3 contains 700 inmates. Id. Subclass 4 contains over 9,000 inmates. Id. Subclass 5 contains 2,401 inmates. Id. Subclass 6 contains 5,308 inmates. Id.

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granting the temporary restraining order on the Section 1983 claim, for a number of reasons. First, the statute provides that "no court shall enter a prisoner release order unless * * * a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right," and the defendants have "had a reasonable amount of time to comply with the previous [*47] court orders." 18 U.S.C. § 3626(a)(3)(A)(i), (ii). Here, there is no such "previous court order[]." Id. Second, the statute provides that "only" a "threejudge court" can enter a prisoner release order. 18 U.S.C. § 3626(a)(3)(B). So, this Court, standing alone, lacks the authority to issue any order that has the "purpose or effect of reducing or limiting the prison population." Id.; 18 U.S.C. § 3626(g)(4). Third, the statute provides that "[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm." 18 U.S.C. § 3626(a)(2). Plaintiffs' proposed plan does the opposite. Instead of proposing interim steps, Plaintiffs seek the most sweeping form of relief — a process to potentially release 12,000 inmates — right off the bat.

commonality.
Commonality requires at least one question common to all of the class members, the answer to which is "apt to drive the resolution of the litigation." Wal-Mart Stores, Inc.v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). For present [*49] purposes, the quoted language is key. There are many questions common to the putative class members that bear on the subject of this litigation. Consideration of those questions undoubtedly drove the decisions of counsel in sorting Plaintiffs into six subclasses with particular characteristics held in common. But none of those questions is likely to drive the resolution of the case. The central dispute is not whether aged, infirm, and vulnerable inmates as a group should be given consideration for transfer or release. Defendants agree and by Plaintiffs' own admission "are taking many actions on the list" of mechanisms available under state law for moving inmates out of IDOC facilities. [24, at 1.] Plaintiffs simply want the Court to "prod the defendants to act more quickly." [Id. at 2.] And they acknowledge that any plan to do just that would require "individualized safety assessments" and "approve[d] home sites." [28 at 5.]

4. Provisional Class Certification
Even if the Court were incorrect in its conclusion that all of the relief that Plaintiffs request falls within the scope of Section 3626(a)(3), and thus only could be granted by a threejudge court (after Plaintiffs obtain a less intrusive order and Defendants have a reasonable amount of time to comply), Plaintiffs would need to clear other serious obstacles before the Court could even reach the [*48] merits of their claims. One is Plaintiffs' request that the Court consider granting conditional relief on a classwide basis.
Federal Rule of Civil Procedure 23 governs class actions. The basic requirements are well-known and simply stated: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. There are other requirements for money damages classes, but those do not apply here because the relief sought is injunctive only. See FRCP 23(a)(2). The first and fourth factors are essentially uncontested; the putative class numbers more than 10,000 individuals, the named Plaintiffs are appropriate, and class counsel are extremely well qualified for this type of litigation. Typicality is satisfied if the named plaintiff's claims "arise from the same event or practice or course of conduct that gives rise to the claims of the other class members and [are] based on the same legal theory." Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018). Plaintiffs have made enough of a showing to clear that hurdle, too, at least for conditional certification on a motion for preliminary relief. That leaves the second element,

The Court agrees. Indeed, the public interest—which must be taken into account when considering a TRO or preliminary injunction—mandates individualized consideration of any inmate's suitability for release and on what conditions, for the safety of the inmate, the inmate's [*50] family, and the public at large. From the inmate's perspective, his or her own health status at the relevant time is paramount. Any inmate who is exhibiting symptoms of infection may be more suitable for quarantine or even transfer to a hospital. From the family perspective, an inmate who has been exposed to someone (inmate or IDOC personnel) who has tested positive may not be suitable for furlough, particularly if the inmate's proposed destination is a residence already occupied by someone equally or more vulnerable. And from the public's perspective, it is important to bear in mind that some portion of the incarcerated population has been convicted of the most serious crimes—murder, rape, domestic battery, and so on. Seven of the ten named Plaintiffs in fact are serving time for murder. As Plaintiffs rightly acknowledge, some release orders would be appropriate only with conditions, such as home detention or lesser forms of supervision. And those conditions can only be imposed with resources (e.g., electronic monitors) and personnel, who are both limited in supply and also subject to the same social distancing imperatives as everyone else.
The imperative of individualized determinations, [*51] recognized by both sides in this case, makes this case inappropriate for class treatment. Each putative class member comes with a unique situation—different crimes, sentences,

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outdates, disciplinary histories, age, medical history, places of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of transmitting the virus to someone at home detention, likelihood of violation or recidivism, and danger to the community. As Plaintiffs point out, commonality "does not require perfect uniformity." [28, at 46 (citing cases).] But it does require more uniformity that these Plaintiffs would have on the only matter "apt to drive the resolution of the litigation" (Wal-Mart, 564 U.S. at 350)— namely, which class members should actually be given a furlough? And any attempt to use the class device even to formulate standards is destined to fail, because those standards largely are governed by the various state statutes authorizing different forms of release, which then are subject to wide discretion in their application.
Plaintiffs' own plan underscores that they are seeking a highly individualized, inmate-by-inmate form of relief. See Plaintiffs' Draft Proposed Remedial Plan Related [*52] to their Request for a Temporary Restraining Order/Preliminary Injunction [24-1]. Plaintiffs want the IDOC to identify, "[w]ithin three days of the date of the order," all inmates who fall within the broad parameters of a list of medical conditions. Id. So, the IDOC would need to identify which of the 37,000 inmates have a medical condition that qualifies. Then, "[w]ithin 7 days of the date of this order," the IDOC "will use its discretion to transfer inmates" to medical furlough or home detention, unless the IDOC determines that it would poses a substantial danger to an identified person that outweighs the threat to the inmate's health from incarceration. Id. As Plaintiffs acknowledge, an "[a]ssessment of the safety risk must be based on an individualized analysis, and not categorical exclusions (except those excluded offenses for furlough or transfer under the law)." By its very nature, the process would entail a highly individualized inquiry that is illsuited to class treatment. Simply put, there is no way to decide which inmates should stay, and which inmates should go, without diving into an inmate-specific inquiry.
Although the press of time does not permit deep reflection on [*53] the point, the Court can imagine that the analysis might be different if this were a more typical case. Class treatment might be appropriate where the Court has months or years to make decisions on individual aspects of a case—for example, an action arising out a common occurrence where liability would be established on a classwide basis, followed by individual damages assessments—or if the number of permutations were confined in some reasonable manner. But the permutations here are endless, as rarely, if ever, will any two plaintiffs be alike on the factors that matter at the point of decision. These differences are so vast and fundamental that class treatment, especially in the compressed time frame that would allow for effective relief at the height of the pandemic

in Illinois, is completely unworkable.
5. Federalism and Separation of Powers Concerns
Plaintiffs' motion also raises serious concerns under core principles of federalism and the separation of powers, especially given their request for sweeping relief in the form of a mandatory injunction. See Missouri v. Jenkins, 495 U.S. 33, 51, 110 S. Ct. 1651, 109 L. Ed. 2d 31 (1990) ("[O]ne of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and [*54] function of local government institutions."). The Supreme Court repeatedly has cautioned that federal courts must tread lightly when it comes to questions of managing prisons, particularly state prisons. The Court has gone so far as to opine that "[i]t is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of prisons." Preiser, 411 U.S. at 492-92; see also Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) ("[W]here a state penal system is involved, federal courts have * * * additional reason to accord deference to the appropriate prison authorities."); Meachum v. Fano, 427 U.S. 215, 229, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) ("Federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.").
There are serious separation of powers concerns, too, because running and overseeing prisons is traditionally the province of the executive and legislative branches. See Turner, 482 U.S. at 84-85 ("Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been [*55] committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint."). The judiciary is ill-equipped to manage decisions about how best to manage any inmate population— let alone a statewide population of tens of thousands of people scattered across more than a dozen facilities. And the concern about institutional competence is especially great where, as here, there is an ongoing, fast-moving public health emergency.
It is no accident that the federal judiciary only rarely intrudes into the management of state prisons, and only once in history has actually ordered the release of prisoners on a scale anywhere near what Plaintiffs hope to accomplish through this litigation. And in that instance, inmates were released only after a painstakingly long process, informed by voluminous expert testimony and a weeks-long trial. This is

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why the Supreme Court too has noted how "ill equipped" the courts are to deal with the "complex and intractable" problems of prisons and remarked that "[j]udicial recognition of that fact reflects no more than a healthy sense of realism." Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 2401 n.16, 69 L. Ed. 2d 59 (1981).

Plaintiffs insist that they "do not seek to place IDOC under

the supervision [*56] of this Court." [24, at 12.] But they do

intend to place the Court squarely in the middle of refereeing

whose plan can best ensure release of inmates and on what

conditions. As Plaintiffs note, if their proposal is not

agreeable to Defendants, they "are free to proffer other plans

to the Court." [Id. at 13.] In saying that the Court should

hesitate before venturing into such an arrangement, the Court

does not mean to say it never is appropriate. Plata holds

otherwise. But here, and now, even if Plaintiffs could

establish a right to the relief they want—and they cannot for

reasons stated above (Section 3626(a)(3)) and below (the

absence of a likelihood of success on the merits)—any effort

for the Court to insert itself into this process likely would be

ineffectual in dealing with the actual situation at hand. The

statistical experts on whose work both the federal and state

governments have relied in shaping their expectations

estimate that the peak for the current wave of COVID-19 will

hit in Illinois within the next few days, and that the number of

deaths and the need for invasive medical equipment will

decline rapidly in the weeks that follow. See Institute for

Health Metrics and Evaluation, University of

Washington [*57] Medicine, "COVID-19 projections

assuming full social distancing through May 2020," available

at

https://covid19.healthdata.org/united-states-of-

america/illinois (last visited Apr. 10, 2020). To be sure, for

the reasons acknowledged above, the prison environment

presents special challenges and may not bend to the same

curve as the rest of the state collectively. Yet today's

information shows that only one IDOC facility has more that

ten confirmed cases, and IDOC has in place measures to deal

with suspected and confirmed cases within its facilities and to

limit the chance of the virus being brought into the facility by

outsiders. By the time the Court could develop even a

partially-informed plan for dealing with an infectious disease

in the prison system, the current wave likely will have passed.13

to direct—or, at a minimum, strongly influence—the Governor and an administrative agency to make discretionary decisions under state law to grant a medical furlough or a home detention. See 730 ILCS 5/3-11-1(a)(2) (providing that the IDOC [*58] "may" grant a 14-day medical furlough); 730 ILCS 5/5-8A-3(d) (providing that certain inmates "may" be placed in home detention under certain conditions); 730 ILCS 5/5-8A-3(e) (same). Just as the "Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case," United States v. Nixon, 418 U.S. 683, 693, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), so too the executive branch has the discretion to decide whether to end incarceration early.
6. The Merits
In the interest of completeness—and in the event that any or all of the foregoing analysis is incorrect—the Court now turns to the applicable factors for considering a request for preliminary injunctive relief on the merits. As noted at the outset, "[i]n the first phase, the party seeking a preliminary injunction must make a threshold showing that: (1) absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits." Turnell, 796 F.3d at 66162. If the movant makes the required threshold showing, then the court moves on to the second stage and considers: "(4) the irreparable harm the moving party will endure if the preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving [*59] party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties," i.e., the public interest. Id. at 662. The court must pay "particular regard for the public consequences in employing the extraordinary remedy of injunction." Winter, 555 U.S. at 24.
As a concession to the press of time, the Court will move directly to the third part of the first phase analysis, for it is sufficient to end the inquiry. As explained below, Plaintiffs cannot show a reasonable likelihood of success on the merits on either of their substantive claims.

Finally, there are potential separation of powers problems, too, with forcing the executive branch to exercise its discretion in a particular way. Here, Plaintiffs want this Court
13 The Court is aware that experts have warned of a possible second (or third) wave, perhaps in the late fall or early winter when the normal flu season arrives. Nothing in today's ruling forecloses a later request for relief based on future circumstances.

a. Likelihood of success on the merits
To state a claim under § 1983, a plaintiff must show: (1) his constitutional rights were violated (2) by a person acting under color of state law. Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007). Plaintiffs advance two claims under the Eighth Amendment and the ADA. Defendants plainly are state

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actors, so the only question on the table is whether Plaintiffs' constitutional rights have been violated—or, more precisely, whether Plaintiffs have a reasonable chance of showing that they have been.
i. Eighth Amendment claim
In cases involving the conditions of confinement in a prison, two elements are required to establish a violation of the Eighth Amendment's prohibition against cruel [*60] and unusual punishment: "first, an objective showing that the conditions are sufficiently serious—i.e., that they deny the inmate the minimal civilized measure of life's necessities creating an excessive risk to the inmate's health and safety— and second, a subjective showing of a defendant's culpable state of mind." Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (internal citations and quotation marks omitted). The culpable mental state required to state a claim under the Eighth Amendment is "one of deliberate indifference to inmate health and safety." Daugherty v. Page, 906 F.3d 606, 611 (7th Cir. 2018) (quoting Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016)) (internal quotation marks omitted).
Again, the analysis can be truncated, because nobody contests the serious risk that COVID-19 poses to all inmates and prison staff, and even more so to the most vulnerable inmates like those who comprise the two subclasses encompassed within the instant motion. Likewise, nobody contests Defendants' knowledge of this grave situation. The lead Defendant, Governor Pritzker, has repeatedly made reference to the unique risks faced by incarcerated individuals in his daily press briefings. So, deliberate indifference is the whole ball game on the merits of Plaintiffs' Eighth Amendment claim.

actions they have taken to protect IDOC inmates. Some are designed to protect inmates in the prison environment; others to consider release under several different programs. On an almost daily basis, the Governor and/or the Department have expanded or modified their procedures, including earlier this week through an executive order making it easier for the Director to approve furloughs. Plaintiffs acknowledge that Defendants "are taking many actions on the list." [24, at 1.] And the numbers prove it—as 644 inmates have been released since March 2. [36, at 2.]
Plaintiffs' complaint [*62] is that Defendants "are simply not moving quickly or broadly enough," and that "the Court's intervention is necessary to prod the defendants to act more quickly." [24, at 1-2.] Setting aside the concerns raised above whether judicial intervention would be effective—probably not in the short term; perhaps in the long term—objections about the speed or scope of action and suggestions for altering it through a "prod" do not support either half of the phrase "deliberate indifference." Clearly Defendants are trying, very hard, to protect inmates against the virus and to treat those who have contracted it. The record simply does not support any suggestion that Defendants have turned the kind of blind eye and deaf ear to a known problem that would indicate "total unconcern" for the inmates' welfare. Rosario, 670 F.3d at 821. Nor would the record support any claim that Defendants lack a plan for implementing exactly what Plaintiffs have requested—individualized decisions on release through a panoply of vehicles guided by administrative discretion. It may not be the plan that Plaintiffs think best; it may not even be the plan that the Court would choose, if it were sufficiently informed to offer an opinion on the [*63] subject. But the Eighth Amendment does not afford litigants and courts an avenue for de novo review of the decisions of prison officials, and the actions of Defendants here in the face of the COVID-19 outbreak easily pass constitutional muster.

Deliberate indifference, as the Seventh Circuit has explained, imposes a "high hurdle," [*61] for it requires a showing "approaching total unconcern for the prisoner's welfare." Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012) (internal quotations and citation omitted). Neither "negligence [n]or even gross negligence is enough; the conduct must be reckless in the criminal sense." Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008). And, given the constantly shifting parameters and guidance regarding how to combat a previously little known virus, it is worth pointing out that "the mere failure * * * to choose the best course of action does not amount to a constitutional violation." Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002).
Under this standard, Plaintiffs have no chance of success. Defendants have come forward with a lengthy list of the

ii. ADA claim
Title II of the ADA prohibits public entities from discriminating against qualified individuals with disabilities by depriving them of opportunity to participate in the services, programs, or activities of the public entity because of their disabilities. 42 U.S.C. § 12132. Title II of the ADA applies to prisons, as "[s]tate prisons fall squarely within the statutory definition of "public entity" under the ADA. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 141 L. Ed. 2d 215 (1998). To make out a claim under Title II of the ADA, Plaintiffs must show that: (1) each Plaintiff is a "qualified individual with a disability;" (2) Defendants denied Plaintiffs "the benefits of the services, programs, or activities of a public entity;" and (3) Plaintiffs

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were discriminated against "by reason of" their disabilities. Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (quoting 42 U.S.C. § 12132). Plaintiffs may establish discrimination in one of three ways: "(1) the defendant intentionally acted on the basis of the disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant's [*64] rule disproportionally impacts disabled people." Washington v. Ind. High Sch. Athletic Ass'n, Inc., 181 F.3d 840, 847 (7th Cir. 1999).
Here, there is no allegation of intentional discrimination on the basis of disability—i.e., that Defendants have singled out disabled inmates and excluded them from consideration for release. And nothing on the face of the many vehicles identified in Defendants' brief for effectuating release even mentions disabilities, much less bars disabled inmates from accessing them. As Plaintiffs recognize, all decisions on release—under the furlough program that is the focus for subclasses 1 and 2 and otherwise—must be made on an individualized basis and subject to the exercise of discretion. Nothing in the record supports the notion that any member of the proposed class, including one who is a qualified individual with a disability, has been denied the reasonable modification of consideration for release—which Plaintiffs now concede is the most they can ask for. Nor is there any basis for concluding that the discretionary decisions on whom to release (and not to release) have a disproportionate impact on disabled inmates, especially when one considers the large number of non-disabled inmates who also may have strong claims to priority for release [*65] on account of their susceptibility to COVID-19, such as elderly inmates. In short, Plaintiffs do not have a reasonable likelihood of success under any of the three ways of establishing an ADA discrimination claim.14
b. Second stage factors
Having concluded that Plaintiffs do not have a reasonable
14 Plaintiffs also have no plausible allegations that ADA-qualified inmates have been discriminated against because of their disabilities. As noted above, review of the numerous vehicles that Defendants have identified and/or that are authorized by statute reveals none that singles out disabled persons for discrimination. To the contrary, it is likely that the programs in place will have a disparate impact in their favor, as disabled individuals are more likely to be able to demonstrate a need for the services that justify a medical furlough. The fact that disabled persons may be more susceptible to contract or suffer serious consequences from COVID-19 is not disputed, but that disparate impact is not a consequence of "Defendant's rule" or any action by Defendants. As explained above, the "rule" is individual, discretionary decisions on eligibility for release.

likelihood of success on either of their Section 1983 claims, the Court need not move on to the "second stage" of the TRO/preliminary injunction analysis. Nevertheless—and very briefly—the answer to the question "to release or not to release" is by no means obvious. Setting aside Stateville, the current rate of incidence of COVID-19 infection inside the IDOC is mercifully low, and the counties in which the facilities housing the named Plaintiffs (apart from Will) are far less densely populated than the urban areas in which the virus is more prevalent. To the extent that members of the subclasses would be released to homes in those areas, they may have a similar risk of contracting the virus whether they remain in custody or are released in the near future.
The final factor in the "second stage," the public interest, also cuts both ways. As Plaintiffs stress, the public interest surely is served by [*66] avoiding widespread outbreaks of COVID19 infection, and prison environments present a heightened risk of such outbreaks occurring, as evidenced at Stateville and the Cook County Jail. These are good reasons for Defendants to work hard to reduce the prison population, and especially to remove the highest-risk inmates, either though outright release or transfer to some other location while still in custody, provided that doing so is consistent with the public interest. But every release order carries with it some risk to the rest of the community. Has the inmate been exposed to the virus while in custody? Does another vulnerable person— perhaps an 80-year old mother with emphysema—live at the residence where the inmate will be released? Does the inmate have a history of mental instability or domestic violence? Are there adequate safeguards—monitoring or supervision—for releasees who are both vulnerable and dangerous? How does the increased activity associated with release orders in the quantities sought by Plaintiffs comport with the mandate for social distancing? Finally, as alluded to above, the public interest also commands respect for federalism and comity, which means that courts [*67] must approach the entire enterprise of federal judicial intrusion into the core activities of the state cautiously and with humility. This is not to say that intrusion would not be justified if the state government sat silently during a pandemic; if that were the case, the Court would be prepared to request sua sponte the formation of a three-judge court to take up Plaintiffs' complaint. But the absence of a plausible case on the merits and doubts about the balancing of the harms and public interest reinforce the decision to deny injunctive relief at this time.
Other compelling public interest considerations come into play too. Plaintiffs seek a process that could result in the release of at least 12,000 inmates. That is almost one-third of the prison population in Illinois. See Cmplt. at ¶¶ 1, 105. All of them are incarcerated because a jury convicted them of committing crimes, including some of the most serious crimes

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against our community. Many of them are violent offenders. Compelling a process to potentially release thousands of inmates on an expedited basis could pose a serious threat to public safety and welfare. The risk of recidivism comes into play, as do concerns about victims' [*68] rights. The question is not simply what is best for the inmates — the public has vital interests at stake, too. See Brief of Amicus Curiae City of Chicago in Mays v. Dart, Case No. 20-cv-2134, Docket Entry [45-1], at 2 (submitted on April 9, 2020).
D. Petition for Writs of Habeas Corpus
As referenced above, Plaintiffs (or, in this context, Petitioners) also have brought a habeas petition under 28 U.S.C. § 2254 arguing that Respondent is "violating Petitioners' Eighth Amendment rights by continuing to incarcerate them in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that will prove deadly because of Petitioners' vulnerable condition and/or age." Jeffreys, [1, at ¶ 124].
Prior to filing a habeas petition in federal court, a petitioner seeking relief from state custody must exhaust available state remedies, which means that the petitioner has "fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge." Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005); see also 28 U.S.C. § 2254(b), (c); O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). This exhaustion requirement "serves an interest in federal-state comity by giving state courts [*69] the first opportunity to address and correct potential violations of a prisoner's federal rights." Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir .2004) (citing Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1972)). It requires the petitioner to assert each of his or her federal claims through one complete round of state-court review, either on direct appeal of his or her conviction or in post-conviction proceedings, before proceeding to federal court. See O'Sullivan, 526 U.S. at 845; see also Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). This includes presentation of the claims to appellate courts where review is discretionary and such review is part of the ordinary appellate procedure in the State. O'Sullivan, 526 U.S. at 847 (requiring a petitioner to present his claims to the Illinois Supreme Court in a petition for leave to file an appeal even though that Court's review was discretionary).
To fairly present a claim in state court, the petitioner must include both the operative facts and the controlling legal principles on which the claim is based, and must also alert the

state court that the claim raised is based on federal law. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001); Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004). If the federal court reviewing the habeas petition is not satisfied that the petitioner gave the state courts "a meaningful opportunity to pass upon the substance of the claims [ ] presented in federal court," the Court cannot reach the merits. Chambers, 264 F.3d at 737; see [*70] also Sweeney, 361 F.3d at 332.
"Where state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim(s) to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim: although a federal court now has the option of denying the claim on its merits, 28 U.S.C. § 2254(d) (2), it must otherwise dismiss his habeas petition without prejudice so that the petitioner may return to state court in order to litigate the claim(s)." Perruquet, 390 F.3d at 514 (citing Castille v. Peoples, 489 U.S. 346, 349, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989); Rose v. Lundy, 455 U.S. 509, 522, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982)); see also 28 U.S.C. § 2254(b)(1) (A); Coleman v. Thompson, 501 U.S. 722, 731, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001). However, where a petitioner already has pursued state court remedies (but without presenting the federal claims in state court) and there is no longer any state corrective process available to him or her, "it is not the exhaustion doctrine that stands in the path of habeas relief, see 28 U.S.C. § 2254(b)(1)(B)(i), but rather the separate but related doctrine of procedural default." Perruquet, 390 F.3d at 514.
It is undisputed that Petitioners have not complied with the exhaustion requirement. They did institute a direct action in the Illinois Supreme Court. Had that Court exercised its authority to take action on these matters, various abstention doctrines would have come into play and might have compelled (or at least counseled) this Court to stand [*71] down. The Court is not aware of any action that the Illinois Supreme Court has taken. Petitioners do not contend that the filing of their direct action to the state High Court satisfies the exhaustion doctrine. Rather, they submit that exhaustion should be excused because of the unavailability of the Circuit Court of Cook County, where Petitioners apparently would have preferred to file within the state court system.
As an initial matter, that may not have been a valid choice in any event, for none of the Petitioners is housed in a facility within Cook County. In general, a habeas petitioner must bring suit against the warden of the facility in which he is detained. See, e.g., Rumsfeld v. Padilla, 542 U.S. 426, 434-35, 124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004). As the Supreme Court has explained, "[t]he federal habeas statute straightforwardly provides that the proper respondent to a

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habeas petition is 'the person who has custody over [the petitioner]'" and "[t]he consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner's habeas petition." Id. (citing 28 U.S.C. § 2242); see also W.S.R. v. Sessions, 318 F. Supp. 3d 1116, 1123 (N.D. Ill. 2018) ("the typical habeas petition requires that the warden of the custodial facility, rather than supervisory government [*72] officials, be named as the respondents"); Payne v. Illinois, 485 F. Supp. 2d 952, 952 (N.D. Ill. 2007) ("the proper habeas respondent is neither a disembodied governmental unit nor the "people" who are collectively the constituents of that unit, but rather the person who has custody over the habeas petitioner"). The presence of multiple petitioners may have afforded a choice in selecting a proper respondent, but it is doubtful that someone other than a warden of a facility housing a petitioner should have been named, for the general rule is that a petitioner may not sue the director of the jail system. See, e.g., Bridges v. Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005). Petitioners apparently sued Respondent Jeffreys, the IDOC Director, because they are proceeding on a representative theory, for which there is some support in Supreme Court and Seventh Circuit law. Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975) (although Rule 23 "does not apply to habeas corpus proceedings," "a representative procedure analogous to the class action provided for in Rule 23 may be appropriate in a habeas corpus action under some circumstances) (citing Fed. R. Civ. P. 23); compare Jennings v. Rodriguez, 138 S. Ct. 830, 858 n.7, 200 L. Ed. 2d 122 (U.S. 2018) (Thomas, J., concurring in part) ("This Court has never addressed whether habeas relief can be pursued in a class action." (citing Schall v. Martin, 467 U.S. 253, 261, n. 10, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984) (reserving this question)).15
There is no need to resolve the question of the proper [*73] respondent, because Plaintiffs have not made a satisfactory showing that the state court system was not every bit as available as the federal courts, if not more so. Assuming that filing in Cook County would have been proper, "Cook County's courts are still available for emergency matters," as Judge Kennelly found earlier this week. Mays v. Dart, 2020 U.S. Dist. LEXIS 62326, 2020 WL 1812381, at *5 (N.D. Ill. Apr. 9, 2020). Petitioners have made no effort to establish that
15 Although the Court denies habeas relief based on Petitioners' failure to exhaust their available state remedies, it adds that for all of the reasons stated above (see 30-33, supra), this habeas action would be no more suitable for representative or class treatment than the Section 1983 lawsuit is, as release determinations must be made on an individual basis regardless of the vehicle for considering and effectuating them.

the trial courts in the numerous other counties where they are

housed are unavailable and were so last week when this action

was filed. Stateville Correctional Center, where the COVID-

19 crisis was most acute within the IDOC system, is located

less than five miles from the Will County Courthouse in

Joliet, where the Circuit Court for the Twelfth Judicial Circuit

sits. Under that court's operative Administrative Order No.

2020-08, effective from March 18, 2020 through April 30,

2020, "[w]ith the exception of Branch Courts, all court

facilities will be open normal business hours." Administrative

Order

No.

2020-08,

available

at

https://www.circuitclerkofwillcounty.com/Portals/0/Covid%2

0AO%2020-08.pdf (last checked Apr. 10, 2020). Within the

Civil Division, where this matter likely would have been

assigned, [*74] the General Order provides that "[m]atters

determined by the Court to be of an emergency nature will be

heard in-person, by telephone conference, or by

videoconference if possible." Id. ¶ 6A.

To be sure, exhaustion requirements can (and should) be waived when relief is truly unavailable. But waiving them here—when state courts clearly were available at least in the two counties identified above and for all Petitioners have shown, every other county and circuit as well—would turn the habeas system upside down. Accordingly, the Court denies Petitioners' request for expedited release pursuant to the issuance of writs of habeas corpus.16

* * * *

In closing, the Court can do no better than to quote the threejudge panel from California before whom a group of plaintiffs in a similarly hard-hit state presented a claim seeking release (or relocation) due to the inability to observe social distancing during the COVID-19 pandemic: "We emphasize that Defendants have broad authority to voluntarily take steps that may prevent the life-threatening spread of COVID-19 within their prisons, and we recognize the deference that is due to prison authorities to determine which additional measures must be taken [*75] to avoid catastrophic results. * * * Defendants have represented to us that they are continuously

16 Because Petitioners asked for expedition, which was justified in the circumstances, the Court is reluctant to dismiss the Petition altogether without allowing Petitioners time for reflection on the ruling and the basis for it. However, following Judge Kennelly's approach in Mays, 2020 U.S. Dist. LEXIS 62326, 2020 WL 1812381, at *6 n.5, the Court is willing to consider entering a final order of dismissal (or any other viable approach of allowing Petitioners to seek further review) upon the filing of a motion requesting such relief. Any such motion should be presented to the undersigned judge in his capacity as emergency judge, although the motion may be referred to the assigned judge after filing.

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evaluating what more they can do to protect the inmates within their prisons, and we urge them to leave no stone unturned. It is likely that only through significant effort will California's prisons be able to minimize the spread of COVID-19." Coleman & Plata, 2020 U.S. Dist. LEXIS 62575, 2020 WL 1675775, at *8. So, too, here in Illinois.

IV. Conclusion
For the reasons set forth above, Plaintiffs' motion for temporary restraining order and preliminary injunction in Money v. Pritzker, Case No. 20-cv-2093 [9] is denied. Plaintiffs' motions for leave to file oversized brief [5] and for expedited treatment [12] in that same case are granted. Defendants' motion for leave to file sur-reply in that case [32] is granted. Petitioners' motion for expedited treatment in Money v. Jeffreys, Case No. 20-cv-2094 [3] is granted, but the Court denies Petitioners' request for expedited release. The petition [1] remains open on the docket, subject to further action by the parties and the judges, both assigned and emergency (see above). No further status hearings will be set at this time by the emergency judge.
Dated: April 10, 2020
/s/ Robert M. Dow, Jr.
Robert M. Dow, Jr.
United [*76] States District Judge

End of Document

Case 2:20-cv-11053-MAG-RSW ECF No. 27-29 filed 05/12/20 PageID.1739 Page 1 of 4 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053
Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT BB

Case 2:20-cv-11053-MAG-RSW ECF No. 27-29 filed 05/12/20 PageID.1740 Page 2 of 4

Neutral As of: May 11, 2020 5:57 PM Z

Gulley v. Ogondo

United States District Court for the District of Connecticut April 13, 2020, Decided; April 13, 2020, Filed
Nos. 3:19-cv-612 (SRU); 3:18-cv-858 (SRU); 3:18-cv-941 (SRU); 3:19-cv-310 (SRU)

Reporter 2020 U.S. Dist. LEXIS 64193 *
CHAZ GULLEY, Plaintiff, v. OGONDO, et al., MULLIGAN, et al., LIMMER, et al., LIZON, et al., Defendants.
Prior History: Gulley v. Limmer, 2018 U.S. Dist. LEXIS 122334 (D. Conn., July 23, 2018) Gulley v. Ogando, 2019 U.S. Dist. LEXIS 100555 (D. Conn., June 17, 2019)
Core Terms
confinement, excessive force, motions, merits, deliberate indifference, preliminary injunction, asserting, preliminary injunctive relief, immediate release, injunction, requesting, temporary restraining order, irreparable harm, state prisoner, first degree, give rise, incarcerated, retaliation, Correction, unrelated, sentence, reasons, Inmate, movant, prison, cases, http

For Limmer, L.T., Sullivan, C/O, Defendant (3:18-cv-00941SRU): James Michael Belforti, Office of the Attorney General, Hartford, CT.
For Chaz O. Gulley, Plaintiff (3:19-cv-00310-SRU): Gregory John Ligelis, LEAD ATTORNEY, Robinson & Cole, Stamford, CT.
For Lizon, Captain, Blackstock, L.T., Caron, C/O, Severance, C/O, Ellen Durko, Medical Nurse, Victoria Scruggs, Medical Nurse, Defendants (3:19-cv-00310-SRU): Zenobia Gertrude Graham-Days, LEAD ATTORNEY, Office of the Attorney General--Sherman, Hartford, CT.
Chaz O. Gulley, Plaintiff (3:19-cv-00612-SRU), Pro se, Uncasville, CT.
For Ogando, Captain, Mulligan, Warden, Delpeschio, L.T., Harris, C/O, Annear, C/O, Baez, C/O, Sullivan, C/O, Brown, C/O (Mrs.), Correction Officer Roach, Deputy Warden, Brito, C/O, Defendants (3:19-cv-00612-SRU): [*2] James W. Donohue, LEAD ATTORNEY, Office of the Attorney General, Hartford, CT.

Counsel: [*1] Chaz O. Gulley, Plaintiff (3:18-cv-00858SRU), Pro se, Uncasville, CT.
For Cashman, Correction Officer, Rodriquez, Correction Officer, Gonzalez, Correction Officer, Defendants (3:18-cv00858-SRU): James W. Donohue, LEAD ATTORNEY, Office of the Attorney General, Hartford, CT; Edward Wilson, Jr, Office of the Attorney General--Sherman, Hartford, CT.
Chaz O. Gulley, Plaintiff (3:18-cv-00941-SRU), Pro se, Uncasville, CT.

Judges: Stefan R. Underhill, United States District Judge. Opinion by: Stefan R. Underhill
Opinion

Case 2:20-cv-11053-MAG-RSW ECF No. 27-29 filed 05/12/20 PageID.1741 PaPgaege32 ooff34
2020 U.S. Dist. LEXIS 64193, *2

RULING ON MOTIONS FOR RELEASE
Chaz Gulley, currently confined at Corrigan-Radgowski Correctional Center, filed the instant motions seeking immediate release from confinement. For the reasons that follow, the motions are denied.
I. Background

93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) (holding that a state prisoner challenging the length of confinement and requesting immediate release must do so by a habeas petition, not by a section 1983 suit); Murphy v. Travis, 36 F. App'x 679, 681 (2d Cir. 2002) (holding that a state prisoner's request for injunctive relief in a section 1983 case was "tantamount to seeking relief from confinement and is thus barred by the Supreme Court's decision in Preisier"). Accordingly, I do not have the authority to grant the relief that Gulley seeks.

On June 18, 2012, Gulley pled guilty to assault in the first degree, in violation of Conn. Gen. Stat. § 53-59(a)(1) and attempted armed robbery in the first degree, in violation of Conn. Gen. Stat. § 53-134(a)(2). Chaz Gulley, Criminal/Motor Vehicle Conviction Case Detail, STATE OF CT JUDICIAL BRANCH, https://www.jud2.ct.gov. He was sentenced to twenty years of imprisonment, execution suspended after ten years, and five years of probation. Id. His sentence ends on May 18, 2020. Chaz Gulley, Inmate Information, CT STATE DEP'T OF CORR., http://www.ctinmateinfo.state.ct.us.
On March 26, 2020, Gulley filed motions for a preliminary injunction and/or temporary restraining order in four of his pending 42 U.S.C § 1983 cases, requesting early and immediate release from prison because of the risk of contracting Coronavirus Disease-2019 ("COVID-19") while incarcerated.1 He posits that, if [*3] he were "to catch the virus, it [would] most definitely be from a correctional officer while incarcerated." See, e.g., Mot., Doc. No. 40, Gulley v. Ogando, et al., 19-cv-612, at 1-2. The defendants filed objections on April 1, 2020.
II. Discussion
The defendants first argue that I cannot order Gulley's release because the cases at bar are civil rights actions pursuant to 42 U.S.C § 1983. I agree.
As a state prisoner seeking relief in federal court, Gulley can challenge the duration of his confinement only by petition for writ of habeas.2 Preiser v. Rodriguez, 411 U.S. 475, 487-90,
1 Because the motions filed in each case are identical, and because my analysis of the issues presented overlaps across the cases, this opinion addresses each motion.
2 I note that, as amended by the First Step Act of 2019, 18 U.S.C. § 3582 authorizes courts to reduce a term of imprisonment if, after considering the factors set forth in section 3553(a), it concludes, in relevant part, that "extraordinary and compelling reasons warrant such a reduction" and that "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."

Even if Gulley was not barred from requesting release in the present actions, his motion for a preliminary injunction would nonetheless fail on the merits. "A party seeking a preliminary injunction ordinarily must show: (1) a likelihood [*4] of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant's favor." Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008). "When the movant seeks a 'mandatory' injunction—that is, as in this case, an injunction that will alter rather than maintain the status quo—she must meet the more rigorous standard of demonstrating a 'clear' or 'substantial' likelihood of success on the merits." Id. (internal citations omitted).
Significantly, "[t]o prevail on a motion for preliminary injunctive relief, the moving party must establish a relationship between the injury claimed in the motion and the conduct giving rise to the complaint." Vega v. Lantz, 2006 U.S. Dist. LEXIS 65477, 2006 WL 2642416, at *2 (D. Conn. Sept. 14, 2006) (internal citations omitted); see also Taylor v. Rowland, 2004 U.S. Dist. LEXIS 1556, 2004 WL 231453, at *2-*3 (D. Conn. Feb. 2, 2004) (concluding that a motion for preliminary injunctive relief was not proper because it was "unrelated to the issues in the amended complaint"). That is because preliminary injunctive relief is intended to "prevent irreparable harm until the court has an opportunity to rule on the lawsuits merits." Taylor, 2004 U.S. Dist. LEXIS 1556, 2004 WL 231453, at *2 (citing Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)).
Further, the defendants must be capable of providing the relief sought [*5] by the plaintiff. Wells v. Jacobs, 2004 U.S. Dist. LEXIS 30854, 2004 WL 1146028, at *2 (W.D.N.Y. Mar. 22,
18 U.S.C. § 3582(c)(1)(A). That relief, however, is available only to individuals incarcerated for federal offenses and thus cannot be granted here. United States v. Rivernider, 2020 U.S. Dist. LEXIS 21292, 2020 WL 597393, at *2 (D. Conn. Feb. 7, 2020) ("The First Step Act . . . modified the compassionate release statute to enable a federal prisoner to petition the sentencing court for a reduction in his sentence.") (emphasis added).

Case 2:20-cv-11053-MAG-RSW ECF No. 27-29 filed 05/12/20 PageID.1742 PaPgaege43 ooff34
2020 U.S. Dist. LEXIS 64193, *5
2004) (denying motion for temporary restraining order and preliminary injunction because none of the defendants could provide the plaintiff with the requested relief).
Here, the injury that Gulley now asserts—his continued confinement during the COVID-19 pandemic—is entirely unrelated to the conduct giving rise to his section 1983 complaints, which assert claims of excessive force, deliberate indifference, and retaliation, and challenge specific actions by various correctional staff and nurses. Gulley v. Mulligan, et al., 18-cv-858 (D. Conn. May 22, 2018) (asserting Eighth Amendment excessive force and deliberate indifference claims); Gulley v. Ogando, et al., 19-cv-612 (D. Conn. April 23, 2019) (asserting First Amendment retaliation and Eighth Amendment deliberate indifference and excessive force claims); Gulley v. Limmer, et al., 19-cv-941 (D. Conn. June 7, 2018) (asserting Eighth Amendment excessive force claim); Gulley v. Lizon, et al., 19-cv-310 (D. Conn. March 4, 2019) (asserting Eighth Amendment excessive force and deliberate indifference claims).
Moreover, as the defendants argue, they would not have the authority to release Gulley from prison even if I were to direct them to do so. Although Gulley claims that "the Commissioner of Correction has the authority [*6] to discharge, transfer or detain any inmate in the custody of corrections," see, e.g., 19-cv-612, doc. no. 40, I do not have personal jurisdiction over the Commissioner because the Commissioner is not a defendant and has not been served in any of the actions at bar. Wells, 2004 U.S. Dist. LEXIS 30854, 2004 WL 1146028, at *2 (W.D.N.Y. Mar. 22, 2004).
III. Conclusion
For all the foregoing reasons, I must deny Gulley's motions for release. Doc. No. 38, Gulley, 18-cv-858; Doc. No. 40, Gulley, 19-cv-612; Doc. No. 38, Gulley, 19-cv-941; Doc. No. 33, Gulley, 19-cv-310.
So ordered.
Dated at Bridgeport, Connecticut, this 13th day of April 2020.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
End of Document

 
 Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1747 Page 1 of 44

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, et. al,
Plaintiffs,
-v-
WILLIS CHAPMAN, et. al,
Defendants.
Daniel Manville (P39731) Attorney for Plaintiffs MSU College of Law Civil Rights Clinic P.O. Box 1570 East Lansing, MI 48823 (517) 432-6866 daniel.manville@law.msu.edu
Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 (313) 965-5555 kevin@ecllawfirm.com

Case No. 2:20-cv-11053
Hon. Mark A. Goldsmith
Ex. Mag. R. Steven Whalen
Kevin J. O’Dowd (39383) Kristin M. Heyse (P64353) Scott A. Mertens (P60069) Cori E. Barkman (P61470) Allan J. Soros (P43702) Assistant Attorneys General Attorneys for Defendants P.O. Box 30217 Lansing, MI 48909 (517) 335-3055 odowdk@michigan.gov

PLAINTIFFS’ REPLY BRIEF TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR AN EMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1748 Page 2 of 44
TABLE OF CONTENTS
Table of Contents…………………………………………………………………..ii
Index of Authorities……………………………………………………….………iii
Concise Statement of Issues Presented……………………………………………iv
Introduction………………………………………………………………………..1
Supplemental Statement of Facts…………………………………………….…..1 I. Introduction……………………………………………………………1 II. Declarations of Experts A. Supplemental Declaration of Dr. Adam Lauring…………………..2 B. Declaration of Paul Draus………………………………………….3 III. Summaries of Statement of Facts……………………………………..3 A. Robert G. Cotton Correctional Facility (JCF) (Exhibit 2) ………..4 B. Parnall Correctional Facility (SMT) (Exhibit 3) ………………….5 C. Macomb Correctional Facility (MRF) (Exhibit 4) ………………..6 D. Lakeland Correctional Facility (LCF) (Exhibit 5) ……………….7
ARGUMENTS…………………………………………………………………..8 I. Contrary To Defendants’ Argument [I., PageID.1245-47], Plaintiffs Have Established A Factul And Legal Basis For This Court To Grant An Injunction………………………………………………………………8 II. Contrary To Defendants’ Argument [A.1, PageID.1247-50], Plaintiffs’ Claims For Injunctive Relief Is Not Barred By The Eleventh Amendment……………………………………………………………10 III. Contrary To Defendants’ Argument [I.A.1, PageID.1248-50], Penhurst Is Not Applicable On The Facts In This Lawsuit………………………...12 IV. Contrary To Defendants’ Argument [I.A.2, PageID.1250-55], The Grievance Process Was “Unavailable” To The Plaintiffs……………………………………………………………….14 V. Contrary To Defendants’ Argument [I.A.3, PageID.1256-62], This Court Can Issue An Injunction If Defendants Is Subjecting Plaintiffs To Unconstitutional Conditions……………………………………………20 VI. Based On The Jurisdictional Pleadings In The Complaint, This Court Can’t Issue An Order For The Release Of Prisoners [I.A.4, PageID.1262-64] …………………………………………………………………………..33
ii

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VII. Contrary To Defendants’ Argument [B., PageID.1265-66], Plaintiffs Has Shown That They Will Suffer Irreparable Injury Absent This Court’s Intervention………………………………………………………….….33
VIII. Contrary To Defendants’ Argument [C., ECF No. PageID.1266-69], It Is In The Public Interest To Limit The Spread Of Covid-19 In Prisons…………………………………………………………….…..35
IX. Conclusion……………………………………………………………37 .
INDEX OF AUTHORITIES

Cases

Page

Arias v. Decker, 2020 WL 2306565, at *11 (S.D.N.Y. May 8, 2020)…………36 Awshana v. Adducci, ___F. Supp. 3d___, 2020 WL 1808906, at *8 (E.D. Mich. Apr. 9, 2020) …………………………30 Banks v. Booth, 2020 WL 1914896 at *8 (D.D.C. Apr. 19, 2020) ……29, 30, 35 Basank v. Decker, 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020) ….30, 35 Beerheide v. Zavaras, 997 F. Supp. 1405, 1410 (D. Colo. 1998) 34 Brown v Plata, 563 US 493, 510-11(2011) ………………………………12, 21 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010) ………29 Cummings v. Klee, 410 F. Supp. 3d 837, 844 (E.D. Mich. 2019) ……………27 Diaz v. Michigan Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2013)…………8 Does 8-10 v. Snyder, 945 F.3d 951, 963 (6th Cir. 2019)…………………….16 Farmer v. Brennan, 511 U.S. 825, 834 (1994)………………………………22 Fiegal v. Bouchard, 89 Fed.Appx. 970, 971 (6th Cir. 2004)………………..18 Fofana v. Albence, ___F. Supp. 3d___, 2020 WL 1873307, at *9 (E.D. Mich. Apr. 15, 2020)………………………30
iii

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1750 Page 4 of 44
Foster v. Gueory, 655 F.2d 1319, 1321–22 (D.C. Cir. 1981)………………..19 Fraihat v. U.S. Imm. and Customs Enforcement,
5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020……………37 G & V Lounge, Inc. v. Michigan Liquor Control Com’n, 23 F.3d 1071, 1079 (6th Cir. 1994)………………………………………….36 Hartman v. Duffey, 88 F.3d 1232, 1235 (D.C. Cir. 1996)…………………...20 Hattie v. Hallock, 8 F.Supp.2d 685, 689 (N.D. Ohio 1998)………………….20 Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996)…………………………10 Jones v. El v Berge, 164 F. Supp. 2d 1096, 1123 (W.D. Wis, 2001)………..34 Jones v. Texas Dep’t of Criminal Justice, 880 F.3d 756, 760 (5th Cir. 2018)……………………………………………34 Jones v. Wolf, ___F. Supp. 3d___,
2020 WL 1643857, at *12 (W.D.N.Y. Apr. 2, 2020)………………..30 Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981)………………………..10 Malam v. Adducci, 2020 WL 2468481 (E.D. Mich. May 12, 2020)……26, 30 Martinez-Brooks v. Easter, 2020 WL 2405350, at *21–22 (D. Conn. May 12, 2020)…………………..25 Mays v. Dart, 2020 WL 1987007, at *34 (N.D. Ill. Apr. 27, 2020)…………35 McCarthy v. Place, 313 Fed.Appx. 810, 814 (6th Cir. 2008)………………..27 Metro. Detroit Plumbing & Mech. Contractors Ass’n v. Dep't of Health, Ed. & Welfare, 418 F. Supp. 585, 586 (E.D. Mich. 1976)…………………………..34 Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir. 2000)……………………….9 Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369 (1940)………..29
iv

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Ne. Ohio Coal. v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006)…………….9 Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016)……………..29 Peoples v. Bauman, 2017 WL 7050280, at *4 (6th Cir. Sept. 5, 2017)……….18 Pugh v. Caruso, 2008 WL 1868990, at *1–2 (W.D. Mich. Apr. 24, 2008)…...18 Refunjol v. Adducci, 2020 WL 1983077, at *5 (S.D. Ohio Apr. 27, 2020)…...37 Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018)………………………….31 Rose v. Blake,136 S.Ct. 1850, 1858 (2016)…………………………………16, 17 S. Galzer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017)………………………………………………..9 Salami v. Rewerts, 2020 WL 1316510, at *6 (W.D. Mich. Mar. 20, 2020)…10, 20 Surles v. Andison, 678 F.3d 452, 457 (6th Cir. 2012)……………………………15 Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)……………..29 United States v. Frost,
2020 WL 1899561, at *3 (E.D. Mich. Apr. 17, 2020)……………………26 Verizon Maryland, Inc., 535 U.S. 635, 645 (2002)………………………..8, 13, 20 Virginia Office for Prot. & Advocacy v. Stewart,
563 U.S. 247, 255 (2011)………………………………………………….8 Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989)…………………..9 Wilson v. Williams, – F.Supp.3d --,
2020 WL 1940882 at *14 (N.D. Ohio, April 22, 2020)………………32, 35 Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989)…………………9 Zacdvydas v. Davis, 533 U.S. 678, 697 (2001)…………………………………19
v

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Zaya v. Adducci, 2020 WL 2487490, at *2 (E.D. Mich. May 14, 2020)……….36 Zynda v Arwood, 175 F Supp 3d 791, 800 (E.D. Mich. 2016)………………….12 Statutue: 42 U.S.C. § 1997e(a)……………………………………………………………14 Other Authorities: John Harrison, Ex Parte Young, 60 STAN. L. REV. 989, 1013 n.99 (2008)……..13
CONCISE STATEMENT OF ISSUE PRESENTED Where MDOC’s has not implemented an effective “social distancing” and “testing” procedures, should this Court grant the request for a TRO and/or preliminary injunction?
vi

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1753 Page 7 of 44
SUPPLEMENTAL STATEMENT OF FACTS. I. Introduction
Plaintiffs are seeking a temporary restraining order and permanent injunction immediately as to the issue of “social positioning” and “testing” because it is their position Defendants provided very little evidence that meaningful steps are being taken to implement effective “social distancing” and “testing.” As to the other issues raised in the complaint (ECF No. 1) and the motion (ECF No.7), this Court should find that Plaintiffs have stated a cause of action, issue an expedited discovery schedule as to those issues, refer this matter to the Magistrate Judge for a settlement conference as to theoe issues, and, if it cannot be settled, set an evidentiary hearing.1 II. Declaration of Experts:
A. Supplemental Declaration of Dr. Adam Lauring (Exhbit 1). Dr. Lauring first provided a declaration in this lawsuit that is attached to the motion for temporary restraining order and permanent injunction (ECF No. 22-26, PageID.1035-49). Based on the filing of the Response and some of its attachments, he has provided a Supplemental Declaration, see Ex. 1. In this Declaration it is
1 After Plaintiffs’ counsel reviewed some reports provided to the Legislature by the MDOC, it became apparent that there are probably another 3. if not 4, prisons that are closed which could be opened. The total single room available in these facilities is probably over 2,000, if not 2,500, beds (ECF 1, PageID.39, para. 10). Plaintiffs’ counsel suggested opening either some or all of these prisons mentioned in the complaint and use their empty cells. There is likely a total of 4,000 – 5,000 cells that could be brought back online with the help of the National Guards.
1

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against emphasized that “social distancing” is considered by the CDC as “‘the
cornerstone” for infection control in these [prison] settings.” He goes on to provide
his expert’s opinion as to “testing” and that the process MDOC is using will not be
sufficient to bring the COVID-19 virus under control, especially since MDOC will
not test its guards and staff.
A system of testing inmates just once will likely be insufficient to control an outbreak in a correctional facility. Absent repeat testing of inmates and/or testing of all guards and staff, it is possible for the virus to be re-introduced into a prison and spread among inmates and staff, regardless of the prior test result. A testing-based strategy for infection control must include testing of all guards and staff with likely repeat testing of inmates, guards, and staff. [Para. 2]
Dr. Lauring then goes on to explain why cohorting will only work if certain
procedures are applied. Nowhere in the Response or attached affidavits, there
to, do Defendants describe a medically sufficient methods for cohorting.
As the incubation period for COVID19 is approximately 5-7 days, testing of individuals exposed to a known case should be performed between 7-14 days after exposure, or with the onset of symptoms (https://www.idsociety.org/practice-guideline/covid-19-guidelinediagnostics/ ). Exposed individuals should be separated for 14 days before returning to the general population. [Para. 4]
Effective cohorting requires testing of staff and potentially having dedicated staff for “test positive” and “test negative” populations. If staff move back and forth between these groups, there is the potential for spread of the virus from the positive to the negative group. [Para. 5]
Dr. Luaring then discusses the shortcomings of antibody testing in the
management of COVID-19 (Paragraph 7). It seems that MDOC is doing such
2

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testing now and likely will seek to implement a system that is not medically approved.
Finally, the last two paragraphs of Dr. Lauring’s declaration relates to statements made by Dr. McIntyre, the Chief Medical Officer for MDOC ([ECF No. 27-7] paragraphs 48-49), that lacks factual support and seems to be nothing more than uneducated statement to cover for MDOC.
B. Declaration of Paul Draus, PhD PhD Draus has worked as an Epidemiologist for a number of years. See attached Ex. 30. He is also familiar with the Michigan’s prison system. In this Declaration, PhD Draus discusses the extensive need for testing that is required if the COVID-19 virus is to be contained. One of his recommendations is the testing of all guards if a successful containment plan is to be implemented. It is his opinion that testing only symptomatic individuals or suspected cases is not sufficient. He has also suggested that if social distancing cannot be achieved then universal testing must be implemented. He confirms that without ongoing testing, the prisons will not have a system that will protect inmates, guards, and the communities. III. Summaries of Statement of Facts
3

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Plaintiffs will provide a condense summary of what the Warden from each of the four prisons are claiming that they are engaged in to control the COVID-19 pandemic and affidavits from inmates saying this is not factual or accurate.
A. Robert G. Cotton Correctional Facility (JCF) (Exhibit 2) Social distancing at JCF is an oxymoron (Ex. 2 has attached numerous
affidavits of prisoners confined at JCF)). Whether inmates are eating, recreating, sleeping, communicating with those on the outside, moving about the unit, or any other activity, they are within six feet of at least one other inmate, usually many more. While Defendant-Nagy and his staff at JCF have taken some cursory actions to suggest inmates should social distance, the obvious realities of life in prison prove that much more action is needed: the conditions are crowded, and six feet of separation from others is a mythical concept, nothing more (Ex. 2, Affidavits of inmates confined in pole barns at JCF). The social distancing’s policy written by MDOC Chief Medical Officer does not provide for social isolation if you are confined in a pole barn or in a two-person cell (ECF No. 27-5, PageID.1318).
Warden Nagy has not created a medical plan for continuing testing or inmates, and the testing of guards. As Dr. Lauring has testified, an effective testing plan must be created. Ex. 1. Cotton is going to test prisoners for anti-bodies, which is not a medically approved method (Ex. 1, Lauring). Inmates are shuffled around like with guesswork testing that disregards the grave risk to his health.
4

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The cleaning methods and supplies are not much better at Cotton. Each unit shares a single mop or broom. No individual “cubes” are given cleaning supplies. Inmates can get individual cleaning supplies only through one process: they take a “rag” up to the officers’ station, who then sprays the rag with the bleach mix (Ex. 2). Plaintiffs have and are “complain[ing] or express[ing] concern over not having adequate supply of hand soap, cleaning supplies, or PPE” and yet Defendant-Nagy fails to address those complaints in this lawsuit. (ECF No. 27-15, PageID.1535 at ¶ 24).
B. Parnall Correctional Facility (SMT) (Exhibit 3) In her affidavit, Defendant Braman acknowledges that “…the physical structure and layout of SMT does not always allow for maintaining a six-foot social distancing at all times (as recommend by the CDC)….” (Id., PageID. 1512 ¶18(c)).2 Even with this acknowledgement, this Defendant, and the Director Washington, have not created a plan for social distancing. Dr. Lauring stated that “social distancing” is considered by the CDC as “‘the cornerstone” for infection control in these [prison] settings.” Ex. 1. Is Plaintiffs required to ask how many deaths are needed before MDOC will open these other cellblocks and housing units.
2 After stating this, Defendant Braman states that contradicts herself, by stated that I “receive[s] daily update from custody staff through their chain of command that… social distancing is being enforced….” (Id. at PageID.1509 ¶ 15). Why the double-talk?
5

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Plaintiffs have presented numerous affidavits that there is no social distancing on the yard and at the chow hall when sitting at tables. It seems that social distancing is only practiced by the officers Ex. 5.
C. Macomb Correctional Facility (MRF) (Exhibit 4) Defendant Warden Chapman is in charge of MRF and states it has seven housing units, which can hold a capacity of one thousand four hundred and sixteen (“1,416”) inmates (ECF No. 27-16, PageID.1574-75 at ¶¶ 3;7). Most inmates are housed in two person cells, with sixteen inmates now housed in the day room common area. (Ex. 4, Affidavits from prisoners confined at MRF). They all have been given two masks, report intermittent cleaning and social distancing practices, and almost none have been tested (Ex. 4). Inmates confined at MRF states that there is little, if any, social distancing in the units (Ex. 4). The inmates are not provided adequate supplies (id.). The bathrooms and other common areas are not cleaned regularly (id). MRF is also primarily testing only those with major symptoms, so most inmates have not been tested. (See Ex. 4-5, Affidavit of Shawn Hendrix at ¶ 1; id., Ex. 4-11, Affidavit of David Lyons at ¶ 3). Shockingly, no inmates who answered the questionnaire reported that they had been tested (Ex. 4). The infectious disease doctors warn that these measures are insufficient because of the virus’s asymptomatic spread. (Ex. 1, Lauring , at ¶¶ 2-3) (advising “repeat testing of inmates
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and/or testing of all guards and staff” because it is “increasingly recognized that many individuals infected with SARS-CoV-2 may be asymptomatic or have mild symptoms only”).
D. Lakeland Correctional Facility (LCF) (Exhibit 5) Defendant Morrison states that “[s]ocial distancing measures were and continue to be implemented throughout the facility… requiring that there be a distance of at least six feet between all individuals, including…chow lines… to the fullest extent possible.”3 (ECF No. 27-13, PageID.1466, PageID.1472-73 ¶ 9(c)). Further, “[w]here six feet distancing cannot be completely achieved in certain areas (such as in pole barns with cubicle living arrangements), we have modified those living spaces to the extend feasible.”4 (Id. at ¶ 9(d)). Prisoners from LCF have provided affidavits that there is no attempt to create social distancing in the pole barns or any place at LCF (Ex. 5-2 through -14). Even though Lakeland is now feeding the prisoners in the pole barns, there is no social distancing because there is no space in these pole barns for social distancing.
It is known that at LCF, out of a prison population of 1428 inmates that 792 tested positive. Dr. Lauring testified that MDOC does not have a retesting
3 All of the Defendants have used the term “to the extend possible.” The use of this terms in the affidavit to explain what they should be doing but are not is just that – a smoke screen. 4 Nowhere in Morrison’s affidavit or the Response is it explained how the pole barns have been modified so that social distancing can be achieved.
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program to test both the inmates and guards so that to stop the spread of COVID19 is impossible. MDOC is engaged in antibody testing even though it is not something recommended by the medical community and such testing can result in a high percentage of false positive (Ex. 1, Lauring), which can cause further spreading of the COVID-19 virus.
ARGUMENTS I. CONTRARY TO DEFENDANTS’ ARGUMENT [I.,
PageID.1245-47], PLAINTIFFS HAVE ESTABLISHED A FACTUL AND LEGAL BASIS FOR THIS COURT TO GRANT AN INJUNCTION.5 The United States Supreme Court precedent indicates this Court has jurisdiction under the Eleventh Amendment’s Ex Parte Young exception to hear this § 1983 claim to vindicate Plaintiffs’ Eighth Amendment rights. See Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (describing legal “fiction” of Ex Parte Young doctrine, which “when a federal court commands a state official to do nothing more than refrain from violating federal law, [she] is not the State for sovereign-immunity purposes”). Plaintiffs’ complaint clearly alleges an ongoing violation of the Eighth Amendment that seeks prospective relief. That is all the Eleventh Amendment and Ex Parte Young require. Verizon Maryland, Inc., 535 U.S. 635, 645 (2002); Diaz v. Michigan Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2013)
5 Plaintiffs’ Reply will address each argument raised in Defendants’ Response in the same order as presented therein.
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(noting, “[i]n order to fall within the Ex parte Young exception, a claim must seek prospective relief to end a continuing violation of federal law”). Defendants’ policies are not the constitutional source of Plaintiffs’ claim, but rather the Eighth Amendment is, using § 1983 as a vehicle for enforcing those federal, constitutional rights. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989) (noting that the “principle purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims”).
In seeking an injunction, Plaintiffs must demonstrate to this Court that they meet four prongs criteria of such. Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir. 2000). A court has discretion whether to issue an injunction or not. See Ne. Ohio Coal. v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). In exercising that discretion, this Court
must consider whether plaintiff has established the following elements: (1) a strong or substantial likelihood of success on the merits; (2) the likelihood of irreparable injury if the preliminary injunction does not issue; (3) the absence of harm to other parties; and (4) the protection of the public interest by issuance of the injunction. Nader, supra. These factors are to be balanced by this Court and are “not prerequisites to be met.” S. Galzer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017). Generally, “[d]ecisions concerning prison security are vested in prison officials, in the absence of a constitutional violation.” Salami v. Rewerts, 1:20-CV-
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21, 2020 WL 1316510, at *6 (W.D. Mich. Mar. 20, 2020), See Ex. 16. As demonstrated below and in the motion for a temporary restraining order, Plaintiffs have established an Eighth Amendment violation in the failure of these Defendants to protect the Plaintiffs from COVID-19.
CONTRARY TO DEFENDANTS’ ARGUMENT [A.1, PageID.1247-50], PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF IS NOT BARRED BY THE ELEVENTH AMENDMENT. Defendants argue that Plaintiffs claims are barred by the Eleventh Amendment because they are asking the Court to enforce Michigan laws within the Michigan prisons (ECF No. 27, PageID.1247-50). Plaintiffs seek no such thing and Defendants failed to cite to a section of the Complaint [ECF No. 1] or the motion for an injunction [ECF No. 22] where such relief is requested. Plaintiffs are asking the Court to enforce the Eighth Amendment that has long guaranteed that state prisoners have a right to be protected from highly contagious and deadly disease [see ECF No. 1, PageID.53, Conclusion, B., “Find that Defendants have violated the Eighth Amendment in providing medical care as to the COVID-19 virus….”]. The federal courts have long recognized that prison officials have an Eighth Amendment duty to protect inmates from exposure to communicable disease. See, e.g., Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect inmates from infectious disease.”); Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981) (“[F]ailure to adequately screen newly
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arrived inmates for communicable disease” represents an “(omission) sufficiently
harmful to evidence deliberate indifference to serious medical needs” (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976))); id. (“[I]t is unnecessary to require
evidence that an infectious disease has actually spread in an overcrowded jail before
issuing a remedy.”).6
The federal courts cannot abdicate their responsibility to enforce the Eighth
Amendment simply because state officials claim that they have policies that address
the serious medical issues facing their prison populations (especially when those
policies are not being implemented on a wide scale basis),7 or simply because prison
officials choose to take certain measures to address the problems (especially when
the measures chosen are largely ineffective).8 As the Supreme Court explained:
To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to provide sustenance for inmates “may actually produce physical 'torture or a lingering death. . . . Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. . . . If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U.S. 678, 687, n. 9, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). Courts must be sensitive to the State's interest in punishment, deterrence, and rehabilitation, as well as the need for
6 See, e.g., Prisons and Jails Change Policies to Address Coronavirus Threat Behind Bars, NPR, available at https://www.npr.org/2020/03/23/818581064/prisons-and-jails-change-policies-toaddress-coronavirus-threat-behind-bars (March 23, 2020) (stating that “jails and prisons are considered perfect incubators for the coronavirus to potentially take hold”). 7 See Exhibits 2, 3 4 and 5, for a discussion of the practices at each of the prisons where a Defendant is a warden. 8 The experts of Plaintiffs have file Supplemental Expert Reports, Plaintiffs’ Exhibit
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deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals. See Bell v. Wolfish, 441 U.S. 520, 547-548, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). Courts nevertheless must not shrink from their obligation to “enforce the constitutional rights of all 'persons,' including prisoners.” Cruz v. Beto, 405 U.S. 319, 321, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972) (per curiam). Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.
Brown v Plata, 563 US 493, 510-11(2011) (emphasis added).
In this case, Plaintiffs are asking the Court to impose various prospective
measures, injunctive relief that does not offend the Eleventh Amendment.
[T]he Eleventh Amendment does not prohibit federal courts from issuing injunctions ordering prospective relief against state officials to prevent future constitutional violations. Barton v. Summers, 293 F.3d 944, 948 (2002) (citing Ex parte Young, 209 U.S. 123, 159-160, 28 S. Ct. 441, 52 L. Ed. 714 (1908)). Even an injunction that would require the state to spend substantial sums of money may not be barred, so long as the injunction is prospective. See Nelson v. Miller, 170 F.3d 641, 646 (1999).
Zynda v Arwood, 175 F Supp 3d 791, 800 (E.D. Mich. 2016).
Here, Plaintiffs are asking the Court to order prison officials to ensure social
distancing, testing all prisoners and guards, separate infected populations from
uninfected populations, and ensure prisoners and guards have medically adequate
PPE and other cleaning supplies. Since all of Plaintiffs’ claims for relief are
prospective, their claims are not barred by the Eleventh Amendment.
CONTRARY TO DEFENDANTS’ ARGUMENT [I.A.1, PAGEID.1248-50], PENHURST IS NOT APPLICABLE ON THE FACTS IN THIS LAWSUIT.
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Defendants’ argues that Plaintiffs’ claims have a Pennhurst problem because they are asking this Court to order the Defendants to comply with prison policy. ECF No. 27, PageID.1249 (citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 103-23 (1984)). Nowhere in the Complaint or the injunctive motion do the Plaintiffs make such a request. Plaintiffs’ counsel does claim that the Defendants were not “applying” the prison policy correctly or at all prisons around Michigan. “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002) (quotation and citation omitted); Diaz v. Michigan Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2013) (noting “[i]n order to fall within the Ex parte Young exception, a claim must seek prospective relief to end a continuing violation of federal law”); John Harrison, Ex Parte Young, 60 STAN. L. REV. 989, 1013 n.99 (2008) (explaining doctrine works like the “wellpleaded complaint rule”).
A review of Plaintiffs’ Complaint show that they alleged an ongoing Eighth Amendment violation and seek prospective relief. In the Complaint, Plaintiffs claim that the manner in which Defendants have sought to implement social distancing and “testing” have created a dangerous situation for each of them. ECF No. 1, PageID.5.,
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paragraphs 4-6. Prisoners are dying and even though that are recovering from COVID-19 can have long-term medical complications.
As to each Plaintiffs, the complaints set forth their factual allegation as to the constitutional violations that led up to the lawsuit and what has continued in many, many aspects as of the filing of this Reply. [ECF No. 1, PageID.7-17; PageID.3639, “Factual Allegation in Michigan Prisons”; PageID.39-41, “Facts from Other Inmates”.] The “Conclusion” requests that this Court finds an Eight Amendment violation and then issue an injunction with some suggestions as to what should be included in that order, such as social distancing of at least six feet and testing (ECF No. 1, PageID.53-54).
CONTRARY TO DEFENDANTS’ ARGUMENT [I.A.2, PageID.1250-55], THE GRIEVANCE PROCESS WAS “UNAVAILABLE” TO THE PLAINTIFFS. Pursuant to the Prison Litigation Reform Act (PLRA), MDOC’s inmates are required to exhaust the available prison grievance process prior to the filing of a lawsuit. 42 U.S.C. § 1997e(a). In seeking dismissal of this lawsuit based on the failure to exhaust, Defendants have the burden of raising the affirmative defendant of failure to exhaust and to prove it. Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (“Non-exhaustion is an affirmative defense under the PLRA, with the burden of proof falling on the Bureau.”); Does 8-10 v. Snyder, 945 F.3d 951, 961 (6th Cir. 2019) (“Because the Defendants bear the burden of proof on exhaustion, they bear
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an ‘initial summary judgment burden [that] is higher in that [they] must show that the record contains evidence satisfying [their] burden of persuasion’ and ‘that no reasonable jury would be free to disbelieve it.’” (citation omitted)).9 Defendant never attached the grievances of Plaintiffs to their Response so that the Court could evaluate whether what is being claimed by Counsel is factual. As discussed infra, Defendants have failed to meet their burden of proof that Plaintiffs failed to exhaust, and, therefore their request for dismissal based on failure to exhaust must be denied.
In their Response, Defendant conceded the following as to the grievances filed by the Plaintiffs. First, Plaintiff Seegmiller “filed one COID-19 related grievance … which was rejected because the proper procedure is to address the issue at the Warden’s Forum, and it has not been appealed through Step III.” ECF No. 27, pageID.1253. Second, Plaintiff Reeves “filed one COVID-19 grievance” which was rejected for the same reason as the rejection of Seegmiller’s grievance.10 Id., PageID.1253-54. Third, Defendant claims that the two grievances filed by Plaintiff Abrams were “too general” but does not tell this Court why they were too general.11
9 Surles v. Andison, 678 F.3d 452, 457 (6th Cir. 2012) (concluding that the plaintiff’s failure to provide enough evidence to demonstrate that he exhausted his administrative remedies did “not mean that Defendants have met their[ ]” burden.). 10 Because Defendants did not attach the grievances filed by Plaintiffs, Counsel for Plaintiffs asked a couple of the Plaintiffs to type into a JPay the actual response and sent it to Counsel. Plaintiff Reeves’ grievance response from Step 1 is attached as Ex.10. 11 Plaintiff Abrams typed the response to one of the grievances in a JPay and it is attached as Ex. 9. The response shows that the grievance was rejected as “Non-grievable issue….” The second step response says that “Per PD 03.02.130 duplicate issue grievances will not be processed.” Defendants made the grievance process unavailable to Plaintiff Abrams.
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Id., PageID.1922. Fourth, Defendant claims that Plaintiff Heard filed two grievances regarding COVID-19 but were “rejected as being too general and they were not appealed through Step III.”12 Id., PageID.1253. Fifth, Plaintiff Campbell filed two grievances and Defendant only states that they are still pending. Id. Plaintiffs’ counsel received an affidavit from a prisoner who grieved the treatment he received that resulted in his testing positive for COVID-19. The prison grievance coordinator told him he “couldn’t put any grievances in about covid 19 issues.” See Ex. 8.
In Rose v. Blake, the United States Supreme Court recognized that exhaustion is not required if the grievance process is not available. 136 S.Ct. 1850, 1858 (2016). In defining when a grievance process was not available, the Court explained that whether remedies are “available” depends on whether they are “capable of use for the accomplishment of a purpose,” “is accessible or may be obtained . . . to obtain ‘some relief for the action complained of.’” Id. at 1858-59 (citing Booth v. Churner, 532 U.S. 731, 738 (2001)). See also Does 8-10 v. Snyder, 945 F.3d 951, 963 (6th Cir. 2019) (holding “MDOC’s PREA grievance process is, in practice, unavailable”). As discussed infra, the manner that the grievance process is operated makes it unavailable for some of the Plaintiffs.
12 Based on footnote, supra, this Court cannot be sure whether Heard’s grievances were rejected for “being too general” or for some other reason.
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The Rose Court described three ways an administrative grievance process would be “unavailable” for purposes of the exhaustion requirement. The first way is when a prison officer responds that their office does not have the authority to consider such a claim, “(despite what regulations or guidance materials may promise) it operates as a simple dead end -with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859. The second way that a grievance remedy might become unavailable is when “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. An opaqueness problem arises where “some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it. . . . When rules are so confusing that ... no reasonable prisoner can use them, then they’re no longer available.” Id. The third way is when prison officials threaten, inhibit, or mislead a prisoner from following the proper grievance channels. Id. at 1860 n.3.
Plaintiffs will focus on the first way listed in Ross. First, MDOC’s grievance policy does not allow a prisoner to grieve the “content of the policy or procedure except as it was specifically applied to the grievant.”13 Ex. 12, Grievance Policy, PD
13 This PD goes on to state that if the inmate wants to challenge the content of a policy, they may submit that concern to the Warden’s Form as provide in PD 04.01.105….” Id. A review of PD 04.01.150 shows that only elected members of the forum can submit issues to be considered by the warden forum. Ex. 11, Pars. J, K, and N, Prisoner Housing Unit Representatives/Warden’s Forum. Paragraph K does not mandate that an elected representative to the warden’s forum submit a request from an inmate that they represent, such as one of the named Plaintiffs, to the warden’s forum. Therefore, MDOC has made the warden’s forum / grievance process unavailable to the Plaintiffs.
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03.02.130, Para. J.8. This PD states, “[a] grievance is to be rejected by the Grievance

Coordinator if: *** 8. The prisoner is grieving content of the policy or procedure

except as it was specifically applied to the grievant.” Courts have ruled that such

restriction makes the grievance process unavailable.

The grievance policy expressly prohibits prisoners from filing

grievances challenging the content of a policy. See MICH. DEP'T OF

CORR., Policy Directive 03.02.130, ¶ E (“A grievant may not grieve

the content of policy or procedure; such grievances shall be rejected

by the grievance coordinator.”). See also Harbin-Bey v. Rutter, 420

F.3d 571, 581 (6th Cir.2005). Michigan prisoners cannot grieve the

content of a policy. As a consequence, the grievance policy was not

an available remedy to Plaintiff to resolve his claims against

Defendants concerning the content of the policy. See 42 U.S.C. §

1997e(a)

(requiring

exhaustion

of

“available”

remedies); Woodford, 126 S.Ct. at 2386; Figel v. Bouchard, 89 F.

App'x 970, 971 (6th Cir. 2004) (prisoner may not be required to

exhaust administrative remedies regarding non-grievable issues).

Defendants' motion for summary judgment therefore should be denied

with respect to Plaintiff's challenges to the content of the prison

policies.

Pugh v. Caruso, 1:06-CV-138, 2008 WL 1868990, at *1–2 (W.D. Mich. Apr. 24,

2008), id. at *7, Order Adopting Report and Recommendation, Id. at 7, see Ex. 13.

In Fiegal v. Bouchard, prison officials rejected the prisoner’s grievance as being

non-grievable and the district court dismissal the lawsuit for failure to exhaust. On

appeal, the Sixth Circuit held when the prison rejects a grievance as being non-

grievable, that a prisoner’s “complaint was not subject to dismissal for failure to

exhaust administrative remedies.” 89 Fed.Appx. 970, 971 (6th Cir. 2004); see also

Peoples v. Bauman, 16-2096, 2017 WL 7050280, at *4 (6th Cir. Sept. 5, 2017)

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(“Peoples' claims in this grievance were not subject to dismissal for failure to exhaust administrative remedies.” (citing Fiegal, supra)), see Ex. 28.
Defendants argue that if the inmate wants to challenge the content of a policy, they “may submit that concern to the Warden’s Form as provide in PD 04.01.105….”14 See Ex. 11. A review of PD 04.01.150 shows that only elected members of the forum can submit issues to be considered by the warden forum. See attached Exhibit 16, PD 04.01.150, Paras. J, K, and N, Prisoner Housing Unit Representatives / Warden’s Forum. Since Plaintiffs are not elected members of the warden’s forum, they have no means to force the warden’s forum to consider a challenge to the content of a policy that is applied to them. This Court should find that Plaintiffs have exhausted all “available” remedies in compliance with the PLRA.
Courts have held that in a class action not every named Plaintiff has to exhaust the grievance process. See Foster v. Gueory, 655 F.2d 1319, 1321–22 (D.C. Cir. 1981) (explaining that each individual plaintiff in a class-action suit need not have pursued the available administrative remedies “if at least one member of the plaintiff class has met the filing prerequisite” (cited in Jackson v. District of Columbia, 89 Fed.Supp.2d 48, 59-60 (D. D.C. 2000)). This is commonly called the doctrine of “vicarious exhaustion,” which holds “that exhaustion of administrative remedies by
14 The word “may” generally is considered discretionary and not mandatory. Zacdvydas v. Davis, 533 U.S. 678, 697 (2001) (“‘may’ suggests discretion”).
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one member of the class satisfies the requirement for all others with sufficiently similar grievances.” Hartman v. Duffey, 88 F.3d 1232, 1235 (D.C. Cir. 1996). This doctrine, however, is only available to plaintiffs in a class-action lawsuit. Hattie v. Hallock, 8 F.Supp.2d 685, 689 (N.D. Ohio1998).
CONTRARY TO DEFENDANTS’ ARGUMENT [I.A.3, PAGEID.1256-62], THIS COURT CAN ISSUE AN INJUNCTION IF DEFENDANTS IS SUBJECTING PLAINTIFFS TO UNCONSTITUTIONAL CONDITIONS. As discussed infra, Defendants have not implemented essential measures to protect prisoners and mitigate the spread of COVID-19. Based on these failures, Plaintiffs and members of the class are likely to succeed on their claim that defendants have violated the eighth amendment. Defendants are claiming that their minimal steps of providing some “social distancing” and limited “testing” is a sufficient basis for this Court to deny Plaintiff’s injunction request. Salami v. Rewerts, 1:20-CV-21, 2020 WL 1316510, at *6 (W.D. Mich. Mar. 20, 2020) (“[d]ecisions concerning prison security are vested in prison officials, in the absence of a constitutional violation.”), see Ex. 16; see also Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 646 (2002) (the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim. See Coeur d'Alene, supra, at 281, 117 S.Ct. 2028 (“An allegation of an ongoing violation of federal law ... is ordinarily sufficient” (emphasis added))”).
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The Eighth Amendment protects the rights of prisoners to be free from cruel and unusual punishment while confined to state custody, and in fact, the government has an affirmative duty to provide conditions of reasonable health and safety. Brown v. Plata, supra, 563 U.S. at 510 (“Prisoners retain the essence of human dignity inherent in all persons. . . . To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care”).
The MDOC flaunts its “unprecedented leadership” and boasts that it began implementing protective measures before any prisoner tested positive,15 even before the CDC issued its guidelines. (ECF No. 27, PageID.1257). However, these measures are plainly insufficient, and most are in reality absent in its prisons. Defendants are exposing their prison populations so extensively that some prisons, such as Lakeland Correctional Facility, have reported a 54.3% positive test rate (See Ex. 19, Michigan highest sate of death from coronavirus, Detroit Free Press).
The cornerstone of all preventative measures against COVID-19 is social distancing. (Ex. 1, Lauring ¶ 1). For social distancing to be effective, it is also imperative to understand who among the prison population has tested positive. (Id.).
15 The MDOC did not begin testing prisoners until March 24, 2020. The first prisoner who tested positive died of COVID-19 on April 1, 2020. (MDOC Response and Information on coronavirus https://medium.com/@MichiganDOC/mdoc-takes-steps-to-prevent-spread-of-coronavirus-covid19-250f43144337).
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MDOC refuses to implement common sense measures, either out of presumed inconvenience or alleged impracticability. Even many of their quarantine and testing procedures expose inmates to the virus unnecessarily. MDOC admits that in some cases, social distancing is impossible because of the very nature of the institutional setting. (ECF No. 27, PageID.1259). With regard to testing, the MDOC provides undetailed and general claims that they have a plan for testing staff and iterates the testing measures taken at some prisons in the Lower Peninsula and the Upper Peninsula facilities (where notably, there are limited outbreaks). Unfortunately, one of its primary testing plans utilizes antibody testing, which force inmates to involuntarily provide blood for no medical purpose. (Ex. 1, Lauring ¶ 7). Finally, the MDOC maintains that it is not feasible to take the temperature of its prisoner population, though it provides them three meals a day, every day, and does rounds multiple times per day (ECF No. 27-5, PageID.1326-1327). The Department cannot favor convenient policies over efficacious ones.
Eighth Amendment claims have objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Defendants essentially concede that the risk of contracting COVID-19 is sufficiently serious to trigger Eighth Amendment protections. (ECF No. 27, PageID.1256-62). The Department goes so far as to tout its early response to the dangerous pandemic. (Id., PageID.1257). It is undisputed that there is an active, serious outbreak at many of the facilities within
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the MDOC, with thousands of prisoners who have tested positive and it is now common knowledge that COVID-19 presents a serious risk of severe illness and death. Defendants acknowledge as much, focusing on the subjective component of Plaintiffs’ Eighth Amendment claim, rather than the objective seriousness of the COVID-19 risk (Id.). Plaintiffs will do the same.
Prison officials must also have a “sufficiently culpable state of mind” where “the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842.
There is no doubt that the Defendants were aware of the grave threat posed by the pandemic and the exacerbated risk caused by the close quartering of prisoners in pole barns and two-person per cell at many of MDOC prisons.16 As of February of 2020, the world knew that COVID-19 was lethal and one of the primary manner to prevent its spread was through “social distancing” and “testing”. Defendants have not denied in their Response that they were not aware of the dangerous nature, in facts, they issued memorandums that show they were aware of the deadly nature of
16 See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (last visited May 8, 2020) (explaining that measures ordered by the CDC to reduce person-to-person contact present unique challenges for prisons and detention facilities, because “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced”). See also Executive Orders 2020-29 on March 29, 2020 issued by the Governor to MDOC to implement a COVID-19 plan. The Complaint also contains an extensive discussion of how Defendants were knowledgeable about the dangerous of COVID-19. ECF No. 1, PageID.19-34.
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COVID-19.17 The finding in There is no doubt that the Defendants were aware of
the grave threat posed by the pandemic and the exacerbated risk caused by the close
quartering of prisoners in pole barns and two-person per cell at many of MDOC
prisons.18 As of February of 2020, the world knew that COVID-19 was lethal and
one of the primary manner to prevent its spread was through “social distancing” and
“testing”. Defendants have not denied in their Response that they were not aware of
the dangerous nature, in facts, they issued memorandums that show they were aware
of the deadly nature of COVID-19.19 The finding in Martinez-Brooks v. Easter also
applies here.
Further, given the pervasive daily media coverage of the pandemic, the seriousness of the threat posed by COVID-19—and the particular vulnerability of elderly individuals as well as those with certain preexisting medical conditions—are so well known that it would be implausible to suggest that prison officials are unaware of this risk. See Farmer, 511 U.S. at 842 (“[A] fact finder may conclude that
17 The Governor’s EOs establishes that Defendants knew of the risk. The Governor ordered MDOC to develop several “risk reduction protocols” related to COVID-19, which included social distancing and testing. 18 See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (last visited May 8, 2020) (explaining that measures ordered by the CDC to reduce person-to-person contact present unique challenges for prisons and detention facilities, because “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced”). See also Executive Orders 2020-29 on March 29, 2020 issued by the Governor to MDOC to implement a COVID-19 plan. The Complaint also contains an extensive discussion of how Defendants were knowledgeable about the dangerous of COVID-19. ECF No. 1, PageID.19-34. 19 The Governor’s EOs establishes that Defendants knew of the risk. The Governor ordered MDOC to develop several “risk reduction protocols” related to COVID-19, which included social distancing and testing.
24

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1777 Page 31 of 44
a prison official knew of a substantial risk from the very fact that the risk was obvious.”). 3:20-CV-00569 (MPS), 2020 WL 2405350, at *21–22 (D. Conn. May 12, 2020), see Ex. 27. Courts have held that a prison “official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. This standard is met where “the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Id. (citations omitted). Put another way, prison officials have a duty to provide inmates with “reasonable safety.” Id. at 844. When a lawsuit is filed alerting officials that “reasonable safety” is not present because of certain conditions of confinement, officials must reasonably respond to that risk. Farmer, 511 U.S. at 846 n.9. “Whether one puts it in terms of duty or deliberate indifference, prison officials who [do not] act reasonably can[] be found liable under the Cruel and Unusual Punishments Clause.” Id. at 844.
25

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1778 Page 32 of 44

Experts predicted that “[a]ll prisons and jails should anticipate that the coronavirus will enter their facility.”20 Courts also recognized the dangerous of the spread of COVID19 in correctional facilites. See, e.g., Malam v. Adducci, 2010829, 2020 WL 2468481, at *5 (E.D. Mich. May 12, 2020) (“The number of COVID-19 cases in detention facilities nationwide further highlights the stark reality that communal confinement, even with the precautions Defendants have employed, creates a significant risk of COVID-19 infection.”), see Ex. 15; United States v. Frost, No. 18-CR-20206, 2020 WL 1899561, at *3 (E.D. Mich. Apr. 17, 2020) (explaining “COVID-19 is dangerous everywhere, but the novel disease is especially harmful within correctional institutions, where incarcerated individuals have a limited ability to exercise encouraged community practices such as social distancing and frequent handwashing”), see Ex. 14. This is especially true for the Plaintiffs who are confined to 8-person cubes in pole barns, where social distancing cannot exist. See ECF No. 1, PageID.9 (Seegmiller); 15 (Campbell); 16 (Heard). Government experts agree that such a communal style of living can increase the infection rate.21

20 See Nicole Wetsman, Prisons and jails are vulnerable to COVID-19 outbreaks, The Verge (Mar.

7, 2020), https://flipboard.com/article/china-says-more-than-500-cases-of-the-new-coronavirus-

stemmed-from-prisons/f-5db96100fa%2Fcnbc.com (quoting Tyler Winkelman, co-director of the

Health, Homelessness, and Criminal Justice Lab at the Hennepin Healthcare Research Institute in

Minneapolis).

21 See Former ICE Director: Release Immigrants from Detention or COVID-19 Will Spread Like

Wildfire

Inside,

Democracy

Now

(Mar.

23,

2020);

www.democracynow.org/2020/3/23/ice_dentention_centers_covid_19 ; FAQs for administrators,

staff, people who are incarcerated, families, Ctrs. for Disease Control and Prevention (Mar. 28,

2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/faq.html .

26

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1779 Page 33 of 44
Where the claim is for injunctive relief, Plaintiffs have brought the risk to Defendants’ attention, so the only issue is whether Defendants’ “current attitudes and conduct” reflect continued disregard of the risk. Id. at 846 n.9 (noting liability of “prison officials who state during the litigation that they will not take reasonable measures to abate an intolerable risk of which they are aware”). Put another way, prison officials have a duty to provide inmates with “reasonable safety.” Id. at 844.
While Defendants are free to exercise discretion in choosing among equally effective measures to protect inmates from serious risks, choosing inevitably inadequate measures to the exclusion of a plainly superior one constitutes deliberate indifference.22 Defendants claim they have taken some measures, yet “officials may not entirely insulate themselves for liability under § 1983 simply by providing some measure of treatment.” Cummings v. Klee, 410 F. Supp. 3d 837, 844 (E.D. Mich. 2019) (quoting Jones v. Muskegon Cnty., 625 F.3d 935, 944-45 (6th Cir. 2010); Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2002) (noting “grossly inadequate care” or making a “decision to take an easier but less
22 Defendant Washington mentions some additional units that were opened to handle the COVID19 positive inmates (ECF 27-5, PageID.1325). However, Defendant Washington did not address Plaintiffs’ reference to numerous closed prison units that likely were available to bring back online with the help of the National Guards. See Complaint, ECF No. 1, PageID.36-39 (seven cell blocks at Jackson Prison and the entire Standish Prison; for an approximately 3000 additional single housing cells being available). There is also the Riverside Correctional Facility, Ionia Temporary Prison, the closed Kinross Correctional Facility, and Ojibway Prison for another three thousand or more beds.
27

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1780 Page 34 of 44
efficacious course of treatment” may deliberate disregard health risk); McCarthy v. Place, 313 Fed.Appx. 810, 814 (6th Cir. 2008).
The science on preventing the spread of COVID-19 may be evolving, but this much is beyond peradventure: To stop the spread of the virus, infected populations must be quarantined from uninfected populations. (Ex. 1, Lauring ¶ 5). The virus can be spread by infected persons who are asymptomatic. (Id. at ¶ 3). “Absent repeat testing of inmates and/or testing of all guards and staff, it is possible for the virus to be re-introduced into a prison among inmates and staff, regardless of the prior test result.” (Id. ¶ 2). For Defendants, they believe one test insulates them from liability. Plaintiffs were provided three masks at the outset, and yet Defendants refuse to provide any more no matter the circumstances, such as falling apart by repeated use age.
Even with the alleged social distancing measures that Defendants put in place, due to the impossibility of adequate social distancing, confinement at the pole barn facilities—due to their very structure and configuration—continues to pose a grave risk to vulnerable inmates’ health. The same is true in the double bunking and openbarred cells throughout various facilities. Defendants refuse to fix these intolerable conditions despite full awareness of their risks. Under the circumstances of the present crisis, Defendants’ failure to make prompter, broader use of their authority to protect the lives of inmates constitute deliberate indifference.
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Here, there is no doubt that officials are aware of, and have responded to the COVID-19 risk with policies of their own, while obdurate to what is actually going on in their facilities. See Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369 (1940) (“Deeply embedded traditional ways of carrying out state policy . . . are often tougher and truer law than the dead words of the written text”); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010) (noting “the distinction between facial and as-applied challenges . . . goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint”). Many of these policies are unreasonable, outdated, and have proven unsuccessful to abate the risk of spreading the virus, especially given the widespread outbreaks at the Lakeland and Cotton prisons. While Defendants claim they have “swiftly implemented and enforced robust COVID-19 response measures for the specific purpose of protecting prisoners from the spread and impact of COVID-19[,]” (ECF No. 27, PageID.1261), the experience of inmates reflects system-wide neglect of the most basic common-sense measures to combat the virus. Banks v. Booth, 2020 WL 1914896 at *8 (D.D.C. Apr. 19, 2020) (noting “some uncertainty as to whether [officials’] declarations are based on policies which are on the books or the actual conditions of the facilities”). Defendants at least implicitly authorize or knowingly acquiesce to these unconstitutional conditions in the prisons they oversee. Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016); Thomas v. City of Chattanooga, 398 F.3d 426,
29

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1782 Page 36 of 44
429 (6th Cir. 2005). Defendants are flippant about their response to the virus and fail to provide with any meaningful detail exactly what measures they have taken, beyond a recitation of their general policy and vague references to “plans.”
Some courts have referred to similar measures as “patently insufficient” to combat the virus. See Basank v. Decker, No. 20-cv-2518, 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020) (referencing “screening detainees upon intake for risk factors, isolating detainees who report symptoms, conducting video court appearances with only one detainee in the room at a time, providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities”), Ex. 20; Jones v. Wolf, ___F. Supp. 3d___, No. 20-cv-361, 2020 WL 1643857, at *12 (W.D.N.Y. Apr. 2, 2020), see Ex. 21; Malam v. Adducci, ___F. Supp. 3d___, No. 20-cv-10829, 2020 WL 1672662, at *12 (E.D. Mich. Apr. 5, 2020) (describing similar “precautionary measures” in Calhoun County Correctional Facility), Ex. 15; Fofana v. Albence, ___F. Supp. 3d___, No. 20-cv-10869, 2020 WL 1873307, at *9 (E.D. Mich. Apr. 15, 2020) (referring to Monroe County Jail conditions as “substandard medical care and supervision”), see Ex. 22; Awshana v. Adducci, ___F. Supp. 3d___, No. 20-cv-10699, 2020 WL 1808906, at *8 (E.D. Mich. Apr. 9, 2020); see Ex. 23; Banks v. Booth, No. 20-cv-849, 2020 WL 1914896, at *9 (D.D.C. Apr. 19, 2020) (granting injunction regarding COVID-19 issues in the
30

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1783 Page 37 of 44
correctional context because “there is no record evidence that these procedures are being implemented”), see Ex. 24.
In one obvious example, Defendants label their “head-to-toe” bunking arrangements as adequate social distancing measures. (ECF No. 27, PageID.125960). First of all, no inmate has reported even hearing about this policy. Secondly, policies like this are so cursory as to amount to no protection at all. See Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (noting that in the medical context, Eighth Amendment violation may be proved by “showing that the prison failed to provide treatment, or that it provided treatment so cursory as to amount to no treatment at all”).
The MDOC’s failure to test and screen all inmates and prison staff for the virus also amounts to deliberate indifference. Their testing efforts are focused on those prisoners who actively present with symptoms. (Ex. 1, Lauring ¶ 3). The MDOC further does not test prison staff – those who go in and out of the surrounding community and are therefore the prominent source of constant new infection. (Id.). Moreover, even using the MDOC’s data in its Lakeland study, testing only those who present with symptoms misses a large portion of the population. At Macomb, inmates awaiting test results are housed in the same unit as those who have tested positive. (ECF No. 27-16, PageID.1578 at ¶ 14). This unit now consists of the most severe cases, as MDOC ignores obvious symptoms of the virus. (Ex. 4-11, Affidavit
31

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1784 Page 38 of 44
of David Lyons at ¶ 3). The key to combating COVID-19 is preventing its asymptomatic spread, yet MDOC fails to take measures to do so, or even to test inmates with obvious symptoms of the virus.
Plaintiffs and the putative class members remain in close proximity under conditions which exacerbate the spread of the virus. The unconstitutionally dangerous conditions within the MDOC will inevitably lead to infections or reinfections, which will result in serious illness and death of prisoners and prison staff alike. The Eighth Amendment bars deadly exposure to COVID-19 while Plaintiffs remain incarcerated under conditions posing a substantial risk of serious harm, and Defendants refuse to implement reasonable measures to abate that risk. Plaintiffs are therefore likely to succeed on the merits of their claims.
In Wilson v. Williams, federal inmates sued the Bureau of Prisons over COVID-19 conditions at Elkton Correctional Institution by seeking habeas relief. – F.Supp.3d --, 2020 WL 1940882 at *14 (N.D. Ohio, April 22, 2020), Ex. 25. The court found that the COVID-29 conditions at Elkton violated the Eight Amendment rights of these inmates and issued an injunction. Id. at *8-10. Instead or ordering that these inmates be released from custody, the court ordered that those inmates
who are ineligible for compassionate release, home release, or parole or community supervision must be transferred to another BOP facility where appropriate measures, such as testing and singlecell placement, or social distancing, may be accomplished. In transferring subclass members, Respondents must continue to comply
32

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1785 Page 39 of 44
with BOP policy of quarantining inmates for 14 days prior to transfer out of Elkton.
Id. *11 (emphasis added). A motion for stay of the injunction was denied by the Sixth Circuit., Case No. 20-2447 (Entry No. 23, May 4, 2020). Based on Wilson, this Court has the authority to order MDOC to open some of its closed cell blocks and closed prisons to achieve social distancing.
BASED ON THE JURISDICTIONAL PLEADINGS IN THE COMPLAINT, THIS COURT CAN’T ISSUE AN ORDER FOR THE RELEASE OF PRISONERS [I.A.4, ECF NO. 27, PageID.1262-64]. Plaintiffs agree that the remedy of release is premature at this time under their 1983 claim. However, they request the relief to preserve the claim if and when it ripens. Plaintiffs would note further that release is appropriate in a 1983 action in conjunction with 18 U.S. Code § 3626. § 3626 allows release of state prisoners when certain conditions are met, see Subsection (a)(3), and § 3626 applies to “any civil proceeding arising under Federal law with respect to the conditions of confinement” except for habeas corpus proceedings, Subsection (g)(2). Since Plaintiffs’ 1983 action is a “civil proceeding arising under Federal law with respect to the conditions of confinement”, release of prisoners is an available remedy, so long as the relief comports with section (a)(3). Moreover, release can be ordered even though MDOC does not have the authority to do so, or even when state law prohibits it, see section (a)(1)(B).
33

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1786 Page 40 of 44
CONTRARY TO DEFENDANTS’ ARGUMENT [B., ECF No. 1265-66], PLAINTIFFS HAS SHOWN THAT THEY WILL SUFFER IRREPARABLE INJURY ABSENT THIS CORUT’S INTERVENTION. Defendants argue that Plaintiffs cannot establish irreparable harm, particularly in light of the MDOC’s existing policies. Courts have held that “the violation of a fundamental constitutional right constitutes irreparable harm, even if temporary.” Jones v. El v Berge, 164 F. Supp. 2d 1096, 1123 (W.D. Wis, 2001) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)). Injunctive relief is imperative because the danger presented under these circumstances, a large, confined population, condemned to prolonged illness and potential death, is the quintessential irreparable harm. Id.; Jones v. Texas Dep’t of Criminal Justice, 880 F.3d 756, 760 (5th Cir. 2018) (diabetic complications “establish a sufficient risk of irreparable harm”); Metro. Detroit Plumbing & Mech. Contractors Ass’n v. Dep't of Health, Ed. & Welfare, 418 F. Supp. 585, 586 (E.D. Mich. 1976) (noting a “court must consider the irreparability of any harm to the plaintiff”); Beerheide v. Zavaras, 997 F. Supp. 1405, 1410 (D. Colo. 1998) (kosher meal deprivation was irreparable injury). Further, the Supreme Court has determined that substantially increased risk of serious illness and death always constitutes irreparable injury. In Helling v. McKinney, 509 U.S. 25, 33 (1993), the Court noted, “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.” Specifically
34

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1787 Page 41 of 44
addressing the issue of COVID-19 in prisons, the Court in Wilson v. Williams, supra, 2020 WL 1940882, at *9 stated, “it is more than mere speculation that the virus will continue to spread and pose a danger to inmates if BOP does not increase its efforts to stop the spread.”, see Ex. 25. The Sixth Circuit affirmed this injunction. No. 203447, 2020 WL 2120814, at *1 (6th Cir. Apr. 30, 2020) (noting “measures the BOP implemented to lessen contagion met with limited success at Elkton: dozens of inmates and staff have contracted the virus; and several have died”).
Indeed, many courts across the country have found that the risk of contracting COVID-19 as a result of the inherently unsafe conditions of incarceration constitutes irreparable harm. Id.; Banks, 2020 WL 1914896 at *11 (calling COVID-19 effects “prototypical irreparable harm”), Ex. 24; Mays v. Dart, No. 20-cv-2134, 2020 WL 1987007, at *34 (N.D. Ill. Apr. 27, 2020) (holding “severe health consequences, including death, if they contract coronavirus disease” constituted “irreparable harm.”), see Ex. 26; Basank, 2020 WL 1481503, at *2-*4, Ex. 20
Each of the named Plaintiffs and the members of the putative class face an immense threat of irreparable harm that they will contract, and may suffer severe illness or death from COVID-19 if they continue to be confined under current conditions of insufficient social distancing measures, inadequate hygiene and sanitization, and separation based on speculation because widespread testing is not implemented. A likelihood of irreparable harm is clearly present here the conditions
35

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1788 Page 42 of 44
of Plaintiffs’ and the putative members of the class’ incarceration need to be
addressed and changed as soon as possible.
CONTRARY TO DEFENDANTS’ ARGUMENT [C., ECF No. 1266-69], IT IS IN THE PUBLIC INTEREST TO LIMIT THE SPREAD OF COVID-19 IN PRISONS.
There is an overwhelming public interest in limiting the spread of COVID-19,
in prisons and otherwise, both to minimize further infections and suffering, and to
reduce strain on health systems. This is especially true when prison staff acts as a
vector between the massive outbreaks in the prisons and the general community.
Further, there is a public interest in protecting constitutional rights. See G & V
Lounge, Inc. v. Michigan Liquor Control Com’n, 23 F.3d 1071, 1079 (6th Cir. 1994)
(“[I]t is always in the public interest to prevent the violation of a party’s
constitutional rights.”).
Respondents argue that the public interest is disserved by “constitutionalizing” the Government’s response to a public health crisis. Resp. Opp. at 22. Suffice it to say that the constitutional requirement that the Government eliminate “a condition of confinement that is sure or very likely to cause serious illness and needless suffering” for those it has chosen to imprison is not a novel one. Helling, 509 U.S. at 33. When that fundamental obligation is violated, there is no public interest in turning a blind eye. Rather, “the public interest lies with the enforcement of the Constitution.” Ligon v. City of New York, 925 F. Supp. 2d 478, 541 (S.D.N.Y. 2013).
Arias v. Decker, 20 CIV. 2802 (AT), 2020 WL 2306565, at *11 (S.D.N.Y. May 8,
2020), see Ex. 29; Zaya v. Adducci, 20-10921, 2020 WL 2487490, at *2 (E.D. Mich.
May 14, 2020) (“Petitioner had demonstrated a likelihood of success on the merits
36

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1789 Page 43 of 44
because Respondent’s precautions could not guarantee Petitioner reasonable safety (id. at PageID.673–676); and the public interest in public health and safety outweighed its interest in Petitioner’s continued detention. (Id. at PageID.676– 678.)”), see Ex. 17; Refunjol v. Adducci, 2:20-CV-2099, 2020 WL 1983077, at *5 (S.D. Ohio Apr. 27, 2020) (“The public interest is served by the vindication of their constitutional rights, to be sure, but the public interest is also served by minimizing the number of COVID-19 infections.”), see Ex. 18; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (“the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”), see Ex. 29.
While Plaintiffs concede that implementing these protective measures is difficult and expensive, the public interest in doing so weighs heavily in favor of the relief Plaintiffs request. Further, Defendants make the curious and patently ridiculous argument that implementing the measures Plaintiffs request will somehow prevent them from being able to take additional measures and protect the prisoners. (ECF No. 27, ID 1268). Defendants are aware if new procedures are developed that will increase the protections of the Plaintiffs from COVID-19, they only need to call this Court and seek an immediately zoom hearing to get an amendment to any injunction that would hinder such changes. Plaintiffs suggest that their requests for
37

Case 2:20-cv-11053-MAG-RSW ECF No. 30 filed 05/18/20 PageID.1790 Page 44 of 44

relief are the floor, as opposed to the ceiling, and Defendants are free to implement

additional protective measures.

CONCLUSION

WHEREFORE, Plaintiffs are requesting that Defendants be ordered to

provide social distancing and if it cannot that it must transfer inmates to other

cellblocks or prisons, which include those facilities that are presently closed, where

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

may be accomplished. Plaintiffs are requesting that this Court find that the other

issues raised in the complaint are found to state a complaint and these issues be set

for discovery.

Respectfully submitted,

/s/ Daniel E. Manville Daniel Manville (P39731) Counsel for Plaintiffs Director, Civil Rights Clinic, MI. State University College of Law P.O. Box 1570 East Lansing, Michigan 48823 (517) 432-6866 daniel.manville@law.msu.edu

Kevin Ernst (P44223) Ernst Charara & Lovell, PLC Counsel for Plaintiffs 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 kevin@ecllawfirm.com

PROOF OF SERVICE
I, Daniel E. Manville certify, under penalty of perjury, that on May 18, 2020, I caused a copy of the above document to be served by ECF on counsel for the Defendants.
/s/ Daniel E. Manville Daniel E. Manville

38

Case 2:20-cv-11053-MAG-RSW ECF No. 30-1 filed 05/18/20 PageID.1791 Page 1 of 2

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, et al.,

Plaintiffs,

-vWILLIS CHAPMAN, et al.,

Case No. 20-cv-11053 Hon. Mark A. Goldsmith Maj. Judge R. Steven Whalen

Defendants.

/

Exhibit Listings
1. Supplemental Declaration of Dr. Adam Lauring 2. Summary of Warden of Cotton Prison and Affidavit sof Prisoners 3. Summary of Warden of Parnall Prison and Affdiavits of Prisoners 4. Summary of Warden of Macomb Prison and Affidavits of Prisoners 5. Summary of Warden of Lakeland Prison and affidavits of Prisoners 6. Pictures of Masks produced by MDOC 7. Affidavit of Jesse Mack 8. Affidavit of Desmond DeRoo 9. Grievance Response at First Step to Plaintiff Abrams 10.Grievance of Plaintiff Reeves 11.PD 04.01.150, Warden Form Policy 12.PD 03.02.130, Grievance Policy 13.Pugh v. Caurso, 1:06-CV-138, 2008 WL 1868990 (W.D. Mich. Apr. 24,
2008) 14.United States v. Frost, 2020 WL 1899561, at *3 (E.D. Mich. Apr. 17, 2020) 15.Malam v. Adducci, 2020 WL 1672662, at *12 (E.D. Mich. Apr. 5, 2020) 16.Salami v. Rewerts, 2020 WL 1316510, at *6 (W.D. Mich. Mar. 20, 2020) 17.Zayad v. Adducci, 2020 WL 2487490, at *2 (E.D. Mich. May 14, 2020) 18.Refunjol v. Adducci, 2020 WL 1983077, at *5 (S.D. Ohio Apr. 27, 2020)

Case 2:20-cv-11053-MAG-RSW ECF No. 30-1 filed 05/18/20 PageID.1792 Page 2 of 2
19.“Michigan ranks highest in nation for prisoner deaths from coronavirus,” Detroit Free Press, May 9, 2020, page 3.
20.Basank v. Decker, 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020) 21.Jones v. Fox, --F.Supp.3d –, 2020 WL 1643857 (W.D.N.Y. Apr. 2, 2020) 22.Fofana v. Albene, 2020 WL 1873307, at *9 (E.D. Mich. Apr. 15, 2020) 23.Awshana v. Adducci, -- F.Supp.3d --, 2020 WL 1808906, at *8 (E.D. Mich.
Apr. 9, 2020) 24.Banks v. Booth, 2020 WL 1914896, at *9 (D.D.C. Apr. 19, 2020) 25.Wilson v. Williams, -- F.Supp.3d ---, 2020 WL 1940882 (N.D. Ohio Apr.
22, 2020) 26.Mays v. Dart, -- F.Suup.3d __, 2020 WL 1987007, at *34 (N.D. Ill. Apr. 27,
2020) 27.Martinez-Brooks v. Easter, 2020 WL 2405350 (D. Conn. May 12, 2020) 28.Peoples v. Bauman, 2017 WL 7050280, at *4 (6th Cir. Sept. 5, 2017) 29.Arias v. Decker, 2020 WL 2306565, at *11 (S.D.N.Y. May 8, 2020) 30.Declaration of Paul Draus, PhD, and CV.

Case 2:20-cv-11053-MAG-RSW ECF No. 30-2 filed 05/18/20 PageID.1793 Page 1 of 4

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

Plaintiffs,

-v-
WILLIS CHAPMAN, Warden, Macomb Correctional Facility; NOAH NAGY, Warden at G. Robert Cotton Correctional Facility (JCF); MELINDA BRAMAN, Warden, Parnall Correctional Facility (SMT); BRYAN MORRISON, Warden Lakeland Correctional Facility (LCF); HEIDI WASHINGTON, Director of the Michigan Department of Corrections, sued in their official capacities only,

Case No. 2:20-cv-11053 Hon. Mark A. Goldsmith Maj. Judge R. Steven Whalen

Defendants.

/
SUPPLMENTAL DECLARATION OF PLAINTIFFS’ EXPERT ADAM LAURING

Pursuant to 28 U.S.C. § 1746, I, Adam Lauring, hereby declares the following:

This Supplemental Affidavit is provided in support of the earlier Declaration

(ECF No. 22-26, PageID. 1035-49) I submitted in support of Plaintiffs’ Complaint

Exhibit 1 - Supplemental Declaration of Dr. Lauring

Case 2:20-cv-11053-MAG-RSW ECF No. 30-2 filed 05/18/20 PageID.1794 Page 2 of 4
(ECF No. 1) and the Motion for Temporary Restraining Order and Permanent
Injunction (ECF No. 22).
1. Social distancing is the most important infection control measure in congregate environments. The CDC refers to it as “the cornerstone” for infection control in these settings.
2. A system of testing inmates just once will likely be insufficient to control an outbreak in a correctional facility. Absent repeat testing of inmates and/or testing of all guards and staff, it is possible for the virus to be re-introduced into a prison and spread among inmates and staff, regardless of the prior test result. A testing-based strategy for infection control must include testing of all guards and staff with likely repeat testing of inmates, guards, and staff.
3. Cohorting can be an effective measure for infection control. Here, individuals would be housed together based on testing status (positive, negative, exposed, etc.). Widespread testing is essential for the success of a cohorting strategy. A cohorting strategy based on testing only symptomatic individuals is unlikely to be successful and may lead to increased spread. It is increasingly recognized that many individuals infected with SARS-CoV-2 may be asymptomatic or have mild symptoms only. One study (He et al. Nature Medicine 2020, 10.1038/s41591-020-0869-5) estimated that up to 40% of transmission may occur prior to the onset of symptoms.
4. As the incubation period for COVID19 is approximately 5-7 days, testing of individuals exposed to a known case should be performed between 7-14 days after exposure, or with the onset of symptoms (https://www.idsociety.org/practice-guideline/covid-19-guidelinediagnostics/ ). Exposed individuals should be separated for 14 days before returning to the general population.
5. Effective cohorting requires testing of staff and potentially having dedicated staff for “test positive” and “test negative” populations. If staff move back and forth between these groups, there is the potential for spread of the virus from the positive to the negative group.
6. Inmates, guards, and staff should be evaluated daily for symptoms (i.e. fever, cough, shortness of breath). If there is concern for under-reporting of
Exhibit 1 - Supplemental Declaration of Dr. Lauring

Case 2:20-cv-11053-MAG-RSW ECF No. 30-2 filed 05/18/20 PageID.1795 Page 3 of 4
symptoms in these populations, then daily temperature checks should be implemented as an objective assessment.
7. There is currently no role for antibody testing in the management of COVID19 or in infection control (https://www.idsociety.org/globalassets/idsa/publichealth/covid-19/idsa-covid-19-antibody-testing-primer.pdf ). Many tests have relatively high false negative and false positive rates. A false negative antibody test is when someone who is known to have been infected has a negative antibody test. This can happen due to a poorly performing test. It can also occur if the antibody test is performed too soon after the person is infected. A false positive test is when someone who was never infected has a positive test. This can occur with a poorly performing test. Furthermore, at present, it is not clear if a positive antibody test means that an individual is immune to SARS-CoV-2 infection.
8. In an affidavit, Dr. McIntyre argues that prisoners are better off than their counterparts in the metro Detroit area due to improved access to care ([ECF No. 27-7] paragraphs 48-49). I disagree. Over the last three months, I have had extensive experience evaluating and treating patients with COVID19, many of whom have had severe disease. In my experience, the risk factors for severe disease and death are higher include diabetes, high blood pressure, chronic liver disease, poor access to routine medical care, and being a person of color. This is supported by the recent medical literature. While these risk factors may be particularly common among individuals in the Metro Detroit Area and in correctional facilities, the risk of being infected with SARS-CoV2 is almost certainly higher in prisons and other congregate settings. Given the same background risk of severe disease, more individuals will be infected the virus - and therefore more will have worse outcomes.
9. Dr. McIntyre’s states that “prisoners, compared to their Southeastern Michigan comparators, while likely equal in pre-morbid health conditions, have far greater access to healthcare, testing, and quality clinical care resulting in better outcomes than those in the communities from where they came.” This point is debatable. It is not clear what measures of healthcare access and quality Dr. McIntyre is using. At a minimum, Dr. McIntyre would need to provide some sort of evidence that the quality of care to prisoners with COVID19 is better than the quality of care provided by the Detroit Medical Center, Henry Ford Health System, Beaumont Health System, University of
Exhibit 1 - Supplemental Declaration of Dr. Lauring

Case 2:20-cv-11053-MAG-RSW ECF No. 30-2 filed 05/18/20 PageID.1796 Page 4 of 4
Michigan Health System – all of which provided care to COVID19 patients from the Metro Detroit Area. Pursuant to 28 U.A.C. 1746, I declare under the penalty of perjury that the foregoing is true and correct. Executed on this 17th day of May 2020. Adam Lauring, MD, PHD
Exhibit 1 - Supplemental Declaration of Dr. Lauring

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1797 Page 1 of 140
Exhibit 2 - Robert G. Cotton Correctional Facility (JCF) Defendant Noah Nagy is the Warden of Robert G. Cotton Correctional Facility
(hereinafter “JCF”) in Jackson, Michigan. (ECF No. 27-15, PageID.1524-71). The facility consists of over twenty structures, as relevant here, including six pole barn housing buildings, eleven brick housing buildings, an administration building, an education building and two food service buildings. (Id., PageID.1526). Inmates at JCF testify that they are constantly forced to be within six feet of one another in nearly every aspect of their lives. See Exhibit 2, Affidavits from Prisoners confined at Cotton. Because cleaning is so limited, the virus is allowed to run rampant.
A. Social Distancing Social distancing at JCF is an oxymoron. Whether inmates are eating, recreating, sleeping, communicating with those on the outside, moving about the unit, or any other activity, they are within six feet of at least one other inmate, usually many more. While Defendant-Nagy and his staff at JCF have taken some cursory actions to suggest inmates should social distance, the obvious realities of life in prison prove that much more action is needed: the conditions are crowded, and six feet of separation from others is a mythical concept, nothing more (Ex. 2, Affidavits of inmates confined in pole barns). The first issue at JCF is inmates being housed in pole barns. One of the proposed subclasses includes all inmates in pole barns. A “pole barn” is an open plan
Exhibit 2 - Cotton Prison - 1

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1798 Page 2 of 140
environment originally built in the 1980s as temporary housing for around eighty men per each of the two sides. The units now house twice that capacity, as approximately one hundred and sixty inmates live in each of these six units. The floor plan is divided into twenty “cubes” per side that measure roughly fourteen by twenty feet. Each cube houses eight men, with four sets of bunk beds with two inmates in each bunk. (Ex. 2, Affidavit of Justin Brophy at ¶ 4). No one can seriously contend that any inmate is free to “social distance” in these conditions of confinement. As one inmate describes, “It is physically impossible to remain [six] feet from anyone because these pole barns are way too overcrowded.” (Ex. 2, Affidavit of Joshua Zuazo at ¶ 5). In the questionnaire Plaintiffs’ counsel submitted to inmates at JCF, seventeen (“17”) inmates indicated they sleep in one of these eight-man cubes in pole barns. Defendnat Nagy claims that his action in splitting these pole barns between positive and negative inmates somehow addresses the lack of social distancing in these pole barns. (ECF No. 27-15, PageID.1542-43 ¶ 31). He does not address his disregard of the health risk posed to inmates in eight-man pole barns.
Housing units present a different cell size, where inmates are confined with one other individual in two-man cells, that was ordinary designed for one person.
Defendants’ suggestion that inmates should sleep “head-to-toe” to try to social distance demonstrates the continued neglect of these conditions. (ECF No. 27,
Exhibit 2 - Cotton Prison - 2

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1799 Page 3 of 140
PageID.1259-60). This sort of half-hearted social distancing effort is the exact sort of “attitude and conduct” that evinces deliberate indifference in this request for an equitable relief. When asked whether he was “instructed that each of you should have your head on the oppos[it]e end of the bed to created [six]-feet [of] separation[,]” one inmate, Mr. Brophy, noted that inmates “were never instructed to sleep on opposite sides.” (Ex. 2, Affidavit of Justin Brophy at ¶ 4; Affidavit of Joshua Zuazo at ¶ 4). Five other inmates answered this question, and all noted they had been given no instructions to sleep “head-to-toe” at all. Somewhere in this “top-down coordinated effort” even the most futile of advice is lost in translation.
B. Testing and Quarantine Defendants claim they have swiftly implemented COVID-19 protocols written by their Chief Medical Officer, Dr. Carmen McIntyre. (ECF No. 27, PageID.1241).1 Section (e) of the Director’s memorandum outlines part of a plan on testing and quarantining:
“• Separate isolation areas shall also be developed for prisoners who are under investigation (PUIs) for having COVID-19 as well as for those who have had close contact with a PUI or known-positive COVID-19 individual (Close Contacts), as necessary.
1 Shockingly, in another charade for the Court, Dr. McItyre avers that inmates confined against their will in prison are somehow better off than their “Southeastern Michigan comparators” in the outside world. (ECF No. 27-7, Defendant’s Exhibit F, at ¶¶ 48-49). Common sense notions of human decency tell otherwise, and Dr. Lauring, an immunologist who has worked with COVID-19 patients in these hospitals, disagrees with Dr. McItyre’s solution, See Ex. 1, Supplemental Declaration of Dr. Lauring.
Exhibit 2 - Cotton Prison - 3

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1800 Page 4 of 140
• The isolation areas for PUIs shall follow the same criteria as the isolation areas for prisoners with confirmed cases of COVID-19.
• A PUI shall be placed alone in a cell pending the outcome of their test results.
• Staff transporting a PUI shall wear the same PPE that is required for transporting a prisoner with confirmed COVID-19.” (ECF No. 27-5, PageID.1318). This policy does not provide for social separation for prisoners. It provides social separation if you are tested positive or have had contact with those tested positive. In part because of the close quarters at JCF, intermixing positive and negative testing individuals has been a problem for Defendants.2 The contagious nature of this virus undoubtedly makes this job a hard one. The difficulty of this task does not give Defendants a free pass to shrug off serious risks with flawed policies that risk erroneous exposure to the virus at every step of the way. For example, Defendant-Nagy testifies about the struggles for testing at JCF. See (ECF No. 27, PageID.1537) (noting “limited number of COVID test kits available across all MDOC facilities, but this shortage situation quickly improved in the month of April as more testing kits became available”). Plaintiffs do not claim that this negligent or accidental oversight is the reason their testing system has failed. Instead,
2 As noted above, many of the housing units are these pole barns with an open floor plan. Insofar as a pole barn is used as “isolation areas” their protections are simply insufficient. These cubicle-like structures are identical conditions to that which many Americans work in. Yet, the common sense on the outside is to encourage staying home, because “cubes” have such trivial protections.
Exhibit 2 - Cotton Prison - 4

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1801 Page 5 of 140
Defendant-Nagy explains their claim, as “testing would proceed by housing unit and once the test results were reviewed by healthcare, the prisoner would be assigned a housing unit consistent with the results.” (Id.). In the meantime, JCF seeks to separate and quarantine inmates, often unsuccessfully. (Id. at ¶ 29(g) (blaming “very few exceptions” of exposure on “reasonable and unavoidable time lag” in testing). Many inmates testify that this is how they caught the disease. The frequency of these mishaps should ring an alarm that something needs to change.
Warden Nagy has not created a medical plan for continuing testing or inmates, and the testing of guards. As Dr. Lauring has testified, an effective testing plan must be created. Ex. 1.
A few inmates’ experiences with testing and quarantine demonstrate some shocking examples of disregard for human decency. The first is Charles Brooks, an inmate who tested positive and also suffers from asthma, chronic bronchitis, and hypertension. (Ex. 2, Affidavit of Charles Brooks at ¶ 25). He testifies that he was moved into one of JCF’s pole barn cubicles “less than an hour after they removed someone from that cubicle, that they suspected of having COVID-19, and who subsequently tested positive for the virus. After being in that cubicle, I tested positive for COVID-19, even though I was negative when tested prior to moving to that unit.” (Id. at ¶ 27). Even worse, on May 15, Brooks was told he was being transferred to another unit, and “Deputy Warden Rurka came to inform me that I had been moved
Exhibit 2 - Cotton Prison - 5

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1802 Page 6 of 140

because my Coronavirus test had been misdiagnosed.” (Id.). Why was Brooks

misdiagnosed and forced to live with inmates who tested positive? Defendants

decided to test his unit with antibody testing and conflate that with diagnostic testing.

(Id.). While even MDOC recognizes this is an improper use of antibody testing, “but

apparently [Brooks’] was.” (Id.).3 The antibody tests given to Mr. Brooks

significantly increased his likelihood of exposure to the virus, all because

Defendants created this Kafkaesque confusion which did very little to actually

combat the virus. Further, Dr. Lauring stated that

There is currently no role for antibody testing in the management

of

COVID19

or

in

infection

control

(https://www.idsociety.org/globalassets/idsa/public-health/covid-

19/idsa-covid-19-antibody-testing-primer.pdf ). Many tests have

relatively high false negative and false positive rates. A false negative

antibody test is when someone who is known to have been infected

has a negative antibody test. This can happen due to a poorly

performing test. It can also occur if the antibody test is performed too

soon after the person is infected. A false positive test is when someone

who was never infected has a positive test. This can occur with a

poorly performing test. Furthermore, at present, it is not clear if a

positive antibody test means that an individual is immune to SARS-

CoV-2 infection.

Ex. 1, Declaration of Dr. Lauring, para. 7.

3 Plaintiffs’ expert, Dr. Adam Lauring, is of the medical opinion that “[t]here is currently no role for antibody testing in the management of COVID-19 or in infection control (https://www.idsociety.org/globalassets/idsa/public-health/covid19/idsa-covid-19-antibody-testing-primer.pdf). Many tests have relatively high false negative and false positive rates.” (Affidavit of Dr. Lauring).
Exhibit 2 - Cotton Prison - 6

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1803 Page 7 of 140
Another Plaintiff’s experience, Craig Seegmiller, tells a similar story. Seegmiller is concerned about “[c]onstantly being moved around between units, Level 1 and Level 2.” He notes that a couple of his eight man cube cellmates are “being tested [but they do] not get[] tested until facility wide testing putting [them] back around other inmates who may or may not have it who may infect me or who I may infect. I have been put around sick people, and sick people also are being moved around possibly infecting others.” (Ex. 2, Affidavit of Craig Seegmiller at ¶ 20). Defendant Washington’s policy does not help Seegmiller in any way, shape or form. Seegmiller is shuffled around like the rest of inmates with guesswork testing that disregards the grave risk to his health.
Worse yet, the information prison officials provide to Plaintiffs evinces a disregard for the consequences of this virus. Mr. Jesse Nichols reports that a group of inmates “in the gym were told by the administration that there are 8 different strains of Corona virus so ‘it doesn’t matter how they move people around because we’re going to keep getting each other sick anyway’.” (Ex. 2, Affidavit of Jesse Nichols at ¶ 20). The culture in prison Nichols testifies aptly sums up Defendants arguments: “the prison did as little as possible every step of the[] way, sending out puffed up notices of how good their doing while the virus has spread through the majority of the level 1 compound.” (Id. at ¶ 20(g)). Mr. Nichols point hits home, as
Exhibit 2 - Cotton Prison - 7

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1804 Page 8 of 140
most of Defendants’ responsive measures are bureaucratic instead of medically premised.
C. Cleaning and PPE Cleaning is another issue at JCF, as Plaintiffs’ provide varying responses on the cleaning efforts, none of which is done by anyone who is not incarcerated there against their will. Who carries the primary responsibility for cleaning at JCF? Inmate porters. (Ex. 2, Affidavit of Nicholas Spirione at ¶ ; Affidavit of Brophy at ¶ 8). While some of these porters may be reliable front-line warriors against the virus, this delegation of the only cleaning responsibilities to these porters suffers from implementation problems because of the varying reliability. For that reason, the frequency of cleaning in different units varies. Some inmates report that their units are being cleaned three or four times a day, others say porters only clean the units once or not at all. Bathrooms, shared by an entire unit of one hundred and sixty inmates, are also rarely cleaned. While some inmates indicate they are supposed to be cleaned a few times a day, porters, for whatever reason, often do not. The cleaning of phones is also apparently an honor system, where after they use the phone each inmate is supposed to wipe it down themselves. Many inmates disagree with the efficacy of this practice at JCF.
Exhibit 2 - Cotton Prison - 8

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1805 Page 9 of 140
In contrast, the cleaning supplies inmates are given is subject to little doubt. As noted, Defendant-Nagy himself testified that he walks around to ensure there are adequate cleaning supplies for all inmates. What cleaning supplies exactly are available? One inmate, Jamel El-Amin, testified that each unit, comprised of one hundred and sixty inmates, splits three spray bottles of watered-down bleach and four bottles of “citrus” multipurpose cleaner. (Ex. 2, Affidavit of Jamel El-Amin ¶ ). Each bottle is filled twice a day. (Id.). Nearly all the inmates from the questionnaire refer to those same two types of cleaning supplies (Ex. 2). Each unit shares a single mop or broom. No individual “cubes” are given cleaning supplies. Inmates can get individual cleaning supplies only through one process: they take a “rag” up to the officers’ station, who then sprays the rag with the bleach mix (Ex. 2). Plaintiffs have and are “complain[ing] or express[ing] concern over not having adequate supply of hand soap, cleaning supplies, or PPE” and yet Defendant-Nagy fails to address those complaints in this lawsuit. (ECF No. 27-15, PageID.1535 at ¶ 24).
Personal protection equipment, or three masks, have been provided to inmates. Unfortunately, these masks are also a cursory effort. The masks provided are made from prison blues, and many inmates claim they can see through their masks because the material is so thin. (Ex. 2, Affidavit of Craig Seegmiller at ¶ 21). Worse yet, inmates are told that they cannot get new ones. (Id. at ¶ 24). MDOC made and distributed these masks and sell them as “reusable masks that can be laundered.”
Exhibit 2 - Cotton Prison - 9

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1806 Page 10 of 140
(ECF No. 27, PageID.1236). Many inmates tried; the masks fell apart in the wash. (Ex. 2) Now, Defendants refuse to take any further action to replace these masks. Several inmates have been forced to staple their masks together, (Ex. 2, Affidavit of Charles Brooks at ¶ 24), or craft new ones from articles of their own clothing. (Ex. 2, Affidavit of Jessie Nichols at ¶ 24). Defendants and their employees know of this, but claim their only duties ended when they delivered the first three masks.
Even worse than this cursory effort to provide inmates with masks, some guards must supply their own. (Ex. 2, Affidavit of Terrance Carrey). While some N95 masks may be provided to medical or correctional staff, (Ex. 2, Affidavit of Brooks at . Defendants do not even provide some of their own employees with the necessary equipment. Little wonder that prison officials, who regularly must patdown inmates, do not change their gloves unless requested. (Ex. 2) While Director Washington’s did order inmates and staff to wear masks, and staff to wear “PPE” like N95 masks, eye protection, face shields, and gloves, (ECF No. 27, PageID.131617), she made little effort to actually supply prisons like JCF with the necessary equipment to protect themselves. More efforts must be taken to abate this substantial risk of harm.
Exhibit 2 - Cotton Prison - 10

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1807 Page 11 of 140
DECLARATION OF JUSTIN BROPHY #440838: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes, I tested positive. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No, I was not aware that I had it. I thought it was allergies. 3. If yes to question 2. Explain what steps health care took to treat you, if any? 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. We are housed in cubes with 8 different inmates. We have 4 sets of bunks with 2 inmates in each bunk. We were never instructed to sleep on opposite sides. 5. Can you engage in 6-foot separation when moving about your unit?
a. No, we cannot engage in 6 foot separation when moving in our unit. 6. Are you given cleaning supplies for your cell?
a. No, we are not given cleaning supplies for our cells. 7. What cleaning supplies are you given?
a. We are not given cleaning supplies. 8. Have you observed the unit being cleaned?
Exhibit 2 - Cotton Prison - 11

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1808 Page 12 of 140
a. Porters come through once maybe twice a day. 9. If yes to Number 8, how often is the unit cleaned?
a. Porters come through once maybe twice a day. 10. Are the telephones cleaned after each use?
a. No, telephones are not cleaned after each use. 11. How often are the bathrooms cleaned?
a. Bathrooms are cleaned once a day. 12. If inmates have been placed in the dayroom, what can you tell me about them?
a. The inmates were placed in there and sat there and I observed guards going in and out. 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. Yes, there is nowhere else to go to the bathroom. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates?
a. No, the separation panels were not set up. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. No. 16. Is there social distancing of 6-feet during use of bathrooms, showers?
Exhibit 2 - Cotton Prison - 12

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1809 Page 13 of 140
a. No, there is no social distancing during bathing and restroom use. 17. Is there social distancing of 6-feet during exercise or on the yard?
a. No, there is people everywhere on yard. 18. Is that rule enforced by the guards?
a. No, this rule is not enforced by guards. 19. Is there social distancing of 6-feet during feeding in the unit?
a. No, there is no social distancing while feeding in unit. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. Our food portions have gone down, food sits outside for over half hour before we get it. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. The masks were prison made. They were not helpful because the whole compound got sick.
22.When you are patted down, are guards using gloves? a. The guards wear purple gloves.
23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. The guards never change their gloves.
Exhibit 2 - Cotton Prison - 13

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1810 Page 14 of 140
24.Can you get new masks if you ask for a new one? a. They have not replaced our masks.
I Justin Brophy Inmate 440838 state this information is true under the perjury of law and give Dan Manville my permission to use my statement and sign.
Exhibit 2 - Cotton Prison - 14

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1811 Page 15 of 140
DECLARATION OF JOSHUA ZUAZO, COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes I tested positive for covid-19 on 5-1-20. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No I didn't consult health care because they were punishing us for being sick, how? They were placing us in segregation, not allowing us any appliances, they threw whatever food that we purchased from store away & the c/o's didn't want anything to do with us ( for obvious reasons).
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. Healthcare took 8 days after testing positive to give me vitamins & they came twice a day for 14 days to check our vitals.
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. No I'm housed in a filthy pole barn & we were never instructed to lay on opposed sides but you can only do that on 2 of the 4 bunks.
5. Can you engage in 6-foot separation when moving about your unit? a. It is physically impossible to remain 6 feet from anyone because these pole barns are way too overcrowded. The phones (inside & outside) are
Exhibit 2 - Cotton Prison - 15

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1812 Page 16 of 140
too close, the jpay computers are too close, the urinals are too close, & the bathroom sinks are too close. 6. Yes we're given bleach but it's watered down, its not 1 part bleach to 10 parts of water & we can only spray rags. 7. Have you observed the unit being cleaned? a. I'm a unit porter in T-E & I am certified in custodial maintenance, the majority of the prisoners do not know how to properly disinfect surfaces, this is one of the most nastiest conditions that I've ever jailed in. The phones, kiosks & tables are wiped down only after officers does count (which is twice a day), the railings are wiped down frequently, the bathrooms are cleaned twice a day, & I just started thoroughly cleaning them on 3rd shift. 8. Are the telephones cleaned after each use? a. This is up to the inmate 9. If inmates have been placed in the dayroom, what can you tell me about them? a. When they were placing inmates in the dayroom for suspicion of being sick guys were sneaking out getting on the phones & jpay computers to notify there family that they were being moved because they may
Exhibit 2 - Cotton Prison - 16

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1813 Page 17 of 140
possibly be sick with covid-19. One guy (Quintin Davis) who ended up being sick was sent back to his cube to wait for shift command. 10. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue? a. No CDC guidelines are being followed here at Cotton Correctional Facility, they do what they want. There is no 6 feet anything being enforced because its impossible. Its not adequate spacing to do nothing but pass germs & this virus. b. I understand that there isn't any PD, OP or SOP in place to deal with a pandemic but ignorance is no excuse for the law. c. They didn't touch our US mail, for 12 days it sat in the US Mail box. d. Our food is always cold or soggy from being moved around during transportation. e. Officers who were sick but didn't report it would still come to work. f. On 4-8-2020 Heidi Washington put out a DOM 2020-30 that gave Warden's authorization to give prisoners Disciplinary Credits days that would've let guys like me go home before I they got sick because I have a parole but he didn't. g. T-E was suppose to be a negative unit so when they tested, they put about 8 or 10 guys with us who had already tested negative in here with
Exhibit 2 - Cotton Prison - 17

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1814 Page 18 of 140
us. The next day, our test results had come in with over 120 guys being positive. They immediately moved those 8 or 10 negative guys into a negative until when they should've quarantined them to make sure that they didn't contract the virus & cross contaminate the negative units. h. The virus & medication gave us diarrhea but staff still refuse to give us tissue when we run out. i. The prisoner store had run out of Tylenol & we were told that we would receive Tylenol when we received our vitamins, that didn't happen. j. Guys aren't properly cleaning because they don't know how to and aren't being taught how. k. They just had a guys test come back negative but they kept him in a positive unit around us guys who hasn't been retested. l. I thought that I was about to die for 3 days straight, I didn't say anything from fear of dying in discomfort or by myself because that's how they were doing us. 11.If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. When they were patting us down they would only change gloves if we requested it. They never change gloves during cell shake downs, period! 12.Can you get new masks if you ask for a new one?
Exhibit 2 - Cotton Prison - 18

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1815 Page 19 of 140
a. No we can't get new mask because their aren't any, you have to fabricate your own or pay someone to make you one.
13.Has the prison used portable showers? a. Yes, portable showers were placed in the gym 3 days after inmates were already living in the gym, guys went 72 hrs without a shower.
My name is Joshua Zuazo #463189, I'm an inmate at JCF & the above was type be me & it is accurate to the best of my knowledge & belief. I will testify under the penalty of perjury. I give Attorney Dan Manville my permission to act on my behalf & sign any legal documents pertaining to this matter.
Exhibit 2 - Cotton Prison - 19

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1816 Page 20 of 140
DECLARATION OF CHARLES BROOKS: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a.Yes I tested positive. 2. If you are in a 2-person cell, were you instructed that each of you should have your head on the opposing end of the bed to created 6-feel separation?
a. I am in a cubicle setting. No one has been instructed to sleep with heads on opposing ends. 3. Can you engage in 6-foot separation when moving about your unit?
a.No. 4. Are you given cleaning supplies for your cell?
a. Not other than the diluted citrus cleaner we could use prior to the pandemic 5. Have you observed the unit being cleaned?
a. Our unit is supposed to be cleaned, by unit porters, 6. If yes to Number 8, how often is the unit cleaned?
a. The unit is supposed to be cleaned at 11am, 4pm, and 11:30pm. Some housing unit porters perform their duties, but most don't.
7. Are the telephones, cleaned after each use? a. The phones aren't cleaned after each use because there are no rags
available to wipe down with. We won't use our toilet paper because our ARUS
Exhibit 2 - Cotton Prison - 20

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1817 Page 21 of 140
only gives out one roll of toilet paper PER WEEK, and tells us that we must buy more from the store. So no one wants to waste their tissue. 11. How often are the bathrooms cleaned?
a. The bathrooms are supposed to be cleaned at the times I listed in my response to question 6. But, as I have already stated, some porters just don' perform their duties. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates?
a. There were no panels to separate us from the initial outbreak here at JCF. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. The PUI unit here at JCG consisted of placing men in segregation. Anyone who was suspected of being sick was immediately moved to seg, and their cubies were moved to a 'close contact' unit. The guys in the PUI unit were treated as if they were in seg for disciplinary reasons. They weren't allowed access to a phone, or Jpay, until the test results came back. 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. There is no ability to socially distance while showering or using the bathroom because our facilities are literally 2 feet apart 17. Is there social distancing of 6-feet during exercise or on the yard?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1818 Page 22 of 140
a. On the yard there is the ability to socially distance, but because there are only 12 phones on the yard, and roughly 12 tables, there tends to be crowding as guys wait to use the phone.
19. Is there social distancing of 6-feet during feeding in the unit? a. They tried to enforce social distancing in the chow hall. They then moved
to feeding everyone inside of their units. Which eliminated social distancing because we only have 4 tables that can seat 16 people in our dayroom. We are forced to eat in our cubes, which places us less than 2 feet from each other. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. They moved people from one unit to another in a way that people who might be carriers of the disease could have spread it. I was in the TB unit, the initial outbreak unit. I was tested and tested negative. Out of 160 guys, 73 were removed from the unit because they were sick. That left 87 of us who were over a week of being symptom free, with no new people ill. On April 23, when people in TC unit were taken out because they showed symptoms, everyone in TB unit was told that we were moving to TC. We protested because we did not understand why they would move us from a unit where no one was getting sick to a unit where they were just starting to get sick. Additionally, according to the posting they had up
Exhibit 2 - Cotton Prison - 22

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1819 Page 23 of 140
about the CDC guidelines, they were supposed to wait at least 24 hours before messing with those guys linens, etcetera. We were told that this came from Lansing and it was happening. If we refused to move, we would go to the hole. So we were moved into a cube less than an hour after 8 people were moved out, at least one of which was COVID-19 positive. Once we were tested this past week, I was now positive. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. The prison gave us 3 masks here at JCF. They were made by Michigan State Industries, from the same material our blues are made from. Staff is provided N95’s. 22. When you are patted down, are guards using gloves?
a. Yes 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When?
a. Guards do not change gloves in between each individual patdown. They also don’t change gloves when packing up a guy’s property, or shaking down a cube: they aren't changing gloves between each individuals property and space. 24. Can you get new masks if you ask for new ones?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1820 Page 24 of 140
a. No. I haven't seen anyone get new masks. I have seen guys stapling them to fix them. I used my sewing kit to repair mine. 25. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. I feel that they wanted us to contract this disease because Lansing made no efforts to provide us with a basic reasonable defense. I am asthmatic and have chronic bronchitis. I also have hypertension, and there was no way to create the spacing needed to try to stay safe. Officers weren't taking this seriously, initially. And we had no choice in the matter. 26. Has the prison placed porter-jones outside the housing units?
a. There are two portajohns on the big yard. There is no tissue out there, nor any cleaning supplies. One of the does not even have a door. 27. The CDC recommendations were NOT followed in that they moved me into a cubicle, less than an hour after they removed someone from that cubicle, that they suspected of having COVID-19, and who subsequently tested positive for the virus. After being in that cubicle, I tested positive for COVID-19, event hough I was negative when tested prior to moving to that unit. And the CDC guidelines were removed, nearly immediately, from where they were posted in the windows of the ARUS's office
Exhibit 2 - Cotton Prison - 24

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1821 Page 25 of 140
28. On May 15, I was called to the Corrections Officer's desk in TB unit, via the intercom. Once I got there, they told me I was being moved to TC unit. It was an unusual move, because while the MDOC can move prisoners at any time, they normally make moves here around 5pm. So I was moved, without being informed of any reasons. This morning, at @ 8am, Deputy Warden Rurka came to inform me that I had been moved because my Coronavirus test had been misdiagnosed. 29. When I was tested on 4/29/20, I was initialy told I was positive. Then I was moved to TB unit about 10 days ago,a nd told that the positive test result was actually incorrect. Wednesday, they tested my unit for the antibodies. The MDOC has distributed a memo that says that the antibody test wasn' going to be used to diagnose positive or negative tests for Coronavirus, but apparently mine was. 30. According to P.A. Austin, who came to see me this morning, once they discovered I had antibodies to the Coronavirus, they went back to my results and realized the lab had sent false results on me. So I was moved back to a positive unit because I am positive. I, Charles Grant Brooks, Sr. #351208, give Daniel E. Manville permission to sign my name, and act as my agent, in any future matters, pertaining to the lawsuit concerning COVID-19 filed against the Michigan Department of Corrections. My name is Charles Brooks, Sr. I a prisoner 351208, incarcerated at Cotton Correctional Facility. I swear that my answers and statements are completely true, under penalty of perjury, this 4th day of May 2020.
Exhibit 2 - Cotton Prison - 25

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1822 Page 26 of 140
DECLARATION OF CRAIG SEEGMILLER: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes. Positive. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. N/A. 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the opposing end of the bed to created 6-feel separation?
a. Yes I am in a 2-man cell. No instructions of any kind have been provided. 5. Can you engage in 6-foot separation when moving about your unit?
a. With the number of prisoners moving about at any given time, the likelihood of 6-foot separation is remote. 6. Are you given cleaning supplies for your cell?
a. Yes. 7. What cleaning supplies are you given?
a. Bleach and rags when requested. 8. Have you observed the unit being cleaned?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1823 Page 27 of 140
a. Yes. 9. If yes to Number 8, how often is the unit cleaned?
a. One to three times per day depending on staff supervision. 10. Are the telephones, cleaned after each use?
a. Only if we clean them ourselves. 11. How often are the bathrooms cleaned?
a. Similar to question 9. 12. If inmates have been placed in the dayroom, what can you tell me about them?
a. . No inmates living in dayrooms from what I can personally see 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. N/A. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No dayroom inmates, however, no further changes for GP to assist in separation. Bathroom configuration in this unit consists of about a 4 foot brick divider for privacy and toilets are back to back with about 3 feet of brick to protect plumbing. Despite facing opposite directions when using the toilet, I believe we are still less than 6 feet apart. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1824 Page 28 of 140
a. I believe no PUI units exist anymore. All of JCF has been tested, and to my knowledge there are now 4 COVID-19 Positive Units, and 2 COVID-19 Negative Units in Level 1. Level 2 D unit where I am currently housed is also a COVID-19 Positive Unit. 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No. 17. Is there social distancing of 6-feet during exercise or on the yard?
a. Yes for me because my unit goes to yard by itself, but not for Level 1 due to more than one unit on the yard at one time. Level 2 is largely unaffected and has the remaining 7 units on the yard at one time. So for all outside of my particular unit, the answer would be no. 18. Is that rule enforced by the guards?
a. No. 19. Is there social distancing of 6-feet during feeding in the unit?
a. No. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. Constantly being moved around between units, Level 1 and Level 2. Cube mates being tested and us not getting tested until facility wide testing putting us back around other inmates who may or may not have it who may infect me or who
Exhibit 2 - Cotton Prison - 28

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1825 Page 29 of 140
I may infect. I have been put around sick people, and sick people also are being moved around possibly infecting others. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. We have been given three masks to date about 3-4 weeks ago. They are prison made out of a single thin layer of State Blue material that is thin enough it is partially see through. I do not believe they help prevent the spread of infection because they are very thin and are not equivalent to an N95. They say that "these masks will help to reduce the spread by preventing a sick person from spreading it to another by catching droplets." However, if a N95 respirator is what is recommended to catch particulates, and if this mask were to fail at containing the virus in a sick person, it will also fail to contain the virus in a healthy person and prevent them from getting sick. 22. When you are patted down, are guards using gloves?
a. I have not witnessed anyone get a pat down recently as the number of positives are increasing, however, prior to the facility wide testing (conducted 4/27 to 5/1) staff were conducting pat downs with gloves on. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1826 Page 30 of 140
a. They did not change gloves in between shake downs. They remove the gloves after they have reached their daily quota (5 shake downs per shift). 24. Can you get new masks if you ask for new ones?
a. I have asked numerous staff members many different times for new masks as they start falling apart after about the second wash, and they have never provided me with another mask. 25. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. See No. 20. 26. Has the prison placed porter-jones outside the housing units?
a. No. And there are only 2 on each big yard that prior to this outbreak were cleaned once a week. I do not believe this schedule has changed. 27. If yes, which housing units?
a. No. 28. Has the prison used portable showers?
a. No. 29. If yes, in which housing units?
a. N/A. 30. I have witnessed a gross lack of concern for the safety of the population by the Administration here in Level 2's COVID-19 Positive D Unit. There is a female
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1827 Page 31 of 140
Corrections Officer assigned to the unit with the last name of Johnson. I have witnessed prior to this day the exact same thing I am reporting witnessing today on a day that I do not recall. I can however, factually say that today I witnessed her not wear the required PPE in DOM 2020-30 in that by her working this unit, she is at all times within 6 feet of a Close Contact (porters, co-workers assigned to a COVID-19 Positive Unit), as well as confirmed COVID-19 Positive individuals housed in this unit. 31. On 5-6-2020 I witnessed Officer Johnson not wearing the required PPE (for Close Contacts and Positive Individuals requires an "N95 or other mask, a gown, eye protection, and gloves") while working all day today. And at approximately 1420-1445 while the COVID-19 Negative Level 2 population was going to and from the big yard directly outside our housing unit, she was out there improperly wearing her mask. During the time frame above, she then went out wearing only her uniform and mask and was mingling and talking to the Level 2 inmates getting within 6 feet of them. 32. Sergeant Davison entered the unit at approximately 1515 in full awareness of the requirements set forth in DOM 2020-30 pursuant to PD 01.04.110 Paragraph A and did absolutely nothing to correct the problem. I witnessed Sergeant Davison speak to Officer Johnson in the C/O break room in the hallway behind the Officer's Desk. It is currently 1529 and she is still outside the unit without the required PPE
Exhibit 2 - Cotton Prison - 31

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1828 Page 32 of 140
exposing not only herself, but anyone else she comes in contact with (Level 2 inmates and staff) which shows that Sergeant Davison failed to correct the problem despite knowing about it. 33. I have also witnessed her go stand outside of E/F units directly across from us without wearing PPE in the unit and also not wearing it out there potentially contaminating things outside (i.e. garbage cans for the units that inmate porters empty out about 3x daily). 34. I have witnessed something else that takes place daily. Every day either once or twice a day, nurses come in to take vitals of the population (voluntary now). The vitals consist of no more than:
a) 1) Temperature Check 2) Pulse Oximetry 3) BP Check for 65 y/o and above or when requested.
b) The nurses do not change gloves. c) The nurses use the same wipe to disinfect the medical instruments 35. During insulin lines, the nurses are not changing gloves in between injections (self administered by inmates but filled by nursing)
I Craig Seegmiller #373625 attest the above information to be accurate and true to the best of my knowledge under penalty of perjury and give Dan Manville permission to sign my name.
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1829 Page 33 of 140
DECLARTION OF JESSE NICHOLS: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes, I am now positive. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No, no symptoms until after the test. I was told to sleep on my stomach and given vitamins a week after the diagnosis.
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. See above
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. Was not told to sleep at opposite ends of the bunk. I am in an 8-man cubicle that is about 14×20ft. where I sleep less than 2 feet away from 3 other people and the other 4 aren't much further. The level 1 housing units are 2 hallways of 10, 8-man cubicles each, with half walls and open ceilings for a total of 160 people per unit. Also with an open ventilation system that connects to other units. Positive/ negative units.
5. Can you engage in 6-foot separation when moving about your unit?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1830 Page 34 of 140
a. Absolutely not. The housing units we have been confined to are designed to cram as many people together as possible.
6. Are you given cleaning supplies for your cell? a. units are supposed to be cleaned periodically throughout the day, but is at each Individual unit porter's discretion.
7. What cleaning supplies are you given? a. We are given state made cleaners and diluted bleach that can be used if we ask, if it's available at the time.
8. Are the telephones cleaned after each use? a. Phones not cleaned after each use.
9. How often are the bathrooms cleaned? a. Supposed to be periodically but lucky if they are cleaned once a day, specially the showers.
10. Is there a PUI unit? a. The PUI unit was a unit cleared out of the level 2 side for people waiting for test results. But the worst area you should know about would be the gymnasium where they put an overflow of nearly 90 positive prisoners, where their property was taken, they weren't given hygiene for nearly a week, and set up a makeshift shower in the adjacent barber room out of pvc pipes coming from 3 sinks. No floor drain but a tarp and trench
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1831 Page 35 of 140
system that would run the used shower water with bodily fluids through the other showers, over other peoples feet, to drain in a nearby janitorial sink. 11. Is there social distancing of 6-feet during use of bathrooms, showers? a. No 12. Is there social distancing of 6-feet during exercise or on the yard? a. Yard, yes. indoors, no. 13. Is that rule enforced by the guards? a. On the yard, no. In the housing units they try during during med lines when the nurses come in but they rarely say anything because its impossible in here. 14. Is there social distancing of 6-feet during feeding in the unit? a. Absolutely not. The food is now brought to our units in styro foam containers (usually cold), served out of the day room, and eaten in our cubes. 20/25. 15.What other issues are you experiencing with COVID-19? a. A) They are telling the prisoners they will not facilitate private attorney calls because the unit counselors have been pulled from the units. They were in charge of the inner workings of the units and the liaisons
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1832 Page 36 of 140
between us and the administration/parole board. B) They had quit taking our mail/kites for a week now and just yesterday found out. C) All meals are more often served cold from sitting in the styrofoam and has been making people sick more frequently, since the kitchens are now state run there is no accountability. D) Prisoners in the gym were told by the administration that there are 8 different strains of Corona virus so "it doesn't matter how they move people around because we're going to keep getting each other sick anyway". E) There has been no separation in the scheduling or movement of the C.O.s, they'll work in a positive unit one day and a negative unit the next. F) My family has been messaging me like I could die any day! I feel horrible for adding more worry to them than they already had to begin with. G) Finally, the atmosphere here has gotten so much worse. Less and less C.O.s are able to come in while more prisoners talk about protesting or even rioting. I've watched so many people around me come down hard with this sickness while the prison did as little as possible every step of
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1833 Page 37 of 140
they way, sending out puffed up notices of how good their doing while the virus has spread through the majority of the level 1 compound. People I have met have died that otherwise would have been home within a couple years. I am suspended from my job at MSI. Everything positive I could do is no longer available, library, gym, the A.A. meetings I was chairing. In March we were told the DOC would be working around the clock to release medically vulnerable people and those who are past their earliest release dates. My ERD was in 2017 and they have done nothing for me. I haven't even been able to just get a normal date for a parole interview. This entire ordeal has taken more of a toll on me than I can put into words.
16. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. 3 prison made masks that are 1 layer of cloth that wear out quickly. 17.When you are patted down, are guards using gloves?
a. yes, I have not seen them change gloves between shakedowns once. 18. If the guards are using gloves when patting you down, do you notice if the
guards are changing their gloves after? a. See above
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1834 Page 38 of 140
19.Can you get new masks if you ask for a new one? a. 24. We are supposed to but they never have any when asked. People are just using random scraps of clothing now.
I, Jesse Nichols, confirm that my statement regarding MDOC and their handling of the covid epidemic is true under the penalty of perjury, I authorize Attorney Daniel Manville to sign the affidavit on my behalf
Exhibit 2 - Cotton Prison - 38

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1835 Page 39 of 140
DECLARATION OF NICHOLAS SPIRDIONE: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes, positive 2. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. Yes to 2 man cell, no to any sort of instructions. 3. Can you engage in 6-foot separation when moving about your unit?
a. Realistically, no. The likelihood is beyond remote. 4. Are you given cleaning supplies for your cell?
a. Yes 5. What cleaning supplies are you given?
a. Bleach is available and clean rags on request. 6. Have you observed the unit being cleaned?
a. Yes, but not as adequately as I would like to see. 7. If yes to Number 8, how often is the unit cleaned?
a. As of late, perhaps 3x daily? Usually during count (1100, 1600, 2120 hours).
8. Are the telephones cleaned after each use?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1836 Page 40 of 140
a. No. Phones are only cleaned if we ourselves clean them. Nothing is nearby in my unit specifically for the phones either. Should you leave to get something to clean the phones, you'll lose your spot and opportunity to use the phone.
9. How often are the bathrooms cleaned? a. Not entirely sure. I think the porters here tend to avoid cleaning our bathroom, but sometimes will put things in the bathroom for us sick people to do it ourselves.
10. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No alterations in bathroom. Current setup in my unit consists of 2 toilets back to back with approx. 2-3 feet of concrete to protect the plumbing with approx. 3.5-4 foot partitions for privacy. On my floor, only one has a door. Also, 1 urinal <1.5 feet away from the first sink which is roughly <1 foot away from the second sink. I would estimate the sq. footage of the bathroom to be less than the estimated 10 x 20 foot cubes I was in in level 1.
11. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1837 Page 41 of 140
a. Not anymore. At this point, there are Positive Units, and Negative Units. Each houses individuals that at this time is solely based on COVID-19 lab results.
12. Is there social distancing of 6-feet during use of bathrooms, showers? a. No
13. Is there social distancing of 6-feet during exercise or on the yard? a. Current setup is option for us. However, majority of Level 1 no. Distancing on the yard is not mandatory either.
14. Is that rule enforced by the guards? a. No
15. Is there social distancing of 6-feet during feeding in the unit? a. No
16. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue? 17. How many masks have you gotten from MDOC? Are they prison made?
a. Currently 4. Only 3 were standard issue. I recently got another on request. Yes they are made at our MSI factory. To prevent "infection" I don't believe so. They are made from a single layer of State Blue T-Shirt material. This layer is thin enough that despite the darkness in color, it is still slightly see-through when held against the light. This material also
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1838 Page 42 of 140
is not equal to or greater than a HEPA mask such as a N95 respirator. With the holes in the material that are evident when held against the light, it is easy to see how ineffective they are. They MIGHT trap half or most particulates released when coughing and/or sneezing, however, there are many more microscopic particles released that will still get through this material. 18. Are they helpful to prevent infection? If no, why not? a. See above 19.When you are patted down, are guards using gloves? a. When pat downs were openly taking place, they did not change gloves in between individuals. They also did not change gloves in between bunks and property when shaking down cells and cubes. 20. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. At this time yes for my unit. But for the perhaps 30 days previous, no. 21.Can you get new masks if you ask for a new one? a. See, #20 22.Has the prison placed porter-jones outside the housing units? a. No 23.If yes, which housing units?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1839 Page 43 of 140
a. N/A 24.Has the prison used portable showers?
a. No 25.If yes, in which housing units?
a. N/A 26. On May 10, I observed Officer Johnson not wearing mask. It is hanging below
her chin at the Officer's Desk. I watched her talk to another inmate and not pull her mask up and also talk into the mic possibly contaminating it for the other staff. 27. Later that day, Johnson did a round wearing only a mask, no other PPE
a. Footage will also show her again wearing only a uniform and mask; no gown, gloves, eye protection. JCF-2313, JCF-2311, JCF-2312, JCF2332.
28. As a former Emergency Medical Technician, part of our education consists of containment, isolation, and quarantine as we are First Responders going into unknown situations daily and must always be ready and always be prepared. Therefore, I see many things done wrong. a. First, DOM 2020-30 requires only: "an N95 or other mask, a gown, eye protection, and gloves." This is a first step, but to truly accomplish containment and prevent the spread, it is insufficient. The DOM also
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1840 Page 44 of 140
requires "PPE worn in an isolation area shall be removed before going to another area of the facility." By definition, taking off a gown and carrying it with you to another part of the facility is " 'removing' it before going to another part of the facility." It does not explicitly require disposal prior to going to other parts of the facility. I have witnessed once the gown is removed, the nurses take them with them to wherever they go when they leave here. And most of them roll the gown up and bundle it under their arm. Through cross-contamination, their scrubs/clothes are contaminated. There is no "step-up" to don PPE, and no "decon" to remove PPE and keep it isolated from the facility. To my knowledge, PPE is discarded in standard garbage bags. I also witness C/O's remove PPE in the unit sometimes an hour or more before the end of their shift. They then leave the unit like nothing is wrong in their uniform potentially carrying the virus to other parts of the facility. b. Despite this being a COVID-19 unit, and also against DOM 2020-30, ["... required PPE shall also be worn by staff at all times when they are in an isolation area, tranporting a prisoner with a confirmed or supected case of COVID-19, packing the property of a prisoner with a confirmed or suspected case of COVID-19, or at any time the staff member has close contact (i.e., within six feet) with an offender (i.e., prisoner,
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1841 Page 45 of 140
parolee, probationer) who has a confirmed or suspected case of COVID19"] I have seen at a minimum a Sergeant and Lieutenant come in without wearing anything other than a mask. Then they leave taking whatever they picked up with them. I have also witnessed our regularly assigned Unit Officer, Ms. Johnson not wear anything more than a mask on several occassions, and also wear her mask improperly. Then she goes outside after being in here for hours in "close contact" with other "close contacts" (porters, coworkers) and known positives, and mingles with other staff and COVID-19 negative Level 2 on the way to/from yard. c. I have also received my SARS-CoV-2 lab results. Under comments, it reads: "THESE RESULTS ARE FOR THE DETECTION OF SARSCOV-2 RNA. DETECTED RESULTS ARE INDICATIVE OF THE PRESENCE OF SARS-COV-2 RNA. CLINICAL CORRELATION WITH PATIENT HISTORY AND OTHER DIAGNOSTIC INFORMATION IS NECESSARY TO DETERMINE PATIENT INFECTION STATUS. POSITIVE RESULTS DO NOT RULE OUT BACTERIAL INFECTION OR CO-INFECTION WITH OTHER VIRUSES. NEGATIVE RESULTS DO NOT PRECLUDE SARSCOV-2 INFECTION AND SHOULD NOT BE USED AS THE SOLE
Exhibit 2 - Cotton Prison - 45

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1842 Page 46 of 140
BASIS FOR PATIENT MANAGEMENT DECISIONS. NEGATIVE RESULTS MUST BE COMBINED WITH CLINICAL OBSERVATIONS, PATIENT HISTORY AND EPIDEMIOLOGICAL INFORMATION. IMPROPER SPECIMEN COLLECTION CAN RESULT IN POSSIBLE FALSE NEGATIVE RESULTS." d. I provide this because on 4-30-20 when they verbally informed us of our results, a sheet was also provided which reads: "To recap everything I said since it is likely a lot to absorb at once: Your swab was positive for coronavirus This virus is new and is being treated similar to the flu. Meaning symptoms are treated. The majority of people affected by this virus recover. I am ordering you Tylenol and some vitamins/minerals to boost your immune system I am also ordering labs that will likely be done today It is very important that you stay hydrated, stay moving and sleep on your stomach if possible. It is very important that you let someone know if you have trouble breathing. Custody is aware of the result and are coordinating a move to a unit
Exhibit 2 - Cotton Prison - 46

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1843 Page 47 of 140
where all positives will be. From what I am told there will be TVs, phones, ability to move around more and possibly JPAY." 29. When moving here on 4-30-20, my mask fell off about 1/4 of the way from Level 1 TB to Level 2 D Unit. I was already starting to experience DOE (dyspnea on exertion). It was very apparent by the time I came near D Unit. No staff member said anything on the way. However, when I got near D Unit, Officer Stevenson started harassing me about not wearing my mask despite seeing apparent DIB (difficulty in breathing). Once he started, the officers escorting me also started harrasing me about it rather than assist me in pulling an extremely heavy cart with my stuff on it. I wound up giving him my ID and Sergeant Gonzalez apparently talked him out of the ticket and transported the cart the remaining 30 feet or so. I am already sick with unexplained weight loss in excess of 65 pounds in a period of 12 months. To me this shows a gross lack of concern for the health and safety of the population. Also the sheet provided states 2 things: "It is very important that you let someone know if you have trouble breathing," and "Custody is aware of the result and are coordinating a move to a unit where all positives will be." I made it apparent I was having trouble breathing when I first said to Ofc. Stevenson "I'll put my mask back on
Exhibit 2 - Cotton Prison - 47

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1844 Page 48 of 140
when I get my stuff to the block and can sit and catch my breath." All this in full awareness of why I was being moved to a positive unit. 30.I also regularly witness officers being shuffled around daily. I would suggest getting staffing charts and see how often one person works a different place. I know for a fact that Level 2 D Unit is a Positive Unit. I have heard from someone in Level 1 on the yard a few days ago that TA, TD, TE, and TF are Positive Units. I would see how often people are rotated through those units and then assigned elsewhere on their other work days possibly promoting spread. 31. I have also found out today that "routine" transfers still exist. Though DOM 2020-30 only requires them to be "approved by the CFA Deputy Director," someone from RGC transferred here from what he tells me was unrelated to COVID-19.
I Nicholas Alan Spirdione attest the above to be true to the best of my knowledge under penalty of perjury. I attest the following to be true under penalty of perjury and authorize Dan Manville to sign this document on my behalf.
Exhibit 2 - Cotton Prison - 48

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1845 Page 49 of 140
DECLARATION OF JAMEL EL-AMIN, 347765: COTTON
1. Have you been tested for COVID-19? If yes, what is your medical status? a. Yes/Positive.
2. Had you sought health care because you thought you had COVID-19 symptoms?
a. Yes. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. Blood draw/vitamins but no tylenol 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If are not in a 2-man cell- describe where you are currently housed.
a. No/Pole barn unit/eight man cube. 5. Can you engage in 6-foot separation when moving about your unit?
a. No. 6. Are you given cleaning supplies for your cell?
a. No. 7. What cleaning supplies are you given?
a. Once a week bleach
Exhibit 2 - Cotton Prison - 49

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1846 Page 50 of 140
b. The staff gave the unit only 3 spray bottles of bleach, and 4 bottles of citrus cleaner, the staff only fills these bottles twice out of the day to use between 160 inmates and a lot of times they run out most of the time. 8. Have you observed the unit being cleaned?
a. No. 9. Are the telephones, cleaned after each use?
a. No. 10. How often are the bathrooms cleaned?
a. Once a day/if any day 11. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. No. 12. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No. 13. Is there social distancing of 6-feet during exercise or on the yard?
a. No. 14. Is that rule enforced by the guards?
a. No. 15. Is there social distancing of 6-feet during feeding in the unit?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1847 Page 51 of 140
a. No. 16. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. Three/Yes/No/Because they are made from state blues 17. Can you get new masks if you ask for new ones?
a. No/they say to wash them between each use. 18. Guards are shaking down inmates and not changing their gloves in between. The above is true under penalty of perjury and Dan Manville can sign my name.
Exhibit 2 - Cotton Prison - 51

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1848 Page 52 of 140
DECLARATION OF JAMES BALDWIN: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. yes, I tested positive on 4/30/20 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. None 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. I am currently being housed in a 14 by 20 cube space with 7 other inmates, and in the cube, we have 4 bunk beds with upper and lower bunks, we have 8 wall lockers, 4 chairs and 2 trash cans and all of our property in one cube. My cell mate above me sleeps right above me but with the way are shelves on our bunks are done we sleep opposite of each other.
5. Can you engage in 6-foot separation when moving about your unit? a. No, you can’t because the unit is approximately 70x150 with 160 inmates in such a small area.
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1849 Page 53 of 140
6. Are you given cleaning supplies for your cell? a. Yes
7. What cleaning supplies are you given? a. We use watered down citrus cleaner and if we take a rag up then we can spray it with bleach.
8. Have you observed the unit being cleaned? a. Yes
9. If yes to Number 8, how often is the unit cleaned? a. 4 times a day
10. Are the telephones cleaned after each use? a. No
11. How often are the bathrooms cleaned? a. They are supposed to be cleaned every hour by the porters, but they actually get cleaned sometimes only once a day. They are always really bad.
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. They are considered PUIs, So if somebody showed symptoms that person was taken to be tested and the other 7 inmates would go in the day room until the nurse came only to screen them by taking their
Exhibit 2 - Cotton Prison - 53

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1850 Page 54 of 140
temperature, pulse and oxygen levels ad if they were all normal they went back into population without TESTING. 13. Do the inmates in the dayroom use the bathrooms for the unit? a. Yes 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.? a. No 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit? a. Yes its d unit in level 2 and they are the inmates that were in contact with somebody who tested positive, but they only did that for the first week or 2 then they started saying if you don’t show symptoms than you stayed were you are and they take the one showing symptoms and put them in segregation until their test came back and if they were positive they go to k unit or the gym. 16. Is there social distancing of 6-feet during use of bathrooms, showers? a. No 17. Is there social distancing of 6-feet during exercise or on the yard? a. No 18. Is that rule enforced by the guards?
Exhibit 2 - Cotton Prison - 54

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1851 Page 55 of 140
a. No 19. Is there social distancing of 6-feet during feeding in the unit?
a. No 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. I received 3 masks and yes, they are prison made, No I don’t believe they're that helpful in preventing infection because guys are always touching their mask to adjust it or take it down and they're touching it all day and then touching the phone and jpay or doorknobs
22.When you are patted down, are guards using gloves? a. Yes
23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. Not unless you say something
24.Can you get new masks if you ask for a new one? a. No
25.Has the prison placed porter-jones outside the housing units?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1852 Page 56 of 140
i. No 26.If yes, which housing units?
a. Only in the yard 27.Has the prison used portable showers?
a. Yes, only in the gym but I was told that the inmates had to go 5 days without a shower until the portable showers were set up and then they were very crude.
28.If yes, in which housing units? a. The gym
I James Baldwin, certify that the information above is true under penalty of perjury and I give attorney Dan Manville my permission to sign it on my behalf.
Exhibit 2 - Cotton Prison - 56

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1853 Page 57 of 140
DECLARATION OF KEITH LANE: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. yes I was tested positive on 4/30/2020. My medical status is I'm still feeling some of the symptoms like loss of appetite and the cold chills.
2. Had you sought health care because you thought you had COVID-19 symptoms?
a. no I did not seek help from health care because at the time they were putting you In segregation for 3 days without your property. all you would get is a book and I feared that if I got too bad nobody would be able to monitor me and I could possibly die.
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. once I testd positive for covid-19 the nurses come in 2 times a day only to take your temp, pulse and blood oxygen level. I didn't receive my vitamins until 5/6/2020.
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. I am currently being housed in a 14×20 "cube" space with 7 other inmates, and in the cube we have 4 bunk beds with upper and lower
Exhibit 2 - Cotton Prison - 57

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1854 Page 58 of 140
bunks, we have 8 wall lockers, 4 chairs 2 trash cans and all of our property in one cube. my cell mate above me sleeps right above me and the way the bunks are built with shelves there is no way to sleep with our heads at opposite ends. only 2 bunks in my cube are set up were you can sleep at opposite ends. 5. Can you engage in 6-foot separation when moving about your unit? a. no you can't because the unit is approximately 70×150 with 160 inmates in such a small area. 6. Are you given cleaning supplies for your cell? a. yes 7. What cleaning supplies are you given? a. we use watered down citrus cleaner and if we take a rag up to the officers' station they will allow us to spray a rag with bleach. 8. Have you observed the unit being cleaned? a. Yes 9. If yes to Number 8, how often is the unit cleaned? a. 4 times a day 10. Are the telephones cleaned after each use? a. No 11. How often are the bathrooms cleaned?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1855 Page 59 of 140
a. they are supposed to be cleaned every hour by the porters but they actually get cleaned sometimes only once a day. they are always real bad.
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. they are considered PUIs, so if somebody showed symptoms that person was taken to be tested and the other 7 inmates would go in the day room until the nurse came only to SCREEN them by taking their temperature, pulse and oxygen levels, and if they were all normal hey went back into population without TESTING.
13. Do the inmates in the dayroom use the bathrooms for the unit? a. Yes
14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. yes, its D unit in level 2 and they are the inmates that were in contact with somebody who tested positive, but they only did that for the first week or 2 because then they started saying if you don't show symptoms
Exhibit 2 - Cotton Prison - 59

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1856 Page 60 of 140
than you stayed were you are and they take the one showing symptoms and put them in segregation until their test came back and if they were positive they go to K unit or the gym. 16. Is there social distancing of 6-feet during use of bathrooms, showers? a. No 17. Is there social distancing of 6-feet during exercise or on the yard? a. No 18. Is that rule enforced by the guards? a. No 19. Is there social distancing of 6-feet during feeding in the unit? a. No 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue? a. mdoc was not prepared at all. they didn't take any precautions to control covid-19 at least not the proper ones. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. I received 2 masks and yes they are prison made. I also work at the MSI factory and I was making the masks and they're made out of cotton fabric that our clothes are made of and no I don't believe they're that
Exhibit 2 - Cotton Prison - 60

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1857 Page 61 of 140
helpful in preventing infection because guys are always touching their mask to adjust it or take it down and they're touching it all day and than touching the phone or jpay or door knobs etc, 22.When you are patted down, are guards using gloves? a. Yes 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. No they don’t unless you say something 24.Can you get new masks if you ask for a new one? a. no they say you were issued 3. 25.Has the prison placed porter-jones outside the housing units? a. No 26.If yes, which housing units? a. Only on the yard 27.Has the prison used portable showers? a. yes, only in the gym but I was told that the inmates had to go 5 days without a shower until the portable showers were set up, and then they were very crude. 28.If yes, in which housing units? a. Only the gym
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1858 Page 62 of 140
My name is Keith Lane, inmate# 403113 and I'm currently being housed by the MDOC at the G. Robert Cotton facility, Housing Unit TE, at 3510 N Elm Rd in Jackson MI, 49201. I am also the block representative on the warden's forum for TE unit. below are my answers to the questions I was asked in your message. I Keith Lane, certify that the information above is true under penalty of perjury and I give attorney Dan Manville my permission to sign it on my behalf.
Exhibit 2 - Cotton Prison - 62

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1859 Page 63 of 140
DECLARATION OF SAMER FAWAZ, 570500: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes. I tested positive. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No. Because everyone who was voluntarily coming forward with symptoms was being placed in segregation and not allowed access to his personal property (i.e. food items, clothes, etc.) and not allowed phone or jpay access.
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. N/A.
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. . I am currently in a 8-man cube (4 bunk beds with about 2 feet separation in between). My bunk mate and I face the same direction. No instructions were given regarding sleeping arrangements.
5. Can you engage in 6-foot separation when moving about your unit? a. There is no way to keep a 6-foot distance while inside the unit. The hallways are about 5-6 feet wide.
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1860 Page 64 of 140
6. Are you given cleaning supplies for your cell? a. We are given supplies only when we request them.
7. What cleaning supplies are you given? a. We are only allowed to use citrus cleaner. They have bleach at the officers' desk but they will not part with the bottles. We can spray a rag and bring the rag back to clean with.
8. Have you observed the unit being cleaned? a. Yes.
9. If yes to Number 8, how often is the unit cleaned? a. Every 2 hours, a porter walks around with a bleach bottle and a rag and wipes the sides of the half walls separating the cubes from the hallway. He also wipes down the faucets in the bathroom sinks as well as the door handles to the day rooms. Sweeping and mopping is done during count time
10. Are the telephones cleaned after each use? a. Yes. But it is up to the person using the phone to clean it. It is not enforced, so not everyone does it. And there is roughly only about 2 feet between phone.
11. How often are the bathrooms cleaned?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1861 Page 65 of 140
a. The bathrooms are cleaned during count times (for the most part), which is @11:00 a.m. and 4:00 p.m.
12. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. Don’t know. 13. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. My understanding is that they use segregation for PUI. And those who are there are treated exactly the same as those who are there as punishment!
14. Is there social distancing of 6-feet during use of bathrooms, showers? a. There is no way to practice social distancing in the bathrooms or showers. The toilets are separated by a half wall (maybe 4 feet high) with no more than 6 inches between the toilet and each wall. The showers are separated by a 6-inch wall only, and the sinks have maybe 6 inches between them.
15. Is there social distancing of 6-feet during exercise or on the yard? a. No separation on yard either. The track is too narrow, the yard phones are about 2 feet apart and the exercise areas (pull up bars, dip bars, etc.) are always crowded.
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1862 Page 66 of 140
16. Is that rule enforced by the guards? a. The guards do not enforce any of these rules.
17. Is there social distancing of 6-feet during feeding in the unit? a. No. Everyone gets in line to be served pre-packaged meals with barely any distance between them. We return to the cube and eat there.
18. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. We don't get as much yard time. They don't pick up mail and it sits in the mailbox for days on end. We are barely able to use the phones due to long lines (we are literally cramped in a small day room awaiting a turn on the phone. And you can imagine the ones cutting in line or staying on the phone too long, which creates more hostility and tempers flaring). My family is constantly worried about my health and safety (I have served 16.5 years on a 20-year sentence but because I am under "TruthIn-Sentencing" I am not eligible for parole unless the governor suspends the TIS law.
19. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. We were issued 3 masks each. They were made here at MSI factory at G. Robert Cotton facility. I don't think they prevent infection because I
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1863 Page 67 of 140
was healthy when I was issued the masks and I was always wearing it properly and I still got infected. I was moved from a 2-man cell a few weeks before the first case here. As far as I'm concerned, the facility was negligent by moving me and allowing me to be exposed and infected because the unit I came from did not have any positive cases when the entire facility was tested 20.When you are patted down, are guards using gloves? a. To my knowledge, the guards have not been performing pat downs or cell searches 21. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. I don’t know. 22.Can you get new masks if you ask for a new one? a. I don't know because I have not requested a new one. I wash my masks and rotate them on a regular basis. 23.Has the prison placed porter-jones outside the housing units? a. Not to my knowledge. 24.If yes, which housing units? a. I don’t know. 25.Has the prison used portable showers?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1864 Page 68 of 140
a. Yes. 26.If yes, in which housing units?
a. Portable showers were installed in the barbershop when the facility was housing inmates (who tested positive) in the gymnasium (48 bunk beds=96 beds) but have since moved everyone out and dismantled the showers.
I, Samer Fawaz, certify that this information is true under penalty of perjury, and I give Attorney Dan Manville my permission to sign on my behalf.
Exhibit 2 - Cotton Prison - 68

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1865 Page 69 of 140
DECLARATION OF JOHN BRANDON: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status? a. Yes and I am positive.
2. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. I'm currently housed at G Robert Cotton Correctional Facility, level one side. I'm currently being housed in a 14' ×20' cube space with 7 other inmates. We sleep on bunk beds. We have 8 lockers in the space. 4 chairs, 2 trash cans and all of our property. My cell mate sleeps right above me. There is no way for us to sleep with our heads at opposite ends. There are 2 bunks that do sleep with their heads at opposite ends
3. Can you engage in 6-foot separation when moving about your unit? a. .No.the unit is only 70'×150' with 160 inmates in it.
4. Are you given cleaning supplies for your cell? a. Yes.
5. What cleaning supplies are you given? a. They have citrus cleaner sometimes that we can use. We can go up to the officer's station where we can spray a rag with bleach.
6. Have you observed the unit being cleaned?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1866 Page 70 of 140
a. Yes. I see them mop the floors and wipe the half walls and hand rails down. But the unit I've been in, TE unit for over 2 years, I've never seen them thoroughly clean the entire unit. Power washers are not permitted at Cotton.
7. If yes to Number 8, how often is the unit cleaned? a. The unit is cleaned by the porters three times a day. Floors are mopped, handrails and half walls are wiped with bleach.
8. Are the telephones cleaned after each use? a. No.
9. How often are the bathrooms cleaned? a. Three times a day, morning, afternoon and evening.
10. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. No. They keep them with us. 11. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No. We have two separate bathrooms, one serving each hall of 80 prisoners. Each bathroom has three urinals, four toilets and seven sinks
12. Is there social distancing of 6-feet during exercise or on the yard? a. No.
13. Is that rule enforced by the guards?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1867 Page 71 of 140
a. No. They just sit in the guard shack. No attempt is made to make us observe social distancing or wear our masks, for that matter.
14. Is there social distancing of 6-feet during feeding in the unit? a. No. As we are on quarantne, we are eating our meals in the close quarters of our cubes.
15. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. I'm primarily concerned about the inability to observe social distancing; lack of cleanliness; the open plan nature of the building which seems to promote infection as opposed to control it; and the seeming disinterest on the part of the officers to take this all very seriously. (For instance, some officers will call an entire hall at once, 80 men, to pick up their meal at the day room, causing a long line of closely spaced prisoners. Other officers will call two cubes at a time, which allows to some degree for social distancing.)
16. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. I have three prison-made cloth masks which don't fit very snugly
17.When you are patted down, are guards using gloves?
Exhibit 2 - Cotton Prison - 71

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1868 Page 72 of 140
a. While on quarantine prisoners have not been patted down at all, which could be considered a security issue.
18. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. When we were patted down and the officers were wearing gloves, they did not change their gloves between patting down prisoners. We'd have to ask them to change their gloves.
19.Can you get new masks if you ask for a new one? a. No.
20.Has the prison placed porter-jones outside the housing units? a. No. We have two porta-johns on the yard which are cleaned all too
infrequently.
My name is John Brandon, inmate #891293. I'm being housed in Jackson at Cotton Correctional Facility, 3510 N Elm Ave. Jackson Michigan. 49201. I, John Brandon, under penalty of perjury, give you my permission to sign and use my answers above in your materials for the law suit.
Exhibit 2 - Cotton Prison - 72

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1869 Page 73 of 140
DECLARATION OF EUGENE MARR: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes. Positive. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. no because they throw you in the hole and only make rounds every 2030min I was in fear of my life
3. Can you engage in 6-foot separation when moving about your unit? a. Not at all or at anytime.
4. Are you given cleaning supplies for your cell? a. No.
5. What cleaning supplies are you given? a. No.
6. Have you observed the unit being cleaned? a. only when porters clean
7. If yes to Number 8, how often is the unit cleaned? a. 3 times a day
8. Are the telephones cleaned after each use? a. No.
9. How often are the bathrooms cleaned?
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1870 Page 74 of 140
a. 2-3 times a day 10. Do the inmates in the dayroom use the bathrooms for the unit?
a. Yes. 11. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No. 12. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. yes thy place pui in the hole its horrible you get punished for being around something that you have no control over
13. Is there social distancing of 6-feet during use of bathrooms, showers? a. No.
14. Is there social distancing of 6-feet during exercise or on the yard? a. No.
15. Is that rule enforced by the guards? a. No.
16. Is there social distancing of 6-feet during feeding in the unit? a. no we eat in our 8men cubes
17. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
Exhibit 2 - Cotton Prison - 74

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1871 Page 75 of 140
a. 3 mask and no we have asked for more and we have not received any and there made from state clothing there not fitted so they don't help with protection
18.When you are patted down, are guards using gloves? a. Yes.
19. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. They don’t change them.
20.Can you get new masks if you ask for a new one? a. we've asked and have not gotten any
21.Has the prison used portable showers? a. it is like they have purposely helped to spread the covid-19 by continuously cross contaminating positive and negative inmates for 2 months and now 90% of our prison population here at jcf have tested positive, also our deputy warden has told us that there is no reason to complain because we will all most likely catch covid-19
Exhibit 2 - Cotton Prison - 75

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1872 Page 76 of 140
This is the honest truth that I Eugene Marr Jr swears by. I Eugene L. Marr J.R gives Daniel E. Manville permission to sign an affidavit on my behalf. Electrically sign, Eugene L. Marr J.R
Exhibit 2 - Cotton Prison - 76

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1873 Page 77 of 140
DECLARATION OF JERMAINE CAMPBELL (5/6/20): COTTON 1.G. Robert Cotton Correctional Facility (JCF) tested prisoners for coronavirus covid-19. 2.I Jermaine Campbell #745168 was tested for Covid-19, My test result is negative for covid-19 on April 30, 2020. 3. As stated before, Unit TA was scheduled to be tested on April 29, 2020. 4. Over half The Unit tested positive for coronavirus Including some of the Unit TB prisoners that was moved to Unit TA. 5.Unit TE did not get tested for covid-19 until April 30, 2020 as stated in the schedule from Warden Noah Nagy in the JPAY message. 6.Before Unit TE test results came back I ( JERMAINE CAMPBELL ) was moved into Unit TE on April 30, 2020 with out knowing who is potentially infected with covid-19. 7. To the best of my Knowledge and belief Unit TA was made into a Quarantine Unit for prisoners on the level one side. 8. To the best of My Knowledge and Believe I did not see any prisoners get moved into Unit TA on April 30, 2020 from units TB & TC. 9. April 29, 2020 during the testing in TA unit my cubicle mate came clean about being infected and was taken for urgent care. I slept approximately Three feet from this individual. His bunkie as well tested positive for covid-19.
Exhibit 2 - Cotton Prison - 77

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1874 Page 78 of 140
10. On April 30, 2020 Five other cube mates tested positive for covid-19. 11. During the course of the quarantine the prisoners Ate Breakfast, lunch & Dinner in the cubicles, slept in the cubicles and not able to adhere to the social distancing orders. The only thing we were allowed to do was in-house movement go to the day rooms watch TV and go to yard with only our unit separate from other units. 12. All the positive prisoners that tested for covid-19, was separated from the negatives so the negatives can pack and move away from the positives in TA-Unit on April 30. I don't know where they went while we packed but health care came and told "each" person before they left the unit on base of TA-unit that they was positive and gave them some paper work. I don't know what the paper work said. 13. Some guys were scared, nervous, Anxious, some cryied because they where uncertain about their health and life in the manner of how the officers was treating us. 14. Once I moved into TE-Unit you hear people coughing, hacking complaining about thier head hurting and they have fevers. 15. On may 1, 2020 over half the unit In Te-Unit tested positive for covid-19 The 8-man horse style cubicle I was moved to everyone was positive. I was again moved from Unit-TE, as the test result came back for more than half the Unit tested positive for covid-19.
Exhibit 2 - Cotton Prison - 78

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1875 Page 79 of 140
16. I had to be separated from the positives again and moved to Unit-TB where every one tested negative. I should not have been moved to TE unit that test result was unknown on April 30, 2020. (they will claim they had no other room for me to go at the time yet they did.) 17.My bunkie was moved to TB-unit And I was Moved Before him and his test result wasn't back until later after mine. 18. As of April 29, 2020 all officers working in TA TC, TD &TE Units must wear PERSONAL PROCTECTION EQUIPMENT (PPE) At all times which includes gowns, gloves & face masks. Officers are Deliberately utilizing the staff bathroom between TA & TB UNIT. 19. After being moved to TB-Unit, On May 2nd, about 12:30Am in the mourning the officers came to pack prisoners up that test results shows their positive for covid-19, after assuring prisoners moving into TB unit on May 1st that this unit TB is a negative unit. 20. TB-Unit was tested on April 29, no reason for negatives and positives to be mixed together still. 21. All The Units that are quarantined is TA, TC, TD & TE. 22. All The positives units are allowed to go yard together as May 3rd. All the negative units are allowed to go to yard together. 23. Officer Lundy wordked TB unit On may 2nd an stated to me their scared to test
Exhibit 2 - Cotton Prison - 79

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1876 Page 80 of 140
the officers because who will be able to come to work. Which makes no sense were seperate from the outside world.
I JERMAINE CAMPBELL DECLARE UNDER THE PENALTY OF PERJURY (28 U.S.C. SUBSECTION 1746) THAT THE FORGOING IS TRUE AND CORRECT. -------------------- ----------------------JERMAINE CAMPBELL# 745168 I JERMAINE CAMPBELL GIVE DANIEL MANVILLE PERMISSION TO SIGN ON MY BEHALF ON DOCUMENTS THAT IS DECLARATIONS AND STATMENTS OF FACTS AND ANY OTHER DOCUMENT NEEDED MY SIGNATURE. Yes Mr. Daniel has my permission TO sign for me (JERMAINE CAMPBELL).
Exhibit 2 - Cotton Prison - 80

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1877 Page 81 of 140
DECLARATION OF GERALD BELL: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a . yes...I am positive for covid 19... 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. N/A. 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the opposing end of the bed to created 6-feel separation?
a. N/A. 5. Can you engage in 6-foot separation when moving about your unit?
a. no... it's impossible.. 6. Are you given cleaning supplies for your cell?
a. no... we are told we can't take the bleach from the desk.. 7. What cleaning supplies are you given?
a. Bleach. 8. Have you observed the unit being cleaned?
a. nothing significant, really no change from the regular cleaning of the unit.. 9. If yes to Number 8, how often is the unit cleaned?
Exhibit 2 - Cotton Prison - 81

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1878 Page 82 of 140
a. N/A. 10. Are the telephones, cleaned after each use?
a. No… Not unless you clean them yourself. 11. How often are the bathrooms cleaned?
a. During count time. 12. If inmates have been placed in the dayroom, what can you tell me about them?
a. N/A. 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. N/A. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. yes.. all the inmates that have tested positive 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No. 17. Is there social distancing of 6-feet during exercise or on the yard?
a. No. 18. Is that rule enforced by the guards?
Exhibit 2 - Cotton Prison - 82

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1879 Page 83 of 140
a. No. 19. Is there social distancing of 6-feet during feeding in the unit?
a. No. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. we were told we would get lab draws and vitamins and still haven't received
anything.. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. ) 3...yes..no..because I had negative results before the masks were passed out and tested positive after the fact, so they didn't help.. 22. When you are patted down, are guards using gloves? a. Yes. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When? a. no, not before patting another inmate down.. 24. Can you get new masks if you ask for new ones?
Exhibit 2 - Cotton Prison - 83

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1880 Page 84 of 140
a. No. 25. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. ((same as question 20) 26. Has the prison placed porter-jones outside the housing units?
a. No. 27. If yes, which housing units?
a. N/A. 28. Has the prison used portable showers?
a. No. 29. If yes, in which housing units?
a. N/A. I Gerald D. Bell #245534 swear that all of the answers I have given are truthful and honest, under the penalty of perjury...I also give attorney Dan Manville the power to sign this document on my behalf.. Sincerely, Gerald D. Bell #245534
Exhibit 2 - Cotton Prison - 84

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1881 Page 85 of 140
DECLARATION OF DESMOND DEROO: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes, positive. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. Yes. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. . Nothing until last week tested us. 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the opposing end of the bed to created 6-feel separation?
a. No. I’m in an 8-man cube. 5. Can you engage in 6-foot separation when moving about your unit?
a. . No and I wrote a grievance stating that we were not able to social distance
and we're force to close together. they sent my grievance back and said I couldn’t
put any grievances in about covid19 issues!!!!!! 6. Are you given cleaning supplies for your cell?
a. yes 7. What cleaning supplies are you given?
Exhibit 2 - Cotton Prison - 85

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1882 Page 86 of 140
a. bleach. 8. Have you observed the unit being cleaned?
a. Sometimes. 9. If yes to Number 8, how often is the unit cleaned?
a. 3 times a day 10. Are the telephones, cleaned after each use?
a. No. 11. How often are the bathrooms cleaned?
a. 3 times a day. 12. If inmates have been placed in the dayroom, what can you tell me about them?
a. I don’t know. 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. I don’t know. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. yes, I’m in it. some people tested positive and were sent to this unit around positives. they then tested negative later but were told they still had to be in here around positive covid people because they believe they had it and couldn’t get this again. even though in all actuality no one knows if you can or can’t get it again.
Exhibit 2 - Cotton Prison - 86

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1883 Page 87 of 140
15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. No. 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No. 17. Is there social distancing of 6-feet during exercise or on the yard?
a. No. 18. Is that rule enforced by the guards?
a. No. 19. Is there social distancing of 6-feet during feeding in the unit?
a. No. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. I have asked for gloves and other protective gear and was told no. I also asked to be moved and separated because I was too close to others and told no 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. I have gotten 3. they are not helpful because I still contracted the virus 22. When you are patted down, are guards using gloves?
Exhibit 2 - Cotton Prison - 87

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1884 Page 88 of 140
a. No. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When?
a. No. 24. Can you get new masks if you ask for new ones?
a. Said they were out of them. 25. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. . I am forced inside with everyone else who is sick, and I had a hard time breathing today and when the nurse came in today all they did was check me vitals and said that’s all they can do unless I look like I’m dead 26. Has the prison placed porter-jones outside the housing units? a. I don’t know. 27. If yes, which housing units? a. I don’t know. 28. Has the prison used portable showers? a. Yes. 29. If yes, in which housing units? a. People who were moved to the gym.
My name is Desmond Deroo and this is true under the penalty of perjury.
Exhibit 2 - Cotton Prison - 88

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1885 Page 89 of 140
I, Desmond DeRoo, give Dan Manville permission to sign the document on my behalf.
Exhibit 2 - Cotton Prison - 89

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1886 Page 90 of 140
DECLARATION OF GREGGORY RUSSEY: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes on April 29th 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. no 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. no 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. no 5. Can you engage in 6-foot separation when moving about your unit?
a. no 6. Are you given cleaning supplies for your cell?
a. YES, very watered downed version Bleach. 7. What cleaning supplies are you given?
a. bleach 8. Have you observed the unit being cleaned?
a. Rarely
Exhibit 2 - Cotton Prison - 90

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1887 Page 91 of 140
9. If yes to Number 8, how often is the unit cleaned? a. Not often
10. Are the telephones cleaned after each use? a. no
11. How often are the bathrooms cleaned? a. Twice a day
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. this unit has no inmates sleeping in the day rooms im in TB-unit 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. n/a 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. n/a 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. Not to my knowledge 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. no 17. Is there social distancing of 6-feet during exercise or on the yard?
Exhibit 2 - Cotton Prison - 91

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1888 Page 92 of 140
a. no 18. Is that rule enforced by the guards?
a. no 19. Is there social distancing of 6-feet during feeding in the unit?
a. no 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. within the unit the SIX feet distancing is not being enforced by the guards. The day rooms dont get cleaned often at all the phones and jpays kiosks dont get cleaned after each use this is a very dangerous environment
21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. No additional masks 22.When you are patted down, are guards using gloves?
a. Only twice since pandemic 23. If the guards are using gloves when patting you down, do you notice if the
guards are changing their gloves after? a. We are not being shook down right now
24.Can you get new masks if you ask for a new one?
Exhibit 2 - Cotton Prison - 92

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1889 Page 93 of 140
a. no 25.Has the prison placed porter-jones outside the housing units?
a. no 26.If yes, which housing units?
a. no 27.Has the prison used portable showers?
a. no 28.If yes, in which housing units?
a. no I GREGGORY LEE RUSSEY declare under the penalty of perjury the forgoing is true and correct. Yes i give MR DANIEL MANVILLE permission to sign on my half on my responses
Exhibit 2 - Cotton Prison - 93

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1890 Page 94 of 140
DECLARATION OF LAMAR BURGESS, COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. positive 4-30-20 2. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. yes 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. took vitals a then swab-test 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. in a cube 14 by 12 8-man bunk 5. Can you engage in 6-foot separation when moving about your unit?
a. no 6. Are you given cleaning supplies for your cell?
a. yes 7. What cleaning supplies are you given?
a. Watered down bleach 8. Have you observed the unit being cleaned?
a. Yes
Exhibit 2 - Cotton Prison - 94

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1891 Page 95 of 140
9. If yes to Number 8, how often is the unit cleaned? a. 4 times a day
10. Are the telephones cleaned after each use? a. No
11. How often are the bathrooms cleaned? a. 3 times a day
12. If inmates have been placed in the dayroom, what can you tell me about them? 13. Do the inmates in the dayroom use the bathrooms for the unit? 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.? 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit? 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No 17. Is there social distancing of 6-feet during exercise or on the yard?
a. No 18. Is that rule enforced by the guards?
a. No 19. Is there social distancing of 6-feet during feeding in the unit?
Exhibit 2 - Cotton Prison - 95

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1892 Page 96 of 140
a. No 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. Not helping with meds 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. yes 22.When you are patted down, are guards using gloves?
a. yes 23. If the guards are using gloves when patting you down, do you notice if the
guards are changing their gloves after? a. Haven’t noticed
24.Can you get new masks if you ask for a new one? a. yes
25.Has the prison placed porter-jones outside the housing units? a. no
26.If yes, which housing units? 27.Has the prison used portable showers?
a. no 28.If yes, in which housing units?
Exhibit 2 - Cotton Prison - 96

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1893 Page 97 of 140
This is Lamar burgess 219185 and this statement is the truth to the best of my knowledge an I give attorney dan Manville my permission to sign this on my behalf.
Exhibit 2 - Cotton Prison - 97

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1894 Page 98 of 140
DECLARATION OF JOSEPH GALLISON, 241519: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. yes 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. yes, pain in chest, lack of appetite 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. they gave me vitamins 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. no, I'm in a pole barn 8 man cube 5. Can you engage in 6-foot separation when moving about your unit?
a. no 6. Are you given cleaning supplies for your cell?
a. no 7. What cleaning supplies are you given?
a. Once a day (bleac, citrus) 8. Have you observed the unit being cleaned?
a. barely
Exhibit 2 - Cotton Prison - 98

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1895 Page 99 of 140
9. If yes to Number 8, how often is the unit cleaned? a. Once a day
10. Are the telephones cleaned after each use? a. no
11. How often are the bathrooms cleaned? a. Once a day
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. n/a 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. n/a 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. n/a 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. n/a 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. no 17. Is there social distancing of 6-feet during exercise or on the yard?
Exhibit 2 - Cotton Prison - 99

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1896 Page 100 of 140
a. no 18. Is that rule enforced by the guards?
a. no 19. Is there social distancing of 6-feet during feeding in the unit?
a. no 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. I have more problems with my asthma, cpod,c-pap 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. 3,yes,no, no because they are made from state blues 22.When you are patted down, are guards using gloves?
a. n/a 23. If the guards are using gloves when patting you down, do you notice if the
guards are changing their gloves after? a. n/a
24.Can you get new masks if you ask for a new one? a. no, they told us to wash them between each use not getting proper care
Exhibit 2 - Cotton Prison - 100

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1897 Page 101 of 140
This is all true and Dan Manville can sign, respectful Joseph Gallison
Exhibit 2 - Cotton Prison - 101

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1898 Page 102 of 140
DECLARATION OF JEFFREY WIMBERLY, 428466: COTTON CF 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. I was tested on April 27, 2020 for covid-19. My temp was 99.9. I was never told my medical status from the nose swab. On May 12, 2020 the national guard came in and drew blood for an antibody test. No results as of yet.
2. Had you sought health care because you thought you had COVID-19 symptoms?
a. I asked to be retested on May 5, 2020. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. On May 12, 2020, medical just took my temp and asked was I having symptoms. Which I told them I was having headaches. No actual test was administered. And I was sent back to population.
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. Our bunks were positioned head to toe before the pandemic. 5. Can you engage in 6-foot separation when moving about your unit?
Exhibit 2 - Cotton Prison - 102

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1899 Page 103 of 140
a. You can't engage in 6feet distancing in prison. 6. Are you given cleaning supplies for your cell?
a. We are given cleaning supplies regularly. 7. What cleaning supplies are you given?
a. We are given bleach and citrus only. 8. Have you observed the unit being cleaned?
a. The unit is supposed to bleached when we are locked down. 9. If yes to Number 8, how often is the unit cleaned?
a. This is supposed to occur during count times. 3 times daily. 10. Are the telephones cleaned after each use?
a. The phones have a bottle of bleach spray next to them and its on you to clean before each call.
11. How often are the bathrooms cleaned? a. The bathroom is cleaned once daily.
12. Is there social distancing of 6-feet during use of bathrooms, showers? a. . There is no 6 feet separation in the bathrooms or shower.
13. Is there social distancing of 6-feet during exercise or on the yard? a. You can find 6 feet distancing on the yard.
14. Is that rule enforced by the guards?
Exhibit 2 - Cotton Prison - 103

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1900 Page 104 of 140
a. The guards does not enforce this rule. 15. Is there social distancing of 6-feet during feeding in the unit?
a. There is no 6 feet distancing in the chowhall. Its impossible. 16. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. On April 24, 2020, administration placed a guy into my cell. He told me he had been quarantined twice for suspicion of coronavirus and was placed back in population after passing a temp test. On April 26, 2020, administration announced facility wide testing here at G. Robert Cotton. On April 30, 2020, at 7AM in the morning, medical staff and correction officers told me to step out the cell, then they proceeded to extract my cellmate stating that he was positive for the virus. His former cellmate was also positive in the unit he arrived from. I was not quarantined at all after living in a cell for 6 days with a known to be infected individual. I have visited the psych because of the stress and terror I have endured from this situation. Dr. Wang suggested I kite for a retest (see #2 of this questionnaire) and to grieve the issue. Which I am in the process of doing.
Exhibit 2 - Cotton Prison - 104

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1901 Page 105 of 140
17. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. We have three prison made mask. They are hard to breath through as the material is the same as our pants are made out of. These three are all we get and we have to make our own out of any material we can find if we lose them.
18.If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. The guards wear gloves when we are patted down. b. The guards does not change there gloves after each pat down.
I declare under the penalty of perjury that the forgoing statements are true to the best of my knowledge, information and belief. I give Attorney Daniel Manville authority to sign and submit this form on my behalf in the civil suit for injunctive relief, with a copy to be returned to me by U.S. First Class Mail. Dated: May 14, 2020 Jeffrey Ricardo Wimberly
Exhibit 2 - Cotton Prison - 105

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1902 Page 106 of 140
DECLARATION OF KEVIN MASON, 972344: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes, I have tested positive. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. They gave me vitamins. 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. No. 5. Can you engage in 6-foot separation when moving about your unit?
a. No. 6. Are you given cleaning supplies for your cell?
a. Rarely. 7. What cleaning supplies are you given?
a. Watered down multipurpose cleaner.
Exhibit 2 - Cotton Prison - 106

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1903 Page 107 of 140
8. Have you observed the unit being cleaned? a. Rarely.
9. If yes to Number 8, how often is the unit cleaned? a. 1-2 times a day.
10. Are the telephones cleaned after each use? a. No.
11. How often are the bathrooms cleaned? a. 1-2 times a day.
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. The others went and got tested and put back in the cube until the test came back. 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. Yes. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates?
a. No. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
Exhibit 2 - Cotton Prison - 107

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1904 Page 108 of 140
a. That varied. 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No. 17. Is there social distancing of 6-feet during exercise or on the yard?
a. No one enforces the rules. 18. Is that rule enforced by the guards?
a. No. 19. Is there social distancing of 6-feet during feeding in the unit?
a. No. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. The Corrections Officers and staff just move infected inmates into housing units with noninfected inmates and don't seem to care that they (M.D.O.C.) are just moving guys around. They are not in compliance with any proper health standards or prepared for a pandemic, especially in a level 1 polebarn setting like myself and 159 others are housed in. They have been serving food that is supposed to be hot, whatever the proper safe temperature by state standards are. It is cold and not served in a safe quality. The cleaning supplies Multipurpose cleaner is watered down and it is not a sanitizing solution. They
Exhibit 2 - Cotton Prison - 108

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1905 Page 109 of 140
have just been recently giving us beach water to spray if we request it.There are so many health codes being violated. The bathrooms and showers haven't been properly disinfected in a long time. There is black mold in the showers, vomit, urine and "other stuff" riddles the rest rooms and we can't properly clean because the institution is not providing the proper cleaners for what needs to be done. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. 3 prison made masks made from state blues materials. Only one layer of material.
22.When you are patted down, are guards using gloves? a. Sometimes.
23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. No they are not.
24.Can you get new masks if you ask for a new one? a. No.
25.Has the prison placed porter-jones outside the housing units? a. Yard only and they are not cleaned often.
I, Kevin Mason, Inmate 972344 state this information is true under the perjury of law and give my permission to use my statement.
Exhibit 2 - Cotton Prison - 109

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1906 Page 110 of 140
DECLARATION OF DAVID MCKAY: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. yes, I tested positive 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. yes, two weeks earlier from the date I tested positive. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. they only took me for my vital check which consist of checking my temperature, heart rate, oxygen level, blood pressure.
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. we are housed 14×20 cube settings 4 bunk beds 8 men cube ( no social distance at all.
5. Can you engage in 6-foot separation when moving about your unit? a. No
6. Are you given cleaning supplies for your cell? a. No
Exhibit 2 - Cotton Prison - 110

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1907 Page 111 of 140
7. What cleaning supplies are you given? a. they keep the cleaning supplies behind officers’ desk and the supplies they give us are watered down bleach and smell good citrus which doesn't sanitize nothing we requested for pink sanitizer but was told no.
8. Have you observed the unit being cleaned? a. Barely
9. If yes to Number 8, how often is the unit cleaned? a. once a day since I been in unit TE and it’s not till 4:00 count
10. Are the telephones cleaned after each use? a. No
11. How often are the bathrooms cleaned? a. Once daily
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. when an inmate has symptoms the other 7 inmates are placed in the day room till a health care nurse comes which can take 2-3 hours and when they come, they take our vitals and only thing they look for like I stated in previous answer temperature, heart rate ,oxygen, blood pressure.
Exhibit 2 - Cotton Prison - 111

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1908 Page 112 of 140
13. Do the inmates in the dayroom use the bathrooms for the unit? a. No, they are tooling to intake then to L unit if they feel you meet the covid-19 criteria.
14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. yes, they are housing P.U.I's in level 2 D unit with inmates who already tested positive
16. Is there social distancing of 6-feet during use of bathrooms, showers? a. No
17. Is there social distancing of 6-feet during exercise or on the yard? a. No
18. Is that rule enforced by the guards? a. No, the c/o's treat us like crap like it’s our fault that we are sick and when out on yard they don't even do they usual round around yard when we let out to yard, they close gate and literally run to the shack.
19. Is there social distancing of 6-feet during feeding in the unit?
Exhibit 2 - Cotton Prison - 112

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1909 Page 113 of 140
a. No, they make us line up in single foul line coming in and out the same doors with other inmates
20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. when I found out I was positive which was 4-24-20 I went to the hole ( L unit)then I was housed in the 300 building GYM then which I was assaulted over the phone cause the prison officer was creating a hostile environment between inmates it was horrible and the guy who assaulted me was never took to segregation he was moved to level 2 D unit I told my family wrote them on jpay it was a man who died who had his parole after serving 24 years (last name porter) and he kept asking to speak with a nurse for literally 4 days then when he saw them his oxygen level was really low it was nasty they had inmate porters who wasn’t positive sleeping in one of the chapel room in the 300 building and lied to us telling us it was a request from Lansing that we be housed in the 300 building GYM also they are withholding our mail telling us the arus isn't coming to the unit and the mail will get sent out after they test us and we come back negative but I’m not understanding none of this cause after we told our families that we are being housed
Exhibit 2 - Cotton Prison - 113

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1910 Page 114 of 140
in the 300 building GYM they throw us in a unit that had just tested positive and I have already been recovering for 2 weeks at that time so I don't understand how I can get better I wrote my family on jpay letting them know that also. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. 3 mask per prisoner. yes, their prison made from state clothing. no because when we first was informed about covid-19 I slept in it and still got sick plus we was told to put them up to light and if we can see through it they aren't the right ones and they told us to deal with it when we asked to have the ones they have. 22.When you are patted down, are guards using gloves? a. some use them others don't one of the c/o's are out of TA level 1 the officer name detloff he uses the same gloves on purpose to piss us off he the one who brought it into unit TA he tested positive less than a month ago and back already. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after?
Exhibit 2 - Cotton Prison - 114

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1911 Page 115 of 140
a. some say it’s a shortage of supplies and what does it matter they say if they use the gloves or not, we already sick
24.Can you get new masks if you ask for a new one? a. No, we have been asking and sending kites to warden bout new mask and the unit officers tell us to hand wash them or throw them in with our state laundry which isn't sanitized
25.Has the prison used portable showers? a. Yes, in the 300 building where I was housed for 10 days and it took them a few days to even get them and when they did, they had them set up in the barber shop space in the 300 building
I DAVID MARCEL MCKAY BEING OF FULL AGE AND SOUND MIND MAKE THIS STATEMENT UNDER THE PENALTIES OF PERJURY AND BELIEF HEARBY STATE THAT THE FORGOING FACTS ARE TRUE AND ACCURATE AND I GIIVE FULL PERMISSION FOR DAN MANVILLE TO SIGN MY NAME.
Exhibit 2 - Cotton Prison - 115

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1912 Page 116 of 140
DECLARATION OF DANIEL BARNES, 464880: COTTON My name is Daniel Barnes. inmate # 464880 I'm being housed in cotton correctional facility 3510 n Elm st Jackson mi, 49201. 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. yes, I tested positive on 5-1-2020 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No, I wasn’t aware that I had it I showed no signs of it none at all 3. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. I’m housed in TE UNIT and we have a cube set up of 4 bunks 8 different inmate and we were never told to sleep opposite ends of each other also all of our belonging are also in this cube
4. Can you engage in 6-foot separation when moving about your unit? a. we cannot engage in a 6 ft separation when we are moving about in the unit
5. Are you given cleaning supplies for your cell? a. we are not giving cleaning supplies for our cubes to be cleans
Exhibit 2 - Cotton Prison - 116

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1913 Page 117 of 140
6. What cleaning supplies are you given? a. they come by with bleach and wipe down the rails and walls
7. Have you observed the unit being cleaned? a. porters clean the unit at count time if you call moping cleaning
8. Are the telephones cleaned after each use? a. phones are not wiped after every use
9. How often are the bathrooms cleaned? a. porters clean the bathroom at count times only
10. Is there a unit known as PUI? Do you know what prisoners are housed in that unit? 11. Is there social distancing of 6-feet during use of bathrooms, showers?
a. there is not at the time 12. Is there social distancing of 6-feet during exercise or on the yard?
a. there is no separation on the yard 13. Is that rule enforced by the guards?
a. No 14. Is there social distancing of 6-feet during feeding in the unit?
a. Not at all
Exhibit 2 - Cotton Prison - 117

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1914 Page 118 of 140
15. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. some of the guards they don’t wear their masks 16. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. they gave us 3 masks and they are prison made with are prison blue material
I Daniel Barnes certify under penalty of perjury that the above is true to the best of my knowledge and give Dan Manville my permission to sign this and use m above answers in any way necessary thank you for your time.
Exhibit 2 - Cotton Prison - 118

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1915 Page 119 of 140
DECLARATION OF TYRONE REYES: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. I have been tested and my results came back negative. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No, I have not contacted health service for any symptoms. 3. If yes to question 2. Explain what steps health care took to treat you, if any? 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. No, we were not told to sleep at separate ends for six foot separation. 5. Can you engage in 6-foot separation when moving about your unit?
a. Six foot is not being enforce inside of the units. Which its why some people take it upon themselves to keep their distance.
6. Are you given cleaning supplies for your cell? a. We are getting cleaning supplies, but do I think it's effective? No, because no matter how much you clean if officers has the Covid-19, we're all at risk every single day. These cleaning supplies is only good
Exhibit 2 - Cotton Prison - 119

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1916 Page 120 of 140
for a limited amount of time. Phones is not being cleaned after every use, unless a prisoner take it upon themselves. But the unsanitary thing with that is the fact that its rag is unsanitary. No corrective measures is being put in place. 7. Is there social distancing of 6-feet during use of bathrooms, showers? a. Social distancing is only being enforced in the chow Hall, in the unit and on the yard there is no enforcement. Wearing of the mask for the most part is not being enforced 100%, guys is going to chow without their mask, forcing the food supervisors to enforce it while they are at least in their service line waiting to be fed. But coming out of their units and passing the guard shack, they're not being stopped. 8. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. We were given 3 prison (M.S.I.) masks. I don't know if they're working, because too many people has tested positive in my unit and for other reasons that will be explained later...Since M.S.I. is no longer making masks, there's no more available. 9. When you are patted down, are guards using gloves?
Exhibit 2 - Cotton Prison - 120

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1917 Page 121 of 140
10. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. Guards are not changing gloves after each shake down of a prisoner or when they do cell search.
11.This facility did not become infected with its first Covid-19 patients until they transferred prisoners from Lakeland Corr. Fac. and housed them in Kunit outside the facility. But, strict protocols was not implemented at first. Somehow a prisoner on Level I side became positive.
12.This facility then thought it was a good idea to housed (P.U.I.'s) in Level II D-unit. Several days later I talked to Warden Nagy in food service where I work. I voiced my concern about housing them there because if someone test positive, it will put everyone's health at risk in my unit that's connected to Dunit. I am in C-unit, and we share the same ventilation system as D-unit. I explained all off this to him and he stated that the unit was picked because it was the safest. I asked him did they bring in a ventilation expert to make that determination. His answer was no. Several days later someone tested positive in that unit.
13.On a daily basis, guys started testing positive and had to be escorted pass all of our units, school building, medical building and factory building to K-unit,
Exhibit 2 - Cotton Prison - 121

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1918 Page 122 of 140
with prisoners having to stand to the side until they pass by. Issue: This is an airborne virus, prisoners were forced to walk into or from that same air path that sometimes 6-8 Covid-19 patients has just walked a crossed. Scientists has stated it can linger for several minutes in that area. 14.Since then, Covid-19 patients has been housed in our Gymnasium, in which food service prisoners was responsible and made to deliver the food. 15.Once Level II was tested, 92% of the positive cases came from my unit. Due to my last calculation, out of 25 positive, 23 was connected to C-unit. This facility once again thought it was okay to further put our lives at risk by turning D-unit into a Covid-19 unit instead of a quarantine unit. Now we're sharing the same ventilation system with Covid-19 patients. Everyday those officers is shaving contact with other officers and possibly spreading this virus. 16.We will never stop the spread of this virus because of MDOC is reluctant to have all of its officers tested. They're trying to treat prisoners as if we're the reason why it's in the facility. They're bringing it in, they need mandatory testing. Then we can begin the process of managing and stopping the spread. I had one officer state, " I'm not getting tested because I want all of the
Exhibit 2 - Cotton Prison - 122

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1919 Page 123 of 140
overtime money and hazard pay he's getting". This type of selfish thinking is the reason why we need mandatory testing of all officers, staff and prisoners. 17.We've asked to be taken out of this unit, but they refuse. This is creating a hostile environment for C-unit prisoners because prisoners and officers from other units is shunning us because they're putting us in the same category as the Covid-19 unit. I, Tyrone Lee Reyes, do swear under perjury of law that the above information is true to the best of my knowledge. I give Attorney Dan Manville permission to sign this document on my behalf.
Exhibit 2 - Cotton Prison - 123

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1920 Page 124 of 140
DECLARATION OF NICHOLAS RUPRIGHT, 485499: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes, positive. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. Healthcare has taken no steps to treat me. 3. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. Polebarn, TC. 8-man cubes. 4. Can you engage in 6-foot separation when moving about your unit?
a. No 5. Are you given cleaning supplies for your cell?
a. Citrus cleaner 6. Have you observed the unit being cleaned?
a. No more than usual 7. If yes to Number 8, how often is the unit cleaned? 8. Are the telephones cleaned after each use?
a. No
Exhibit 2 - Cotton Prison - 124

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1921 Page 125 of 140
9. How often are the bathrooms cleaned? a. Sometimes during count
10. Is there social distancing of 6-feet during use of bathrooms, showers? a. No.
11. Is there social distancing of 6-feet during feeding in the unit? a. No. And there is no social distancing when we get our trays.
Exhibit 2 - Cotton Prison - 125

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1922 Page 126 of 140
DECLARATION OF RUEMONDO MURRAY, 591102: COTTON 1. I've been infected with COVID-19. 2. There were nights I honestly felt I was gonna die from such shortage of breath. 3. As someone with existing health issues, its devastating some moments when fevers arise and dizziness take over. 4. Before the discovery of my diagnosis I was housed in T/A unit amongst other infected officers (officer detloff and officer divish to be specific) to which my health was compromised and put in jeopardy. 5. Shortly after myself and my peers became very ill 6. We were tested and removed from T/A unit (level 1 temp side)and sent to level 2 side housing unit D. 7. Myself and 80 something other inmates were placed in the gym after our positive results came back. 8. In the gym I felt I was making progress despite the conditions of the gym...(portable showers that barley worked, no out going mail or jpay, no yard, etc.) 9. Then administration started bringing other sick inmates into the gym.
Exhibit 2 - Cotton Prison - 126

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1923 Page 127 of 140
10.Shortly after the other sick inmates were placed in the gym, my symptoms have been slowly returning. I'm having headaches more than usual and now a slight cough.
11.We were all moved from the gym Sunday may 3rd and placed in T/D unit with newly infected inmates who just tested days before
I give my authorization for my signature to be signed by Mr Manville on behalf of these legal matters, and all of these statements are true under penalty of perjury.
Exhibit 2 - Cotton Prison - 127

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1924 Page 128 of 140
Declaration Under The Penalty Of Perjury Of Thomas Butler
I, Thomas Butler(# 246650), being competent to make this declaration and having personal knowledge of matters stated herein, declares pursuant to 28 U.S.C . 1746, the following:
1. I am presently incarcerated at the G. Robert Cotton Correctional Facility (JCF), and am presently confined in security level II. Pursuant to Policy Directive (PD) 04.01.150 (Prisoner Housing Unit Representative/Warden's Forum), I was elected on of E-Unit's Representatives.
2. On the morning of 5-12-2020, at approximately 10:30 a.m., I was summoned to report to the Warden's Forum Meeting being held in the JCF Visiting Room. The Warden was not in attendance and the meeting was being conducted by A/Deputy Rurka.
3. As the meeting started questions about the covid-19 antibody testing that was conducted the previous day were asked. Prisoner Lane (#403113), raised his hand and indicated he tested positive on the 30th. A/Deputy Rurka asked prisoner Lane
Exhibit 2 - Cotton Prison - 128

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1925 Page 129 of 140
what he tested positive for. Mr. Lane responed: "covid-19."
4. A/Deputy Rurka rushed all seated representatives out of the room.
5. Prisoner Lane is housed in TE-Unit where everyone in the unit has tested positive for covid-19. Upon returning to the meeting after several minutes I asked A/Deputy Rurka about the cross-contamination going on and he stated: "guess it is good we are social distancing."
6. For prisoner Lane to attend the aforementioned Warden's Forum meeting , someone had to call TE-Unit where 'everyone' is supposedly quarantined. Someone had to write the prisoner a pass authorizing movement. Prisoner Lane had to walk across the compound, enter Control Center and was cleared to enter JCF's Visiting Room (Forum Meeting).
Pursuant to 28 U.S.C. 1746, I declare under the penalty of perjury the forgoing is true and correct.
Executed on May 13, 2020
Exhibit 2 - Cotton Prison - 129

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1926 Page 130 of 140
Signed /s/ Thomas Butler
Exhibit 2 - Cotton Prison - 130

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1927 Page 131 of 140
Declaration Under The Penalty Of Perjury Of Duane Sparks I, Duane Sparks (#929615), being competent to make this declarertion and having personal knowledge of matters herein, declares pursuant to 28 U.S.C. 1746, the following:
1. I am presently incarcerated at the G. Robert Cotton Correctional facility (JCF), and am presently confined in security level II, and housed in E-Unit (85/86).
2. On the morning of 5-12-20, at approximately 12:10 a.m., my cellmate Aguilar (#742688), reported to staff he was not feeling well. Both Aguilar and myself were escorted over to segregation.
3. At approximately 8:30 a.m., I was released from segregation and ordered back to E-Unit 85/86. I was not tested during or before my release, but was told if I was not feeling well to notify staff.
4. Prisoner Aguilar (#742688) notified me he tested positive for covid-19, and was placed in D-Unit under quarantine status. My cell was NOT bleached or cleaned while I was in segregation.
Exhibit 2 - Cotton Prison - 131

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1928 Page 132 of 140
Pursuant to 28 U.S.C. 1746, I delcare under the penalty of perjury that the forgoing is true and correct. Executed on May 13, 2020 Signed: /s/ Duane Sparks
Exhibit 2 - Cotton Prison - 132

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1929 Page 133 of 140
Declaration Under The Penalty Of Perjury Of Nicholas Cottrell
I, Nicholas Cottrell (#585279), being competent to make this declaration and having personal knowledge of matters herein, declares pursuant to 28 U.S.C. 1746, the following:
1. I am presently incarcerated the the G.Robert Cotton Correctional Facility (JCF), and am presently confined in security level II and housed in E-Unit.
2. On the morning of 5-13-20, at approximately 8:07 a.m., I asked Guard Fridd for sanitizer (bleach), to wipe down unit tables that prisoners were eating their breakfast at.
3. I was told: "We don't have any." I offered to go to any location to get some and was not answered.
4. Being in Housing Unit E for over six months. I have never witnessed sanitizer being placed at the telephones, or kiosks. The phones are NOT wiped down after every use. Prisoners have to take it upon themselves to wipe the materials down
Exhibit 2 - Cotton Prison - 133

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1930 Page 134 of 140
before using. Pursuant to 28 U.S.C. 1746, I declare under the penalty of perjury that the forgoing is true and correct. Executed on May 13. 2020 Signed /s/ Nicholas Cottrell
Exhibit 2 - Cotton Prison - 134

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1931 Page 135 of 140
Declaration Under Penalty Of Perjury Of Kevin King
I, Kevin King, (#171671), being competent to make this declaration and having personal knowledge of matters stated herein, declares pursuant to 28 U.S.C . 1746, the following:
1. I am presently incarcerated at the G. Robert Cotton Correctional Facility (JCF), and am presently confined in security level II, and housed in E-Unit and have been since March 12, 2012.
2. On the morning of 5-13-20, at approximately 6:40 a.m., I asked Guard Castilla for bleach to wipe down the bathroom sinks. The bathroom is a community bathroom and dozens of prisoners were brushing their teeth and spitting in the sinks.
3. I was told: "there is no bleach and it's not my problem."
4. Being housed in Unit E for over eight (8) years, I have never witnessed any sanitizer being placed at the telephones, or kiosks. The phones and kiosks are
Exhibit 2 - Cotton Prison - 135

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1932 Page 136 of 140
NOT wiped down after every use. Prisoners have to take it upon themselves to wipe the materials down before using with whatever method they use. 5. I have asked for soap and bleach several times over the past few months and have been told: "we are all out." 6. I have only gone to the chow hall twice since March, 2020, because I can not social distance and it is obviously not clean. The two times I attempted to go to the chow hall, I could not eat and just walked out. Pursuant to 28 U.S.C. 1746, I declare under the penalty of perjury the following is true and correct. Executed on May 13, 2020 Singed: /s/ Kevin King
Exhibit 2 - Cotton Prison - 136

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1933 Page 137 of 140
DECLARATION OF JAMES ADRIAN: COTTON 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. I was tested on 4-30-20 and told I was positive on 5-1-20 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. I was not thinking I would catch it because I was not around anyone but inmates
3. If yes to question 2. Explain what steps health care took to treat you, if any? 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. Most of the bunks only allow you to sleep one way 5. Can you engage in 6-foot separation when moving about your unit?
a. 6ft separation is not possible in 8-man cubes 6. Are you given cleaning supplies for your cell?
a. the give bleach to the porters and put citrus int he bathroom for use 7. What cleaning supplies are you given?
Exhibit 2 - Cotton Prison - 137

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1934 Page 138 of 140
a. we are not given any personal supplies; it is two bathrooms to use by 80 in the front hall and 80 in the back hall
8. Have you observed the unit being cleaned? a. The unit is supposed to be cleaned 3 times a day during count times
9. If yes to Number 8, how often is the unit cleaned? 10. Are the telephones cleaned after each use?
a. telephones, jpays are not wiped down after use, and there is no rags most of the time to wipe them down
11. If inmates have been placed in the dayroom, what can you tell me about them?
a. dayrooms have 4 tablet that hold 4 inmates and we are all in front of each other.
12. Do the inmates in the dayroom use the bathrooms for the unit? a. bathrooms are nasty all the time
13. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. there are no doors on the bathrooms and no privacy, we have asked the warden o to fix this several times
Exhibit 2 - Cotton Prison - 138

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1935 Page 139 of 140
14. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. the have 4 units that are corona positive ta, tc, td, and te they all hold 160 inmates
15. Is there social distancing of 6-feet during use of bathrooms, showers? a. TA unit is where I am housed with another inmate Scott Winburn who also knows about this. the back hall has 2 showers one is broke, there is no separation for sinks, shower or toilets
16. Is there social distancing of 6-feet during exercise or on the yard? a. yard hold about 300 to 400 inmates on any given day
17. Is that rule enforced by the guards? a. c/o do not like how we are treated they are frustrated also because they are being over worked
18. Is there social distancing of 6-feet during feeding in the unit? a. we are eating in 8-man cubes and when we ate in the chow hall, we sat 2 ft apart
19. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
Exhibit 2 - Cotton Prison - 139

Case 2:20-cv-11053-MAG-RSW ECF No. 30-3 filed 05/18/20 PageID.1936 Page 140 of 140
a. I did not get the prescribe treatment until 5 days later after being diagnosed. we cannot get toilet paper upon request, the food is delivered cold, we get 1 yard a day sometimes, the phone disbursements is not being processed, the mail is not going out regularly. we have 3 masks made out of our state issue blues and are told to wash them with our laundry. the bleach is water downed. medical staff is not responding timely and the c/o don't want to call them when a person is having problems breathing. we still have not seen a doctor; I was given a piece of paper with my name wrote on it that said I was positive. I requested my covid lab report and they told me to fill out an authorization form to get my own results.
20.I have not had an opportunity to speak with mental health. I spoke with the HUM, and they said they are not coming into the units to speak with guys.
21.On May 15, I just spoke with the nurse and now they are trying to send us to a step-down unit if we test negative after 29 day in here. I asks if I can see a doctor because I have not seen one since being diagnosed. They told me that I can only see one if I am having trouble breathing or something like that.
My name is James Adrian and the statement I am writing is true and under the penalty of perjury I will testify. I give Dan Manville the authority to sign on my behalf.
Exhibit 2 - Cotton Prison - 140

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1937 Page 1 of 40
Exhibit 3 - Parnall Correctional Facility (SMT) Defendant Melinda Braman is the Warden at the Parnall Correctional Facility
(hereinafter “SMT”) in Jackson, Michigan. SMT is a 1,679-bed facility housing Secure Level I prisoners.1 (ECF No. 27-14. PageID.1499 ¶ 3) There are five housing units: three pole-barn style units, as described above, and two units which are openbar gallery style and have single cell occupancy. (Id.).
In her affidavit, Defendant Braman acknowledges that “…the physical structure and layout of SMT does not always allow for maintaining a six-foot social distancing at all times (as recommend by the CDC)….” (Id., PageID. 1512 ¶18(c)). While this Defendant’s claim that she had advised inmates in cube settings to sleep head-to-toe, see supra, prisoners’ declarations continue to tell a different story. Prisoner Mannion, who went through the COVID-19 response process at Parnall states, “…I was never instructed or informed that I should lay the opposite direction as my bunkie. Every step of my recovery I had a bunkie.” (Exhibit 3, Affidavits from prisoners confined at SMI, Affidavit of John Mannion at ¶ ). The same is true for those housed in cubes in the pole barns. Inmate Strozier writes “I am housed in an 8-person cubicle on bunk beds. No staff at this facility instructed us to sleep with
1 SMT consists of cellblocks that are approximately a football fiend long, with a base and four floors that open to a wide-open center from base to ceiling. Each cell block holds about 450 prisoners confined in single-person cells.
Exhibit 3 - Parnall Prison - 1

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1938 Page 2 of 40
one person in the opposite direction of one another to social distance ourselves….” (Ex. 3, Affidavit of Xaiver Strozier at ¶ 4).
Defendant Braman further states that she “receive[s] daily update from custody staff through their chain of command that… social distancing is being enforced….” (Id. at PageID. 1509 ¶ 15). However, Prisoners’ declarations disagree. One prisoner states “[t]here is no social distancing enforced on the yard. Multiple inmates sit together at tables, use exercise equipment and stand close together in groups.” (Ex. 3, Affidavit of Daniel Tesen at ¶ 10). Further, Mr. Davis declares that “[t]here is no 6ft distancing during exercising on the yard. Inmates sit closely on benches and play board and card games. And closely walk together…No 6ft distancing is enforced by the guards on the yard.” (Ex. 3, Affidavit of Larry Davis ¶ 18). Defendant Braman claims that “if custody staff sees prisoners gathering in close contact groups while using the yard, those prisoners will be instructed to disperse….” (ECF No. 27-14. PageID 1509 ¶ 15). However, prisoner declarations account that “[n]o rules are enforced because different officer’s enforce rules differently. No officer is consistent on enforcing the social distancing rules.” (Ex. 3, Affidavit of Xavier Strozier ¶ 18).
Defendant Braman claims that social distancing is being practiced and enforced in the chow hall. “We also have custody standing by the serving line enforcing the social distance markers in place keeping prisoners six feet apart while waiting to eat.” (ECF 27-14. PageID 1509 ¶ 15. Some prisoner declaration’s share
Exhibit 3 - Parnall Prison - 2

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1939 Page 3 of 40
this fact while others dispute it, but Defendant fails to paint the whole picture for the Court. As Mr. Davis states, “[i]n the chow hall there is 6 ft distancing in the line waiting but we aren’t seated 6ft from each other and the kitchen workers aren’t 6 ft from each other.” (Ex. 3, Affidavit of Larry Davis at ¶ 19). Once inmates arrive in the chow hall, they are to sit “2 inmates to a table.” (Ex, 3, Affidavit of Dominique Cornley at ¶ 19). But as Mr. Tesen states, “…two at a table but well within six feet from inmates all around you.” (Ex. 3, Affidavit of Daniel Tesen at ¶ 11; see ECF No. 27-14, PageID.1516, for a picture of the chow hall tables).
Finally, Defendant Braman states that the facility “only allow[s] up to two prisoners to wait for kiosks or telephones at a time. In the dayrooms we are requiring no card games or board games as well as enforcing only two prisoners may sit at a table.” (ECF No. 27-14 PageID 1506 ¶ 10(j)). Mr. Davis’ declaration does describe enforcement of inmates not playing card games, however, he states that “[i]n the dayroom there’s no 6 ft distancing for the phones or at the benches where inmates watch TV. There is no social distancing by the…jpay, or store kiosk.” (Ex. 3, Affidavit of Larry Davis at ¶ 12).
The areas outlined above are high-traffic areas in which inmates are consistently subjected to cross-contamination and close contact with inmates and will continue to be without intervention from this Court.
Exhibit 3 - Parnall Prison - 3

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1940 Page 4 of 40
Affidavits from Parnall Correctional Facility DECLARATION OF JOHN MANNION: PARNALL 1. Have you been tested for COVID-19? If yes, what is your medical status? a. Yes, I have been tested for Covid-19. I was originally tested on March 30th, and received a positive result on March 31st. I was tested again on April 28th and received a negative result on April 30th. 2. Had you sought health care because you thought you had COVID-19 symptoms? a. No, I did not seek health care. I was not sick. I was quarantined in our gym on March 28th because my cubie sought medical care. He tested positive and I was moved to the quarantined housing unit on March 29th for those infected. It was there that I started to have symptoms. I was checked by a nurse on March 30th, had a fever and was tested at that time. I was moved the next day to Cotton Correctional Facility for being covid-19 positive. 3. If yes to question 2. Explain what steps health care took to treat you, if any? a. The only steps that MDOC took to treat me was tell me to lay on my bunk and offer me Tylenol if I needed it. I was transferred to Cotton where positive cases were and confined to a two man room with a bunkie. There was no other care given to me.
Exhibit 3 - Parnall Prison - 4

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1941 Page 5 of 40
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. No, I was never instructed or informed that I should lay the opposite direction as my bunkie. Every step of my recovery I had a bunkie. The was the bunks are set up, with stands at our feet, we can't lay opposite. I was at Cotton, Adrian, and even now that I am back at Parnall no bunks do bunkies lay opposite. You writing me is the first I was informed of laying opposite. I am surprised.
5. Can you engage in 6-foot separation when moving about your unit? a. No, when I was at Cotton I was stuck in a two man room where we even had to eat. When I was at Adrian I was again in a two man room, we had a chow hall where we had to sit across a 3 foot table, and with roughly 120 men we had two small day rooms and with no regulation from the officers they were always crowded. And even back at Parnall I lock in a cube with 7 other men and none are six feet away. The bathrooms, dayrooms, and even yards are not regulated for six feet distance. With bathrooms and chow halls we cannot be six feet away.
6. Are you given cleaning supplies for your cell? a. Yes, we are given bleach and rags.
Exhibit 3 - Parnall Prison - 5

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1942 Page 6 of 40
7. What cleaning supplies are you given? a. Yes, we are given bleach and rags.
8. Have you observed the unit being cleaned? a. Yes and No, When I was at Cotton there was only one porter that worked 24/7 and the bathrooms were not regularly cleaned. When I was at Adrian the bathrooms and common areas were cleaned only two or three times a day. And at Parnall it is one to three times a day, but some days there are areas that are not cleaned, like the showers. And our sinks are brown
9. If yes to Number 8, how often is the unit cleaned? a. Answered in 8.
10. Are the telephones cleaned after each use? a. No, at no place are the phones or Jpays cleaned after every use.
11. How often are the bathrooms cleaned? a. Answered in 8 and 9.
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. I was not at a facility where people had to lock in dayrooms. At Parnall we did lock in the gym for a few weeks. We locked there if we were in contact with someone that was suspected of having covid-19. Once their
Exhibit 3 - Parnall Prison - 6

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1943 Page 7 of 40
results came in we were moved. The bathrooms weren't cleaned while I was there. There was one instance where a cube was quarantined in the unit for three days. They used the bathroom in unit. They had to shower at 12:30 am. They were only allowed to use the bathroom at certain times, when it was empty and the bathroom was cleaned after each use. 13. Do the inmates in the dayroom use the bathrooms for the unit? a. See number 12. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.? a. See Number 12. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit? a. At Parnall in the beginning PUIs were only questioned by health care and their vitals taken. Then one unit, 10 block, was turned into a quarantine unit even though it housed roughly 350 people who were not sick at the time. The unit is a open cell, 4 gallery unit with bars on the front and back of the cells. Eventually most did get sick, and most did not report that they were sick. After a couple weeks the gym was turned into a quarantine, with 30 bunks for those classified as PUI 16. Is there social distancing of 6-feet during use of bathrooms, showers?
Exhibit 3 - Parnall Prison - 7

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1944 Page 8 of 40
a. No, there is no social distancing in the bathrooms. On the yard and in the unit there is one or two signs describing social distancing, but the Officers do not enforce social distancing in any way. In the chow hall we sit at tables that are about three feet across. We sit with someone across from us without masks because we are eating and the tables are only a couple feet apart. There is no social distancing she we eat.
17. Is there social distancing of 6-feet during exercise or on the yard? a. N/A.
18. Is that rule enforced by the guards? a. N /A.
19. Is there social distancing of 6-feet during feeding in the unit? a. N/A.
20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. . I have pretty much outlined all the issues. MDOC has been reactionary the entire time, only act when they had too. I was sick at the beginning so I received the worst of the treatment. I went 5 days without being able to take a shower and a week without a change of clothes. I was not allowed access to my property or needed cosmetic items. I have severe dry scalp and did not have shampoo. My scalp developed lesions for two
Exhibit 3 - Parnall Prison - 8

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1945 Page 9 of 40
and a half weeks before I was given my property, along with dry and painful patches on my skin from the soap they supplied. I was not able to call my family for 5 days. My wife was worry sick and lied to by MDOC. Their was no treatment. We were forced to lay on our bunks and only given Tylenol. When I was at Adrian there was not a nurse on duty at night or periods of the day. One night someone was throwing up, coughing up blood and had an oxygen level of around 40%. It took 30 minutes for a nurse to arrive and another 30 to get him out of the unit to get help. The inmates were scared and came out of there cells which caused trouble. There was a lot of tickets wrote. I didn't get sick until they quarantined me around others that were sick. Parnall refused to restrict the compound to essential staff until it was too late. They considered Vocational Village, GED and pysch classed essential. Those staff members were the ones that brought the virus in. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. I have two masks. They are made by prisoners working at MSI. I don't know if they work or not. I just where it because I have no other option. 22.When you are patted down, are guards using gloves?
Exhibit 3 - Parnall Prison - 9

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1946 Page 10 of 40
a. The officers do wear gloves for pat downs, but do not change gloves for each inmate.
23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. N/A.
24.Can you get new masks if you ask for a new one? a. We can get more masks, but we are hassled and questioned as to why and where our others masks are.
I, John Mannion, certified that the information above is true under the penalty of perjury and give Dan Manville permission to sign.
Exhibit 3 - Parnall Prison - 10

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1947 Page 11 of 40
DECLARATION OF XAIVER STROZIER, 465916: PARNALL 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. No I have not been tested for Covid-19 and don't know my medical status.
2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No because when I had symptoms they were forcing inmates to be quarantined in the gymnasium and not giving them showers or access to phones or any sort of communication with relatives.
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. Health care forced myself and other cell mates to go have our temperatures checked because a couple inmates were infected with the virus living in close quarters with our 8 man cube setting.
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. No I am not in a 2 person cell. I am housed in an 8 person cubicle on bunk beds. No staff at this facility instructed us to sleep with one person in the opposite direction of one another to social distance ourselves whatsoever
Exhibit 3 - Parnall Prison - 11

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1948 Page 12 of 40
5. Can you engage in 6-foot separation when moving about your unit? a. There is absolutely no way possible for us to socially distance ourselves because we are forced to use the same restrooms, phones and sit and eat with each other in close contact with those even infected with the virus that show no symptoms.
6. Are you given cleaning supplies for your cell? a. We are given cleaning supplies but they are diluted to the point where there ineffective.
7. What cleaning supplies are you given? a. They give us bleach but the bleach is constantly being diluted with water and still not stopping the spread of this virus.
8. Have you observed the unit being cleaned? a. The unit isn't cleaned because they leave the inmates responsible for doing the cleaning with insufficient cleaning supplies.
9. If yes to Number 8, how often is the unit cleaned? a. No the unit isn't cleaned daily at all and that's because we are deprived of the necessary supplies to do so.
10. Are the telephones cleaned after each use? a. No not unless there's bleach sitting out in plain sight which is rare
11. How often are the bathrooms cleaned?
Exhibit 3 - Parnall Prison - 12

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1949 Page 13 of 40
a. The bathrooms are cleaned regularly but like I said before, supplies are limited
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. The dayrooms are very small and closed in. There's only four tables with 192 inmates being housed in one unit. 192 grown men are split up into 8 person cubicles and forced to sleep on bunk beds.
13. Do the inmates in the dayroom use the bathrooms for the unit? a. Everyone uses the same restroom in the whole entire unit.
14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. Absolutely not. There is no separation at all in the unit besides having inmates divided into 8 person cubes
15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. Yes there is a PUI unit. Prisoners that are under investigation are housed in those units.
16. Is there social distancing of 6-feet during use of bathrooms, showers? a. No there is not anyway possible for inmates to social distance themselves in the bathrooms
Exhibit 3 - Parnall Prison - 13

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1950 Page 14 of 40
17. Is there social distancing of 6-feet during exercise or on the yard? a. No there is no way possible to socially distance on the yards we're given to exercise on the way their set up
18. Is that rule enforced by the guards? a. No rules are enforced because different officer's enforce rules differently. No officer is consistent on enforcing the social distancing rules.
19. Is there social distancing of 6-feet during feeding in the unit? a. No there is not any social distancing in our chow hall where we eat
20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. They have me sleeping on a bunk that is basically called a hallway bunk in which high volumes of traffic are constantly walking past me and forcing me into close contact with potentially ill inmates infected with Covid-19.
b. They are writing inmates major misconduct tickets for not wearing mask or practicing social distancing but we're forced to be housed not even a foot apart and we sleep in close quarters daily.
21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
Exhibit 3 - Parnall Prison - 14

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1951 Page 15 of 40
a. I have been given 2 mask in which I have to re-wash until they see fit to give me another.
22.When you are patted down, are guards using gloves? 23. If the guards are using gloves when patting you down, do you notice if the
guards are changing their gloves after? a. I don't see the guards changing their gloves too often around here even when they are simply scanning inmates I.D's.
24.Can you get new masks if you ask for a new one? a. They very seldom give out masks when we ask for them because they run out.
25.Has the prison placed porter-jones outside the housing units? 26.If yes, which housing units? 27.Has the prison used portable showers? 28.If yes, in which housing units?
I, Xavier D. Strozier #465916 hereby certify that everything in this statement is true and to the best of my knowledge under the penalty of perjury and give Attorney Dan Manville permission to sign on my behalf.
Exhibit 3 - Parnall Prison - 15

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1952 Page 16 of 40
DECLARATION OF DANIEL TESEN, 692644: PARNALL 1. I was tested before I left Adrian and was negative, but during test I told the
nurse I wasn't feeling good, headache, and cough, was told it didn't matter. 2. Tables, phones, cells, JPAY and kiosks are all well less than six feet apart. 3. We are given cleaning supplies when we ask for them at the co office. 4. we are given cleaner and bleach, but no rags to wipe with. 5. The showers are cleaned once a day usual in the morning 6. The privacy walls from the base have not been cleaned for at least a year. 7. There is no dayroom but there is a base area where inmates sit two to a table
less than six feet apart. 8. There is no separate unit for pui. They are located in ten block directly above
me on the first tier. 9. There is no social distancing in the showers except inmate discretion 10.There is no social distancing enforced on the yard. Multiple inmates sit
together at tables, use exercise equipment and stand close together in groups. 11. There is no social distancing while in the chow hall, two at a table but well
within six feet from inmates all around you. 12.I have arrived in new cells and had the old persons property and dirty
bedding left in the cell.
Exhibit 3 - Parnall Prison - 16

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1953 Page 17 of 40
13.I haven't seen a doctor nor a psychologist since I was infected with the Covid 19 virus, and I had repeatedly asked to do so.
14.I have been given four masks that where prisoner made. they are made from inmate pant material. They do not close off the nose area and are too small for me to wear.
I,Dan Tesen inmate number 692644, certify that all answers given are true under the penalty of perjury.
Exhibit 3 - Parnall Prison - 17

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1954 Page 18 of 40
DECLARATION OF LARRY DAVIS: PARNALL 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. No. I haven't been tested for Covid-19. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. . Yes, I sought healthcare because I thought I had Covid- 19 symptoms 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. I attempted to go to healthcare on a Friday night but CO Anderson informed me that they were closed So early Saturday morning I was able to go. My lymph nodes were swollen and I didn't feel well. I don't have a spleen so when I'm feeling I'll I take it very serious because my immune system is weakened. After the doctor checked my vitals he informed me he can't do any further treatments or testing because I don't have a high temperature. So he gave me a Tylenol and told me to follow up if things get worse. This occurred over a month ago.
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. We have single man cells in my unit. 5. Can you engage in 6-foot separation when moving about your unit?
Exhibit 3 - Parnall Prison - 18

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1955 Page 19 of 40
a. No we can't engage in 6ft seperation when moving about in unit. 6. Are you given cleaning supplies for your cell?
a. We are allowed to spray our cleaning rag with bleach but not allowed to bring the bottle to our cell. We are given about 6 disinfectant bottles for our unit of about 300 or more inmates. We are allowed to take those bottles to our cells for cleaning.
7. What cleaning supplies are you given? a. See Number 6.
8. Have you observed the unit being cleaned? a. We have inmate porters that clean our unit daily,but they do a poor job. There hasn't been any extreme cleaning fit for an outbreak.
9. If yes to Number 8, how often is the unit cleaned? a. See Number 8.
10. Are the telephones cleaned after each use? a. The individual inmates were instructed to clean phones before and after use, but most inmates don't follow instructions.
11. How often are the bathrooms cleaned? a. Our showers are cleaned daily but very poorly
12. If inmates have been placed in the dayroom, what can you tell me about them?
Exhibit 3 - Parnall Prison - 19

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1956 Page 20 of 40
a. In the day room there's no 6 ft distancing for the phones or at the benches where inmates watch TV. There is no social distancing by the showers, jpay, or store kiosk. Not even for the waiting line for the counselors. The COs do enforce no board or card games and only 2 people to a table but its still not 6 ft.
13. Do the inmates in the dayroom use the bathrooms for the unit? a. . We have our own bathrooms in our cells, but we share showers
14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. We have an open shower of about 6 shower heads and we have another shower that is separated by one panel that has about 4 shower heads on each side
15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. I asked two COs and the block rep and they informed me they have not heard of a PUI unit.
16. Is there social distancing of 6-feet during use of bathrooms, showers? a. There is no 6 ft distancing during showers
17. Is there social distancing of 6-feet during exercise or on the yard?
Exhibit 3 - Parnall Prison - 20

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1957 Page 21 of 40
a. There is no 6 ft distancing during exercising on the yard. Inmates sit closely on benches and play board and card games. And closely walk together
18. Is that rule enforced by the guards? a. No 6 ft distancing is enforced by the guards on the yard.
19. Is there social distancing of 6-feet during feeding in the unit? a. In the chow hall there is 6 ft distancing in the line waiting but we aren't seated 6 ft from each other and the kitchen workers aren't 6 ft from each other
20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. This facility to my knowledge rode in inmates from different facilities that had covid 19 before they restricted transfers. My unit even housed covid inmates along with 10 block. Next they kept covid inmates in 10 block then would send them to he gym. And after tests came back positive they would transfer them to other facilities. It took them weeks to react to this outbreak and even give us masks. I just feel that the MDOC wasn't prepared and I heard on the news that they were instructed over 10 years ago to prepare for a major outbreak. Its nearly impossible to do social distancing in these facilities. I believe you need the zero
Exhibit 3 - Parnall Prison - 21

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1958 Page 22 of 40
pressure cells for such. These are open cells so germs can easily spread. I believe the MDOC should have followed the steps of the 17+ states that released inmates due to the covid 19 outbreak to home confinement/ tether until they find a vaccine and get this pandemic under control. I told them my condition and its like they don't care.
21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. . I believed I received about 4 masks. I don't know if they are made by the facility. But they aren't the M95 masks. These are just the cloth masks which to my understanding from the news is inadequate.
22.When you are patted down, are guards using gloves? a. Yes guards wear gloves when patting down inmates.
23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. I don't believe they change gloves after each inmate pat down.
24.Can you get new masks if you ask for a new one?
Exhibit 3 - Parnall Prison - 22

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1959 Page 23 of 40
a. To my knowledge you can't get new masks when you ask. The COs randomly pass them out.
25.Has the prison placed porter-jones outside the housing units? a. . No Porter johns
26.If yes, which housing units? a, N/A.
27.Has the prison used portable showers? a. No portable showers.
28.If yes, in which housing units? a. N/A.
The above statement is true and I give Dan Manville permission to use my statement and permission to sign it on my behalf.
Exhibit 3 - Parnall Prison - 23

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1960 Page 24 of 40
DECALARTION OF DOMINIQUE CORNLEY, 237854: PARNALL 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. No. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. Yes, I am in a eight man cube here at Parnall correctional facility. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. Over a month ago a inmate in my cube was having chest pain, he tested positive for covid 19. as a result of that everyone in my cube was sent to healthcare only to be screen not tested, during the screen I was asked a few questions like have I had shortness of breath, do I have a cough or chest pain then they take my temperature which was like 98.9 I asked her since someone in my cube might have covid 19 can I be tested she said no. I am in bunk 22 and he was in bunk 23 next to me. 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the opposing end of the bed to created 6-feel separation?
a. I’m in an 8 man cube. 5. Can you engage in 6-foot separation when moving about your unit?
Exhibit 3 - Parnall Prison - 24

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1961 Page 25 of 40
a. Not really. It's house 160 inmates, I think as of today it's like 145 in the unit. 6. Are you given cleaning supplies for your cell?
a. Yes. I am the caustic clerk/porter that pass out cleaning supplies to all units and building at this facility. 7. What cleaning supplies are you given?
a. bleach and citrus. I mix the bleach 8. Have you observed the unit being cleaned?
a. Yes. 9. If yes to Number 8, how often is the unit cleaned?
a. We can clean everyday 10. Are the telephones, cleaned after each use?
a. No. 11. How often are the bathrooms cleaned?
a. When the porters clean them however some officers don't make sure they are clean when they should be 12. If inmates have been placed in the dayroom, what can you tell me about them?
a. No. 13. Do the inmates in the dayroom use the bathrooms for the unit?
Exhibit 3 - Parnall Prison - 25

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1962 Page 26 of 40
a. N/A (did not answer) 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. Did not answer. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. No. 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No. 17. Is there social distancing of 6-feet during exercise or on the yard?
a. No. 18. Is that rule enforced by the guards?
a. For the most of the time 19. Is there social distancing of 6-feet during feeding in the unit?
a. Not in the lines, they do seat two inmates to each tables 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. I feel that the officers could enforce the rules more like make everyone wear their mask all the time. have us all tested, have us more distance from each other in the units and yard, make sure each unit is being cleaned. I know that all
Exhibit 3 - Parnall Prison - 26

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1963 Page 27 of 40
units isn't being clean I they should cause for one I see how much each use bleach and citrus, citrus isn't a disinfectant. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. like five yes, they are prison made. I don't know if they will prevent infection 22. When you are patted down, are guards using gloves?
a. I don't see that many pat down since the covid 19, but when I do see them patting down, they are using the same gloves. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When? a. When they are patting down more then one they are using the same gloves 24. Can you get new masks if you ask for new ones? a. Yes. 25. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue? a. I feel it shouldn't be as many inmates in one cube and on top of each other. 26. Has the prison placed porter-jones outside the housing units?
Exhibit 3 - Parnall Prison - 27

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1964 Page 28 of 40
a. No. 27. If yes, which housing units? 28. Has the prison used portable showers?
a. No. 29. If yes, in which housing units? I give Mr.Dan Manville my consent to sign this document on my behalf.
Exhibit 3 - Parnall Prison - 28

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1965 Page 29 of 40
DECLARATION OF ROBERT THOMAS, 567141: PARNALL 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. No 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. n/a 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. I am in a 8 Men cell ,Head on the oppose end No ,Im in B unit 14/2 5. Can you engage in 6-foot separation when moving about your unit? 6. Are you given cleaning supplies for your cell?
a. Yes 7. What cleaning supplies are you given?
a. Watered down bleach, half and half 8. Have you observed the unit being cleaned?
a. Yes once every shift 9. If yes to Number 8, how often is the unit cleaned?
Exhibit 3 - Parnall Prison - 29

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1966 Page 30 of 40
a. Yes every shift 10. Are the telephones cleaned after each use?
a. Yes we clean them after every use 11. How often are the bathrooms cleaned?
a. Once every shift 12. If inmates have been placed in the dayroom, what can you tell me about them?
a. We are suppose to be 6 feet apart but that would be impossable because because we have to many people in the unit.
13. Do the inmates in the dayroom use the bathrooms for the unit? a. Yes
14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. no 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No 17. Is there social distancing of 6-feet during exercise or on the yard?
Exhibit 3 - Parnall Prison - 30

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1967 Page 31 of 40
a. Its supposed to be 18. Is that rule enforced by the guards?
a. yes 19. Is there social distancing of 6-feet during feeding in the unit?
a. Sometimes 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. 8 men in a cube 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. 8 22.When you are patted down, are guards using gloves?
a. They are not patting us down 23. If the guards are using gloves when patting you down, do you notice if the
guards are changing their gloves after? a. n/a
24.Can you get new masks if you ask for a new one? a. yes
25.Has the prison placed porter-jones outside the housing units?
Exhibit 3 - Parnall Prison - 31

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1968 Page 32 of 40
a. We are not that comfined because we have a lot of people still lock up in prison. Alot of people are catching colds there is not enough room to spead out priod.We just have a lot of people here to spread out for social distance.
26.If yes, which housing units? a. no
27.Has the prison used portable showers? a. no
28.If yes, in which housing units? a. no
Exhibit 3 - Parnall Prison - 32

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1969 Page 33 of 40
DECLARATION OF JESSE MACK: PARNALL 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes, I am covid recovered 2. Had you sought health care because you thought you had COVID-19
symptoms? a. Yes, On 3 -23 -20
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. Medical quarantine and generic Tylenol
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If are not in a 2-man cell- describe where you are currently housed. a. No
5. Can you engage in 6-foot separation when moving about your unit? a. I am currently in a single cell at SMT (Parnall)
6. Are you given cleaning supplies for your cell? a. No
7. What cleaning supplies are you given? a. Only diluted sanitizer
8. Have you observed the unit being cleaned? a. Rarely and not thoroughly
Exhibit 3 - Parnall Prison - 33

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1970 Page 34 of 40
9. If yes to Number 8, how often is the unit cleaned? a. unknown
10.Are the telephones, cleaned after each use? a. no
11.How often are the bathrooms cleaned? a.
12.If inmates have been placed in the dayroom, what can you tell me about them? a. no
13.Do the inmates in the dayroom use the bathrooms for the unit? a. no
14.Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.? a. no
15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit? a. 15. No, Covid +'s are housed in a GP unit until transferred to Cotton or Carson for quarantine
16.Is there social distancing of 6-feet during use of bathrooms, showers? a. no
Exhibit 3 - Parnall Prison - 34

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1971 Page 35 of 40
17.Is there social distancing of 6-feet during exercise or on the yard? a. no
18.Is that rule enforced by the guards? a. no
19.Is there social distancing of 6-feet during feeding in the unit? a. yes, two per table in chow hall
20.Tell me about any other issues that you have as to how you are confined during the COVID-19 issue? a. . No access to grievance process while in covid quarantine or library material. I have grievances pending
21.How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. 3 , Yes, Unsure on effectiveness
22.When you are patted down, are guards using gloves? a. yes
23.If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When? a. no
24.Can you get new masks if you ask for new ones? a. unsure
Exhibit 3 - Parnall Prison - 35

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1972 Page 36 of 40
25.Tell me about any other issues that you have as to how you are confined during the COVID-19 issue? a. I was not sent back to my sending facility after testing negative for Covid. I was dumped at Parnall with no explanation or reasoning. Parnall is a Covid hotspot.
26.Has the prison placed porter-jones outside the housing units? a. no
27. If yes, which housing units? a. no
28.Has the prison used portable showers? a. no
29.If yes, in which housing units? a. No
30. I was the first Covid positive prisoner at WCC on 3 27 20 and one the first to go through the quarantine process at cotton and Adrian.
31. I have not been evaluated or examined by a doctor since my initial covid test on 3 26 20.
I certify under the penalty of perjury that all statements made by me, JESSE MACK, in the forgoing email are true to the best of my understanding and
Exhibit 3 - Parnall Prison - 36

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1973 Page 37 of 40
knowledge. Jesse Mack MDOC ID 823808 DOB 4 - 27 - 1988 I grant permission to attorney Daniel Manville to sign this documentation on my behalf. Jesse Mack MDOC ID 823808 DOB 4 - 27 - 1988
Exhibit 3 - Parnall Prison - 37

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1974 Page 38 of 40
DECLARATION OF DWAYNE CRAGGETTESMITH, 818038: PARNALL 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. I tested positive on for coronavirus on March-30-2020 && then days later I was sent to J.C.F prison to K-unit were they was housing coronavirus prisons.
2. Had you sought health care because you thought you had COVID-19 symptoms? 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. I've NEVER received No treatment for coronavirus at all.. all I was offered was cold water && pain pills when I asked & Vitals that's all... So it was up to my body to fight off coronavirus
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. I was housed in a cell with a roommate that also had tested positive for coronavirus.... but the thing that I was mostly scared of was... if the person that they put in my room still had coronavirus && how bad also I'm a G.I.D prisoner mean that I'm a transgender woman && I'm not supposed too have a roommate.. I have a single cell detail... that was giving to me throw health care && when I told they that they said that
Exhibit 3 - Parnall Prison - 38

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1975 Page 39 of 40
they don't care that this was intake && nothing like a regular unit so they do what they won't && feel... So I have to lock with man that wasn't G.I.D like myself... 5. Are the telephones cleaned after each use? a. no the phones are not cleaned after each use they leave it up to you to clean the phone off before you use it. 6. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue? a. C/O who are sick are still coming to work too... I truly believe that I got coronavirus from are ARUS because she was sick for weeks && one day before they gave us mask I walked into her official to ask her a question && she was just coughing like crazy then 2 days later I was sick I can't eat of hold nothing down at all I was throwing up everything even water 7. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. I've only have got 3 mask since they stared all this && I've haven't got NO more && when I ask they say that they don't have no new ones but yet the C/O have new one.
Exhibit 3 - Parnall Prison - 39

Case 2:20-cv-11053-MAG-RSW ECF No. 30-4 filed 05/18/20 PageID.1976 Page 40 of 40
I Dwayne Craggettesmith give Dan Manville permission to sign my name on the document on my behalf and I also swear that the statements that I gave and made about the M.D.O.C are true under the penalty of perjury.
Exhibit 3 - Parnall Prison - 40

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1977 Page 1 of 38
Exhibit 4 - Macomb Correctional Facility (MRF) Defendant Willis Chapman is the Warden of Macomb Correctional Facility
(hereinafter “MRF”) in Lennox Township, Michigan. (ECF No. 27-16, PageID.1574 at ¶¶ 1-2).
Testing does not make any sense at MRF, as they house inmates awaiting tests, who might be negative, and inmates who are positive in the exact same housing unit: Housing Unit 5. Defendant Chapman describes of testing at MRF
MRF established a room in healthcare to be utilized for all suspected COVID-19 prisoners. Prisoners determined to be PUIs are swabbed and placed in isolation in Housing Unit (HU) 5 (COVID-19 Unit) pending the test results. All close contacts are identified and placed (single celled) in HU5. Prisoners found to be positive remain in HU5. Prisoners determined to be negative are released to general population along with their close contacts. (ECF No. 27-16, PageID.1578 at ¶ 14).
The problem with this policy is it essentially rounds up cohorts of inmates who all have close contact with one another every day and placing them in the same unit with other inmates confirmed to have the virus. For the inmates who do get tested,1 Defendant risks exposure of the virus in Housing Unit 5 while Plaintiffs wait around for the test results, unnecessarily exposing them to COVID-19. PUIs, Close
1 MRF also does not have enough tests, so they disregard notable symptoms of the virus to avoid sending them to HU5. See (Ex. 4, Affidavit of David Lyons at ¶ 3) (describing symptoms of “severe breathing problems, loss of smell and taste, fever and chills and loss of appetite” with no treatment).
Exhibit 4 - Macomb Prison - 1

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1978 Page 2 of 38
Contacts, and positive inmates will continue to grow, and false negative tests will spread the virus back into the general population. Defendant Chapman is knowingly exposing those awaiting test results to the virus, rendering many of the tests useless because inmates will contract the virus as a result of moving to HU-5 after they are tested.
MRF is also primarily testing only those with major symptoms, so most inmates have not been tested. (See Ex. 4, Affidavit of Shawn Hendrix at ¶ 1; id., Affidavit of David Lyons at ¶ 3). Shockingly, no inmates who answered the questionnaire reported that they had been tested (Ex. 4). The infectious disease doctors warn that these measures are insufficient because of the virus’s asymptomatic spread. (Ex. 1, Affidavit of Dr. Lauring at ¶¶ 2-3) (advising “repeat testing of inmates and/or testing of all guards and staff” because it is “increasingly recognized that many individuals infected with SARS-CoV-2 may be asymptomatic or have mild symptoms only”). Defendants’ willful ignorance regarding their insufficient testing system necessitates this Court’s action.
The only other way to prevent the asymptomatic spread of the virus would be social distancing and aggressive cleaning. As Mr. Dwight Henley notes, “If the system that is currently in place was actually followed, it would provide for distancing in the unit. The bathroom, hallway, and getting in line for meds are the biggest problem areas for distancing.” (Ex. 4, Affidavit of Dwight Henley at ¶ 17).
Exhibit 4 - Macomb Prison - 2

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1979 Page 3 of 38
Inmates do not get adequate cleaning supplies, forcing many to forego cleaning inside their cells or necessary areas like phones or bathrooms (Ex. 4, Affidavit of Casey Stapp (describing how his requests for soap were denied)); (Ex. 4, Affidavit of David Lyons at ¶¶ 10; 11 (stating bathrooms and phones are not cleaned).
Social distancing policies also vary, as Defendant-Chapman notes these “measures were and continue to be implemented throughout the facility . . . requiring that there be a distance of at least six feet between all individuals, including programing, classrooms, chow lines, staff screenings and office buildings, to the fullest extent feasible.” (ECF No. 27-16, PageID.1579 at ¶ 15(c) (emphasis added)). This is one of those situations where the exception swallows the rule, as all of the inmates report you cannot social distance in their unit where they are confined most of the day (Ex. 4). Defendant-Chapman also describes inmates “being on lockdown with restricted movement to the bathrooms, showers, phones, Kiosks, and yard.” (ECF No. 27-16, PageID.1580 at ¶ 15(j)). More efforts are necessary to implement this policy.
While less inmates may be present in these places, they report that social distancing among them is primarily only enforced in the yard (Ex. 4). Elsewhere, like in the units, bathrooms, and phone and JPAY kiosks, social distancing is more of an issue. (Ex. 4, Affidavit of Brandon Robertson at ¶ 5 (describing “you are always passing someone”)); (Ex. 4, Affidavit of Travell Henry at ¶ 5) (noting social
Exhibit 4 - Macomb Prison - 3

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1980 Page 4 of 38
distancing implementation “depends on where I’m at[. By] the phones there is no 6 feet [of separation] nor is it being enforced but in the Hallways yes there is 6 feet separation”)); (Ex. 4, Affidavit of David Lyons at ¶ 17 (noting that if “the system that is currently in place was actually followed, it would provide for distancing in the unit. The bathroom, hallway, and getting in line for meds are the biggest problem areas for distancing”)). Mr. Martell Smith describes the “use of bathroom we are only able to go 2 at a time, but there’s no separation panel line inside of the bathroom but there is 2 panel boxes outside the bathroom were 2 guys have to wait inside until 1 come out.” (Ex. 4, Affidavit of Martel Smith at ¶ 16).
These constant flows of inmates might be sufficient if the bathroom is cleaned after each use, but, again, that duty falls to inmate porters who clean these bathrooms only a couple of times a day even though used by hundreds of individuals. (Ex. 4, Affidavit of Shawn Hendrix at ¶ 11 (noting “our bathroom is only being cleaned once a day because officers don’t check and make sure the job is done”)). These bathrooms are an issue and Defendants have a duty to adequately cleanse them of COVID-19 or risk passing it off to the entire facility. Like other facilities, no individualized cleaning supplies are available, as inmates may only use community mops, dust pans, and rags with disinfecting spray. (Ex. 4, Affidavit of Martel Smith at ¶ 7 (noting “cleaning supplies we get is a broom, dust pan, mop with plain water, a bottle with disinfection spray which we not always able to use”)).
Exhibit 4 - Macomb Prison - 4

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1981 Page 5 of 38
Social distancing, the “cornerstone” of the fight against this virus is only available in the limited yard time Plaintiffs get. Testing has hardly been implemented at all at Macomb, and the only major symptom patients that enter Macomb’s Housing Unit 5 better be sure they have it, or else they enter a unit compiled of all positive inmates.
Exhibit 4 - Macomb Prison - 5

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1982 Page 6 of 38
DECLARATION OF SHAWN HENDRIX: MACOMB 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. no, they are only testing people who have major symptoms 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. no, I have not sought health care 3. If yes to question 2. Explain what steps health care took to treat you, if any? 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. yes and no one has informed me or my bunky to sleep facing opposite directions of the bed for 6-foot separation
5. Can you engage in 6-foot separation when moving about your unit? a. it would be almost impossible to move around the unit with 6-foot separation
6. Are you given cleaning supplies for your cell? a. no, we have to seek out cleaning supplies
7. What cleaning supplies are you given? a. very very diluted sanitizer and very very diluted bleach
8. Have you observed the unit being cleaned?
Exhibit 4 - Macomb Prison - 6

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1983 Page 7 of 38
a. they are not cleaning any more than normal 9. If yes to Number 8, how often is the unit cleaned?
a. very rarely is the unit being cleaned 10. Are the telephones cleaned after each use?
a. no, the phones are only being wiped down 2-3 times a day and there are 60 people using 2 phones all day and on our wing one phone is broken
11. How often are the bathrooms cleaned? a. our bathroom is only being cleaned once a day because officers don't check and make sure the job is done
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. yes, and the inmates in the day room came from a unit that multiple people tested positive to covid-19
13. Do the inmates in the dayroom use the bathrooms for the unit? a. yes, the day room inmates go to any bathroom in the unit they want they often just walk to the bathrooms and talk to their friends
14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. no separation walls have been put up anywhere and we have direct contact with day room inmates
Exhibit 4 - Macomb Prison - 7

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1984 Page 8 of 38
15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. I don't know about pui unit if there is one 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. no there is not 6foot separation in the bathroom the bathroom is approximately 10 by15 foot and any given time there are about 6 people in the bathroom at a time
17. Is there social distancing of 6-feet during exercise or on the yard? a. I don't go to the yard
18. Is that rule enforced by the guards? a. No
19. Is there social distancing of 6-feet during feeding in the unit? a. on the wings the inmates bring our trays to the doors
20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. just the fact they don't give us new masks when we need them and the officers get them whenever they need them we are treated like we are less than human also no gloves at all and they don't clean the bathrooms phones showers j pay machines and store machines enough these are things that are used over and over again by countless people especially
Exhibit 4 - Macomb Prison - 8

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1985 Page 9 of 38
the jpay and store kiosk the whole unit uses them and that is about 138 people 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. approximately 4 weeks ago they gave us 1 mask and then about 4 days later they gave us 1 more so we can alternate and wash the other one. The mask is crudely made up of one layer of prison pants or prison shirt material with 2 straps they fall apart very easily, and I personally don't think they would help prevent anybody from covid-19 they are way too thin 22.When you are patted down, are guards using gloves? a. yes, the guards wear gloves while patting down 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. no, they don't change their gloves before patting someone else down 24.Can you get new masks if you ask for a new one? a. no one of my masks broke and I asked my officer and my unit ARUS if I could get a new one and she said" we don't have anymore; I don't know what to tell you" I filed a grievance on this issue 25.Has the prison placed porter-jones outside the housing units?
Exhibit 4 - Macomb Prison - 9

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1986 Page 10 of 38
a. if a person says they have symptoms they isolate them and don't let them contact their family via phone or j pay and don't let them get store so people feel like their being punished so they don't tell anybody that they are having symptoms unless they get real bad and they feel they have no choice
26.If yes, which housing units? a. no there are no porter johns outside the units
27.Has the prison used portable showers? 28.If yes, in which housing units?
a. no there are no portable showers
I Shawn Hendrix confirm that the information is true under the penalty of perjury and that I give Attorney Dan Manville permission to sign this document on my behalf
Exhibit 4 - Macomb Prison - 10

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1987 Page 11 of 38
DECLARATION OF DAVID LYONS (5/4/20): MACOMB 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. No. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. Yes. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. I sent a kite to health care explaining that I believed I contracted COVID19; explaining I had severe breathing problems, loss of smell and taste, fever and chills and loss of appetite. No response made. Kite sent on 03/24/2020. 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation?
a. No, never. 5. Can you engage in 6-foot separation when moving about your unit?
a. Sometimes, but staff allows prisoners to just hang out and crowed the restroom, and you are literally rubbing elbows with other prisoners. 6. Are you given cleaning supplies for your cell? a. No. 7. What cleaning supplies are you given?
Exhibit 4 - Macomb Prison - 11

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1988 Page 12 of 38
a. None in the Unit. Sometimes a porter might come by spraying the cell door handles. 8. Have you observed the unit being cleaned?
a. Down on base area where the officers are sitting at their station. 9. If yes to Number 8, how often is the unit cleaned?
a. Every day in this area. 10. Are the telephones, cleaned after each use?
a. . No they never are. 11. How often are the bathrooms cleaned?
a. Never. As the porters do not clean them or care to keep these facilities clean. 12. If inmates have been placed in the dayroom, what can you tell me about them?
a. The inmates living in the day room walk around without their masks, but wear them if they come out to base area or going to use the rest room.. 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. Yes. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No. And I've made a complaint about it. Have a copy of this complaint.
Exhibit 4 - Macomb Prison - 12

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1989 Page 13 of 38
(04/14/2020). 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. I am not aware of such a name of any program/ unit like this. 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No, again the staff allows prisoners to hang out in the restroom. Showers are single men, and has a divider between them. 17. Is there social distancing of 6-feet during exercise or on the yard?
a. Yes. 18. Is that rule enforced by the guards?
a. Yes, outside. 19. Is there social distancing of 6-feet during feeding in the unit?
a. Yes. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. We have no law library access what so ever. State clothing is not being cleaned properly. Comes back dirtier. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent injection? If no, why not?
Exhibit 4 - Macomb Prison - 13

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1990 Page 14 of 38
a. .One mask. No made a company. They come in a big bag. But they don't are about giving us one. 22. When you are patted down, are guards using gloves?
a. No, but sometime they do. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When?
a. I do not see them changing their gloves 24. Can you get new masks if you ask for new ones?
a. No, they do not give them out to us. 25. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. We are not being able to use Jpay, and sometimes it takes (3) days for us to access to it, because staff do not pay attention to calling them out.
Pursuant to MCR 2.114(c); 28 U.S.C. Sec. 1746, I declare that the foregoing is true and correct, to the best of information, knowledge and belief, under the penlty of perjury.
David M. Lyons-Bey, #231703 Macomb Correctional Facility
Exhibit 4 - Macomb Prison - 14

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1991 Page 15 of 38
34625 26 Mile Road Lenox Twp., Michigan 48048
Exhibit 4 - Macomb Prison - 15

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1992 Page 16 of 38
DECLARATION OF DWIGHT HENLEY, 246521 I, Dwight Henley, under the penalty of perjury, state the following:
1. I am presently confined within the Michigan Department of Corrections at Macomb Correctional Facility in Lenox, Michigan.
2. I am housed in Housing Unit 2, B-wing, top-bunk. 3. My Bunkie and I have been given cloth face masks. We are told to wash our
masks- inmates are permitted to do laundry twice per week. 4. My temperature is not being taken. 5. In Housing Units 1, 2, and 3, the middle dayroom has been turned into a
dorm and houses 16 prisoners. The dayroom is approximately 30 feet by 50 feet. 6. Prisoners in the dayroom use the toilets in the Housing Units. 7. Inmate porters are responsible for cleaning the toilets and showers, and each one cleans differently, if they choose to clean. Porters are given diluted bleach with water. 8. I have been told that the gym and a few classrooms have also been turned into dorms. 9. For the first week of quarantine, prisoners were still being fed in the chow hall. Now we are being fed in our cells.
Exhibit 4 - Macomb Prison - 16

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1993 Page 17 of 38
10. Prisoner’s that require medications are to line up in the Unit to receive their medication and are not told to stand 6-feet apart.
11. Officers are required to do a set number of pat downs per shift. I have observed officers using the same gloves to search multiple prisoners.
12.On April 15, 2020, I submitted two grievances, one against Warden Chapman, and the other against Director Washington.
13. My grievance against Warden Chapman and Director Washington was for failing to properly protect grievant from contracting COVID-19 in all, but not limited to, the following ways: a. Failed to implement measures to ensure staff don’t carry COVID-19 into the prison and infect prisoners; b. Failed to ensure that staff engage in and enforce social distancing during food distribution, in the hallways, at prisoner phones, in prisoner bathrooms, and on base; c. Failed to test and segregate appropriately all prisoners who complain of COVID-19 symptoms; d. For moving prisoners from unit to unit without testing them for COVID-19; e. Failed to ensure prisoners report COVID-19 symptoms and determine which prisoners are infected.
Exhibit 4 - Macomb Prison - 17

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1994 Page 18 of 38
14.The grievance coordinator returned the grievance against Director Washington to me because it was identical to the other grievance. However, while identical, the grievances grieved two different people.
15.I spoke to the grievance coordinator about this and submitted another grievance against Director Washington.
16. I have not been tested for COVID-19. 17. If the system that is currently in place was actually followed, it would
provide for distancing in the unit. The bathroom, hallway, and getting in line for meds are the biggest problem areas for distancing. 18. We are allowed to clean our cell from 6:30-8:30AM. 19.We usually get disinfectant, mop, water, and broom. Inmates can request bleach. Some officers will allow us to clean anytime. 20.There is little oversight to ensure that porters are cleaning the bathrooms and unit’s property. 21.The bathroom and showers are cleaned 3-4 times per day. 22. The phones are not being wiped down. 23.The dayroom is housing inmates in an open dorm setting. They are using the bathrooms of the housing unit. 24. We are fed in our cell. The porter who distributes the trays comes within 6 feet. When we drop off our trays, there is also no distancing.
Exhibit 4 - Macomb Prison - 18

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1995 Page 19 of 38
I have read the above declaration and find that it is true and accurate based on my observations and/or what staff has informed me. I give permission to Counsel Daniel E. Manville to sign my name to this declaration due to the restriction placed on communications by prisoners with outside sources.
Exhibit 4 - Macomb Prison - 19

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1996 Page 20 of 38
DECLARATION OF CASEY STAPP: MACOMB CORRECTIONAL FACILITY 1. During my time in quarantine from March 26, 2020 while at Macomb Corr. Facility I was forced to live in a cell with another positive tested covid-19 patient without cleaning supplies and the ability sterilize my cell. 2. I was given a shower once every two days and phone use every two days as well. 3. I was forced to take showers in a unsanitized or cleaned shower after about 20 people and I was forced to live in a cell within 6 feet of my cell mate who was very sick. 4. I asked and requested on numerous occasions for cleaning supplies to clean my cell and was denied such. 5. I was denied my personal property the entire time which meant I went without hygiene for about two and a half weeks and I didn't start to receive state soap until Bruce-X Parker #593090 began to complain about it and demand hygiene and cleaning supplies which the prison never supplied. 6. I only received state soap on two occasions. 7. I complained to Resident Unit Manager Regina Jenkins-Grant as well as Co. Wright and C/o Sanders and Assistant Deputy Warden Kristopher Steece and Malloy to no avail. 8. Rum Jenkins-Grant said we weren't allowed to have cleaning supplies.
Exhibit 4 - Macomb Prison - 20

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1997 Page 21 of 38
9. My experience at Macomb during the Covid outbreak was traumatizing and life shattering as I heard and say other inmates wheeled out breathless and borderline lifeless and denied proper care on numerous occasions.
10.Prisoners plea for assistance and help was ignored by healthcare staff such as RN Smith, Donuhue, Wolfe, Phaneuf and Physician’s Assistant Kim Farris and Nurse PR actioners Juliano Martio. The above is true under penalty of perjury and I give Dan Manville permission to sign this. Casey Stapp
Exhibit 4 - Macomb Prison - 21

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1998 Page 22 of 38
DECLARATION OF BRANDON ROBERTSON: MACOMB CORRECTIONAL 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. No. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. N/A. 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the opposing end of the bed to created 6-feel separation?
a. No ( In two man cell but wasn't told to sleep at other end of the bed as your
bunkie). 5. Can you engage in 6-foot separation when moving about your unit?
a. No because you are always passing someone. 6. Are you given cleaning supplies for your cell?
a. Yes once a day in the morning between 630am 830am. So if you ain't a morning person you can't clean til next day no other shift let's you clean room. 7. What cleaning supplies are you given?
Exhibit 4 - Macomb Prison - 22

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.1999 Page 23 of 38
a. Disinfectant, sometimes bleach depending on who is working 8. Have you observed the unit being cleaned?
a. Yes. 9. If yes to Number 8, how often is the unit cleaned?
a. 3 times a day bearly. 10. Are the telephones, cleaned after each use?
a. No. 11. How often are the bathrooms cleaned?
a. 2 times daily. 12. If inmates have been placed in the dayroom, what can you tell me about them?
a. . Inmates in the dayroom are just put in there can't really do nothing hey like right on top of each other. 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. Yes. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. Yes! It is mix with people who has covid19 and those who are on the step
Exhibit 4 - Macomb Prison - 23

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2000 Page 24 of 38
down. 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. Bathroom yes they want two prisoners in there at a time but showers all there
is a wall between the two of you. 17. Is there social distancing of 6-feet during exercise or on the yard?
a. yes what yard we do get. We only get 2 hours a week. 18. Is that rule enforced by the guards?
a. Yes. 19. Is there social distancing of 6-feet during feeding in the unit?
a. No not between my bunkie and not between the people severing our food.. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. People who has been in a room with someone who had covid19 are put back in population with the others instead of putting them somewhere else 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. 2 Masks and yes prison made and no there not helpful at there are very thin and you still can breathe in anything through it, doesn't meet the standard. 22. When you are patted down, are guards using gloves?
Exhibit 4 - Macomb Prison - 24

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2001 Page 25 of 38
a. Yes. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When?
a. No, they don’t change them. 24. Can you get new masks if you ask for new ones?
a. No its hard to get a new mask you ask the officer and the officer will send you to the arus and they tell you to wash out the ones we got. 25. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. They way they running things are messed up and the officers tell us this.
Everything that I said in this jpay is true and real under penalty of perjury. And i Brandon Robertson gave attorney Dan Manville the right to sign this document for me.
Exhibit 4 - Macomb Prison - 25

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2002 Page 26 of 38
DECLARATION OF TRAVELL HENRY: MACOMB 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. No I have not. 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No. 3. If yes to question 2. Explain what steps health care took to treat you, if any?
a. N/A. 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the opposing end of the bed to created 6-feel separation?
a. I am in a 2-person cell and I was not instructed that me or my bunkie should sleep on separate sides of the bed to create 6 feet separation. 5. Can you engage in 6-foot separation when moving about your unit?
a. It depends on where I'm at on the phones there is no 6 feet seperation nor is it being enforced but in the Hallways yes there is 6 feet separation. 6. Are you given cleaning supplies for your cell?
a. yes but we are only allowed to clean between the hours of 6am and 8am. There is only two mops two brooms and two dust pans and it is expected that 60 inmates should use that within the allotted time 7. What cleaning supplies are you given?
Exhibit 4 - Macomb Prison - 26

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2003 Page 27 of 38
a. we are given Disinfectant solution and, bleach that is mostly filled up with water. 8. Have you observed the unit being cleaned? a. Yes... but Not outside of regular porter requirements they haven't changed the regulations for cleaning since Covid-19. 9. If yes to Number 8, how often is the unit cleaned? a. The unit is being cleaned On (am shift:) once at 6am for 30 mins and then again at 11:00am for 30 mins. (pm shift) Once at 2pm for 15 minutes and once at 4pm for 30 minutes. (3rd) shift only cleans up once usually at Midnight. until 1am. 10. Are the telephones, cleaned after each use? a. The telephones are not cleaned after each use, an neither is the Jpays/ kiosk. 11. How often are the bathrooms cleaned? a. The bathrooms are cleaned twice per each shift. 12. If inmates have been placed in the dayroom, what can you tell me about them? a. Inmates are placed in a dayroom In the unit that I'm in; Housing unit 2. Its a total of 16 inmates in one room, double bunked they were told that they would be place in the dayroom until the quarantine was over. but they still interact with
Exhibit 4 - Macomb Prison - 27

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2004 Page 28 of 38
general population and share physical contact with everything that we use. 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. The inmates in the day rooms do use general population bathrooms regularly. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. There has NOT been any separation panels set up so that the inmates in the dayroom are separated from general population in the bathroom. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. There are a few different places designated as the PUI unit but more specifically the gym located in the programs building. Prisoners who report symptoms or are high risk because of there closeness to people who've tested possitive normally go there I'm not sure how long they stay or what's actually being done there. 16. Is there social distancing of 6-feet during use of bathrooms, showers?
a. The bathrooms are not marked for social distancing but some officers enforce two prisoners being allowed in the restroom at one time but more than not the bathroom is usually crowded with atleast 7 inmates unless being told to leave the restroom. The shower is devided by a 12 inch wall and a walk in curtain. aside
Exhibit 4 - Macomb Prison - 28

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2005 Page 29 of 38
from that divided wall there is no real separation. 17. Is there social distancing of 6-feet during exercise or on the yard?
a. Yes there is social distancing on the yard during exercise we are only allowed to be accompanied by one other person. 18. Is that rule enforced by the guards?
a. That rule is not enforced by the guards 19. Is there social distancing of 6-feet during feeding in the unit?
a. Yes Prisoners are required to eat in their cells with their bunkie. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. The other issues that i have about how we are confined during the covid 19 are as follows.
1.) We are required to eat in our cells we are normally fed at count time and because its count we are not allowed to step out of our cells and wash our hands before eating our food. also when our meals are passed out In my unit specifically Housing Unit 2. they are not being passed out by a food service worker but rather another inmate who volunteered. The problem with that is that the three inmates who normally pass our trays out have different job descriptions that they are usually working minutes before passing our food to us. One of the three inmates is a unit base porter, who vacuums sweeps and handles dust and blood spills literally
Exhibit 4 - Macomb Prison - 29

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2006 Page 30 of 38
minutes before he passes out our trays. The other 2 out of three is a Dog handler who usually picks up poop, Handles hair fleas and everything else that comes with having a dog then minutes later comes and serves our trays, these inmates are wearing gloves but I'm not sure if they are Washing there hands before transitioning from handling these potential things that can expose us to bacteria, to handling this food that we are going to put in our bodies. also. The Unit can hire inmates who have no detail and assign them to the job to where they are only handling food but instead they use these other inmates who are can potentially spread bacteria. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. I have recieved 4 masks since March 4th up until present,. the mask are prison made masks made from the same material our shirts are made from, I don't believe that these masks are proactive in preventing the spread of Covid simply because there were so many inmates who wore their mask regularly but still became aerosymptomaic carriers. They lost their taste and smell, that was the most common symptom in my unit. And almost every prisoner on my wing claimed that they had that symptom. 22. When you are patted down, are guards using gloves?
Exhibit 4 - Macomb Prison - 30

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2007 Page 31 of 38
a. YES. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When?
a. The guards are not changing their gloves, thy go from one inmate to the other wearing the same gloves. 24. Can you get new masks if you ask for new ones?
a. They tell us to ask the officer, the officer tells us to asks the ARUS, and the ARUS tells us to wash the ones that we have and use it again. 25. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. Another issue that I have about how we are confined during covid 19 is our yard schedule we are only receiving two hours a week outside. And out side of those two hours we don't receive no fresh air what so ever. 26. Has the prison placed porter-jones outside the housing units?
a. There aren't any porter-Jones outside of our units. 27. If yes, which housing units?
a. N/A. 28. Has the prison used portable showers?
a. No. 29. If yes, in which housing units?
Exhibit 4 - Macomb Prison - 31

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2008 Page 32 of 38
a. No. I Travell Henry certify that this information is true under the penalty of perjury. And I give attorney Dan Manville to sign this document on my behalf.
Exhibit 4 - Macomb Prison - 32

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2009 Page 33 of 38
DECLARATION OF MARTELL SMITH: MACOMB 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. No, I have not been tested for covid-19 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. No, I have not sought health care do to any symptoms. 3. If yes to question 2. Explain what steps health care took to treat you, if any? 4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2-person cell- describe where you are currently housed.
a. No, I was not instructed that me an cell mate should have our heads on the opposing end of the beds to create 6 feet separation.
5. Can you engage in 6-foot separation when moving about your unit? a. Yes, but not really its kind of impossible.
6. Are you given cleaning supplies for your cell? a. We are not given individual cleaning supplies for our rooms, they make us use the same cleaning supplies.
7. What cleaning supplies are you given? a. The cleaning supplies we get is a broom, dust pan, mop with plain water, a bottle with disinfection spray which we not always able to use.
Exhibit 4 - Macomb Prison - 33

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2010 Page 34 of 38
8. Have you observed the unit being cleaned? a. Yes, I observed the unit getting cleaned but not properly, No bleach, the bottles that suppose to have bleach in it be filled with majority water.
9. If yes to Number 8, how often is the unit cleaned? a. The unit being clean everyday but not properly
10. Are the telephones cleaned after each use? a. No, the telephones is not cleaned after each use.
11. How often are the bathrooms cleaned? a. The until being cleaned about maybe 3 to 4 times a day starting 6am, but the cleaning don't be proper cleaning, they don't use bleach for everything even for the floors when moping, the floors only being moped with water n a lil disinfection spray. Also the porters don't always clean so the bathrooms be nasty an also the phones an reels be wiped down with da same towels.
12. If inmates have been placed in the dayroom, what can you tell me about them?
a. The inmates in the dayrooms are not 6 feet apart which is kinda impossible to do.
13. Do the inmates in the dayroom use the bathrooms for the unit? a. Yes, the inmates in the day rooms use the same bathrooms for the unit.
Exhibit 4 - Macomb Prison - 34

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2011 Page 35 of 38
14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. No, there's not been any separation panels set up in the bathrooms so that the dayroom inmateswill not come in contact with us.
15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit?
a. Yes, an the prisoners that are housed in the PUI unit are the ones thats sick an also recovered from being sick. They also have porters housing in that same unit that's not sick an never was sick. A guy I know that was housed in that same until that never was sick or had any symptoms just got moved back into my unit his name is William jonec Jr #284400
16. Is there social distancing of 6-feet during use of bathrooms, showers? a. Doing use of bathroom we are only able to go 2 at a time, but there's no separation panel line inside of the bathroom but there is 2 panel boxes outside the bathroom were 2 guys have to wait inside until 1 come out
17. Is there social distancing of 6-feet during exercise or on the yard? a. They tell us to be 6 feet part while talking but they did t mentioned exercising.
18. Is that rule enforced by the guards? a. no
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2012 Page 36 of 38
19. Is there social distancing of 6-feet during feeding in the unit? a. We have to eat in our rooms, so yes.
20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. There's in makes who have jobs outside the units who comes back in the room after coming from being around people that's coming in and out from the outside world everyday, he could be bringing the virus into the cell. I believe all kicthen workers or any one that works outside the unit should be cell mates. Also guys are being placed in Quarintine but aren't being treated for covid 19 an are being released back into GP as potential carriers. Health care staff are neglecting to take vitals and check for symptoms, they just started about 4 maybe 5 days ago. Quarintine prisoners are not being given a opportunity to use Jpay to write family, they also not able to go outside to the yard and are essentially being treated as high costudy level prisoners an also there kites are not being responded to by P.c or Arise. There is also guys who have or had symptoms of the virus like lost of taste an smell who never got check or questioned by a nurse an still around guys who may not have symptoms. There's guys that I believe had the virus but may already recovered an I also believe theres a guy that's in on my floor that
Exhibit 4 - Macomb Prison - 36

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2013 Page 37 of 38
have the virus an tmnever been tested. He looked really bad at one moment an had a consistent cough. He still have a cough but not as bad. 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. I got 2 mask from MDOC, yes they are prison made. No they are not helpful to present infection because they are very thing , they also have 0% percent cotton. They are made out of MDOC clothing. 22.When you are patted down, are guards using gloves? a. Yes guards are using gloves. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. No guards are not changing there gloves after a consistent shake down. 24.Can you get new masks if you ask for a new one? a. No I can't get a new mask whenever I ask or needed, they will say they don't have any, even if they do, there are guards who abuses there authorities everyday. 25.Has the prison placed porter-jones outside the housing units? a. The showers are not being cleaned after each prison an also not being cleaned after the day room prisoners. 26.If yes, which housing units?
Exhibit 4 - Macomb Prison - 37

Case 2:20-cv-11053-MAG-RSW ECF No. 30-5 filed 05/18/20 PageID.2014 Page 38 of 38
a. no 27.Has the prison used portable showers? 28.If yes, in which housing units?
a. no
Exhibit 4 - Macomb Prison - 38

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2015 Page 1 of 14
Lakeland Correctional Facility (LCF) (Exhibit 5) Defendant Bryan Morrison is the Warden of Lakeland Correctional Facility (hereinafter “LCF”) in Coldwater, Michigan. LCF is a 1,458-bed facility which houses Level II MDOC prisoners, including a geriatric unit. (ECF No. 27-13. PageID. 1468). Defendant Morrison states that “[s]ocial distancing measures were and continue to be implemented throughout the facility… requiring that there be a distance of at least six feet between all individuals, including…chow lines… to the fullest extent possible.”1 (Id., PageID. 1472-73 ¶ 9(c)). Further, “[w]here six feet distancing cannot be completely achieved in certain areas (such as in pole barns with cubicle living arrangements), we have modified those living spaces to the extend feasible.”2 (Id. at ¶ 9(d)). What Plaintiffs seek to do through prisoner’s declarations is provide the Court a picture of how these policies play out in practice. One prisoner states, “I am in a housing unit with approximately 160 other inmates…it is impossible to social distance.” (Ex. 5, are the affidavits provided by prisoners confined at LCF, Affidavit of Anthony Legion at ¶ 15). Director Washington’s states in her affidavit “[a]dditional measures such as sleeping head-to-toe and every other bunk where space allows have been implemented at the facilities.” (ECF No. 27-5
1 All of the Defendants have used the term “to the extend possible.” The use of this terms in the affidavit to explain what they should be doing but are not is just that – a smoke screen. 2 Nowhere in Morrison’s affidavit or the Response is it explained how the pole barns have been modified so that social distancing can be achieved.
Exhibit 5 - Lakeland Prison (LCF) - 1

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2016 Page 2 of 14
DECLARTION OF ANTHONY LEGION, 380930: LAKELAND I, Anthony Legion, hereby, declare, depose and attest that:
1. Have you been tested for COVID-19? If yes, what is your medical status? a. I was tested negative for COVID-19;
2. Had you sought health care because you thought you had COVID-19 symptoms? a. Yes
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. I informed one of the nurses that I had chills, dry cough, body aching and sore throat, in response, the nurse asked me did I have a shortness of breath, lack of appetite or a fever, and I said no. The nurse then said if I experience ethose additional issues then kite health care.
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2person cell- describe where you are currently housed.
a. I am in an 8-man cube 5. Can you engage in 6-foot separation when moving about your unit?
a. No 6. Are you given cleaning supplies for your cell?
a. Yes 7. What cleaning supplies are you given?
a. Watered down bleach bottles and disinfectant;
8. Have you observed the unit being cleaned? a. Yes, 3 times per day
9. Are the telephones cleaned after each use? a. No
10. How often are the bathrooms cleaned?
Exhibit 5 - Lakeland Prison (LCF) - 2

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2017 Page 3 of 14
a. Three times per day 11. Is there social distancing of 6-feet during use of bathrooms, showers?
a. No 12. Is there social distancing of 6-feet during exercise or on the yard?
a. No 13. Is that rule enforced by the guards?
a. No 14. Is there social distancing of 6-feet during feeding in the unit?
a. No 15. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. I am in a housing unit with approximately 160 other inmates,we roam through the unit at arms length, it is impossible to social distance. We don't have access to the law library unless we can show a deadline approaching within 30-days, and the counselors expect the court Order to specifically state a pleading is due within 30 days. The counselors have no clue that the courts never indicate the deadlines on their orders, which prevents us from being able to prove that we have a deadline. This creates hostility between staff and inmates.
16. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not?
a. They gave me two "so called" mask that are made out of prison clothes while the staff wears "real" masks.
17. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? a. The officers do not change gloves after they pat us down.
18. Can you get new masks if you ask for a new one?
Exhibit 5 - Lakeland Prison (LCF) - 3

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2018 Page 4 of 14 a. No. They don't give out new mask and we have to wash them in the laundry with all the other inmate's dirty clothes.
I declare that the foregoing statements are true to the best of my recollection. /s/Anthony Legion 28 USC 1746 With sound mind, I also give, attorney Dan Manville limited permission to sign my name to this document only. /s/Anthony Legion.
Exhibit 5 - Lakeland Prison (LCF) - 4

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2019 Page 5 of 14
DECLARATION OF MOSES KIRSCHKE: LAKELAND CF
1. Have you been tested for COVID-19? If yes, what is your medical status? a. Yes. I'm currently "Positive" for COVID-19.
2. Had you sought health care because you thought you had COVID-19 symptoms? a. Yes. Last week when I developed symptoms and lost my sense of taste and smell; developed a severe headache; a cough; and noticed that my lungs hurt when I breathed.
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. When I spoke to the nurse who took my vitals last Thursday or Friday, she told me that Health Care would monitor me and if I developed any worse symptoms for me to contact Health Care and in the meantime, take some Tylenol (which I don't have).
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2person cell- describe where you are currently housed.
a. No instructions" have been given by staff to lay in your bunk at opposite ends of the bunk to create a 6-feet separation. And I’m currently housed in a cubical-type of setting at Lakeland Correctional Facility in the Pool Barns which are 8 man cubes (bunk-beds set up right next to each other) wherein even if you wanted to lay head at the opposite end of the bunk, it is impossible cause there's a shelf there and you would hit your head every time you raised you're head from under it.
5. Can you engage in 6-foot separation when moving about your unit? a. No. Cause the Pool Barns are "overcrowded." You're right next to a person in the bathroom; the Dayroom; the Quiet Room; when using the phones; the JPay Machine; and in the hallway in-between the cubes. And it’s like that in the other Units too (C-Unit & B-Unit) excluding the Dayroom cause those Units can't utilize their Dayroom right now.
Exhibit 5 - Lakeland Prison (LCF) - 5

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2020 Page 6 of 14
6. Are you given cleaning supplies for your cell? a. Yes.
7. What cleaning supplies are you given? a. Disinfectant and bleach.
8. Have you observed the unit being cleaned? a. Yes.
9. If yes to Number 8, how often is the unit cleaned? a. In the mornings and afternoons, Monday-Friday from what I've seen.
10. Are the telephones cleaned after each use? a. No.
11. How often are the bathrooms cleaned? a. Once a day from what I've seen. Monday-Friday. And the showers are not cleaned -- You have to do that yourself.
12. If inmates have been placed in the dayroom, what can you tell me about them? a. There are currently "no inmates" in Day Rooms at this facility. But in the beginning when the outbreak first started (around 3-13-20) the facility was moving prisoners to the Recreation Rooms/Day Rooms for B-Unit and C-Unit. Wherein the facility set up bunks there for those who were thought to be infected. But when prisoners complained, the facility moved prisoners [back] to their Housing Units and changed their stance and stated in a memo I believe that if prisoners were suspected of being infected or if they had been in close contact with someone who had, that they would be left in their Housing Unit and monitored. In which in a JPay message to prisoners by officials of the facility on April 3rd 2020, officials stated that prisoners who were thought to be infected or had been in close contact with someone that had and returned to their Housing Unit, would be "escorted to and from the bathroom and the shower" of their Unit by their Unit officer. And that those areas would be "disinfected afterwards." And also, that those prisoners would receive "a different yard time." But none of that was actually done "in actuality" and
Exhibit 5 - Lakeland Prison (LCF) - 6

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2021 Page 7 of 14
enforced by officers in my Unit (C-4) before I was moved to Unit F-2. And in D-School/Segregation, where I was moved to on April 26th (before being moved to F-2 --cause my test results hadn't come back yet--) inmates were in there too, but I'm not sure if any inmates are there now. And when I was in DSchool, inmates who were 'positive' were in the same Rooms as those who were negative or were waiting on their test results --like me-- in which inmates were coughing and hacking. And I heard the same (that inmates were coughing and hacking in the Dayrooms for C-Unit and B-Unit too) in which inmates who were not exhibiting "any symptoms" or showing "any signs" or "indications" of being sick and were being forced to be housed there complained, which brought about the JPay message being issued by officials of the facility. 13. Do the inmates in the dayroom use the bathrooms for the unit? a. Yes. The inmates who were in C-Unit Day Room used C-5 Unit's bathroom and the inmates who were in B-Unit Day Room used B-5 Unit's bathroom. Which were other Units with inmates in them 'not' exhibiting symptoms. And all the inmates who were in D-School used D-School's bathroom. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.? a. No. There were "no separation panels" set up in either C-5 Unit's bathroom or B-5 Unit's bathroom. Nor was there any set up in D-School's bathroom either. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit? a. No. There is "no PUI Unit." But D-School/Segregation I guess would be its equivalent from the way is been operating. 16. Is there social distancing of 6-feet during use of bathrooms, showers? a. No. The toilet stalls are right next to each other as are the urinals and the showers as well. 17. Is there social distancing of 6-feet during exercise or on the yard?
Exhibit 5 - Lakeland Prison (LCF) - 7

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2022 Page 8 of 14
a. No. You have to take it upon yourself to do it. Otherwise people are clustered together
18. Is that rule enforced by the guards? a. No. "Social distancing" is not enforced by officers/guards.
19. Is there social distancing of 6-feet during feeding in the unit? a. No. People are lined up and clustered together to get their Styrofoam trays in the Unit. And because there's "no seating" cause of the limited number of tables in the Day Room and the Quiet Room (6 altogether for a 160 people) a person has to sit on their bunk which is right next to other bunks and bunks above you and on the side of you.
20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a. See other message sent. [Bottom of document] 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. : (3) Three. Yes by MSI. No. Because they're made out of "thin cloth" material -- the
same exact material that our State Blues are made out of.
22. When you are patted down, are guards using gloves?
a. Yes.
23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after?
a. No.The guards are not changing their gloves. And two guards told me that they didn't have to change their gloves. And a guard who shook me and my Bunkie down said the same thing.
24. Can you get new masks if you ask for a new one?
Exhibit 5 - Lakeland Prison (LCF) - 8

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2023 Page 9 of 14
a. Yes. But I'm still currently waiting on mine
25. Has the prison placed porter-jones outside the housing units?
a. See another message sent
26. If yes, which housing units?
a. No.
27. Has the prison used portable showers?
a. No.
28. If yes, in which housing units?
a. N/A. 29. I have been knowingly exposed to COVID-19 by way of moving me to a Housing
Unit designated as a "Positive Housing Unit" for prisoners who had tested positive [before] my test results even came back and then being moved to Segregation where I was housed with more prisoners who were positive and also were showing symptoms, wherein shortly after that I developed symptoms and now am sick and am having somewhat trouble breathing now. In which I filed a Step I grievance wherein it just came back rejected as a "Non Grievable Issue" and/or that the grievance was "filed on behalf of another prisoner..." which was done to avoid addressing the issue and having to disclose the officials "who" compiled the lists for the Housing Units designating prisoners as "positive and negative." 30. When the outbreak first occurred, staff and prisoners at Lakeland Correctional Facility were both given "cloth masks" for protection. But when the infection rate began to surge the week of April 19th, and substantial numbers started coming back showing a multitude of prisoners 'positive,' staff were given high quality masks such as "N-95's and KN-95's" upon entering the facility. While prisoners still remained
Exhibit 5 - Lakeland Prison (LCF) - 9

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2024 Page 10 of 14
with the same lowly inferior cloth-type of mask thereby placing staff lives' above of prisoners. 31. The MDOC and/or Lakeland Correctional Facility is not testing staff to determine if any staff members are 'positive,' allowing for the cycle and/or the chain of the virus to continue to spread. Thereby putting prisoners’ lives at risk, wherein it was indicated that if the MDOC/Lakeland Correctional Facility did test staff, that "staff wouldn't be able to work... and that [they] would be short of staff if some staff came back positive." 32. On or about April 6th, 2020, the facility instructed maintenance go to each Unit and disable the fans in each Unit. When 99% of the time the windows in each Unit are closed by prisoners who don't want air blowing in on them. In which staff wouldn't address the issue regarding the windows, wherein the CDC recommended "fresh air" and "ventilation" to combat the spread of the virus. In which I personally almost got into a couple of fights with other prisoners about opening up windows in my Unit and/or in the community bathroom before I was recently moved from my Unit to another Unit (F-2). 33. When prisoners who were experiencing symptoms were not given "any medical treatment" and were turned away by Health Care here at Lakeland Correctional Facility, they were sent back to their Units wherein the prisoners around them inevitably became infected and sick. In which they were left in their Unit "a day or two" sometimes or more before Health Care would take any real action. In which I personally know of (2) two prisoners who were in my Unit and were turned away and not given "any medical treatment" by Health Care thereby aiding in the continuation of the spread of the virus.
I certify that the information is true and correct under the penalty of perjury and I give Attorney Dan Manville permission to sign this document on my behalf.
Exhibit 5 - Lakeland Prison (LCF) - 10

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2025 Page 11 of 14
DECLARATION OF LAMONT HEARD
I, Lamont Heard, have personal knowledge in this matter and state: 1. I am currently housed at Lakeland Correctional Facility. 2. The prison is allowing all the people that tested positive for COVID-19 to go to the outside yard together. There is no social distancing policies being enforced. 3. All the people that tested negative for COVID-19 go to the outside yard together. There is no social distancing policies being enforced. 4. We use the same exercise equipment, tables and telephones on the outside yards. 5 . There is no cleaning supplies for me to use to clean the outside equipment and phone before and after I or others use it. 6. Prison staff have been ordered to stop giving me and other people plastic gloves to use for cleaning. They claim it is a state wide shortage and only staff can use them. 7. We are given bleach, citrus and disinfect to use for cleaning. However it frequently runs out and we have to wait hours for a refill. 8. There is no increase in cleaning cubes. There is not enough mop buckets, mop heads and mop sticks. We are not provided cloths to clean our areas. 9. Common areas are being cleaned once in the morning, once in the afternoon, once at 10pm and once at midnight. 10. Officers in the housing unit call breakfast and lunch. We are told to stand in a single file line bunched together to get our trays. We are told we do not have to stand six feet apart.
The above facts are true under penalty of perjury and I give Dan Manville permission to sign on my behalf. Lamont Heard
Exhibit 5 - Lakeland Prison (LCF) - 11

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2026 Page 12 of 14
DECLARATION OF DEJUAN TAYLOR, 342805: Lakeland Correctional 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes I was tested for the virus and my results were negative. 2. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2person cell- describe where you are currently housed.
a. I am house in an 8 man cube setting. And no we were not informed to lay opposite to each other.
3. Can you engage in 6-foot separation when moving about your unit? a. and No we have no way almost at no time a day to have 6 feet space. sometimes we are still forced to be in large lines for meals of maybe 50 inmates or so. Just yesterday we were instructed that we had to give blood! Not a request but an instruction either that or be forced to house with the infected inmates! That was insane and on top of that they had about 40 or so inmates stuffed in a maybe 20 by 20 cell for that! so against my wishes I gave blood in fear of being forced to house in the unit with the infected!
4. If yes to Number 8, how often is the unit cleaned? 5. Are the telephones cleaned after each use?
a. And no one cleans the phones or jpay machines 6. How often are the bathrooms cleaned?
a. And the bathrooms are cleaned twice daily maybe 3 times that I can see. b. And no there is no cleaning supplies left in bathrooms for easy use! we have
to constantly try and contact an officer just to get a spray bottle of disinfectant or some watered down bleach.
yes I give Dan Manville permission to sign and yes I swear everything said is true. signed DeJuan Taylor
Exhibit 5 - Lakeland Prison (LCF) - 12

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2027 Page 13 of 14
DECLARATION OF DEJUAN TAYLOR, 342805: Lakeland Correctional 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. Yes I was tested for the virus and my results were negative. 2. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2person cell- describe where you are currently housed.
a. I am house in an 8 man cube setting. And no we were not informed to lay opposite to each other.
3. Can you engage in 6-foot separation when moving about your unit? a. and No we have no way almost at no time a day to have 6 feet space. sometimes we are still forced to be in large lines for meals of maybe 50 inmates or so. Just yesterday we were instructed that we had to give blood! Not a request but an instruction either that or be forced to house with the infected inmates! That was insane and on top of that they had about 40 or so inmates stuffed in a maybe 20 by 20 cell for that! so against my wishes I gave blood in fear of being forced to house in the unit with the infected!
4. If yes to Number 8, how often is the unit cleaned? 5. Are the telephones cleaned after each use?
a. And no one cleans the phones or jpay machines 6. How often are the bathrooms cleaned?
a. And the bathrooms are cleaned twice daily maybe 3 times that I can see. b. And no there is no cleaning supplies left in bathrooms for easy use! we have
to constantly try and contact an officer just to get a spray bottle of disinfectant or some watered down bleach.
yes I give Dan Manville permission to sign and yes I swear everything said is true. signed DeJuan Taylor
Exhibit 5 - Lakeland Prison (LCF) - 13

Case 2:20-cv-11053-MAG-RSW ECF No. 30-6 filed 05/18/20 PageID.2028 Page 14 of 14
DECLARATION OF MITCHELL HODGES, 495599: Lakeland 1. Have you been tested for COVID-19? If yes, what is your medical status?
a. I was tested a month after being sick and was negative 2. Had you sought health care because you thought you had COVID-19 symptoms?
a. When I was sick, it was five days before I saw healthcare and all they did was ask me some questions and take my temperature.
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. They separated positive and negative inmates, but some CO’s still let negative inmates interact with positive inmates.
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If you are not in a 2person cell- describe where you are currently housed.
a. Im in an 8-man cell. 5. Can you engage in 6-foot separation when moving about your unit?
a. Not at all. 6. Are you given cleaning supplies for your cell?
a. Yes, watered down bleach. 7. Is there social distancing of 6-feet during feeding in the unit?
a. We eat in our cubes but have to line up to get trays. There is no distancing during the line up.
Exhibit 5 - Lakeland Prison (LCF) - 14

Exhibit 6 - Mask - two pics of

Case 2:20-cv-11053-MAG-RSW ECF No. 30-7 filed 05/18/20 PageID.2030 Page 2 of 2
Exhibit 6 - Mask - two pics of

Case 2:20-cv-11053-MAG-RSW ECF No. 30-8 filed 05/18/20 PageID.2031 Page 1 of 4
DECLARATION OF JESSE MACK: PARNALL
1. Have you been tested for COVID-19? If yes, what is your medical status? a. Yes, I am covid recovered
2. Had you sought health care because you thought you had COVID-19 symptoms? a. Yes, On 3 -23 -20
3. If yes to question 2. Explain what steps health care took to treat you, if any? a. Medical quarantine and generic Tylenol ..
4. If you are in a 2-person cell, were you instructed that each of you should have your head on the oppose end of the bed to created 6-feel separation? If are not in a 2-man cell- describe where you are currently housed. a. No
5. Can you engage in 6-foot separation when moving about your unit? a. I am currently in a single cell at SMT (Pamall)
6. Are you given cleaning supplies for your cell? a. No
7. What cleaning supplies are you given? a. Only diluted sanitizer
8. Have you observed the unit being cleaned? a. Rarely and not thoroughly
9. If yes to Number 8, how often is the unit cleaned? a. unknown
IO.Are the telephones, cleaned after each use? a. no
11.How often are the bathrooms cleaned? . a.
12.If inmates have been placed in the dayroom, what can you tell me about them? a. no
13.Do the inmates in the dayroom use the bathrooms for the unit? a. no
14.Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.? a. no
15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit? a. 15. No, Covid +'s are housed in a GP unit until transferred to Cotton or Carson for quarantine
Exhibit 7- Affidavit of Jesse Mark (SMT)

Case 2:20-cv-11053-MAG-RSW ECF No. 30-8 filed 05/18/20 PageID.2032 Page 2 of 4
16.Is there social distancing of 6-feet during use of bathrooms, showers? a. no
17.Is there social distancing of 6-feet during exercise or on the yard? a. no
18.ls that rule enforced by the guards? a. no
19.Is there social distancing of 6-feet during feeding in the unit? a. yes, two per table in chow hall
20.Tell me about any other issues that you have as to how you are confined during the eOVID-19 issue? a. . No access to grievance process while in covid quarantine or library material. I have grievances pending
21.How many masks have you gotten from MDOe? Are they prison made? Are they helpful to prevent infection? If no, why not? a. 3 , Yes, Unsure on effectiveness
22.When you are patted down, are guards using gloves? a. yes
23.If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When? a. no
24.Can you get new masks if you ask for new ones? a. unsure
25.Tell me about any other issues that you have as to how you are confined during the eOVID-19 issue? a. I was not sent back to my sending facility after testing negative for eovid. I was dumped at Pamall with no explanation or reasoning. Pamall is a eovid hotspot.
26.Has the prison placed porter-jones outside the housing units? a. no
27. If yes, which housing units? a. no
28.Has the prison used portable showers? a. no
29.If yes, in which housing units? a. No
30. I was the first eovid positive prisoner at wee on 3 27 20 and one the first to go through the quarantine process at cotton and Adrian.
31. I have not been evaluated or examined by a doctor since my initial covid test on 3 26 20.
Exhibit 7- Affidavit of Jesse Mark (SMT)

Case 2:20-cv-11053-MAG-RSW ECF No. 30-8 filed 05/18/20 PageID.2033 Page 3 of 4

I certify under the penalty of perjury that all statements made by me, JESSE MACK, in the forgoing email are true to the best of my understanding and knowledge.

Jesse Mack MDOC ID 823808 DOB4-27 - 1988

I grant permission to attorney Daniel Manville to sign this documentation on my

/gt/I! be1Nlf. _ � � .._;:,U
Jes�

�

MDOC ID 823808

� � l:

DOB4-27-1988

Exhibit 7- Affidavit of Jesse Mark (SMT)

Case 2:20-cv-11053-MAG-RSW ECF No. 30-8 filed 05/18/20 PageID.2034 Page 4 of 4
Exhibit 7- Affidavit of Jesse Mark (SMT)

Case 2:20-cv-11053-MAG-RSW ECF No. 30-9 filed 05/18/20 PageID.2035 Page 1 of 4
DECLARATION OF DESMOND DEROO: COTTON
1.Have you been tested for COVID-19? Ifyes, what is your medical status? a. Yes, positive.
2.Had you sought health care because you thought you had COVID-19 symptoms? a.Yes.
3.If yes to question 2.Explain what steps health care took to treat you, if any? a..Nothing until last week when they tested us.
4.If you are tn a 2-person cell, were you instructed that each of you should have your head on the opposing end of the bed to created 6-feel separation?
a.No.I'm in an 8-man cube. 5.Can you engage in 6-foot separation when moving about your unit?
a.No and I wrote a grievance stating that we were not able to social distance and we're force to close together.they sent my grievance back and said I couldn't put any grievances in about covidl9 issues. 6.Are you given cleaning supplies for your cell? a. yes 7.What cleaning supplies are you given? a. bleach. 8.Have you observed the unit being cleaned? a. Sometimes. 9.If yes to Number 8, how often is the unit cleaned? a.3 times a day 10.Are the telephones, cleaned after each use? a.No. 11.How often are the bathrooms cleaned? a.3 times a day. 12.Ifinmates have been placed in the dayroom, what can you tell me about them?
Exhibit 8 - Declzration of Desmond DeRoo

Case 2:20-cv-11053-MAG-RSW ECF No. 30-9 filed 05/18/20 PageID.2036 Page 2 of 4
a. I don't know. 13. Do the inmates in the dayroom use the bathrooms for the unit?
a. I don't know. 14. Has there been any separation panels, etc., set up in the bathrooms so that the dayroom inmates will not have contact with the unit inmates.?
a. yes, I'm in it. some people tested positive and were sent to this unit around positives. they then tested negative later but were told they still had to be in here around positive covid people because they believe they had it and couldn't get this again. even though in all actuality no one knows if you can or can't get it again. 15. Is there a unit known as PUI? Do you know what prisoners are housed in that unit? a.No. 16. Is there social distancing of 6-feet during use of bathrooms, showers? a.No. 17. Is there social distancing of 6-feet during exercise or on the yard? a.No. 18. Is that rule enforced by the guards? a.No. 19. Is there social distancing of 6-feet during feeding in the unit? a.No. 20. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue? a. I have asked for gloves and other protective gear and was told no. I also asked to be moved and separated because I was too close to others and told no 21. How many masks have you gotten from MDOC? Are they prison made? Are they helpful to prevent infection? If no, why not? a. I have gotten 3. they are not helpful because I still contracted the virus 22. When you are patted down, are guards using gloves?
Exhibit 8 - Declzration of Desmond DeRoo

Case 2:20-cv-11053-MAG-RSW ECF No. 30-9 filed 05/18/20 PageID.2037 Page 3 of 4
a.No. 23. If the guards are using gloves when patting you down, do you notice if the guards are changing their gloves after? When?
a.No. 24. Can you get new masks if you ask for new ones?
a.Said they were out of them. 25. Tell me about any other issues that you have as to how you are confined during the COVID-19 issue?
a..I am forced inside with everyone else who is sick, and I had a hard time breathing today and when the nurse came in today all they did was check me vitals and said that's all they can do unless I look like I'm dead 26. Has the prison placed porter-jones outside the housing units? a.I don't know. 27. If yes, which housing units? a.I don't know. 28. Has the prison used portable showers? a. Yes. 29. If yes, in which housing units? a.People who were moved to the gym.
My name is Desmond Deroo and this is true under the penalty of perjury.
Exhibit 8 - Declzration of Desmond DeRoo

Case 2:20-cv-11053-MAG-RSW ECF No. 30-9 filed 05/18/20 PageID.2038 Page 4 of 4
Exhibit 8 - Declzration of Desmond DeRoo

Case 2:20-cv-11053-MAG-RSW ECF No. 30-10 filed 05/18/20 PageID.2039 Page 1 of 1

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ELLIOTT ABRAMS 5/13/2020 8:43:14 PM Daniel Manville

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Subject: ReceipVRejection/Denial for Step 1 Grievance
Your Step 1 grievance regarding Other issues- was received in this office on 04/13/2020 and was rejected due to the following reason: Non-grievable issue- Grievances may be submitted regarding alleged violations of policy or procedure or unsatisfactory conditions of confinement which directly affect the grievant, including alleged violations of PD 03.02.130, "Prisoner/Parolee Grievances and related procedures.
Any future references to this grievance should utilize this identifier: MRF/2020/04/0561/272
Subject: ReceipVRejection/Denial Step 1 Grievance
Your step 1 grievance regarding Duplicate Issue was received in this office on 04/13/2020 and was rejected due to the following reason: Your grievance is being returned to you without processing for the issue is a duplicate of the grievance listed at the end of this paragraph that has already been processed. Per PD 03.02.130 duplicate issue grievances will not be processed. Grievance is rejected. MRF/20/04/561/27.
Any future references to this grievance should utilize this identifier: MRF/2020/04/562/28A

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Exhibit 9, Grievance of Abrams

Case 2:20-cv-11053-MAG-RSW ECF No. 30-11 filed 05/18/20 PageID.2040 Page 1 of 1

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ROBERT REEVES 5/13/2020 2:18:07 PM D aniel Manville

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COPY OF GRIEVANCE & DENIAL
#SMT2020-04-0491-27 Z MY ATTEMPTS TO RESOLVE PRIOR TO WRITING: I was quarantine from. 3/27 till 4/28/20 and denied the filing of any grievances, due to fear of contaminating the mailroom./ Grievance D ept.
STATED PROBLEM : This grievance is against he warden Braman. T he violation is failure to protect. On he date stated I was infected which covid 19 and prior to that staff started putting positive tested prisoners in the uniVblock which I resided. I could see each prisoner from my open cell. T hey coughed all day and all night. W hich is one of the symptoms and this is a air bourn virus/disease. D ue to the out breaks my entire unit was quarantined for days WHICH TRAPPED ME IN AN OPEN SETTNG / BREATHING THE SAME INFECTED AIR OF COVID 19. Nol once was the negative prisoners issued any masks or personally protection while these prisoners were housed in his unit. The only people giving mask were ones on quarantine. I SUFFERED FROM A HISTORY OF UNDERLINED MEDICAL ISSUES WHICH MADE ME A GREATER RISK OF FATALITY. BECAUSE OF BEING TRAPPED IN A BLOCK 1TH HE LOSITIVE COVID 19 PRISONERS .... I STARTED TO GET A FEVER, WHICH LEAD TO ME BEING TESTED AND PERSONALLY QUARANTINED . I TESTED POSITIVE AND WENT THROUGH THE PROCESS, that was not all thought out. I WAS SENT TO JCF AND ARF. WHICH I WAS ISOLATED ONLY 1 DAY, THEN FORCE TO BUNK WITH ANOHE POSITIVE TESTED PRISONER ON 3 OCCASIONS . I COUGHED UP BLOOD , HAD A FEVER OVER 103 FOR 5 DAYS AND COUGHED FOR MORE THAN 3 WEEKS ETC. I COMPLAINED QND WAS NOT TREATED, ONLY TOLD TO FIGT IT. Per policy it was the staff responsibility to protect. NOTE: I AM ENGAGING IN PROTECTIVE CNDUCT AND PER DEP. DIRECTOR IT IS PROHIBITED TO RETAILATE AGAINST THIS PRISONER. EG. BY WAY OF TRANSFER ETC . THIS IS A FIRT AMENDMENT RIGHT WHICH GUARANTEES PROTECTION
DENIAL RESPONES: Prisoner notice of rejections draft (CSJ-247RJ)
Reason for rejection (PD 93.02.130.J) no. 8. T he prisoner is grieving content of he policy or procedure EXCEPT as ii was specially applied to the grievant. I f a prisoner has a concern with the content o policy and procedure, s/he may direct comments to the warden forum as provided in PD 04.01.150. ".prisoner housing unit representative/warden forum."
I APPEALED TO STEP 2: This appeal clearly satisfied the EXCEPTION as I was infected (personally). To not give an answer or some type of understanding to this is evasive and denied this prisoner a right to complain, exercise my first amendment right and seek resolve. therefore this issue is not resolved...

That is my step 1 and 2. I am awaiting the response to my step 2 and will be filing my step 3 thereafter. AGAIN I WAS DENIED TO FILE ANYHING AND THAT STAFF NCLUDE SENDING ANY MAIL OUT. BECAUSE I TESTED POSITIVE .

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Exhibit 10 - Grievance of Reeves

Case 2:20-cv-11053-MAG-RSW ECF No. 30-12 filed 05/18/20 PageID.2041 Page 1 of 3

MICHIGAN DEPARTMENT OF CORRECTIONS
POLICY DIRECTIVE
SUBJECT
PRISONER HOUSING UNIT REPRESENTATIVES/WARDEN'S FORUM

EFFECTIVE DATE
10/01/2019

NUMBER
04.01.150

SUPERSEDES
04.01.150 (11/01/2010)

AUTHORITY
MCL 791.203

PAGE

1

OF

3

POLICY STATEMENT:

Michigan Department of Corrections (MDOC) prisoners shall be provided with a systematic means of communication and problem-solving with staff.

POLICY:

GENERAL INFORMATION

A.

This policy applies only to general population housing units for security Level I through V prisoners. In

other units, prisoners should contact their Resident Unit Manager (RUM) with concerns regarding

conditions of confinement that affect groups of prisoners or the entire unit. If the RUM cannot resolve

the concerns, they shall submit them to the appropriate Assistant Deputy Warden (ADW). If the

concern cannot be resolved by the ADW, they shall submit the concerns to the Deputy Warden. If the

concern cannot be resolved by the Deputy Warden, they shall refer the matter to the Warden for

resolution.

B.

The role of prisoner housing unit representatives is to assist housing unit staff in identifying and

resolving problems that exist in the unit. Housing unit representatives serve solely in an advisory

capacity to the administration and shall in no way jeopardize the custody, security, or good order of the

facility. A housing unit representative who abuses their position by engaging in conduct that

jeopardizes the custody, security, or good order of the facility may be removed and/or permanently

prohibited from serving as a housing unit representative as set forth in Paragraph I.

ELECTION OF HOUSING UNIT REPRESENTATIVES

C.

Only prisoners who volunteer to be representatives for their housing unit shall be candidates.

Candidates must be free of Class I and Class II misconducts for at least the six-month period

immediately preceding the election. If there are no candidates who satisfy this requirement, the

Warden may waive the requirement. Prisoners designated as Security Threat Group members

pursuant to PD 04.04.113 "Security Threat Groups" are not eligible to be candidates.

D.

Elections for housing unit representatives shall be conducted by secret ballot by the RUM or designee.

Notice of the election shall be provided to the unit's prisoner population at least one week before the

election.

E.

One housing unit representative of a minority race and one housing unit representative of a

non-minority race shall be elected from each unit. The non-minority and minority candidate receiving

the second highest number of votes shall serve as alternate housing unit representatives. An alternate

shall serve in place of the housing unit representative of the same race whenever they are unable to

perform their duties.

F.

Housing unit representatives shall serve six-month terms; however, prisoners shall not serve more than

two consecutive terms, except as identified in Paragraph G. After completing two consecutive terms or

when not elected to a second term, a prisoner must wait at least six months after the end of the term

before again being a candidate. A prisoner removed as a housing unit representative pursuant to

Paragraph H or I must wait at least 12 months after the date of removal before again being a candidate.

G.

If a vacancy occurs before the expiration of a prisoner's term as housing unit representative, the

vacancy shall be filled by the alternate of the same race as the representative who created the vacancy.

Exhibit 18 - PD 04.0o1.150 - Warde Forum

Case 2:20-cv-11053-MAG-RSW ECF No. 30-12 filed 05/18/20

DOCUMENT TYPE
POLICY DIRECTIVE

EFFECTIVE DATE
10/01/2019

NUMBER
04.01.150

PageID.2042 Page 2 of 3
PAGE 2 OF 3

If the vacancy cannot be filled by the alternate (e.g., alternate transferred), the vacancy shall be filled by the prisoner of the same race who received the third highest number of votes in the most recent election. If the vacancy cannot be filled in this manner, the RUM or designee shall conduct a special election by secret ballot. If the housing unit representative who fills the vacancy will be serving less than 90 days of the unexpired term, they shall be eligible, if elected, to serve two additional consecutive terms.

REMOVAL OF HOUSING UNIT REPRESENTATIVES

H.

A housing unit representative may be removed by a two-thirds vote of the prisoners assigned to the

housing unit. To remove a housing unit representative, a recall election shall be conducted by secret

ballot by the RUM or designee. Notice of the recall election shall be provided to the prisoner

population at least one week before the election.

I.

A housing unit representative who is found guilty of a Class I and/or Class II misconduct or designated

as a Security Threat Group member shall be removed immediately as a housing unit representative by

the Warden or designee. The Warden also may remove a prisoner who engages in conduct that

jeopardizes the custody, security, or good order of the facility. A prisoner shall be permanently

prohibited from being a housing unit representative only with prior written approval of the CFA Deputy

Director or designee. The Warden shall ensure that a prisoner removed or permanently prohibited

from being a housing unit representative pursuant to this Paragraph is notified in writing of that decision,

including the reason for the decision.

RESPONSIBILITIES OF HOUSING UNIT REPRESENTATIVES

J.

Housing unit representatives shall meet at least monthly with the RUM or designee and other staff

designated by the RUM or designee to discuss matters of concern to the unit population. The RUM or

designee shall notify unit staff and representatives of meeting dates at least one week before meetings.

Housing unit representatives shall submit any agenda items in writing to the RUM or designee at least

three business days before the scheduled meeting. If agenda items are not submitted, a meeting is not

required. Following the meeting, the RUM or designee shall provide the housing unit representatives

with written responses to each agenda item, copies of which shall be provided to the Warden and

posted in the housing unit.

K.

Housing unit representatives are encouraged to solicit input from those they represent and to give

consideration to the views expressed. Housing unit representatives shall not use their position to

present individual complaints to the administration.

WARDEN'S FORUM

L.

The purpose of the Warden's Forum is to assist the Warden in identifying and resolving problems that

exist in the general population of the facility. The Warden's Forum shall be comprised of the facility’s

housing unit representatives. A Warden of a multi-level facility may have separate Warden’s Forums

for the different custody levels of the facility. The Warden shall determine whether the facility’s housing

unit representatives shall alternate attendance at Forum meetings or whether all representatives shall

attend each meeting.

M. Each Warden's Forum may establish offices within the Forum, such as chairperson and secretary. These offices shall be filled by either an elective process or on a rotating basis, as determined by the representatives at the first meeting following housing unit representative elections.

N.

The Warden's Forum shall meet with the Warden at least monthly to discuss matters of concern to the

general prisoner population. The Warden shall notify Warden's Forum members and appropriate staff

of the meeting date at least one week before the scheduled meeting. The Warden's Forum shall

submit any agenda items in writing to the Warden at least three business days before the scheduled

meeting. If agenda items are not submitted, a meeting is not required. Minutes of the meeting shall

be maintained by staff designated by the Warden.

O.

Following each Warden's Forum meeting, the Warden shall provide the Warden's Forum with written

responses to each agenda item, copies of which shall be posted in each housing unit and forwarded to

Exhibit 18 - PD 04.0o1.150 - Warde Forum

Case 2:20-cv-11053-MAG-RSW ECF No. 30-12 filed 05/18/20

DOCUMENT TYPE
POLICY DIRECTIVE

EFFECTIVE DATE
10/01/2019

NUMBER
04.01.150

PageID.2043 Page 3 of 3
PAGE 3 OF 3

the appropriate Assistant Deputy Director (ADD).

P.

The Warden's Forum's duties shall include the selection of Forum members to serve as members of the

Prisoner Benefit Fund Committee, to serve on the Prisoner Store Committee, to participate in the movie

selection process, and to establish radio and television schedules. With approval of the Warden,

members also may be selected to conduct food quality inspections in the dining room and to serve on

ad hoc committees established for special purposes by the Warden.

PROCEDURES

Q.

If necessary, to implement requirements set forth in this policy directive, Wardens shall ensure that

operating procedures are developed or updated.

AUDIT ELEMENTS

R.

A Primary Audit Elements List has been developed and is available on the Department's Document

Access System to assist Wardens with self-audit of this policy pursuant to PD 01.05.100 "Self-Audits

and Performance Audits.”

APPROVED: HEW 08/06/2019

Exhibit 18 - PD 04.0o1.150 - Warde Forum

Case 2:20-cv-11053-MAG-RSW ECF No. 30-13 filed 05/18/20 PageID.2044 Page 1 of 8

POLICY STATEMENT:

Prisoners and parolees shall be provided with an effective method of seeking redress for alleged violations of policy and procedure or unsatisfactory conditions of confinement.

RELATED POLICIES:

01.01.140 Internal Affairs 03.02.131 Prisoner State Administrative Board Property Claims 03.03.140 Prison Rape Elimination Act (PREA) and Prohibited Sexual Conduct Involving Prisoners

DEPARTMENT-WIDE OPERATING PROCEDURE:

03.02.130 Prisoner/Parole Grievances

POLICY:

DEFINITIONS

A.

Business day: Monday through Friday, 8:00 to 4:30, excluding State observed holidays.

B.

Respondent: The staff person who investigates and responds to a grievance.

GENERAL INFORMATION

C.

Complaints filed by prisoners regarding grievable issues as defined in this policy serve to exhaust a

prisoner's administrative remedies only when filed as a grievance through all three steps of the

grievance process in compliance with this policy.

D.

Grievances filed regarding sexual abuse, including those filed by a third party, shall not be processed

as grievances under this policy but shall be reported in accordance with PD 03.03.140 “Prison Rape

Elimination Act (PREA) and Prohibited Sexual Conduct Involving Prisoners.” Any grievance submitted

under this policy that contains an allegation of sexual abuse shall be copied by the Grievance

Coordinator and forwarded to the PREA Coordinator. The original grievance shall be returned to the

prisoner. If the grievance also includes a non-PREA grievable issue, it will need to be refiled by the

prisoner.

E.

The grievance process shall be equally available to all prisoners housed in a correctional facility,

including prisoners incarcerated under the Holmes Youthful Trainee Act, and all parolees unless placed

on modified access pursuant to this policy. Probationers are not covered by this policy but may resolve

specific problems and complaints with supervising staff and, if not resolved, with the sentencing court. If

the probationer is housed in the Special Alternative Incarceration Program, s/he shall follow the

grievance process set forth in PD 05.01.142 "Special Alternative Incarceration Program.” Prisoners

housed in non-MDOC facilities shall follow the established grievance process for the facility in which

they are confined.

F.

Grievances may be submitted regarding alleged violations of policy or procedure or unsatisfactory

conditions of confinement that personally affect the grievant, including alleged violations of this policy

and related procedures.

Ex. 12 - PD 03_02_130 - Grievace Policy

Case 2:20-cv-11053-MAG-RSW ECF No. 30-13 filed 05/18/20 PageID.2045 Page 2 of 8

G

If a prisoner chooses to file a claim for reimbursement of personal property allegedly lost or damaged

while in the Department’s sole possession, s/he shall request a Prisoner Claim Against the State of

Michigan (DTMB-1104-P) form from the Grievance Coordinator in accordance with PD 03.02.131

“Prisoner State Administrative Board Property Claims.”

H.

Grievances shall not be rejected or denied solely because the prisoner has not included with his/her

grievance exhibits or other documents related to the grievance; funds shall not be loaned to a prisoner

to pay for photocopying of such documents. If the grievance references documents that are not in the

prisoner's files or otherwise available to the Grievance Coordinator or respondent except through the

prisoner, the documents shall be reviewed with the prisoner as part of the grievance investigation

process if necessary to respond on the merits. If the Grievance Coordinator or respondent determines

that a copy of a document is needed for the grievance investigation, the copy shall be made at

Department expense.

I.

A grievant whose grievance is rejected may appeal the rejection to the next step as set forth in this

policy. A new grievance shall not be filed regarding the rejection.

REASONS FOR REJECTION

J.

Prisoners and parolees are required to file grievances in a responsible manner. A grievance shall be

rejected by the Grievance Coordinator if:

1.

It is vague, illegible, or contains multiple unrelated issues.

2.

It raises issues that are duplicative of those raised in another grievance filed by the grievant.

3.

The grievant is on modified access pursuant to Paragraphs JJ through NN and has filed a

grievance in violation of those paragraphs.

4.

The grievant did not attempt to resolve the issue with the staff member involved prior to filing

the grievance unless prevented by circumstances beyond his/her control or if the issue falls

within the jurisdiction of Internal Affairs in the Office of Executive Affairs.

5.

The grievance is filed in an untimely manner. The grievance shall not be rejected if there is a

valid reason for the delay; e.g., transfer.

6.

It contains profanity, threats of physical harm, or language that demeans the character, race,

ethnicity, physical appearance, gender, religion, or national origin of any person, unless it is part

of the description of the grieved behavior and is essential to that description.

7.

Two or more prisoners and/or parolees have jointly filed a single grievance regarding an issue

of mutual impact or submit identical individual grievances regarding a given issue as an

organized protest.

8.

The prisoner is grieving content of the policy or procedure except as it was specifically applied

to the grievant. If a prisoner has a concern with the content of a policy or procedure, s/he may

direct comments to the Warden's Forum as provided in PD 04.01.105 "Prisoner Housing Unit

Representatives/Warden's Forum.”

9.

The prisoner is grieving a decision made in a Class I misconduct hearing or other hearings

conducted by Administrative Law Judges (ALJ’s) employed by the Michigan Department of

Licensing and Regulatory Affairs (LARA), including property disposition and issues directly

related to the hearing process (e.g., sufficiency of witness statements; timeliness of misconduct

review; timeliness of hearing). Prisoners are provided an appeal process for Class I decisions

pursuant to PD 03.03.105 “Prisoner Discipline.”

Ex. 12 - PD 03_02_130 - Grievace Policy

Case 2:20-cv-11053-MAG-RSW ECF No. 30-13 filed 05/18/20 PageID.2046 Page 3 of 8

10. The prisoner is grieving a decision made by the Parole Board to grant, deny, rescind, amend or revoke parole, or not to proceed with a lifer interview or a public hearing. This includes grieving the tools (scoring weights and ranges) utilized in developing guideline scores. However, a prisoner may challenge the calculation of his/her parole guideline score, including the accuracy of the information used in calculating the score by filing a grievance.

11. The prisoner is grieving a decision made in a Class II or Class III misconduct hearing, including property disposition, and issues directly related to the hearing process (e.g., sufficiency of witness statements, timeliness of misconduct review, timeliness of hearing). Prisoners are provided an appeal process for Class II and Class III decisions pursuant to PD 03.03.105 “Prisoner Discipline.”

12. The prisoner is grieving issues not within the authority of the Department to resolve (e.g., disputes between a prisoner and an MDOC vendor or an outside agency (courts), etc.). The grievant shall be told who to contact in order to attempt to resolve the issue, if known.

13. The prisoner is grieving the result of a Risk Assessment Instrument (e.g., COMPAS) or Transition Accountability Plan (TAP). However, a prisoner may challenge the accuracy of the information used in assessments, including in the TAP.

14. The prisoner is seeking reimbursement for property loss or damage that must be submitted pursuant to PD 03.02.131 “Prisoner State Administrative Board Property Claims.”

K.

Grievances shall not be placed in Counselor files, Record Office files, or Central Office files, or placed in

the prisoner health record. Grievances also shall not be referenced on any document placed in these

files or the prisoner health record, except as necessary pursuant to Paragraph M. Grievance

documents and files shall be accessed only to investigate or respond to a pending grievance, to

respond to a request under the Freedom of Information Act, to respond to a request from the

Department of Attorney General or appropriate Central Office staff, for audits, for statistical reporting, or

to the Warden or his/her supervisor.

L.

A grievant shall not be penalized in any way for filing a grievance except as provided in this policy for

misusing the grievance process. Staff shall avoid any action that gives the appearance of reprisal for

using the grievance process.

M. With the Warden’s approval, a prisoner may be issued a Class II misconduct report (e.g., Interference With Administration of Rules) if the grievant intentionally files a grievance that is investigated and determined to be unfounded that, if proven true, may have caused an employee or a prisoner to be disciplined or an employee to receive corrective action. The Class II misconduct may be elevated to a Class I misconduct only if approved by the Warden. The misconduct report shall be processed as set forth in PD 03.03.105 "Prisoner Discipline.” If the grievant is found guilty of the misconduct, the grievant shall be placed on modified access consistent with Paragraphs JJ through NN.

N.

Wardens and FOA Region Managers shall ensure prisoners and parolees are provided assistance in

completing a grievance form, if s/he determines it is needed. In such cases, assistance shall be

provided by a staff member who is not involved in the grievance.

GRIEVANCE COORDINATORS

O.

Each Warden shall designate at least one staff member to serve as the Step I Grievance Coordinator

and at least one staff member to serve as the Step II Grievance Coordinator. The FOA Deputy

Director shall designate staff members to serve as Step I Grievance Coordinators and Step II Grievance

Coordinators for each FOA field office. Step III grievances shall be processed by the Grievance

Section in the Office of Legal Affairs (OLA).

P.

Each Step I Grievance Coordinator shall prepare and submit monthly reports on grievances filed in

Ex. 12 - PD 03_02_130 - Grievace Policy

Case 2:20-cv-11053-MAG-RSW ECF No. 30-13 filed 05/18/20 PageID.2047 Page 4 of 8

his/her respective facility or office to the Grievance Section, as directed by the Manager of the Grievance Section. The monthly report shall include information on the subject matter of each grievance filed and, for rejected grievances, the basis for the rejection.

GRIEVANCE PROCESS

Q.

Prior to submitting a written grievance, the grievant shall attempt to resolve the issue with the staff

member involved within two business days after becoming aware of a grievable issue, unless prevented

by circumstances beyond his/her control or if the issue is believed to fall within the jurisdiction of Internal

Affairs. If the issue is not resolved, the grievant may file a Step I grievance. The Step I grievance

must be filed within five business days after the grievant attempted to resolve the issue with appropriate

staff.

R.

All grievances alleging conduct that falls under the jurisdiction of Internal Affairs shall be referred to

Internal Affairs as set forth in PD 01.01.140 “Internal Affairs” even if they would otherwise be rejected.

The Manager of Internal Affairs or designee shall notify the Warden or FOA Deputy Director or

designee, and either the Inspector or Grievance Coordinator as appropriate, in writing if the grievance is

determined to fall within the jurisdiction of Internal Affairs; in such cases, an investigation shall be

conducted in accordance with PD 01.01.140 and the grievant notified that an extension of time is

therefore needed to respond to the grievance. The Manager of Internal Affairs or designee also shall

notify the Warden or FOA Deputy Director or designee, and the Inspector or Grievance Coordinator as

appropriate, if it is determined that the grievance is not within the jurisdiction of Internal Affairs; in such

cases, the grievance shall continue to be processed as a Step I grievance in accordance with this

policy.

S.

A grievant shall use a Prisoner/Parolee Grievance (CSJ-247A) to file a Step I grievance. A

Prisoner/Parolee Grievance Appeal (CSJ-247B) shall be used to file a Step II or Step III grievance.

The forms may be completed by hand or by typewriter; however, handwriting must be legible. The

issues should be stated briefly but concisely. Information provided is to be limited to the facts involving

the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places, and names of

all those involved in the issue being grieved are to be included. Information should be confined to the

form and not written on the back, sides, or margins of the form, or in the response area. Additional

pages may be attached to the grievance form if necessary to provide required information; however,

grievants are encouraged to limit the information to the grievance form itself. If the grievant believes

additional pages are necessary, s/he is to submit four copies of each additional page; Departmental

forms are not to be used for this purpose. The grievant may use an intradepartmental mail run, if

available, to send a grievance to another facility, or to send a Step III grievance, to the Grievance

Section. If an intradepartmental mail run is not available and the grievant does not have sufficient

funds to mail the grievance, postage shall be loaned as set forth in PD 05.03.118 "Prisoner Mail.”

T.

Grievances and grievance appeals at all steps shall be considered filed on the date received by the

Department. All grievances and appeals shall be date stamped upon receipt. Time frames for

responding to grievances are set forth in this policy directive. An extension may be granted at the

discretion of the Grievance Coordinator for a Step I or II response. However, the extension shall not

exceed 15 business days. The Grievance Coordinator shall immediately notify the grievant in writing

whenever an extension has been approved. The extension also shall be noted in the grievance

response.

U.

If a grievant chooses to pursue a grievance that has not been responded to by staff within required time

frames, including any extensions granted, the grievant may forward the grievance to the next step of the

grievance process within ten business days after the response deadline expired, including any

extensions that have been granted.

V.

Prisoners and staff who may be involved in the issue being grieved shall not participate in any capacity

in the grievance investigation, review, or response, except as necessary to provide information to the

respondent.

Ex. 12 - PD 03_02_130 - Grievace Policy

Case 2:20-cv-11053-MAG-RSW ECF No. 30-13 filed 05/18/20 PageID.2048 Page 5 of 8

Step I

W. Within five business days after attempting to resolve a grievable issue with staff, a grievant wishing to advance a grievance must send a completed Prisoner/Parolee Grievance form (CSJ-247A) to the Step I Grievance Coordinator designated for the facility or other office being grieved. If the office being grieved does not have a designated Grievance Coordinator, the grievance shall instead be sent to the Step I Grievance Coordinator for the facility in which the grievant is housed. A grievant in a CFA facility alleging conduct under the jurisdiction of the Internal Affairs Division may send the grievance to the Inspector for investigation and processing as set forth in Paragraph R.

X.

The Grievance Coordinator shall log and assign a unique identifying number to each Step I grievance

received, including those that may be rejected. A computerized grievance tracking system shall be

used for this purpose.

Y.

After receipt of the grievance, the Grievance Coordinator shall determine if the grievance should be

rejected pursuant to this policy. If the grievance is rejected, the grievance response shall state the

reason for the rejection without addressing the merits of the grievance. The Grievance Coordinator's

supervisor shall review the reason for the rejection to ensure it is in accordance with policy; both the

Grievance Coordinator and the supervisor shall sign the grievance before returning the grievance to the

grievant. If the grievance is accepted, the Grievance Coordinator shall assign an appropriate

respondent and identify the date by which the response is due. The respondent shall generally be the

supervisor of the person being grieved except:

1.

For grievances involving Clinical Issues, the Health Unit Manager shall designate the

respondent.

2.

For grievances regarding Michigan State Industries (MSI), the Administrator of MSI shall

designate the respondent.

3.

For grievances involving administrative support functions for correctional facilities, the

appropriate Administrative Manager shall designate the respondent.

4.

For grievances referred to Internal Affairs, the Internal Affairs Manager or designee shall be the

respondent. However, if the grievance is determined not to fall under the jurisdiction of Internal

Affairs, it shall be returned to the Grievance Coordinator at the facility at which the grievance is

filed to complete grievance processing.

5.

For grievances involving court-ordered payment of victim restitution, filing fees, criminal

fines/fees/costs or other assessments, child support obligations or bankruptcy actions, the

responder shall be designated by the Business Administrator in the Jackson Business Office.

6.

For grievances involving transportation issues, the Transportation Section Manager in the

Operations Division, CFA shall designate the respondent.

7.

For grievances regarding time computation, the Manager of the Time Computation Unit (TCU),

Operations Division, CFA shall designate the respondent.

8.

For grievances involving the Parole Board, the Parole Board Chairperson shall designate the

respondent for grievances involving the Parole Board.

Z.

A Step I grievance shall be responded to within 15 business days after receipt of the grievance unless

an extension is granted pursuant to Paragraph T. If the issue is of an emergent nature, the Grievance

Coordinator may order a Step I response within two business days. The Grievance Coordinator may

respond at Step I to grievances that require only minimal investigation or are rejected for reasons

authorized by this policy.

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AA. The respondent shall interview the grievant to clarify issues of merit, to further an investigation, or otherwise aid in resolution of the grievance at Step I. An interview is not required when:

1.

The grievance is rejected pursuant to policy.

2.

The prisoner refuses to participate in the interview. The date and time the interview was

attempted shall be recorded in the Step I response.

3.

The respondent is not assigned to the location at which the grievant is confined.

4.

The grievant is on parole in the community, and the respondent does not have ready access to

the field office to which the grievant is assigned.

5.

No further clarification is needed.

At any time, the Grievance Coordinator may require an interview if s/he determines it to be essential to an adequate response. At Step II, the Warden or designee may conduct an interview whether or not one was performed at Step I. If the grievant is not interviewed at Step I the reason shall be recorded in the Step I response. Prisoners do not have a due process right to an interview.

BB. Each Step I grievance response shall be reviewed by the respondent's supervisor prior to the grievance being returned to the Step I Grievance Coordinator to ensure that it appropriately addresses the issue raised in the grievance and accurately reflects Department policy and procedure. The respondent shall identify in the response applicable policies, rules, or procedures that are directly related to the issue or conduct being grieved.

CC. The Step I Grievance Coordinator shall ensure that a thorough investigation was completed for each Step I grievance accepted, that the response was reviewed by the appropriate supervisor, and that a copy of the response is provided to the grievant by the due date, including any extension granted.

Step II

DD. A grievant may file a Step II grievance if s/he is dissatisfied with the response received at Step I or if s/he did not receive a timely response. To file a Step II grievance, the grievant must request a Prisoner/Parolee Grievance Appeal (CSJ-247B) from the Step I Grievance Coordinator and send the completed form to the Step II Grievance Coordinator designated for the facility, field office, or other office being grieved within ten business days after receiving the Step I response or, if no response was received, within ten business days after the date the response was due, including any extensions. If the office being grieved does not have a designated Grievance Coordinator, the grievant is to send the grievance to the Step II Grievance Coordinator for the facility in which s/he is housed.

EE. The Grievance Coordinator shall log each Step II grievance received, including those that may be rejected. The Grievance Coordinator shall use a computerized grievance tracking system to do so. The Grievance Coordinator shall determine if the grievance should be rejected pursuant to this policy. If the grievance is rejected, the grievance response shall state the reason for the rejection without addressing the merits of the grievance. If accepted, the Grievance Coordinator shall assign an appropriate respondent and indicate the date by which the response is due. The due date shall be within 15 business days after receipt of the grievance, unless an extension is granted as set forth in Paragraph T.

FF. The respondents for Step II grievances shall be as follows:

1.

The Warden, except that s/he may delegate this responsibility to the appropriate Deputy

Warden if more than one institution is supervised.

2.

For grievances regarding clinical issues, the Step II clinical authority as determined by the

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Bureau of Health Care Services (BHCS) Administrator or for Duane L. Waters Health Center (DWH), the Warden of the Charles E. Egeler Reception and Guidance Center (RGC).

3.

For grievances regarding Michigan State Industries (MSI), the Administrator of MSI or designee.

4.

For grievances involving administrative support functions for correctional facilities, the

appropriate Administrative Manager.

5.

The appropriate Region Manager for FOA area offices and facilities.

6.

The FOA Deputy Director or designee for all other FOA grievances.

7.

For grievances involving court-ordered payment of victim restitution, filing fees, criminal

fines/fees/costs or other assessments, child support obligations or bankruptcy actions, the

responder shall be designated by the Business Administrator in the Jackson Business Office.

8.

For grievances involving transportation issues, the Transportation Section Manager in the

Operations Division, CFA.

9.

For grievances regarding time computation, the Manager of TCU, Operations Division, CFA.

10. For grievances involving the Parole Board, the Parole Board Chairperson.

GG. The Grievance Coordinator shall ensure that any additional investigation was completed as necessary for each Step II grievance accepted and that a copy of the response is provided to the grievant by the due date.

Step III

HH. A grievant may file a Step III grievance if s/he is dissatisfied with the Step II response or does not receive a timely response. To file a Step III grievance, the grievant must send a completed Prisoner/Parolee Grievance Appeal form (CSJ-247B) to the Grievance Section within ten business days after receiving the Step II response or, if no response was received, within ten business days after the date the response was due, including any extensions.

II.

The Grievance Section shall be the respondent for Step III grievances on behalf of the Director. Each

grievance received at Step III, including those that may be rejected, shall be logged on a computerized

grievance tracking system. The tracking system shall include information on the subject matter of each

grievance received and, for rejected grievances, the basis for the rejection. The Grievance Section

shall forward grievances regarding clinical issues to the Administrator of the BHCS. The BHCS

Administrator shall ensure the referred grievance is investigated and a response is provided to the

Grievance Section in a timely manner. The Manager of the Grievance Section shall ensure that any

additional investigation is completed as necessary for each Step III grievance accepted, including

referral to the Internal Affairs and, for disability issues, to the Equal Employment Opportunity Office, as

appropriate, and that a copy of the Step III response is provided to the grievant. Generally, Step III

responses will be responded to within 60 business days. The Step III response is final.

MODIFIED ACCESS

JJ. A prisoner or parolee who files an excessive number of grievances (three within a 30 calendar day span) that are rejected or the prisoner is found guilty of misconduct for filing an unfounded grievance as set forth in Paragraph M, may have access to the grievance process limited by the Warden or FOA Region Manager for an initial period of not more than 90 calendar days. If the prisoner or parolee continues to file such grievances while on modified access, the Warden or FOA Region Manager may extend the prisoner's or parolee's modified access status for not more than an additional 30 calendar days for each violation. A recommendation to place a prisoner on modified access shall be submitted

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only by the Grievance Coordinator or the Grievance Section Manager and shall include a list of the grievances forming the basis for the recommendation and the reason for the recommendation.
KK. The Warden or FOA Region Manager, as appropriate, shall ensure that a prisoner or parolee placed on modified access, or who has had that status extended, is immediately notified in writing of this determination, including a list of the grievances upon which the determination was based. The Warden or FOA Region Manager also shall immediately notify the appropriate Assistant Deputy Director, and the Grievance Section Manager in writing whenever s/he places a prisoner or parolee on modified access or extends that status.
LL. The Manager of the Grievance Section also may place a prisoner or parolee on modified access, or extend that status, for the reasons set forth in Paragraph JJ. The Manager of the Grievance Section shall ensure that each prisoner or parolee placed on modified access or who has that status extended is immediately notified in writing of that determination, including a list of the grievances upon which the determination was based. The Manager of the Grievance Section also shall ensure that the appropriate Warden or FOA Region Manager is notified in writing of the determination.
MM. While on modified access, the prisoner or parolee shall be able to obtain grievance forms only through the Step I Grievance Coordinator. A grievance form shall be provided if the Step I Grievance Coordinator determines that the issue the prisoner or parolee wishes to grieve is grievable and otherwise meets the criteria outlined in this policy. The Grievance Coordinator shall maintain a record of requests received for grievance forms and whether the request was approved or denied and, if denied, the reason for the denial. If a prisoner or parolee on modified access attempts to file a grievance using a form not provided by the Grievance Coordinator, the Grievance Coordinator may reject the grievance in accordance with Paragraph J. The Warden, FOA Region Manager, or Manager of the Grievance Section may extend the prisoner's or parolee's modified access status for not more than an additional 30 days for each violation. Notification of such extensions shall be consistent with the requirements set forth in Paragraphs KK and LL.
NN. A prisoner or parolee shall remain on modified access for the approved period even if transferred to another facility. The Grievance Coordinator for the sending facility shall ensure that the Grievance Coordinator for the receiving facility is notified of this information.
OPERATING PROCEDURE
OO. If necessary, the Administrator of the Office of Legal Affairs shall ensure that procedures are developed/updated to implement requirements set forth in this policy directive.
AUDIT ELEMENTS
PP. A Primary Audit Elements List has been developed and is available on the Department’s Document Access System to assist with self-audit of this policy pursuant to PD 01.05.100 "Self-Audits and Performance Audits.”
APPROVED: HEW 02/18/2019
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Pugh v. Caruso, Not Reported in F.Supp.2d (2008) 2008 WL 1868990
2008 WL 1868990 Only the Westlaw citation is currently available.
United States District Court, W.D. Michigan,
Southern Division.
Mitchell D. PUGH, Plaintiff, v.
Patricia CARUSO, et al., Defendants.
No. 1:06-cv-138. |
April 24, 2008.
Attorneys and Law Firms
Mitchell D. Pugh, Muskegon Heights, MI, pro se.
Clifton B. Schneider, Michigan Dept. Attorney General, Lansing, MI, for Defendants.
ORDER ACCEPTING REPORT AND RECOMMENDATION OVER OBJECTIONS
PAUL L. MALONEY, District Judge.
*1 This Court has before it a Report and Recommendation (Dkt. No. 56). Magistrate Judge Scoville recommends granting in part and denying in part Defendants Caruso, Armstrong, Lafler and Mayfield's (Defendants) motion for summary judgment (Dkt. No. 25) based on lack of exhaustion. Defendants filed an objection (Dkt. No. 58). Plaintiff filed a response to the objection (Dkt. No. 60).
After being served with a Report and Recommendation issued by a Magistrate Judge, a party has ten days to file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1) (C); FED. R. CIV. P. 72(b); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir.2005). A district court judge reviews de novo the portions of the R & R to which objections have been filed. 28 U.S .C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th
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Pugh v. Caruso, Not Reported in F.Supp.2d (2008) 2008 WL 1868990
Cir.1986) (per curiam) (holding the district court need not provide de novo review where the objections are frivolous, conclusive or too general because the burden is on the parties to “pinpoint those portions of the magistrate's report that the district court must specifically consider”). The United States Supreme Court has held that the statute does not “positively require[ ] some lesser review by the district court when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Failure to file an objection results in a waiver of the issue and the issue cannot be appealed. Sullivan, 431 F.3d at 984. See also Arn, 474 U.S. at 155 (upholding the Sixth Circuit's practice). The district court judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b) (1)(C); FED. R. CIV. P. 72(b).
This Court conducted a de novo review. Having read the file, including the report, objection and relevant authority, the Report and Recommendation is ACCEPTED OVER OBJECTIONS.
Magistrate Judge Scoville advances several recommendations, only one of which is the subject of an objection. Accordingly, all recommendations not specifically objected to by either party are ACCEPTED. More specifically, all recommendations that Defendants' motion be granted in part are accepted as Plaintiff has filed on objection to those recommendations.
Defendants, through their motion, allege Plaintiff failed to exhaust his administrative remedies because the grievances Plaintiff submitted did not name the individual defendants. Plaintiff's response includes the assertion that prison policy prohibits him from grieving the content of a prison policy. (Dkt. No. 51-Brief in Response at 10-13). Plaintiff contends he raised the issues in his complaint in the Warden's Forum, the alternative forum provided by the prison policy. To support his allegation, Plaintiff attaches the minutes of the Warden's Forum and his affidavit. (Exhibits B and D to Dkt. No. 51). The minutes of the Warden's Forum on September 23, 2005 state
*2 5. The prisoners of SLF would like a definitive ruling on the application of the Religious Land Use, and Institutionalized Persons Act of 2000 ( 42 U.S.C. § 2000cc-1) to all policies, procedures and practices, at SLF relating to religious exercise.
Response: This question sounds like a declaratory ruling is being requested and we cannot do this. We have to abide by MDOC policy and procedure requirements.
(Exhibit B to Dkt. No. 51). In paragraph 17 of his affidavit, Plaintiff avers he “officially submitted to Defendant Lafler the claims contained within Plaintiff's Complaint regarding the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and the burdens placed upon Plaintiff's
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religious exercise by SLF employees and MDOC P.D. 05.03.118 and P.D. 05.03.150.” (Exhibit D to Dkt. No. 51).
The Report recommends denying Defendants' motion on the basis that Plaintiff exhausted his “available” administrative remedies because no grievance procedure was available for Plaintiff to challenge the content of the prison policy. Defendants' object on the basis that the same prison policy allows for concerns about the content of a policy or procedure to be raised at the Warden's Forum. Indeed, MDOC Policy Directive 03.02.120(E) provides
A grievant may not grieve the content of policy or procedure; such grievances shall be rejected by the grievance coordinator. If a CFA prisoner has a concern with the content of a policy or procedure, s/he may direct comments to the Warden's Forum as provided in PD 04.01.150 “Prison Housing Unit Representatives/Warden's Forum”.
Defendants conclude “while the filing of a grievance was not an available remedy to the plaintiff to resolve his claims regarding permissible items and group services for practitioners of Wicca at the St. Louis Correctional Facility, the Warden's Forum provided the remedy applicable for such claims.” (Objection at 3). Plaintiff's response to the objection reiterates his response to Defendants' motion.
Defendants' objection ignores the basis for the Magistrate Judge's recommendation. In Plaintiff's response, he alleges he complied with the prison policy and raised the issues in his complaint at the Warden's Forum. The documents submitted create a genuine issue of material fact regarding whether Plaintiff exhausted his available administrative grievances. The minutes of the Warden's meeting summarily characterize the issue raised as the application of RLUIPA to religious exercise and declines to issue a declaratory ruling. Plaintiff's affidavit suggests the issue was more narrowly presented. This Court notes the prison policy relating to the Warden's Forum prohibits the prisoner representatives, which Plaintiff was, from using their position to “present individual complaints to the administration. Individual complaints may be pursued through the grievance process as set forth in PD 03.02.130.” (Dkt. No. 58-Exhibit B to Objection-MDOC PD 04 .01.150(K). The minutes of the Warden's Forum demonstrate that policy is enforced. See Exhibit B to Dkt. No. 51 ¶ 1.
*3 The Report and Recommendation (Dkt. No. 56) is ACCEPTED OVER OBJECTIONS. Defendants' Motion for Summary Judgment (Dkt. No. 25) raising the issue of exhaustion is GRANTED IN PART AND DENIED IN PART. IT IS SO ORDERED.
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Pugh v. Caruso, Not Reported in F.Supp.2d (2008) 2008 WL 1868990
REPORT AND RECOMMENDATION
JOSEPH G. SCOVILLE, United States Magistrate Judge.
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. §§ 1983 and 2000cc-1. On June 8, 2007, this Court ordered service of Plaintiff's complaint on Defendants
Patricia Caruso, James Armstrong, Blaine Lafler, Julius Mayfield, Daniel Abrams 1 and Carron Caldwell. On August 2, 2007, Defendants Caruso, Lafler and Mayfield filed a motion for summary judgment (docket # 25) on the ground that Plaintiff failed to exhaust his available administrative remedies. Plaintiff filed a response and attachments (docket # 51) on or about October 15, 2007. Upon review, I recommend that Defendants' motion for summary judgment based on Plaintiff's failure to exhaust his available administrative remedies be granted in part and denied in part.
1 Defendant Abrams has not yet been served in this action.
Applicable Standard
Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Kocak v. Comty. Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir.2005); Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir.2005). The standard for determining whether summary judgment is appropriate is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir.2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see also Tucker v. Union of Needletrades Indus. & Textile Employees, 407 F.3d 784, 787 (6th Cir.2005). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir.2005).
A prisoner's failure to exhaust his administrative remedies is an affirmative defense, which Defendants have the burden to plead and prove. Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 919-21, 166 L.Ed.2d 798 (2007). A moving party without the burden of proof need show only that
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Pugh v. Caruso, Not Reported in F.Supp.2d (2008) 2008 WL 1868990
the opponent cannot sustain his burden at trial. See

Morris v. Oldham County Fiscal Court, 201

F.3d 784, 787 (6th Cir.2000); see also Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir.2005).

A moving party with the burden of proof faces a “substantially higher hurdle.” Arnett v.

Myers, 281 F.3d 552, 561 (6th Cir.2002); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir.2001). “Where the moving party has the burden-the plaintiff on a claim for relief or the defendant on an affirmative defense-his showing must be sufficient for the court to hold

that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986) (quoting W. SCHWARZER, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). The United States Court of Appeals for the Sixth Circuit repeatedly has emphasized that the party with the burden of proof “must show the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to

disbelieve it.” Arnett, 281 F.3d at 561 (quoting 11 JAMES WILLIAM MOORE, ET AL., MOORE'S FEDERAL PRACTICE § 56.13[1], at 56-138 (3d ed.2000); Cockrel, 270 F.2d at 1056 (same). Accordingly, summary judgment in favor of the party with the burden of persuasion “is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier

of fact.” Hunt v. Cromartie, 526 U.S. 541, 553, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).

Facts
*4 Plaintiff presently is incarcerated with the Michigan Department of Corrections (MDOC) and housed at the Muskegon Correctional Facility, though the actions he complains of occurred while he was housed at the St. Louis Correctional Facility (SLF). In his pro se complaint, Plaintiff sues MDOC Director Patricia Caruso and MDOC Prison Affairs Manager James Armstrong, together with the following SLF employees: Warden Blaine Lafler, Classification Director Julius Mayfield, Grievance Coordinator Daniel Abrams and Chaplain Carron Caldwell, in their individual and official capacities.
Plaintiff claims that, in 2005, Defendants refused to accommodate his right to practice and worship Wicca 2 under § 2000cc-1 of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The RLUIPA provides, in pertinent part, that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... unless the government demonstrates that imposition of the burden ...” furthers “a compelling governmental interest” and is done so by the least restrictive means. 42 U.S.C. § 2000cc-1(a) (1)-(2).
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2 “Wicca is a polytheistic faith based on beliefs that prevailed in both the Old World and the New World before Christianity. Its practices include the use of herbal magic and benign witchcraft.” O'Bryan v. Bureau of Prisons, 349 F.3d 399, 400 (7th Cir.2003) (citations omitted).
Plaintiff argues that he was wrongfully denied his right to exercise Wicca because: (1) Defendants Caldwell, Mayfield, Lafler, and Caruso refused his request to purchase religious articles 3 , including herbs and herbal teas, anointing oils, candles, a scrying bowl and/or crystal ball, altar, altar cloth, chalice, athame and/or wand, ceremonial cloak/robe, altar mixing/offering bowl, altar pentacle, bell, the Book of Shadows, incense and incense burner, and crystals, under MICH. DEP'T OF CORR., Policy Directive 05.03.150, ¶ KK (effective 5/24/04) 4 ; (2) Defendants Caldwell, Mayfield, Lafler, and Caruso refused to approve the mail-order vendor, “Azure Green,” which sells the above Wiccan religious articles, under Policy Directive 05.03.150, ¶ NN; (3) Defendants Caldwell, Mayfield, Lafler and Caruso refused to allow Wiccan clergy to worship with Plaintiff in violation of Policy Directive 05.03.150, ¶ AAA; (4) Defendant Caruso unlawfully restricted Plaintiff from exercising Wicca in group meetings, ceremonies, and rituals in Policy Directive 05.03.150, ¶ QQ(2); and (5) Defendants Abrams, Lafler, Armstrong, and Caruso wrongfully denied his request for a book titled “Buckland's Complete Book of Witchcraft” because it had been placed on the MDOC restricted book list. Plaintiff alleges that Caldwell failed to grant exceptions to the policy to permit Plaintiff to practice his religion and that Mayfield and Lafler approved Caldwell's actions by denying Plaintiff's grievances. He also alleges that Defendant Caruso has adopted and maintained a policy that discriminates against the practice of Wicca and that fails to comply with RLUIPA.
3 Under MICH. DEP'T OF CORR., Policy Directive 05.03.150, ¶ QQQ(2) & Attach. B (effective 05/24/04), prisoners belonging to the religious group of Wicca may possess one deck of tarot cards and one Celtic cross or pentagram.
4 Policy Directive 05.03.150, ¶ KK states that prisoners may possess religious property that has not already been authorized only upon written request to the Warden, Technical Rule Violation Director or designee. Plaintiff submitted such a request to Defendant Caldwell, a chaplain. See Attach. A to P's Compl.
For relief, Plaintiff requests declaratory and injunctive relief, and monetary damages.
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Pugh v. Caruso, Not Reported in F.Supp.2d (2008) 2008 WL 1868990
Discussion
I. Statutory Exhaustion Requirements *5 Defendants Mayfield, Lafler and Caruso claim that they are entitled to summary judgment because Plaintiff failed to exhaust his available administrative remedies. Pursuant to 42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust his available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 733, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir.1999). In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 922-23, 166 L.Ed.2d 798 (2007); Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006). “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’ ” Jones, 127 S.Ct. at 922-23.
II. MDOC Policy MDOC Policy Directive 03.02.130 (effective Dec. 19, 2003) 5 , sets forth the applicable grievance procedures for prisoners in MDOC custody at the time relevant to this complaint. Inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control Id. at ¶ R. If oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance process and submit a completed grievance form within five business days of the attempted oral resolution. Id. at ¶¶ R, X. The Policy Directive also provides the following directions for completing grievance forms: “The issues shall be stated briefly. Information provided shall be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included.” Id. at ¶ T (emphasis in original). The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent. Id. at ¶ Y.
5 The MDOC recently amended Policy Directive 03.02.130 on July 9, 2007. However, the 2003 version of the policy directive was in effect at all times applicable to this lawsuit.
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If the inmate is dissatisfied with the Step I response, or does not receive a timely response, he may appeal to Step II by obtaining an appeal form within five business days of the response, or if no response was received, within five days after the response was due. Id. at ¶¶ R, DD. The respondent at Step II is designated by the policy, e.g., the regional health administrator for a medical care grievances. Id. at ¶ FF. If the inmate is still dissatisfied with the Step II response, or does not receive a timely Step II response, he may appeal to Step III using the same appeal form. Id. at ¶¶ R, HH. The Step III form shall be sent within ten business days after receiving the Step II response, or if no Step II response was received, within ten business days after the date the Step II response was due. Id. at ¶ HH. The Prisoner Affairs Section is the respondent for Step III grievances on behalf of the MDOC director. Id. at ¶ II. Time limitations shall be adhered to by the inmate and staff at all steps of the grievance process. Id. at ¶ U. “The total grievance process from the point of filing a Step I grievance to providing a Step III response shall be completed within 90 calendar days unless an extension has been approved ....” Id.
*6 In addition, the grievance policy provides that, where the grievance alleges staff brutality or corruption, the grievance may be submitted directly to Step III. Id. at ¶ S. In such instances, the grievance must be filed within the time limits prescribed for filing grievances at Step I. Id.
III. Grievances Plaintiff filed two grievances concerning the claims asserted in his complaint. First, on July 4, 2005, in Grievance No. SLF-05-07-1456-20a, Plaintiff asserted that Defendant Caldwell refused his requests for various items and services necessary to the practice of his religion of Wicca. Second, Plaintiff filed Grievance No. SLF-05-08-1802-28g on August 11, 2005, alleging that Assistant Librarian (Unknown) Hollenbeck 6 denied Plaintiff's request for “Buckland's Complete Book of Witchcraft.” 7
6 Assistant Librarian Hollenbeck is not listed as a Defendant in this action.
7 Defendants attach to their motion yet another grievance, No. MCF 06-11-0822-07a, which contains allegations about an unrelated mail rejection in October 2006. Plaintiff does not rely on the grievance and makes no allegations related to the grievance in his complaint. Grievance No. MCF-06-11-0822-07a therefore is entirely irrelevant to Plaintiff's exhaustion of the complaint before the Court.
A. Grievance No. SLF-05-07-1456-20a Plaintiff's grievance, No. SLF-0507-1456-20a, against Defendant Caldwell, complained that Caldwell failed to respond to his various requests: (1) for authorization of items beyond the items
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approved in the policy, as permitted by PD 05.03.150, ¶ KK; (2) for the addition of a vendor who could supply the additional items requested; (3) for access to a Wiccan clergyperson; and (4) for a meeting with the chaplain. Plaintiff declared in his grievance that Caldwell's inaction violated Plaintiff's rights under the RLUIPA.
After an interview with Plaintiff, Defendant Mayfield denied the grievance at Step I. In his response, Mayfield stated that MDOC policy restricted the religious items to Tarot cards and a Celtic cross or pentagram. Second, Mayfield rejected the request for an additional vendor because the two approved items were available from two approved sources. Third, Mayfield found that Caldwell had been seeking clergy from the Wiccan faith to visit Plaintiff. Fourth, Mayfield found that Chaplain Caldwell had responded by sending the list of vendors and approved property.
Plaintiff appealed his grievance to Step II. Defendant Lafler denied the grievance and affirmed the Step I decision, stating that Plaintiff's requests exceeded the limitations set forth in PD 05.03.150, Attachment B. Plaintiff appealed the grievance to Step III. Prior to filing his original complaint, Plaintiff had not received a response. The Step III response eventually was issued on March 7, 2006. Pursuant to Policy Directive 03.02.130, ¶ U, Plaintiff exhausted this claim on November 9, 2005, because the 90-day period for completing the entire grievance process had expired.
Defendants do not dispute that Grievance No. SLF-05-07-1456-20a fully exhausted Plaintiff's claims against Defendant Caldwell. They contend, however, that the grievance did not name Defendants Mayfield, Lafler or Caruso. As a consequence, they assert that the grievance did not exhaust Plaintiff's claims against them. The grievance policy expressly permits prisoners to file grievances “regarding alleged violations of policy or procedure or unsatisfactory conditions of confinement which directly affect the grievant.” MICH. DEP'T OF CORR., Policy Directive 03.02.130, ¶ E. At no stage of the grievance process did Plaintiff name Mayfield, Lafler or Caruso, as required under PD 03.02.130, ¶ T. He therefore has failed to properly exhaust his administrative remedies against these Defendants with respect to any claim based on the misapplication of the religious practices policy, PD 05.03.150.
B. Grievance No. SLF-05-08-1802-28g *7 On July 24, 2005, Plaintiff submitted to Assistant Librarian (Unknown) Hollenbeck a book request for “Buckland's Complete Book of Witchcraft.” Hollenbeck denied the book request on August 9, 2005, because the book had been placed on the MDOC Restricted Publications List. Plaintiff filed Grievance No. SLF-05-08-1802-28g on August 11, 2005, naming Hollenbeck and complaining about the denial of the book request. Plaintiff appealed the grievance through all three steps, but he did not receive a response from Step III before he filed his original complaint.
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Pursuant to Policy Directive 03.02.130, ¶ U, Plaintiff exhausted this claim on November 9, 2005, at the expiration of the 90-day time limit for completion of the grievance process.
As with Plaintiff's other grievance, Grievance No. SLF-05-08-1802-28g is exhausted as to the persons named in that grievance, in this case, Assistant Librarian Hollenbeck. 8 It is not, however, exhausted with respect to Defendants Mayfield, Lafler and Caruso, who were not named as required under PD 03.02.130, ¶ E. Accordingly, to the extent Plaintiff claims that these Defendants violated MDOC policy by rejecting the book, his claim must be rejected as unexhausted.
8 Assistant Librarian Hollenbeck is not listed as a Defendant in this action.
C. Challenge to Content of PD 05.03.150 Plaintiff, however, directly challenges the content of PD 05.03.130 and Attachment B with respect to their limitations on religious items available to Plaintiff and with respect to the preclusion of group services for followers of the Wicca religion. He also challenges the MDOC policy decision to include “Buckland's Complete Book of Witchcraft” on the MDOC Restricted Publications List under PD 05.03.118, ¶ RR (prohibiting prisoners from receiving a hearing on items rejected because they have been placed on the MDOC Restricted Publications List).
The grievance policy expressly prohibits prisoners from filing grievances challenging the content of a policy. See MICH. DEP'T OF CORR., Policy Directive 03.02.130, ¶ E (“A grievant may not grieve the content of policy or procedure; such grievances shall be rejected by the grievance coordinator.”). See also Harbin-Bey v. Rutter, 420 F.3d 571, 581 (6th Cir.2005). Michigan prisoners cannot grieve the content of a policy. As a consequence, the grievance policy was not an available remedy to Plaintiff to resolve his claims against Defendants concerning the content of the policy. See 42 U.S.C. § 1997e(a) (requiring exhaustion of “available” remedies); Woodford, 126 S.Ct. at 2386; Figel v. Bouchard, 89 F. App'x 970, 971 (6th Cir.2004) (prisoner may not be required to exhaust administrative remedies regarding non-grievable issues). Defendants' motion for summary judgment therefore should be denied with respect to Plaintiff's challenges to the content of the prison policies.
Recommended Disposition
For the foregoing reasons, I recommend that Defendants' motion for summary judgment (docket # 25) based on Plaintiff's failure to exhaust his available administrative remedies be granted in part
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and denied in part. Defendants' motion should be granted with respect to any claims by Plaintiff that he was denied religious items, group worship or religious books in violation of MDOC policy, except as to the claims against Defendant Caldwell. I recommend that the motion be denied in all other respects.

All Citations Not Reported in F.Supp.2d, 2008 WL 1868990

End of Document

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2020 WL 1899561 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
UNITED STATES of America, Plaintiff, v.
Michael Anthony FROST, Defendant (2).
Case No. 18-cr-20206 |
Signed 04/17/2020
Attorneys and Law Firms
Mollie E. O'Rourke, U.S. Department of Justice, Detroit, MI, for Plaintiff.
OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR PRETRIAL RELEASE AND REVOCATION OF DETENTION ORDER [#132]
HON. GERSHWIN A. DRAIN, United States District Court Judge
I. INTRODUCTION
*1 On October 15, 2019, pursuant to a Rule 11 plea agreement, Defendant Michael Anthony Frost (“Defendant”) pleaded guilty to conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841, 846. ECF No. 101. Specifically, Defendant admitted that he conspired to distribute 100 grams or more of heroin and twenty-eight grams or more of crack cocaine with co-defendant Jhamall McGaughy. Id. at PageID.467. Defendant has been detained since March 19, 2019. ECF Nos. 50, 54. He is scheduled to be sentenced on June 2, 2020.
Presently before the Court is Defendant’s Motion for Pretrial Release and Revocation of Detention Order, filed on April 6, 2020. ECF No. 132. The Government filed a Response on April 10, 2020. ECF No. 134. After reviewing the parties’ briefs, the Court finds that no hearing on the Motion is necessary. See E.D. Mich. LR 7.1(f)(2). For the reasons that follow, the Court will DENY Defendant’s Motion [#132].
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II. BACKGROUND
The instant action stems from a drug and prostitution enterprise in the Eastern District of Michigan and elsewhere between 2017 and 2018. Beginning in December 2017, Defendant allowed codefendant Jhamall McGaughy to move into his house on Cheyenne Street to operate the enterprise. ECF No. 65, PageID.216. Defendant was a “regular supplier” of controlled substances, including heroin, cocaine, and crack cocaine, to co-defendant. Id.
On March 19, 2019, Defendant was arraigned on a Third Superseding Indictment. ECF No. 50. He consented to detention on that same day, thus waiving his right to a hearing. ECF No. 54. On May 4, 2019, Defendant filed a Motion for Revocation of Detention Order. ECF No. 64. Defendant withdrew this motion on July 19, 2019. ECF No. 78. On October 15, 2019, Defendant pleaded guilty to conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841, 846. ECF No. 101. In his Motion, Defendant asserts that he is currently being held at Washtenaw County Jail. ECF No. 132, PageID.610. In its Response, the Government contends that Defendant is in fact detained at Livingston County Jail. ECF No. 134, PageID.627. After receiving the parties’ briefings, the Court confirmed that Defendant is at Livingston County Jail.
Defendant is scheduled to be sentenced on June 2, 2020 before this Court.
III. LAW & ANALYSIS
A. COVID-19 COVID-19 is an abbreviation for the novel coronavirus disease of 2019, a respiratory illness that spreads easily and sustainably in the community through respiratory droplets produced when an infected person coughs or sneezes. See Centers for Disease Control and Prevention Coronavirus Disease 2019 Frequently Asked Questions, Center for Disease Control https://www.cdc.gov/ coronavirus/2019-ncov/faq.html#How-COVID-19-Spreads (last updated April 13, 2020). While it is thought that people are most contagious when symptoms are present, the virus has also been detected in asymptomatic persons. See id.
There is no vaccine to prevent COVID-19, nor is there antiviral medication that can treat it. Id.; see also ECF No. 132, PageID.614. According to the Center for Disease Control (“CDC”), “[t]he best way to prevent illness is to avoid being exposed to the virus.” Id. The CDC recommends, among other things, that people clean their hands often or use hand sanitizer when soap is unavailable;
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avoid close contact with other people (at least six feet in distance); and clean and disinfect frequently touched surfaces daily, such as tables, doorknobs, light switches, and countertops. Id. The CDC also recommends that if an individual becomes sick, he or she should isolate from others by staying in a specific sick room and using a separate bathroom if available. Id.
*2 The CDC has indicated that certain classes of individuals are at higher risk for developing severe illness if exposed to the novel coronavirus of 2019. Id. Older adults—65 or older—and people suffering from underlying medical conditions, such as moderate to severe asthma, chronic lung disease, serious heart disease, severe obesity, diabetes, liver disease, kidney disease; or people who are immunocompromised, such as those who are undergoing cancer treatment, smokers, bone marrow or organ transplant recipients or donors, people with immune deficiencies, poorly controlled HIV or AIDS sufferers; and those who have prolonged use of corticosteroids and other immune weakening medications are at higher risk of developing serious illness if they are exposed to COVID-19. Id. While it has been accepted that older adults are the most vulnerable, the CDC reported that 38% of the 508 hospitalized patients were younger–between 20 and 54 years of age. See Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)–United States, February 12-March 16, 2020, Center for Disease Control (Mar. 18, 2020), https://www.cdc.gov/ mmwr/volumes/69/wr/mm6912e2.htm.
At the time of this writing, the majority of states have issued stay-at-home orders, including Governor Gretchen Whitmer of Michigan. Governor Whitmer issued a state of emergency when the State’s first two cases of coronavirus were reported on March 10, 2020. Executive Order, No. 2020-04 (Mar. 10, 2020). Governor Whitmer has since issued a series of other executive orders to help prevent the spread of this novel disease. See Executive Orders, Michigan.gov, https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705---,00.html (last visited April 15, 2020). Even with such executive action, Michigan continues to experience staggering numbers of confirmed COVID-19 cases and deaths. At the time of this writing, a little more than thirty days after the initial two COVID-19 cases were reported the State, there are more than 29,200 confirmed cases in Michigan. See MDOC Response and Information on coronavirus (COVID-19), Medium, https://medium.com/@MichiganDOC/mdoc-takes-steps-toprevent-spread-of-coronavirus-covid-19-250f43144337 (last updated April 16, 2020) [hereinafter Medium MDOC Response and Information]. There are now 1,921 lives lost to COVID-19 in Michigan alone. Michigan surpasses 1,900 deaths due to coronvarius; 28,059 cases total in state, Detroit Free Press (April 15, 2020, 3:03 PM) https://www.freep.com/story/news/local/ michigan/2020/04/15/michigan-coronavirus-cases-deaths/5138838002/.
*3 Incarcerated individuals, and the employees who work in correctional institutions, are not immune to this pandemic. See ECF No. 132, PageID.613. Indeed, these individuals face an
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even greater risk. On March 23, 2020, the CDC acknowledged that correctional and detention facilities “present[ ] unique challenges for control of COVID-19 transmission among incarcerated/ detained persons, staff, and visitors.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/ guidance-correctional-detention.html [hereinafter CDC Guidance on Correctional and Detention Facilities]; see also United States v. Eubanks, No. 17-20184, 2020 WL 1814090, at *1 (E.D. Mich. April 9, 2020). COVID-19 is dangerous everywhere, but the novel disease is especially harmful within correctional institutions, where incarcerated individuals have a limited ability to exercise encouraged community practices such as social distancing and frequent handwashing. See CDC Guidance on Correctional and Detention Facilities; see also ECF No. 132, PageID.613 (“The recommended social distancing measures are nearly impossible to implement and adhere to in detention facilities where detained individuals share dining, bathing and sleeping areas[.]”). Further, a “low capacity for patient volume, insufficient quarantine space, insufficient onsite medical staff, [and] highly congregational environments” increase the risk of danger to incarcerated individuals. CDC Guidance on Correctional and Detention Facilities; see also
United States v. Kennedy, No. 18-20315, 2020 WL 1493481, at *2 (E.D. Mich. Mar. 27, 2020). The Court takes notice of the Government’s assertion that “simply going to the grocery store” is analogous to a detention facility’s risk of exposure to COVID-19. ECF No. 134, PageID.631–32. In light of the CDC’s information concerning the unique challenges which COVID-19 presents to the vulnerable communities in correctional facilities, such allegations are disingenuous and incorrect. Indeed, a COVID-19 outbreak in a prison facility is not potentially problematic as suggested by the Government in its Response, ECF No. 134, PageID.631, it is problematic.
As of April 16, 2020, there are 499 prisoners who have tested positive for COVID-19 in MDOC facilities. See Medium MDOC Response and Information. These numbers are growing sharply. According to MDOC, there have been 17 COVID-19 related deaths within its prisons, including thirteen inmates; two corrections professionals; a corrections transportation officer; and a word processing assistant. Id. The Court denotes that as of the writing of this Order, there are no confirmed cases at Livingston County Jail, where Defendant is currently being held. See id.; see also ECF No. 134, PageID.631 (“[A]s of [April 9, 2020], there were no confirmed cases at the facility.”).
To its credit, MDOC has implemented a number of measures to reduce COVID-19’s spread in its facilities. See 2020 Coronavirus (COVID-19) Response Q&A, Michigan Department of Corrections, https://www.michigan.gov/corrections/0,4551,7-119-9741_12798-521973--,00.html (last visited April 15, 2020); see also Medium MDOC Response and Information. For example, all MDOC staff transporting prisoners on or off grounds are required to be dressed in full personal
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protective equipment (PPE). Medium MDOC Response and Information. Visitation at facilities throughout Michigan has been suspended. Transfers of prisoners or staff between facilities will not be authorized without the approval of the Assistant Deputy Director or higher. Id. Further, its facilities have been equipped with an increased supply of soap. MDOC is following the Michigan Department of Health and Human Services protocol and is accordingly scheduling appointments between facility healthcare staff and prisoners who have presented COVID-19 symptoms. Id.
In its Response, the Government cites to specific measures at Livingston County Jail. For example, the facility has been on lockdown and has been restricting visitors for several weeks. ECF No. 134, PageID.631. Further, the facility has increased the “extent and frequency of cleaning, and has taken steps to decrease the population density[.]” Id. Any new detainees must now quarantine for fourteen days. Id.
B. Defendant’s Due Process Argument Defendant first advances an argument based on constitutional protections of pretrial detainees under the Due Process Clause of the Fifth Amendment. ECF No. 132, PageID.614–15. He argues that the conditions of his confinement, which “create an unreasonable risk of exposure to COVID-19,” should be deemed “punitive” in violation of the Fifth Amendment. Id. at PageID.615. Notably, while the Government opposes Defendant’s instant Motion, it fails to specifically address Defendant’s Fifth Amendment argument in its Response. ECF No. 134.
In evaluating whether a condition of pretrial detainment violates the Fifth Amendment, courts must determine whether the condition amounts to “punishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). The Supreme Court has explained:
if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to punishment. Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the government action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
*4 Id. at 539 (internal quotation marks omitted). Accordingly, the question before the Court is whether Defendant’s detention is reasonably related to a legitimate government objective. See,
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e.g., United States v. McDonald, No. 2:19-cr-00312, 2020 WL 1659937, at *3 (D. Nev. April 3, 2020); United States v. Cox, No. 2:19-cr-00271, 2020 WL 1491180, at *6 (D. Nev. Mar. 27, 2020).
Here, Defendant’s detention is reasonably related to the legitimate government interests of protecting the community and ensuring his appearance. The Court initially detained Defendant, to which Defendant consented, in March 2019. See ECF No. 54. According to his bail report, which was prepared by Pretrial Services at the time of Defendant’s arraignment, Defendant poses a risk of nonappearance for several reasons, including his criminal activity while under supervision; lack of verifiable employment; and his criminal history. Def’s Pretrial Services Report 9. Further, Pretrial Services determined that Defendant poses a risk to the community. Id. Pretrial Services concluded that there was no condition or combination of conditions that could reasonably ensure Defendant’s appearance and the safety of the community. Id. In its Response to the instant motion, the Government emphasizes Defendant’s “significant criminal history” and “poor track record of complying with conditions of probation.” ECF No. 134, PageID.628–29.
Pretrial detention, for purposes of protecting the community and ensuring a defendant’s appearance, is not punitive under the Due Process Clause. See United States v. Salerno, 481 U.S. 739, 748 (1987). “[E]ven if pretrial detention during a worldwide pandemic seems punitive in the lay sense, that restriction cannot violate due process unless there is also an express intent to punish with no rational relationship to legitimate government interests.” United States v. Shelton, et al., No. 3:19-cr-14, 2020 WL 1815941, at *7 (W.D. Ky. April 9, 2020) (internal citation omitted) (emphasis added). The Court finds that there is no arbitrary purpose and punitive intent in detaining Defendant before his sentencing hearing in light of the legitimate government interests of protecting the community and ensuring his appearance.
Finally, Defendant asserts that pretrial detainees have a substantive due process interest in freedom from deliberate indifference to their medical needs. ECF No. 132, PageID.615. He cites to one Seventh Circuit case to support his argument, Miranda v. City of Lake, 900 F.3d 335, 352 (7th Cir. 2018). See id. Defendant explains that release is appropriate in his case given his “age and condition” in order to ensure his constitutional rights are protected. Id.
The Sixth Circuit has recognized that the government “has an ‘obligation to provide medical care for those whom it is punishing by incarceration.’ ” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). “[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Oliver Nissan Awshana, et al. v. Rebecca Adducci, et al., No. 20-10699, 2020 WL 1808906, at *3 (E.D. Mich. April 9, 2020) (internal citation omitted).
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*5 The Court finds that Defendant’s analysis as to this point is deficient. Specifically, Defendant cites the lack of testing at the Washtenaw Detention Facility. Id. As explained above, Defendant is currently being held at Livingston County Jail; therefore, details concerning the conditions at Washtenaw Detention Facility—while troubling—are not relevant to Defendant’s instant Motion.
Furthermore, the Court takes issue with Defendant’s lack of information as to how the detention facility is being indifferent towards him or what his specific, current medical needs are. Rather, Defendant cites generally to how “[t]he current conditions of confinement create an unreasonable risk of exposure to COVID-19” and how facilities lack “necessary supplies for personal and environmental hygiene to protect against contraction of the virus.” Id. While these assertions concerning correctional facilities are true in light of CDC Guidance on Correctional and Detention Facilities, the Court concludes that these generalities are not enough to grant Defendant temporary release on this basis.
C. Defendant’s Arguments Pursuant to 18 U.S.C. §§ 3143, 3145(c) Next, Defendant argues that his release is warranted due to the exceptional circumstances presented by the COVID-19 pandemic. ECF No. 132, PageID.615. The Government contests Defendant’s eligibility for release under both 18 U.S.C. § 3143 and 18 U.S.C. § 3145(c). ECF No. 134, PageID.627, 630.
Defendant pleaded guilty to an offense prescribed in the Controlled Substances Act for which the maximum sentence is at least ten years. 1 See 18 U.S.C. § 3142(f)(1)(C). He is therefore subject to mandatory pre-sentence detention absent an applicable exemption. See 18 U.S.C. 3143(a)(2) (cross-referencing offenses listed under 18 U.S.C. § 3142(f)(1)(A)–(C)); see also ECF No. 134, PageID.628. Section 3143(a)(2) exempts a defendant when there is a “substantial likelihood that a motion for acquittal or new trial will be granted,” 18 U.S.C. § 3143(a)(2)(A)(i), or when “the Government has recommended that no sentence of imprisonment be imposed,” 18 U.S.C. § 3143(a)(2)(A)(ii). If a defendant can meet either of those prongs, a defendant must then satisfy the remaining requirement of § 3143(a)(2)(B) to be eligible for release. Section 3143(a)(2)(B) requires “clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.” 18 U.S.C. § 3143(a)(2)(B).
1 The Government notes that Defendant faces a statutory term of imprisonment of 5-40 years since his conviction involved at least 100 grams of heroin under 21 U.S.C. § 841(b)(1)(b) (i). ECF No. 134, PageID.627–28.
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Defendant acknowledges the “presumption for remand under 18 U.S.C. § 3143(a)(2).” ECF No. 132, PageID.616. In fact, he declines to argue that he is eligible under either prong § 3143(a)(2) (A). The Government argues that Defendant cannot meet either prong. ECF No. 134, PageID.628. First, Defendant pleaded guilty, making neither motion available under § 3143(a)(2)(A)(i). Id.; see also ECF No. 101. Second, Defendant is subject to a five year mandatory minimum sentence. ECF No. 134, PageID.628. The Government explains further that it will be seeking a “significant term of imprisonment in light of the guideline range of 188-235 months and the 5 year mandatory minimum.” Id. The Court thus agrees with the Government that neither of the statutory conditions can be met. The question before the Court, therefore, is whether Defendant may avail himself of the exceptional circumstances under 18 U.S.C. § 3145(c). ECF No. 132, PageID.616.
*6 Section 3145(c) permits a judicial officer to release a defendant subject to detention under § 3143(a)(2) if he or she “meets the conditions of release set forth in section 3143(a)(1)” and “if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.” 18 U.S.C. § 3145(c). In order to satisfy 18 U.S.C. § 3143(a)(1), the defendant must show by “clear and convincing evidence” that he or she is “not likely to flee or pose a danger to the safety of any other person or the community if released” under conditions set forth by the Court. 18 U.S.C. § 3143(a)(1). Accordingly, Defendant must demonstrate both (1) clear and convincing evidence that he is not a flight risk or a danger to others and (2) an exceptional reason why his detention is inappropriate. See United States v. Christman, 596 F.3d 870, 870 (6th Cir. 2010) (Mem.).
As to the first requirement, Defendant argues that he will self-isolate in an “approved residence while COVID-19 containment efforts continue and as he awaits sentencing.” ECF No. 132, PageID.616. He also asserts that his location can be monitored by a GPS location device. Id. According to Defendant, these circumstances mitigate his risk of non-appearance and danger. Id. The Government contests Defendant’s assertions, emphasizing Defendant’s lack of provided location to self-isolate. ECF No. 134, PageID.630. The Government sets forth “two possible locations” for Defendant, his grandmother’s or his former girlfriend’s residences. Id. It argues that neither of these locations are suitable. Id.
The Court agrees with the Government that Defendant’s general assertions as to where he can selfisolate are insufficient to demonstrate that he would not pose a danger to the public if released. The Court recognizes that Defendant pleaded guilty to a serious drug trafficking offense, one that involves more than 100 grams of heroin and more than twenty-eight grams of crack cocaine. ECF No. 101, PageID.467. The Court also takes notice of Defendant’s extensive criminal history in his Pretrial Services Report. See ECF No. 134, PageID.629. Several of these past convictions include drug felonies. Id. Further, Defendant has committed criminal activity while under supervision. Id.
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Finally, the Court acknowledges Pretrial Services’ opinion that no additional information was presented in Defendant’s instant Motion that would indicate a change in its initial bail report. As explained above, Defendant’s initial bail report, which was prepared at the time of Defendant’s arraignment, indicates that Defendant poses both a risk of nonappearance and a risk of danger. Def’s Pretrial Services Report 9. Defendant’s suggestion for the use of location monitoring, without more, is not enough to demonstrate clear and convincing evidence that he is not a flight risk or a danger to others.
Accordingly, Defendant cannot avail himself of the exceptional circumstances under 18 U.S.C. § 3145(c). The Court need not discuss whether COVID-19 constitutes an “exceptional reason” in this case since Defendant cannot demonstrate that he would not pose a danger to the public if released. United States v. Eubanks, No. 17-20184, 2020 WL 1814090, at *2 (E.D. Mich. April 9, 2020). In sum, while the Court is concerned with the special risks that COVID-19 poses to incarcerated individuals like Defendant, the Court concludes that Defendant does not meet the necessary requirements for release under 18 U.S.C. §§ 3143(a)(2) or 3145(c).

IV. CONCLUSION For the reasons articulated above, IT IS ORDERED that Defendant’s Motion for Pretrial Release and Revocation of Detention Order is DENIED [#132].
*7 IT IS SO ORDERED.

All Citations Slip Copy, 2020 WL 1899561
End of Document

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2020 WL 2468481 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
Janet MALAM, Petitioner-Plaintiff, and
Qaid Alhalmi, et al., Plaintiff-Intervenors, v.
Rebecca ADDUCCI, et al., Respondent-Defendants.
Case No. 20-10829 |
Signed 05/12/2020
Attorneys and Law Firms
Rosana Santana Moura Garbacik, Andrew D. Stacer, Stacer, PLC, Plymouth, MI, for PetitionerPlaintiff.
Daniel S. Korobkin, Monica Cesilia Andrade, American Civil Liberties Union Fund of Michigan, Detroit, MI, Jeannie S. Rhee, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, Jonathan Silberstein-Loeb, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Miriam J. Aukerman, American Civil Liberties Union of Michigan West Michigan Regional Office, Grand Rapids, MI, for Plaintiff-Intervenor Ruby Briselda Escobar.
Daniel S. Korobkin, Monica Cesilia Andrade, American Civil Liberties Union Fund of Michigan, Detroit, MI, Jeannie S. Rhee, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, Jonathan Silberstein-Loeb, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Miriam J. Aukerman, American Civil Liberties Union of Michigan West Michigan Regional Office, Grand Rapids, MI, My Khanh Ngo, American Civil Liberties Union Foundation, San Francisco, CA, for Plaintiff-Intervenor Amer Toma.
Jeannie S. Rhee, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, for PlaintiffIntervenors Tomas Cardona Ramirez, Isaac Orta Vieyra, Guo Yan Lin Castro, Rudy Sosa Carillo, Sergio Brito, Jose Mauricio Garcia Toledo, Emanuel Rosales Borboa, Damary Rodriguez Salabarria, Qaid Alhalmi, Min Dan Zhang, Julio Fernando Medina Euceda, Baldemar Barajas Santoyo, Jose Gomez Santiz.
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Bradley Darling, U.S Department of Justice, Jennifer L. Newby, U.S. Attorney, Detroit, MI, for Respondent-Defendants.
OPINION AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AS A PRELIMINARY INJUNCTION [44]
JUDITH E. LEVY, United States District Judge
*1 This opinion marks the seventh time the Court has assessed the constitutionality of continued detention of medically vulnerable noncitizen civil detainees at the Calhoun County Correctional Facility during the pendency of the COVID-19 pandemic. The legal issues before the Court are narrow: whether four civil detainees face a high risk of irreparable injury from COVID-19, whether Defendants 1 have shown deliberate indifference to the medical needs of these Plaintiffs in crafting and implementing their response to the pandemic, and whether the public interest favors Plaintiffs’ release. So too is the relief requested: Plaintiffs do not, at this time, seek sweeping injunctive relief that would insert the Court into the day-to-day management of either U.S. Immigration and Customs Enforcement (ICE) or the Michigan Department of Corrections (MDOC); instead, Plaintiffs request the immediate release of four individuals currently detained at the Calhoun County Correctional Facility. Because the Court finds that Plaintiffs Alhalmi and Cardona Ramirez have shown a high risk of irreparable injury absent relief, a likelihood of success on the merits, and that the public interest favors their release, the Court grants a preliminary injunction ordering their immediate release. The Court orders supplemental briefing with respect to Plaintiffs Rodriguez Salabarria and Rosales Borboa’s health conditions. The Court denies Plaintiffs’ requests for additional relief not initially requested in Plaintiffs’ motion.
1 The individuals bringing this action are Petitioners for purposes of habeas relief and Plaintiffs for purposes of injunctive and declaratory relief. Those against whom the action is brought are Respondents for purposes of habeas relief and Defendants for purposes of injunctive and declaratory relief. For simplicity, the terms Plaintiffs and Defendants will be used throughout. (ECF No. 43, PageID.918.)
FACTUAL BACKGROUND
Qaid Alhalmi Plaintiff Qaid Alhalmi is a fifty-four-year-old 2 Yemeni citizen. (ECF No. 44, PageID.1022.) He was admitted to the United States on a B-2 nonimmigrant visitor visa on July 27, 1995. On July 8,
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1999, after an unsuccessful request for asylum, the Immigration and Naturalization Service (INS), the predecessor to the Department of Homeland Security, initiated removal proceedings against Alhalmi, charging him as removable from the country as a nonimmigrant overstay. (Id.) He has been detained at the Calhoun County Correctional Facility since September 17, 2019 based on a finding that Alhalmi faced a significant likelihood of removal in the reasonably foreseeable future. (ECF No. 52-1, PageID.1547.) Alhalmi suffers from Type 2 diabetes, for which he takes a daily oral medication to control blood sugar and which requires a four-times-daily blood sugar test to determine if insulin is needed. (ECF No. 57, PageID.1670.)
2 Defendants allege that Plaintiff Alhalmi is fifty-eight-years-old. (ECF No. 52-1, PageID. 1545).
Tomas Cardona Ramirez Plaintiff Tomas Cardona Ramirez is a thirty-seven-year-old citizen of Guatemala. (ECF No. 52, PageID.1515.) He was detained by ICE officers on January 31, 2020, and was charged on February 5, 2020, for being present in the United States without having been admitted or paroled. (ECF No. 52-2, PageID.1552.) Cardona Ramirez suffers from Type 1 diabetes, hypertension, and hyperlipidemia, each of which requires daily medications to control. (ECF No. 57, PageID.1670.)
Damary Rodriguez Salabarria *2 Plaintiff Damary Rodriguez Salabarria is a forty-six-year-old citizen of Cuba. (ECF No. 52, PageID.1516.) She was detained in Texas by U.S. Border Patrol on August 1, 2019. (ECF No. 52-4, PageID.1563.) On August 10, 2019, Plaintiff Rodriguez Salabarria was transferred due to a housing shortage in Texas to the Calhoun County Correctional Facility. (Id.) She suffers from hypertension, chronic gastritis, a peptic ulcer, and gastroesophageal reflux, for which she takes a daily medication for each. (ECF No. 44, PageID.1023.) Her medical records show a recent diagnosis of chronic localized mucocutaneous candidiasis, which the Court understands to be a yeast infection. (ECF No. 57, PageID.1675.) Additionally, Plaintiff Rodriguez Salabarria has a history of hospitalizations for acute pancreatitis, an appendectomy, cholecystectomy, and kidney infections. (Id.)
Emanuel Rosales Borboa Plaintiff Emanuel Rosales Borboa is a thirty-five-year-old citizen of Mexico. (ECF No. 52, PageID.1516.) On June 24, 2014, Rosales Borboa applied for—and on December 16, 2014, U.S. Citizenship and Immigraiton Services denied him—Deferred Action for Childhood Arrivals status. (ECF No. 52-5, PageID.1568.) Although he was initially released on bond on May 15,
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2017 after United States Border Patrol initiated removal proceedings on April 27, 2017 (id. at PageID.1568–1569), Rosales Borboa was subsequently arrested by the Detroit Police Department and has been in ICE custody at the Calhoun County Correctional Facility since March 10, 2020. (Id. at PageID.1569.) Rosales Borboa suffers from asthma, for which he was hospitalized for two days approximately ten years ago. (ECF No. 44, PageID.1023.) At various times, the frequency of which the parties contest, Rosales Borboa has required the use of an inhaler and steroids to control his asthma. (Id. at PageID.1024; ECF No. 64, PageID.1812.)
Defendants Plaintiffs bring suit against Rebecca Adducci, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; 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. (ECF No. 43.)
PROCEDURAL HISTORY On March 30, 2020, Petitioner Janet Malam filed an Emergency Petition for Writ of Habeas Corpus. 3 (ECF No. 1.) On April 3, 2020, the Court allowed Plaintiff-Intervenors Amer Toma and Ruby Briselda Escobar to intervene. On April 5, 2020, Plaintiffs Toma and Escobar filed an Emergency Petition for Habeas Corpus and Complaint for Injunctive Relief. (ECF No. 17.) On April 26, fifteen named Plaintiffs filed an amended class action complaint. (ECF No. 43.)
3 The Court subsequently granted Petitioner Malam’s motion for a temporary restraining order (ECF No. 23), which the Court then converted into a preliminary injunction. (ECF No. 33.)
Plaintiffs’ proposed class consists of “all noncitizens who are detained in ICE custody at Calhoun.” (Id. at PageID.994.) The putative class seeks declaratory relief that continued detention under current conditions at the Calhoun County Correctional Facility constitutes impermissible punishment under the Fifth Amendment. (Id. at PageID.999.) Named Plaintiffs additionally seek injunctive relief. (Id.)
Plaintiffs also seek certification of a subclass of “medically vulnerable individuals,” defined as “all noncitizens who are detained in ICE custody in the Calhoun County Correctional Center, and who have one or more risk factors placing them at heightened risk of severe illness or death if exposed to COVID-19.” (Id. at PageID.994–995). The subclass seeks habeas relief and declaratory relief that continued confinement at the Calhoun County Correctional Facility constitutes impermissible
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punishment and cannot guarantee reasonable safety for medically vulnerable detainees. (Id. at PageID.1000.) Named Plaintiffs Alhalmi, Cardona Ramirez, Escobar, Medina Euceda, Rodriguez Salabarria, Rosales Borboa, Toma, and Zhang additionally seek injunctive relief on this claim. (Id.)
*3 Also on April 26, 2020, six named Plaintiffs filed an emergency motion for a temporary restraining order. (ECF No. 44.) Four of these six Plaintiffs—Qaid Alhalmi, Tomas Cardona Ramirez, Damary Rodriguez Salabarria, and Emanuel Rosales Borboa—claim that because of their age and/or underlying medical conditions, their continued civil detention violates their Fifth Amendment rights by exposing them to a substantial risk of serious illness and death related to COVID-19. Accordingly, these Plaintiffs seek a temporary restraining order requiring their immediate release from confinement. (Id. at PageID.1043.) Two Plaintiffs—Julio Fernando Medina Euceda 4 and Min Dan Zhang 5 —seek alternative forms of relief. Defendants responded on April 29, 2020 (ECF No. 52), and Plaintiffs replied on May 5, 2020. (ECF No. 57.) The Court granted Defendants leave to file a sur-reply, which Defendants filed on May 6, 2020. (ECF No. 64.) On May 7, 2020, the Court held a hearing by video teleconference and heard oral argument on Plaintiffs’ motion.
4 In their May 5, 2020 reply brief, Plaintiffs informed the Court that Plaintiff Medina Euceda has been transferred to a detention center in Louisiana and is scheduled to be removed on May 11, 2020. (ECF No. 57, PageID.1670.) Plaintiffs argue that “the Court should order Defendants to provide the information as to what steps Defendants took and plan to take to prevent infection (a) during the transfer; (b) once Mr. Medina Euceda arrived in Louisiana; and (c) during removal.” (Id.)
5 In their May 5, 2020 reply brief, Plaintiffs informed the Court that Plaintiff Zhang “is no longer pursuing immediate release.” (ECF No. 57, PageID.1667.) Instead, Plaintiffs request that “the Court order that, within the next twenty-four hours, Ms. Zhang be tested for COVID-19 and seen by a physician.” (Id.)
For the reasons stated below, the Court grants a preliminary injunction requiring Plaintiffs Alhalmi and Cardona Ramirez’ immediate release from detention for the duration of the COVID-19 State of Emergency in Michigan or until further Court order. The Court orders supplemental briefing with respect to Plaintiffs Rodriguez Salabarria and Rosales Borboa’s health conditions and the applicability of a punishment standard to Plaintiffs’ claims. The Court denies Plaintiffs’ motion with respect to their requests for additional relief.
LAW AND ANALYSIS
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I. Jurisdiction In its April 6, 2020 Opinion and Order, the Court found that it had jurisdiction pursuant to 28 U.S.C. § 2441. (ECF No. 23, PageID.535.) In the alternative, the Court found that it had jurisdiction pursuant to 28 U.S.C. § 1331. (Id. at PageID.536.) The Court held that sovereign immunity did not apply (id. at PageID.544) and that no other statute deprived the Court of jurisdiction. (Id. at PageID.547.) Plaintiffs’ current motion presents the same jurisdictional questions; Defendants raise no new jurisdictional arguments. With respect to jurisdiction, the Court adopts its April 6, 2020 Opinion and Order in full.
II. Legal Standard Plaintiffs seek a temporary restraining order. (ECF No. 54.) Nonetheless, Plaintiffs gave notice to Defendants and did not seek a ruling before Defendants could respond. A temporary restraining order (TRO), which can be issued without notice to the adverse party, is meant to preserve the status quo until a court can make a reasoned resolution of a dispute. Fed. R. Civ. P. 65(b)(1);
Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996). Here, because the Defendants are on notice and the Court allowed time for extensive briefing and heard oral argument on Plaintiffs’ motion, the Court will treat the motion as one for a preliminary injunction rather than for a temporary restraining order. See Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276, at *3 (E.D. Mich. May 9, 2020) (doing the same).
“Preliminary injunctions are extraordinary and drastic remedies [ ] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir.
2015). In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction.
Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted).
III. Application *4 Because the Court finds that Plaintiffs Alhalmi and Cardona Ramirez have shown a high risk of irreparable injury absent relief, a likelihood of success on the merits, and that the public interest
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favors their release, the Court grants in part Plaintiffs’ motion. The Court orders supplemental briefing with respect to Plaintiffs Rodriguez Salabarria and Rosales Borboa’s health conditions and the applicability of a punishment standard to Plaintiffs’ claims. The Court denies Plaintiffs’ new requests for additional relief not contained within Plaintiffs’ motion.
A. Likelihood of Irreparable Injury Plaintiffs Alhalmi and Cardona Ramirez are likely to experience irreparable injury absent an injunction, both in the form of loss of health or life and in the form of an invasion of their constitutional rights. See Fofana v. Albence, Case No. 20-10869, 2020 WL 1873307, at *10 (E.D. Mich. Apr. 15, 2020) (citing Thakkur v. Doll, No. 1:20-cv-480, 2020 WL 1671563, at *8 (M.D. Pa. Mar. 31, 2020)) (“There can be no injury more irreparable than lasting illness or death.”); see also Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When constitutional rights are threatened or impaired, irreparable injury is presumed.”)
1. Loss of Health or Life from COVID-19 In five prior opinions in this case, the Court has held that although there was then no current COVID-19 outbreak at the Calhoun County Correctional Facility, noncitizen civil detainees nonetheless face a high risk of infection from COVID-19 in the coming weeks, months, and possibly years. (See ECF Nos. 23 (granting Petitioner Malam TRO), 29 (granting Plaintiff Toma TRO), 33 (converting Malam TRO into preliminary injunction), 41 (converting Toma TRO into preliminary injunction)); Zaya v. Adducci, Case No. 20-10921, 2020 WL 1903172 (E.D. Mich. Apr. 18, 2020) (granting Petitioner Zaya TRO). Evaluating the significant body of public health, medical, and other evidence on the record regarding the pandemic, the Court concluded that “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as [Plaintiffs] within the CCCF facility.” (ECF No. 23, PageID.559.)
On May 11, 2020, counsel for Defendants informed the Court by email that one detainee at the Calhoun County Correctional Facility has tested positive for COVID-19. According to counsel, the detainee was quarantined at intake and was isolated when he became symptomatic. For Plaintiffs, the emergence of COVID-19 at the Calhoun County Correctional Facility transforms a generalized yet substantial risk into a specific and immediate risk.
The rapid rise in COVID-19 cases within ICE detention centers since the Court first ruled on this issue further demonstrates the risk to Plaintiffs: on April 4, 2020, ICE had confirmed thirteen cases
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of COVID-19 among immigration detainees and seven cases among detention center employees (ECF No. 23, PageID.553); despite precautionary measures, as of May 12, 2020, 881 immigration detainees have tested positive (of 1,736 tested detainees), while ICE has confirmed forty-two cases of COVID-19 among detention center employees. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus (updated May 12, 2020 at 5:40pm). This exponential growth represents a doubling rate of approximately six days.
*5 The number of COVID-19 cases in detention facilities nationwide further highlights the stark reality that communal confinement, even with the precautions Defendants have employed, creates a significant risk of COVID-19 infection. Although the serious outbreak at the Cook County Jail—quickly recognized as the then single greatest source of COVID-19 infections in the United States, see Timothy Williams & Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, NY Times (Apr. 8, 2020), nytimes.com/2020/04/08/us/coronaviruscook-county-jail-chicago.html—does not directly increase the risk to Petitioner, it shows how a pandemic can sweep into communal detention environments despite precautionary measures being taken prior to any confirmed cases. See Sheriff Dart Expands Precautionary Measures for COVID-19 at Cook County Department of Corrections, Cook County Sheriff’s Office (Mar. 12, 2020), https://www.cookcountysheriff.org/sheriff-dart-expands-precautionary-measures-forcovid-19-at-cook-county-department-of-corrections (noting significant precautionary measures similar to those at Calhoun County Correctional Facility); Update on Efforts to Reduce Population at Cook County Jail and Ongoing Precautions to Prevent COVID-19, Cook County Sheriff’s Office (Mar. 18, 2020), https://www.cookcountysheriff.org/update-on-efforts-to-reducepopulation-at-cook-county-jail-and-ongoing-precautions-to-prevent-covid-19 (noting expansion of precautionary measures). Despite precautionary measures, cases of COVID-19 among inmates in the Cook County Jail exploded from two to 167 in eight days. (ECF No. 29, PageID.635.) Likewise, on April 1, 2020, the Rikers Island jail complex’s chief physician acknowledged that “infections are soaring” despite the facility’s “following Centers for Disease Control and Prevention guidelines and having moved mountains to protect our patients.” Miranda Bryant, Coronavirus Spread at Rikers is a ‘Public Health Disaster’, Says Jail’s Top Doctor, The Guardian (Apr. 1, 2020), https://www.theguardian.com/us-news/2020/ apr/01/rikers-islandjailcoronavirus-public-health-disaster. As of mid-April, the nationwide curve of COVID-19 infections among Federal Bureau of Prison inmates showed no sign of flattening, again despite significant precautionary measures. See Walter Pavlo, Federal Bureau of Prisons Institutions Not Showing Any Signs of “Flattening Curve,” Forbes (Apr. 15, 2020), https://www.forbes.com/sites/walterpavlo/2020/04/15/federal-bureauofprisonsinstitutions-not-showing-any-signs-offlatteningcurve/#46f2999f54dd.
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The Court commends Defendants for taking what precautions they have, but the record before the Court indicates that at the Calhoun County Correctional Facility, precautionary measures may exist as policy only. Plaintiffs submit the declaration of Dr. Homer Venters, a physician, internist and epidemiologist with over a decade of experience in providing, improving, and leading health services for incarcerated people. (ECF No. 44-4.) Dr. Venters, having reviewed the declarations of Plaintiffs’ attorneys, finds that Plaintiffs’ experiences at the Calhoun County Correctional Facility show that adequate social distancing remains impossible, access to sanitation and personal protective equipment is scarce, rules regarding the use of masks for staff are lax or nonexistent, and ICE and MDOC are testing neither asymptomatic detainees nor all detainees who present with symptoms. (ECF No. 44-4, PageID.1092–1094.) The widespread lack of testing is of particular concern given that COVID-19 can spread through asymptomatic transmission. Of the 3,277 inmates who tested positive for COVID-19 in Arkansas, North Carolina, Ohio, and Virginia, ninety-six percent were asymptomatic. Linda So & Grant Smith, In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus -- 96% Without Symptoms, Reuters (Apr. 25, 2020), https://www.reuters.com/article/us-healthcoronavirus-prisons-testing-in/in-four-u-s-stateprisons-nearly-3300-inmates-test-positive-for-coronavirus-96-withoutsymptomsidUSKCN2270RX. The Calhoun County Correctional Facility’s s failure to successfully implement even general precautionary measures increases the risk of COVID-19 infection to all Plaintiffs.
For Plaintiffs Alhalmi and Cardona Ramirez, this high risk of infection constitutes a high risk of irreparable injury in the form of loss of health or life absent injunctive relief. For Plaintiffs Rosales Borboa and Rodriguez Salabarria, the Court orders supplemental briefing on their underlying health conditions.
Plaintiffs Alhalmi and Cardona Ramirez Alhalmi suffers from Type 2 diabetes, for which he takes a daily oral medication to control blood sugar and a four-times-daily blood sugar test to determine if he needs insulin. (ECF No. 57, PageID.1670.) Cardona Ramirez suffers from Type 1 diabetes, hypertension, and hyperlipidemia, each of which requires daily medications to control. (ECF No. 57, PageID.1670.) The CDC recognizes diabetes as a risk factor that increases risk of serious complications from COVID-19, including death. See Groups at Higher Risk for Severe Illness, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-athigher-risk.html (last reviewed Apr. 17, 2020). Dr. Venters concludes that both Plaintiffs Alhalmi and Cardona Ramirez are at “a high risk of severe illness or death if [they contract] COVID-19.” (ECF No. 44-1, PageID.1091–1092.) Defendants do not contest that Plaintiffs Alhalmi and Cardona Ramirez have established that their pre-existing medical conditions place
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them at a serious risk of substantial harm from COVID-19. (ECF No. 52, PageID.1529 (arguing only that Plaintiffs “Euceda, Salabarria, Borboa, and Zhang fail to establish they have a substantial risk of serious harm from exposure to COVID-19”).)
*6 The Court concludes that because of their diabetes, both Plaintiffs Alhalmi and Cardona Ramirez are at sufficiently heightened risk of severe complication from COVID-19 such that a high risk of exposure translates into high risk of irreparable injury. Because Plaintiff Alhalmi’s diabetes is sufficient to find that a high risk of COVID-19 infection constitutes a high risk of irreparable injury in the form of severe illness or death, the Court need not address the extent to which Alhalmi’s age further increases the risk of irreparable injury.
Plaintiff Rodriguez Salabarria Plaintiff Rodriguez Salabarria suffers from hypertension, chronic gastritis, a peptic ulcer, and gastroesophageal reflux, for which she takes a daily medication for each. (ECF No. 44, PageID.1023.) Her medical records show a recent diagnosis of chronic localized mucocutaneous candidiasis (CMC). (ECF No. 57, PageID.1675.) Additionally, she has a history of hospitalizations for acute pancreatitis, an appendectomy, cholecystectomy, and kidney infections. (Id.) Dr. Venters, upon reviewing Plaintiff’s medical records, concluded that she is “at elevated risk of serious illness or death from COVID-19 based on the CDC guidelines.” (ECF No. 57-2, PageID.1695.) In particular, Dr. Venters found that “the CDC has identified both hypertension and conditions that can cause a person to be immunocompromised to put a person at higher risk of illness severity and outcomes from COVID-19.” (Id. at PageID.1694.)
The record does not support a finding that Plaintiff’s chronic gastritis, peptic ulcer, gastroesophageal reflux, history of hospitalizations, or CMC increase her risk of severe complications from COVID-19. Dr. Venters, without citation to CDC guidance or any other medical study, broadly concluded that Plaintiff Salabarria’s “medical conditions place her at a high risk of severe illness or death if she contracts COVID-19.” (ECF No. 44-4, PageID.1092.) In his supplemental declaration, Dr. Venters pointed only to Plaintiff’s hypertension and CMC as being risk factors: “the CDC has identified both hypertension and conditions that can cause a person to be immunocompromised to put a person at higher risk of illness severity and outcomes from COVID-19.” (ECF No. 57-2, PageID.1694.) Absent guidance from the CDC or another public health source that chronic gastritis, peptic ulcer, gastroesophageal reflux, and a history of hospitalizations constitute risk factors, Plaintiffs must provide more than this conclusory statement that Plaintiff Rodriguez Salabarria is at increased risk from these conditions.
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With respect to Plaintiff’s CMC, Dr. Venters declared that “CMC involves an abnormal, localized reaction of immune cells and requires evaluation for an underlying problem with the immune system that may be more widespread.” (ECF No. 57-2, PageID.1694.) Dr. Venters’ conditional language—that an evaluation may show a more widespread problem with the immune system— does not support a finding that Plaintiff is immunocompromised.
Accordingly, the Court will assess whether Plaintiff’s hypertension increases her risk of severe complication from COVID-19 such that a high risk of exposure constitutes a high risk of irreparable injury.
*7 Defendants argue that the evidence does not show that Plaintiff’s hypertension increases her risk of serious complications from a COVID-19 infection. As Defendants note, the CDC recognizes “pulmonary hypertension,” but not general hypertension, as a “serious heart condition.” See Groups at Higher Risk for Severe Illness, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-athigher-risk.html (last reviewed Apr. 17, 2020). At best, evidence regarding non-pulmonary hypertension is unclear. In another publication, the CDC has referred to general hypertension as a risk factor. See Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12– March 28, 2020, Centers for Disease Control and Prevention (Apr. 3, 2020), https://www.cdc.gov/ mmwr/volumes/69/wr/mm6913e2.htm. On May 9, 2020, the Honorable David M. Lawson held that non-pulmonary hypertension constituted a risk-factor for severe negative outcomes from COVID-19. Perez-Perez, 2020 WL 2305276, at *8. But on a March 27, Georgina Peacock, the lead of the CDC’s COVID-19 Response At-Risk Task Force, described the following with respect to hypertension: “We do have observational knowledge that there is an increased risk with hypertension, but we don't know whether having hypertension alone does increase that risk for severe illness from COVID-19 ... We are working to understand whether hypertension is an independent risk factor.” Caralyn Davis, CDC: Protect Staff With Underlying Conditions Against COVID-19, iAdvance Senior Care (Apr. 7, 2020), https://www.iadvanceseniorcare.com/ cdc-protect-staff-with-underlying-conditions-against-covid-19/.
The Court cannot conclude, based on the record, that Plaintiff Rodriguez Salabarria’s hypertension increases her risk of severe complications such that a high risk of exposure to COVID-19 constitutes a high risk of irreparable injury absent an injunction. Nonetheless, the Court is concerned about the public health data suggesting that hypertension is the single most frequent comorbidity 6 for patients hospitalized from COVID-19. See Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 — COVID-NET, 14 States, March 1–30, 2020, Centers for Disease Control and Prevention (Apr.
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17, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm (identifying hypertension as most common underlying condition in adult patients hospitalized from COVID-19); Safiya Richardson et al., Presenting Characteristics, Comorbidities, and Outcomes Among 5700 Patients Hospitalized With COVID-19 in the New York City Area, J. of the Am. Medical Ass'n (last updated Apr. 24, 2020), https://jamanetwork.com/journals/jama/articlepdf/2765184/jama_richar dson_2020_oi_200043.pdf (identifying same).
6 At oral argument, counsel for Defendants argued that “comorbidity” in this instance referred not to the simultaneous presence of COVID-19 and hypertension, but rather to the presence of hypertension and another underlying health condition alongside COVID-19. The Court does not share Defendants’ understanding of this term, and it reads the medical evidence to show that for patients hospitalized with COVID-19, hypertension was the most frequently occurring underlying health condition, with or without any other underlying health conditions.
Accordingly, the Court will order supplemental briefing on whether Plaintiff’s hypertension places her at increased risk of severe illness and/or death from a COVID-19 infection. The parties should focus their briefing on medical and scientific evidence released after March 27, 2020. The parties may also provide additional briefing on Plaintiff’s medical history and other underlying conditions.
Plaintiff Rosales Borboa Plaintiff Rosales Borboa suffers from asthma, for which he was hospitalized for two days approximately ten years ago. (ECF No. 44, PageID.1023.) At various times, the frequency of which the parties contest, Rosales Borboa has required the use of an inhaler and steroids to control his asthma. (Id. at PageID.1024; ECF No. 64, PageID.1812.)
The CDC explains that moderate to severe asthma increases the risk of severe illness and/ or death from COVID-19. People with Moderate to Severe Asthma, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/ asthma.html (last updated Apr. 2, 2020). The parties disagree as to whether Plaintiff Rosales Borboa’s asthma is moderate to severe.
*8 Plaintiffs allege that “[t]o treat his asthma, Mr. Rosales Borboa was prescribed an Albuterol inhaler, which he used multiple times per week prior to his detention, and Prednisone, an immunosuppressant medication used to treat breathing problems.” (ECF No. 57, PageID.1676.) According to Dr. Venters, “[t]he frequency with which [Plaintiff Rosales Borboa] relies on his inhaler, and the recent need for oral steroids indicates that his asthma is not well controlled.” (ECF No. 57-2, PageID.1692.) Dr. Venters implies but does not conclude that asthma which is not
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well controlled is moderate to severe. (Id.) Defendants argue that “while detained for the last two months, he has not had any treatment for asthma, nor has he requested any.” (ECF No. 64, PageID.1812.) Moreover, Defendants explain that “Borboa’s asthma, as he stated at intake, is situational when he plays sports or gets too warm.” (Id.)
Critically, neither party provides a definition, medical or otherwise, of the phrase “moderate to severe.” The Court cannot apply traditional modes of statutory interpretation to discern the medical meaning of “moderate to severe,” and therefore the Court cannot make a finding with respect to the severity of Rosales Borboa’s asthma. Accordingly, the Court will order supplemental briefing on the meaning of “moderate to severe” and whether Plaintiff’s asthma qualifies as such. The parties may also address Plaintiff’s medical history and any other underlying health conditions.
2. Violation of Constitutional Rights Plaintiffs Alhalmi and Cardona Ramirez have additionally shown a high risk of irreparable injury in the form of infringement on their Fifth Amendment rights. Plaintiffs argue that “because of their underlying medical conditions which make them especially susceptible to severe infection from COVID-19, [they] confront immediate danger in violation of their Due Process rights.” (ECF No. 44, PageID.1042.) The finding that a constitutional violation is likely is sufficient for a court to find irreparable harm. See also Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When constitutional rights are threatened or impaired, irreparable injury is presumed.”); Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)); see also Rhinehart v. Scutt, 408 F. App'x 510, 514 (6th Cir. 2018) (suggesting that allegations of “continuing violation of ... Eighth Amendment rights” would trigger a finding of irreparable harm).
Below, the Court finds Plaintiffs Alhalmi and Cardona Ramirez are likely to succeed on the merits of their Fifth Amendment claim. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”)
Because the success of Plaintiffs’ Fifth Amendment claim hinges on the extent to which Plaintiffs’ underlying health conditions put them at increased risk of severe illness and/or death from COVID-19, the Court will determine whether Plaintiff Rodriguez Salabarria and Rosales Borboa have shown irreparable injury in the form of deprivation of their Fifth Amendment rights upon receiving the parties’ supplemental briefing.
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B. Likelihood of Success on the Merits Plaintiffs bring a claim for “Violation of Fifth Amendment Right to Substantive Due Process: Impermissible Punishment and Inability to Ensure Reasonable Safety For the Medically Vulnerable.” (ECF No. 43, PageID.1000.) Because the Court orders supplemental briefing with respect to Plaintiff Rodriguez Salabarria and Rosales Borboa’s health conditions, the Court will address the likelihood of success on the merits only with respect to Plaintiffs Alhalmi and Cardona Ramirez.
1. Legal Standard *9 The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend. V. The protection applies to “all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
a. Punishment or Deliberate Indifference Plaintiffs claim that their continued confinement violates their Fifth Amendment rights both as a form of “impermissible punishment” and for its “inability to ensure reasonable safety.” (ECF No. 43, PageID.1000.) In Bell v. Wolfish, the Supreme Court held that “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” 441 U.S. 520, 535 (1979). The Court explained that “if a restriction or condition is not reasonably related to a legitimate goal–if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees.” Id. at 539. In Helling v. McKinney, the Supreme Court held that the Eighth Amendment guarantees inmates “reasonable safety.” 509 U.S. 25, 34 (1993). The Sixth Circuit has held that “pretrial detainees have a right to adequate medical treatment that is analogous to the Eighth Amendment rights of prisoners,” Watkins v. City of Battle Creek, 273 F.3d 682, 685–86 (6th Cir. 2001), and, accordingly, this type of Fifth Amendment claim is analyzed “under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metropolitan Gov't, 709 F.3d 563, 568 (6th Cir. 2013). Eighth Amendment claims require a showing of deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 835 (1994).
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The Court has previously analyzed identical claims under only the deliberate indifference standard. In converting Petitioner Malam’s temporary restraining order into a preliminary injunction, the Court reasoned:
The Eighth Circuit in Butler found that the deliberate indifference test, not the freedom from punishment test, applied to a plaintiff’s claim challenging the adequacy of precautionary measures to reduce the risk of infection: “The governmental duty to protect at issue in this case is not based on a pretrial detainee's right to be free from punishment but is grounded in principles of safety and general well-being.” 465 F.3d at 344. The court cited to the Supreme Court in DeShaney v. Winnebago County Dept. of Soc. Serv., which held: [“][W]hen 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 and the Due Process Clause.[”] 489 U.S. 189, 200. The deliberate indifference standard applies in this case.
(ECF No. 33, PageID.724–725.)
Importantly, however, the Court also noted that because Petitioner Malam was likely to succeed on her deliberate indifference claim, “the Court need not determine whether the freedom from punishment standard also applies, and if it does, whether and to what extent it differs from the deliberate indifference standard.” (Id. at PageID.725.)
*10 For the same reasoning reproduced above, the Court will analyze Plaintiffs’ claim through the lens of deliberate indifference. However, the Court will order supplemental briefing on whether and to what extent a freedom from punishment standard applies to Plaintiffs’ claims independent of a deliberate indifference standard.
b. Objective and Subjective Components Additionally, there remains an open question as to what the deliberate indifference standard requires Plaintiffs to show. In Villegas, the Sixth Circuit recognized that under Farmer v. Brennan, deliberate indifference requires a showing of an objective substantial risk of serious harm and a subjective culpable mental state. Villegas v. Metro. Gov't, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)). In 2016, the Supreme Court held that a pretrial detainee raising a Fourteenth Amendment excessive force claim satisfied his burden by showing “the force purposely or knowingly used against him was objectively unreasonable,” without regards to the mental state of any prison official. Kingsley v. Hendrickson, 135 S.
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Ct. 2466, 2473 (2015). In Richmond v. Huq, the Sixth Circuit held that “this shift in Fourteenth Amendment deliberate indifference jurisprudence calls into serious doubt whether [a plaintiff] need even show that the individual defendant-officials were subjectively aware of [the plaintiff’s] serious medical conditions and nonetheless wantonly disregarded them.” 885 F.3d 928, 938 n.3 (6th Cir. 2018). And in Martin v. Warren Cty., the Sixth Circuit reiterated that “[w]hether an objective standard applies to pretrial detainee claims of deliberate indifference and what the standard entails are open questions.” No. 19-5132, 2020 WL 360436, at *4 n.4 (6th Cir. Jan. 22, 2020), reh'g denied (Feb. 4, 2020).
Despite this uncertainty, the Sixth Circuit has applied both objective and subjective analysis to deliberate indifference claims in at least two cases post-Kingsley. See J.H. v. Williamson Cty., 951 F.3d 709, 717, 722–23 (applying an objective test for solitary confinement claim but two-part objective and subjective test for deliberate indifference claim); Winkler v. Madison Cty, 893 F.3d 877 (2018) (applying two-part standard for deliberate indifference claim without citing Kingsley). The Court is unaware of any Sixth Circuit precedent applying Kingsley to hold that a deliberate indifference claim only requires an objective component. Absent more guidance from the Sixth Circuit, the Court will require Plaintiffs to show both the objective and subjective components of a deliberate indifference claim.
2. Objective Component The objective component of a deliberate indifference claim is satisfied by showing that “absent reasonable precautions, an inmate is exposed to a substantial risk of serious harm.” Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (citing Amick v. Ohio Dep't of Rehab. & Corr., 521 F. App'x. 354, 361 (6th Cir. 2013)).”
Above, the Court found that Plaintiffs Alhalmi and Cardona Ramirez showed a high risk of irreparable injury in the form of severe illness and/or death from COVID-19 absent an injunction. The Court need not dwell on the distinctions between a high likelihood of irreparable harm and a substantial risk of serious harm—to the extent the former comes in the form of a risk to health or life, it satisfies the latter.
*11 Nonetheless, Defendants raise three arguments as to why Plaintiffs cannot satisfy the objective component.
i. Imminence
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Defendants argue that the risk of infection—regardless of its magnitude—cannot justify a finding that Plaintiffs will succeed on the merits because the risk is not imminent. Defendants point to the Supreme Court in Helling v. McKinney, on which this Court has previously relied. 509 U.S. 25 (1993). Defendants argue that Helling “requires that in order to pursue a constitutional claim for a future harm, the danger must be ‘sufficiently imminent.’ ” (ECF No. 52, PageID.1524 (citing
Helling, 509 U.S. at 33-34).) In Defendants’ words,
Although the Court did not require the plaintiff to show actual adverse effects from the secondhand smoke, it did require actual exposure to the allegedly harmful condition.... Nowhere in the decision did the Helling Court hold potential exposure to disease sufficient to establish standing for a constitutional violation, particularly where the risk of exposure would differ little from the risk if released.
(ECF No. 52, PageID.1525 (citation omitted).)
Defendants made this argument at a time when “there [were] no confirmed cases of COVID-19 at Calhoun.” (ECF No. 52, PageID.1525.) But as of May 11, 2020, Calhoun County Correctional Facility has at least one confirmed case of COVID-19. Moreover, given the percentage of asymptomatic COVID-19 cases and the virus’ incubation period of up to fourteen days, Defendants cannot reasonably assert that the outbreak is—or will continue to be—limited to a single case. This change in factual circumstances alone is enough to rebut Defendants’ argument.
But even if the Court were to find that a confirmed case of COVID-19 within the correctional facility did not constitute an imminent risk of exposure, Defendants misread Helling in two ways. First, they are wrong to insist that Helling “require[s] actual exposure.” Helling dealt with a prisoner who faced actual exposure to secondhand smoke at the time he filed his complaint. The question of whether potential or future exposure would similarly be sufficient to state a claim was not at issue in the case. Accordingly, nowhere did the Helling Court hold potential exposure to a disease insufficient to establish standing for a constitutional violation.
Second, and to the contrary, the Helling opinion does suggest that potential exposure to a future harm would be—and is here—sufficient to state a constitutional claim and support a finding of irreparable injury. As Helling states, “a remedy for unsafe conditions need not await a tragic event,”
Helling, 509 U.S. at 33. The Helling Court cited favorably to Gates v. Collier, a Fifth Circuit opinion addressing when the risk of future injury was sufficient to state an Eighth Amendment
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claim. 509 U.S. at 34. In Gates, the court held that a prison’s insufficient inventory of firefighting equipment constituted an Eighth Amendment violation. 501 F.2d 1291 (5th Cir. 1974). The court noted that “[a]t most camps there is a lack of adequate firefighting equipment making it, as stated by the Penitentiary Superintendent, ‘almost impossible to put out a fire at [the detention facility] with the present water system and the present fire-fighting equipment.’ ” Id. at 1301. It would almost be absurd to suggest that a prisoner would have needed to wait for a fire to break out in the facility prior to being able to allege irreparable injury. Instead, the Gates court recognized that the risk of fire itself was enough.
*12 So too here. COVID-19 does not respect prison walls. The raging global pandemic outside of Calhoun County Correctional Facility and a confirmed case within the facility pose a serious risk to those inside. Accordingly, the Court concludes again that the risk of COVID-19 infection to Plaintiffs Alhalmi and Cardona Ramirez constitutes a substantial risk of serious harm.
ii. Compliance with Policies At oral argument, Defendants argued that the Court should not consider any failure of the Calhoun County Correctional Facility to implement CDC or ICE Guidance when determining whether Plaintiffs have shown the objective component of their deliberate indifference claim. If Plaintiffs were challenging only the issuance of Defendants’ policy as deliberately indifferent, Defendants’ argument might have merit. But Plaintiffs’ challenge is broader than contesting ICE guidance: Plaintiffs challenge their continued detention on the grounds that no conditions of confinement can guarantee their reasonable safety. Accordingly, the question for the Court is not whether Defendants have been deliberately indifferent to Plaintiffs’ health in creating COVID-19-related policies and precautions, but whether Defendants, who do not argue that Plaintiffs pose a danger to the community or would be flight risks, have been deliberately indifferent to Plaintiffs’ medical needs by failing to release them given the actual conditions at the Calhoun County Correctional Facility. Accordingly, the exact level of the risk at the correctional facility, as informed by the level of compliance with any precautionary policies, goes both to the nature of the harm faced by Plaintiffs and to Defendants’ state of mind in declining to release them.
iii. Society’s Tolerance of Risk to Plaintiffs Defendants properly note that in addition to weighing the seriousness of the risk faced by Plaintiffs, the Court must also “ ‘assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency’—that is, it ‘is not one that today’s society chooses to tolerate.’ ” Villegas v. Metro. Gov't, 709 F.3d at 568-69 (citing Helling v. McKinney, 509 U.S. 25, 36 (1993)). Defendants argue that “where society is beginning to reduce
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restrictions and subject society-at-large to that same risk of exposure to COVID-19,” Plaintiffs may not be able to satisfy this requirement. (ECF No. 64, PageID.1814.)
Defendants argument is misguided. First, significant portions of the country remain on lockdown. In Michigan, where Plaintiffs are detained and which now reports a total of 48,021 COVID-19 cases and 4,674 deaths from COVID-19, see Michigan Data, Michigan.gov, https:// www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html (last updated May 12, 2020), Governor Gretchen Whitmer recently extended the Stay Home, Stay Safe executive order, under which Michigan residents “must not leave their homes except to run critical errands, to engage in safe outdoor activities, or to go to specified jobs,” until May 28, 2020. Governor Whitmer Extends Stay Home, Stay Safe Order, Reopens Manufacturing as Part of Her MI Safe Start Plan, Michigan.gov (May 7, 2020), https://www.michigan.gov/ whitmer/0,9309,7-387-90487-528452--,00.html.
*13 Second, even where restrictions have been relaxed more broadly, there are continued protections for medically vulnerable people. Although Georgia’s shelter-in-place order expired for most Georgia residents on April 30, 2020, Governor Brian Kemp issued a new executive order “requiring medically fragile and elderly Georgians to continue to shelter in place through June 12, 2020.” Gov. Kemp Extends Protections for Vulnerable Georgians, Releases Guidance for Businesses, Georgia.gov (Apr. 30, 2020), https://gov.georgia.gov/press-releases/2020-04-30/ gov-kemp-extends-protections-vulnerable-georgians-releases-guidance. Additionally, Governor Kemp ordered “long-term care facilities – including nursing homes, personal care homes, assisted living facilities, and similar community living homes – to utilize enhanced infection control protocols, ensure safer living conditions, and protect residents and staff from coronavirus exposure.” Id.
Finally, Plaintiffs are not at “the same risk of exposure” to COVID-19 as the general population. Plaintiffs are currently in communal confinement. As previously set forth, “in the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as [Plaintiffs] within the CCCF facility.” (ECF No. 23, PageID.559.)
Defendants cannot show that society would tolerate Plaintiffs’ exposure to COVID-19. To suggest that the public would tolerate this risk demeans Plaintiffs’ dignity and humanity.
3. Subjective Component
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The subjective component is demonstrated by showing that “(1) the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner, (2) the official did in fact draw the inference, and (3) the official then disregarded that risk.” Richko, 819 F.3d at 915–16 (citing Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)). “Because government officials do not readily admit the subjective component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence....” Id. at 916 (citing Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)). Additionally, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
Defendants do not contest that Plaintiffs have satisfied the first two prongs of Richko’s subjective component test. The magnitude of the risk from COVID-19 to Plaintiffs Alhalmi and Cardona Ramirez, considering their underlying health conditions, leads the Court to conclude that it is obvious and, consequently, that Defendants are aware of it.
Instead, Defendants argue that because they are responding reasonably to the COVID-19 pandemic, they cannot be said to have disregarded the risk to Plaintiffs. (ECF No. 52, PageID.1533.) Because Defendants have not taken specific precautions to protect medically vulnerable detainees, the Court finds that Defendants have acted unreasonably and have disregarded the risk of COVID-19 to Plaintiffs Alhalmi and Cardona Ramirez.
Since Defendants first filed a brief in this case on April 3, 2020, they have argued that the reasonability of their response precludes their liability. (See ECF No. 11, PageID.180 (“[T]he government has not been deliberately indifferent and instead has taken reasonable precautions to reduce the risk.”).) Defendants argue that “the [C]onstitution does not require or allow judicial inquiry to determine the optimal policy that ICE can employ, assuming no resource constraints or competing governmental interests and priorities, to eliminate risk to Petitioners. The [C]onstitution only requires the precautions taken to be ‘reasonable’ under a deliberate indifference analysis.” (ECF No. 52, PageID. 1537)
*14 Defendants rely on two Circuit Court cases for this proposition. See Wooler v. Hickman Cty., 377 F. App'x 502, 503 (6th Cir. 2010) (finding “consistent efforts to reduce [the] risk” of contagion of an infectious skin disease precluded “a finding of deliberate indifference”); Butler v. Fletcher, 465 F.3d 340, 345-46 (8th Cir. 2006) (finding precautions to mitigate the risk of tuberculosis reasonable, even if there were other reasonable measures that could have been taken).
The Court has previously found Wooler and Butler distinguishable
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because of the scope of the situation today. COVID-19 is neither MRSA nor tuberculosis. Wooler and Butler suggest precautions can reasonably mitigate the risk of tuberculosis or MRSA in conditions of communal confinement. COVID19 is a global pandemic of unparalleled scope, and the public health evidence available to the Court suggests that communal confinement cannot ensure detainees reasonable safety from infection.
(ECF No. 33, PageID.702.)
Defendants’ argument fails for the same reason that their argument regarding risk of irreparable injury fails: a reduction in risk does not automatically render Defendants’ response reasonable. Instead, Plaintiffs have provided extensive evidence that the reduction in risk is insufficient for the precautions to be deemed reasonable with respect to medically vulnerable detainees 7 : Dr. Venters explains,
The April 10 ERO Pandemic Response Requirements appear to identify patients at high-risk of serious illness from COVID-19 for the purpose of docket review, but critically fail to encourage or require any higher level of protection that facility officials must provide these detainees in order to protect them from contracting COVID-19.
(ECF No. 44-4, PageID. 1085); Dr. Jonathan Golob, Assistant Professor at the University of Michigan School of Medicine specializing in infectious diseases and internal medicine, writes that
vulnerable people ... living in an institutional setting, such as a prison, or jail, or an immigration detention center, with limited access to adequate hygiene facilities, limited ability to physically distance themselves from others, and exposure to potentially infected individuals from the community are at grave risk of severe illness and death from COVID-19.
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(ECF No. 44-2, PageID. 1052); Dr. Robert Greifinger, a physician with more than thirty years of experience specific to correctional facilities, declares that
ICE’s response has made abundantly clear that they do not plan to establish special protections for high-risk patients, instead waiting for them to become symptomatic. This will lead to unnecessary illness and death for the people most vulnerable to this disease. ICE is walking willingly into a preventable disaster by keeping high-risk and vulnerable patients in detention facilities during the rapid spread of COVID-19.... In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.
(ECF No. 44-3, PageID. 1064–1065); Dora Schriro, a civil servant with significant correctional and immigration experience, including as former Senior Advisor to DHS Secretary Janet Napolitano, opines that
[b]ased on my experience at DHS, ICE exercises discretion to release or decline to detain medically vulnerable individuals, even when those individuals are, per statute, mandatorily detained. Regardless of statute, ICE has the capacity to, and in fact does, release medically vulnerable individuals when necessary for public health.
*15 (ECF No. 44-5, PageID.1161.) She concludes that “best correctional and correctional health care practice requires, at a minimum, the preemptive release of individuals who are at-risk of serious illness or death if they become infected with COVID-19.” (Id. at PageID.1169.)
7 In limiting its finding of Defendants’ mental state with respect to medically vulnerable detainees, the Court does not hold at this time that Defendants’ precautions are a reasonable response to the risk posed to the general population. The Court will consider that question should it find that Plaintiffs Rodriguez Salabarria and Rosales Borboa are not at heightened risk of serious illness and/or death from COVID-19 or when it is otherwise presented to the Court for adjudication.
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As the extensive body of public health evidence on the record clearly demonstrates, a failure either to implement precautions specific to medically vulnerable detainees or to release them constitutes an unreasonable response.
Defendants point to recent Fifth and Eleventh Circuit opinions to show that the record nonetheless does not include evidence of deliberate indifference. In Valentine v. Collin, the Fifth Circuit stayed a district court’s preliminary injunction requiring a correctional facility to impose specific precautionary measures against COVID-19. No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) The court held,
Though the district court cited the Defendants’ general awareness of the dangers posed by COVID-19, it cited no evidence that they subjectively believe the measures they are taking are inadequate. To the contrary, the evidence shows that TDCJ has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus.... Although the district court might do things differently, mere “disagreement” with TDCJ’s medical decisions does not establish deliberate indifference.
Id. at *4 (citations omitted). The court concluded that in finding objectively “inadequate measures as dispositive of the Defendants’ mental state,” “the district court ... collapsed the objective and subjective components of the Eighth Amendment inquiry.”
In Swain v. Junior, the Eleventh Circuit cited to Valentine and stayed a similar injunction on the grounds that “the district court cited no evidence to establish that the defendants subjectively believed the measures they were taking were inadequate.” No. 20-11622, 2020 WL 2161317, at *4 (11th Cir. May 5, 2020).
Contrary to Defendants’ suggestion and distinct from Valentine and Swain, the record before the Court demonstrates that Defendants are aware that medically vulnerable detainees require additional protection, but nonetheless have declined to act. “Because government officials do not readily admit the subjective component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence....” Richko, 819 F.3d at 916 (citing Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)).
At the Court’s May 7, 2020 videoconference hearing, Defendants conceded that they have not implemented any policies specific to the protection of medically vulnerable detainees, arguing
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instead that general precautionary measures serve to protect the higher risk population. CDC guidance for correctional and detention facilities does not address the specific needs of medically vulnerable detainees; it only notes that “[i]f 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.” 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/ correction-detention/guidance-correctional-detention.html (last reviewed May 7, 2020). Nor does ICE guidance fill the gap; to the extent that ICE Guidance addresses medically vulnerable detainees, it contemplates considering release as an option:
*16 Upon being informed of a detainee who may potentially be at higher risk for serious illness from exposure to COVID-19, ERO will review the case to determine whether continued detention is appropriate. ICE will make such custody determinations on a case-by-case basis, pursuant to the applicable legal standards, with due consideration of the public health considerations implicated.
(ECF No. 52-7, PageID.1591.) Indeed, as of April 16, 2020, ICE had released almost 700 noncitizen civil detainees nationwide. Matt Katz, ICE Releases Hundreds of Immigrants as Coronavirus Spreads in Detention Centers, NPR (Apr. 16, 2020) https://www.npr.org/sections/coronavirus-live-updates/2020/04/16/835886346/icereleases-hundreds-as-coronavirus-spreads-in-detention-centers.
On the one hand, Defendants are aware of the heightened risk posed by COVID-19 to medically vulnerable detainees, and as such ICE has already released hundreds of people from ICE custody. On the other, Defendants have not—and seemingly will not—adopt precautions specific to this vulnerable population that public health evidence shows to be necessary. And despite five opportunities to do so in this case alone, Defendants have not provided the Court with the declarations of any medical professional or public health expert who can reconcile these two conflicting positions. As Defendants explained in another case challenging the constitutionality of civil detention at the Calhoun County Correctional Facility, “In issuing guidance, ICE relied on epidemiologists and also convened a working group between medical professionals, disease control specialists, detention experts, and field operators to identify additional enhanced steps to minimize the spread of the virus.” Zaya v. Adducci, Case No. 20-10921 (E.D. Mich. Apr. 23, 2020), ECF No. 10 at PageID.700 (internal citation omitted). Defendants fail to acknowledge or address the evidence submitted by Plaintiffs and the weight of public health evidence recognizing
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that absent specific precautions, Plaintiffs’ release constitutes the only reasonable response to an extraordinary and deadly pandemic. Plaintiffs Alhalmi and Cardona Ramirez have shown the subjective component of their deliberate indifference claim.
Finally, the Court reiterates that at this stage of the litigation, it employs a balancing test to determine if relief is warranted. “[T]he probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.”
Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006) (internal quotations omitted). Plaintiffs have shown both a high likelihood of irreparable injury and a near certainty of success with respect to the objective component of their deliberate indifference claim; Defendants only raise a significant challenge to the claim’s subjective component. Because the merits will turn on Defendants’ state of mind, Plaintiffs need not continue to be exposed to conditions of confinement which present a substantial risk of serious harm while the Court further adjudicates that issue.
C. Balance of Equities and Public Interest When the government opposes the issuance of a temporary restraining order, as Defendants do here, the final two factors—the balance of equities and the public interest—merge. “The government’s interest is the public interest.” Pursuing America’s Greatness v. Fed. Election Comm'n, 831 F.3d 500, 512 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
*17 The Court finds that the public has an interest in preserving Plaintiffs’ constitutional rights and in protecting public health. See G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir. 1994) (“[I]t is always in the public interest to prevent the violation of a party's constitutional rights); Neinast v. Bd. Of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests).
Defendants do not address the public interest in their response (ECF No. 52) or sur-reply (ECF No. 64). Nor do Defendants argue that any named Plaintiff would either pose a danger to the community or be a flight risk upon release.
Accordingly, “[t]he public interest and balance of equities demand that the Court protect [Plaintiffs’] constitutional rights and the public health over the continued enforcement of a detention provision that, as applied to [Plaintiffs’], is unconstitutional.” (ECF No. 23, PageID.574.)
Because all four factors favor granting injunctive relief for Plaintiffs Alhalmi and Cardona Ramirez, the Court grants a preliminary injunction requiring their immediate release.
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IV. Other Requested Relief In their reply brief, Plaintiffs requested for the first time five additional forms of relief: first, that the Court order that “within the next twenty-four hours, Ms. Zhang be tested for COVID-19 and seen by a physician” (ECF No. 57, PageID. 1667); second, that the Court order “the attending physician to provide a report to Court about whether, because of Ms. Zhang’s medical condition, she should be released” (id.); third, that the Court “order Defendants to provide the information as to what steps Defendants took and plan to take to prevent infection (a) during the transfer; (b) once Mr. Medina Euceda arrived in Louisiana; and (c) during removal” (id. at PageID.1670); fourth, that the Court “require Defendants immediately to update the Court if there are any changes with respect to Mr. Medina Euceda’s scheduled removal” (id. at PageID.1670–1671); and fifth, that the Court order “that Defendants not transfer any further named petitioners to a different detention center without the Court’s permission, and that any request for such permission should include information about the conditions in the facility to which the person is being transferred, and precautions during transfer.” (Id. at PageID.1671.)
The Court is unaware of legal authority that would allow it, in this instance, to grant relief unrelated to the merits of Plaintiffs’ claims and not requested in a pleading or motion. The Federal Rules of Civil Procedure contemplate that a claim for relief must appear in a pleading. Fed. R. Civ. Proc. 8(a). This procedural requirement allows for the parties to fully brief any resultant issues and ensures that the Court can make a reasoned determination. Defendants have only had a brief opportunity to address Plaintiffs’ new requests in a sur-reply. (ECF No. 64.)
Accordingly, each additional request for relief is denied without prejudice. Plaintiffs may refile their requests in the form of an amended pleading or a motion for injunctive relief or discovery, as they deem appropriate.
V. Conclusion For the reasons stated above, the Court GRANTS a preliminary injunction requiring Plaintiffs Alhalmi and Cardona Ramirez’ immediate release from ICE Custody. Plaintiffs will be subject to the following restrictions: Plaintiffs are subject to fourteen days of home quarantine; Plaintiffs must comply with all Michigan Executive Orders; and Plaintiffs must appear at all hearings pertaining to their removal proceedings. Respondents may impose other reasonable nonconfinement terms of supervision.
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*18 Respondents are further RESTRAINED from arresting Petitioner for civil immigration detention purposes until the State of Emergency in Michigan (related to COVID-19) is lifted or until further Court Order stating otherwise.
The Court orders supplemental briefing with respect to Plaintiff Salabarria and Plaintiff Borboa’s health conditions and the applicability of a freedom from punishment standard to Plaintiffs’ claims. The parties may each submit a responsive filing, of no more than fifteen pages, by May 18, 2020.
The Court denies without prejudice Plaintiffs’ requests for relief other than immediate release.
IT IS SO ORDERED.

All Citations --- F.Supp.3d ----, 2020 WL 2468481
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2020 WL 1316510 Only the Westlaw citation is currently available. United States District Court, W.D. Michigan, Southern Division.
Michael SALAMI, Plaintiff, v.
Randee REWERTS et al., Defendants.
Case No. 1:20-cv-21 |
Signed 03/20/2020
Attorneys and Law Firms
Michael Salami, Carson City, MI, pro se.
OPINION
ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
*1 This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim against Defendants Rewerts, Winger, Woodin, and the Gender Dysphoria Recommendation Committee.

I. Factual Allegations

Discussion

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Plaintiff Michael Salami is a transgender female, who uses the female name Nikolai-Memet. She presently is incarcerated with the Michigan Department of Corrections (MDOC) at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. The events about which she complains occurred at that facility. Plaintiff sues Corizon Healthcare, Inc., the Gender Dysphoria Recommendation Committee, and the following DRF officials: Warden Randee Rewerts; Assistant Deputy Warden J. Winger; Resident Unit Manager (RUM) and PREA 1 Coordinator Unknown Niemiec; PREA Coordinator Todd Butler; Dr. Patricia Schmidit; Chief Psychologist Unknown Woodin; and Sergeant Unknown Fountains.
1 The Prison Rape Elimination Act (PREA), 34 U.S.C. § 30301 et seq., provides national standards and grant funding directed at the prevention, reporting, and enforcement of prison rape.
Plaintiff alleges that she has a gender identity disorder (GID), under which she identifies as a highly feminine woman. She dresses as a woman to the extent possible, including making her own panties, wears her hair in pigtails or a ponytail, and speaks in a high voice. Plaintiff alleges that she passed all of her lab tests and signed a treatment contract and waiver of liability on October 18, 2019. Defendant Schmidit told Plaintiff at that time that she would be prescribed 25 mg. of Androgen within two weeks. Plaintiff complains, however, that Defendant Dr. Schmidit, Corizon, and the Gender Dysphoria Recommendation Committee are denying her hormone treatment and refusing her entry into the rolls of transgender female prison inmates. She alleges that they are doing so because, if she receives hormones for one year, they will be required to authorize sexual reassignment surgery. As a result of these Defendants’ failures to permit treatment for Plaintiff’s GID, she experiences psychological distress and is forced to remain in a male prison, where she is at risk of continued assaults.
On September 22, 2019, inmate McElrath (a/k/a Nacho) approached Plaintiff and attempted to kiss her and digitally penetrate her anus. Plaintiff pushed Nacho away and swore at him. She felt dirty, so she re-showered. She discovered that Nacho continued to watch her as she showered. Plaintiff called the PREA hotline immediately after her shower. She also sent a kite to Defendants Rewerts, Winger, and Niemiec, asking that Nacho be moved. Plaintiff received no response to her reports until five days later, when she heard from Defendant Butler. She was seen by Defendant Niemiec five to eight days after the PREA report. At that interview, Defendant Niemiec stated that he would have Nacho moved the same day, but that did not happen.
*2 Sometime within the next week or so, Defendant Niemiec called Plaintiff into his office and interrogated her. Niemiec called Plaintiff a liar and told her that it was her fault and that she should not joke with people. Nacho was moved to the lower level, but he remained in the same unit as
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Plaintiff. Plaintiff alleges that Nacho placed “hits” on Plaintiff in front of officers, but they did nothing to protect Plaintiff. (Compl., ECF No. 1, PageID.7.)
On November 6, 2019, at 3:35 a.m., Plaintiff was awakened to go to the office to talk with Defendant Fountains. Plaintiff told Defendant Fountains about Nacho’s threats and asked to either be put in protective custody or have a Special Problem Offender Notice (SPON) issued to keep Nacho from being housed in the same facility as Plaintiff. See MDOC Policy Directive 03.03.110. Defendant Fountains told Plaintiff, “Stop it.... The Administration has no intentions of helping you.” (Compl., ECF No. 1, PageID.7.) Following this discussion, Plaintiff again sent kites to Defendants Rewerts, Ringer, and Niemiec, requesting that she be placed in protective custody. Plaintiff alleges that no action was taken by these Defendants in response to the kites.
On November 21, 2019, at approximately 12:35 p.m., Plaintiff began cleaning her room. Nacho’s friend, Williams, yelled out that Nacho had hired him to “[b]eat the f**k out of [Plaintiff].” (Id.) Williams then either threw or kicked a bucket containing cleaning chemicals at Plaintiff. The bucket hit Plaintiff in the face, stunning her, and the chemicals blinded her temporarily. Williams left, came back, and again threw or kicked a bucket at Plaintiff. Williams again left to get a shank, saying, “Ima stab you for snitching on Nacho.” (Id., PageID.15.) Williams returned and forced himself into Plaintiff’s cell. Williams began to punch Plaintiff in the skull, face, and sides and tried to pull the knife out of his waistband. At that point, Plaintiff’s bunkmate began yelling, “[H]elp – Police.” (Id.) Williams told the bunkmate to “[k]eep quiet, or he'd be stab[b]ed, raped, and lock[ed] up like another white-boy.” (Id.) When Williams tried to block the doorway, Plaintiff got up, but Williams punched her to the ground and tried to pull her pants down. Plaintiff escaped Williams’ hold and yelled, “Rape” two times, but no staff responded. Plaintiff kicked Williams hard in the leg. She then threw a number of heavy objects at Williams’ head and neck. Williams ran out of the cell, and, in fear and anger, Plaintiff tried to follow Williams to injure him, but she ended up locking her cell door. She then smashed Williams’ blue glasses, which had been dropped in her cell.
Plaintiff went to health services, where the nurse found multiple bumps on Plaintiff’s head and a cut on her inner lip. Plaintiff did not report the PREA violation, because she was afraid that she would be issued a misconduct charge, as had happened to her previously.
On December 3, 2019, Plaintiff wrote both Keith Barber (not a Defendant) and Defendant Butler, asking for a victim advocate under the PREA, for the placement of SPONs on Nacho and Williams, and for therapy authorized by the PREA. She received no response, but four days later, Nacho was moved to Unit 500 and received a ticket. Plaintiff complains, however, that Nacho still has access to her through fellow gang members, whom he can contact through the unit fence. Plaintiff alleges
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that she has been the subject of unspecified new attempts by Nacho to have others attack Plaintiff, and she contends that she remains at a substantial risk of being injured.
*3 Plaintiff contends that she has suffered physical injury and continues to suffer post-traumatic stress disorder (PTSD) from an earlier sexual assault at a different MDOC facility, which allegedly has been aggravated by the events at DRF. She alleges that Defendants have deprived her of her rights under the Eighth Amendment by failing to protect her, failing to treat her gender identity disorder, and failing to provide counseling for her PTSD. She seeks a temporary and permanent restraining order against Nacho. Plaintiff also suggests that she is entitled to damages, but she does not detail what damages she may seek.
II. Failure to State a Claim A complaint may be dismissed for failure to state a claim if it fails “ ‘to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “ ‘probability requirement,’ ... it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal rights,
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not a source of substantive rights itself, the first step in an action under

§ 1983 is to identify the

specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).

III. Defendant Gender Dysphoria Recommendation Committee Although Plaintiff sues the Gender Dysphoria Recommendation Committee, the MDOC has no such committee. Instead, decisions concerning gender dysphoria management are the responsibility of the Gender Dysphoria Collaborative Review Committee. See MDOC Policy Directive 04.06.184 ¶ C (eff. June 26, 2017). The Court assumes that Plaintiff intends to sue the Gender Dysphoria Collaborative Review Committee
Regardless of the appropriate name of the committee, that committee is entitled to sovereign immunity. The Gender Dysphoria Collaborative Review Committee is a subdivision of the MDOC. Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous opinions, the Sixth Circuit has specifically held that the MDOC is absolutely immune from a § 1983 suit under the Eleventh Amendment. See, e.g., Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013); Diaz v. Mich. Dep't of Corr., 703 F.3d 956, 962 (6th Cir. 2013); McCoy v. Michigan, 369 F. App'x 646, 653-54 (6th Cir. 2010). Where, as here, the committee in issue is merely a subdivision of the MDOC, it too is immune. C.f. Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013) (holding that both the MDOC and its subdivision, the Michigan Parole Board, are entitled to immunity under the Eleventh Amendment); Horton v. Martin, 137 F. App'x 773, 775 (6th Cir. 2005) (Michigan Parole Board entitled to Eleventh Amendment immunity). Therefore, Plaintiff’s complaint seeks monetary relief against a defendant who is immune from such relief, Plaintiff’s claim against the Gender Dysphoria Collaborative Review Committee is properly dismissed under 28 U.S.C. § 1915(e)(2)(B)(iii) and 42 U.S.C. § 1997e(c).
*4 In addition, the State of Michigan (acting through the MDOC and its subdivisions) is not a “person” who may be sued under § 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989));
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Harrison, 722 F.3d at 771. Therefore, Plaintiff’s claim against the Gender Dysphoria Collaborative Review Committee is also properly dismissed for failure to state a claim.
IV. Defendants Rewerts, Winger, & Woodin Plaintiff’s only factual allegations against Defendants Rewerts and Winger, are that she sent kites to both Rewerts and Winger, as well as to Defendant Niemiec, complaining about Nacho’s initial attempted sexual assault and shortly thereafter about Defendant Niemiec’s response to Plaintiff’s first kite. Plaintiff’s allegations against Defendants Rewerts and Winger amount to a simple claim that they failed to supervise their subordinates and failed to personally respond to Plaintiff’s kites about Nacho’s earliest actions and about Niemiec’s unsatisfactory response to the first kite. Plaintiff makes no factual allegations about Defendant Woodin in the body of the complaint, though she suggests that she sent a kite to a lower-level mental health provider in December 2019, and she arguably suggests that Defendant Woodin is responsible for his subordinate’s actions.
Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
To the extent that Plaintiff intends to allege that Defendants Rewerts, Winger, and Woodin failed to supervise their subordinates, she alleges nothing more than respondeat superior, which will not support a § 1983 claim. To the extent that Plaintiff alleges that Defendants Rewerts or Winger engaged in any conduct beyond failing to respond to two kites, Plaintiff also fails to state a claim.
Section 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a grievance or complaint. See
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Defendants Rewerts and Winger therefore will be dismissed.
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With respect to Defendant Woodin, Plaintiff’s complaint is devoid of factual allegations. It is a basic pleading essential that a plaintiff attribute factual allegations to particular defendants. See
Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff must make sufficient allegations to give a defendant fair notice of the claim). The Sixth Circuit “has consistently held that damage claims against government officials arising from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (citing Terrance v. Northville Reg'l Psych. Hosp., 286 F.3d 834, 842 (6th Cir. 2002)). Where a person is named as a defendant without an allegation of specific conduct, the complaint is subject to dismissal, even under the liberal construction afforded to pro se complaints. See Frazier v. Michigan, 41 F. App'x 762, 764 (6th Cir. 2002) (dismissing the plaintiff’s claims where the complaint did not allege with any degree of specificity which of the named defendants were personally involved in or responsible for each alleged violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each defendant); Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against those individuals are without a basis in law as the complaint is totally devoid of allegations as to them which would suggest their involvement in the events leading to his injuries.”); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Krych v. Hvass, 83 F. App'x 854, 855 (8th Cir. 2003); Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); Williams v. Hopkins, No. 06-14064, 2007 WL 2572406, at *4 (E.D. Mich. Sept. 6, 2007); McCoy v. McBride, No. 3:96-cv-227RP, 1996 WL 697937, at *2 (N.D. Ind. Nov. 5, 1996); Eckford-El v. Toombs, 760 F. Supp. 1267, 1272-73 (W.D. Mich. 1991). Plaintiff fails to even mention Defendant Woodin in the body of his complaint.
*5 Moreover, Plaintiff’s complaint against Defendant Woodin is not saved by his general references to actions by “Defendants.” “Summary reference to a single, five-headed ‘Defendants’ does not support a reasonable inference that each Defendant is liable for retaliation.” Boxill v. O'Grady, 935 F.3d 510, 518 (6th Cir. 2019) (citing Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir. 2011) (“ ‘This Court has consistently held that damage claims against government officials arising from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right.’ ”) (quoting Lanman, 529 F.3d at 684)). Because Plaintiff fails to make allegations about Defendant Woodin’s own active conduct, her complaint against Woodin falls far short of the minimal pleading standards under Fed. R. Civ. P. 8 (requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”). The Court therefore will dismiss Defendant Woodin from the action.
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V. Remaining Defendants Upon initial review, the Court concludes that Plaintiff’s allegations are sufficient to state an Eighth Amendment claim against remaining Defendants Niemiec, Corizon, Schmidit, Butler, and Fountains.
VI. Pending Motions Plaintiff has filed three motions that are presently pending before the Court. The first is a motion seeking a temporary restraining order (TRO) (ECF No. 3). The second seeks a preliminary injunction (ECF No. 4). Plaintiff also has filed a motion to amend the complaint to seek relief from Defendants solely in their individual capacities (ECF No. 14).
Preliminary injunctions are “one of the most drastic tools in the arsenal of judicial remedies.” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001) (quoting Hanson Trust PLC v. ML SCM
Acquisition Inc., 781 F.2d 264, 273 (2d Cir. 1986)). The issuance of preliminary injunctive relief, whether in the form of a TRO or a preliminary injunction, is committed to the discretion of the district court. See Ne. Ohio Coal. v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006); Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir. 2000). In exercising that discretion, a court must consider whether plaintiff has established the following elements: (1) a strong or substantial likelihood of success on the merits; (2) the likelihood of irreparable injury if the preliminary injunction does not issue; (3) the absence of harm to other parties; and (4) the protection of the public interest by issuance of the injunction. Id. These factors are not prerequisites to the grant or denial of injunctive relief, but factors that must be “carefully balanced” by the district court in exercising its equitable powers. Frisch’s Rest., Inc. v. Shoney’s, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); see also S. Galzer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017) (“[T]hese are factors to be balanced, not prerequisites to be met.”); National Viatical, Inc. v. Universal Settlements Int'l, Inc., 716 F.3d 952, 956 (6th Cir. 2013) (same); Ne. Ohio Coal., 467 F.3d at 1009 (same). Moreover, where a prison inmate seeks an order enjoining state prison officials, the court is required to proceed with the utmost care and must recognize the unique nature of the prison setting. See Glover v. Johnson, 855 F.2d 277, 284 (6th Cir. 1988); Kendrick v. Bland, 740 F.2d 432, 438 n.3 (6th Cir. 1984). The party seeking injunctive relief bears a heavy burden of establishing that the extraordinary and drastic remedy sought is appropriate under the circumstances. See Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002); Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978).
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Under controlling Sixth Circuit authority, Plaintiff’s “initial burden” in demonstrating entitlement to preliminary injunctive relief is a showing of a strong or substantial likelihood of success on the merits of his section 1983 action. NAACP v. Mansfield, 866 F.2d 162, 167 (6th Cir. 1989). Plaintiff has not made such a showing. Athough the Court concludes that Plaintiff’s allegations are sufficient to state an Eighth Amendment claim against the remaining officials for failure to treat his GID and failure to protect Plaintiff, it is not at all clear at this juncture that Plaintiff has a substantial likelihood of success on his Eighth Amendment claim.
*6 Second, the presence of irreparable harm is not evident. A plaintiff’s harm from the denial of a preliminary injunction is irreparable only if it is not fully compensable by monetary damages. See Overstreet, 305 F.3d at 578. Since the filing of Plaintiff’s complaint and motions, Plaintiff has not attempted to supplement his complaint with allegations about new instances of assault. Moreover, Plaintiff admits in her complaint that inmate Nacho has been moved to a part of the unit where he has less ability to instigate harm to Plaintiff. Although Plaintiff may yet face some risk, she has not set forth specific facts showing an immediate, concrete and irreparable harm in the absence of an injunction.
Finally, the interests of identifiable third parties and the public at large weigh against an injunction. Decisions concerning prison security are vested in prison officials, in the absence of a constitutional violation. Any interference by the federal courts in the administration of state prisons is necessarily disruptive. The public welfare therefore militates against the issuance of extraordinary relief in the prison context, absent a sufficient showing of a violation of constitutional rights. See Glover, 855 F.2d at 286-87. That showing has not been made here. Moreover, these factors predominate over any residual risk to Plaintiff of irreparable harm.
Accordingly, Plaintiff’s motions seeking a TRO (ECF No. 3) and seeking a preliminary injunction (ECF No. 4) will be denied.
In his final pending motion, Plaintiff seeks to amend his complaint to sue all Defendants solely in their individual capacities. The Court will grant Plaintiff’s motion.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Defendants Rewerts, Winger, Woodin, and the Gender Dysphoria Recommendation Committee will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and
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1915A(b), and 42 U.S.C. § 1997e(c). Plaintiff’s Eighth Amendment claims against Defendants Niemiec, Corizon, Schmidit, Butler, and Fountains remain in the case. The Court will deny Plaintiff’s motion for temporary restraining order (ECF No. 3) and motion for preliminary injunction (ECF No. 4). The Court will grant Plaintiff’s motion to amend his complaint to seek relief from Defendants solely in their individual capacities.
An order consistent with this opinion will be entered.

All Citations Slip Copy, 2020 WL 1316510
End of Document

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Zaya v. Adducci, Slip Copy (2020)
2020 WL 2487490 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
Fawzi ZAYA, Petitioner, v.
Rebecca ADDUCCI, et al., Respondents.
Case No. 20-10921 |
Signed 05/14/2020
Attorneys and Law Firms
Shanta Driver, Driver, Schon and Associates PLC, Detroit, MI, for Petitioner.
Jennifer L. Newby, U.S. Attorney, Detroit, MI, for Respondents.
OPINION AND ORDER CONVERTING TEMPORARY RESTRAINING ORDER INTO PRELIMINARY INJUNCTION [9]
JUDITH E. LEVY, United States District Judge
*1 On April 18, 2020, the Court issued an order granting a temporary restraining order and requiring Petitioner Fawzi Zaya’s immediate release from Immigration and Customs Enforcement (ICE) Custody. (ECF No. 9.) On April 30, 2020, the Court, finding good cause, extended the TRO until May 14, 2020 and requested additional supplemental briefing. (ECF No. 12, PageID.768.) The Court now grants a preliminary injunction requiring Petitioner’s continued release.
I. Background Petitioner Fawzi Zaya is a forty-two-year-old citizen of Iraq. (ECF No. 7-1, PageID.509.) He has lived in the United States since March 1982. (ECF No. 1, PageID.21.) On December 19, 1997, Petitioner was convicted of Delivery over 50 Grams of Cocaine. (ECF No. 7-1, PageID.509.) Petitioner has also been convicted of domestic violence. (ECF No. 10, PageID.684.) On January 17, 2008, Petitioner was convicted of Second-Degree Murder. (ECF No. 7-1, PageID.509.) Upon Petitioner’s parole from the Michigan Department of Corrections, ICE took him into custody
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pursuant to 8 U.S.C. § 1231(a)(2). (Id.) Petitioner has been detained at the Calhoun County Correctional Facility (CCCF) since March 24, 2020. (Id.)
Petitioner has several serious health conditions. He is obese (ECF No. 10, PageID.685) and suffers from high blood pressure, diabetes, and asthma. (ECF No. 2-2, PageID.247.) He also suffers from neural foraminal stenosis, a kind of spinal stenosis requiring the use of a wheelchair and a TENS (transcutaneous electrical nerve stimulation) unit. (Id.) Petitioner also has gout. (Id.) Respondent alleges that Petitioner has exaggerated his health conditions, but Respondent does not contest that Petitioner is obese and suffers from high blood pressure, diabetes, and asthma. (Id.)
On April 13, 2020, Petitioner filed both a Petition for Writ of Habeas Corpus (ECF No. 1) and an Emergency Motion for Temporary Restraining Order. (ECF No. 2.) The case was assigned to the Honorable Bernard A. Friedman. On April 13, 2020, the undersigned accepted reassignment of this case as a companion to Case No. 20-10829, Malam v. Adducci. Both cases involve Petitioners with serious underlying health conditions challenging on Fifth Amendment grounds their continued confinement at the Calhoun County Correctional Facility in light of the risks posed by the COVID-19 pandemic. The Court granted Petitioner’s motion on April 18, 2020. (ECF No. 9.) After receiving supplemental briefing, the Court found good cause to extend the TRO until May 14, 2020 and ordered an additional round of supplemental briefing on whether additional precautions could be and were being implemented at the Calhoun County Correctional Facility. (ECF No. 12.) Respondent filed a supplemental brief on May 7, 2020. (ECF No. 13.) Petitioner filed a supplemental brief on May 11, 2020. 1 (ECF No. 14.)
1 In its April 30, 2020 opinion, the Court noted that “[g]iven the significance of the issues presented by this case and the seriousness of Petitioner’s constitutional claims, particularly as they relate to the high risk to Petitioner’s health and life, the Court did not find [Petitioner’s April 29, 2020 brief] helpful to its consideration of his claims.” (ECF No. 12, PageID.747.) Petitioner’s most recent supplemental brief is no more useful. Again, Petitioner failed to address the majority of Respondent’s arguments or to provide a single legal citation in support of his own.
*2 Because the Court finds that balancing the irreparable injury faced by Petitioner, his likelihood of success on the merits, and the public interest favors continued injunctive relief, the Court converts the TRO into a preliminary injunction.
II. Legal Standard
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“[P]reliminary injunctions are extraordinary and drastic remedies [ ] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015).
In determining whether to grant a preliminary injunction, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction.
Northeast Ohio Coal. For Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted).
III. Analysis In granting Petitioner a temporary restraining order, the Court found that his high risk of COVID-19 infection in communal confinement and serious underlying health conditions supported a finding of irreparable injury absent an injunction (ECF No. 9, PageID.668– 673); Petitioner had demonstrated a likelihood of success on the merits because Respondent’s precautions could not guarantee Petitioner reasonable safety (id. at PageID.673–676); and the public interest in public health and safety outweighed its interest in Petitioner’s continued detention. (Id. at PageID.676–678.)
The Court was unable to fully determine by the initial date for the expiration of the Temporary Restraining Order whether a preliminary injunction was warranted. Given Respondent’s uncontested argument regarding Petitioner’s danger to the community and risk of flight (ECF No. 10, PageID.704–706), the Court ordered supplemental briefing to better inform its adjudication. In particular, the Court sought additional information regarding the feasibility and implementation of additional precautionary measures at the Calhoun County Correctional facility, including testing for staff and detainees, mandatory personal protective equipment in the form of masks for staff and detainees, and guaranteed single-cell housing for Petitioner. (ECF No. 12, PageID.768.) Respondent informed the Court that
Respondents are able to guarantee individual housing for Petitioner. Calhoun has already begun providing surgical grade masks to all detainees and inmates. They are required to wear them outside the housing unit, but are permitted to wear them inside the housing unit. Detainees are issued a new mask upon request free of charge. Staff are required to wear masks while performing booking and
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intake, but are encouraged to wear masks at all times. At this time, Calhoun does not have plans to implement mandatory COVID-19 testing for all staff and detainees.
*3 (ECF No. 13, PageID.770–771 (internal citations omitted).)
The Court finds that Petitioner continues to demonstrate a high risk of irreparable injury absent an injunction. Although Petitioner’s likelihood of success on the merits is mixed, the public interest favors his continued release. On balance, the factors support granting a preliminary injunction.
A. Irreparable Injury In its April 30, 2020 Order, the Court found that “[i]n order for Respondent to sufficiently reduce the risk of irreparable injury to Petitioner—because of Petitioner’s heightened risk of severe illness and death—Respondent, ICE, and the Calhoun County Correctional Facility would need to provide COVID-19 testing to all staff and detainees.” (ECF No. 12, PageID.761.) On May 7, 2020, Respondent explained that “Calhoun does not have plans to implement mandatory COVID-19 testing for all staff and detainees.” (ECF No. 13, PageID.770–771.)
Moreover, on May 11, 2020, counsel for Respondent informed the Court by email that one detainee at the Calhoun County Correctional Facility has tested positive for COVID-19. According to counsel, the detainee was quarantined at intake and was isolated when he became symptomatic. On May 14, 2020, counsel for Respondent sent this supplemental email: “In an update to the below, four detainees had contact with the positive detainee and were also isolated and tested, none had been in general population. Three tested negative and one tested positive.”
As the Court recently held in a companion case, “emergence of COVID-19 at the Calhoun County Correctional Facility transforms a generalized yet substantial risk into a specific and immediate risk.” Malam v. Adducci, Case No. 20-10829 (E.D. Mich. May 12, 2020), ECF No. 68 at PageID.1914–15 (hereinafter Malam Order). Accordingly, the Court adopts, with one exception, the reasoning from its April 18, 2020 and April 30, 2020 Orders in this case with respect to irreparable injury.
The Court no longer finds that Petitioner’s high blood pressure or asthma increase his risk of an adverse outcome from COVID-19. In its April 30, 2020 Order, the Court found that “Respondent does not contest that Petitioner is obese and suffers from high blood pressure, diabetes, and asthma, each of which places him at heightened risk of severe illness and/or death from COVID-19.
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(ECF No. 12, PageID.748.) In Malam, the Court recently found that the public health evidence is uncertain regarding whether high blood pressure constituted an independent risk factor for a severe negative outcome from COVID-19, see Malam Order at PageID.1924, and that asthma constituted a risk factor if it is “moderate to severe.” See id. at PageID.1926. Petitioner does not directly address whether his high blood pressure increases his risk of a negative outcome from a COVID-19 infection. With regards to his asthma, Petitioner alleges that “he has asthma, for which he uses an inhaler. He is not allowed to keep his inhaler on him at Calhoun so if he needs it he has to find a guard and wait for someone to bring it to him” (ECF No. 2, PageID.225); additionally, he alleges that he “was denied treatment during asthma attacks.” (ECF No. 14, PageID.788.) Petitioner neither provides the Court with a definition of moderate to severe asthma nor describes the severity of his own. Accordingly, the Court no longer finds that Petitioner’s high blood pressure and asthma increase his risk of serious illness and/or death from COVID-19.
*4 Nonetheless, Petitioner’s obesity and diabetes place him at a high risk of serious illness and/or death from COVID-19. Given the confirmed cases of COVID-19 at CCCF, and absent widespread testing to determine the scope of the outbreak and to prevent asymptomatic transmission, Petitioner has shown a high risk of irreparable injury in the form of loss of health or life from COVID-19 absent an injunction.
B. Likelihood of Success on the Merits Civil detainees’ Fifth Amendment claims are analyzed “under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metropolitan Gov't, 709 F.3d 563, 568 (6th Cir. 2013). Eighth Amendment claims require a showing of deliberate indifference, Farmer v. Brennan, 511 U.S. 825, 835 (1994), which includes showing an objective substantial risk of serious harm and a subjective culpable mental state. Villegas v. Metro. Gov't, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).
1. Objective Component of Deliberate Indifference In its April 30, 2020 Order, the Court held that “[a]lthough the ... precautions taken at the Calhoun County Correctional Facility are important, they do not yet go far enough to be a reasonable response to a global pandemic with respect to detainees at heightened risk of severe illness and death from COVID-19.” (ECF No. 12, PageID.762.) And as the Court explained in Malam, “[t]he Court need not dwell on the distinctions between a high likelihood of irreparable harm and a substantial risk of serious harm—to the extent the former comes in the form of a risk to health or life, it satisfies the latter.” Malam Order at PageID.1934.
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Nonetheless, Respondent argued in her May 7, 2020 brief that “Petitioner does not establish that his exposure to COVID-19 is imminent, where reasonable precautions are in place, he already has a single cell, and there are no confirmed cases of COVID-19 at Calhoun.” (ECF No. 13, PageID.771.)
There are now two confirmed cases of COVID-19 at the Calhoun County Correctional Facility, and no widespread testing to determine the scope of the outbreak and whether Petitioner would be exposed to the virus upon return to the facility. Moreover, given the percentage of asymptomatic COVID-19 cases and the virus’ incubation period of up to fourteen days, Respondent cannot reasonably assert that the outbreak is—or will continue to be—limited to these two cases.
Additionally, the Court explained in detail in its April 30, 2020 Order why, “with respect to Petitioner, [Respondent’s] precautions do not go far enough to constitute a reasonable response to COVID-19.” (ECF No. 12, PageID.764.) The Court concluded that
in light of Petitioner’s underlying health conditions, the public health evidence available, and the exponential growth of COVID-19 infections within ICE detention centers, a reasonable response would include, at minimum, the following additional precautions: [m]andatory face masks for all detainees and staff[; and g]uaranteed individual housing for Petitioner should he return to CCCF.
(Id. at PageID.765.)
The Court commends Respondent for her guarantee that Petitioner would have individual housing upon his return. However, as Petitioner argues,
Petitioner is wheelchair-bound and must wear adult diapers. Individual housing would not protect him from exposure to COVID-19. He is dependent on others to change his diapers and to bathe him, and therefore he cannot practice social distancing from Calhoun staff who will need to make extensive physical contact with him to care for him. Furthermore, Calhoun’s common areas do not allow for social distancing: [As Zaya declares,] “No one I encountered, guards or inmates, were practicing social distancing. It was impossible for inmates to stay at a safe distance from one another in the pod. We ate together in a collective room that could not accommodate social distancing.”
*5 (ECF No. 14, PageID.789.)
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The Court finds that guaranteed individual housing in combination with Respondent’s other existing precautions would still be insufficient to guarantee Petitioner’s reasonable safety. The Court adopts the reasoning in its April 18 and 30, 2020 Orders with respect to the reasonability of Respondent’s precautions and holds that the risk of COVID-19 infection to Petitioner, were he to return to the Calhoun County Correctional Facility, would be both imminent and substantial, satisfying the objective component of Petitioner’s claim.
2. Substantial Component of Deliberate Indifference Respondent argues that Petitioner cannot show the subjective component of his deliberate indifference claim. Respondent cites to two recent Circuit Court opinions, both of which held that without specific evidence of mental state, prisoners could not show deliberate indifference on the part of the Texas or Florida correctional systems where the jails alleged substantial compliance with CDC guidance for detention and correctional facilities. (ECF No. 13, PageID.775–778 (citing
Valentine v. Collin, No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) and Swain v. Junior No. 20-11622, 2020 WL 2161317 (11th Cir. May 5, 2020)).)
In Valentine, the Fifth Circuit held,
Though the district court cited the Defendants’ general awareness of the dangers posed by COVID-19, it cited no evidence that they subjectively believe the measures they are taking are inadequate. To the contrary, the evidence shows that TDCJ has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus.... Although the district court might do things differently, mere “disagreement” with TDCJ’s medical decisions does not establish deliberate indifference.
2020 WL 1934431 at *4 (citations omitted). The court concluded that in finding objectively “inadequate measures as dispositive of the Defendants’ mental state,” “the district court ... collapsed the objective and subjective components of the Eighth Amendment inquiry.” Id.
In Swain, the Eleventh Circuit cited to Valentine and stayed a similar injunction on the grounds that “the district court cited no evidence to establish that the defendants subjectively believed the measures they were taking were inadequate.” 2020 WL 2161317, at *4.
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Petitioner did not address this caselaw in his May 14, 2020 supplemental brief. (ECF No. 14.) Nor did Petitioner address the subjective component of his deliberate indifference claim in his initial motion (ECF No. 2), reply brief (ECF No. 8), or response to the Court’s April 18, 2020 Order. 2 (ECF No. 29.) However, Respondent raised a similar argument in Malam. There the Court found that “[c]ontrary to Defendants’ suggestion and distinct from Valentine and Swain, the record before the Court demonstrates that Defendants are aware that medically vulnerable detainees require additional protection, but nonetheless have declined to act.” Malam Order at PageID.1947–48. The Court relied on the Sixth Circuit in Richko v. Wayne Cty., which held that “[b]ecause government officials do not readily admit the subjective component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence.” Id. at PageID.1948 (citing 819 F.3d at 916 (6th Cir. 2016)).
2 Petitioner’s only argument on this issue is that the Court “can simply apply the Bell test, [rather than the Farmer test], as recently reaffirmed by the Sixth Circuit in Williamson Cty.” (ECF No. 2, PageID.234.) Petitioner misreads Sixth Circuit precedent. Although the court in J.H. v. Williamson Cty. applied the Bell freedom from punishment standard to a pretrial detainee’s solitary confinement claim, it applied the dual-prong deliberate indifference standard to the detainee’s claim alleging inadequate medical and mental health care. 951 F.3d 709, 717, 722 (6th Cir. 2020.) As the Court held in Malam, “Absent more guidance from the Sixth Circuit, the Court will require [Petitioner] to show both the objective and subjective components of a deliberate indifference claim.” Malam Order at PageID.1934.
*6 The Court explained,
At the Court’s May 7, 2020 videoconference hearing, Defendants conceded that they have not implemented any policies specific to the protection of medically vulnerable detainees, arguing instead that general precautionary measures serve to protect the higher risk population. CDC guidance for correctional and detention facilities does not address the specific needs of medically vulnerable detainees; it only notes that “[i]f 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.” 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 reviewed May 7, 2020). Nor does ICE guidance fill the gap; to the extent that ICE Guidance addresses medically vulnerable detainees, it contemplates considering release as an option: “Upon being informed of
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a detainee who may potentially be at higher risk for serious illness from exposure to COVID-19, ERO will review the case to determine whether continued detention is appropriate. ICE will make such custody determinations on a case-by-case basis, pursuant to the applicable legal standards, with due consideration of the public health considerations implicated.” (ECF No. 52-7, PageID.1591.) Indeed, as of April 16, 2020, ICE had released almost 700 noncitizen civil detainees nationwide. Matt Katz, ICE Releases Hundreds of Immigrants as Coronavirus Spreads in Detention Centers, NPR (Apr. 16, 2020) https://www.npr.org/sections/coronavirus-liveupdates/2020/04/16/835886346/ ice-releases-hundreds-as-coronavirusspreads-in-detention-centers.
On the one hand, Defendants are aware of the heightened risk posed by COVID-19 to medically vulnerable detainees, and as such ICE has already released hundreds of people from ICE custody. On the other, Defendants have not—and seemingly will not—adopt precautions specific to this vulnerable population that public health evidence shows to be necessary. And despite five opportunities to do so in this case alone, Defendants have not provided the Court with the declarations of any medical professional or public health expert who can reconcile these two conflicting positions. As Defendants explained in another case challenging the constitutionality of civil detention at the Calhoun County Correctional Facility, “In issuing guidance, ICE relied on epidemiologists and also convened a working group between medical professionals, disease control specialists, detention experts, and field operators to identify additional enhanced steps to minimize the spread of the virus.” Zaya v. Adducci, Case No. 20-10921 (E.D. Mich. Apr. 23, 2020), ECF No. 10 at PageID.700 (internal citation omitted). Defendants fail to acknowledge or address the evidence submitted by Plaintiffs and the weight of public health evidence recognizing that absent specific precautions, Plaintiffs’ release constitutes the only reasonable response to an extraordinary and deadly pandemic. Plaintiffs Alhalmi and Cardona Ramirez have shown the subjective component of their deliberate indifference claim.
*7 Id. at PageID.1950.
Unlike in Malam, Respondent has taken at least one precaution specific to Petitioner: guaranteed individual housing. Although this additional precaution is insufficient to obviate the substantial risk of serious harm Petitioner would face at the Calhoun County Correctional Facility in light of his mobility impairment and other personal care needs, it demonstrates Respondent’s willingness to provide Petitioner additional protection and makes Petitioner’s success on the merits less likely with respect to the subjective component of his claim.
The Sixth Circuit in Six Clinics Holding Corp., II. v. Cafcomp Sys. recognized that “in order to establish a likelihood of success on the merits of a claim, a plaintiff must show more than a mere
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possibility of success.” 119 F.3d 393, 402 (6th Cir. 1997) (citing Mason Cty. Med. Ass'n v. Knebel, 563 F.2d 256, 261 n. 4 (6th Cir. 1977)). Given Petitioner’s failure to address the subjective component of his claim, and the fact that Respondent has promised to take an additional precaution specific to Petitioner, the Court finds Petitioner’s likelihood of success on the merits with respect to the subjective component of his deliberate indifference claim is not strong.
But as the court in Six Clinics Holding Corp., II. further explained, “it is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Id. (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1989)). Petitioner has met this standard, though barely. The Court has found Respondent’s precautionary measures to be an unreasonable response to the COVID-19 pandemic considering Petitioner’s very serious underlying health conditions. Respondent has refused to implement additional precautions identified by public health experts as necessary to protect the health and lives of medically vulnerable detainees, even as ICE has issued guidance calling for the consideration of medically vulnerable detainees’ release. Petitioner’s likelihood of success on the merits may be uncertain, but circumstantial evidence raises substantial and difficult questions about Respondent’s mental state regarding Petitioner’s continued detention.
Accordingly, the Court finds the second factor to favor granting a preliminary injunction at this time.
C. Public Interest In her April 23, 2020 response, Respondent provided the Court with evidence pertaining to Petitioner’s serious criminal history and history of fleeing law enforcement. (ECF No. 10, PageID.705.) Petitioner failed to address Respondent’s argument in his response. (ECF No. 11.) Accordingly, in its April 30, 2020 Order, the Court found that Petitioner “is a danger to the community and a flight risk.” (ECF No. 12, PageID.752.) Petitioner again failed to address this evidence or the Court’s conclusion in his May 11, 2020 response. (ECF No. 14.) That said, Petitioner has now been released for twenty-five days; the Court has not received any reports that Petitioner has violated the terms of his release. His current age and medical condition would certainly limit his ability to flee or commit further crimes. The Court understands Repondent’s argument that Petitioner solicited, rather than directly participated in, the events leading to his conviction for Second-Degree Murder. (ECF No. 10, PageID.684.)
*8 Nonetheless, the Court finds that the changes in Petitioner’s circumstances since that time significantly decrease Petitioner’s danger and risk of flight. In October 2019, a parole officer with the Michigan Department of Corrections (MDOC) found Petitioner eligible for parole. (ECF No.
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1, PageID.27.) Petitioner was released from MDOC custody on parole on March 24, 2020. (ECF No. 7-1, PageID.509.) But for an ICE detainer, he would have been living in the community as of that date. With the help of a parole officer, Petitioner had even secured potential employment. (ECF No. 2-2, PageID.250.) During his incarceration, Petitioner took thirty classes relating to job skills, anger management, and religion. (ECF No. 2-2, PageID.250.) Petitioner received his GED and more than twenty certificates structured around cognitive reframing. (ECF No. 14-1, PageID.293.) Additionally, Petitioner has had two strokes, suffers from high blood pressure, asthma, diabetes, neural foraminal stenosis, and incontinence, and relies on a wheelchair for mobility. (ECF No. 14-1, PageID.792.) The Court concludes that Petitioner’s current condition, educational achievements, and completion of his criminal sentences mitigate his danger and risk of flight.
Moreover, the Court found in its April 30, 2020 order that “public health provides a countervailing interest against which the Court must balance Petitioner’s danger and risk of flight. Protecting public health and safety is in the public interest.” (ECF No. 12, PageID.767 (citing Neinast v. Bd. Of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests)).) The Court held that “absent testing, mandatory personal protective equipment, and individual housing for Petitioner, the public’s interest in public health in the midst of a global pandemic takes precedence over the public’s interest in Petitioner’s continued detention.” (Id. at PageID.768.) Respondent has shown a willingness to provide only one of those three additional precautions.
The Court recognizes the serious nature of Petitioner’s criminal history. However, given the severity of the public health crisis created by COVID-19 and the change in Petitioner’s personal circumstances, the Court finds that the public interest favors his continued release.
D. Balancing Petitioner has shown a high risk of irreparable injury in the form of loss of health or life from COVID-19 absent an injunction, a high likelihood of success on the merits of the objective component of his deliberate indifference claim, and a possibility of success on the merits of its subjective component. The public interest favors Petitioner’s continued release.
As the Sixth Circuit held in Blackwell, these factors “are not prerequisites that must be met but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” 467 F.3d at 1009. (internal quotations omitted). Petitioner has a high risk of serious irreparable injury absent an injunction. See Thakkur v. Doll, No. 1:20-cv-480,
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2020 WL 1671563, at *8 (M.D. Pa. Mar. 31, 2020) (“There can be no injury more irreparable than lasting illness or death.”). Although Petitioner’s likelihood of success on the merits is not assured, the Court finds Petitioner to nonetheless have a possibility of success. Under Blackwell, that is enough. Indeed, as the Supreme Court has stated,
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. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary injunction hearing.
University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).
Furthermore, because the merits will most likely turn on Respondent’s state of mind, Petitioner need not continue to be exposed to conditions of confinement which present a substantial risk of serious harm while the Court further adjudicates that issue.
*9 The public interest further warrants continued injunctive relief. The Court recognizes the public interest in Petitioner’s continued detention given his criminal history and history of fleeing law enforcement. But when considering Petitioner’s serious underlying health conditions, the two confirmed cases of COVID-19 at the Calhoun County Correctional Facility, and Respondent’s refusal to implement mandatory personal protective equipment or widespread testing, the public’s interest in safety and public health wins out.
On balance, the factors favor granting an injunction for the limited duration of the State of Emergency in Michigan (related to COVID-19). The Court will convert Petitioner’s temporary restraining order into a preliminary injunction.
E. Scope of Injunctive Relief Respondent argues that “[t]o the extent the Court elects to impose the conditions identified in this case, they are beyond what is required to defeat a deliberate indifference claim and would intrude on the purview of the Executive Branch.” (ECF No. 13, PageID.774.) Petitioner does not, at this time, seek sweeping injunctive relief that would insert the Court into the day-to-
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day management of either U.S. Immigration and Customs Enforcement (ICE) or the Michigan Department of Corrections (MDOC); instead, Petitioner requests only his continued release. The Court’s preliminary injunction is limited to that narrow relief. It does not require affirmative action from Respondent, nor does the Court make a finding regarding whether implementing the identified precautions would constitute a reasonable response to COVID-19. The Court will adjudicate those issues if and when they are before it.

IV. Conclusion For the reasons stated above, the Court GRANTS a preliminary injunction mandating Petitioner Zaya’s continued release. Petitioner remains subject to the following restrictions: he must comply with all Michigan Executive Orders; and he must appear at all hearings pertaining to his immigration proceedings. Respondent may impose other reasonable nonconfinement terms of supervision. Respondent is further RESTRAINED from arresting Petitioner for civil immigration detention purposes until the State of Emergency in Michigan (related to COVID-19) is lifted or until further Court Order stating otherwise.
IT IS SO ORDERED.

All Citations Slip Copy, 2020 WL 2487490
End of Document

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2020 WL 1983077 Only the Westlaw citation is currently available. United States District Court, S.D. Ohio, Eastern Division.
Adenis Enrique Prieto REFUNJOL, et al., Plaintiffs, v.
Director Ice Rebecca ADDUCCI, et al., Defendants.
Case No. 2:20-cv-2099 |
Filed 04/27/2020
Attorneys and Law Firms
Elizabeth Bonham, ACLU of Ohio, Cleveland, OH, for Plaintiffs.
OPINION AND ORDER
SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE
*1 This matter is before the Court on a Motion for Temporary Restraining Order (“TRO”) for three individuals in the custody of Immigration and Customs Enforcement (“ICE”). (ECF No. 2.) On April 27, 2020, the Court held a preliminary conference (the “Conference”) on the TRO pursuant to Local Rule 65.1. For the reasons discussed below, the Motion for TRO is GRANTED. During the Conference, Petitioners also made an oral motion to file their medical records under seal. That motion is GRANTED.
I. FACTUAL BACKGROUND Petitioners’ motion comes against the backdrop of a global pandemic of an infection so widely known at this point that it requires little explanation. COVID-19 has ravaged the nation and the world at whirlwind speed, and the infection, hospitalization, and death counts are changing so quickly that they are outdated as quickly as they are published. Regardless, numbers are one of the best ways to describe the real danger that Petitioners fear. As of this writing, the United States has at least 977,256 COVID-19 cases and 50,134 deaths. The New York Times, Coronavirus in the U.S.: Latest Map and Case Count (Apr. 27, 2020, 1:37 PM), https://www.nytimes.com/interactive/2020/ us/coronavirus-us-cases.html. Ohio has seen at least 16,325 infected, while at least 3,232 have
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been hospitalized and 753 have died. https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home (Apr. 27, 2020, 2:00 PM).
While there is much that remains unknown about the virus, we know that some individuals are more susceptible to infection than others, including individuals housed in close quarters, like those in jails and prisons. See https://www.cdc.gov/coronavirus/2019-ncov/community/ correction-detention/guidance-correctional-detention.html (last visited Apr. 27, 2020). We also know that some individuals are at risk of more severe consequences from infection than others, including those with particular health conditions. See https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/groups-at-higher-risk.html (last visited Apr. 27, 2020). Individuals with asthma, some types of heart conditions and hypertension, and those with compromised immune systems are particularly vulnerable. Id.; https://www.cdc.gov/coronavirus/2019-ncov/ hcp/clinical-guidance-management-patients.html (last visited Apr. 27, 2020). ICE also recognizes that individuals with asthma and those who are immunocompromised are in the “high-risk” category. (ECF No. 2-5, at 6–7.)
Petitioners ask this Court for relief because they argue that they fall into these high-risk categories and that Respondents are jeopardizing their health and safety. Each is held in ICE detention at the Butler County Jail (“Butler”) 1 or the Morrow County Jail (“Morrow”), and each claims to have medical conditions placing him at high risk of severe consequences were he to contract COVID-19. (Pet. for Writ of Habeas Corpus ¶¶ 3, 12, ECF No. 1.)
1 Although Butler County is in the Western Division of this District, the Court finds that Petitioners are similarly-situated and that it is a sensible allocation of the Court’s resources to decide Petitioners’ cases together.
*2 Petitioner Adenis Enrique Prieto Refunjol is a Venezuelan national who has been in ICE detention since November 2019 and currently is detained at Butler. (Karla Donado Decl. ¶¶ 2, 3(a), ECF No. 2-3.) He is not subject to a final removal order. (ECF No. 1 ¶ 61.) Mr. Refunjol has hypertension and asthma. (Donado Decl. ¶ 4.) If he is released, Mr. Refunjol plans to drive to Florida with his brother where he intends to quarantine for fourteen days with his fiancé’s neighbor. (Id. ¶ 6.) However, counsel represented during the Conference that he would stay in Ohio if required to do so.
Petitioner Mory Keita is believed to be a Guinean national, and he was brought to the United States at the age of three. (Mory Keita Decl. ¶ 3.) He has been in ICE detention since February 2020 and is currently detained at Morrow. (Id. ¶ 5.) He is not subject to a final removal order. (ECF No. 1 ¶ 54.) Mr. Keita has been in ICE custody before and has been previously released. (Keita
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Decl. ¶ 5.) He has asthma but has been denied access to an inhaler since being detained at Morrow. (Id. ¶ 6.) If he is released, Mr. Keita intends to quarantine for fourteen days in a friend’s house in Columbus, Ohio. (Id. ¶ 13.)
Petitioner Sidi Njie is a Gambian national who has been in ICE detention since June 2019. (Nazly Mamedova Decl. ¶ 3.) Mr. Njie has been detained at Morrow since January 2020. (Id. ¶ 3.) He was transferred from Butler where he had been detained since June 2019. (Id.) Mr. Njie is recovering from thyroid cancer, and he has not been deemed cancer-free. (Brandy Jatta Decl. ¶ 5.) After his cancer diagnosis, Mr. Njie underwent surgery to have his thyroid removed. (Id.) He is still supposed to go to the doctor for regular scans and treatments, although he has not been able to do so since his detention. (Id.; Mamedova Decl. ¶¶ 9–10.) The thyroid cancer has compromised Mr. Njie’s immune system, and he has been told that he is more susceptible to infection as a result of his surgery. (Mamedova Decl. ¶ 9.) If he is released, Mr. Njie intends to quarantine in a room in his family home outside of Columbus, Ohio. (Id. ¶ 13; Jatta Decl. ¶ 8.)
Butler and Morrow are both used as long-term detention facilities for ICE detainees. (ECF No. 1 ¶ 2.) ICE transfers detainees between the two facilities and also transfers detainees from the Franklin County Jail (“Franklin”) to both facilities. (Id.) All three facilities have now seen confirmed cases of COVID-19. 2 Morrow continues to accept new detainees from the public, from Butler, and from Franklin, and new detainees are not quarantined. (Jatta Decl. ¶¶ 7(a), (b); Keita Decl. ¶ 8.)
2 See Jail inmate tests positive for COVID-19, https://www.morrowcountysentinel.com/ news/31606/jail-inmate-tests-positive-for-covid-19, (last visited Apr. 27, 2020); Butler Cty. Sheriff’s Office, First Confirmed COVID-19 Case in Butler County Jail, https://www.butlersheriff.org/2020/04/13/first-confirmed-covid-19-case-inbutler-county-jail/ (last visited Apr. 27, 2020); 2 inmates at Franklin County jail test positive for COVID-19, https://www.nbc4i.com/community/health/coronavirus/2-inmatesat-franklin-county-jail-test-positive-for-covid-19/ (last visited Apr. 27, 2020).
Morrow detainees are confined to one room containing around eighty men. (Jatta Decl. ¶ 6; Keita Decl. ¶ 7.) The detainees eat, sleep, and spend all of their time in this room. (Jatta Decl. ¶ 6; Keita Decl. ¶ 7.) The room contains about 100 beds, with approximately one foot between each bed. (Jatta Decl. ¶ 6.) The detainees share one bathroom, one telephone, and one water fountain. (Id. ¶ 6; Keita Decl. ¶ 7.) Until recently, detainees were not provided with soap but had to buy it from the Morrow commissary. (Mamedova Decl. ¶ 8(e).) While Respondents represent that a local news story has reported that Morrow is cleaning the facility three times per day, Petitioners contend that detainees are only provided with soap that is so watered-down that it does not lather. (Id.) They are not provided with alcohol-based hand sanitizers. (Id.)
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*3 At some point during the week of April 13, 2020, an ICE detainee was introduced into Morrow’s general population. (Jatta Decl. ¶ 7(d).) This detainee was febrile and had a cough. (Id.) That individual was then transferred to Butler (Id.) During that same week, ICE transferred two detainees from Franklin to Morrow’s general population, both of whom began exhibiting flu-like symptoms within a few days. (Id. ¶ 7(f).) Approximately one week later, one of these individuals was quarantined and was confirmed to be infected with COVID-19. (Id. ¶7(f), (g).) It does not appear that other detainees have been tested. 3 (See id. ¶ 7(h).)
3 According to local news, no other individuals at Morrow “have met the criteria for testing.” https://www.morrowcountysentinel.com/news/31606/jail-inmate-testspositive-for-covid-19.
While it Butler has taken steps to reduce its headcount and to isolate new transfers, it appears that detainees are still confined to shared cells. (See Donado Decl. ¶ 3(a).) And as with Morrow, there are individuals in the jail’s general population with flu-like symptoms. (See id. ¶ 3(b).) Butler provides detainees with soap but not disinfectants. (Id. ¶ 3(c).)
Most of the information above comes from Petitioners, and the Court recognizes the potential for unreliability and even puffery in this information. For their parts, Respondents were unable to offer much information during the Conference. This is not a criticism but an observation. The Court recognizes that Respondents had little time to gather the necessary information and that accurate information is exceptionally difficult to gather in this ever-changing environment. Infection rates at Butler and Morrow are currently unknown as are testing rates. Respondents were not able to confirm Petitioners’ health conditions and were not willing to concede that they were unusually susceptible to dangerous consequences were they to become infected.
II. STANDARD OF REVIEW The Court must consider four factors in determining whether to issue a TRO: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable harm; (3) whether the TRO would substantially harm third parties; and (4) whether the TRO would serve the public interest. York Risk Servs. Grp., Inc. v. Couture, 787 F. App'x 301, 304 (6th Cir. 2019). These four factors are not prerequisites, but rather they are to be balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). Dispositive weight should not necessarily be given to one factor over the others. York, 787 F. App'x at 304–05.
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For Educational Use Only
Refunjol v. Adducci, Slip Copy (2020)
III. ANALYSIS Petitioners have brought a Fifth Amendment claim alleging that their conditions of confinement amount to “punishment” and thus violate their Fifth Amendment rights. Under the Fifth Amendment’s due process clause, “ ‘a detainee may not be punished prior to an adjudication of guilt.’ ” J.H. v. Williamson Cty., 951 F.3d 709, 717 (6th Cir. 2020) (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). This same standard applies in the civil detention context. See Youngberg v. Romeo, 457 U.S. 307, 320–21 (1982). A pretrial detainee can demonstrate that he has been unconstitutionally “punished” under the Fifth Amendment by showing intentional punishment or “by showing that a restriction or condition is not rationally related to a legitimate government objective or is excessive in relation to that purpose.” J.H., 951 F.3d at 717. The question is whether the latter—unintentional punishment—exists here. 4
4 Petitioners also argue that the Eighth Amendment may apply here but that they are primarily asserting their claims under the Fifth Amendment. The Court agrees that the Fifth Amendment governs and warrants the TRO and thus does not address the Eighth Amendment’s deliberate indifference standard.
1. Likelihood of Success on the Merits *4 Respondents undoubtedly have a legitimate interest in detaining immigrants in removal proceedings in order to ensure that they will appear for future court proceedings and that the government will be able to deport them. And in “normal times,” this interest may well carry the day in most cases of detainees seeking release from ICE custody. See Rafael L.O. v. Tsoukaris, No. 20-3481, 2020 WL 1808843, at *7 (D.N.J. Apr. 9, 2020). But this is not an interest that will necessarily supersede any catastrophic conditions in a detention center. A court in another jurisdiction has constructed an apt analogy:
[C]onsider if civil detainees were being housed in a facility in the direct path of a hurricane and that the facility was unlikely to withstand the force of the storm. The government would still have a legitimate governmental interest in ensuring that the detainees appeared for immigration court – but the government would not have a legitimate interest in housing the detainees in that particular facility during the hurricane. COVID-19, and its associated risks, is the difference maker – it changes the equation in evaluating the government’s legitimate objectives.
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For Educational Use Only
Refunjol v. Adducci, Slip Copy (2020)
Id. Morrow and Butler are in the eye of a storm. Based on the information currently before this Court, Petitioners are uniquely in the path of that storm, and temporary release is the only way to safeguard them.
While Respondents have an interest in detaining Petitioners, that interest gives way where the circumstances of detention may severely jeopardize Petitioners’ health. See Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *9–12 (E.D. Mich. Apr. 5, 2020). Although Respondents are not yet willing to concede the fact of Petitioners’ medical conditions, Respondents’ own guidance acknowledges that some of Petitioners’ asserted conditions place them in a high-risk category. (See ECF No. 2-5, at 6–7 (classifying immunocompromised detainees and those with “moderate to severe asthma” as “high-risk”).)
Moreover, the balance of Petitioners’ and Respondents’ interests is particularly skewed because Petitioners are not apparent flights risks. 5 All have family in the United States, and Mr. Keita and Mr. Njie have family in Ohio. Mr. Njie and Mr. Refunjol are both pursuing immigration relief in the hopes of remaining in the country. And Mr. Keita has been in and out of ICE custody multiple times with no apparent attempts to flee. It is not clear that Respondents have any interest in detaining Petitioners beyond ensuring their appearance at future proceedings, so without any risk of flight, the interest in detention is small.
5 Nor does it appear that Petitioners pose any danger to the community, although it is not clear how any such risk should factor into the Court’s analysis here. Mr. Refunjol and Mr. Njie have minimal, nonviolent criminal histories. While Mr. Keita has a more extensive criminal history, there is still no evidence in the record that he is a danger to the community. This is bolstered by the fact that ICE has previously released Mr. Keita from detention multiple times.
In contrast to this minimal risk of flight, the risk of infection and potentially catastrophic consequences is great. There is no dispute that Butler and Morrow each has at least one confirmed COVID-19 infection. Nor is there any dispute that infection easily spreads in a jail setting. Even assuming that Butler and Morrow isolate symptomatic prisoners (and there is presently a question whether they have taken that step), that is inadequate under the circumstances. COVID-19 can be transmitted by asymptomatic individuals. https://www.cdc. gov/coronavirus/2019-ncov/php/ public-health-recommendations.html (last visited Apr. 27, 2020). Neither Butler nor Morrow has taken any precautions against such transmission, nor does the Court imagine that they could, short of quarantining each person in the facility.
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Case 2:20-cv-11053-MAG-RSW MEaCnvFilleN, oD.an3i0el-15/918/2f0il2e0d 05/18/20 PageID.2128 Page 7 of 9
For Educational Use Only
Refunjol v. Adducci, Slip Copy (2020)
*5 And while many prisoners may not be severely impacted by the virus, Petitioners are different. Each has identified an underlying condition that may result in severe health effects were he to become infected. In short, the risk of infection for these three men is too great to bear under the circumstances.
The Court acknowledges that Respondents have not been able to respond fully to the Motion for TRO based on an inability to confirm many of the facts that Petitioners allege. But this is not a reason to deny a request for a TRO. In fact, Rule 65 specifically contemplates that there will be circumstances where granting a TRO is appropriate even before a respondent has had an opportunity to respond at all. See Fed. R. Civ. P. 65(b) (outlining circumstances where TRO may issue without notice to adverse party). Respondents will have a full opportunity to present any facts that they may gather at a preliminary injunction hearing. In addition, the Court has offered to hold a hearing this week. If, based on their evidence, Respondents are able to satisfy the Court’s concerns, the Court can decline to issue an injunction. But that is not reason to deny the request for a TRO given the dangerous circumstances that Petitioners allege.
a. Irreparable Harm
Regarding irreparable harm, it is well documented that COVID-19 has terrorized the world with many dying and many growing severely ill. The most vulnerable among us have borne the brunt of this disease, including those with underlying medical conditions. Petitioners all have underlying medical conditions that place them in the group who is most at risk of serious consequences from infection. As explained above, then, there is a great risk of irreparable harm by Petitioners.
b. Risk of Harm to Third Parties and Public Interest
In a constitutional case, as here, “an inquiry into the public interest is difficult to separate from the likelihood of success on the merits because ‘the public interest is promoted by the robust enforcement of constitutional rights.’ ” Rhinehart v. Scutt, 509 F. App'x 510, 516 (6th Cir. 2013) (quoting Am. Freedom Def. Initiative v. Suburban Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir. 2012)). And “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994). It is also in the public interest to ensure the just and humane treatment of the populace as a whole, inclusive of those detained in our jails and prisons. Cf. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (“The Constitution ‘does not mandate comfortable prisons,’ but neither
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For Educational Use Only
Refunjol v. Adducci, Slip Copy (2020)
does it permit inhumane ones....” (internal citation omitted) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981))).
As explained above, based on the evidence in the record, the Court sees minimal risk to the community by ordering the release of Petitioners and subjecting them to quarantine. And in terms of the public interest, the Court finds that the public interest is served by Petitioners’ release. The public interest is served by the vindication of their constitutional rights, to be sure, but the public interest is also served by minimizing the number of COVID-19 infections. More infections in Butler and Morrow means not only putting those who are detained and work there in danger, but also the surrounding community where those employed at the jails live. More infections beget more infections. That is the whole point of social distancing. It protects us all because it helps to minimize the spread of this dangerous infection and it ensures that our hospitals do not become overwhelmed.
c. Balancing the Factors
*6 The Court concludes that all four factors weigh in Petitioners’ favor at this time. Respondents’ minimal interest in detaining individuals who are not a risk of flight is heavily outweighed by the strong interest of Petitioners and the community as a whole in protecting the health of Petitioners and the rest of us.
IV. CONCLUSION For the reasons described above, the Court GRANTS Petitioners’ Motion for TRO and ORDERS the following:
Petitioners are to be released immediately. 6 Petitioners are ordered to quarantine themselves for the next fourteen days in compliance with the guidelines issued by the Centers for Disease Control and Prevention (“CDC”) and the Ohio Department of Health (“ODH”). Petitioners are ordered to file declarations, as soon as possible after their release, confirming that they will comply with this quarantine order and that they will comply with CDC and ODH guidelines.
6 During the Conference, the Court ordered the Petitioners to provide certain information to Respondents prior to their release. Respondents represent that Petitioners have provided the requisite information, so the Court finds immediate release to be appropriate.
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For Educational Use Only
Refunjol v. Adducci, Slip Copy (2020)
Petitioners are ordered to remain on home detention following the conclusion of this fourteen-day quarantine. Petitioners will not be subject to GPS monitoring.
In the case of Petitioner Adenis Enrique Prieto Refunjol, he may not leave Ohio until Respondents have approved his planned living arrangements in Florida. Any objections by Respondents regarding Mr. Refunjol’s living arrangements or by Petitioners in the event Respondents withhold approval are to be filed with this Court as soon as possible.
The Court GRANTS Petitioners’ Motion to File their relevant medical records under seal, and Petitioners shall file these medical records as soon as possible.
The Court will hold a preliminary injunction hearing on Monday, May 11, 2020, at 1:30pm. This TRO is to remain in effect until the conclusion of the preliminary injunction hearing.
IT IS SO ORDERED.

All Citations Slip Copy, 2020 WL 1983077
End of Document

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© 2020 Thomson Reuters. No claim to oErigxinhal iUb.Sit. G1ov8ern-mRenteWfourkns.jol v. Adducci 9

Case 2:20-cv-11053-MAG-RSW ECF No. 30-20 filed 05/18/20 PageID.2131 Page 1 of 6
Michigan ranks highest in nation for prisoner deaths from coronavirus
A!lgi.£.Jackson and Kristi Tanner, Detroit Free Press Published 6:0 I a.m. ET May 9, 2020 I Updated 9:05 a.111. ET May 9, 2020
Debra Matthews is pictured with her brother John Thompson during a visit in prison in 2014. Thompson died May 4 of COVID19. (Photo: Debra Matthews) The last time Debra Matthews spoke to her brother. a nurse held the phone to his ear as he lay in a hospital bed on a ventilator. John Thompson. 64, had COVID-19 and had been on life support for nearly two weeks after becoming ill at Lakeland Correctional Facility in Coldwater. Over the phone from her home in Indianapolis on May 2, Matthews encouraged her older brother to keep fighting. "I was still hopeful," she said. "I had spoken with one of his doctors, and they were looking for the plasma antibodies for him." Thompson died two days later. Reflecting now. Matthews realizes her brother was tired. He was tired from illness that had plagued him in recent years. Tired from 37 years in prison.
Exhibit 19 - Michigan ranks highest in Death frrom coronavirus

Case 2:20-cv-11053-MAG-RSW ECF No. 30-20 filed 05/18/20 PageID.2132 Page 2 of 6
Thompson is among 49 state prisoners who have died of complications of COVID-19. The Michigan Department of Corrections has logged more coronavirus deaths than any other state prison system and ranks second nationwide behind New Jersey for prisoner deaths per, capita, according to The Marshall Project (https://www.themarshallw:gj�/2020/05/01/a-state-bY.-state-look-at-coronavjrus-in-� utm medium=emajl&utm camprJign=newsletter&utm source=opening-statement&utm term=newsletter-202ooso2191s&utm source=Jbe+Marshan+eroject+Newsletter&utm campaigo=esteetssee-
os EMAIL CAMPAIGN 2020 02 11 03&utm medium=email&utm term=0 5e02cdad9d-65f6ef5966-174599736}. a nonprofit journalism outfit that
reports on the criminal justice system and is tracking the virus in prisons across the country. ADVERTISEMENT
MDCC also has more deaths from COVID-19 than the federal prison system, which houses more than 172,000 people nationwide, a population that's nearly five times larger than MDOC's population of roughly 38,000. Two MDCC staff have died from COVID-19. As the death toll behind bars rises, families and advocates say they grapple with feelings of helplessness. 'When you have been in prison yourself and almost every single day you read about more incarcerated people dying from COVID-19, it is devastating," said Joshua Hoe, policy analyst for Safe and Just Michigan, who was formerly incarcerated. "None of these people were sentenced to die from this virus and how we choose to respond says a lot about how much worth as a society we place on incarcerated lives." More: prisoners sue Michiga�artment of Corrections over coronavirus respQ!Jtt..(/story/news/local/michigan/2020104130/mjchjg�artment-of­ corrections-class-actjon-lawsuit-coronayirus-in-prisonsf304zg210010 More: Prjson officers with allergies can sue over inmate leader dog training.!2£QQ.ram..(/stoiy/news/local/mjchjgan/2020/05/08/macomb-corrections­ officers-allergies-lawsuit-prison-leader-dog=™ram/30948000010.
Prisoners vulnerable to illness
A prisoner at Parnall Correctional Facility near Jackson was the first to die of the yirus �/news/iocal/mjchigan/2020/04/04/mjchjga.n-prisoner-dies­
coronayirus-joe-kearney/2943364001D on April 1. Just over a month later, a total of 49 prisoners have succumbed to COVID-19.
Exhibit 19 - Michigan ranks highest in Death frrom coronavirus

Case 2:20-cv-11053-MAG-RSW ECF No. 30-20 filed 05/18/20 PageID.2133 Page 3 of 6
Number of Michigan COVID-19 prisoner deaths by day
Number of deaths

2
] I

SOURCE Michigan Department of Corrections• NOTE Date of death is identified as the listed discharge date in the Offender Tracking Information System.
•A Flourish chart (https://publlc.flourlsh.studio/vlsuallsatlon/2302423/? utm_source=showcase&utm_campaign=vlsualisatlon/2302423)

{httRs://g_ublic.flourish.studio/visualisation/2302423/? utm source=embed&utm camP..filgn=visualisation/23024231

Those who have died range from 47 to 86 years old. Just over half were 65 years or older.

Eighteen deaths, or more than a third, were prisoners at Lakeland Correctional Facility. There, about 17% of prisoners are 65 and older, and manY. prisoners have chronic health conditions (/stor_y_/news/local/michigan/2020/04/25/coronavirus-cases-michigan-Rrison-surge-widesg_read-testing:
Rrisoners/3002811001i)..
Prisoner COVI D-19 cases and deaths by location

Search in table

> Page 1 of 4

Correctional facility
Lakeland (Coldwater)
Parnall (Jackson)
Detroit Reentry Center
Macomb (Lenox Twp)
G. Robert Cotton (Jackson)

% of confirmed tests 54.3% 10.8% 7.5%
7.3%
38.6%

Number of confirmed cases
791 177
19
100
680

Deaths 18 10
5

Note· Facility prison population data used to calculate rates are from March 22, when the first COV/0-19 case was identified. Only locations with confirmed prisoner COVID-19 cases as of Thursday evening are included.
Source: Free Press analysis of Michigan Department of Corrections data • Created with Datawrapper

"The elderly are more at risk," said Dr. Marc Stern, former medical director of the Washington Department of Corrections and faculty member at the University of Washington's School of Public Health. "And whereas we use 65 as the definition of elderly in the community, in prison, we should be using an age that's 10 or 15 years younger."

Exhibit 19 - Michigan ranks highest in Death frrom coronavirus

Case 2:20-cv-11053-MAG-RSW ECF No. 30-20 filed 05/18/20 PageID.2134 Page 4 of 6
Experts say prisoners are more likely to suffer from infectious disease than the general public. An estimated 40% of p§2ple incarcerated
.(hllP-s://www,bj§..9ov/content/rumLP-df/mp�jj_1jj2g in jails and prisons have at least one chronic medical condition.

A number of factors - environmental living conditions, physical trauma, living in close quarters - can make incarcerated individuals vulnerable to illness, said Dr. Warren Ferguson, professor and senior vice chair of the Department of Family Medicine and Community Health at the University of Massachusetts Medical School.

The quality of food in prisons puts people at higher risk for diabetes and obesity.People who inject drugs in prison are at higher risk for infection such as HIV and hepatitis C, said Ferguson, who is also director of academic programs for the Health and Criminal Justice Program at UMass Medical School.

As of Friday morning, 2,090 state prisoners were confirmed to have the coronavirus. Results (https://mediym.com/@MichiganDOC/mdoc-takes-steps-to­ prevent-spread-of-coronavjrus-coyjd-19-250f43144337) were pending for nearly 7,500 prisoners as the Department of Corrections wrapped up testjngm all inmates (/story/news/local/michigan/2020/05/02/coronavirus-michig�l2Qfil-peninsula-testing-natjonal-guard/3072875001/). at six prisons in the Upper Peninsula, a collaboration with the Michigan National Guard.

Michigan has tested nearly 12,000 prisoners, which far exceeds testing by any of the 38 other states that reported that data to The Marshall Project.

MDOC has the third highest number of COVID-19 cases after Ohio and the Federal Bureau of Prisons. The department ranks fourth in cases per capita.
COVID-19 prisoner cases by state

Search in table

Page 1 of 4 )

Prison system Ohio Federal Michigan Tennessee Texas Arkansas North Carolina Kansas Virginia Indiana Connecticut New York California Florida Massachusetts

Cases per 10,000 prisoners
884 157 548 926
95 519 186 622 203 186 391
97 34 43 429

Total COVID-19 cases V

2,701 2,090 1,959 1,336 944 627 615 580 500 478 415 398 393 351

4,312

Note: A dash "-" reflects that data were not available or a state did not respond as of May 6. Michigan COVID-19 prisoner cases are as reported by the Michigan Department of Corrections on May 7. Source: The Marshall Project • Created with Datawrapper

Nationwide, at least 20, 119 people in prison have tested positive for the virus and 304 have died as of Wednesday, according to The Marshall Project. Fifty Michigan prisoners were hospitalized with the virus as of Wednesday evening, said Chris Gautz, Department of Corrections spokesman. As of Friday, 303 staff members across the state have tested positive. In correctional facilities where there are high rates of infection, Stern says it is important to consider the quality of health care that prisoners receive.

Exhibit 19 - Michigan ranks highest in Death frrom coronavirus

Case 2:20-cv-11053-MAG-RSW ECF No. 30-20 filed 05/18/20 PageID.2135 Page 5 of 6
"Generally, in the prison system, if health care delivery was inadequate prior to the COVID-19 outbreak, then there's a very good likelihood that the
quality of health care is even worse now,'' Stern said.

"It may explain not only the infection rate but more importantly, the death rate. Because patients may have trouble getting seen for their symptoms. And when they're seen, the care that they get maybe suboptimal."

The Michigan Department of Corrections has a rate of 13 deaths per 10,000 prisoners. As of Wednesday, the New Jersey Department of Corrections had a rate of 21 deaths per 10,000 prisoners, according to data from The Marshall Project. New Jersey's prison population is about half the size of MDOC.
COVID-19 prisoner deaths by state

Search in table

Page 1 of 6 )

Prison system Michigan Ohio Federal New Jersey Texas New York Indiana Illinois Georgia Florida

Deaths per 10,000 prisoners
13.0 8.6 2.4
21.0 1.6 3.5 4.8 3.3 1.8 0.8

Number of deaths V

23
15 13 12 10 7

49 42 42 38

Note: A dash "-" reflects that data were not available or a state did not respond as of May 6. Michiganprisonerdeaths are as reported by the Michigan Department of Corrections on May 7. Source: The Marshall Project• Created with Datawrapper

Statewide, Michigan ranks sixth in the nation in the number of overall COVID-19 deaths per capita, with four deaths per 10,000 residents, according to The New York ]mes (hllps://www nytimes.comtinteractive/20201us/coronavirus-us-cases html).
Calls to release prisoners
Stern said prison systems should do "everything they can to downsize the population" in light of COVID-19 outbreaks.
The Department of Corrections says the parole board is working overtime to accelerate p,aroles (l§k>ry/news/local/mjchigan/detroit/2020/04/20/michigan­ parolees-coronavirus-hjgh-jnfection-rates-mdc-testing-rates/2983605001/) for eligible prisoners who have reached their earliest release date.
Prisoner advocates say that's not enough. They continue to call on Gov. Gretchen Whitmer to use her clemency powers to free elderly and medically vulnerable prisoners who are not likely to re-offend.
'We don't have the death sentence in Michigan," said Monica Jahner, who is formerly incarcerated and works with people returning home from prison through the Ingham County program Advocacy, Reentry, Resources, and Outreach.
Gautz pointed out that of the prisoners who have died, about half were serving life sentences for murder or other serious crimes.
"These are the kind of people that would not have been released under any sort of executive order that could possibly be envisioned," Gautz said.
Hoe of Safe and Just Michigan points to new research out of the Unjversity of Michigan...(ht1J2§.;LL12.�_pers.ssrn.com/sol3/p,iwers.cfm?abstract id=3571912) that suggests prisoners over the age of 50 who were convicted of violent crimes pose a l�w risk of recidivism. His group wants Whitmer to use her clemency powers and expand the parole board to process more releases.

'They still are human beings'
Exhibit 19 - Michigan ranks highest in Death frrom coronavirus

Case 2:20-cv-11053-MAG-RSW ECF No. 30-20 filed 05/18/20 PageID.2136 Page 6 of 6
Thompson, the man who died of COVID-19 earlier this month, was serving a life sentence without the possibility of parole. Matthews said the 1982 killing that landed her brother in prison for first-degree murder devastated their family. It still hurts today. The siblings grew up in a loving home in Muskegon, Matthews said. She and Thompson were adopted from separate biological families. "I think that John was broken when my parents got him," she said. Thompson struggled as a young man, going on drinking binges that would alter his personality, Matthews said. He started borrowing money from their longtime pastor. During an episode fueled by alcohol and drugs, Thompson and another person went to the pastor's home for money. The encounter ended in the pastor's death. In prison, Matthews said her brother repented to God, the pastor's family and the church. "He had taken ownership of his crimes. He was not that person anymore," she said. Matthews holds onto fond memories of her brother, recalling his big laugh that always made her laugh. He was four years older than her and a big guy 6 feet tall and 250 pounds before he died - and fought her battles at school. "He was good to me as a kid," she said. Thompson's health had worsened in recent years. He had his knees replaced. He had diabetes, and a stroke last year left him legally blind. Matthews suspects he had pancreatic cancer. Given her brother's underlying health c�nditions, Matthews thinks Lakeland Correctional Facility should have taken more preventive steps to protect him and other vulnerable prisoners from COVID-19. "It really hurts to think that ... nobody really cares about these people," she said. "They still are human beings." Angie Jackson covers the challenges of formerly incarcerated citizens as a corps member with Report for America, an initiative of The GroundTruth Project, with support from the Hudson-Webber Foundation. Click here (/lJJps:llcheckout func/journalism orgldonateform? QJJJ. id=rfu;,orlforamerica&camRMJa=701f4Q0000OnNUT&theme=Detroit%2QFree'¼20PressJ to support her work. Contact Angie: .aiackson@fre,w.ress.com fmailto:aiackson@freepress.com1: 313-222-1850. Follow her on twitter: @AngieJackson23 fl11Jps:lltwitter. com/AngieJackson23J Kristi Tanner is the computer-assisted reporting coordinator at the Free Press, where she is a member of the investigations team. Kristi is an adjunct professor at Wayne State University, where she teaches statistics. Contact Kristi: ktanner@freepress.com; 313-222-8877. Read or Share this story: https://www.freep.com/story/news/local/michigan/2020/05/09/p�isoner-coronavirus-covid-19-deaths/3090182001/
Exhibit 19 - Michigan ranks highest in Death frrom coronavirus

Case 2:20-cv-11053-MAG-RSW EMaCnFvilNle,oD. a3n0ie-l251/18/f2i0le20d 05/18/20 PageID.2137 Page 1 of 17
For Educational Use Only
Basank v. Decker, --- F.Supp.3d ---- (2020) 2020 WL 1481503, 111 Fed. R. Evid. Serv. 1324
KeyCite Yellow Flag - Negative Treatment Declined to Follow by Sacal-Micha v. Longoria, S.D.Tex., April 9, 2020
2020 WL 1481503 United States District Court, S.D. New York.
Vasif “Vincent” BASANK; Freddy Barrera Carrerro; Manuel Benitez Pineda; Miguel Angel Hernandez Balbuena; Latoya Legall; Carlos Martinez; Estanlig Mazariegos;
Manuel Menendez; Antar Andres Pena; and Isidro Picazo Nicolas, Petitioner, v.
Thomas DECKER, in His Official Capacity as Director of the New York Field Office of U.S. Immigrations & Customs Enforcement; and Chad Wolf, in His Official
Capacity as Acting Secretary, U.S. Department of Homeland Security, Respondents.
20 Civ. 2518 (AT) |
Signed 3/26/2020
Synopsis Background: Alien detainees, who suffered from serious chronic medical conditions and were detained in connection with their removal proceedings in county jails where cases of COVID-19 had been identified, petitioned for § 2241 writ of habeas corpus, requesting release from custody of Immigration and Customs Enforcement (ICE) because of public health crisis posed by coronavirus and also moved for temporary restraining order (TRO) releasing them on their own recognizance, subject to reasonable and appropriate conditions, and restraining Director of New York Field Office of ICE and Acting Secretary of Department of Homeland Security (DHS) from arresting detainees for civil immigration detention purposes during pendency of their immigration proceedings.
Holdings: The District Court, Analisa Torres, J., held that:
[1] detainees would suffer irreparable harm absent TRO;
[2] detainees would likely succeed on merits of due process claim;
[3] balance of equities weighed in favor of TRO; and
[4] public interest supported TRO.
© 2020 Thomson Reuters. No claim to originEalxUh.Si.bGoitve2rn0men-t WBoarkss.ankv. Decker 1

Case 2:20-cv-11053-MAG-RSW EMaCnFvilNle,oD. a3n0ie-l251/18/f2i0le20d 05/18/20 PageID.2138 Page 2 of 17
For Educational Use Only
Basank v. Decker, --- F.Supp.3d ---- (2020) 2020 WL 1481503, 111 Fed. R. Evid. Serv. 1324
Motion granted. Procedural Posture(s): Motion for Temporary Restraining Order (TRO).
West Headnotes (20)
[1] Injunction Grounds in general;  multiple factors A plaintiff seeking a temporary restraining order (TRO) 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. 1 Cases that cite this headnote
[2] Injunction Relation or conversion to preliminary injunction The standard for entry of a temporary restraining order (TRO) is the same as for a preliminary injunction.
[3] Injunction Irreparable injury The showing of irreparable harm is the single most important prerequisite for a preliminary injunction.
[4] Injunction Irreparable harm Injunction Adequacy of remedy at law Under the irreparable harm prong of the test for a temporary restraining order (TRO), the movant must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.
[5] Injunction Irreparable harm
© 2020 Thomson Reuters. No claim to originEalxUh.Si.bGoitve2rn0men-t WBoarkss.ankv. Decker 2

Case 2:20-cv-11053-MAG-RSW EMaCnFvilNle,oD. a3n0ie-l251/18/f2i0le20d 05/18/20 PageID.2139 Page 3 of 17
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Basank v. Decker, --- F.Supp.3d ---- (2020) 2020 WL 1481503, 111 Fed. R. Evid. Serv. 1324
To satisfy the irreparable harm requirement for a temporary restraining order (TRO), a movant must demonstrate that he would suffer irreparable harm if the TRO does not issue.
2 Cases that cite this headnote
[6] Injunction Discretionary nature of remedy The district court has wide discretion in determining whether to grant a preliminary injunction.
[7] Injunction Irreparable injury Irreparable harm required for issuance of a preliminary injunction must be actual and imminent rather than speculative.
[8] Civil Rights Preliminary Injunction Alien detainees, who suffered from chronic medical conditions and were detained by Immigration and Customs Enforcement (ICE) in county jails where cases of COVID-19 were confirmed, would suffer irreparable harm absent temporary restraining order (TRO) releasing them on their own recognizance and preventing their arrest for civil immigration detention purposes during pendency of their immigration proceedings; detainees risked imminent, severe, and possibly fatal infection if they remained in detention, as well as deprivation of their right to due process from deliberate indifference to their health. U.S. Const. Amend. 5.
5 Cases that cite this headnote
[9] Evidence Facts relating to human life, health, habits, and acts On motion for temporary restraining order (TRO) by alien detainees seeking release from Immigration and Customs Enforcement (ICE) custody in county jails in which cases of COVID-19 had been confirmed, judicial notice would be taken that for people of advanced age, with underlying health problems, or both, COVID-19 caused severe medical conditions and had increased lethality. Fed. R. Evid. 201(b).
25 Cases that cite this headnote
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[10] Civil Rights Preliminary Injunction An alleged constitutional violation constitutes irreparable harm required for grant of temporary restraining order (TRO). 3 Cases that cite this headnote
[11] Constitutional Law Protections Provided and Deprivations Prohibited in General The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. Amend. 5.
[12] Constitutional Law Persons and Entities Protected Constitutional Law Non-citizens;  aliens Due process protection applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. U.S. Const. Amend. 5.
[13] Habeas Corpus Limitations and conditions;  treatment and discipline An application for § 2241 habeas corpus is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. 28 U.S.C.A. § 2241.
[14] Constitutional Law Arrest, detention, supervision, and parole 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. U.S. Const. Amend. 5. 7 Cases that cite this headnote
[15] Civil Rights Preliminary Injunction
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Alien detainees seeking temporary restraining order (TRO), releasing them on their own recognizance and preventing their arrest for civil immigration detention purposes during pendency of their immigration proceedings, were likely to succeed on merits of due process claim that Director of New York Field Office of Immigration and Customs Enforcement (ICE) and Acting Secretary of Department of Homeland Security (DHS) were deliberately indifferent to detainees’ conditions of confinement in county jails, where cases of COVID-19 cases were identified, that posed excessive risk of life-threatening illness to detainees who suffered from chronic medical conditions; officials knew or should have known of risk and failed to take sufficient action to protect detainees' future health. U.S. Const. Amend. 5.
15 Cases that cite this headnote
[16] Constitutional Law Restraint, commitment, and detention Government authorities may be deemed deliberately indifferent to an inmate's current health problems in violation of due process, 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. U.S. Const. Amend. 5.
1 Cases that cite this headnote
[17] Constitutional Law Restraint, commitment, and detention Inmates need not demonstrate that they actually suffered from serious injuries to show a due process violation from deliberate indifference to their medical needs; instead, showing that the conditions of confinement pose an unreasonable risk of serious damage to their future health is sufficient. U.S. Const. Amend. 5.
13 Cases that cite this headnote
[18] Civil Rights Preliminary Injunction Balance of equities weighed in favor of temporary restraining order (TRO) releasing alien detainees on their own recognizance from county jails, where they were in Immigration and Customs Enforcement (ICE) custody and COVID-19 cases had been identified, and preventing their arrest for civil immigration detention purposes during pendency of their immigration proceedings; detainees faced irreparable harm to their due process rights
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and their health from continued detention in unsafe conditions, and interest of Director of New York Field Office of ICE and Acting Secretary of Department of Homeland Security (DHS) in detainees’ in-person participation in future immigration proceedings was safeguarded by grave consequences of their failure to appear. U.S. Const. Amend. 5. 5 Cases that cite this headnote
[19] Aliens, Immigration, and Citizenship Judicial Review or Intervention Civil Rights Judgment and relief in general Courts have the authority to order those detained in violation of their due process rights released, notwithstanding statute requiring mandatory detention of criminal aliens. U.S. Const. Amend. 5; Immigration and Nationality Act, § 236, 8 U.S.C.A. § 1226(c). 3 Cases that cite this headnote
[20] Aliens, Immigration, and Citizenship Judicial Review or Intervention Public interest supported grant of temporary restraining order (TRO) releasing alien detainees on their own recognizance from county jails, where they were in Immigration and Customs Enforcement (ICE) custody and COVID-19 cases had been identified, and preventing their arrest for civil immigration detention purposes during pendency of their immigration proceedings, since public interest in health and safety was served best by rapidly decreasing number of individuals detained in confined and unsafe conditions. 6 Cases that cite this headnote
Attorneys and Law Firms Alexandra Lynn Lampert, Hannah McCrea, Mary Sameera Van Houten Harper, Brooke Menschel, Brooklyn Defender Services, Brooklyn, NY, for Petitioner. Michael James Byars, U.S. Attorney's Office, SDNY (Chambers Street), New York, NY, for Respondents.
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MEMORANDUM AND ORDER
ANALISA TORRES, District Judge:
*1 Petitioners, Vasif “Vincent” Basank, Freddy Barrera Carrerro, Manuel Benitez Pineda, Miguel Angel Hernandez Balbuena; Latoya Legall, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Antar Andres Pena, and Isidro Picazo Nicolas, are currently detained by Immigration and Customs Enforcement (“ICE”) in county jails where cases of COVID-19 have been identified. Petition ¶ 1, ECF No. 9.
Last night after 11:00 p.m., Petitioners filed an amended petition for a writ of habeas corpus under 28 U.S.C. § 2241, requesting release from ICE custody because of the public health crisis posed
by COVID-19. See Petition. Petitioners also submitted an application for a temporary restraining order (“TRO”) pursuant to Rule 65 of the Federal Rules of Civil Procedure, seeking an order (1) releasing them on their own recognizance, subject to reasonable and appropriate conditions, and (2) restraining Respondents, Thomas Decker, in his official capacity as Director of the New York Field Office of ICE, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO at 1, ECF No. 6.
For the reasons stated below, the TRO is GRANTED, and (1) Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities, are ORDERED to immediately release Petitioners today on their own recognizance, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.
BACKGROUND
Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. They are housed in New Jersey county jails where either detainees or staff have tested positive for COVID-19. TRO at 3–4. Specifically, Basank, Benitez Pineda, and Mazariegos are detained at the Hudson County Correctional Facility (“Hudson County Jail”). Petition ¶¶ 5, 7, 11. Barrera Carrerro, Hernandez Balbuena, Legall, Martinez, and Menendez are detained at the Bergen County Correctional Facility (“Bergen County Jail”). Id. ¶¶ 6, 8, 9, 10, 12.
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Pena and Picazo Nicolas are detained at the Essex County Correctional Facility (“Essex County Jail”). Id. ¶¶ 13–14. 1
1 During oral argument, Respondents represented to the Court that five Petitioners— Hernandez Balbuena, Legall, Menendez, Basank, and Benitez Pineda—are expected to be released today. However, because Petitioners are not yet released, and because counsel for Petitioners indicated, and Respondents did not dispute, that ICE may take as long as a day to complete the release process, the Court enters the TRO as to all Petitioners directing their immediate release today without fail.
Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of death or serious injury in immigration detention if exposed to COVID-19. Basank is 54 years old and has a lengthy history of smoking. Id. ¶ 5. Barrera Carrerro, age 39, has underlying health conditions, including obesity, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding. Id. ¶ 6. Benitez Pineda is 44, with pulmonary issues and a history of hospitalization for severe pneumonia. Id. ¶ 7. Hernandez Balbuena suffers from diabetes and diabetes-related complications. Id. ¶ 8. Legall is 33 years old, and suffers from respiratory problems, including asthma. Id. ¶ 9. Martinez, age 56, suffers from severe heart disease, and has a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery. Id. ¶ 10. Mazariegos is 44, and suffers from high blood pressure and pre-diabetes. Id. ¶ 11. Menendez is 31 years old and suffers from chronic asthma. Id. ¶ 12. At 36, Pena is asthmatic and has chronic obstructive pulmonary disease (“COPD”), which require inhalers and other medical treatment. Id. ¶ 13. Picazo Nicolas, age 40, suffers from Type II diabetes and morbid obesity. Id. ¶ 14.
*2 On March 16, 2020, Hannah McCrea, an attorney with Brooklyn Defender Services, emailed Assistant United States Attorney Michael Byars, requesting that ICE release particularly vulnerable individuals, including Petitioners Basank, Legall, Martinez, and Picazo Nicolas. Harper Decl. ¶ 2, ECF No. 6-1. On March 18, 2020, AUSA Byars responded that he did “not have a timeframe for ICE's response.” Id. ¶ 3. On March 24, 2020, Alexandra Lampert, also a lawyer with Brooklyn Defender Services, emailed Byars to request the release of additional individuals identified as particularly vulnerable, including Barrera Carrerro, Benitez Pineda, Hernandez Balbuena, Mazariegos, Menendez, and Pena. Id. ¶ 4. On March 25, 2020, Lampert again emailed Byars and informed him of Petitioners' intent to seek a temporary restraining order in the Southern District of New York, with the amended petition attached, thus putting Respondents on notice of Petitioners' serious medical conditions and their request for injunctive relief. Id. ¶¶ 5, 7.
At 12:30 p.m. today, the Court held a telephonic hearing on Petitioners' request for a TRO.
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DISCUSSION
I. Legal Standard [1] “A plaintiff seeking a temporary restraining order 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.” Natera, Inc. v. Bio-Reference Labs., Inc., No. 16 Civ. 9514, 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (internal quotation marks, citation, and alteration omitted).
[2] [3] [4] [5] [6] “It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). “The showing of irreparable harm is perhaps the single most important prerequisite for a preliminary injunction.” CF 135 Flat LLC v. Triadou SPY N.A., No. 15 Civ. 5345, 2016 WL 2349111, at *1 (S.D.N.Y. May 3, 2016) (internal quotation marks, citation, and alteration omitted). Under this prong, the movant “must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.” NAACP v. Town of E. Haven, 70 F.3d 219, 224 (2d Cir. 1995). To satisfy this requirement, a movant must demonstrate “that he would suffer irreparable harm if the TRO does not issue.” Andino, 555 F. Supp. 2d at 419. “The district court has wide discretion in determining whether to grant a preliminary injunction.” Almontaser v. N.Y.C. Dep't of Educ., 519 F.3d 505, 508 (2d Cir. 2008) (internal quotation marks and citation omitted) (per curiam).
II. Analysis
A. Irreparable Harm
[7] In the Second Circuit, a “showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citations omitted). That harm must be “actual and imminent” rather than speculative. Id.
[8] Petitioners have shown irreparable injury by establishing the risk of harm to their health and to their constitutional rights.
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1. Risk of Death
On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. Petition ¶ 26. At that time, there were more than 118,000 cases in 114 countries, and 4,291 people had died. Id. ¶ 27. Merely two weeks later, there have been at least 458,927 cases identified in 172 countries and at least 20,807 people have died. Id. New York and its surrounding areas have become one of the global epicenters of the outbreak. Id. ¶ 35. Petitioners are held at detention facilities located in northern New Jersey. See id. ¶¶ 5–14.
As of March 26, 2020, New Jersey has 4,407 confirmed cases of COVID-19—the second highest number of reported cases by any state after New York. Niko Kommenda and Pablo Gutierrez, Coronavirus map of the US: latest cases state by state, The Guardian (Mar. 26, 2020), https://www.theguardian.com/world/ng-interactive/2020/mar/26/coronavirus-map-of-theus-latest-cases-state-by-state. New Jersey also has the fourth most COVID-19 related deaths in the country. Id. The three counties where the jails are located—Bergen, Essex, and Hudson counties —comprise one-third of the confirmed cases of COVID-19 in New Jersey, with Bergen County reporting 819 positive results, Essex reporting 381 positives, and Hudson 260. Petition ¶ 36. The jails are no exceptions. Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19. Id. ¶ 41. This includes two detainees and one correctional officer in the Hudson County Jail; one detainee at the Bergen County Jail; and a “superior officer” at the Essex County Jail. Id.
*3 The nature of detention facilities makes exposure and spread of the virus particularly harmful. Jaimie Meyer, M.D., M.S., who has worked extensively on infectious disease treatment and prevention in the context of jails and prisons, recently submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers, including the Hudson, Bergen, and Essex County Jails, “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.
Moreover, medical doctors, including two medical experts for the Department of Homeland Security, have warned of a “tinderbox scenario” as COVID-19 spreads to immigration detention centers and the resulting “imminent risk to the health and safety of immigrant detainees” and the public. Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/doctors-icedetention-coronavirus/index.html. “It will be nearly impossible to prevent widespread infections inside the Hudson, Bergen, and Essex County jails now that the virus is in the facilities because
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detainees live, sleep, and use the bathroom in close proximity with others, and because ‘[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’ ” Petition ¶ 47 (internal quotation marks and citation omitted).
[9] Petitioners face serious risks to their health in their confinement. Each has underlying illnesses, including asthma, diabetes, heart disease, hypertension, obesity, and respiratory problems including COPD. Id. ¶¶ 5–14. The Court takes judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality. People at Risk for Serious Illness from COVID-19, Centers for Disease Control (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-riskcomplications.html (“Older people and people of all ages with severe underlying health conditions —like heart disease, lung disease and diabetes, for example—seem to be at higher risk of developing serious COVID-19 illness.”); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, Centers for Disease Control (Mar. 22, 2020), https://www.cdc.gov/ coronavirus/2019-ncov/hcp/underlying-conditions.html (listing, among other medical diagnoses, “moderate to severe asthma,” “heart disease,” “obesity,” and “diabetes” as conditions that trigger higher risk of severe illness from COVID-19); see Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”); Brickey v. Superintendent, Franklin Corr. Facility, No. 10 Civ. 085, 2011 WL 868148, at *2 n.3 (N.D.N.Y. Feb. 17, 2011) (taking judicial notice of the meaning and symptoms of the condition sciatica), report and recommendation adopted, 2011 WL 868087 (N.D.N.Y. Mar. 10, 2011); Lin v. Metro. Life Ins. Co., No. 07 Civ. 03218, 2010 WL 668817, at *1 (S.D.N.Y. Feb. 25, 2010) (“In its decision, the Court took judicial notice of certain medical background information about Hepatitis B.”).
A number of courts in this district and elsewhere have recognized the threat that COVID-19 poses
to individuals held in jails and other detention facilities. See United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”) (collecting authorities); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)); see also Letter from Mike McGrath, Chief Justice, Montana Supreme Court, to Montana Courts of Limited Jurisdiction
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Judges (Mar. 20, 2020), https://courts.mt.gov/Portals/189/virus/Ltr% 20to% 20COLJ% 20Judges % 20re% 20COVID-19% 20032020.pdf?ver=2020-03-20-115517-333 (“Because of the high risk of transmittal of COVID-19, not only to prisoners within correctional facilities but staff and defense attorneys as well, we ask that you review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for nonviolent offenses.... Due to the confines of [correctional] facilities, it will be virtually impossible to contain the spread of the virus.”). Indeed, at least one court has ordered the release on bail of a non-citizen in immigration detention on the ground that detention conditions have been rendered unsafe by COVID-19. Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507. Addressing the situation in New Jersey specifically, the New Jersey Supreme Court has held that “reduction of county jail populations, under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19” in light of “the profound risk posed to people in correctional facilities arising from the spread of COVID-19,” and has ordered the release of many individuals serving sentences in New Jersey county jails. In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020).
*4 Courts have also recognized this health risk to be particularly acute—and of constitutional
significance—for inmates who are elderly or have underlying illnesses. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of
the risk to his health the pandemic poses. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelter-in-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in
immigration detention constitutes irreparable harm warranting a TRO. See Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (upholding finding of irreparable injury “premised ... upon [the district court's] finding that [plaintiff] was subject to risk of injury, infection, and
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humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services ... certainly constitutes irreparable harm.”).
2. Constitutional Violations
[10] Second, Petitioners have also shown irreparable injury because, as discussed below, they face a violation of their constitutional rights. In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm. See, e.g., Connecticut Dep’t of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citations omitted)); Statharos v. New York City Taxi & Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that immigration detainee established irreparable injury by alleging that prolonged immigration detention violated his constitutional due process rights).
The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the TRO.
B. Likelihood of Success on the Merits
The Court concludes that Petitioners have met their burden of showing a likelihood of success on the merits. Petitioners argue that their continued confinement in ICE detention centers where COVID-19 is present and without adequate protection for their health violates their due process rights. TRO at 8. The Court agrees.
[11] [12] [13] The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). An application for habeas corpus under 28
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U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate's “transfer while seriously ill” where that transfer posed a risk of fatal heart failure).
*5 [14] [15] [16] [17] 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 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. 2 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, 113 S.Ct. 2475, 125 L.Ed.2d 22 (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, 113 S.Ct. 2475. 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, 113 S.Ct. 2475) (alteration omitted).
2 Other courts have recognized of the heightened risk to detainees in contracting COVID-19. See, e.g., Xochihua-Jaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020) (unpublished) (“In light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention ....”); Stephens, 2020 WL 1295155, at *2 (ordering “conditions of 24-hour home incarceration and electronic location monitoring”); Chris Villani, Releasing ICE Detainee, Judge Says Jail No Safer Than Court,
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Law360, March 25, 2020 (“We are living in the midst of a coronavirus pandemic, some infected people die, not all, but some infected people die,” U.S. District Judge Wolf said. “Being in a jail enhances risk. Social distancing is difficult or impossible, washing hands repeatedly may be difficult. There is a genuine risk this will spread throughout the jail.”).
Respondents have exhibited, and continue to exhibit, deliberate indifference to Petitioners' medical needs. The spread of COVID-19 is measured in a matter of a single day—not weeks, months, or years—and Respondents appear to ignore this condition of confinement that will likely cause imminent, life-threatening illness. At oral argument, Respondents represented that ICE and the detention facilities in which Petitioners are housed are taking certain measures to prevent the spread of the virus: screening detainees upon intake for risk factors, isolating detainees who report symptoms, conducting video court appearances with only one detainee in the room at a time, providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities.
These measures are patently insufficient to protect Petitioners. At today's hearing, Respondents could not represent that the detention facilities were in a position to allow inmates to remain six feet apart from one another, as recommended by the Centers for Disease Control and Prevention (“CDC”). See How to Protect Yourself, Centers for Disease Control (Mar. 18, 2020), https:// www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html. Nor could Respondents provide the Court with any information about steps taken to protect high-risk detainees like Petitioners. And though Respondents represented that the detention facilities are below their full capacity, the appropriate capacity of a jail during a pandemic obviously differs enormously from its appropriate capacity under ordinary circumstances. Confining vulnerable individuals such as Petitioners without enforcement of requisite social distancing and without specific measures to protect their delicate health “pose[s] an unreasonable risk of serious damage to [their] future health,” Phelps, 308 F.3d at 185 (internal quotation marks and citation omitted), and demonstrates deliberate indifference.
*6 The Court holds, therefore, that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners' conditions of confinement pose excessive risks to their health. 3
3 The Court does not reach Petitioners' additional argument that they are likely to succeed on the merits of the claim that their due process rights were violated because their current conditions of confinement are punitive. TRO at 8–9.
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C. Balance of Equities and Public Interest
[18] The equities and public interest weigh heavily in Petitioners' favor. First, Petitioners face irreparable injury—to their constitutional rights and to their health.
Second, the potential harm to Respondents is limited. At today's hearing, Respondents were unable to identify a single specific reason for Petitioners' continued detention. And the Court finds that there is none. Petitioners' counsel committed to ensuring the continued appearance of Petitioners at immigration hearings. And, of course, Petitioners' failure to appear at those hearings would carry grave consequences for their respective cases. The Court finds that those incentives are sufficient to safeguard Respondents' interest in Petitioners' in-person participation in future immigration court proceedings.
[19] At oral argument, Respondents raised the fact that Petitioners Martinez and Pena are currently mandatorily detained pursuant to 8 U.S.C. § 1226(c). 4 However, courts have the authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). Thus, Respondents have failed to justify Petitioners' continued detention in unsafe conditions.
4 As represented by Petitioners' counsel, Martinez's § 1226(c) detention was triggered by his conviction for controlled substances trafficking in 2014, an offense for which he served no term of imprisonment. Pena's § 1226(c) detention was triggered by misdemeanor marijuana convictions from 2002.
[20] Finally, the public interest favors Petitioners' release. Petitioners are confined for civil violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19 crisis, the continued detention of aging or ill civil detainees does not serve the public's interest. See Declaration of Dr. Homer Venters ¶ 12, Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Declaration of Dr. Carlos Franco-Paredes, id. at ECF No. 81-12 at 1 (“Immigration detention centers in the U.S. are tinderboxes for the transmission of highly transmissible infectious pathogens including the SARS-CoV-2, which causes COVID-19. Given the large population density of immigration detention centers and the ease of transmission of this viral pathogen, the attack rate inside these centers will take exponential proportions, consuming significant medical and financial resources.”); Urgent action needed to prevent COVID-19 “rampaging through places
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of detention” – Bachelet, UNHCR (Mar. 25, 2020), https://www.ohchr.org/en/NewsEvents/Pages/ DisplayNews.aspx?NewsID=25745&LangID=e (United Nations High Commissioner for Human Rights urging that detention of people in jails “should be a measure of last resort, particularly during this crisis”). To the contrary, public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions. See, e.g., Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”).

CONCLUSION
*7 For the reasons stated above, the TRO is GRANTED. Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities are ORDERED to immediately release Petitioners today on their own recognizance without fail. Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.
The TRO will expire on April 9, 2020, at 6:30 p.m. No later than April 2, 2020, at 12:00 p.m., Respondents must show cause why the TRO should not be converted to a preliminary injunction. Petitioners may file a response no later than April 7, 2020, at 12:00 p.m.
SO ORDERED.

All Citations --- F.Supp.3d ----, 2020 WL 1481503, 111 Fed. R. Evid. Serv. 1324

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KeyCite Yellow Flag - Negative Treatment Declined to Follow by Sacal-Micha v. Longoria, S.D.Tex., April 9, 2020
2020 WL 1643857 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Vernon JONES, et al., Petitioners, v.
Chad WOLF, et al., Respondents.
20-CV-361 |
Signed 04/02/2020
Attorneys and Law Firms
Joseph David Moravec, John H. Peng, Prisoners' Legal Services of New York, Albany, NY, Grace Ellen Zaiman, Journeys End Refugee Services, Rochester, NY, Nicholas John Phillips, Prisoners' Legal Services of New York, Robert F. Graziano, The Law Office of Robert F. Graziano, Buffalo, NY, Siana McLean, Muscato & Shatkin, LLP, Niagara Falls, NY, for Petitioners.
Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, United States Attorney's Office, Western District of New York, for Respondents.
DECISION & ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE
*1 On March 25, 2020, the petitioners, civil immigration detainees held in the custody of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) at the Buffalo Federal Detention Facility in Batavia, New York (“BFDF”), filed an “Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Injunctive Relief.” Docket Item 1. The following day, the petitioners filed a motion for a temporary restraining order (“TRO”). See Docket Item 8. The petitioners allege that their continued civil detention in the wake of the COVID-19 pandemic violates their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, and they seek their immediate release from ICE custody. Docket Item 1 at 23-24. Each petitioner is “either over the age of fifty and/or [has] a
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serious underlying medical condition, making [him] more vulnerable to complications arising from COVID-19.” Id. at 4. On March 31, 2020, this Court held oral argument on the TRO. See Docket Item 43.
For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the petitioners’ motion for a TRO. More specifically, the Court finds that holding the petitioners in the current conditions at the BFDF during the COVID-19 epidemic violates their substantive Due Process rights. Immediate release, however, is not the appropriate remedy—at least at this juncture. The Due Process violation stems from failing to take the steps recommended by public health officials to protect high-risk individuals from contracting COVID-19. Thus, as explained in more detail below, the respondents shall submit a detailed plan to the Court by 5:00 p.m. on April 3, 2020, demonstrating how they will provide those petitioners who are vulnerable individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), with a living situation that facilitates “social distancing.” No later than 9:00 a.m. on April 6, 2020, the respondents shall report to the Court as to whether any or all of the steps outlined in the plan have been taken and, if so, which ones. They also shall identify for which petitioners the measures have been taken and provide a brief explanation why any petitioner does not meet the CDC’s high-risk criteria.
BACKGROUND
The petitioners are twenty-two 1 civil immigration detainees, 2 currently held in the custody of ICE at the BFDF. Docket Item 1. Each petitioner is “either over the age of fifty and/or [has] a serious underlying medical condition, making [him] more vulnerable to complications arising from COVID-19,” a novel coronavirus that has created a global pandemic. Id. at 4. In less than four months, 951,901 people have been diagnosed with the disease. See Coronavirus Resource Center, Johns Hopkins Univ. & Med. (Apr. 2, 2020, 6:31 AM), https://coronavirus.jhu.edu/. 48,283 have died. Id.
1 Petitioner Shantadewie Rahmee was released on March 30, 2020. See Docket Item 42-5 at 1 n.1.
2 An exhaustive review of the law governing immigration detention is not possible—or necessary—here. It is sufficient, for purposes of this motion, to state that immigration detention is a form of civil detention. See Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).
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*2 Most of the petitioners allege that they suffer from one or more of the following “medical conditions that influence higher risks of severe illness or death from COVID-19”: “lung disease, including moderate to severe asthma; heart disease; immunodeficiency, including cancer; diabetes; and severe obesity.” Docket Item 1 at 2. The petitioners’ medical expert, Joe Goldenson, M.D., classifies such petitioners as being “at grave risk of developing serious complications or dying if [they] contract[ ] COVID-19.” Docket Item 14 at 4-7 (“Goldenson Decl. II”). The remaining petitioners allege that they are at a “higher risk” because of their age or other serious medical conditions. Docket Item 1 at 2. Dr. Goldenson classifies these petitioners as being “at increased risk of developing serious complications or dying if [they] contract[ ] COVID-19.” Docket Item 14 at 3, 5 (Goldenson Decl. II).
Medical professionals, including professionals employed by the United States government, are advising individuals vulnerable to serious complications from COVID-19 to self-isolate in order to reduce their risk of exposure—a measure the petitioners allege is not possible in the congregate settings in which they currently are housed at BFDF. See Section (I)(B), infra. The petitioners have not pointed to any confirmed cases at BFDF but highlight that there are at least two confirmed cases at the Wende Correctional Facility, through which all persons transferring from a New York State prison into ICE custody at BFDF are processed. Docket Item 1 at 4.
LEGAL STANDARD
“A preliminary injunction is an equitable remedy and an act of discretion by the court.” Am. Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015). The same standard governs consideration of an application for a TRO. Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Trump v. Deutsche Bank AG, 943 F.3d 627, 640 (2d Cir.), cert. granted, ––– U.S. ––––, 140 S. Ct. 660, 205 L.Ed.2d 418 (2019) (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). 3 Moreover, the Second Circuit has instructed that a mandatory injunction—that is, an injunction commanding a positive act, as opposed to one that merely maintains the status quo—“should issue ‘only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.’ ” Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985)).
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3 Although the Second Circuit also recognizes a “less rigorous standard” of “sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly in their favor,” that standard “cannot be used”—as the petitioners here seek to do—“to preliminarily enjoin governmental action.” Deutsche Bank, 943 F.3d at 637 (citations omitted); see also Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (“As long as the action to be enjoined is taken pursuant to a statutory or regulatory scheme, even government action with respect to one litigant requires application of the ‘likelihood of success’ standard.”).
DISCUSSION
I. LIKELIHOOD OF SUCCESS The petitioners allege that their continued detention during the COVID-19 pandemic violates their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution. See Docket Item 1. The Due Process Clause prohibits the federal government from depriving any “person ... of ... liberty without due process of law.” U.S. Const. amend. V. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint— lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”
Id. at 693, 121 S.Ct. 2491.
*3 “[G]overnment detention violates the Due Process Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Id. (citations omitted) (alteration in original); see also United States v. Haymond, ––– U.S. ––––, 139 S. Ct. 2369, 2373, 204 L.Ed.2d 897 (2019) (explaining that, other than those unique, special, and narrow circumstances, “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty”—a “promise [that] stands as one of the Constitution’s most vital protections against arbitrary government”); United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”).
A. Substantive Due Process Violation: Deliberate Indifference
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The petitioners’ claim is best understood as an amalgam of two theories of substantive Due Process violations: unconstitutional conditions of confinement and deliberate indifference to serious medical needs. 4 Both theories derive from the same principle:
[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 ....
Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (alterations in original) (quoting DeShaney v. Winnebago Cty. Dept. of Soc. Svcs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). This rationale applies here because a detainee’s rights are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” See City of Revere, 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983).
4 Cf. LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (“[The plaintiff] claims that his continuous health problems caused by exposure to friable asbestos in the air went unattended at [the prison] as [the] defendants failed to rid the premises of the asbestos or take measures to insulate [the plaintiff] from the asbestos particles. [The plaintiff’s] request to be kept in an asbestos-free environment constituted a serious medical need.”).
To evaluate the merits of either a conditions-of-confinement or a denial-of-medical-care claim, courts consider whether the complained-of conditions or deprivation “amount to punishment.”
Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). 5 That is so because “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Id. at 535, 99 S.Ct. 1861; see also Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (“A pretrial detainee’s claims are evaluated under the Due Process Clause because[ ] pretrial detainees have not been convicted of a crime and thus may not be punished in any manner—neither cruelly and unusually nor otherwise.” (citations omitted)).
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5 See also Charles v. Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019) (explaining that because “ ‘deliberately indifferent conduct’ is ‘egregious enough to state a substantive due process claim,’ ” a court “need not ... conduct a separate analysis, over and above the deliberate indifference analysis, of whether the state’s conduct ‘shocks the conscience’ ” (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998))).
A complained-of condition or deprivation amounts to punishment if: (a) “the disability is imposed for the purpose of punishment”—that is, there is “an expressed intent to punish on the part of detention facility officials”; (b) no “alternative purpose to which [the condition or deprivation] may rationally be connected is assignable for it”; or (c) the condition or deprivation is “excessive in relation to the alternative purpose assigned [to it].” See Bell, 441 U.S. at 538, 99 S.Ct. 1861 (third and fourth quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)).
*4 The petitioners here do not advance the first theory. Nor do they advance the second, and wisely so. There is no dispute that an individual’s unlawful presence in this country is a “special justification” that in many circumstances outweighs the individual’s interest in avoiding restraint. See Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491 (recognizing the government’s interests in detaining noncitizens to “ensur[e] the appearance of aliens at future immigration proceedings” and to “prevent[ ] danger to the community” (citations omitted)); see also Demore v. Kim, 538 U.S. 510, 528, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (“[D]etention of deportable criminal aliens pending their removal proceedings ... necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.” (alterations omitted)). 6
6 When analyzing the process due to noncitizens, there is a relevant “distinction between an alien who has effected an entry into the United States and one who has never entered.” Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491; see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (explaining that “an alien on the threshold of initial entry stands on a different footing” when it comes to Due Process rights). After all, if release from physical confinement means that noncitizens who have never “entered” our country will “be released into American society,” Chi Thon Ngo. v. I.N.S., 192 F.3d 390, 394 (3d Cir. 1999) (quoting Barrera-Eschavarria v. Rison, 44 F.3d 1441, 1448 (9th Cir. 1995)), release may “ultimately result in our losing control over our borders,” id. (quoting Jean v. Nelson, 727 F.2d 957, 975 (11th Cir. 1984)).
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Therefore, the nature of protection under the Due Process Clause “may vary depending upon [a noncitizen’s] status and circumstance.” Zadvydas, 533 U.S. at 694, 121 S.Ct. 2491. Although it appears that petitioner Patrick Maduabuchi Nwankwo was never admitted to the United States, see Docket Item 26, this Court does not find that his interests as an excludable alien are materially lower than those of removable aliens for purposes of this analysis and, more importantly, for purposes of the injunctive relief ordered today. Both the excludable- and removable-alien petitioners claim that the government is forcing them to live in conditions that fall below acceptable societal standards of decency. By holding Nwankwo in detention, the respondents have assumed a burden they cannot ignore—his status as an excludable alien notwithstanding. This Court also notes that, in light of the injunctive relief it orders today, it need not consider the penological ramifications of releasing the detainees. It nevertheless notes that the analysis in the criminal context would involve a decidedly more intense analysis of the individual’s dangerousness to the community upon release. Cf. Salerno, 481 U.S. at 749, 50, 107 S.Ct. 2095 (“The government’s interest in preventing crime by arrestees is both legitimate and compelling ... [and] heightened when the [g]overnment musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community.” (citation omitted)). While it is true that many immigration detainees have criminal histories—including some of the petitioners in this matter—it also is true that all petitioners with criminal records have served their sentences and so any risk of danger to society is necessarily not as high as that posed by someone who has not yet completed his period of rehabilitation.
The central dispute is therefore whether the petitioners’ detention at the BFDF under current conditions during the COVID-19 pandemic is “excessive” in relation to the government’s legitimate interests in keeping them detained.
1. Unsanitary Conditions of Confinement
*5 A civil detainee may establish that he is subject to “excessive” and therefore unconstitutional conditions of confinement by showing that “officers acted with deliberate indifference to the challenged conditions.” Darnell, 849 F.3d at 29 (2d Cir. 2017) (citation omitted). That showing requires the detainee to “satisfy two prongs”: (1) an “objective prong showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process,” and (2) a “subjective” or “mens rea prong ... showing that the officer acted with at least deliberate indifference to the challenged conditions”—that is, that the official “acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the
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condition posed ... even though the [official] knew, or should have known, that the condition posed an excessive risk to health or safety.” Id. at 29, 35.
With respect to the first prong, “to establish an objective deprivation, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health, which includes the risk of serious damage to physical and mental soundness.” Id. at 30 (citations omitted). “There is no static test to determine whether a deprivation is sufficiently serious; instead, the conditions themselves must be evaluated in light of contemporary standards of decency.” Id. (citations omitted). For example, in the context of the Eighth Amendment, the Second Circuit has explained that “whether exposure to [a specific condition] is cruel and unusual depends on both the duration and the severity of the exposure.” Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015). “The severity of an exposure may be less quantifiable than its duration, but its qualitative offense to a prisoner’s dignity should be given due consideration.” Id. “[A]ny analysis must consider both the duration and the severity of an inmate’s experience of being exposed to unsanitary conditions.” Id. “[A]lthough the seriousness of the harms suffered ... may shed light on the severity of an exposure, serious injury is unequivocally not a necessary element of an [unconstitutional conditions] claim.” Id. (citations omitted).
In Helling, the Supreme Court held that a prisoner could state a cognizable claim under the Eighth Amendment where he alleged that officials had, “with deliberate indifference, exposed him to levels of [environmental tobacco smoke] that pose[d] an unreasonable risk of serious damage to his future health.” 509 U.S. at 35, 113 S.Ct. 2475. To succeed on the subjective prong, the plaintiff would need to show that “the prison authorities’ current attitudes and conduct” evinced deliberate indifference. Id. at 36, 113 S.Ct. 2475. To succeed on the objective prong, the Court explained, the plaintiff would need to show both that “he himself [was] being exposed to unreasonably high levels of [environmental tobacco smoke]” and that “society consider[ed] the risk that the prisoner complain[ed] of to be so grave that it violate[d] contempora[neous] standards of decency to expose anyone unwillingly to such a risk”—that is, the plaintiff would need to produce “more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood [of] injury.” Id. at 35, 36, 113 S.Ct. 2475 (emphasis in original).
In so holding, the Court rejected the defendants’ argument that the plaintiff’s claim was not cognizable because he had not alleged any present harm, explaining: “We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health problems but may 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.” Id. at 33, 113 S.Ct. 2475. The
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Court noted several other examples of circumstances where inmates might obtain an “injunction” to remedy a “plainly ... unsafe, life-threatening condition in their prison” even though “nothing yet had happened to them.” Id. One such circumstance was “exposure of inmates to a serious, communicable disease [even if the] inmate shows no serious current symptoms.” Id. In short, the Court found that “a remedy for unsafe conditions need not await a tragic event.” Id.
2. Serious Medical Needs
*6 A civil detainee also may show that his detention “amounts to punishment” and therefore violates the Due Process Clause by demonstrating that officials are acting with deliberate indifference to his serious medical needs. “That is true whether the deliberate indifference is manifested by prison doctors in their response to the prisoner’s needs, or by prison guards who intentionally deny or delay access to medical care or intentionally deny or delay access to the treatment once prescribed.” Charles v. Orange Cty., 925 F.3d 73, 85 (2d Cir. 2019). A civil detainee may establish an unconstitutional deprivation of medical care by showing “(1) that [he has] a serious medical need ..., and (2) that the [d]efendants [have] acted with deliberate indifference to such needs.” Id. at 86 (citation omitted).
The “objective,” serious-medical-needs prong “contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain.” Id. (citation omitted). “In determining whether a medical need is sufficiently serious to be cognizable as a basis for a constitutional claim for deprivation of medical care, [courts] consider factors such as whether a reasonable doctor or patient would find the injury important and worthy of treatment, whether the medical condition significantly affects an individual’s daily activities, and whether the illness or injury inflicts chronic and substantial pain.” Id. (citation omitted).
The “mens rea,” deliberate-indifference prong mirrors the standard discussed above in the context of a conditions-of-confinement claim. See id. at 86-87. “[A] detainee asserting a [Due Process] claim for deliberate indifference to his medical needs can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee’s health.” Id. at 87 (emphasis in original). “Whether the state knew or should have known of the substantial risk of harm to the detainee is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.”
Id. (citations omitted). “A factfinder may conclude that a prison official knew of a substantial
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risk from the very fact that the risk was obvious.” Id. (quoting 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).

Farmer v. Brennan, 511 U.S.

B. Application
1. Objective: Unsanitary Conditions and/or Serious Medical Needs
The petitioners make two separate (though related) arguments. The first is that the conditions at BFDF subject them to a heightened risk of contracting COVID-19. They argue that this heightened risk—together with the high death rates among those over a certain age or with underlying conditions like theirs who contract COVID-19, even if they receive treatment—amounts to an unreasonably high risk of serious injury or death. The second is that if they contract COVID-19, they will not receive adequate care at or through BFDF.
This Court is unpersuaded by the second argument. The petitioners have not presented any evidence that BFDF could not provide them with adequate care, including by transporting them to local hospitals. The point of reference must be what someone would receive were he or she not in state custody. And the petitioners have not persuaded the Court that BFDF could not provide, or would deny them, such care. The respondents, on the other hand, have shown that they are providing detainees with 24/7 access to medical professionals, see Docket Item 42-4 at 2 (Declaration of Jeffrey Searls, administrator of BFDF (“Searls Decl.”)), and have represented that if a detainee is infected, he or she would be kept in isolation and immediately hospitalized if necessary, see Docket 42-1 at 3 (Declaration of Captain Abelardo Montalvo, M.D. (“Montalvo Decl.”)).
*7 So the question is whether the petitioners’ first argument has any teeth. In other words, is the expected risk to the petitioners’ health and safety from COVID-19 so high that the respondents cannot, as a constitutional matter, force the petitioners to live in conditions that pose a heightened risk of contracting the disease? If so, does their current living situation heighten the risk of contraction? In Due Process language: Does forcing high-risk detainees to live in a congregate setting during the COVID-19 pandemic pose a risk that “society considers ... so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk”? See Helling, 509 U.S. at 36, 113 S.Ct. 2475 (emphasis in original). If so, are the efforts the respondents have taken to ameliorate that risk of contraction sufficient?
This Court is trained in the law, not medicine. The best it can do in this situation is turn to the experts. And the guidance from experts, including many government experts, is that the health
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risks posed by COVID-19 to individuals over a certain age or with certain underlying medical conditions are indeed grave.
a. Health and Safety Risks Posed by COVID-19
First, COVID-19 poses a grave risk for those over 65 or with certain underlying health conditions. According to one of the petitioners’ medical experts, Robert B. Greifinger, M.D., “COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions.” Docket Item 3 at 1-2 (“Greifinger Decl.”); see also Docket Item 4 at 2 (“Goldenson Decl. I”); Docket Item 7 at 2 (declaration of Jonathan Louis Golob, M.D., Ph.D. (“Golob Decl.”)). There is no vaccine to prevent COVID-19, nor is there a known cure or anti-viral treatment at this time. Docket Item 7 at 2 (Golob Decl.). Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, estimated on March 31, 2020, that between 100,000 and 240,000 will die of COVID-19. Michael D. Shear et al., Coronavirus May Kill 100,000 to 240,000 in U.S. Despite Actions, Officials Say, N.Y. Times, Mar. 31, 2020, https://www.nytimes.com/2020/03/31/us/politics/coronavirus-deathtoll-united-states.html.
The CDC has concluded that “[p]eople aged 65 years and older” might be at higher risk for severe illness from COVID-19. See People who are at higher risk for severe illness, Ctrs. for Disease Control and Prevention (March 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov % 2Fspecific-groups% 2Fhigh-risk-complications.html; see also Docket Item 3 at 1-2 (Greifinger Decl.) (“[T]he risk of serious disease and death among those with COVID-19 increases with age, with 78% of reported deaths occurring in people over the age of 65. More than 50% of COVID-19 related intensive care admissions and more 80% of COVID-19 deaths were among people 65 years old or older.”); cf. Docket Item 4 at 2 (Goldenson Decl. I) (“Older individuals ... are at greater risk of becoming seriously ill or dying from the illness. (It is well-accepted within the medical community that, due to the burden of chronic illnesses and unhealthy lifestyle choices of many of many those housed in correctional facilities, incarcerated individuals over the age of 50 years old are considered to be elderly.)”); Docket Item 5 at 1 (Declaration of Marc F. Stern, M.D. (“Stern Decl.”)) (“Vulnerable people include people over the age of 50.”); Docket Item 7 at 1 (Golob Decl.) (“People over the age of fifty are at higher risk, with those over 70 at serious risk.”).
*8 The CDC also has advised that “[o]ther high-risk conditions could include: [p]eople with chronic lung disease or moderate to severe asthma[; p]eople who have serious heart conditions[;
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p]eople who are immunocompromised ... [; p]eople of any age with severe obesity (body mass index [BMI] of 40 or higher)[; p]eople with diabetes[; p]eople with chronic kidney disease undergoing dialysis[; or p]eople with liver disease.” See People who are at higher risk for severe illness, supra; see also Docket Item 4 at 2 (Goldenson Decl. I) (“[T]hose with serious chronic medical conditions, such as heart disease, diabetes and lung disease, are at greater risk of becoming seriously ill or dying from the illness.”); Docket Item 5 at 1 (Stern Decl.) (“The effects of COVID-19 are very serious, especially for people who are most vulnerable[,] ... includ[ing] people ... of any age with underlying health problems such as—but not limited to—weakened immune systems, hypertension, diabetes, blood, lung, kidney, heart, and liver disease, and possibly pregnancy.”).
The CDC recently released an analysis of 7,162 cases of COVID-19 in the United States for which data on the patient’s underlying health was available. 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, Morbidity and Mortality Weekly Report, at 1-2 (Mar. 31, 2020), http://dx.doi.org/10.15585/ mmwr.mm6913e2. 78% of those admitted to the intensive care unit had at least one pre-existing condition, including diabetes, lung disease, cardiovascular disease, renal disease, or an otherwise compromised immune system. Id.
This Court therefore “takes judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality.”
Basank v. Decker, ––– F.Supp.3d ––––, ––––, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020) (citing Fed. R. Evid. 201(b)) (additional citations omitted). Numerous Courts, including several in this circuit, have reached similar conclusions. See Coronel v. Decker, ––– F.Supp.3d ––––, ––––, 2020 WL 1487274, at *4 (S.D.N.Y. Mar. 27, 2020); Hernandez v. Decker, 2020 WL 1547459, at *3 (S.D.N.Y. Mar. 31, 2020); Basank, ––– F.Supp.3d at ––––, 2020 WL 1481503, at *5.
b. Risk of COVID-19 Infection in a Congregate Setting
The petitioners also have shown that they face a heightened risk of contracting COVID-19. At oral argument, the respondents confirmed that the petitioners are currently being housed within the general population at the BFDF. They eat communally, use shared restrooms, and are housed in either shared cells or in dorm-style housing. 7 Government experts and the petitioners’ experts agree that such a communal-living style congregate setting increases the infection rate.
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7 The government could not confirm, however, how many individuals are in each room in the dormitories.
For example, the CDC advises:
People in correctional and detention facilities are at greater risk for some illnesses, such as COVID-19, because of close living arrangements with other people. The virus is thought to spread mainly from person-to-person, through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or be launched into the air and inhaled into someone’s lungs. It is 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 eyes; however, this is not the most likely way the virus spreads.
See FAQs for administrators, staff, people who are incarcerated, families, Ctrs. for Disease Control and Prevention (Mar. 28, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/ correction-detention/faq.html. The United States Attorney General largely concurs. See, e.g., Docket Item 15 at 4 (United States Attorney General, Memorandum to the Director of the Federal Bureau of Prisons: Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (March 26, 2020)) (“I am hereby directing you to prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic. Many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health.”).
*9 For their part, the petitioners’ experts assert strongly that congregate settings like those at BFDF heighten the risk of contracting COVID-19. “The conditions of congregate settings, such as jails and immigration detention facilities, pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.” Docket Item 3 at 3 (Greifinger Decl.). The experts point to a host of reasons for this heightened risk of contraction, including crowding, the proportion of vulnerable people detained, the lack of ventilation, and often scant medical-care resources. Docket Item 3 at 4-5 (Greifinger Decl.); Docket Item 5 at 2 (Stern Decl.). They point in particular to the fact that detainees cannot practice the “social distancing” measures needed to contain the spread because detainees share toilets, sinks, and showers; sleep in communal dorms or barracks-style rooms and eat communally; and eat food prepared and served communally
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as well. Docket Item 3 at 5 (Greifinger Decl.); Docket Item 5 at 2 (Stern Decl.). They also highlight that daily staff rotations increase the risk of infection. Docket Item 3 at 5 (Greifinger Decl.); Docket Item 5 at 2 (Stern Decl.); see also Docket Item 5 at 2 (Stern Decl.) (“To the extent that detainees are housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, infectious diseases that are transmitted via the air or touch are more likely to spread, placing people at risk.... For these reasons, if—but more likely when—COVID-19 is introduced into the facility, the risks of spread is greatly, if not exponentially, increased as already evidenced by spread of COVID-19 in two other congregate environments: nursing homes and cruise ships.”).
What is more, the findings regarding the risk of contracting COVID-19 in a communal setting are true even though there presently are no reported cases at BFDF. Docket Item 42-1 at 4. 8 Community spread is nationwide at this point, and there are reported cases in all eight of Western New York’s counties. See Live: Coronavirus Cases in Western New York, Rochester Regional Health (Apr. 1, 2020), https://www.rochesterregional.org/news/2020/02/coronavirus-innew-york. Moreover, there are least two confirmed cases at the Wende Correctional Facility, through which all persons transferring from a New York State prison into ICE custody at BFDF are processed. Docket Item 1 at 4. And the petitioners’ expert has concluded that “it is highly likely, and perhaps inevitable, that COVID-19 will reach the immigration detention facilities in New York.” Docket Item 3 at 3 (Greifinger Decl.). “[A] remedy for unsafe conditions need not await a tragic event.” Helling, 509 U.S. at 33, 113 S.Ct. 2475; see also Coronel, ––– F.Supp.3d at ––––, 2020 WL 1487274, at *1 (granting four immigration detainees’ motion for a TRO and ordering their immediate release where they “represented ... that there [had] been confirmed cases at two of the three facilities where [they were] detained”). What then of the respondents’ efforts to ameliorate the heightened risk of contracting this dangerous disease?
8 The government argues that the petitioners have not met their burden in this case because they have not shown that they would be at lower risk in many of the locations to which they would travel if released. Indeed, the government asserts that most of the petitioners would be no safer outside BFDF than inside because they plan to travel to areas of the country with significant outbreaks of COVID-19. See Docket Item 42-5 at 2, 16-17. A majority of the petitioners represent that, if released, they would reside with friends or family in the New York metropolitan area. See Docket Items 16, 28. In light of the injunctive relief ordered today, the Court need not address this argument in depth. It notes, however, that the government misconstrues the nature of the legal claims at issue here. The Fifth Amendment right to confinement in conditions that do not pose an unreasonable risk to health and safety derives from the fact that “when the State takes a
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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.... [because] it [has] render[ed] him unable to care for himself.” Helling, 509 U.S. at 32, 113 S.Ct. 2475 (alterations in original) (quoting DeShaney, 489 U.S. at 199-200, 109 S.Ct. 998). So a condition can be unconstitutional only when an individual forcibly is held in state custody. The violation necessarily ends when the individual no longer is in state custody. At that point, the state no longer owes him a duty of reasonable care. See DeShaney, 489 U.S. at 199-200, 109 S.Ct. 998. What is more, the respondents’ argument does not, as a factual matter, address the petitioners’ claim. Even if it is true that the petitioners would face greater hurdles to accessing treatment and care in New York, that does not carry the day. As this Court already has found, the petitioners are not being denied access to care. The relevant factual question is whether the petitioners are at an unconstitutionally greater risk of contracting the disease at BFDF than if they were not detained. And on that question, the respondents have not presented any data to that effect. If the petitioners follow the “social distancing” measures put in place by the Governor—and the Court has no reason to believe they would not, given their risk factors —there is no reason to believe they would be at greater risk of contraction in New York than at BFDF.
2. “Mens Rea”: Deliberate Indifference
*10 As an initial matter, there is no dispute that the respondents have actual knowledge of the petitioners’ serious needs. On March 22, 2020, and again on March 25, 2020, the petitioners notified the government about the particular circumstances of their cases and their high risk of harm. See Docket Item 9 at 10 (Petitioners’ Memorandum of Law). The question is what the respondents have done with the knowledge.
The respondents have taken substantial steps toward protecting the health and safety of the individuals detained at BFDF. Captain Abelardo Montalvo, M.D., the Eastern Regional Clinical Director with ICE Health Services Corps, reviewed the measures currently being taken at BFDF to protect the detainees’ health and safety. He attests to the following facts. Docket Item 42-1 (Montalvo Decl.).
Since March 12, 2020, incoming detainees at BFDF are “checked with a thermometer for fever.” Docket Item 42-1 at 3. They also are “asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through areas with sustained community transition in the past two weeks.” Id. at 2-3.
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“Detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be placed in the BFDF medical bay or referred to a local hospital.” Id. at 3. Detainees with known exposure to a person with confirmed COVID-19 but who are asymptomatic “are placed in a quarantine with restricted movement for” up to 14 days and “monitored daily for fever and symptoms of respiratory illness.” Id. Quarantine “involves housing [exposed but asymptomatic] detainees together.” Id. And new detainees arriving at the facility “will be placed in quarantined dorms and separated from the general population for 14 days until cleared. If new persons are added, or someone becomes ill, then the 14-day quarantine restarts.” Id. at 4. 9
9 At oral argument, the respondents stated that all new arrivals are isolated from the general population upon arrival. The respondents’ declarations leave some question as to whether this policy indeed applies to all new arrivals or only to those who confirm contact with an infected individual, see Docket Item 42-1 at 3 (Montalvo Decl.), those arriving from a hospital, see id. at 4, and those arriving from other detention facilities, see Docket Item 42-4 at 4 (Searls Decl.). The Court assumes the veracity of the respondents’ counsel’s representation at argument but expects confirmation of that fact in the isolation plan it orders today.
BFDF also “has increased sanitation frequency and thoroughness.” Id. at 4. The facility uses paid “detainee workers to reduce the contact rate between ICE staff and detainees and ... limit any exposure between populations.” Id. at 4. Personal visits have been temporarily suspended—though counsel is able to visit in “no-contact” rooms—and BFDF has been providing and continues to provide education to detainees regarding best practices to prevent the spread of COVID-19. Id. at 4-5. Additionally, “[g]atherings of detainees have been cancelled or are being completed in dorms and their respective outdoor areas.” Id. at 5.
These measures are commendable and likely have prevented some measure of spread and mitigated some of the risks facing the respondents. But the fact is that none of the steps discussed by Capt. Montalvo includes the “social distancing” measures recommended—especially for high-risk individuals—by the CDC, the New York State Department of Health, and the petitioners’ experts, to name a few.
*11 The CDC has recommended that people who are at higher risk should “[s]tay home.” See People who are at higher risk for severe illness, supra. The State of New York has said even more. On March 20, 2020, the Governor issued an executive order with the following guidance for New Yorkers over 70 and with underlying health conditions: “[r]emain indoors; ... go outside [only] for solitary exercise; [p]re-screen all visitors and aides by taking their temperature and
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seeing if person is exhibiting other flu-like symptoms; [d]o not visit households with multiple people; [w]ear a mask when in the company of others; [t]o the greatest extent possible, everyone in the presence of vulnerable people should wear a mask; [a]lways stay at least six feet away from individuals; and [d]o not take public transportation unless urgent and absolutely necessary.” Governor Cuomo Signs the ‘New York State on Pause’ Executive Order, New York State Office of Governor Andrew Cuomo (Mar. 20, 2020), https://www.governor.ny.gov/news/governor-cuomosigns-new-york-state-pause-executive-order.
In fact, the Governor and state health officials have concluded that the risks posed by COVID-19 are so grave that it has taken a number of unprecedented steps affecting all New Yorkers, even those with no particular vulnerability to the disease. On March 7, 2020, Governor Cuomo declared a state of emergency for all of New York State. See N.Y. Exec. Order No. 202 (Mar. 7, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.pdf. And in stages beginning on March 16, 2020, the Governor ordered the closing of all schools and universities, as well as nearly all businesses and places of public accommodation, and he has prohibited nonessential gatherings of any size through at least April 15, 2020. 10 Governor Cuomo is far from alone in ordering these drastic measures. See Coronavirus: Three out of four Americans under some form of lockdown, BBC World News (Mar. 31, 2020), https://www.bbc.com/news/world-uscanada-52103066. And the New York State Department of Health advises that “[w]hen in public[,] individuals must practice social distancing of at least six feet from others.” Governor Cuomo Signs the ‘New York State on Pause’ Executive Order, supra (emphasis added).
10 See N.Y. Exec. Order No. 202.3 (Mar. 16, 2020), https://www.governor.ny.gov/ sites/governor.ny.gov/files/atoms/files/EO_202.3.pdf; N.Y. Exec. Order No. 202.4 (Mar. 16, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO% 20202.4.pdf; N.Y. Exec. Order No. 202.5 (Mar. 18, 2020), https://www.governor.ny.gov/ sites/governor.ny.gov/files/atoms/files/EO_202_5.pdf; N.Y. Exec. Order No. 202.8 (Mar. 20, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.8.pdf; N.Y. Exec. Order No. 202.11 (Mar. 27, 2020), https://www.governor.ny.gov/ sites/governor.ny.gov/files/atoms/files/EO_202_11.pdf; N.Y. Exec. Order No. 202.12 (Mar. 30, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/ EO_202.13.pdf.
The petitioners’ experts urge the importance of these same “social distancing” measures. “The only way to mitigate the rapid spread of COVID-19 is to use scrupulous hand hygiene and social distancing, self-quarantine for individuals who may have been exposed, and isolation at a home or care facility for those who have been infected.” Docket Item 3 at 2 (Greifinger Decl.); see also Docket Item 4 at 2 (Goldenson Decl. I); Docket Item 5 at 1 (Stern Decl.) (“COVID-19 is a
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novel virus. There is no vaccine for COVID-19, and there is no cure for COVID-19. No one has prior immunity. The only way to control the virus is to use preventive strategies, including social distancing.”).
The respondents so far have not made it possible for individuals with the CDC-identified vulnerabilities to take these steps. It has not, for example, isolated higher risk individuals from other detainees or from staff who rotate daily in and out of the facility. Nor is it testing all incoming detainees or the staff that comes and goes. That failure is particularly concerning given that the CDC recently reported that as many as 25 percent of people infected with COVID-19 may not show symptoms. See Apoorva Mandavelli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirusasymptomatic-transmission.html?action=click & module=Spotlight & pgtype=Homepage; see also Docket Item 5 at 1 (Stern Decl.) (“It is believed that people can transmit the virus without being symptomatic and, indeed, that a significant amount of transmission may be from people who are infected but asymptomatic or pre-symptomatic.”). The petitioners also continue to eat their meals in communal settings and share bathing facilities, indicating that “social distancing” is not possible at this time. And the respondents have not provided the petitioners or other high-risk detainees with masks as recommended by the New York State Department of Health. Cf. Docket Item 42-1 at 4 (Montalvo Decl.) (explaining that “[d]etainee workers” are provided goggles” and “gloves” (emphasis added)).
*12 In light of the decisions of a number of executive branch officials at both the state and federal level, it seems clear that “social distancing” for those with heightened COVID-19 risks is the most effective form of preventing a serious threat to the health and safety of those persons. Moreover, the recommended measures for preventing the spread of COVID-19 are unprecedented. Indeed, this Court is not aware of any other disease that caused New York State—let alone most of the nation—to decide that the only reasonable course of action was to shutter the economy, shelter in place, and isolate at home for weeks on end.
In short, the government’s recommendations to the public suggest that those with certain conditions should not assume the risk of social contact. Indeed, New York State has prohibited individuals from assuming that risk. A measure that the government has forcibly—under threat of civil penalties—imposed on all persons within its jurisdiction cannot, at the same time, be forcibly denied to some portion of that population. The result compelled by this finding is that the respondents are acting with deliberate indifference to the health and safety of those petitioners with the conditions identified by the CDC by holding them in a congregate, communal-living setting where “social distancing is an oxymoron.” See Docket Item 9-1 at 5 (Letter from Scott Allen, M.D., F.A.C.P., and Josiah D. Rich, M.D., M.P.H., to the House Committees on Homeland Security
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and Oversight and Reform, Mar. 19, 2020) (“Allen Letter”); see also Hernandez, 2020 WL 1547459 at *3 (finding that measures such as “modification of the intake process and increasing sanitation frequency ... [were] ‘patently insufficient’ to protect any detainees from infection absent ‘enforcement of requisite social distancing’ ” (alteration in original) (quoting Basank, ––– F.Supp.3d at ––––, 2020 WL 1481503, at *5)).
In other words, the respondents have actual knowledge of serious risks to the health and well-being of individuals with the vulnerabilities identified by the CDC and have not taken adequate steps to protect the petitioners who have such vulnerabilities against those risks. See also Hernandez, 2020 WL 1547459 at *2 (concluding that the civil-immigration-detainee petitioner was likely to succeed on his deliberate-indifference claim because the respondents had “not taken any action to address the particular risks that COVID-19 poses to high-risk individuals like [the p]etitioner”);
Coronel, ––– F.Supp.3d at ––––, 2020 WL 1487274, at *6 (same); Basank, ––– F.Supp.3d at ––––, 2020 WL 1481503, at *5 (same). But see Sacal-Micha v. Longoria, ––– F.Supp.3d ––––, 2020 WL 1518861 (S.D. Tex. Mar. 27. 2020); Dawson v. Asher, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020). Because the high-risk petitioners are held in the respondents’ “custody ... against [their] will” and therefore “unable to care for [themselves],” see Helling, 509 U.S. at 32, 113 S.Ct. 2475 (citation omitted), the respondents’ failure to take these steps is a violation of their substantive rights under the Due Process Clause.
C. Conclusion This Court finds that those petitioners who have the COVID-19 vulnerabilities identified by the CDC have demonstrated a likelihood of succeeding on their claim that the respondents are acting with deliberate indifference to unreasonably unsafe conditions at BFDF and to those petitioners’ serious medical needs. The Court acknowledges both that such a finding is extraordinary and that the respondents themselves have been impacted by the COVID-19 pandemic in a variety of ways that have affected their ability to respond to the outbreak. But the Court’s goal is neither to assign blame nor to justify past efforts. It is instead to ensure that the petitioners’ constitutional rights— here, their right to liberty and possibly life—are protected.
II. IRREPARABLE HARM *13 “The showing of irreparable harm is ‘[p]erhaps the single most important prerequisite for the issuance of a’ ” temporary restraining order. Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)). Under this prong, parties seeking a TRO “must show that, on the facts of their case” and in the
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absence of the requested injunction, they will suffer a harm that “cannot be remedied after a final adjudication, whether by damages or a permanent injunction.” Salinger v. Colting, 607 F.3d 68, 81-82 (2d Cir. 2010). In addition, the harm must be “neither remote nor speculative, but actual and imminent.” Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (citation omitted).
The petitioners have established irreparable harm in two different ways. First, “the alleged violation of a constitutional right ... triggers a finding of irreparable harm.” Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (emphasis in original) (citation omitted). As discussed above, the petitioners have adequately alleged that their substantive due process rights have been violated. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” (citations omitted)).
Second, irreparable harm exists where, as here, the moving individuals “face imminent risk to their health, safety, and lives.” Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 214 (E.D.N.Y. 2000) (citation omitted), aff'd sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003). For all the reasons discussed above, those petitioners with the CDC-identified vulnerabilities face a grave, irreparable risk to their health and safety if they remain confined under current conditions at BFDF.
III. BALANCE OF EQUITIES AND PUBLIC INTEREST Where the government is the opposing party, the final two factors in the temporary restraining order analysis—the balance of the equities and the public interest—merge. Planned Parenthood of New York City, Inc. v. U.S. Dep't of Health & Human Servs., 337 F. Supp. 3d 308, 343 (S.D.N.Y. 2018).
The petitioners and the public both benefit from ensuring public health and safety. See Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”). Moreover, under the circumstances here, the public interest in ensuring public health is also best served by the petitioners’ being confined in conditions that do not pose a substantial risk of their contracting COVID-19. As one of their medical experts points out, a COVID-19 outbreak at a detention facility “could result in multiple detainees—five, ten or more—being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm ventilator resources, those ventilators become unavailable for all the usual critical illnesses.” Docket Item 9-1 at 5 (Allen Letter). And ventilators used to treat detainees cannot be used to treat others who contract the
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virus. See Docket Item 5 at 3 (Stern Decl.) (“Reducing the spread and severity of infection in a federal immigration detention center slows, if not reduces, the number of people who will become ill enough to require hospitalization where they will be using scarce community resources (ER beds, general hospital beds, ICU beds) which in turn reduces the health and economic burden to the local community at large.”); Docket Item 3 at 5 (Greifinger Decl.) (“Releasing individuals, and prioritizing the most vulnerable, reduces the burden on local health care resources, as it reduces the risk of transmission of the disease to a large number of people living in close proximity for an extended period of time. It also reduces the risk of transmission to staff.”). “In the alternate scenario where detainees” are either confined in conditions facilitating “social distancing” or are released, “the tinderbox scenario of a large cohort of people getting sick all at once is less likely to occur, and the peak volume of patients hitting the community hospital would level out.” Docket Item 9-1 at 5 (Allen Letter).
*14 The respondents argue that the Western New York community would be able to serve the needs of the petitioners and that the public interest therefore tips in their favor. In support of that claim, they have presented data on available health beds in the area surrounding BFDF. See Docket Item 42-3 at 6. But they have not provided data on, for example, the number of available ventilators. Nor have they provided projections on the rate of spread in the surrounding community or any expert testimony to the effect that the community could sustain an outbreak at BFDF as community spread outside the facility—including in other carceral facilities—also increases. The Court therefore finds that the public interest favors the petitioners.
IV. REMEDY For the reasons stated above, the petitioners have met the criteria for a TRO. The next question is what remedy is appropriate under the circumstances. The petitioners seek their immediate release under conditions of supervision and, ultimately, a writ of habeas corpus under 22 U.S.C. § 2241.
Section 2241(c)(3) provides: “The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States.” Courts are divided on whether section 2241 provides a vehicle for challenging (and a remedy for addressing) allegedly unconstitutional conditions of confinement. 11
11 Compare Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“This court has long interpreted [ section] 2241 as applying to challenges to the execution of a federal sentence” [and seeking injunctive relief], “including such matters as the administration of parole, ... prison disciplinary actions, prison transfers, type of detention and prison
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conditions.” (citations omitted)), with Spencer v. Haynes, 774 F.3d 467, 469 (8th Cir. 2014) (drawing a bright line between claims that challenge the “validity” or “length” of a conviction, which may be brought under section 2241, and those that challenge “the conditions of confinement,” which may not) and Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (distinguishing between a section 2241 petitioner who requests a “quantum change in the level of custody, which must be addressed by habeas corpus,” and a petitioner who requests “a different program or location or environment, which raises a civil rights claim” and holding that “[i]f an inmate establishe[s] 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.” (citation omitted)) and
Gomez v. United States, 899 F.2d 1124 (11th Cir. 1990) (same) and Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (same) and Cook v. Hanberry, 596 F.2d 658, 660 (5th Cir. 1979) (same). Cf. Bell, 441 U.S. at 526 n.6, 99 S.Ct. 1861 (1979) (“[L]eav[ing] to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.” (citation omitted)).
This Court need not resolve these difficult questions at this junction because the Second Circuit “has long interpreted [ section] 2241 as applying to challenges to ... prison conditions,”
Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (citation omitted)—at least to the extent the petitioners seek a remedy short of release—and this Court is not convinced that the unconstitutional conditions at BFDF cannot be remedied through an injunction.
That is so because BFDF currently is at roughly half of its capacity to house detainees. Docket Item 42-1 at 4. So it remains plausible that the respondents could rectify the ongoing violation by providing those petitioners who meet the CDC’s definition of vulnerable individuals with a living situation that facilitates “social distancing.” 12 The respondents might, for example, house those individuals in individual cells or units with a limited number of individuals akin to a family unit outside the facility; eat their meals, bathe, and shower in isolation or only among those in their smaller unit; have extremely limited contact with both other detainees and staff, all of whom are screened for fevers; and are provided masks to wear when contact is necessary. The Court leaves the task of identifying which petitioners satisfy the CDC criteria, and how to facilitate their “social distancing,” to the respondents’ medical staff—at least in the first instance. 13
12 Governor Cuomo, in concert with the New York State Department of Health, advises the following actions: “[r]emain indoors; ... go outside [only] for solitary exercise; [p]re-screen all visitors and aides by taking their temperature and seeing if person is exhibiting other flulike symptoms; [d]o not visit households with multiple people; [w]ear a mask when in the
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company of others; [t]o the greatest extent possible, everyone in the presence of vulnerable people should wear a mask; [a]lways stay at least six feet away from individuals; and [d]o not take public transportation unless urgent and absolutely necessary.” Governor Cuomo Signs the ‘New York State on Pause’ Executive Order, supra.
13 As discussed above, the CDC explains that “[o]ther high-risk conditions could include: [p]eople with chronic lung disease or moderate to severe asthma[; p]eople who have serious heart conditions[; p]eople who are immunocompromised ... [; p]eople of any age with severe obesity (body mass index [BMI] of 40 or higher)[; p]eople with diabetes[; p]eople with chronic kidney disease undergoing dialysis[; or p]eople with liver disease.” See People who are at higher risk for severe illness, supra.

ORDER
*15 The respondents shall report to the Court no later than 5:00 p.m. on April 3, 2020, with a detailed plan explaining how they will identify which petitioners meet the CDC’s high-risk criteria and how they will facilitate those individuals’ taking any or all of the “social distancing” measures recommended by the CDC and New York State Department of Health. No later than 9:00 a.m. on April 6, 2020, the respondents shall report to the Court as to whether any or all of the steps outlined in the plan have been taken and, if so, which ones. They also shall identify for which petitioners the measures have been taken and provide a brief explanation why any petitioner does not meet the CDC’s high-risk criteria. The Court then will decide whether the constitutional violation has been remedied and whether further action of the Court is required.
IT IS SO ORDERED.

All Citations --- F.Supp.3d ----, 2020 WL 1643857
End of Document

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2020 WL 1873307 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
Ibrahim FOFANA, et al., Petitioners, v.
Matthew ALBENCE, in his official capacity as Acting Director, U.S. Immigration and Customs Enforcement, et al., Respondents.
Case No.: 20-10869 |
Signed 04/15/2020
Attorneys and Law Firms
Caridad Pastor, Pastor Assoc., Troy, MI, for Petitioners.
James J. Carty, U.S. Attorney's Office, Detroit, MI, for Respondents.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [#1],
REQUIRING RESPONDENT TO RELEASE PETITIONER IBRAHIM FOFANA FROM CUSTODY WITHIN 36 HOURS AND REQUIRING RESPONDENT TO SHOW CAUSE
GERSHWIN A. DRAIN, United States District Judge
I. INTRODUCTION *1 On April 3, 2020, Petitioners Ibrahim Fofana, Abdulrahman Mawas, Mhdmamdouh Kheshfeh, Emilian Hila and Jurgen Sterbyci filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, along with a request for a temporary restraining order. Petitioners request their immediate release from detention while they await decisions in pending removal or asylum proceedings before the immigration courts. Petitioners are currently detained by the United States Immigration Customs and Enforcement Agency (ICE) at Monroe and Chippewa County Jails. Petitioners argue their continued detention violates the Fifth Amendment because Respondent Rebecca Adducci, the District Director for ICE’s Detroit Office 1 and Petitioners’ custodian for purposes of this habeas action, is unable to adequately respond to the COVID-19 pandemic which exposes Petitioners to a substantial risk of serious illness or death.
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1 Respondent correctly notes that Rebecca Adducci is the proper respondent for the instant habeas proceeding. As the ICE Detroit District Director, she has “power over” Petitioners. Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003).
Respondent opposes Petitioners’ requested relief arguing Petitioners are not among the class of persons considered to be high risk for serious illness or death if exposed to COVID-19, nor are any of the Petitioners housed in locations where a confirmed COVID-19 case has occurred.
For the reasons that follow, the Court will grant in part and deny in part Petitioners’ petition for a writ of habeas corpus and request for a temporary restraining order. The Court will grant Petitioner Fofana a temporary restraining order and writ of habeas corpus releasing him from ICE custody. The Court will deny Petitioners Mawas’s, Hila’s, Kheshfeh’s, and Sterbyci’s petition for a writ of habeas corpus and request for a temporary restraining order.
II. FACTUAL BACKGROUND
A. PETITIONERS
1. Ibrahim Fofana
Petitioner Ibrahim Fofana is a 52-year old citizen of Mali, who was admitted to the United States as a non-immigrant entertainer on November 12, 1994, with authorization to remain for a temporary period not to exceed January 20, 1995. Fofana is currently married to a United States citizen and they have three minor children together. He also has custody of another minor child from a previous marriage. Fofana suffers from high blood pressure, swelling of the hands and legs and shortness of breath. He is currently taking medication for his high blood pressure.
In 2000, Fofana was convicted of immigration fraud for his involvement with arranging marriages between foreign nationals and United States citizens in violation of 8 U.S.C. § 1325(c) and
18 U.S.C. § 1546. In March of 2001, Fofana was placed in removal proceedings based in part on his conviction for immigration fraud, and an Immigration Judge ordered his removal to Mali. However, by October 2, 2001, Fofana was released on an order of supervision after efforts to effectuate his removal were unsuccessful.
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*2 In October of 2016, Fofana was placed in the Alternatives to Detention (ATD) program, with monthly telephonic reporting, office visits every 2 weeks, home visits every 4 weeks, and instructions to obtain a passport. In March of 2017, he applied to reopen his removal proceedings for an adjustment of status to lawful permanent resident based on his marriage to a United States citizen. His motion to reopen was granted and an individual hearing on the merits of his application to adjust status is scheduled to occur on June 12, 2020.
On February 19, 2020, ICE detained Fofana pursuant to 8 U.S.C. § 1226(a) due to purported noncompliance with his ATD program requirements, including violations of telephonic reporting rules, a failed home visit on February 18, 2020, and a lack of progress in obtaining a passport as instructed. Fofana argues that he has followed ATD reporting, however on three occasions the voice recognition system was not functioning properly. He also insists that he failed to answer the door on February 18, 2020 because he was asleep, but when he awakened, he contacted ICE to let someone know what had happened.
2. Emilian Hila
Petitioner Emilian Hila is a 29-year-old citizen of Albania, who was admitted to the United States as a nonimmigrant visitor on January 24, 2018, with authorization to remain for a temporary period until July 24, 2018. On September 29, 2018, Hila filed an application to adjust status based on his marriage to a United States citizen. On November 7, 2019, removal proceedings were initiated based on Hila having obtained admission to the United States by willful misrepresentation of a material fact on a tourist visa application–namely, that he had claimed to be a priest and was attending a religious conference in Michigan. The Immigration Judge denied Hila’s request for custody redetermination concluding that Hila was a flight risk with no guarantee that he “will appear for future proceedings if granted bond.” On March 11, 2020, the Immigration Judge ordered Hila’s removal to Albania. Hila appealed this decision to the BIA, and his appeal remains pending.
3. Abdulrahman Mawas
Petitioner Abdulrahman Mawas is a 20-year-old citizen of Syria, who was admitted to the United States as a nonimmigrant visitor on April 16, 2016, with authorization to remain for a temporary period until October 15, 2016. On September 6, 2016, Mawas filed an application for temporary protected status. This application was denied on April 26, 2019.
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On February 13, 2017, Mawas applied for asylum and for withholding of removal which remained pending when removal proceedings were initiated and he was taken into custody on February 19, 2020. Mawas was charged as removable for having overstayed his authorized period of admission under 8 U.S.C. § 1227(a)(1)(B).
On November 24, 2019, Mawas was arrested for shooting BB guns from his apartment balcony. He pled guilty to an amended charge of disorderly person in violation of MICH. COMP. LAWS § 750.167 in the 47 th Judicial District Court in Farmington Hills, Michigan. He has not been sentenced on this offense. Mawas also has prior convictions for operating a vehicle on a suspended license in September of 2018 and December of 2019.
At a hearing on March 20, 2020, the Immigration Judge denied his request for a custody redetermination, finding that he was a danger to persons and property based on his recent criminal activity. Mawas has until April 20, 2020 to appeal this decision. Mawas has a hearing on his application for asylum scheduled for June 11, 2020.
4. Mhdmamdouh Kheshfeh
*3 Petitioner Mhdmamdouh Kheshfeh is a 22-year-old citizen of Syria, who was admitted to the United States on a nonimmigrant visitor visa as part of a robotics team on April 16, 2016, with authorization to remain for a temporary period until October 15, 2016. On August 24, 2016, Kheshfeh filed an application for protected status, which may still be pending. In February of 2017, he filed an application for asylum and withholding of removal, which remained pending when removal proceedings were initiated. Kheshfeh was taken into custody on February 19, 2020.
On November 24, 2019, Kheshfeh was also arrested for shooting BB guns from his apartment balcony. Kheshfeh and Mawas are roommates. He likewise pled guilty to an amended charge of disorderly person in violation of MICH. COMP. LAWS § 750.167 in the 47 th Judicial District Court in Farmington Hills, Michigan. He has also not been sentenced on this offense.
At a hearing on March 20, 2020, the Immigration Judge denied Kheshfeh’s request for custody redetermination finding that he was a flight risk and a danger to persons and property evidenced by his recent criminal activity. Kheshfeh has until April 20, 2020 to appeal this decision. Kheshfeh has an individual hearing scheduled on his asylum application in June of 2020.
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5. Jurgen Sterbyci
Sterbyci is a 30-year-old citizen of Albania who was admitted to the United States as a visa waiver program tourist under 8 U.S.C. § 1187, on August 3, 2014. Sterbyci gained admission by using a fraudulent Italian passport in the name of Massimo Romanelli. On July 29, 2015, he applied for asylum and withholding of removal. On December 19, 2019, the Immigration Judge ordered him removed and he was arrested at his Macomb, Michigan residence on February 11, 2020. Sterbyci’s individual hearing for asylum and relief from removal is scheduled for May 20, 2020.
Sterbyci is the sole breadwinner in his family and he has a 3-month old child who is taken care of by his mother, who has also applied for immigration relief.
B. COVID-19
COVID-19 is an abbreviation for the novel coronavirus disease of 2019, a respiratory illness that spreads easily and sustainably in the community through respiratory droplets produced when an infected person coughs or sneezes. See Centers for Disease Control and Prevention Coronavirus Disease 2019 Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019ncov/faq.html#How-COVID-19-Spreads (last visited April 11, 2020). The novel coronavirus of 2019 “is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions.” ECF No. 7, PageID.121. While it is thought that people are most contagious when symptoms are present, the virus has also been detected in asymptomatic persons See id., Centers for Disease Control and Prevention Coronavirus Disease 2019 Frequently Asked Questions, https:// www.cdc.gov/coronavirus/2019-ncov/faq.html#How-COVID-19-Spreads (last visited April 11, 2020). The incubation period is believed to be up to fourteen days in duration. Id.
There is no vaccine to prevent COVID-19, nor is there antitiviral medication that can treat it. Id. According to the CDC, “[t]he best way to prevent illness is to avoid being exposed to the virus.” Id. The CDC recommends, among other things, that people clean their hands often or use hand sanitizer when soap is unavailable, avoid close contact with other people (at least six feet in distance), and clean and disinfect frequently touched surfaces daily, such as tables, doorknobs, light switches, and countertops. Id. The CDC also recommends that if an individual becomes sick, he or she should isolate from others by staying in a specific sick room and using a separate bathroom if possible. Id.
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*4 The CDC has indicated that certain classes of individuals are at higher risk for developing severe illness if exposed to the novel coronavirus of 2019. Id. Older adults – 65 or older – and people suffering from underlying medical conditions such as moderate to severe asthma, chronic lung disease, serious heart disease, severe obesity, diabetes, liver disease, kidney disease or people who are immunocompromised such as those who are undergoing cancer treatment, smokers, bone marrow or organ transplant recipients or donors, people with immune deficiencies, poorly controlled HIV or AIDS sufferers and those who have prolonged use of corticosteroids and other immune weakening medications are at higher risk of developing serious illness if they are exposed to COVID-19. Id.
While it has been accepted that older adults are the most vulnerable, a March 18, 2020 CDC report noted that 38% of the 508 hospitalized patients were younger – between 20 and 54 years of age. See Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) United States, February 12 – March 16, 2020 (Mar. 18, 2020); https://www.cdc.gov/mmwr/ volumes/69/wr/mm6912e2.htm. An April 8, 2020 CDC report on hospitalization rates among COVID-19 patients notes that out of the 1,482 hospital patients studied, 74.5% were aged 50 years or older and 54.4% were male. See Centers for Disease Control, Morbidity and Mortality Weekly Report (April 8, 2020), Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 – COVID-NET, 14 States, March 1–30, 2020, https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6915e3-H.pdf. Additionally, the CDC reports that “[a]pproximately 90% of hospitalized patients identified ... had one or more underlying conditions, the most common being obesity, hypertension, chronic lung disease, diabetes mellitus, and cardiovascular disease.” Id.
The swift and stunning spread of the novel coronavirus of 2019 has changed the world in record speed. At the time of writing, the majority of states have issued stay at home orders, including Governor Gretchen Whitmer of Michigan, who issued a state of emergency when the State’s first two cases of coronavirus were reported on March 10, 2020. On March 24, 2020, Governor Whitmer issued a stay-at-home order requiring all but essential workers to report to work. All primary and secondary schools, as well as colleges and universities have shuttered. Dining at restaurants is prohibited and retailers, small businesses included, have closed doors unless they sell “essential” merchandise.
Moreover, even with the Governor’s stay-at-home order, Michigan continues to experience staggering numbers of confirmed COVID-19 cases and deaths. On April 9, 2020, Governor Whitmer extended the stay-at-home order through May 1, 2020. At the time of this writing, a little more than thirty days after the initial two COVID-19 cases were reported in Michigan, the
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total confirmed number of COVID-19 cases now totals 27,001, with 1,768 lives lost. Those that have died range in age from 20 to 107. The United States alone accounts for 614,180 confirmed COVID-19 cases representing roughly 25% of the total cases worldwide at 1,981,239. Since the virus was first reported on January 21, 2020 by a Washington State man, the United States has lost 26,061 lives to COVID-19.
C. MONROE & CHIPPEWA COUNTY JAILS
Immigration detention facilities and jails are enclosed environments that the CDC has acknowledged “present[ ] unique challenges for control of COVID-19 transmission among [ ]detained persons, staff, and visitors.” ECF No. 1, PageID.4. Another court reviewing a similar habeas petition has noted that “[c]ounty jails were not designed with pandemics in mind. To the contrary, they were made to house persons in relatively close contact.” Rafael L.O. v. Tsoukaris, No. 20-3841 (JMV), 2020 WL 1808843, at *3, 2020 U.S. Dist. LEXIS 62389, *7 (D.N.J. Apr. 9, 2020).
*5 Petitioners Fofana, Mawas, Kheshfeh, and Sterbyci are detained at the Monroe County Jail. Petitioner Hila is detained at the Chippewa County Jail. The Petitioners maintain that the conditions of confinement at Monroe and Chippewa County Jails make it impossible for Respondent to protect the Petitioners from risk of COVID-19 infection. Respondent argues that there are no confirmed cases in either facility, thus Petitioners should be denied relief on this basis alone.
COVID-19 has already entered some of Michigan’s jails and prisons and begun to wreak havoc therein. Jackson County’s Parnell Correctional Facility has the most confirmed COVID-19 cases with 144. A total of 454 inmates in MDOC custody, including 10 deaths, have tested positive for COVID-19. ICE detention facilities, including county jails, had at least 13 confirmed COVID-19 cases as of April 4, 2010. See ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://wwww.ice.gov/coronavirus (updated Apr. 4, 2020). As of the date of this writing, roughly a week and a half later, that number has increased to 77 COVID-19 cases among the nation’s immigrant detainees. Id. (updated Apr. 11, 2020). This number is likely lower than the actual number as access to testing for COVID-19 has been difficult across the United States, including in Michigan.
James Jacobs is an Assistant Field Office Director with the Detroit Field Office of Enforcement and Removal Operations with ICE. While Jacobs has oversight over detention facility matters, he has not personally visited either Monroe County Jail or Chippewa County Jail. ECF No.9, PageID.243.
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Jacobs indicates that the Monroe facility houses immigration detainees in POD B, which has a capacity of 95 detainees. ECF No.9, PageID.243. Jacobs claims that the facility is at half capacity and is not accepting new detainees. Id. POD B’s housing unit aligns bunks in rows with beds roughly two feet apart. Id. Staff have assigned detainees to bunks with empty bunks separating them from the next detainee. Id. Detainees eat in the housing unit at tables with 4 to 6 inmates per table. Id. Jacobs asserts that inmates have daily access to sick calls in a clinical setting. Id. Monroe County Jail does not have an onsite medical infirmary. Id.
Contrary to Jacobs’ claims, Petitioner Fofana maintains that the medical care at the Monroe County facility has been substandard. ECF No. 11, PageID.287. Fofana has high blood pressure and he began experiencing symptoms on February 28, 2020 when he awoke in the middle of the night feeling ill. Id. Fofana sent a kite to see a doctor, but his request was not fulfilled until March 23, 2020. Id. From that date on, a nurse irregularly monitored Fofana’s blood pressure. Id. On April 2, 2020, he was prescribed 2 medications for his high blood pressure. Id. A doctor finally examined him on April 8, 2020 and adjusted the dosage of his blood pressure medication. Id. Petitioner Fofana continues to feel unwell. Most recently, he asked the nurse to take his blood pressure and she refused, stating, “we only take blood pressure once a week.” Id.
Jacobs further indicates that the Monroe County Jail has increased sanitation frequency with daily sanitation of the building and housing units. The facility uses a mobile Kaivac cleaning system with disinfectant cleaner. He notes that detainees are provided soap, Lysol wipes and cleaning solution for cleaning their assigned sleeping areas. He further asserts that masks are available as needed. Monroe County Jail has identified housing units for quarantine of patients who are suspected of, or test positive for, COVID-19. ICE detainees requiring segregation or quarantine will be moved from their separate housing unit in the dormitory to the main jail.
*6 Conversely, Petitioner Sterbyci asserts that people who are sick and coughing continue to remain in his housing unit. ECF No.11, PageID.290. He notes the shared bathroom facilities are moldy and the detainees are only given water, soap and a bucket to clean with. Id. Detainees deny access to Lysol wipes. Id. Jail trustees from Pod A enter the Petitioners’ unit and do not wear masks or gloves. Id. Petitioner Khesfeh maintains that detainees who are sick must place a request to see a nurse, which usually takes about 24 hours. Id., PageID.292. He notes that detainees who have been coughing in his unit were removed for a period of two days and returned. Id.
Jacobs also advises that Chippewa County Jail has a detainee population within its approved capacity. Detainees are housed in 24-man cells with bunk beds spaced between 31” and 38” apart. Chippewa County Jail has also increased sanitation frequency, with additional workers sanitizing and disinfecting throughout the day and night. Detainees are provided personal soap, hygiene
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items, and disinfectant supplies for cleaning their assigned sleeping areas. Detainees must share two sinks and showers.
Jacobs asserts that detainees at Chippewa County Jail have access to daily sick calls in a clinical setting. Chippewa likewise does not have a medical infirmary. As of March 25, 2020, all new detainees are screened when they enter the facility, including questions concerning travel history, contact with confirmed COVID-19 cases, and taking detainees’ temperatures.
In support of their petition and motion for temporary restraining order, Petitioners have included the declaration of Dr. Robert B. Greifinger, a 30-year physician specializing in health care for prisoners. ECF No. 7, PageID.121. In a separate case, Dr. Greifinger was asked to evaluate ICE’s response to COVID-19 in another detention facility in Michigan – Calhoun County Detention Center – which has implemented similar measures to those implemented by ICE at the Monroe and Chippewa County Jails. Dr. Greifinger concluded that ICE’s “protocols are wholly insufficient to adequately face the crisis[.]” Id. Dr. Greifinger opined that ICE “must release all people with risk factors to prevent serious illness including death.” Id. Dr. Greifinger also indicated that release of the most vulnerable will reduce the burden on the facilities’ limited healthcare infrastructure. Id. Also noteworthy is Dr. Greifinger’s opinion that isolation for suspected COVID-19 cases is not a medically appropriate method for abating the substantial risks of COVID-19. Detainees in isolation are monitored less frequently, and COVID-19 can cause severe symptoms that escalate in a short amount of time placing detainees in serious and grave danger. Id.
III. LAW & ANALYSIS
A. Standard of Review for Temporary Restraining Order
In order to prevail on a motion for injunctive relief, Petitioners must demonstrate that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) the relief sought is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
B. Likelihood of Success on the Merits
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1. Standing
As an initial matter, Respondent argues that Petitioners lack standing to bring the instant action. “Before bringing a case in federal court, a plaintiff must establish standing to do so.” Klein v. United States DOE, 753 F.3d 576, 579 (6th Cir. 2014). The law of Article III standing “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Id. (citing Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1146, 185 L. Ed. 2d 264 (2013)).
*7 “To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by favorable decision.’ ” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 134 S.Ct. 2334, 2341, 189 L.Ed. 2d 246 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)).
“An injury sufficient to satisfy Article III must be ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). “An allegation of future injury may suffice if the injury is ‘certainly impending,’ or there is a ‘substantial risk that harm will occur.’ ” Id. (quoting Clapper, 133 S. Ct. at 1148). “Redressability is a likelihood that the requested relief will redress the alleged injury.” Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644, 659 (6th Cir. 2007) (internal quotation and citation omitted).
Respondent argues that Petitioners cannot show an injury in fact because their claim that detention per se poses an increased risk of contracting COVID-19 is purely speculative; the virus is not in either facility. Additionally, Respondent has taken adequate measures to respond to the pandemic. Moreover, only Petitioner Fofana complains of any underlying health condition – high blood pressure – and this is not one of the conditions listed by the CDC that increases the risk of serious illness from COVID-19. Nor does Petitioner Fofana’s age put him in the class of persons at higher risk. Finally, Respondent complains that the remaining Petitioners have no underlying health conditions and they are all young – in their twenties or early thirties.
Respondent’s argument is foreclosed by the Supreme Court’s decision in Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L. Ed. 2d 22 (1993). Contrary to Respondent’s contention, “a remedy for unsafe conditions need not await a tragic event.” Id. at 33-34, 113 S.Ct. 2475. In
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Helling, the Supreme Court held that a prisoner could allege a valid Eighth Amendment claim when prison officials exposed him to an unreasonable risk of serious damage to his future health by exposing him to environmental tobacco smoke. Id. at 28, 113 S.Ct. 2475 (concluding that deliberate indifference can be established where prison officials “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”). Id. The Helling court explained that in Hutto v. Finney, 437 U.S. 678, 682, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978):
[W]e noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery.
Id. at 33-34; see also Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) (concluding that inmates were entitled to Eighth Amendment relief when they established threats to their personal safety from, among other conditions, “the mingling of inmates with serious contagious diseases with other prison inmates.”).
*8 Accordingly, Petitioners do not need to allege that the jails currently have confirmed COVID-19 cases or that they have contracted the virus to demonstrate standing. It is well documented that detention facilities increase the risk of contracting infectious diseases because of the inherent nature of confinement. As will be more fully discussed below, Respondent has not undertaken adequate measures to protect Petitioners from the risk of serious illness or death from exposure to COVID-19. The Constitution does not require that Petitioners be seriously ill from COVID-19, or that they await the introduction and spread of COVID-19 in their detention facility before they may assert their Fifth Amendment rights. Respondent’s standing argument lacks merit.
2. Fifth Amendment Due Process
Respondent also argues Petitioners cannot establish a Fifth Amendment violation because they cannot show ICE has failed to undertake adequate measures to prevent the spread of COVID-19,
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or that Respondent has allowed dangerous conditions to persist at these facilities. Respondent contends that Petitioners cannot show release from these facilities, which do not have any cases, into the general population where the COVID-19 virus is spreading, will reduce the risk of contracting the virus.
The Fifth Amendment’s Due Process Clause applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.”
Zadvyas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The Sixth Circuit has recognized that the government “has an ‘obligation to provide medical care for those whom it is punishing by incarceration.’ ” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (quoting
Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). In order to establish their Fifth Amendment claim, Petitioners must establish a subjective and objective component.
Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013); see also Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001) (claims relating to health concerns of detainees are governed by the Eighth Amendment’s deliberate indifference standard).
Petitioners must establish that Respondent is deliberately indifferent to a substantial risk of harm to Petitioners. Farmer v. Brennan, 511 U.S. 825, 837-38, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In this regard, Petitioners must show that the constitutional deprivation was “objectively, ‘sufficiently serious’ ” and that the Respondent’s “current attitude and conduct amount[s] to deliberate indifference.” Id.; Helling, 509 U.S. at 35, 113 S.Ct. 2475.
Petitioners have satisfied the subjective prong. Respondent is aware of the problems posed by institutional confinement and the novel coronavirus of 2019 and has failed to take adequate steps to reduce the risk that Petitioners are exposed to serious harm. “The Government cannot act with a callous disregard for the safety of our fellow human beings.” Castillo v. Barr, No. 20-00605, 2020 WL 1502864, 2020 U.S. Dist. LEXIS 5425 (W.D. Cal. Mar. 27, 2020).
The Court acknowledges that Respondent has taken some steps to address the COVID-19 pandemic. 2 However, as recognized by Dr. Greifinger with respect to Respondent and the Calhoun County Jail, Respondent’s precautionary measures at Monroe and Chippewa County Jails are “wholly insufficient to adequately face the crisis at hand.” ECF No.7, PageID.123. The detainees eat 4 to 6 people per table. While Monroe County Jail has ceased accepting new detainees and is operating at half capacity, roughly 48 detainees are confined to one housing unit. This violates recommended guidelines to socially distance with at least six feet distance between people and for no more than ten people to gather in one space. See Awshana v. Aducci, No. 20-10699, 2020 WL 1808906, *8, 2020 U.S. Dist. LEXIS 62415, *24 (E.D. Mich. Apr. 9, 2020) (“[W]hile these
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measures are certainly commendable, ‘the fact is that none of the steps [taken] ... includes the ‘social distancing’ measures recommended—especially for high-risk individuals—by the CDC ...’ ”) (quoting Jones v. Wolf, No. 20-361, 2020 WL 1643857 (W.D.N.Y. Apr. 2, 2000)).
2 It is problematic that the only evidence offered from the Government concerning the jails’ condition is from ICE employees who have no personal knowledge of the jails’ current condition because they have not been there. This is the subject of Petitioners’ Motion to Strike. See ECF No. 12.
*9 Additionally, Monroe County Jail is ill equipped to address a COVID-19 outbreak with substandard medical care and supervision. Respondent’s contention that Petitioners have access to more medical monitoring than the general public is without basis in the record. Dr. Greifinger, a thirty-year veteran of medical care in the penological setting, indicates that detention facilities are ill suited to attend to the medical needs of detainees should a communicable disease be introduced into the facility. This is evident by not only the facility’s lack of an infirmary, but also by Petitioner Fofana, who sought a doctor on February 28, 2020, but was not seen by a doctor and prescribed needed high blood pressure medication until early April. Monroe County Jail’s failure to take sufficient precautions is also evidenced by the lack of enough quarantine rooms for sick detainees so that sick and coughing detainees can be separated from Petitioners.
While Monroe County Jail has apparently increased cleaning, it does not appear that the shared bathroom facilities are cleaned frequently throughout the day as recommended. Moreover, jail staff are permitted to freely walk between the main jail and the unit where Petitioners are housed.
Chippewa County Jail also cannot adequately protect Petitioner Hila from COVID-19. It is still accepting new detainees, however contrary to recommendations, these new detainees are not quarantined from the rest of the detainee population for a period of 14 days. Because persons with the virus may be asymptomatic, “nearly everyone who is not practicing social distancing is in contact with someone who has the virus.” ECF No. 7, PageID.123. As such, new detainees may bring the virus into the facility and spread the virus to Petitioner Hila. Chippewa County Jail likewise lacks an infirmary to treat detainees. Respondent also fails to indicate how many ICE detainees are held at the jail, and how many people are in Hila’s cell, which holds up to 24 people. Respondent merely indicates the “[j]ail has a population within its approved capacity and is not overcrowded.” ECF No. 9, PageID.250. This information is unhelpful to the Court’s analysis as another district court has recognized, “the appropriate capacity of a jail during a pandemic obviously differs enormously from its appropriate capacity under ordinary circumstances.” Decker, 2020 WL 1481503, *5, 2020 U.S. Dist. LEXIS 53191, *6.
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It is also notable that Respondent is silent as to how many, if any, detainees have been tested for COVID-19 in the Monroe County and Chippewa County Jails. It is well documented that access to testing for COVID-19 has been difficult. The MDOC has only tested 707 inmates, with 454 testing positive for the virus, and a total inmate population of more than 40,000.
While it appears that Petitioners can easily satisfy the objective prong, Fofana’s case is markedly stronger than the other Petitioners. Fofana is a 52-year-old male with high blood pressure. Fofana falls in the category of persons who are at risk of serious illness and potential death if exposed to the novel coronavirus of 2019.
Respondent improperly minimizes the seriousness of the risk to Fofana by arguing he does not have the characteristics that put him in a high-risk category. While the CDC has noted that persons 65 years and older are at greater risk for serious complications, it has also produced a report noting that younger individuals are at risk for serious illness as well. Numerous medical professionals have indicated that adults over 50 years old, especially those with underlying health conditions, are likely to suffer serious illness. A CDC study of hospitalization rates reported on April 8, 2020 revealed that 74% of hospitalized patients were aged 50 years old or older, 54.4% were male and 49.7% had hypertension.
Additionally, the lack of adequate medical care for Fofana further supports his claim. He waited more than a month to be prescribed needed high blood pressure medication and his requests for continued monitoring by nursing staff have been ignored. Thus, contrary to Respondent’s argument, Petitioner Fofana has established Respondent is deliberately indifferent to Fofana’s serious risk of illness and death from exposure to COVID-19 by her failure to impose adequate precautions and ensure proper healthcare for Fofana. Petitioner Fofana is likely to succeed on the merits of his Fifth Amendment claim.
*10 As to Petitioners Mawas, Kheshfeh, Hila and Sterbyci, the Court lacks evidence that they suffer from any underlying medical condition or conditions that place them at high risk for serious illness if exposed to COVID-19. Moreover, Petitioners Mawas, Kheshfeh, Hila and Sterbyci are in their twenties and thirties, respectively. Without more evidence to support the objective prong of their Fifth Amendment claim, the Court cannot conclude that Petitioners Mawas, Kheshfeh, Hila and Sterbyci have a strong likelihood of success on the merits of their Fifth Amendment claim.
C. Irreparable Injury
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Respondent also argues Petitioners cannot show irreparable injury because release will not prevent the risk of adverse consequences from COVID-19 when neither prison has any confirmed cases. Contrary to Respondent’s argument, it is beyond dispute that detention facilities are built to house as many people as possible, which makes it virtually a guarantee that these facilities “will be hit by COVID-19 when the rest of the community is, staff and their families included.” ECF No. 7, PageID.123; see also Rafael L.O., , 2020 WL 1808843, at *8, 2020 U.S. Dist. LEXIS 62389, at *7 (granting immigration detainees release because the “conditions of confinement raise serious concerns about the ability to stop transmission of the virus.”) As another federal judge in this district stated, “[i]n the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a ‘generalized risk’ is a ‘substantial risk’ of caching the COVID-19 virus for any group of human beings in highly confined conditions, such as” Petitioners at Monroe and Chippewa County Jails. Malam v. Adducci, No. 20-10829, 2020 WL 1683453, *9, 2020 U.S. Dist. LEXIS 59709, *25 (E.D. Mich. Apr. 6, 2020).
The only legitimate governmental objective advanced by Respondent is the Government’s interest in ensuring illegal aliens do not abscond into the United States and evade their immigration proceedings. However, Petitioners have a strong interest in avoiding an unreasonable risk of serious illness and damage to their future health. None of the Petitioners are subject to mandatory detention under 8 U.S.C. § 1226(c). Continued confinement under these conditions is not reasonably related to the Government’s interest. See Malam, 2020 WL 1683453, 2020 U.S. Dist. LEXIS 59709 (E.D. Mich. Apr. 6, 2020) (finding irreparable harm where petitioner with underlying health conditions was housed at a facility with no confirmed COVID-19 cases but that had imposed measures that were “insufficient to stem deadly prison outbreaks” based on the inherent nature of detention and “this particular global public health crisis.”); see also Thakkur v. Doll, No. 1:20-cv-480, 2020 WL 1671563, *8, 2020 U.S. Dist. LEXIS 59459, *24 (M.D. Pa. Mar. 31, 2020) (“unsanitary conditions, which include overcrowding and a high risk of COVID-19 transmission” are not rationally related to government objective of ensuring that the petitioners appear for removal proceedings).
In Thakkur, the district judge determined the “[p]etitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions.” Id. at *9. He further opined that, “[a]t this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein.” (emphasis in original). “There can be no injury more irreparable” than “lasting illness or death.” Id. The Thakkur court ultimately released more than ten immigrant detainees including several in their fifties with underlying health conditions such as high blood pressure. Id.; see also Castillo v. Barr, No. 20-00605, 2020 WL 1502864, 2020 U.S. Dist. LEXIS 54425 (C.D. Cal.
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2020) (releasing immigrant detainees due to COVID-19 pandemic and the respondent’s deliberate indifference to the detainees exposure to the virus and irreparable, serious illness); Rafael L.O., 2020 WL 1808843, at *6, 2020 U.S. Dist. LEXIS 62389, at *23 (same); Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503, 2020 U.S. Dist. LEXIS 53191 (S.D.N.Y. Mar. 26, 2020) (same).
*11 The record is replete with evidence that Respondent has exposed Petitioners to a serious risk of harm. Given the accelerating count of confirmed COVID-19 cases in ICE detention facilities throughout the nation and Respondent’s inadequate precautionary measures, as discussed above, Respondent has exposed the Petitioners to risk of serious and irreparable harm.
D. Balance of Interests
Because the government’s interest is the public’s interest, the final factors for injunctive relief are considered together because “ ‘the government’s interest is the public interest.’ ” Malam, 2020 WL 1683453, at *13, 2020 U.S. Dist. LEXIS 59709, at * 36 (quoting Pursuing America’s Greatness v. FEC, 831 F.3d 500, 512, 425 U.S. App. D.C. 31 (D.C. Cir. 2016))(citing Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009)). Respondent argues the balance of factors does not favor the Petitioners. The public has a significant interest in the enforcement of the immigration laws and Respondent has valid reasons and statutory bases for detaining the Petitioners. Moreover, Petitioners Hila and Fofana have already been declared flight risks.
Contrary to Respondent’s argument, the balance of interests favor release. The public has a strong interest in preventing the rapid spread of COVID-19 in immigration detention facilities so that sick detainees do not place further strain on an already taxed healthcare system. Thakkur, 2020 WL 1671563, at *9, 2020 U.S. Dist. LEXIS, at *27 (“Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest.”)
As to Petitioner Fofana, the likelihood that he would abscond appears minimal considering the current restrictions in the State and that he is a married father of four minor children with every incentive to appear for his immigration proceedings. Finally, the Court notes that Fofana has lived in the United States from 2001 through February of this year and has not engaged in further criminal conduct. In an abundance of caution; however, the Court will order ICE to set up electronic monitoring for Petitioner Fofana, among additional conditions of release.
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Because Petitioner Fofana has a strong likelihood of success on the merits of his Fifth Amendment claim, has shown irreparable injury and the balance of interests are in his favor, the Court will grant his requested relief.
As to Petitioners Mawas, Khesfeh, Hila and Sterbyci, the Court is without sufficient information to assess whether they can establish a likelihood of success on the merits of their Fifth Amendment claim. The entry of preliminary injunctive relief is an extraordinary remedy and the Court cannot conclude at this juncture that Petitioners Mawas, Khesfeh, Hila and Sterbyci have met their burden to justify their requested relief. Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015).
IV. CONCLUSION Accordingly, for the reasons articulated above, Petitioners’ Petition for a Writ of Habeas Corpus and Request for Temporary Restraining Order [#1] is GRANTED IN PART and DENIED IN PART.
IT IS ORDERED that Respondent Rebecca Adducci, within 36 hours from the entry of this Opinion and Order, release Petitioner Fofana on his own recognizance with the conditions that he (1) quarantine for 14 days at home upon his release from custody, (2) obey all Michigan Executive Orders, and (3) appear for his immigration proceedings.
IT IS FURTHER ORDERED that Respondent is RESTRAINED from arresting Petitioner Fofana for civil immigration purposes until the State of Emergency related to COVID-19 is lifted or until further Order of this Court.
*12 IT IS FURTHER ORDERED that Petitioner Fofana submit to electronic monitoring by ICE.
IT IS FURTHER ORDERED that Petitioners Mawas’s, Khesfeh’s, Hila’s and Sterbyci’s petition for a writ of habeas corpus and request for a temporary restraining order is denied.
IT IS FURTHER ORDERED that this temporary restraining order will expire within fourteen days of the entry of this Opinion and Order. Respondent SHALL SHOW CAUSE, in writing, why this Opinion and Order granting Petitioner Fofana’s request for a temporary restraining order should not be converted to a preliminary injunction no later than April 20, 2020. Petitioner Fofana may file a Response no later than April 23, 2020.
SO ORDERED.
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All Citations --- F.Supp.3d ----, 2020 WL 1873307
End of Document

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2020 WL 1808906 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division.
Oliver Nissan AWSHANA, Ali Najim AlSadoon, and Wisam Gharib Hamana, Plaintiffs,
v. Rebecca ADDUCCI, Detroit District Director, United States Immigration
and Customs Enforcement, Matthew T. Albence, Director, United States Immigration and Customs Enforcement, Kevin McAleenan, Secretary of the United States Department of Homeland Security, and William P. Barr, United States Attorney General. Respondents.
Case Number 20-10699 |
Signed April 9, 2020
Attorneys and Law Firms
Shanta Driver, Driver, Schon and Associates PLC, Detroit, MI, for Petitioners.
Bradley Darling, U.S Department of Justice, Detroit, MI, for Respondents.
OPINION AND ORDER DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS
DAVID M. LAWSON, United States District Judge
*1 “[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 wellbeing.” Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (citation omitted). Citing concerns for their safety due to potential exposure to the novel coronavirus and contracting COVID-19, petitioners Oliver Nissan Awshana, Ali Najim Al-Sadoon, and Wisam Gharib Hamana, Iraqi refugees currently detained by the United States Immigration Customs and Enforcement Agency (“ICE”), ask this Court to order their release in a petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. They base their petition on a vague reference to an undeveloped theory of substantive due process embodied in the Fifth
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Amendment. The government opposes their request due in part to their criminal histories that would disfavor release under normal circumstances. But these are not normal times, and the Court has the authority to order the petitioners' release if their continued detention violates a constitutional right for which the only remedy is release. Nonetheless, the present circumstances do not warrant relief: there are no confirmed or suspected COVID-19 cases in the one of detention facilities mentioned in the petition, and none of the petitioners are burdened with conditions that place them in an enhanced risk category. The petition will be denied in part, but it may be renewed if conditions change. The respondents promptly must furnish additional information about the conditions at the St. Clair County Detention Facility, where COVID-19 cases have been reported.
I. The Petition
Although the petitioners have styled their petition as an “emergency,” they have not moved for a temporary restraining order or preliminary injunction or any other form of immediate consideration. The petition cites no legal authority except for references to 28 U.S.C. § 2241. The petitioners filed no memorandum of law to support their request. And they have not coupled their petition with any claim for violations of their constitutional rights under, for example, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
The government believes that the petitioners' exclusive reliance on section 2241 is fatal to their claim. Generally, section 2241 provides a remedy for prisoners and detainees in two circumstances: (1) to “challeng[e] the execution of a sentence,” and (2) to “test the legality of a detention where [28 U.S.C.] § 2255 is otherwise inadequate.” Terrell v. United States, 564 F.3d 442, 447-48 (6th Cir. 2009). The government characterizes the petition as a challenge to the petitioners' conditions of confinement. It argues that section 2241 cannot provide a basis for relief for such a challenge.
It is generally accepted in this circuit that section 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013) (citing Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004)). That is because the purpose of a writ of habeas corpus is to contest “the very fact or duration of ... physical imprisonment.” Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007). It is employed when “the relief that [a petitioner] seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment.” Ibid. (citing Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36
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L.Ed.2d 439 (1973)). If the remedy a detainee is seeking is a change in the conditions of his custody arrangements, or to obtain compensation for past unconstitutional conditions of confinement, then he must file an action under 42 U.S.C. § 1983, or for a federal detainee, under Bivens. Ibid.
*2 The petitioners here, however, are not seeking to change the conditions of their confinement or to obtain damages for past constitutional violations. Instead, they describe the close living conditions typical of custodial confinement, they recount the current commands for social distancing necessary to inhibit the spread of the novel coronavirus, and they argue that no custodial condition will protect them from infection. Therefore, they argue, the only remedy that will vindicate their due process right under the Fifth Amendment is release from custody.
That form of relief falls squarely within the prevue of section 2241. “The statute is an affirmative grant of power to federal courts to issue writs of habeas corpus to prisoners being held ‘in violation of the Constitution or laws or treaties of the United States.’ ” Rice v. White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting 28 U.S.C.§ 2241(c)). Courts generally look to the form of relief sought when deciding if section 2241 is applicable. In cases involving medical decisions, sometimes fine distinctions must be drawn. See Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (distinguishing between a section 2241 petitioner who requests a “quantum change in the level of custody, which must be addressed by habeas corpus,” and a petitioner who requests “a different program or location or environment, which raises a civil rights claim” and holding that “[i]f an inmate establishe[s] 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.” (citation omitted)); cf. Bell v. Wolfish, 441 U.S. 520, 526 n.6, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“[L]eav[ing] to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.” (citation omitted)). But section 2241 has been pressed into service in medical condition cases where the line of demarcation is fuzzy. See Roba v. United States, 604 F.2d 215, 218-19 (2d Cir. 1979) (allowing a section 2241 petition to challenge an inmate's “transfer while seriously ill” where that transfer posed a risk of fatal heart failure).
Other courts that have granted relief to detainees based on the current pandemic have relied on section 2241 for their authority. Most of them, however, also have considered coordinated
requests for a temporary restraining order and the attending relevant equitable factors. See Jones v. Wolf, No. 20-361, 2020 WL 1643857 (W.D.N.Y. Apr. 2, 2020); Basank v. Decker, –––
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F.Supp.3d ––––, No. 20-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); ––– F.Supp.3d ––––, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020).

Coronel v. Decker,

The petitioners allege that their continued detention violates their constitutional right under the Fifth Amendment, which forbids depriving a person of life, liberty, or property without due process of law. They contend that their continued detention will compromise their health and may kill them.
They are entitled to advance their claim — and seek release from custody — under section 2241.

II. Immigration Status and Constitutional Detention
The petitioners are natives and citizens of Iraq admitted at various times to the United States as refugees. The statuses of Awshana and Hamana were adjusted to lawful permanent residents. All three were placed in removal proceedings because of criminal convictions. And all eventually were scheduled for deportations, which were stayed when Immigration Judges granted requests for withholding of removal under the Immigration and Naturalization Act, the United Nations Convention Against Torture, or both.
*3 Congress has prescribed that once an alien has been ordered to be deported, “the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’).” 8 U.S.C. § 1231(a)(1)(A). During this removal period, “the Attorney General shall detain the alien.” Id. § 1231(a)(2). Congress has authorized the Attorney General (now the Secretary of the Department of Homeland Security) to detain certain aliens beyond the 90-day removal period under certain circumstances. Id. § 1231(a)(6). “By its terms, this provision applies to three categories of aliens: (1) those ordered removed who are inadmissible under § 1182, (2) those ordered removed who are removable under § 1227(a)(1)(C), § 1227(a)(2), or § 1227(a)(4), and (3) those ordered removed whom the Secretary determines to be either a risk to the community or a flight risk.” Clark v. Martinez, 543 U.S. 371,377, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). The petitioners here all fall within the second category, and possibly the third as well.
Detention of removable aliens, however, must be consistent with the Constitution. The protection of the Fifth Amendment's Due Process Clause applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The petitioners allege that their continued detention during the COVID-19 pandemic violates their substantive
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rights under the Due Process Clause of the Fifth Amendment to the United States Constitution because it jeopardizes their health and medical wellbeing.
It is well known that the State “has an ‘obligation to provide medical care for those whom it is punishing by incarceration.’ ” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (quoting
Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). “[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling, 509 U.S. at 31, 113 S.Ct. 2475.
However, claims by detainees for due process violations emanating from confinement conditions are not strictly governed by the Eighth Amendment, because the detainees do not stand convicted and are not subject to punishment. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). A detainee's rights are at least as great as the Eighth Amendment protections available to a convicted prisoner. Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004) (holding that civil detainees are entitled to superior conditions of confinement than prisoners and pretrial detainees). Nonetheless, claims relating to health concerns by detainees are analyzed using an Eighth-Amendment, deliberate-indifference framework. Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001).
That framework calls for proof that detention officials were deliberately indifferent to a substantial risk of harm. Farmer v. Brennan, 511 U.S. 825, 837–38, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The applicable test has two elements. Id. at 834, 114 S.Ct. 1970. First, the petitioners must demonstrate that the constitutional deprivation was “objectively, ‘sufficiently serious.’ ” Ibid. (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). Second, they must demonstrate that the detention official had a “sufficiently culpable state of mind.” Ibid. This element can be proven by circumstantial evidence from which the fact finder can conclude that the state actor perceived the risk, Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001), or “from the very fact that the risk was obvious.” Terrance v. Northville Reg'l Psychiatric Hospital, 286 F.3d 834, 843 (6th Cir. 2002).
In Helling v. McKinney, the Supreme Court held that a prisoner could state a claim under the Eighth Amendment by alleging that officials “exposed him to levels of [environmental tobacco smoke] that pose[d] an unreasonable risk of serious damage to his future health.” 509 U.S. at 35, 113 S.Ct. 2475. To satisfy the objective prong, the plaintiff had to show both that he was “being exposed to unreasonably high levels of [environmental tobacco smoke]” and that “society
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consider[ed] the risk that the prisoner complain[ed] of to be so grave that it violate[d] contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. at 35, 36, 113 S.Ct. 2475 (emphasis in original). The plaintiff must produce “more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood [of] injury.” Id. at 36, 113 S.Ct. 2475. To succeed on the subjective prong, the plaintiff had to show that “the prison authorities' current attitude and conduct” amounted to deliberate indifference. Ibid.
*4 However, “a remedy for unsafe conditions need not await a tragic event,” and the plaintiff need not allege present harm to succeed on an unconstitutional conditions claim. Id. at 33, 113 S.Ct. 2475. In Helling, the Court rejected the government's argument that the plaintiff's claim was not cognizable because he had not alleged any present harm. The Court explained that the government may not “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.” Ibid. The Court noted some examples of circumstances where inmates may obtain injunctive relief to remedy lifethreatening conditions even though “nothing yet had happened to them.” Ibid. One example was the “exposure of inmates to serious, communicable disease [even if the] inmate shows no serious current symptoms.” Ibid.
III. COVID-19 Pandemic and Detention Facilities
A. Novel Coronavirus in Michigan
On March 22, 2020, the Governor of Michigan announced that “[t]he novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spreads from person to person. There is currently no approved vaccine or antiviral treatment for this disease.” Executive Order, No. 2020-20, Mar. 22, 2020, https://www.michigan.gov/ whitmer/0,9309,7-387-90499_90705-522626--,00.html. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, estimated that between 100,000 and 240,000 people will die from COVID-19 related complications. Michael D. Shear et al., Coronavirus May Kill 100,000 to 240,000 in U.S. Despite Actions, Officials Say, N.Y. Times, Mar. 31, 2020, https:// www.nytimes.com/2020/03/31/us/politics/coronavirus-death-toll-united-states.html.
The Centers for Disease Control and Prevention (CDC) advised that “[p]eople aged 65 years and older” might be at higher risk for severe illness from COVID-19. See
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People Who Are at Higher Risk for Severe Illness, Ctrs. for Disease Control and Prevention (Mar. 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/ people-at-higher-risk.html? CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus %2F2019ncov%2Fspecific-groups%2Fhigh-risk-complications.html. The CDC identified other high-risk conditions, which include: [p]eople with chronic lung disease or moderate to severe asthma[; p]eople who have serious heart conditions[; p]eople who are immunocompromised ... [; p]eople of any age with severe obesity (body mass index [BMI] of 40 or higher)[; p]eople with diabetes[; p]eople with chronic kidney disease undergoing dialysis[; or p]eople with liver disease.” People Who Are at Higher Risk for Severe Illness, supra.
On March 10, 2020, the Governor of Michigan announced the state's first two cases of COVID-19 and simultaneously declared a state of emergency. Executive Order, No. 2020-4 (Mar. 10, 2020). The number of new cases is growing exponentially. As of today, that number is now at 20,346 confirmed cases and 959 known related deaths. See Coronavirus, Michigan.Gov, https:// www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--,00.html. COVID-19 has a high risk of transmission, and the number and rate of confirmed cases indicate broad community spread. Ibid.
B. ICE Detention Facilities
The parties paint very different pictures of the conditions within the ICE detention facilities. The government argues that the situation is no worse than what is occurring throughout the rest of the world. But the petitioners argue that the packed, unsanitary conditions at the facilities are completely inadequate, warning that they will become breeding grounds for the disease.
1. ICE Facility Conditions
As of March 30, 2020, when the respondents filed their answer to the petition, there have been no suspected or confirmed cases of COVID-19 in either the Calhoun or St. Clair County detention centers. However, the Court learned from the U.S. Marshal Service that confirmed cases were reported by the St. Clair County Jail on April 8, 2020. The petitioners argue that the poor conditions in the facility will compromise their safety and that exposure to the virus while detained within ICE's facilities is inevitable.
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*5 Relying on the following articles from major news outlets, the petitioners believe that ICE detention facilities are rife with overcrowding, neglect, and substandard conditions, making them hotbeds for the virus:
1. Human Rights Watch & American Civil Liberties Union, Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention (June 2018) ECF No. 1-4. (Since March 2010, 74 detainees have died in ICE custody; medical care lapses contributed to 23 of them);
2. Amanda Holpuch, Coronavirus Inevitable in Prison-Like US Immigration Centers, Doctors Say, THE GUARDIAN, ECF No. 1-5;
3. Former ICE Director: Release Immigrants from Detention or COVID-19 Will Spread Like Wildfire Inside, DEMOCRACYNOW, ECF No. 14-1;
4. Ken Klippenstein, Exclusive: ICE Detainees Are Being Quarantined, THE NATION, ECF No. 14-3 (ICE has been quarantining detainees at 10 different facilities, suggesting that there may be outbreaks);
5. Scott A. Allen & Josiah D. Rich, Letter to House Committee on Homeland Security, ECF No. 14-4 (letter from infectious disease specialists urging immediate mitigation strategies to slow the spread of COVID-19 within immigration detention facilities);
6. Julie Mack, Another Big Jump in Michigan Coronavirus Numbers: Now at 2,295 Cases; 43 Deaths, MLIVE (Mar. 25, 2020), ECF No. 14-5;
7. Open Letter to ICE from [3,014] Medical Professionals Regarding COVID-19, ECF No. 14-6, at PageID.398 (urging the release of “[i]ndividuals and families, particularly the most vulnerable – the elderly, pregnant women, people with serious mental illness, and those at higher risk of complications”);
8. Dara Lind, ICE Detainee Says Migrants Are Going on a Hunger Strike for Soap, PROBULICA, ECF No. 14-6; and
9. Gregory Bull, Coronavirus: SF D.A., Activists, Doctors Call for Undocumented Immigrants' Release, ASSOCIATED PRESS, ECF No. 14-11.
On March 23, 2020, the Centers for Disease Control and Prevention (CDC) acknowledged that detention facilities “present [ ] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” Interim Guidance on Management
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of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/ correction-detention/guidance-correctional-detention.html. “The CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/ detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing).” United States v. Kennedy, No. 18-20315, ––– F.Supp.3d ––––, ––––, 2020 WL 1493481, at *2 (E.D. Mich. Mar. 27, 2020) (Levy, J.).
Both detention facilities at issue — Calhoun and St. Clair — are located within jail complexes where vendors, visitors, attorneys, clergy, and correctional facility staff come and go on a daily basis, according to the petitioners. The government advises, however, that visits are restricted presently and inmates have no direct contact with people from outside the facilities. The petitioners maintain that there is no coronavirus screening testing for new detainees, nor is there coronavirus testing provided to the facility staff. ICE reported that coronavirus testing is provided only when symptoms manifest, which, according to the World Health Organization, is 5 to 14 days after the virus is contracted.
*6 Awshana and Hamana are both detained in the Calhoun Facility. The facility has two types of dorms. The first type contains 30 to 40 cells that house two people each. The second type of dorm “has simple bed rows that each have 8 to 16 people.” All detainees share common eating and social areas. The petitioners report that they have no masks to wear, people come and go every day, they must share five phones among each other, and there is only one sink for everyone to wash their hands. Although the facility has hand sanitizer, detainees are not allowed access to it after 5:00 p.m. They wear the same jumpsuits every day, which are washed twice a week. The petitioners allege that the facilities in the St. Clair County jail, where Al-Sadoon is held, “are virtually identical to those at Calhoun County.”
Through this morning, Calhoun County has reported 541 total cases of COVID-19 and one death, and St. Clair County reported 140 cases and 3 deaths. See Coronavirus, Michigan.Gov, https:// www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--,00.html
2. Steps Taken to Ameliorate the Situation
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Jennifer Moon, the Deputy Assistant Director for Healthcare Compliance with ICE Health Service Corps (IHSC), filed a declaration describing the steps ICE has taken to stem the spread of COVID-19 within the Calhoun and St. Clair County detention facilities.
Following guidance from the CDC, facility staff assess detainees for fever and respiratory illness during intake medical screenings. Detainees are also asked if they traveled through areas with sustained community spread or if they had close contact with anyone with a laboratory-confirmed COVID-19 diagnosis within the past two weeks. Asymptomatic detainees with known exposure to COVID-19 “are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness.” Those detainees who present with symptoms associated with COVID-19 are placed in isolation where they will be tested. And if they test positive, they will remain isolated, treated, and hospitalized if necessary. And on Friday, March 13, 2020, the Federal Bureau of Prisons announced that incarcerated people will not be allowed visits from family, friends, and attorneys for 30 days. Federal Bureau of Prison Action Plan, Federal Bureau of Prisons, (Mar. 13, 2020), https://www.bop.gov/resources/news/ 20200313_covid-19.jsp.
The facilities, working with their local Health Departments, also provide staff and detainee services to help curb the spread of the virus. Calhoun County and St. Clair County provide education on COVID-19, which includes guidance on identifying symptoms and the importance of hygiene. The facilities also provide daily access to sick calls, specialty services, and hospital care.
ICE also insists that the conditions at the detention facilities are adequate. The facilities maintain “populations within their approved capacities and are not overcrowded.” And they both provide “disinfectants, soap, and personal protective equipment when needed.”
IV. Petitioners' Individual Circumstances
The petitioners argue that the conditions at the Calhoun and St. Clair detention centers subject them to a heightened risk of contracting COVID-19, going so far as calling the facilities soon-to-be “death camps.” That language does little to advance the arguments, but the Court is mindful of the petitioners' legitimate concern — shared by society in general — over minimizing exposure to the novel coronavirus. The increasing number of courts that have addressed pleas for release because of the fear of COVID-19 infection have ruled both ways, denying relief when the concern is too generalized, and granting relief when specific and heightened risks of exposure to complications have been shown. Courts have been more inclined to grant relief where the detention facility has reported confirmed cases of COVID 19 or where the petitioners fall into one of the high-risk
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categories for COVID-19. See decisions granting relief: Jones, 2020 WL 1643857 (W.D.N.Y.) (granting relief for detainees with chronic medical conditions held in a detention facility with no confirmed COVID-19 cases); Basank, ––– F.Supp.3d at ––––, 2020 WL 1481503 (S.D.N.Y.) (granting relief for detainees with chronic medical conditions held in a facility with confirmed cases of COVID-19); Coronel, ––– F.Supp.3d ––––, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) (same); Malam v. Adducci, ––– F. Supp. 3d ––––, No. 20-10829, ––– F.Supp.3d ––––, ––––, 2020 WL 1672662, at *1 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (granting relief for petitioner in high-risk category but held in facility with no confirmed cases); and see decisions denying relief: Dawson v. Asher, No. 20-0409, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020) (denying petition where petitioners were not in high-risk group and no detainees or staff at the facility at issue tested positive for COVID-19); Sacal-Micha v. Longoria, No. 20-37, ––– F.Supp.3d ––––, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020) (same); Xuyue Zhang v. Barr, ––– F.Supp.3d ––––, ––––, 2020 WL 1502607, at *4 (C.D. Cal. Mar. 27, 2020) (denying relief for petitioners in high-risk categories held a detention facility with no confirmed cases of COVID-19).
*7 That pattern is consistent with a deliberate indifference analysis. Objectively, the health risks posed by COVID-19 are abundantly clear. The parties do not dispute that the virus is particularly dangerous to those over 65 years old or with certain underlying health conditions. See People Who Are at Higher Risk for Severe Illness, supra. There is no vaccine to prevent COVID-19, nor is there a known cure or antiviral treatment at this time. Ibid. Dr. Fauci estimated on March 31, 2020, that between 100,000 and 240,000 will die of COVID-19. Shear et al., supra. And the Southern and Western Districts of New York have “take[en] judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality.” Basank, ––– F.Supp.3d at ––––, 2020 WL 1481503, at *3 (S.D.N.Y.);
Jones, 2020 WL 1643857, at *8 (W.D.N.Y.).
The petitioners are also housed in a manner that increases their risk of exposure to the coronavirus. They are held in the general population of the Calhoun County and St. Clair County detention centers, use shared restrooms, and are confined in shared cells or dorm-style housing. Government experts agree that such a communal style of living can increase the infection rate. See Former ICE Director: Release Immigrants from Detention or COVID-19 Will Spread Like Wildfire Inside, DEMOCRACYNOW, ECF No. 14-1; FAQs for administrators, staff, people who are incarcerated, families, Ctrs. for Disease Control and Prevention (Mar. 28, 2020), https:// www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/faq.html.
However, unlike the petitioners in the cases for which courts granted relief, the petitioners in this case do not allege that they are in a high-risk category as defined by the CDC. Petitioners Awshana
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and Hamana, presently detained at the Calhoun County Detention Center, have not alleged that any detainees or staff have tested positive for the illness in that detention facility. The petitioners assert generally that they “are older adults and/or people with medical conditions who are at particularly grave risk of severe illness or death if they contract COVID-19.” But they never have alleged that any of them suffered from a medical condition that placed them in a high-risk category, per the CDC's guidelines. As of July 2019, Hamana was 39 years old. And although the parties never stated the Awshana's age, he never claimed that he was over 45. See People Who Are at Higher Risk for Severe Illness, supra. Despite Awshana's assertions that his medical condition has deteriorated over the past two weeks, he was given consistent medical attention. After visiting the clinic at the Calhoun facility six times over the course of nine days, medical staff never noted that he presented any symptoms beyond seasonal allergies or dehydration. Although the seriousness of the pandemic cannot be doubted, petitioners Awshana and Hamana are in an objectively better situation than the petitioners in Jones, Basank, and Coronel, who were either in high-risk categories, were held in facilities with confirmed cases, or both.
Petitioner Al-Sadoon's circumstances are different, because the United States Marshal reported on Wednesday that two inmates at the St. Clair County jail tested positive for COVID-19. An ICE Assistant Field Office Director reports that each inmate was isolated in his respective housing unit, and that Al-Sadoon does not reside in either unit. No further information was provided. The government will be required promptly to investigate and report to the Court and petitioners' counsel the details. Al-Sadoon has not alleged that he falls in one of the high-risk categories that portend complications from a coronavirus infection. He is approximately 32 years old.
*8 To satisfy the subjective element of their claim, the petitioners must demonstrate that the government subjected them to objectively poor confinement conditions with deliberate indifference to their health and safety. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. There is no doubt that the respondents are aware of the grave threat posed by the pandemic and the exacerbated risk caused by the close quarters of the detention facilities. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/ community/correction-detention/guidance-correctional-detention.html (last visited April 8, 2020) (explaining that measures ordered by the CDC to reduce person-to-person contact present unique challenges for prisons and detention facilities, because “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced”).
According to Deputy Assistant Director Moon, the government has put in place specific measures to stem the spread of the pandemic. Following CDC guidance, Calhoun and St. Clair facility staff
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assess detainees for fever and respiratory illness during intake medical screenings and ask about any possible exposure to the virus. Those with confirmed exposure will be segregated in separate cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee). And the government will place detainees who present with COVID-19 symptoms in isolation where they are tested and treated if necessary. However, while these measures are certainly commendable, “the fact is that none of the steps [taken] ... includes the ‘social distancing measures recommended — especially for high-risk individuals — by the CDC ...” Jones, 2020 WL 1643857, at *10 (W.D.N.Y.). It is unlikely that any operating detention facility will be able to achieve that goal.
V. Release as a Remedy
The premise of this habeas corpus petition is that the conditions of confinement in these ICE detention facilities are so intolerable because of the risk of contracting COVID-19 that release is the only remedy. With appropriate proof, that may indeed be true. But the petitioners have leveled only generalized allegations; if those were deemed sufficient, then all inmates would be entitled to release until the pandemic subsides. The petitioners have not stated as much in so many words, but neither have they attempted to articulate any limiting principle.
Limits, however, are imposed by the Due Process Clause itself, and the manner of its application. The seminal case dealing with the constitutionality of conditions of confinement of non-convicted detainees is Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). There, the Supreme Court held that such claims are governed by the Due Process Clause, a proposition that is now well accepted. See, e.g., Phillips v. Roane County, 534 F.3d 531, 539 (6th Cir. 2008) (reiterating that when a conditions-of-confinement claim “is asserted on behalf of a pre-trial detainee, the Due Process Clause ... is the proper starting point”). But the Court also emphasized that those constitutional rights implicated by conditions of confinement, when analyzed for pretrial detainees under the Due Process Clause, must be balanced against the “Government['s] ...legitimate interests that stem from its need to manage the facility in which the individual is detained.” Bell, 441 U.S. at 540, 99 S.Ct. 1861. Courts, therefore, must strike a balance “between institutional needs and objectives and the provisions of the Constitution that are of general application.” Id. at 546, 99 S.Ct. 1861 (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). In striking that balance, courts must give great deference to the custodians “in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional
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security,” id. at 547, 94 S.Ct. 2963, lest courts become “enmeshed in the minutiae of prison operations.” Id. at 562, 94 S.Ct. 2963.
*9 The institutional interests here circle back to ICE's interest in continuing the detention of those removable aliens whom the Secretary determines “to be a risk to the community or unlikely to comply with the order of removal.” 8 U.S.C. § 1231(a)(6). When considering the remedy of a complete release from detention (albeit with conditions for supervision), the Court must strike a balance between the gravity of the risk of contracting COVID-19 (with uncertain outcomes for recovery and a path that could lead to death) with the danger to the public that could result from releasing the petitioners into the community. The petitioners each contend that they are neither a danger nor a flight risk. In light of those arguments, it is relevant to review their backgrounds. The following information came from the petition and declarations furnished by the respondents.
A. Oliver Nissan Awshana
According to the declaration of deportation officer Christopher Labadini, Oliver Nisan Awshana came to the United States as a refugee on April 20, 2009, and became a lawful permanent resident on January 21, 2011. He has not revealed his age, but there is no allegation that he is over 45 years old.
1. Immigration Proceedings
Awshana was convicted of possession of cocaine and two counts of retail fraud in the second degree in state court. Due to his convictions, the Bureau of Immigrations and Customs Enforcement (ICE) detained Awshana in April 2018 and placed him in removal proceedings under 8 U.S.C. § 1227(a)(2). He filed applications for relief from removal, but the Immigration Court denied them on August 2, 2018, and ordered him deported to Iraq. Awshana's removal was scheduled to occur on April 23, 2019.
On April 1, 2019, Awshana filed a petition for a writ of habeas corpus in the Northern District of Ohio under 28 U.S.C. § 2241. He argued that his continued detention under 8 U.S.C. § 1231(a) was unlawful and that he should be released from ICE custody because the United States was unable to obtain travel documents necessary to remove him to Iraq. The district court in Ohio denied the petition on July 10, 2019.
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ICE began the physical removal process on April 23, 2019, flying Awshana from Detroit to Chicago. But Awshana “refus[ed]” to board the plane for his trip to Iraq from Chicago. So ICE transferred him to the Calhoun County Detention Center in Battle Creek, Michigan, where he remains in custody.
Three days later, on April 26, Awshana filed two motions with the Immigration Court in Detroit, Michigan: the first to reopen his case, and the second to stay his removal proceedings. On April 30, 2019, the Immigration Court granted Awshana's motion to stay his removal, and on May 14, 2019, the court reopened his immigration case.
After holding hearings in November and December 2019, the Immigration Court issued a written decision on February 4, 2020, granting Awshana's applications for withholding of removal under the Immigration and Nationality Act and alternatively withholding removal under the United Nations Convention Against Torture due to the deteriorating conditions in Iraq. The court concluded that Awshana would face torture and persecution in Iraq because he is a Christian, he will be identified as a supporter of the United States, and he has no social network to protect him in Iraq. ICE then filed a notice of appeal with the Board of Immigration Appeals (BIA) on March 3, 2020. The appeal currently is pending, awaiting the issuance of the BIA's briefing schedule and hearing transcripts.
2. Medical History at Calhoun Detention Facility
In a reply to the government's response, Awshana asserts that his medical condition has deteriorated over the past two weeks while at the Calhoun Detention Center. His attorney alleges that when she visited him on March 20, 2020, he looked “sick.” He allegedly had a fever, a runny nose, and a cough, and he had difficulty swallowing, was sweating profusely, and was slightly jaundiced. The government adamantly disputes this account, contending that attending nurses saw nothing wrong with Awshana, aside from seasonal allergies and dehydration. The government detailed Awshana's recent medical history in its sur-reply:
*10 March 20, 2020: Awshana visited the clinic complaining of a stuffy nose and nausea that started the day before. He denied being around anyone that had been sick. “The practitioner noted that it appears Awshana has allergic rhinitis and that there are no signs of infection.” He was prescribed Cetirizine for his allergy symptoms and was told to increase his fluids.
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March 24, 2020: Awshana visited the clinic complaining about sneezing and fatigue. He denied having a cough or nausea. He stated that he gets dizzy after laying down and rising quickly. He also admitted that he had only been drinking three glasses of water because it tastes bad.
March 25, 2020: Awshana visited the clinic for unusual behavior. He denied feeling suicidal or homicidal. But he reported feeling anxious and wanted to be released.
March 26, 2020: He visited the clinic again for unusual behavior. He complained of “feeling bad,” that his ears were plugged, and that he had been coughing. No cough was noted during the encounter. He was housed and placed in observation.
March 26, 2020: Awshana returned to the clinic by the request of command staff, as he had been kiting the night before stating that he needed to go to the hospital. He appeared very anxious, had no fever, was slightly tachycardic, and said he was not sleeping. He did not cough during the exam or observation period. He received an x-ray of his chest, which came back normal. He was cleared and returned to general population.
March 29, 2020: Awshana visited the clinic complaining about a cold or the flu. He claimed that he had a fever, chills, nasal drainage, and a cough. A physical exam showed that his vital signs were fine, and the nurse did not detect a cough, runny nose, or congestion. No signs or symptoms of a cold or the flu were noted.
B. Ali Najim Al-Sadoon
Ali Najim Al-Sadoon is an Iraqi Shi'a Muslim. He and his family fled Iraq and sought refuge in the United States on June 23, 1994. He is roughly 32 years old. He has not identified any health problems.
1. Immigration Proceedings
After being convicted of safe breaking and breaking and entering in state court, ICE initiated removal proceedings against Al-Sadoon on August 20, 2013, charging him as removable under 8 U.S.C. §§ 1227(a)(2). He did not contest the charges. While Al-Sadoon was serving his sentence, an Immigration Judge in Detroit ordered him removed on March 24, 2015. Al-Sadoon waived his
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right to appeal the decision and was transferred from the custody of the Michigan Department of Corrections (MDOC) to ICE on May 17, 2016.
Al-Sadoon moved to reopen his removal proceedings in September 2017, and an Immigration Judge denied the motion on November 8, 2017. Al-Sadoon appealed the decision to the BIA but withdrew his appeal on August 31, 2018.
In the meantime, Al-Sadoon was a member of a class action lawsuit filed in this Court in 2018 in which Iraqi aliens in ICE custody sought a writ of habeas corpus to preclude their detention pending removal. See Hamama v. Adducci (E.D. Mich.) (Goldsmith J.). Judge Goldsmith granted the petitioners' motion for a preliminary injunction on November 20, 2018. See Hamama v. Adducci, 349 F. Supp. 3d 665 (E.D. Mich. 2018) (Goldsmith, J.), vacated and remanded, 946 F.3d 875 (6th Cir. 2020). Per the order, ICE released Al-Sadoon from custody and placed him on a GPS tether.
*11 The Iraqi government then issued a one-way Laissez-Passer travel document for Al-Sadoon's removal on March 13, 2019. The travel document was valid for six months.
Al-Sadoon was ordered to report to the Detroit Metropolitan Airport on June 23, 2019, at 4:00 p.m. for removal. But he had filed on June 20, 2019 in the Immigration Court in Detroit a motion to reopen and a motion to stay his removal. Because he had not yet heard from the immigration court, Al-Sadoon cut his tether on the morning of June 23 and did not report to the airport as instructed. The immigration court denied Al-Sadoon's motion to reopen removal proceedings on June 25. ICE officers found Al-Sadoon at his house about a month later on July 26, 2019. He barricaded himself in his home using a couch and a washing machine. A Special Response Team had to break in to arrest him.
The government filed a criminal complaint charging Al-Sadoon with hampering removal in violation of 8 U.S.C. 1253(a)(1)(C). The court denied bond on August 5, 2019, finding that Al-Sadoon was a flight risk and danger to the community. The court eventually dismissed the indictment on the government's motion “to allow ICE to effectuate [Al-Sadoon's] removal.”
Al-Sadoon was then re-detained by ICE on December 18, 2019. But on January 10, 2020, the BIA granted Al-Sadoon's request for a stay of removal, pending the decision of Al-Sadoon's appeal of the immigration court's June 25, 2019, denial of his motion to reopen removal proceedings. AlSadoon's removal, which was planned on January 12, 2020, was therefore cancelled.
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Al-Sadoon currently is detained at the St Clair Detention Center. Most recently, on February 14, 2020, Judge Goldsmith explicitly authorized his continued detention in a sealed order in the ongoing class action.
2. Criminal History In addition to the hampering removal charge, Al-Sadoon has an extensive criminal history. He has been arrested for the following conduct:
August 2, 2001: arrested by Dearborn, Michigan, police for “an offense related to a stolen vehicle.” Al-Sadoon received a juvenile order of guilt for receiving and concealing stolen property valued at $20,000 or more; December 6, 2003: arrested by Detroit, Michigan, police for “a public order crime”; December 9, 2004: arrested by Dearborn police and convicted of unlawfully taking a motor vehicle without authority; December 4, 2006: arrested and convicted of “domestic violence in Detroit”; January 23, 2007: arrested by Detroit police and convicted of “larceny in a building and breaking and entering a building”; July 6, 2007: arrested by Detroit police “for an offense relating to assault”; July 7, 2007: arrested by Dearborn police and convicted of “operating a vehicle with no license or multiple licenses”; July 17, 2007: arrested by Detroit police “for a traffic offense”; September 26, 2007: arrested by Detroit police for an “offense related to the obstruction of justice”; December 3, 2007: arrested by Detroit police for “an offense related to robbery”; June 8, 2008: arrested by Detroit police “for a public peace offense”; June 23, 2008: arrested by Detroit police for “a dangerous drugs offense”;
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August 14, 2008: arrested by Detroit police and convicted of “breaking and entering by illegal entry without the owner's permission”;
*12 October 19, 2008: arrested by Detroit police for “an offense related to burglary”;
December 4, 2008: arrested by the Detroit police for “an offense related to obstruction of justice”;
December 9, 2008: arrested by Detroit police for “a traffic offense”;
January 9, 2009: arrested by Detroit police for “an armed robbery offense”;
January 29, 2009: arrested by the Westland, Michigan, police “for a traffic offense”;
February 20, 2009: arrested by the Dearborn police for traffic and controlled substance related offenses, resulting in a conviction of “operating a vehicle with a suspended, revoked or denied license”;
March 28, 2009: arrested by Sidney, Ohio, police and convicted of “fleeing a police officer in a vehicle”;
April 9, 2009: arrested by Dearborn police and convicted of “fleeing a police officer in a vehicle”;
April 15, 2009: arrested by Dearborn police and convicted of “operating while intoxicated and controlled substance possession”;
June 5, 2009: arrested by Dearborn police and convicted of “operating a vehicle with no license or multiple licenses”;
June 15, 2011: arrested by Wayne, Michigan, police and convicted of “breaking and entering outside a showcase”;
September 27, 2011: arrested by Dearborn police for a “public peace offense”;
October 26, 2011: arrested by the Dearborn police department for safe-breaking — convicted and sentenced to three years and six months to 15 years imprisonment with the MDOC; and
April 16, 2012: arrested by Redford, Michigan, police for breaking and entering — convicted and sentenced as a habitual offender to three years and six months to 15 years imprisonment with the MDOC.
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The last two convictions were the basis of the removal proceedings.
C. Wisam Gharib Hamana
Wisam Gharib Hamana is an Iraqi Christian who, along with his family, was granted asylum in 1983. He is around 39 years old. He left Iraq when he was eight weeks old. He does not speak Arabic or Chaldean fluently and knows little about Iraqi social and cultural norms. On July 27, 1984, he became a lawful permanent resident of the United States. He has not identified any health problems.
1. Immigration Proceedings
ICE began removal proceedings against Hamana on August 6, 2010, charging him as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) and (B)(i) based on convictions of “controlled substance offenses,” receiving and concealing stolen property, and retail fraud. On September 29, 2010, an immigration judge ordered his removal from the United States. The case was reopened in August 2017, and on February 26, 2018, an Immigration Judge again ordered his removal.
Like Al-Sadoon, Hamana was a class member in the Hamama class action before Judge Goldsmith. After Judge Goldsmith granted the petitioners' motion for a preliminary injunction on November 20, 2018, ICE released Hamana from custody on December 19, 2018, and placed him on a GPS tether.
On March 13, 2019, the Iraqi government issued a one-way, Laissez-Passer travel document for Hamana's removal from the United States, which was valid for six months. ICE scheduled Hamana's removal to begin on June 25, 2019, and instructed him to meet ICE officers at the Detroit Metropolitan Airport that day at 3:30 p.m.
*13 Hamana filed a motion to reopen and a motion to stay his removal with the immigration court in Detroit on June 18, 2019, several days before he was scheduled to leave. The immigration court denied both motions on June 24, 2019. Hamana appealed, and the BIA denied his request to stay his removal proceedings pending his appeal of the Immigration Court's decisions.
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Hamana never reported to the airport on June 25, 2019, as ordered. Instead, he cut his tether around 6:40 p.m. Acting on a complaint and warrant charging him with hampering removal in violation of 8 U.S.C. 1253(a)(1)(C), ICE found Hamana and arrested him about a month later on July 22, 2019. Hamana was arrested without further incident. Two days later, a magistrate judge in this district detained Hamana pending trial on his criminal charges, finding that he was a flight risk and posed a danger to the community. Hamana was indicted on the hampering removal charge on August 6, 2019.
On November 25, 2019, the Iraqi government issued another six-month travel document for Hamana's removal. ICE arranged to deport him on February 9, 2020, and the government dismissed its indictment against him on January 8, 2020, to facilitate his removal.
ICE re-detained Hamana on January 14, 2020. But days before his second deportation date, Hamana filed a supplemental motion with the BIA for an emergency stay on February 6, 2020. He argued that his family had been granted the right to emigrate to Italy before coming to the United States and asked that he be removed there instead of Iraq. Luck was on his side, it seems, because the next day, the flight that ICE booked to remove him was cancelled. And that same day — February 7, 2020 — the BIA granted Hamana's request to stay removal pending his appeal of the Immigration Court's June 24, 2019, denial of his motion to reopen removal proceedings.
Hamana currently is detained by ICE at the Calhoun County Detention Facility. Most recently, on March 31, 2020, Judge Goldsmith explicitly authorized his continued detention in a sealed order in the ongoing class action.
2. Criminal History
In addition to his hampering removal, it appears that Hamana also has a criminal record:
July 21, 1998: arrested by Troy, Michigan, police and convicted of “retail fraud”;
June 7, 2002: arrested by Oakland County, Michigan, sheriffs and convicted of “receiving and concealing stolen property”;
July 13, 2002: arrested by the Warren police and convicted of “controlled substance offenses”;
July 24, 2003: arrested by Hazel Park, Michigan, police and convicted of “disorderly conduct”;
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July 19, 2010: arrested by Warren police and convicted of “assault with a dangerous weapon and controlled substance possession”;
October 21, 2011: arrested by Warren police and convicted of “assault with a dangerous weapon”; and
January 18, 2013: arrested by Detroit police and convicted of “receiving and concealing a motor vehicle.”
The first three entries are the convictions that served as a basis for Hamana's removal.
* * * * *
In normal times, the petitioners' respective criminal records, interference with supervision, and resistance to lawful deportation orders would justify their continued detention. When striking the balance between ICE's institutional need for continued detention and the petitioners' legitimate concerns over an unreasonable risk of serious damage to their future health, it is fair to require the petitioners to articulate something more than a generalized fear of exposure to disease in a detention facility. That only makes sense, since “the requirements of due process are fluid and fact dependent.” Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015). A detainee who poses a greater flight risk or danger to the community will need to make a stronger showing of risk to his life and health to win release.
*14 In their criticism of the government, the petitioners point only to the lack of social distancing measures implemented at the facilities. They have not argued that the government ignored their high-risk status, failed to treat someone suffering from COVID-19 adequately, or ignored the threat level when someone associated with the detention facilities tested positive for the virus. In fact, the briefings reveal the opposite. The Calhoun facility medical staff were attentive to Awshana's complaints, caring for him each time he visited the clinic, monitoring his condition, providing advice about managing his hydration levels, and giving him allergy medications.
To prevail, the petitioners must show that the government, “with deliberate indifference, exposed [them] to [an environment] that pose[s] an unreasonable risk of serious damage to [their] future health.” Helling, 509 U.S. at 35, 113 S.Ct. 2475. Petitioners Awshana and Hamana have not done so; they have not offered specific proof that the respondents' facilities “[are] incapable of protecting [them] from contracting COVID-19 or providing appropriate medical attention should
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[they] be infected.” Sacal-Micha, ––– F.Supp.3d at ––––, 2020 WL 1518861, *5 (S.D. Tex.). The petitioners offer only conclusory arguments based on articles regarding the contagious nature of COVID-19 and the potential to spread in detention facilities. But none of the exhibits concern the Calhoun or St. Clair detention centers specifically. The relatively healthy petitioners are left with the argument that the government acted with deliberate indifference by failing to implement social distancing measures in its facilities in which no one tested positive for COVID-19.
More information is needed to assess petitioner Al-Sadoon' claim.
VI. Conclusion
The petitioners understandably seek release from their crowded detention facilities as the world reels from the effects of the global coronavirus pandemic. And courts across the country have released inmates and civil detainees to stem the spread of COVID-19. But in the immigration context, courts have released only those individuals who fell within one of the CDC's high-risk categories, were housed in detention facilities with confirmed cases, or both. Petitioners Awshana and Hamana do not fit this mold: they are relatively healthy people detained in facilities with no confirmed cases. And when one of them sought medical attention, it was promptly provided. Petitioners Awshana and Hamana have not shown that the are in custody in violation of the Constitution. Therefore, they are not entitled to relief under 28 U.S.C. § 2241.
Petitioner Al-Sadoon's claim is on a slightly different footing. There are reports of a confirmed case of COVID-19 at the St. Clair County detention facility. That changes the nature of the concern beyond mere generalities. But more information is required to determine if release is an appropriate remedy.
Accordingly, it is ORDERED the petition for a writ of habeas corpus (ECF No. 1) is DENIED as to petitioners Oliver Nissan Awshana and Wisam Gharib Hamana, only.
It is further ORDERED that the respondents must furnish to the Court and petitioners' counsel by noon on Friday, April 10, 2020, detailed information describing the extent of CIVID-198 infestation at the St. Clair County jail, including the number of suspected and confirmed cases, the location of the infected inmates, whether petitioner Al-Sadoon was present in any areas visited by the infected inmates within the last 14 days, the steps taken to address the infections, the number of inmates in each housing unit (including the housing units where those inmates with confirmed COVID-19 cases are quarantined), and all remedial measures undertaken at the facility in light of the presence confirmed or suspected cases.
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*15 It is further ORDERED that petitioners Awshana and Hamana may reapply for appropriate relief under this case number of conditions at the Calhoun County Detention Facility change with respect to suspected or confirmed cases of COVID-19 at that facility.

All Citations --- F.Supp.3d ----, 2020 WL 1808906
End of Document

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2020 WL 1914896 Only the Westlaw citation is currently available. United States District Court, District of Columbia.
Edward BANKS, et al., Plaintiffs v.
Quincy L. BOOTH, et al., Defendants
Civil Action No. 20-849(CKK) |
Signed 04/19/2020
Attorneys and Law Firms
Arthur B. Spitzer, Scott Michelman, Michael Krevans Perloff, American Civil Liberties Union of the District of Columbia, Jenna Marie Cobb, Jonathan William Anderson, Steven D. Marcus, Public Defender Service for the District of Columbia, Washington, DC, for Plaintiffs.
Andrew J. Saindon, Micah Ian Bluming, Office of the Attorney General for the District of Columbia, Pamela A. Disney, Outten & Golden, LLP, Washington, DC, for Defendants.
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, United States District Judge
*1 This case is brought by various inmates of the District of Columbia’s Department of Corrections (“DOC”) detained in the Central Detention Facility (“CDF”) and the Correctional Treatment Facility (“CTF”). Plaintiffs bring claims against Quincy Booth, in his official capacity as Director of the DOC, and Lennard Johnson, in his official capacity as Warden of the DOC. Plaintiffs’ claims are brought pursuant to the due process clause of the Fifth Amendment of the United States Constitution and the Eighth Amendment of the United States Constitution relating to the conditions of their confinement during the COVID-19 pandemic.
Before the Court is Plaintiffs’ [5] Motion for a Temporary Restraining Order (“TRO”), which is opposed. Upon consideration of the pleadings, 1 the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs’ [5] Motion. The Court concludes that Plaintiffs have shown a likelihood of success on the merits,
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irreparable harm, and that the balance of the equities and the public interest favors injunctive relief. However, as will be further explained below, the Court concludes that some of the relief requested by Plaintiffs is not appropriate at this time.
1 The Court’s consideration has focused on the following documents: • Pls.’ App. For a Temp. Restraining Order (“Pls.’ Mot.”), ECF No. 5; • Defs.’ Opp'n to Pls.’ App. For a Temp. Restraining Order (“Defs.’ Opp'n”), ECF No. 25; and • Pls.’ Reply Brief in Support of App. For a Temp. Restraining Order (“Pls.’ Reply”), ECF No. 26.
I. BACKGROUND
Prior to proceeding through the procedural background of this case, the Court notes that the hearings held in this matter have been conducted either telephonically or through video conferencing. Due to the restrictions of the COVID-19 pandemic, the United States District Court for the District of Columbia postponed all civil hearings to occur before June 1, 2020. In Re: Extension of Postponed Court Proceedings in Standing Order 20-9 and Limiting Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-19 (BAH), April 1, 2020. As such, in compliance with the standing order and recommended precautionary measures, the Court has conducted these emergency matters virtually.
On March 30, 2020, Plaintiffs filed their Complaint in this matter. That same day, Plaintiffs also filed a Motion to Certify a Class of all persons confined or to be confined in DOC facilities, a Motion for a Temporary Restraining Order—the motion currently before the Court, and a Motion for a Preliminary Injunction. ECF Nos. 3, 5, 6.
On March 31, 2020, the Court ordered that a teleconference be held to discuss scheduling for Plaintiffs’ pending Motion for a TRO. March 31, 2020 Minute Order. During the hearing, the Court ordered Defendants to provide specific, relevant information to the Court over the following two days. For example, the Court ordered Defendants to provide a list of the names of the approximately 94 inmates who have been sentenced to misdemeanors and who could be released; the numbers of people who had been tested for COVID-19 and a break-down of the identities of those individuals (such as inmates, visitors, etc.) and the results of those tests; the date on which Defendants began testing people coming into the jails; the number and a breakdown of the results of COVID-19 tests which had been done on those who were incarcerated prior to the date on which Defendants began testing all incoming inmates; all relevant written procedures and practices
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concerning COVID-19; and Defendants’ process which is in place or will be put in place to allow legal counsel to communicate with their clients electronically or by other means. April 1, 2020 Minute Order. The Court also ordered Defendants to provide Declarations about the processes and procedures in place and the current conditions of DOC facilities in light of COVID-19. Id. The Court further set a briefing schedule for Plaintiffs’ Motion for a TRO and stayed Defendants’ Responses to Plaintiffs’ Motion for a Preliminary Injunction, Complaint, and Motion for Class Certification pending the resolution of the TRO. Id. A court reporter was present at the hearing and a transcript of the hearing is on the docket. ECF No. 18.
*2 On April 1, 2020 and April 2, 2020, Defendants filed Responses to the Court’s Order. ECF Nos. 19, 20, 21.
On April 2, 2020, the Fraternal Order of Police for the District of Columbia Department of Corrections Labor Committee filed for leave to submit an amicus curiae brief in support of Plaintiffs’ Motion for a TRO. ECF No. 23. After considering Defendants’ opposition, the Court granted the motion, finding that the amicus brief could assist the Court in its analysis of certain, relevant issues. April 3, 2020 Minute Order.
On April 3, Plaintiffs filed an Emergency Motion to Expedite the Hearing on the Application for a TRO. ECF No. 24. In consideration of Plaintiffs’ arguments, the Court scheduled a videoconference on the merits of Plaintiffs’ Motion for a TRO for April 7, 2020. April 3, 2020 Minute Order.
Prior to the hearing on Plaintiffs’ Motion for a TRO, Defendants filed their Opposition to Plaintiffs’ Motion for a TRO on April 3, 2020, and Plaintiffs filed their Reply in support of their Motion on April 4, 2020. ECF Nos. 25, 26.
On April 7, 2020, the court conducted a two-hour video conference on the merits of Plaintiffs’ Motion for a TRO. A court reporter was present and a transcript of the hearing is on the docket. ECF No. 37. Also, on that day, the Court conducted a second teleconference with the parties. The parties determined that they would confer and propose names for an amicus of the Court to inspect the conditions of CTF and CDF. April 8, 2020 Minute Order.
On April 8, 2020, the Court again conducted a teleconference with the parties to ascertain their proposed amicus of the Court. The parties ultimately agreed to the appointment of Grace Lopes and Mark Jordan as amici of the Court to provide information on the actual conditions of CTF and CDF and to make findings on Defendants’ responses to COVID-19. A court reporter was present
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and a transcript of the hearing is on the docket. ECF No. 33. On April 9, 2020, the Court issued a consent order appointing Ms. Lopes and Mr. Jordan as amici. ECF No. 34.
The amici reviewed records from the DOC facilities and conducted unannounced and unescorted site visits on multiple shifts at both CDF and CTF on April 10, 11, and 12, 2020. Defendants cooperated with amici in providing them with necessary materials and in providing them access to the facilities, staff, and inmates during their visits.
On April 15, 2020, the Court held a telephone conference at which the amici presented their oral preliminary findings and both parties as well as the Court asked questions. A court reporter was present and a transcript of the hearing is on the docket. ECF No. 45.
On April 18, 2020, the amici submitted their final written report. Attachment 1. The Court incorporates that report into this Memorandum Opinion. The Court has excerpted portions of the report in this Memorandum Opinion, focusing on the issues which are most exigent and most relevant to the resolution of Plaintiffs’ Motion for a TRO.
The Court further notes that on April 17, 2020, following the amici’s oral presentation of their preliminary findings, Mr. Booth provided a memorandum to all DOC employees and contractors entitled “Reminders and Updated COVID-19 Policies and Procedures.” Exhibits to Report Submitted by Amicus Curiae, Attachment 2, Ex. 11. In this memorandum, Mr. Booth addresses some of the deficiencies identified by the amici. The Court commends Defendants for their prompt response. However, the Court has no record evidence that the updates discussed in Mr. Booth’s memorandum have been implemented. Accordingly, in resolving Plaintiff’s Motion for a TRO, the Court relies on the record evidence as it currently stands, including the findings in the amici’s final report.
*3 In consideration of the above information, the materials which have been provided, and the present factual record, the Court now issues its decision on Plaintiffs’ Motion for a TRO.
II. LEGAL STANDARD
A temporary restraining order is an extraordinary form of relief. An application for a TRO is analyzed using factors applicable to preliminary injunctive relief. See, e.g., Gordon v. Holder, 632 F.3d 722, 723-24 (D.C. Cir. 2011) (applying preliminary injunction standard to district court decision denying motion for TRO and preliminary injunction); Sibley v. Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011) (articulating TRO elements based on preliminary injunction case law).
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Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (“[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.” (internal quotation marks omitted)). A plaintiff seeking preliminary injunctive relief “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20) (alteration in original; internal quotation marks omitted)). When seeking such relief, “the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)) (internal quotation marks omitted). “The four factors have typically been evaluated on a ‘sliding scale.’ ” Davis, 571 F.3d at 1291. Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.”
Id. at 1291-92.
The Court notes that it is not clear whether the United States Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit”) sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court’s decision in Winter. See Save Jobs USA v. U.S. Dep't of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several judges on the D.C. Circuit have “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.’ ” Sherley, 644 F.3d at 393 (quoting
Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)). However, the D.C. Circuit has yet to hold definitively that Winter has displaced the sliding-scale analysis. See id.; see also Save Jobs USA, 105 F. Supp. 3d at 112. In light of this ambiguity, the Court shall consider each of the preliminary injunction factors and shall only evaluate the proper weight to accord the likelihood of success if the Court finds that its relative weight would affect the outcome.
III. DISCUSSION
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*4 The Court will proceed to analyze each of the requirements for granting a TRO. However, first, the Court will address a preliminary issue—standing.
A. Standing As a threshold matter, Defendants contend that Plaintiffs do not have standing to seek the requested relief. Four named Plaintiffs filed this lawsuit. D’Angelo Phillips is currently in the custody of DOC at CDF where he is being held pre-trial. Edward Banks is currently in the custody of DOC at CDF awaiting sentencing. Eric Smith is currently in the custody of DOC at CTF where he is being held pre-trial. Compl., ECF No. 1, ¶¶ 14-16. Keon Jackson was in the custody of DOC at CTF where he was awaiting sentencing; but, he has since been released from custody and is no longer party to this suit. April 7, 2020 Tr., ECF No. 37, 38: 22-24. In order to meet the requirements for standing, a plaintiff must plead an injury, causation, and redressability. “[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.”
Davis v. FEC, 554 U.S. 724, 733-34 (2008) (internal quotation marks and citations omitted). Defendants contend that Plaintiffs have failed to show that their injuries are redressable by certain forms of requested relief which would flow to inmates other than Plaintiffs.
To begin, the Court notes that Plaintiffs have filed a motion to certify a class consisting of all persons confined or to be confined by DOC in CDF or CTF. ECF No. 3. However, at this point in the litigation, the Court has not ruled on Plaintiffs’ Motion to certify the class. As such, Defendants contend that the standing analysis should focus only on the named Plaintiffs, and Plaintiffs do not dispute this assertion.
Considering only the named Plaintiffs, the Court finds that Plaintiffs have pled an injury which was caused by Defendants and is redressable by the relief requested. Plaintiffs’ claimed injury is the risk of contracting COVID-19. The Court finds that the risk of contracting a disease is a legally cognizable risk for purposes of standing. Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 915 (D.C. Cir. 2015) (explaining that pleading an increased risk of foodborne illness is sufficient for standing). Additionally, Plaintiffs have pled that they have an increased risk of contracting COVID-19 due to Defendants’ failure to take appropriate precautionary measures. Finally, Plaintiffs have pled that their injury of an increased risk of contracting COVID-19 would be redressed by the requested relief.
Plaintiffs have produced unrebutted expert declarations positing that the requested relief would redress the claimed Plaintiffs’ injuries by reducing their risk of contracting COVID-19. “The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of the risk of transmission, exposure, and harm to individuals who become infected.”
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Dec. of Jaimie Meyer, ECF No. 5-2, ¶ 9. The risk of infectious diseases, such as COVID-19, is higher in jails and prisons because they are congregate settings which “allow for rapid spread of infectious diseases that are transmitted person to person.” Id. at ¶ 11. In settings such as these, it is often difficult to appropriately socially distance and many facilities are poorly ventilated which allows disease to spread faster. Id.
*5 Due to the unique posture of jails and prisons, steps taken to reduce the risk of infection among any inmates, such as reducing the inmate population or providing adequate cleaning supplies, would also reduce the named Plaintiffs’ risk of contracting COVID-19. Additional precautions which directly affect inmates who are not a party to this suit also affect the named Plaintiffs by reducing the risk that the disease will spread amongst the population and eventually infect the named Plaintiffs. See Brown v. Plata, 563 U.S. 493, 531-32 (2011) (explaining that all prisoners, even those that remain detained, benefit from the release of some inmates to counter overcrowding because the detained inmates “are that system’s next potential victims”).
For these reasons, the Court concludes that Plaintiffs have stated an injury—an increased risk for contracting COVID-19—which is caused by Defendants’ untimely and insufficient precautions and would be remedied by the requested relief. As such, Plaintiffs have standing to request a TRO.
B. Plaintiffs Establish a Likelihood of Success on the Merits Moving to the standards for granting a TRO, first the Court considers whether or not Plaintiffs have established a likelihood of success on the merits. In order to meet this first requirement, Plaintiffs must show that they have a likelihood of success on the merits of their Fifth Amendment claim for pre-trial detainees and of their Eighth Amendment claim for post-conviction detainees. The Court concludes that Plaintiffs have made a sufficient showing.
It is undisputed that the proper avenue for relief for pre-trial detainees, such as Plaintiffs Phillips and Smith, is the Fifth Amendment due process clause and the proper avenue for relief for postconviction detainees, such as Plaintiff Banks, is the Eighth Amendment. However, the parties dispute whether or not the standards for sustaining a claim under the different Amendments are the same. Defendants state that the standard for sustaining a claim under the due process clause and Eighth Amendments are the same. Defendants contend that to show a violation of either Amendment, jail officials must have (1) exposed inmates to an unreasonable risk of serious damage to their health and (2) acted with deliberate indifference in posing such a risk. Defs.’ Opp'n, ECF No. 25, 14-15. Plaintiffs agree that Defendants have stated the correct standard for an Eighth Amendment claim by post-conviction detainees, but they argue that the standard for a due process claim for pre-trial detainees is different. Pls.’ Reply, ECF No. 26, 7. Under the due process clause,
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Plaintiffs argue that they need only show that the Defendants knew or should have known that the conditions posed an excessive risk to the health of the inmates. The main difference being that the due process clause analysis does not require a finding of deliberate indifference.
The rights of pre-trial detainees are different than the rights of post-conviction detainees. Because pre-trial detainees are presumed innocent, they are “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 322 (1982). “While a convicted prisoner is entitled to protection only against ‘cruel and unusual’ punishment [under the Eighth Amendment], a pretrial detainee, not yet found guilty of any crime, may not be subjected to punishment of any description.” Hardy v. District of Columbia, 601 F. Supp. 2d 182, 188 (D.D.C. 2009) (quoting Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992)).
In Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), the United States Supreme Court considered the differences between pre-trial and post-conviction detainees in deciding that, to state an excessive force claim, a pre-trial detainee need only show that the use of force was objectively unreasonable. 135 S.Ct. at 2473-74. The officers’ subjective state of mind in using the force was irrelevant. Id. While Kingsley relates to excessive force rather than prison conditions, in making its decision, the Kingsley court relied on Bell v. Wolfish, 441 U.S. 520 (1979), a case pertaining to prison conditions. According to the Kingsley court, “as Bell itself shows (and as our later precedent affirms), a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Id. Together Kingsley and Bell provide persuasive authority that a pre-trial detainee need only show that prison conditions are objectively unreasonable in order to state a claim under the due process clause.
*6 The parties did not cite and the Court could not find a D.C. Circuit case interpreting Kingsley in the context of a claim for deficient prison conditions. However, many circuit courts have extended Kingsley’s objective standard to apply to other due process claims by pre-trial detainees. For example, the United States Court of Appeals for the Second Circuit has held that, following Kingsley, in the context of challenged prison conditions for pre-trial detainees, “the Due Process Clause can be violated when an official does not have subjective awareness that the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d 2017); see also Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (applying Kingsley standard to failure to protect claims by pre-trial detainees); Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019) (finding that “Kingsley’s objective inquiry applies to all Fourteenth Amendment conditions-of-confinement claims brought
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by pretrial detainees”). And, at least one district court within this Circuit has also applied Kingsley’s objective standard to due process claims brought by pre-trial detainees. See United States v. Moore, Case No. 18-198-JEB, 2019 WL 2569659, *2 (D.D.C. June 21, 2019) (explaining that a pretrial detainee could prevail on a due process claim “if she either introduces evidence of a subjective intent to punish or demonstrates that a restriction is objectively unreasonable or excessive relative to the Government’s proffered justification”).
Based on the pertinent reasoning of Kingsley and the persuasive authority of other courts, the Court concludes that pre-trial detainee Plaintiffs Phillips and Smith do not need to show deliberate indifference in order to state a due process claim for inadequate conditions of confinement. As such, under the due process clause, pre-trial detainee Plaintiffs Phillips and Smith are likely to succeed on the merits by showing that the Defendants knew or should have known that the jail conditions posed an excessive risk to their health. And, under the Eighth Amendment, post-conviction detainee Plaintiff Banks must show that the jail conditions exposed him to an unreasonable risk of serious damage to his health and that Defendants acted with deliberate indifference in posing such a risk.
Despite recognizing that pre-trial detainee Plaintiffs need not demonstrate deliberate indifference to show a likelihood of success on their due process claims, the Court will also analyze the deliberate indifference prong as such a showing is still required for post-conviction Plaintiff’s Eighth Amendment claim.
1. Unreasonable risk to Plaintiffs’ Health
Now that the Court has determined the standards under the due process clause and the Eighth Amendment, the Court will assess whether or not Plaintiffs have shown a likelihood of success in proving that they have been exposed to an unreasonable risk of damage to their health. Determining whether or not Plaintiffs have been exposed to an unreasonable risk is an objective analysis which “requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original). In sum, Plaintiffs “must show that the risk of which [they] complain[ ] is not one that today’s society chooses to tolerate.” Id.
Both parties and the Court recognize the seriousness of the threat posed by COVID-19. Despite the seriousness of the threat, Defendants argue that Plaintiffs are unlikely to succeed in establishing that they have been exposed to an unreasonable risk to their health. Specifically, Defendants ague
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that Plaintiffs “have not shown that the risk posed by DOC’s practices raises plaintiffs’ risk of exposure substantially over the risk experienced by the outside community.” Defs.’ Opp'n, ECF No. 25, 16. Defendants further argue that, for the most part, Plaintiffs are able to take the same precautions to prevent infection as those not detained. The Court disagrees.
As an initial matter, the data for COVID-19 infection rates decries Defendants’ argument that Plaintiffs’ risk of infection is the same as that of the outside community. It is undisputed that, as of April 4, 2020, the infection rate in DOC facilities was over seven times the infection rate of the District of Columbia at large. Pls.’ Reply, ECF No. 26, 8. This statistical data is also supported by Plaintiffs’ unrefuted expert declaration. In her Declaration, Dr. Jaimie Meyer, who reviewed reports on conditions in DOC facilities, posited that “individuals placed in [CDF and CTF] are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at significantly higher risk of harm if they do become infected.” Dec. of Jaimie Meyer, ECF No. 5-2, ¶ 33.
*7 Additionally, Plaintiffs have provided evidence that they cannot take the same precautions as those who are not detained. There are many precautionary policies which Defendants contend are in place and are disputed by Plaintiffs. However, one of the most important risk-reduction policies which has not been adequately addressed by Defendants is social distancing. Plaintiffs have provided expert evidence that social distancing is a crucial part of containing the spread of COVID-19. Dec. of Marc Stern, ECF No. 1-1, ¶ 13. With the closures of schools, theaters, and restaurants, governments across the nation have emphasized social distancing as a way to slow the spread of the disease. In the District of Columbia, Mayor Muriel Bowser has implemented an order for social distancing which requires “[m]aintaining at least six (6)-foot social distancing from other individuals.” Stay Home DC Order, https://coronavirus.dc.gov/stayhome (March 30, 2020). However, Defendants have produced no evidence that Plaintiffs are able to comply with social distancing precautions.
Plaintiffs have produced uncontroverted evidence that social distancing was slow to be instituted and has not been fully operationalized in CTF or CDF. Plaintiffs have submitted a declaration from a DOC inmate stating that, as of April 4, 2020, “[n]o one from DOC has ever told us about social distancing. There are no signs about social distancing.” Dec. of James Guillory, ECF No. 26-2, ¶ 14. And, Plaintiffs have also submitted a declaration from a DOC staff member who works in the age-50-and-over unit asserting that, as of April 3, 2020, “[s]ocial distancing is not happening in my unit.” Dec. of Lennette Nesbitt, ECF No. 24-2, ¶ 14.
During the April 7, 2020 hearing, Defendants asserted that they have recently implemented new social distancing practices, such as limiting the number of inmates who can use the recreation areas
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at the same time. April 7, 2020 Tr., ECF No. 37, 40:2-41:11. However, Defendants have yet to submit any evidence that these practices are being implemented. Nor, have Defendants provided specifics such as the number of inmates who can use the common areas at the same time or the steps that are being taken to ensure that individuals maintain a suitable distance when in a shared space.
When the amici of the Court visited the DOC facilities, they reported that, in defiance of social distancing regulations, “[m]ore than five inmates were consistently out of their cells at one time, and sometimes between 10 and 20 inmates were out of their cells at one time.” Report Submitted by Amicus Curiae, Atch. 1, 20. Additionally, the amici reported that “[s]ocial distancing practices were not enforced and there were no attempts by the correctional staff to enforce social distancing even when numerous inmates crowded into a contained area.” Id. The amici attributed the failure to enforce social distancing, at least in part, to an understaffing of correctional officers and their supervisors. Id. The DOC has a current workforce of 994 funded correctional positions, of which 45 positions are vacant. Of the 949 filled positions, 281 correctional staff were unavailable for duty as of April 16, 2020. Id. Understaffing during a crisis situation such as the COVID-19 pandemic makes it difficult to enact and enforce the necessary precautionary measures.
The Court recognizes that Defendants’ response to this sudden and unprecedented pandemic is ongoing. Additionally, the Court recognizes that additional evidence will likely be provided as litigation proceeds. But, based on the current record, the Court finds Defendants’ argument that the risk of infection experienced by Plaintiffs is equivalent to that experienced by the general population is disputed by statistical evidence, Plaintiffs’ expert evidence, the declarations of DOC inmates and staff, and the amici report. Accordingly, based on the limited record before the Court, the Court finds that Plaintiffs have established a likelihood that they will be able to show that they have been exposed to an unreasonable risk of damage to their health.
*8 Before the Court proceeds to analyzing deliberate indifference, the Court notes that based on the unreasonable risk to Plaintiffs’ health, pre-trial detainee Plaintiffs Phillips and Smith have already established a likelihood of success on the merits of their due process claim. Nevertheless, the Court will proceed to analyze deliberate indifference.
2. Deliberate Indifference
The Court will next determine whether or not Plaintiffs have shown a likelihood of success in establishing Defendants’ deliberate indifference. A showing of deliberate indifference requires “that officials had subjective knowledge of the serious medical need and recklessly disregarded the excessive risk to inmate health or safety from that risk.” Baker v. District of Columbia, 326 F.3d
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1302, 1306 (D.C. Cir. 2003). In order to establish deliberate indifference, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
There does not appear to be any dispute that Defendants are aware of the threat that COVID-19 poses to the health of Plaintiffs. Instead, the only dispute appears to be whether or not Defendants have recklessly disregarded the risk to Plaintiffs’ health.
In analyzing this standard, the Court recognizes that COVID-19 poses an unprecedented challenge and that the precautionary measures taken by Defendants are rapidly evolving. As evidence of COVID-19 precautions, Defendants have provided the Declarations of Lennard Johnson, the Warden of the DOC, and Beth Jordan, the Medical Director and Health Services Administrator for the DOC. ECF Nos. 20-1, 20-2. Both declarations outline policies designed to combat the threat of COVID-19. For example, Mr. Johnson claims that residents have access to proper cleaning materials, that residents receive a free bar of soap each week, and that the common areas in DOC facilities are cleaned regularly. Dec. of Lennard Johnson, ECF No. 20-1, ¶¶ 6-12. And, Ms. Jordan claims that everyone entering a DOC facility is screened for symptoms using a thermometer and a survey, that all new inmates are quarantined for 14 days before they are assigned to a housing unit, and that the DOC medical staff meets regularly with staff and residents to discuss preventative measures. Dec. of Beth Jordan, ECF No. 20-2, ¶¶ 5-8.
However, it is not clear whether or not these declarations are based on Mr. Johnson and Ms. Jordan’s personal observations of the conditions at the facilities. Both declarations state that the information is based on personal knowledge “including information provided to me by other District of Columbia employees in the course of my official duties.” ECF No. 20-1, ¶ 1; ECF No. 20-2, ¶ 1. As such, there is some uncertainty as to whether these declarations are based on policies which are on the books or the actual conditions of the facilities. And, Plaintiffs have submitted the declaration of at least one DOC staff member strongly suggesting that, as of April 2, 2020, Defendants’ written policies have not been adequately communicated to DOC staff for operationalization. See Dec. of Doreen Deterville, ECF No. 24-1, ¶¶ 5-8.
To compound this uncertainty, Plaintiffs have also submitted numerous declarations from inmates and DOC staff rebutting that Defendants’ policies are being fully implemented. For example, Plaintiffs have submitted declarations stating that they have not been given free bars of soap. Dec. of Edward Banks, ECF No. 5-2, ¶ 8; Dec. of Keon Jackson, ECF No. 5-2, ¶ 10; Dec. of Eric Smith, ECF No. 5-2, ¶ 8. And, Plaintiffs have submitted declarations stating that inmates do not receive adequate cleaning supplies. Dec. of Keon Jackson, ECF No. 5-2, ¶ 12. And, Plaintiffs have submitted declarations stating that not all new inmates are properly screened and quarantined
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when transferred between units. Dec. of Michael Cohen II, ECF No. 26-4, ¶ 18. Having a written policy in place but not fully implemented cannot protect Defendants from a finding of deliberate indifference. Daskalea v. District of Columbia, 227 F.3d 433, 442 (D.C. Cir. 2000) (explaining that “a ‘paper’ policy cannot insulate a municipality from liability where there is evidence, as there was here, that the municipality was deliberately indifferent to the policy’s violation.”).
*9 The written findings of the amici support some of these declarations. In conducting their visits, the amici determined that “the need for more intensified education of staff and inmates [about COVID-19] is apparent.” Report Submitted by Amicus Curiae, Atch. 1, 15. Amici further noted that access to cleaning supplies varied from unit to unit. Id. at 30. In some units, cleaning supplies were depleted and, in other units, inmates could not access the supplies to clean their cells. Id. Additionally, no inmates had facility-issued rags for cleaning their cells. Instead, many inmates used “tattered and soiled” rags that they made by tearing facility issued towels or t-shirts. Id. Moreover, “[i]t was evident that knowledge regarding the appropriate use of the different cleaning and sanitizing agents was generally at a very low level.” Id. Challenges with cleanliness persisted outside the inmates’ cells, with the cleanliness of common spaces inconsistent among housing units with little quality control. Id. at 31-32.
The Court further notes that, while amici reported that Defendants screened all staff and visitors at the entrances to both CDF and CTF, there are issues with the screening procedures. On entering DOC facilities, all visitors and staff are questioned as to whether or not they have experienced COVID-19 symptoms. Id. at 15-16. And, all visitors and staff have their temperatures checked with a non-contact infrared thermometer. Id. at 16. However, amici reported that two out of eight reported temperature readings appeared to be inaccurate, registering in the low 90 degrees. Id. Amici posit that the inaccurate temperature readings are caused by user error and inadequate training with the thermometer. Id. While it is not is not clear if the medical staff use the same type of thermometer to measure the temperatures of inmates in the medical unit, amici indicated that a “review of electronic health records also identified a number of questionably low temperature readings.” Id.
Additionally, there are certain precautionary steps that Defendants do not address. For example, as already explained, social distancing is one of the most crucial precautionary measures in slowing the spread of COVID-19. However, Defendants’ declarations make little to no mention of social distancing measures. During the hearing, Mr. Bluming stated, “pre-COVID-19, we had 80 people in the recreational area together. At the end of last week, we were down to half that, so 40 people at a time.” April 7, 2020 Tr., ECF No. 37 41: 7-11. Mr. Bluming further stated that, the DOC’s website indicated that they may be allowing no more than 10 individuals in the recreational area at a time. Id. at 41: 1-3.
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The Court notes that, besides counsel’s argument, there is no record evidence that these procedures are being implemented. As recently as April 4, 2020, an inmate stated that “[p]eople on my unit still give each other high fives. People still eat and drink each other’s food and beverage bottles. Staff do not warn people these things are unsafe.” Dec. of Michael Cohen II, ECF No. 26-4, ¶ 51. Additionally, as per Defendants’ own argument, three weeks into the COVID-19 pandemic, Defendants were still allowing 40 inmates to congregate in the recreation yard. Given the spread of infection at DOC facilities, such a delayed response is not a sufficient or a timely response to the risk posed to Plaintiffs’ health. And, as previously discussed, in their review of the facilities, the amici determined that, as recently as April 12, 2020, as many as 10 to 20 inmates were out of their cells at one time and correctional staff were not able to implement or enforce social distancing practices. Report Submitted by Amicus Curiae, Atch. 1, 20.
Additionally, while Defendants’ declarations addressed screening for new inmates and isolation for those who test positive for COVID-19, it remains unclear what steps are being taken to prevent the spread of COVID-19 by those inmates who already reside in DOC facilities and have not yet tested positive for infection. This is especially concerning as Defendants primarily rely on inmates to self-report symptoms in order to determine who may be infected. Id. at 9. Plaintiffs have submitted an unrebutted declaration that “at least three DOC staff members ... have tested positive and alerted DOC” but “[n]o contact tracing has been done for at least one if not all of the staff members with regard to whether inmates or other staff should be quarantined.” Dec. of Michael Hannon, ECF No. 23-11, ¶ 59. Additionally, amici reported one case in which an inmate who worked in the Culinary Unit tested positive for COVID-19. Report Submitted by Amicus Curiae, Atch. 1, 26-27. While that inmate was placed in isolation, the DOC did not attempt to determine whether the contract staff who had worked with that inmate in the Culinary Unit were close contacts of the inmate and should self-quarantine at home for 14 days. Id. at 27-28. Additionally, it appeared that “the detail inmate who tested positive was not contacted about any individuals with whom he had close contact.” Id. at 28.
*10 Plaintiffs have also presented unrebutted evidence that Defendants are slow to respond to those inmates who display symptoms of COVID-19. Multiple PDS attorneys and investigators have reported that their clients display COVID-19 symptoms such as coughs and fevers which have not been adequately addressed by the medical unit. Dec. of Rachel Cicurel, ECF No. 5-2, ¶ 6(b); Dec. of Katherine Kuenzle, ECF No. 5-2, ¶ 4. And, inmates who have requested medical aid for COVID-19 symptoms report long waits for medical care, testing, or separation from the general population. Dec. of D’Angelo Phillips, ECF No. 5-2, ¶ 4 (stating that “it takes days before you get a visit from anyone from the medical unit”); Dec. of Eric Smith, ECF No. 5-2, ¶ 5 (“It takes days before anyone can get medical staff to come see them, even if you say you are having
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trouble breathing”). According to Plaintiffs’ expert, “[t]he failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and under-prepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.” Dec. of Jaimie Meyer, ECF No. 5-2, ¶ 28(d)(ii).
Plaintiffs have also presented evidence that the quarantine unit is not properly sealed off from the general population. An inmate next to the unit explained that air could travel freely between his cell and the quarantine unit. Dec. of Eric Smith, ECF No. 5-2, ¶ 3. And, Plaintiffs have submitted evidence that those in the general population share a television remote control with those in the quarantine unit. Id. at ¶ 4. The lack of separation for those in quarantine is especially concerning due to Plaintiffs’ evidence that “[t]he ventilation conditions described in the District of Columbia’s Auditor’s report ... will increase the rate of the spread of the virus.” Dec. of Jaimie Meyer, ECF No. 5-2, ¶ 28(c).
In addition to the quarantine unit not being properly secluded, the amici identified several other issues with both the quarantine and isolation units. Anyone entering a quarantine housing unit, except for inmates, is required to wear gloves and a mask at all times. Report Submitted by Amicus Curiae, Atch. 1, 18. Despite this requirement, most of the correctional staff in the quarantine unit wore a variety of masks which they purchased for themselves and were often ill-fitting and soiled. And, generally, correctional staff did not wear gloves. Id. Inmates housed in quarantine units are also required to wear masks outside their cells. However, the amici found that the inmates were not consistently wearing their masks and many of the masks did not fit and were soiled. Id. Amici did note an abrupt increase the personal protective equipment distributed to correctional officers over the course of their multiple visits. Id. at 25. However, this delayed response in providing protective equipment to those working and living in quarantine units is notable.
Amici also highlighted the conditions for inmates living in isolation units. Some inmates have already spent 12 to 15 days in isolation units. Those in the isolation units are not permitted to shower. Id. at 22. And, laundry services for inmates in isolation have been limited with some inmates wearing the same soiled clothes for the duration of their stay in isolation. Id. Some inmates with sinks in their cells can use those for cleaning, and, as of April 14, 2020, the DOC intended to provide inmates in isolation with body wipes. Id. However, these punitive conditions for those in isolation are not acceptable. Additionally, inmates in isolation at CTF are not permitted to use the telephone for any reason, including legal calls. Id. It was unclear whether or not inmates in CDF are permitted to use the telephone. Id. As the DOC is primarily relying on inmates to self-report symptoms of COVID-19, the punitive conditions of isolation make it more likely that inmates will hide their symptoms to avoid the potential for isolation and continue to infect others in the general population.
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The Court will address one other deficiency highlighted by amici—lack of access to confidential legal calls. As the Court already stated, it appears that individuals in isolation units have no access to telephones. Id. And, this issue persists for those in other housing units. Telephone calls in confidential settings are generally organized by DOC case management staff; however, most of those staff are either on quarantine or working remotely. Id. at 21. “Thus, as a general matter, there has been no access to confidential legal calls for inmates confined on quarantine and nonquarantine housing units.” Id. Some inmates have been able to make calls using telephones in the day rooms; however, these calls are monitored and do not afford the confidentiality required to communicate about legal issues with counsel. Id.
*11 Based on the current record, Plaintiffs have provided evidence that Defendants are aware of the risk that COVID-19 poses to Plaintiffs’ health and have disregarded those risks by failing to take comprehensive, timely, and proper steps to stem the spread of the virus. Again, the Court acknowledges that additional development of the record may show that Defendants are taking sufficient precautions and that Defendants’ response continues to evolve. However, on the current record, the Court finds that Plaintiffs have established a likelihood of success in showing deliberate indifference.
C. Plaintiffs Show Irreparable Harm Next, the court considers whether or not Plaintiffs have made a showing of irreparable harm. “[P]erhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” Sierra Club v. United States Army Corps of Engineers, 990 F. Supp. 2d 9, 38 (D.D.C. 2013) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed.2013)). “[P]roving irreparable injury is a considerable burden, requiring proof that the movant’s injury is certain, great and actual— not theoretical—and imminent, creating a clear and present need for extraordinary equitable relief to prevent harm.” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C. 2005) (citations and internal quotation marks omitted, emphasis in original).
Plaintiffs’ theory of irreparable harm rests on the risk of contracting COVID-19 and the resulting health complication. The Court concludes that Plaintiffs’ risk of contracting COVID-19 and the resulting complications, including the possibility of death, is the prototypical irreparable harm. See Harris v. Board of Supervisors, Los Angeles County, 366 F.3d 754, 766 (9th Cir. 2004) (finding irreparable harm from pain, infection, and possible death due to delayed treatment from the reduction of hospital beds). “Facing requests for preliminary injunctive relief, courts often find
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a showing of irreparable harm where the movant’s health is in imminent danger.” Al-Joudi v. Bush, 406 F. Supp. 2d 13, 20 (D.D.C. 2005) (citing Wilson v. Group Hosp. & Med. Servs., Inc., 791 F. Supp. 309, 314 (D.D.C. 1992) (granting preliminary injunction where cancer patient’s “health and future remain[ed] in serious doubt” and insurance would not pay for life-saving treatment)).
Defendants do not appear to contest that the risk of contracting COVID-19 constitutes irreparable harm. Instead, Defendants contend that, “because Plaintiffs fail to make any showing of a specific injury that is not generalized to the inmate population, plaintiffs fail to meet their burden of demonstrating irreparable harm.” Defs.’ Opp'n, ECF No. 25, 22. However, Defendants cite no authority for the proposition that, because the threat of COVID-19 infection is widespread among the inmate population, Plaintiffs’ threat of irreparable harm is somehow diminished. And, Plaintiffs have produced expert evidence that they are “at a significantly higher risk of infection with COVID-19 as compared to the population in the community” and “at a significantly higher risk of harm if they do become infected.” Dec. of Jaimie Meyer, ECF No. 5-2, ¶ 33. The fact that many other inmates face this same risk does not diminish the risk faced by Plaintiffs.
Defendants, as well as society at large, are facing an unprecedented challenge. The risks of contracting COVID-19 are very real for those both inside and outside DOC facilities. However, Plaintiffs have produced evidence that inadequate precautionary measures at DOC facilities have increased their risk of contracting COVID-19 and facing serious health consequences, including death. The Court further notes that the number of inmates testing positive for COVID-19 is growing daily. Given the gravity of Plaintiffs’ asserted injury, as well as the permanence of death, the Court finds that Plaintiffs have satisfied the requirement of facing irreparable harm unless injunctive relief is granted.
D. The Balance of Hardships and the Public Interest Weigh in Plaintiffs’ Favor *12 The Court moves to the final factors to be considered in granting a temporary restraining order—the balance of the equities and the public interest. In this case, where the government is a party to the suit, the harm to Defendants and the public interest merge and “are one and the same, because the government’s interest is the public interest.” Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original). The Court finds that the public interest weighs in favor of granting injunctive relief.
First, the Court notes that Plaintiffs have established a likelihood that they will prevail on the merits of their due process and Eighth Amendment claims. And, “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Simms v. District of Columbia, 872 F. Supp.
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2d 90, 105 (D.D.C. 2012) (internal quotation marks omitted). There is no harm to the Government when a court prevents unlawful practices.
Additionally, granting injunctive relief which lessens the risk that Plaintiffs will contract COVID-19 is in the public interest because it supports public health. No man’s health is an island. If Plaintiffs contract COVID-19, they risk infecting others inside the DOC facilities. Plaintiffs also risk infecting DOC staff members who work inside DOC facilities but also live in the community, thus increasing the number of people vulnerable to infection in the community at large. Additionally, if Plaintiffs contract COVID-19 and experience complications, “they will be transported to community hospitals—thereby using scarce community resources (ER beds, general hospital beds, ICU beds).” Dec. of Marc Stern, ECF No. 1-1, ¶ 13. As such, ordering Defendants to take precautions to lower the risk of infections for Plaintiffs also benefits the public.
And, the Court finds that the relief which will be granted, to be detailed below, does not impose an undue burden on Defendants. The Court begins by noting that the D.C. Circuit “has rejected any distinction between a mandatory and prohibitory injunction.” League of Women Voters of United States v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016). Declarations by DOC officials claim that Defendants are already complying with much of the requested relief. See, e.g., Dec. of Lennard Johnson, ECF No. 2-1, ¶ 6 (housing unit common areas cleaned every two hours during the day and twice each night); ¶ 7 (residents provided proper material to clean cells); ¶¶ 8-9 (each resident provided access to hot running water as well as weekly bar of soap, roll of toilet paper, and clean linens); ¶ 10 (hand sanitizer available to residents in CTF despite shortage); ¶ 12 (signs posted to alert residents of COVID-19 prevention measures); Dec. of Beth Jordon, ECF No. 20-2, ¶ 8 (DOC medical staff regularly meet with residents to discuss COVID-19 prevention); ¶ 12 (testing for those with specified symptoms). And, the Court does not order Defendants to take precautions that are not already being undertaken by the majority of the population. Moreover, in lessening the number of inmates infected with COVID-19, Defendants actually lessen the healthcare burden that they will be facing in the weeks and months to come.
The Court acknowledges the public interest in permitting the government discretion to carry out its authorized functions. However, “[c]ourts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.”
Brown, 563 U.S. at 511. The D.C. Circuit has previously authorized injunctive relief against correctional facilities, even where the injunctive relief imposes a particular set of conditions. See
Campbell v. McGruder, 580 F.2d 521, 551-52 (D.C. Cir. 1978) (finding specific conditions not unduly intrusive because there was “no alternative if the rights of pretrial detainees are to be respected”).
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*13 For the foregoing reasons, the Court finds that the balance of the equities and the public interest weigh in favor of granting injunctive relief.
E. Specific Relief Granted While the Court has concluded that, on the current factual record, Plaintiffs are entitled to some injunctive relief, the Court is not granting the totality of the relief requested.
The Court is not ordering the release of any inmates currently detained in DOC facilities. In addition to the many individual release petitions which are currently being filed by DOC inmates, the Superior Court of the District of Columbia has granted District law enforcement the discretion “to release an individual not otherwise eligible for release ... upon approval of the prosecuting authority.” See Superior Court of the District of Columbia Order, March 16, 2020, available at http://www.dccourts.gov/sites/default/files/Order_3-16-20.pdf. Additionally, based on the authority granted to the DOC by the COVID-Emergency Act amended Section 24-221.0(c) “during a period for which a public health emergency has been declared ..., [DOC] shall have discretion to award additional credits” to those serving misdemeanor sentences “to effectuate immediate release of persons sentenced for misdemeanors ... consistent with public safety.” See
D.C. Code § 24-221.01c(c) (2020). DOC has since doubled the maximum number of monthly sentencing credits which a misdemeanant may receive from 10 to 20. See DOC Change Notice #20-002, March 18, 2020 [19-2], ¶ 2c.
Since beginning these practices, all but nine misdemeanants have been released from custody. April 15, 2020 Tr., ECF No. 45, 72: 22-23. Eight of those misdemeanants have been considered for release and denied, and one misdemeanant has not requested release. Id. 72: 24-73: 3. Based on the actions of D.C. Superior Court, Plaintiffs agree that the release of misdemeanants is no longer at issue in this case. Id. at 73: 15-18. As such, the Court does not find that injunctive relief on this ground is appropriate at this time. For this same reason, and due to ongoing processes for assessing individual inmates for release, the Court is not granting Plaintiffs’ request for an expert in prison population reduction at this time.
However, the Court does grant the following injunctive relief, in line with the amici recommendations. In light of the medical surveillance and monitoring that is occurring currently in the quarantine units, Defendants shall ensure that the triage process associated with sick call requests on the non-quarantine units is expedited and reflects appropriate sensitivity to the wide variety of symptoms associated with COVID-19 disease. Correctional officers and other staff who are in contact with inmates should ensure that the medical staff are promptly informed about inmates who present with symptoms of COVID-19 and medical staff should respond to the
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housing unit on an expedited basis. Any inmate grievances that include allegations of delay in medical assessment should be prioritized and submitted to the DOC medical director immediately. Additionally, in light of the fact that the DOC is relying on inmates to self-report symptoms of COVID-19, Defendants shall provide better documentation as to the dates and times of sick calls and urgent care calls, the inmates’ reported symptoms, the dates and times the inmates are seen by medical professionals, and the outcomes to allow for better tracking of the response to inmates’ complaints of COVID-19 symptoms.
*14 If the Defendants are not already doing so, they shall that ensure that cell restrictions are appropriately monitored, tracked, and corrective action is undertaken on an expedited basis if warranted.
In instances in which inmates are transferred from the intake unit to a different unit before the 14day quarantine period expires, Defendants shall ensure that appropriate housing, surveillance and monitoring is afforded to the inmate in the receiving unit.
Defendants shall consult with public health professionals regarding strategies that can be implemented to strengthen the COVID-19-related education program for both staff and inmates. Moreover, Defendants shall explore appropriate supports that can be provided on an expedited basis to both staff and inmates who are living and working in an extremely stressful and high-risk environment and are at substantial risk of exposure.
Defendants shall conduct additional staff training on the use of the non-touch, infrared thermometers consistent with manufacturer guidelines and provide guidance to staff regarding what to do when thermometers produce results that appear on their face to be inaccurate.
Defendants shall take immediate steps to provide consistent and reliable access to legal calls, personal telephone calls, daily showers, and clean clothing and clean linens to all inmates on isolation status.
Defendants shall ensure appropriate and consistent implementation of social distancing policies by addressing limitations in current staffing levels, supervisory oversight of line staff, and provide enhanced education related to the importance of social distancing.
Defendants shall communicate clear expectations, in writing, to correctional staff about the types of PPE required to perform the various supervision and operational functions that are conducted throughout the facility, including the PPE they should expect to be given on each shift for each specific category of post assignment; the proper donning, doffing and disposal of the PPE; and
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an explanation of the related rationale. Clear communication to staff regarding differences in risk exposures and providing consistent PPE over time could help lower anxiety levels among staff.
In addition, Defendants shall also ensure that all PPE issued is properly fitted. For example, N95 respirators must be properly fitted to ensure that they provide the intended protection. During the site visits that amici conducted, none of the correctional staff who were wearing N95 respirators in isolation units reported that they had been fitted for the respirators.
Defendants shall ensure that all DOC staff receive instruction on the proper disposal of PPE, and appropriate and accessible receptables for immediate disposal must be readily available. During the site visits, amici observed that receptables for disposal of PPE were not accessible on a consistent basis, including to staff assigned to isolation units at the CTF.
There is a critical need for the defendants to strengthen the environmental health and safety program at both the CDF and the CTF. It is recommended that the DOC immediately retain a registered sanitarian to oversee the environmental health and safety programs at both facilities and provide training so that cleaning tools and products are used properly. A registered sanitarian should bring the appropriate knowledge, oversight, and quality control necessary to mitigate at least some of the critical public health concerns that are evident in both facilities.
*15 In addition to engaging a sanitarian, supervisory correctional staff must ensure that housing unit staff properly manage the work performed by the inmate detail workers. In order to accomplish that goal, correctional staff and detail workers require guidance from a sanitarian trained to oversee the facility’s environmental health program.
In addition to engaging a sanitarian, the defendants shall consider contracting for professional cleaning services on the non-secure side of the facility at least until a sanitarian is hired to bolster the existing environmental health and safety program at both facilities. Additionally, proper cleaning supplies that have been sanitized regularly shall be immediately provided to each unit, and a schedule for cleaning common areas and cells shall be established and enforced.
Defendants shall reduce the extent to which common spaces encourage inmates to congregate in close quarters (e.g., around a single television in a small enclosed area, or next to one another in order to use telephones that are mounted closer than six feet apart). The effectiveness of this strategy would increase if Defendants were to consistently apply their stated policy of allowing no more than small groups of inmates out of their cells at any given time. Whatever strategies Defendants adopt, increased active and direct supervision will be required by both housing unit correctional officers and the midlevel managers responsible for overseeing and supporting the
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correctional officers assigned to housing units. Enforcing social distancing standards as a public health measure is a new responsibility for correctional staff and they must be supported as they adjust to this new role. Moreover, Defendants shall assess whether any additional security staff are needed to provide appropriate supervision, on a unit-by-unit basis, taking into consideration the layout of the housing units, the number of inmates housed on the units, and the security designation of the unit, in order to enforce social distancing policies.
Finally, Defendants shall ensure that all inmates, including those on isolation, have access to confidential, unmonitored legal calls of a duration sufficient to discuss legal matters.
As relief, the Court has adopted in general the recommendations set out by the amici in their final report. The Court has not set out each detail in the report which supports these recommendations. However, the Court expects Defendants to address those specific deficiencies set out in the final report, which support the recommendations, and to rectify those deficiencies.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ [5] Motion for a TRO is GRANTED IN PART AND DENIED IN PART. Plaintiffs have demonstrated a likelihood of success on the merits, irreparable harm, and that the balance of the hardships and the public interest weigh in their favor. Accordingly, Plaintiffs are entitled to the injunctive relief which is detailed above. However, the Court finds that some of the relief requested by Plaintiffs, such as the immediate release of inmates and the appointment of a downsizing expert, is inappropriate at this time on the current factual record.
An appropriate Order accompanies this Memorandum Opinion.
Exhibits
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDWARD BANKS, et al., v.
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QUINCY BOOTH, in his official capacity as Director of the District of Columbia Department of Corrections, et al., Defendants.
No. 1:20-cv-849 (CKK)
REPORT SUBMITTED BY AMICUS CURIAE PURSUANT TO APRIL 9, 2020 CONSENT ORDER *
* This filing corrects two typographical errors that appear in the version of this report that was submitted to the Court and the parties on April 18, 2020 by deleting the word “not” in line three on page 25 and substituting the word “secure” for “non-secure” in line eight on page 33.
*16 Pursuant to the April 9, 2020 Consent Order issued in the above-captioned matter, Amici, Grace M. Lopes and Mark Jordan, submit the following report for the Court’s consideration.
I. INTRODUCTION On April 9, 2020 amici were appointed to provide specific information to the Court regarding medical services and environmental health and hygiene at two detention facilities operated by the District of Columbia Department of Corrections (“DOC”), the Central Detention Facility (“CDF”) and the Correctional Treatment Facility (“CTF”). In the wake of the order, amici collected and analyzed data obtained from site visits at both facilities; conducted structured interviews with DOC managers, line staff, inmates, and contractors; reviewed electronic health records; and analyzed multiple electronic datasets extracted from information management systems maintained by the DOC or its contract services providers. On April 15, 2020, amici participated in a teleconference with the Court and the parties and provided a preliminary summary of their findings, which are explained in greater detail below. At the conclusion of the teleconference, the Court directed amici to include in this report recommendations regarding issues that amici have identified.
This report describes the methodology amici relied upon to conduct their assessment, the facilities subject to the assessment, and amici’s findings and recommendations related to the questions delineated in the April 9, 2020 order. Throughout this one-week investigation, the defendants have fully cooperated with amici’s requests for information and actively facilitated amici’s work. DOC and contract staff at every level, as well as representatives from the Office of the Attorney General, have made themselves available on short notice, on every day of the week, and well after traditional officer hours. Data reports and other records were produced on abbreviated timelines. Amici acknowledge and appreciate the efforts the defendants have made to cooperate with and expedite their review.
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II. METHODOLOGY Following the issuance of the April 9, 2020 order, amici reviewed the documents identified in the order and conducted unannounced and unescorted site visits on multiple shifts at both the CDF and CTF on April 10, 11, and 12, 2020. During the site visits, at both facilities amici visited general population, maximum and medium security housing units, including housing units on isolation or quarantine status, as well as intake, special management, and mental health units. Seven housing units at the CDF (S1, NW1, S2, NE2, N3, NE3, and N2) and five housing units at the CTF (D2A, D1B, C2A, C2B, and C4B) were visited. Observations in housing units included cells, dayrooms, restrooms, and shower facilities. At both facilities, medical units (including the CTF infirmary), visitor entry areas, Command Centers, and the Culinary Unit at the CDF, 1 were visited.
1 The Culinary Unit at the CTF was not operational at the time of the site visits and as a result the Culinary Unit at the CDF has been servicing both facilities.
Structured in-person interviews were conducted with the DOC Medical Director, the Medical Director and Deputy Medical Director for Correctional Health at Unity Health Care, Inc. (“Unity”), 2 the CDF/CTF Warden and his deputies, and dozens of correctional officers assigned to various posts throughout the facilities, including housing unit, environmental, and culinary posts. In-person interviews were also conducted, in groups and individually, with over 100 inmates on isolation and quarantine status as well as in the general population at both facilities.
2 Unity provides medical services on a contractual basis to inmates at the CDF and CTF. *17 In addition, amici conducted informal in-person or telephone discussions with Unity staff, including infection control staff and managerial clinical health care providers, to obtain and/or verify information. A range of DOC managers and staff with responsibility for administrative matters, including cleaning, hygiene and medical supplies, data management and analysis, warehouse functions, contractual cleaning services and human resources were also contacted and provided information that is reflected in this report.
In addition to the information collected during site visits and from interviews, amici requested and received access from the DOC to the electronic health records of inmates confined at the CDF and CTF. 3 Review and analysis of samples from these records has been conducted and the results are described below. The following data were also obtained from the DOC and analyzed:
• Admissions data for both facilities for the period February 15, 2020 to April 10, 2020;
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• Daily census data, including inmate housing assignments, for the period February 15, 2020 to April 13, 2020;
• Data related to sick call requests for the period February 5, 2020 to April 12, 2020;
• Data related to all COVID-19 tests conducted on inmates housed at both facilities through April 10, 2020;
• Data related to all urgent care encounters for the period February 15, 2020 through April 15, 2020;
• Inventory data for cleaning supplies as of April 13, 2020;
• Inventory data for personnel protective equipment as of April 17, 2020; and
• Data related to cleaning supplies and soap deliveries to both facilities for the period December 31, 2019 to April 13, 2020.
3 Case record reviews were conducted by Janet Maher, an additional member of the team amici assembled. Ms. Maher is an attorney who has extensive experience in working in institutional and health-care settings. Ms. Maher headed the Office of Corporation Counsel’s Mental Health Division from 1992 to 2000, worked as Deputy General Counsel and Chief of Staff for the District’s Child and Family Services Agency from 2000 to 2007 and as DOJ Compliance Officer at Saint Elizabeths Hospital from 2007 to 2014. From 2013 to her retirement in 2016, she headed the Hospital’s Performance Improvement Department. She also has provided consultative services to the Maryland and Pennsylvania behavioral health systems and to the Special Arbiter appointed by the Superior Court in Jerry M. v. District of Columbia, Superior Court of the District of Columbia, C.A. No. 1519-85.
Aggregated data related to DOC correctional staffing levels was also reviewed and is addressed below.
III. BACKGROUND The CDF is a multi-story, secure detention center. Recent population levels have hovered near 1020 inmates. The facility has 18 housing units, which are both single and double celled. Analysis of DOC housing data shows that as of April 13, 2020, 43 percent of the inmates housed at the CDF were housed in single cells and 56 percent were housed in cells with another inmate. 4 At the time of amici’s site visits, 16 housing units were open and two were closed. Of the 16 open housing units,
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two were quarantine units and one was an isolation unit. 5 Cellblocks are divided into two sides, and for most of the facility’s housing units, each side contains two tiers with 20 cells per tier. 6 All cells at the CDF are “wet” cells, i.e., they have toilets and sinks. Each cellblock tier of 20 cells has two showers, which are shared by inmates housed in the unit and located in a common area. The CDF Culinary Unit, which is operated by a contractor and up until April 11, 2020 employed inmate workers, currently supports the food service program for both the CDF and the CTF. 7
4 Ex. 1, Table, Number of Cells Housing One Inmate and Two Inmates at the Central Detention Facility, March 15 - April 13, 2020. Two inmates did not have a recorded cell assignment.
5 The number of quarantine and isolation units is, of course, variable. It is amici’s understanding that since the time of their site visits additional quarantine units have opened.
6 There are two exceptions: N1 is a restrictive housing unit with 72 cells and NE3 is a mental health step down unit with 36 cells.
7 The CTF has a separate Culinary Unit that is responsible for that facility’s food service program. At the time of amici’s site visits, DOC staff reported that the Culinary Unit at the CTF was closed due to a COVID-19 issue. Amici have confirmed that the food service program at the CTF is not operational and that the CDF Culinary Unit is now supporting the food service program at the CTF. Amici have not had an opportunity to confirm the date the CTF Culinary Unit closed, but staff reported it had been up to several weeks before the site visit. The closure of the CTF Culinary Unit has put evident strain on the food service program at the CDF.
*18 The CTF, which had a population of approximately 400 inmates at the time of amici’s site visits, has 25 housing units. 8 Eighteen have a capacity of 50 beds, four have a capacity of 96 beds, and one has a capacity of 65 beds. There are two additional medical housing units and two special management units that have varying capacities and are not intended for general population housing. As of April 13, 2020, 95 percent of the inmates at the CTF were housed in single cells. 9 With the exception of eight housing units, 10 all of the CTF’s housing units have wet cells. At the time of amici’s site visits, nine housing units were closed and there were eight quarantine units and three isolation units. The isolation units and seven of the eight quarantine units operating at the time of amici’s site visits have wet cells. The CTF also has a 30-room infirmary with 40 beds. The infirmary serves both facilities.
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8 This total includes two special management units. Inmates are also housed in a limited mobility medical unit and the infirmary.
9 Ex. 2, Table, Number of Cells Housing One Inmate and Two Inmates at the Correctional Treatment Facility, March 15 – April 13, 2020.
10 Three of the eight housings units that do not have toilets and sinks were open during the site visits.
As of April 16, 2020, the DOC reported that 130 inmates have been tested for COVID-19 and a total of 65 inmates have been confirmed positive, 57 at the CTF and eight at the CDF. Fortythree have tested negative, 22 are currently on isolation units and forty-three have recovered. One inmate died while hospitalized and none are currently hospitalized. Data regarding the number of DOC staff who have tested positive for COVID-19 have not been provided. One member of the DOC correctional staff died earlier this week. Not surprisingly, as evidenced by the findings set out below, the COVID-19 pandemic has presented formidable challenges for the defendants and had a significant impact on operations at both the CDF and the CTF.
IV. FINDINGS AND RECOMMENDATIONS Amici’s findings and recommendations related to the questions delineated in the April 9, 2020 order are set forth below.
A. MEDICAL
Question One: When residents display COVID-19 symptoms, as defined by the CDC, are they seen by medical staff?
Question Two: When residents display COVID-19 symptoms are they tested for COVID-19?
Question Three: Are there requests for a sick call based on suspected COVID-19 symptoms where there is no response?
Question Four: Is the response time for sick call requests of suspected COVID-19 symptoms for a resident to be seen by medical staff reasonable (assuming time of request and response time are recorded)? Questions One through Four address the identification of inmates who display symptoms or who are suspected of having contracted COVID-19 and whether those inmates have access to timely
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health assessments, services, and COVID-19 testing, as indicated. As discussed below, amici were not able to address Questions One through Four directly because the available healthcare datasets did not enable identification of either the universe or representative samples of inmates displaying symptoms or suspected of having contracted COVID-19. Amici therefore attempted to identify the mechanisms by which inmates with COVID-19 symptoms are identified by medical staff and reviewed a sample of the electronic health records of inmates who had been tested for COVID-19 to assess timeliness and scope of service delivery in those cases.
In order to evaluate DOC performance relative to these questions, amici relied on multiple sources of information including the following: interviews with DOC and contract medical staff, including executive staff; interviews with inmates; interviews with correctional officers; custom data reports from Unity’s electronic health record system, including data regarding sick call requests and encounters and urgent care encounters; data regarding all COVID-19 testing conducted on inmates at the CDF and CTF through April 10, 2020; data regarding all sick call requests and encounters between February 5, 2020 and April 12, 2020; 11 data regarding all urgent care encounters between February 15, 2020 and April 15, 2020; and, two random samples of individual inmate health records, one drawn from the population of inmates tested for COVID-19 through April 10, 2020, and the second from a dataset of all sick call requests submitted between March 1, 2020 and April 12, 2020. 12
11 In some cases, clinical encounters are recorded as sick call visits, but they do not have an associated written sick call request. Medical staff have explained that when they visit housing units to conduct sick call, they allow inmates who did not submit sick call requests to access services.
12 Records of 28 of the 83 inmates who were tested as of April 10, 2020 were reviewed. In addition, records of 40 inmates who submitted sick call requests during the review period were reviewed. There were no overlapping cases in the two samples.
*19 According to medical staff, the two primary methods by which inmates access health care are through a sick call process, in which inmates complete a written sick call form and insert it into a locked box on their housing units and an urgent care process, whereby an inmate can inform a correctional officer that s/he would like to see medical staff. 13 According to medical staff, in these circumstances the correctional officer contacts the medical unit and a nurse, in consultation with a medical provider, 14 triages the telephone call and either instructs the correctional officer to have the inmate escorted to the medical suite or schedules the inmate for sick call on the next day. 15
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13 There are also chronic care clinics operating Monday through Friday at both the CDF and CTF for inmates with chronic health conditions.
14 Advanced medical providers are considered to be MDs, DOs, nurse practitioners, and physician assistants.
15 Triage decisions require symptomatic information from the patient. Medical staff stated that at times the correctional officer will allow an inmate requesting urgent care to speak directly with the nurse and at times the inmate informs the correctional officer of their symptoms and the correctional officer reports that information to the nurse. It is not appropriate to require inmates to disclose health information to correctional staff in order to access medical services. The possibility of doing so could deter inmates from seeking necessary medical care.
Amici initially analyzed sick call request data for the period between February 5, 2020 and April 12, 2020 to assess whether the data could be used to identify sick call requests for CDC-defined COVID-19 symptoms (i.e., fever, cough, and shortness of breath) and thereafter to assess the time from the request to the time of any responsive medical evaluation. The data included a total of 6,840 records.
For two principal reasons, amici determined that these data could not be used as the basis for findings related to identification of inmates with COVID-19 symptoms and assessment of the timeliness of their access to medical services. First, nearly 5,000 of the records did not include a description of the symptoms for which the inmate requested medical care, making it impossible to identify either the universe of or a representative sample of inmates with COVID-19 symptoms. 16 Second, amici reviewed data regarding all 83 COVID-19 tests administered to inmates through April 10, 2020 and cross referenced the names of the tested inmates against sick call request records. Of the 83 inmates tested, 69 did not submit a sick call request at any point between February 5, 2020 and the date of their test. Based on a review of a sample of electronic health records of the 13 inmates who tested positive for COVID-19 for whom there was a record of a sick call request between February 5, 2020 and the date of their test, amici found that the sick call request was not associated with COVID-19 symptoms in any of the cases.
16 For example, the relevant data field in many cases recorded “initial visit,” “follow-up visit,” or “SC [sick call] slip.”
However, based on amici’s review of data related to inmates tested for COVID-19, it appeared that most inmates displaying symptoms or suspected of having contracted COVID-19 were presenting to medical staff by a method other than through the submission of a sick call request. Managers of
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the DOC medical program confirmed this impression. One manager stated that the first positive COVID-19 cases were identified after inmates presented to health care staff through the urgent care process. Once they were confirmed positive for COVID-19, the DOC began to quarantine housing units in which the COVID-19 positive inmates were housed as a containment precaution. Medical staff implemented a practice of monitoring quarantined inmates’ temperatures twice daily and reported that this daily surveillance process identified multiple subsequent positive COVID-19 cases, principally at the CTF.
*20 Medical staff members stated that inmates who are not subject to daily monitoring in a quarantine unit also are most likely to be identified as having symptoms of COVID-19 through the urgent care process. Accordingly, amici obtained and analyzed data regarding urgent care encounters at the CDF and CTF for the period February 15, 2020 through April 15, 2020. The data indicate that during that period there were a total of 3,439 urgent care encounters, 2,488 at the CDF and 951 at the CTF. 17 In comparison, over approximately the same time period there were a total of 5,244 sick call requests and encounters, 4,360 at the CDF, 525 at the CTF, and 359 at locations that could not be determined from the available data. 18 Based on these totals, it appears that during the period reviewed urgent care represented 40 percent of the combined volume of sick call and urgent care encounters, and sick call represented 60 percent of the total.
17 Ex. 3, Chart, Urgent Care Visits at Central Detention Facility and Correctional Treatment Facility, by Day, February 15 – April 15, 2020.
18 Ex. 4, Chart, Sick Call Requests and Encounters, by Day, February 15 – April 12, 2020.
To assess whether inmates with symptoms of COVID-19 utilize the urgent care process, amici analyzed the urgent care dataset for any references to the term “COVID.” The data indicate that the first reference to COVID-19 in the data was on March 15, 2020 at the CDF (for an inmate who was later ruled out for COVID-19), and March 21, 2020 at the CTF. Beginning on March 26, 2020, there were nearly daily and steadily increasing references to COVID-19 in the urgent care encounter data. 19 Thus, it appears that inmates who are not housed in quarantine units are using the urgent care system to present with COVID-19 symptoms to medical staff at the CDF and CTF.
19 Ex. 5, Chart, Urgent Care Medical Encounters With Clinical Summary Descriptions Including the Word “COVID,” by Day, February 15 – April 15, 2020. The data appear to include daily follow-up assessments of isolated inmates, which explains in part the dramatic increase in volume over time.
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Given time constraints, it was not possible for amici to assess how accessible the urgent care system is to inmates. Available data sources included only records of completed visits and do not reflect attempts to access the system. Numerous factors could impact inmate access to the urgent care system, including the availability of escort staff, willingness of correctional officers to facilitate calls to medical staff while they perform other duties on the unit, and the willingness of inmates to disclose confidential health information when they are within earshot of non-medical staff.
Notwithstanding the evidence that most inmates with symptoms or who are suspected of having contracted COVID-19 appear to present to medical staff by a method other than sick call, in order to evaluate and to assess the responsiveness of the sick call process more generally, in the instances in which inmates submit sick call requests, amici assessed whether those requests are collected and the inmate is seen by medical staff on a timely basis. Amici selected a random sample of 41 sick call requests submitted by inmates between March 1, 2020 and April 12, 2020 and reviewed the individual health records associated with each request. One sick call request was excluded from the analysis. 20 Of the 40 requests reviewed, 31 included a date of request recorded by the inmate. Of those 31 requests, 26 included a time stamp reflecting when medical staff collected the form. The time stamp was used to analyze the time that elapsed between the date recorded by the inmate on the sick call request form and the date of pick up. Of those 26 requests, 23 requests, 89 percent, were collected within one day. The remaining three were collected within two, four, and 14 days respectively.
20 One of the cases sampled was excluded because the corresponding written request form was not available for review.
Among the 31 requests that included a date of request recorded by the inmate, review of the corresponding electronic health records indicate that 23 inmates were seen within three days of submitting their request, 74 percent. 21 One inmate was seen six days after the request was made. 22 In two instances involving the same inmate, the inmate was seen every day for ten days for adult preventative care relating to COVID-19 exposure, but the notes in the electronic health records documenting these encounters do not specifically address the issue reflected in the inmate’s sick call request. The other three requests were scheduled for appointments, but the inmates were not seen. 23 Two requests that were recorded as scheduled for appointments were cancelled. 24
21 In 22 of the 23 cases the inmates were seen within two days and in one case the inmate was seen within three days.
22 The inmate requested treatment for tooth pain.
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23 In the three cases, the health record noted that the sick call appointment was cancelled because the inmate was in court, was “unavailable” or was a no show.
24 In one case an inmate indicated he had a “possible” broken finger and in the second the inmate requested fungal cream.
*21 Amici also assessed whether the issue raised by the inmate in his or her sick call request was addressed by the medical provider. In the 33 cases in which the inmate was seen by a medical provider, the medical provider addressed the specific request made by the inmate in 28 cases, 85 percent. In some cases the inmate was referred to specialty providers, but in most cases the inmate received interventions intended to provide immediate relief. In a minority of cases the specific intervention requested by the inmate was not provided but the clinical basis for the decision was reflected in the record.
Recommendation: In light of the medical surveillance and monitoring that is occurring currently in the quarantine units, defendants should ensure that the triage process associated with sick call requests on the non-quarantine units is expedited and reflects appropriate sensitivity to the wide variety of symptoms associated with COVID-19 disease. Correctional officers and other staff who are in contact with inmates should ensure that the medical staff are promptly informed about inmates who present with symptoms of COVID-19 and medical staff should respond to the housing unit on an expedited basis. Any inmate grievances that include allegations of delay in medical assessment should be prioritized and submitted to the DOC medical director immediately.
Question Five: Are residents suspected of COVID-19 isolated from other people? Health care staff reported that if an inmate is suspected by a medical provider of having contracted COVID-19, a request for testing is made to the D.C. Department of Health. As of April 10, 2020, all requests for testing made on behalf of DOC inmates had been approved. Heath care staff report that pending the testing results, the inmate is placed on cell restriction in their housing unit.
There is evidence that cell restriction practices are being implemented. The sample of electronic health records of inmates who tested positive for COVID-19 that amici reviewed document cell restriction orders entered by medical staff at the time COVID-19 testing was ordered by the provider. Inmates on isolation status at both facilities reported being placed on cell restriction prior to testing and before being moved to an isolation unit. During site visits amici noted that there were inmates on cell restriction status in some housing units. Correctional officers assigned to housing unit posts who were interviewed by amici reported that inmates who are on cell restriction are not permitted to leave their cells for any reason.
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Banks v. Booth, Slip Copy (2020) 2020 WL 1914896
Moreover, health care and facility management staff report that in instances in which an inmate tests positive for COVID-19, the inmate is moved to an isolation unit. According to those staff, only inmates who have tested positive for COVID-19 are housed in isolation units. DOC records indicate that as of April 10, 2020, 82 inmates were tested for COVID-19. Of the 82 inmates, 52 were COVID-19 positive, 26 were negative, and the balance were pending results. Amici reviewed a sample of 28 health records reflecting positives, negatives and pending test results. There were 16 COVID-19 positives in the sample. Amici’s review of DOC housing records for this cohort indicates that all of the 16 inmates in the sample who tested positive were moved from their housing unit to another housing unit within no more than two days, and most within one day of the positive test result. Based on what amici have learned about current DOC business practices, it is likely this cohort was on cell restriction status at the time of testing before being moved to an isolation unit.
*22 Accordingly, although amici have not had an opportunity to conduct a systematic review related to the implementation of cell restriction orders, it appears that inmates suspected of having COVID-19 are placed on cell restriction and isolated from other inmates.
Recommendation: If the defendants are not already doing so, they should that ensure that cell restrictions are appropriately monitored, tracked, and corrective action is undertaken on an expedited basis if warranted.
Question Six: Are new residents who enter DOC quarantined for 14 days? DOC facility executives and medical staff reported a practice of quarantining newly admitted inmates for a 14-day period prior to moving them to another housing unit. To assess whether this practice was being implemented amici analyzed intake and housing data for the period from March 15, 2020 to April 10, 2020. The data indicate that starting March 25, 2020 the defendants implemented a practice of housing new admissions on SO2, the intake unit at the CDF, for 14 days, or until the inmate was released from custody, if the release occurred prior to the expiration of the 14-day period.
Amici identified six instances after March 25, 2020 in which an inmate was moved out of the intake unit prior to the end of the 14-day period. Five of the six cases involved inmates who were placed on a specialized mental health housing unit before the 14-day quarantine period was completed. 25 Amici were not able to determine whether these six inmates were placed on cell restriction after being moved to a non-intake housing unit. Amici alerted Unity’s medical director of these six transfers so that a determination can be made about the propriety of the transfers and any special precautions that should be implemented on the receiving housing units.
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25 The sixth case involved an inmate who was moved to a special management housing unit and subsequently to a less restrictive mental health housing unit.
Recommendation: In instances in which inmates are transferred from the intake unit to a different unit before the 14-day quarantine period expires, defendants should ensure that appropriate housing, surveillance and monitoring is afforded to the inmate in the receiving unit.
Question Seven: How frequently do DOC medical staff and/or Unity Health Care staff meet with DOC staff and residents to inform them about COVID-19 symptoms and precautions, and what information is conveyed? Unity providers and the DOC Medical Director report that they have conducted multiple education sessions on the housing units and during roll call at both facilities. They indicate that these sessions focus on COVID-19 symptoms and infection-control precautions. More extensive individualized education and counseling is provided on the quarantine and isolation units, which are visited at least twice daily by health care providers. Signage explaining COVID-19 symptoms and precautions is displayed in many common areas throughout both facilities. Nevertheless, the need for more intensified education of staff and inmates is apparent. Most, albeit not all, of the correctional staff and supervisors interviewed expressed substantial concerns about working in the facility in light of what they perceive as their increased risk of contracting COVID-19. Virtually all of the inmates interviewed outside of isolation units expressed fear that they would contract the virus and many of those who tested positive expressed fear that they would relapse or become infected again.
*23 Recommendation: The defendants should consult with public health professionals regarding strategies that can be implemented to strengthen the COVID-19-related education program for both staff and inmates. Moreover, the defendants should explore appropriate supports that can be provided on an expedited basis to both staff and inmates who are living and working in an extremely stressful and high-risk environment and are at substantial risk of exposure.
Question Eight: What visitor screening is conducted? Do the thermometers used for visitor screening work and are they used properly? Upon entry to the two facilities, all staff and visitors are required to have their temperature checked and to complete a written questionnaire with three questions. The three questions correspond to the CDC-defined symptoms of COVID-19 (i.e., fever, cough, and shortness of breath). An earlier version of the screening questionnaire included questions pertaining to recent travel to areas of the world with known COVID-19 outbreaks and known contacts with individuals with COVID-19. The DOC has updated its visitor and staff screening questionnaire in response to evolving knowledge about COVID-19.
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Banks v. Booth, Slip Copy (2020) 2020 WL 1914896
The defendants use non-contact, infrared thermometers at the entrances of both the CDF and the CTF. According to the manufacturer’s instructions the device is calibrated at the factory and calibration by a user is not necessary. One amicus recorded eight temperature readings at the two facilities, five at the CDF and three at the CTF and observed that two of the readings, both on the same night at the CDF, appeared to be inaccurate. 26 In both cases, the temperature reading was taken immediately adjacent to an external door and the ambient temperature outside the facility was substantially colder than the temperature inside the facility.
26 In both instances the temperature registered in the low 90 degrees. After the second apparently incorrect reading, amicus requested that another reading be taken approximately 30 seconds later, and the thermometer registered what appeared to be an accurate temperature reading.
The manufacturer’s instructions for the thermometer indicate that users should “avoid drafts.” 27 It seems probable that user error may be resulting in some false temperature readings by the staff who are screening visitors. Medical staff report that they also use non-touch, infrared thermometers in their medical practice at both facilities. Amici have not had an opportunity to determine whether the thermometers used at visitor entry points are the same model of thermometers that are used by the medical staff. However, review of electronic health records also identified a number of questionably low temperature readings. 28
27 The instructions also state that “if there is a significant change in the surrounding temperature, allow the thermometer to adjust to the ‘new’ temperature for at least 15 minutes before use in order to obtain a reliable result.”
28 In reviewing health records, amici also noted several instances of unusually low temperatures recorded on flow sheets or on assessments, with some as low as 93 or 94 degrees.
Recommendation: Amici recommend that defendants conduct additional staff training on the use of the non-touch, infrared thermometers consistent with manufacturer Guidelines and provide guidance to staff regarding what to do when thermometers produce results that appear on their face to be inaccurate.
Nine: How do the conditions of the quarantine housing compare to conditions in nonquarantine housing, and are residents deterred from reporting symptoms?
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Banks v. Booth, Slip Copy (2020) 2020 WL 1914896
*24 As explained in detail below, except for the isolation units, quarantine housing units are intended to operate like all other types of housing units except for twice daily monitoring of inmates by medical staff and the use of specified PPE.
A. Daily Monitoring and Specified PPE While both facilities have different types of specialized housing, 29 three broad categories of housing are implicated by Question Nine:
• Quarantine housing;
• Isolation housing; and
• Non-Quarantine/Non-Isolation housing (i.e., general population or some type of special housing unit)
29 For example, both the CDF and CTF have special management units and the CDF has mental health and mental health step down units.
The DOC began operating quarantine housing units in March 2020. These units are designated for the following inmates: inmates suspected of having COVID-19 and inmates who are asymptomatic but determined to have been exposed to someone who has tested positive. Health care staff report that when one inmate on a housing unit tests positive, every inmate in the housing is quarantined on the unit. Moreover, staff who have been assigned to the unit are released from duty for a 14day self-quarantine period. There is a reported practice of maintaining each discrete cohort of quarantined inmates separately. The anecdotal evidence suggests that there may be deviations from this practice; however, amici have not had an opportunity to explore this issue. Additionally, amici have not had an opportunity to confirm the quarantine procedures that are implemented when DOC staff who are assigned to posts with inmate contact test positive for COVID-19 (i.e., whether inmates are quarantined after exposure to a staff member who is known to have contracted COVID-19).
According to the current DOC policy guidance, quarantine housing units should operate like all other housing units except for the isolation units, in all respects except two: 1) inmates housed in quarantine units have their temperatures monitored by medical staff twice daily; and 2) except for inmates -- who are required to have masks -- anyone entering a quarantine housing unit is required to wear gloves and a mask at all times. 30 During the site visits amici conducted at multiple quarantine units in both facilities, for the most part the correctional staff wore a variety of masks
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that they had purchased for themselves. In some instances, the masks were ill-fitting and in poor condition. As a general matter, the correctional staff were not wearing gloves.
30 See § VII. Medical Restrictive Housing Unit (Quarantine), Post Order, dated March 28, 2020. DOC policy requires inmates housed in a quarantine unit to wear masks whenever they are outside of their cells. Many inmates housed in the quarantine units that amici visited had masks, but they were not consistently wearing them nor were they required by the correctional staff to do so. In some instances, the masks were ill-fitting, visibly soiled, and ripped.
In contrast to the quarantine units, inmates and staff on non-quarantine units did not have masks during the site visits amici conducted. 31 The defendants did not have sufficient quantities of masks for staff or inmates during March; however, as explained in the next section of this report, the DOC received a shipment on April 10, 2020, and on the next day began issuing masks to staff at roll call. The defendants report that earlier this week, subsequent to amici’s site visits, they began to replace masks for inmates on a daily basis and are now providing masks to all inmates on all housing units. On April 14, 2020, the defendants reported that they are now requiring all staff and all inmates to wear masks. Amici have not had an opportunity to confirm these representations.
31 A small number of inmates who indicated that they had serious medical conditions had masks that were obtained from health care providers.
B. Conditions in Quarantine and Other Units Except Isolation
1. Cell Restriction
*25 The defendants implemented a Medical Stay in Place policy directive on April 4, 2020. 32 Pursuant to the directive, as of April 4, 2020, inmates housed in quarantine and other housing units, except for isolation units, have been restricted to their cells except for 30 minutes each day for phone calls, showers and cleaning their cells. The directive provides contradictory information regarding out-of-cell time. In relevant part it states that inmates “will largely be restricted to their cells with the exception of a modified recreation schedule, where groups no larger than five are out at any one time.” 33 However, the directive also requires staff to “[s]top all group activities and minimize the number of residents participating in recreation on tier (no more than 10 at a time).” 34 It also states that inmates are required to “practice social distancing of six feet to the fullest extent possible.” 35 According to facility management, at some point after the policy was
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issued, it was modified to require one hour of out-of-cell time; however, during site visits many correctional staff and inmates amici interviewed were unaware of this change. Indeed, inmates consistently commented that it is not really possible to shower, make one phone call and clean a cell in 30 minutes.
32 Ex.6, Medical Stay in Place, effective April 4, 2020. 33 Id. at 1. 34 Id. at 2. 35 Id. at 1. During site visits to quarantine and non-quarantine units, amici observed the following:
• More than five inmates were consistently out of their cells at one time, and sometimes between 10 and 20 inmates were out of their cells at one time; and
• Social distancing practices were not enforced and there were no attempts by the correctional staff to enforce social distancing even when numerous inmates crowded into a contained area (e.g., to watch television).
The failure to enforce social distancing requirements is a supervision deficit. This appears at least in part to be attributable to significant understaffing of correctional officers and their supervisors at both facilities. According to data obtained from managers at the CDF and CTF, as of April 10, 2020, the CDF had a total staffing complement of 675 correctional staff (493 correctional officers and 182 supervisory staff) and the CTF had a total staffing complement of 283 correctional staff (259 correctional officers and 24 supervisory staff). In response to inquiries from amici, the DOC Human Resources Unit was unable to provide a breakdown of current correctional officer and supervisory staffing levels at the CDF and the CTF, including, for each facility, the number of funded positions that are vacant and the number of staff assigned to the complement who are unavailable for duty for quarantine or some other COVID-19 related status. 36 However, management staff in the DOC Human Resources Unit were able to provide aggregate data regarding the agency’s total correctional workforce that provides insight into current staffing level at both facilities. According to these data, the DOC has a current workforce of 994 funded correctional positions, 45 of which are vacant. Of the remaining 949 positions, 281 correctional staff were unavailable for duty as of April 16, 2020. Thus, approximately one third of the total funded correctional work force is unavailable to work. 37
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36 Many categories of leave render staff unavailable for duty, including workers compensation, administrative leave, AWOL status, military leave, leave without pay, and family and medical leave.
37 In addition to the CDF and CTF, the data the defendants provided indicate that the total workforce includes correctional staff assigned to a transportation unit and to the Central Cell Block.
According to DOC managers, the reduction in the size of the workforce that is available for duty has fueled excessive reliance on overtime in order to cover a minimum number of essential posts at both facilities. In response, both facilities converted recently from staffing three eight-hour shifts per day to two, 12-hour shifts per day during weekdays. During this period when the workforce is already stretched thin, there is also an enhanced need for active, direct supervision of inmates to enforce social distancing to mitigate the risk of transmission of the highly infectious novel coronavirus. With fewer available correctional staff and supervisors available to fill essential posts, the DOC has less flexibility to adopt strategies involving increased staff levels to achieve social distancing policies on housing units.
*26 Telephone calls in settings that allow for confidentiality are arranged at both the CDF and CTF by DOC case management staff. DOC staff report that most of the case managers assigned to provide services for inmates at both facilities are either on quarantine status or working remotely. Thus, as a general matter, there has been no access to confidential legal calls for inmates confined on quarantine and non-quarantine housing units. There is some evidence that the defendants recently began to allow scheduled legal calls using the telephones in the housing unit day rooms. These telephones are used by inmates to make monitored telephone calls. Amici have not had an opportunity to determine whether the scheduled legal calls are monitored; however, even if they are not monitored, the telephones in the housing unit day rooms do not afford the confidentiality required to communicate with counsel.
2. Conditions in Isolation Relative to Other Units
Inmates housed in isolation units at both the CDF and CTF are restricted to their cells. Inmates in isolation at the CTF are not permitted to use the telephone for any reason, including legal calls. During the site visits amici conducted, inmates in isolation at the CDF were able to make monitored telephone calls from their cells. Amici were recently informed this may no longer be the case; however, we have not had an opportunity to follow up. Medical staff visit inmates in isolation at least twice per day to check temperatures, vital signs, and conduct assessments if indicated.
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Banks v. Booth, Slip Copy (2020) 2020 WL 1914896
The first cohort of inmates who were isolated for COVID-19 were housed in a special management unit at the CTF. Several inmates in this cohort report that they were handcuffed when escorted to and from the showers. Showers are no longer afforded to inmates in the isolation housing units. To the extent they can bathe, inmates on isolation status must use the sinks in their cells to do so. The supply of towels does not appear adequate. In lieu of showers, the defendants planned to provide inmates on isolation status with body wipes, which were not available until April 14, 2020.
The evidence indicates that inmates have spent up to and even over two weeks on isolation status. Analysis of housing assignment data associated with the first 15 inmates who tested positive for COVID-19 shows that the inmates in this sample were housed on isolation status for a minimum of five days. Three inmates in the sample had already spent 12, 14, and 15 days, respectively, in isolation status and remained in isolation as of the date of this analysis.
Laundry services for inmates in isolation has been limited. Many inmates reported wearing the same clothes throughout their stays in the isolation units, and in fact most of the inmates amici met wore visibly soiled clothing and reported substantial delays in receiving fresh linens. Most of the inmates amici interviewed in the isolation units stated the conditions are far too punitive, noting that if they had it to do over again, they would not have reported their symptoms. Deprivation of showers, the absence of any ability to contact family members, the lack of access to legal calls, clean clothing and clean linens are plainly a disincentive and are likely to deter inmates from reporting symptoms of COVID-19.
Recommendation: Amid recommend that the defendants take immediate steps to provide consistent and reliable access to legal calls, personal telephone calls, daily showers, and clean clothing and clean linens to all inmates on isolation status. The defendants should ensure appropriate and consistent implementation of social distancing policies by addressing limitations in current staffing levels, supervisory oversight of line staff, and provide enhanced education related to the importance of social distancing.
B. ENVIRONMENTAL HEALTH & HYGIENE
Question One: What are the quantities of personal protective equipment and cleaning products in the DOC stockpile? *27 As of April 17, 2020, the DOC reported to amid the following inventory of PPE:
Personal Protective Equipment:
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• Surgical Mask: 71,680 • N95 Respirators: 12,774 • Face Shields: 190 • Goggles: 200 • Gowns: 2,400 • Gloves: Total Not Available 38 • Small PPE Kits: 400
38 DOC representatives provided data indicating that between March 28, 2020 and April 15, 2020, 39,237 pairs of gloves were used.
According to the DOC estimates, based on current usage rates, as of April 17, 2020, the defendants had approximately a 32-day supply of masks on hand. The DOC Compliance Officer informed amid that the processing of additional procurement orders was underway.
As of April 13, 2020, the DOC reported to amid that the following inventory of cleaning products was stored on site.
Cleaning Products: • Ecolab Disinfectant: 144, 2.5-gallon cases; 39 • Ecolab Peroxide Multi Surface Cleaner/Disinfectant: 32, 2-gallon cases; • Ecolab Multi-Quat Sanitizer: 139, 2.5-gallon cases; 40 • Ecolab Orange Force: 129, 2.5-gallon cases; and • Ecolab Glass Cleaner: 30, 2.5-gallon cases.
39 This product is dilutable to make larger volumes of solution. 40 This product is dilutable to make larger volumes of solution.
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Question Two: Are residents provided with a weekly bar of soap? Many inmates amici interviewed reported that they purchase soap through the commissary. Most explained they had access to soap through the housing unit officers and everyone interviewed at their cells was able to show amid their bars of soap. There were limited supplies of soap available for distribution in a number of the housing units. Inmates housed in special management units are provided with small packets of liquid soap; they are not provided with bars of soap.
Question Three: Do staff who interact with visitors and residents have access to, and wear, sufficient personal protective equipment? Staff who interact with visitors have access to and wear sufficient PPE. Amici observed screening staff posted at the entrances of both the CDF and the CTF wearing PPE consistent with CDC Guidelines. 41 Additionally, staff assigned to units housing inmates who are COVID-19 positive wore PPE consistent with CDC Guidelines, including N95 respirators, eye protection, gloves, and a gown. None of the correctional staff interviewed who were wearing N95 respirators reported that they had been fitted for them as required by the Occupational Health and Safety Administration.
41 CDC Guidelines recommend that staff performing temperature checks on any group of people wear a mask, eye protection, gloves, and a gown or coveralls. See Ex. 7, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 23, 2020 at 25.
The defendants issued post orders for quarantine and isolation housing units on March 28, 2020 that included minimum PPE requirements. 42 Nevertheless, as of April 10, 2020, the day of the first unannounced site visit, amici observed that the post orders were not being adhered to and there was no clear, common understanding among the staff amici interviewed regarding what PPE they should wear. Most staff expressed considerable anxiety about not having access to appropriate PPE. Some staff were observed wearing masks that they purchased and brought to the facility themselves, few staff wore gloves, and other staff wore no PPE at all. Multiple staff stated that prior to April 10, 2020, PPE was not widely distributed to correctional officers.
42 See supra note 30 regarding the March 28, 2020 DOC policy applicable to quarantine housing units. On the same day the defendants issued a post order for isolation housing units. The PPE requirements in the post order related to the isolation units includes only a mask and gloves, less than the PPE recommended in the CDC Guidelines. As previously noted, however, in practice, in contrast to the observations amici made in the quarantine
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units, amici observed correctional officers on the isolation units wearing PPE consistent with CDC Guidelines.
*28 Amici were informed that beginning on April 10, 2020, masks and gloves were being distributed to correctional officers at the start of each shift. Over the course of the three days of site visits, amici observed that PPE was more consistently worn by staff throughout the facilities and staff stated that there was an abrupt increase in the PPE that was distributed to correctional officers. As noted above, the defendants reported that earlier this week, subsequent to amici’s site visits, they began to replace masks for inmates on a daily basis and are now providing masks to all inmates on all housing units. On April 14, 2020, the defendants reported that they are now requiring all staff and all inmates to wear masks at all times. Amici have not had an opportunity to confirm these representations.
Recommendation: Amici recommend that the defendants communicate clear expectations, in writing, to correctional staff about the types of PPE required to perform the various supervision and operational functions that are conducted throughout the facility, including the PPE they should expect to be given on each shift for each specific category of post assignment; the proper donning, doffing and disposal of the PPE; and an explanation of the related rationale. Clear communication to staff regarding differences in risk exposures and providing consistent PPE over time could help lower anxiety levels among staff. In addition, the defendants should also ensure that all PPE issued is properly fitted. For example, N95 respirators must be properly fitted to ensure that they provide the intended protection. As noted above, during the site visits that amici conducted, none of the correctional staff who were wearing N95 respirators in isolation units reported that they had been fitted for the respirators.
Finally, defendants must ensure that all DOC staff receive instruction on the proper disposal of PPE, and appropriate and accessible receptables for immediate disposal must be readily available. During the site visits, amici observed that receptables for disposal of PPE were not accessible on a consistent basis, including to staff assigned to isolation units at the CTF.
Question Four: Are staff and prisoner-workers given masks and gloves, particularly in food service, and are they instructed to wear that equipment? Amici toured the Culinary Unit at the CDF on April 11, 2020. At that time, all correctional staff and contractors were wearing masks, hairnets, and gloves. There were no inmate workers in the Culinary Unit during the site visit. They had been replaced by correctional officers. Amici learned that the inmate work detail in the Culinary Unit was suspended because an inmate housed at the CDF, who had been assigned to the detail for at least several months, tested positive for COVID-19
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on April 10, 2020. Amici have not had an opportunity to confirm the instructions regarding the use of masks and gloves that DOC staff, contractors, and inmates working in the Culinary Unit receive; however, during the site visit amici observed the consistent use of masks, gloves, and hairnets by the numerous contractors and DOC staff who were working in the food service area.
An interview conducted by amici with a supervisor for the food service contractor, (who reported working in the CDF Culinary Unit since the latter part of 2019), revealed that the contract staff assigned to the CDF did not know why the inmate detail workers were no longer working and had been replaced by correctional officers. In light of the fact that it appeared the detail inmate who tested positive prepared and served food along with the contractor’s staff for at least several months, amici sought to ascertain whether the DOC made any attempt to determine whether the contract staff who worked alongside the detail inmate who tested positive were “close contacts” as defined by the applicable CDC Guidelines. 43 According to the Guidelines, “an individual is considered a close contact of a COVID-19 case 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).” 44 The Guidelines further provide that all staff who were a close contact of the inmate, whether employed by DOC or by the contractor, 45 should have been placed on self-quarantine status. Specifically, the Guidelines provide that if a staff member or contractor is identified as a close contact of a COVID-19 case (whether in the facility or in the community) that staff member should self-quarantine at home for 14 days and may return to work if symptoms do not develop after the 14-day period. 46 It appears that these Guidelines have not been implemented with respect to any contractors who were in close contact with the detail inmate who tested positive for COVID-19.
43 See Ex. 7 at 3.
44 Id.
45 The CDC Guidelines define staff as “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.” Id. at 4.
46 Id. at 12.
*29 According to the DOC administrator and staff responsible for the food service contract, on the morning of April 11, 2020, the DOC food contractor was informed that a detail inmate had tested positive and that the contractor’s workers should self-quarantine if they did not feel well.
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It appears that no effort was made to determine whether any of the contract food service workers were a “close contact” of the detail inmate who tested positive. Indeed, amici contacted the DOC Medical Director, the Unity Medical Director, the Unity Infection Control Specialist, the DOC Deputy Director responsible for the food service contract, the DOC General Counsel, and lead counsel for the defendants in this litigation to inquire about this matter. Based on the responses they provided to amici’s inquiries, it appears that any contact tracing that may have been conducted did not include consideration of whether the food service contractors who worked alongside the detail inmate who tested positive might be deemed a close contact who should have been quarantined for 14 days. Amici’s understanding is that the detail inmate who tested positive was not contacted about any individuals with whom he had close contact. Moreover, it does not appear that any effort was made to contact public health experts at the D.C. Department of Health to receive guidance about this matter. In light of the implications attendant to having a close contact continue to work in the CDF Culinary Unit, promptly after learning about this matter amici alerted counsel for both parties about their concerns.
Amici’s inquiries regarding the contact tracing conducted in the wake of the detail inmate’s positive COVID-19 test results revealed that at least in this instance the defendants employed a fractured contact tracing effort that was not centralized nor informed by public health experts. 47
47 The DOC Medical Director informed amici that she had seen email correspondence regarding the issue but had not been involved in advising staff about how to handle this matter. The Medical Director referred amici to the DOC Deputy Director for Administration to determine whether contact tracing related to the contractor’s staff had been conducted. The Deputy Director was contacted and informed amici that the contractor was notified that the contractor’s workers should self-quarantine if they did not feel well. There was no recognition of the fact that food service contract workers may have potentially been close contacts of the detail inmate who tested positive and should have been quarantined regardless of how they felt. Moreover, in response to amici’s inquiries, the manager of Unity’s infection control program at the CDF advised amici that Unity’s involvement was limited to determining the identity of the inmates and health care providers who may have had contact with the detail inmate while he was in the medical unit.
Recommendation: If they have not done so in the wake of amici’s inquiries, the defendants should seek immediate guidance from public health professionals about identification of the detail inmate’s close contacts. Moreover, it is important to recognize that the defendants are working in an extremely challenging environment that requires a well-coordinated response to the range of infection control issues that are presented throughout the course of each daily shift. Any individuals
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who are tasked with conducting contact tracing after a confirmed positive COVID-19 test should have appropriate training and be closely supervised.
Question Five: Do residents have access to cleaning supplies in sufficient quantity and concentration, including rags, to clean their cells? Amici reviewed records of cleaning supply deliveries to the CDF and CTF to assess whether supplies were made available to the facilities. Department of Corrections records indicate that there have been regular deliveries of cleaning supplies to both facilities since December 31, 2019, the start of the dataset reviewed. 48 Delivery records reflect that historically three types of cleaning and sanitizing agents were made available to clean housing units and that in mid-March 2020 a fourth, peroxide-based multi-surface cleaner was also made available. 49
48 Ex. 8, Table, Dates and Quantities of Cleaning Supplies and Soap Delivered to the CDF and CTF, by Date, December 31, 2019 – April 13, 2020.
49 The manufacturer’s product description states that it is “effective against emerging viral pathogens after the CDC has declared an outbreak.”
Observations and interviews with inmates and staff indicated that inmate access to sufficient cleaning supplies on housing units varied from unit to unit. For example, on one unit, all of the cleaning supplies had been depleted. 50 Furthermore, on several units that had a supply of cleaning agents, inmates reported that they were unable to access them to clean their own cells. Amici did not observe any inmates with facility-issued rags that could be used to clean their cells. Most inmates who were interviewed reported that they made rags by tearing facility-issued towels or tshirts, a phenomenon amici observed. For the most part, these make-shift rags were tattered and soiled. Amici observed that paper towels were available for inmates to use for cleaning on a small number of housing units, but this was not common and on one of the units, the inventory of paper towels was extremely low.
50 Ex. 9, Photograph of empty cleaning supply containers, Correctional Treatment Facility, Building D, April 12, 2020.
*30 Amici could not assess whether the concentrations of disinfecting and sanitizing solutions were mixed in the appropriate concentrations necessary to achieve their intended effects. It was evident that knowledge regarding the appropriate use of the different cleaning and sanitizing agents was generally at a very low level.
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Access to cleaning and sanitizing solutions is necessary, but not sufficient. Knowledge of proper mixing and appropriate application of cleaning and sanitizing solutions is also necessary. For example, at least two of the products that the DOC distributes – a concentrated surface cleaner and a concentrated sanitizing solution – have prescribed dilution ranges (i.e., must contain a minimum concentration of the chemical agent, which has implications for how much water can be added to the concentrate before the agent is no longer effective). One of these products also has specific prescriptions regarding how long the product must remain on a surface for it to reduce pathogens to indicated levels.
The DOC assigns correctional officers to “environmental posts” and these officers are responsible for cleaning and sanitizing assigned zones of the facilities. One environmental officer informed amici that he had never received formal training, but rather reviewed his responsibilities with his supervisor and acknowledged that it had “been a while” since that discussion occurred. The same officer noted that he had begun to mix his own bleach solution to sanitize the areas of the facility he was responsible for and relied on his own judgement regarding the appropriate concentration of bleach solution.
Recommendation: There is a critical need for the defendants to strengthen the environmental health and safety program at both the CDF and the CTF. Amici recommend that the DOC immediately retain a registered sanitarian to oversee the environmental health and safety programs at both facilities and provide training so that cleaning tools and products are used properly. A registered sanitarian should bring the appropriate knowledge, oversight, and quality control necessary to mitigate at least some of the critical public health concerns that are evident in both facilities.
Question Six: Do housing units, and particularly common spaces such as bathrooms and showers, appear to be sufficiently cleaned? Cleaning the common spaces in housing units is the responsibility of designated inmate “detail workers” at the CDF and CTF, who are supervised by correctional officers. As indicated in the response to Question Five, several different cleaning, disinfecting, and sanitizing solutions are available on the housing unit of both facilities. Nevertheless, the cleanliness of common spaces was inconsistent from one housing unit to the next. With cleaning responsibilities delegated to the inmate level, there is little quality control. Some housing units appeared relatively clean and tidy, others were not. This was especially the case in some of the housing units at the CDF that appeared to have significant inmate management and supervision challenges. 51 In addition to the limitations in the cleanliness of some housing units, some cell block corridors had trash on the
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floor. Moreover, Building D at the CTF includes showers with tiles and in some of those showers there was visible mold growth. 52
51 In at least two housing units at the CDF, amici observed food and other refuse scattered on the cellblock floors, including on the floors under stairwells.
52 Ex. 10, Photograph of a Shower in the Correctional Treatment Facility, Building D, April 12, 2020.
*31 Recommendation: In addition to engaging a sanitarian, supervisory correctional staff must ensure that housing unit staff properly manage the work performed by the inmate detail workers. In order to accomplish that goal, correctional staff and detail workers require guidance from a sanitarian trained to oversee the facility’s environmental health program.
Question Seven: Do professional cleaning crews clean hallways and common areas (not in housing units)? Do inmate details clean the housing units? common spaces? A professional cleaning contractor was engaged to clean certain common areas on the non-secure side of both facilities on a daily basis in late March 2020. However, there was an apparent misunderstanding about the scope of the contractor’s services and none of the floors in the common areas on the administrative side of both facilities were cleaned, including bathroom floors and floors in the Officer’s Dining Room. The DOC Deputy responsible for the administration of the contract informed amici earlier this week that this limitation is being corrected.
Inmate detail workers clean the common areas in the housing units. They have not been adequately trained and are not appropriately supervised. The detail workers have inconsistent knowledge about the products they use and do not have adequate equipment. For example, they reuse mops and make-shift rags that do not appear to have been appropriately sanitized between uses. As part of the DOC response to COVID-19, detail workers are required to clean all surfaces in the common areas of the housing units at two-hour intervals. This appears to occur on a consistent basis; however, the efficacy of these efforts is undermined by inadequate training, limitations in supervision, the absence of any quality controls, and the apparent limitations in the equipment and possibly in the cleaning and disinfecting agents that they are using. 53
53 On some housing units the detail workers expressed concerns that the cleaning agents they were using had been inappropriately diluted; on others, inmates complained about fumes associated with the apparent strength of the cleaning products the detail inmates were using.
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Recommendation: In addition to engaging a sanitarian, the defendants should consider contracting for professional cleaning services on the secure side of the facility at least until a sanitarian is hired to bolster the existing environmental health and safety program at both facilities. Additionally, proper cleaning supplies that have been sanitized regularly should be immediately provided to each unit, and a schedule for cleaning common areas and cells should be established and enforced.
Question Eight: Is hand sanitizer provided, or available to, to residents? There is no evidence that hand sanitizer is provided to the inmates at either the CDF or the CTF.
Question Nine: Is social distancing possible in common areas in units and in the recreation spaces, and what is the approximate size of common areas? Amici did not have the opportunity to measure the common areas at the CDF and CTF. However, given the configuration of the physical plant in the housing units, social distancing is possible if inmate out-of-cell time is limited to small groups of inmates at one time. However, as noted elsewhere in this report, the defendants are not enforcing social distancing requirements. Enforcing social distancing requires consistent, direct observation by staff. Ensuring that correctional officers carry these functions out requires active supervision by mid-level managers, who must provide both oversight to correctional officers and support (i.e., by ensuring officers get appropriate relief for breaks over the course of their 12-hour shifts). Amici observed numerous instances in which correctional officers assigned to housing units left their posts without relief, leaving housing units short staffed. It appears that the DOC does not have sufficient line and supervisory staff available to appropriately enforce social distancing policies.
*32 Recommendation: The defendants should reduce the extent to which common spaces encourage inmates to congregate in close quarters (e.g., around a single television in a small enclosed area, or next to one another in order to use telephones that are mounted closer than six feet apart). The effectiveness of this strategy would increase if the defendants were to consistently apply their stated policy of allowing no more than small groups of inmates out of their cells at any given time. Whatever strategies the defendants adopt, increased active and direct supervision will be required by both housing unit correctional officers and the midlevel managers responsible for overseeing and supporting the correctional officers assigned to housing units. Enforcing social distancing standards as a public health measure is a new responsibility for correctional staff and they must be supported as they adjust to this new role. Moreover, the defendants should assess whether any additional security staff are needed to provide appropriate supervision, on a unit-by-
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unit basis, taking into consideration the layout of the housing units, the number of inmates housed on the units, and the security designation of the unit, in order to enforce social distancing policies.
Question Ten: Approximately how many residents share a cell, and what is the approximate size of the cell? Amici analyzed individual-level inmate housing data for the period between March 15, 2020 and April 13, 2020. At the CDF, as of April 13, 2020, 586 inmates, 56 percent of the population, shared a cell. 54 At the CTF, as of April 13, 2020, 22 inmates, five percent of the population, shared a cell. 55
54 See Ex. 1, supra note 4. 55 See Ex. 2, supra note 9. A representative-sized cell was measured at each of the two facilities. The selected cell at the CDF measured 85.6 square feet and the selected cell at the CTF measured 72.4 square feet.
Question Eleven: Do all residents have access to sinks, soap, and toilets in their cells? As noted above, at the CDF, all cells include sinks and toilets. At the CTF, the housing units in the portion of the facility known as Building D contain cells without sinks and toilets. Inmates assigned to housing units in Building D share common sinks and toilets. On each housing unit there are two, double-tiered corridors of cells. Each tier of each corridor is comprised of eight cells. Inmates housed in the eight cells share two sinks, two toilets, and a shower. The cell doors in Building D, by design, do not lock in order for inmates housed in the cells to access the sink and toilet without the intervention of a correctional officer. Amici identified multiple sinks and toilets in housing units in Building D that were not functional or out of service at the time of the site visit.
Representatives of the DOC stated that every inmate receives a facility-issued bar of soap each week. Every inmate that amici spoke with indicated that they possessed at least one bar of soap. Some inmates verified that soap was distributed to them weekly; however, others stated that they had purchased their soap from the commissary and that soap was not distributed weekly. There were multiple reports that inmates sometimes use their bars of soap to clean their clothes in the shower and under those circumstances a single bar of soap does not last an entire week.
V. Conclusion Communicable disease outbreaks in locked facilities such as jails and prisons where individuals live in close proximity can spread rapidly through a population if not addressed quickly with
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appropriate prevention, detection, and management systems. The current novel coronavirus pandemic, which is already present within both the CDF and the CTF, poses a serious risk to the health and safety of inmates and staff alike.
This report describes certain efforts undertaken by the DOC to respond to the current public health emergency. DOC staff and Unity’s contract providers should be commended for performing essential public health and safety functions while knowingly exposing themselves to significant health risks on a daily basis.
In light of the limitations identified in this report, substantial effort must be undertaken to ensure that the DOC manages its response to COVID-19 in a manner that ensures conformity with CDC Guidelines. This will require active on-site support at both facilities from public health professionals. For example, contact tracing must be strengthened, staff and inmate education on relevant public health considerations must be intensified, and business processes must be refined to ensure inmates and staff presenting with symptoms potentially consistent with COVID-19 are quickly identified, tested and isolated. Moreover, on an expedited basis, the defendants must provide inmates in isolation who have tested positive for COVID-19 with access to showers, clean clothing, clean laundry, personal telephone calls and legal calls.
*33 Amici’s investigation reveals that there is an equally urgent need for the DOC to substantially bolster the agency’s environmental health program in the immediate and longer term. A professional sanitarian with appropriate health and safety credentials should be charged with organizing and managing the DOC’s environmental health program to ensure, among other matters, appropriate cleaning and sanitizing practices are implemented, regular facility inspections are conducted, and corrective actions are undertaken to resolve systemic risks. In the immediate term, the defendants should ensure that they have a sufficient number of both line level and supervisory staff throughout both facilities to promote appropriate supervision and enforce the altered operational policies adopted to address the contagion during this public health crisis.
As amici were in the process of finalizing this report, defendants provided counsel for plaintiffs and amici with a copy of an April 27, 2020 memorandum from the DOC Director, Quincy Booth, to all DOC employees and contractors. 56 The memorandum addresses COVID-19 policies and procedures, including updated policies and procedures that appear to be intended to respond to the matters addressed during the April 15, 2020 teleconference. In light of the current filing deadline, amici have not had an opportunity to consider the content of the memorandum, but have included it in the appendix to this report so that the Court can be promptly apprised of the most current information that the defendants have provided.
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56 Ex. 11, Memorandum from Quincy L. Booth, Director, to All DOC Employees and Contractors, April 17, 2020, Reminders and Updated COVID-19 Policies and Procedures.
Amici recognize the substantial challenges that confront both parties and are available to answer any questions the Court or the parties have about the matters addressed in this summary report.
Respectfully submitted, /s/ Grace M. Lopes
Amicus Curiae Grace M. Lopes
Bar No. 358650 Executive Director Rising for Justice 901 4 th Street, N.W., Suite 6000 Washington, D.C. 20001 202-607-2224 gmlopes@risingforjustice.org Mark Jordan mark@markjordan.consulting 1220 19 th Street, N.W. Suite 500 Washington, D.C. 20036 202-525-6732 April 19, 2020
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Washington, D.C.
Ex. 1
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Ex. 2
Ex. 3
Ex. 4
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Ex. 5
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Ex. 6
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Ex. 7
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Ex. 8
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Ex. 9
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Ex. 10
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Ex. 11
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All Citations Slip Copy, 2020 WL 1914896
End of Document

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KeyCite Blue Flag – Appeal Notification Appeal Filed by CRAIG WILSON, ET AL v. MARK WILLIAMS, ET AL, 6th Cir., April 27, 2020
2020 WL 1940882 Only the Westlaw citation is currently available.
United States District Court, N.D. Ohio.
Craig WILSON, et al., Petitioners, v.
Mark WILLIAMS, et al., Respondents.
CASE NO. 4:20-cv-00794 |
Signed 04/22/2020
Synopsis Background: Inmates at federal correctional institution filed emergency habeas corpus petition as putative class action, alleging that prison officials' failure to create safe conditions for inmates with especially vulnerable health in midst of COVID-19 pandemic violated those inmates' Eighth Amendment rights. Inmates moved for class certification and for preliminary injunction requiring release of medically vulnerable inmates and for officials to ensure social distancing to prevent spread of COVID-19.
Holdings: The District Court, James S. Gwin, J., held that:
[1] commonality requirement for class certification was satisfied;
[2] typicality requirement for class certification was satisfied;
[3] prison officials acted on grounds generally applicable to all proposed class members, as required to certify class seeking declaratory and injunctive relief;
[4] inmates demonstrated likelihood of success on merits;
[5] inmates demonstrated risk of irreparable harm;
[6] harm to others did not weigh against preliminary injunction; and
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[7] public interest supported granting preliminary injunction.
Motion granted in part and denied in part.
Procedural Posture(s): Petition for Writ of Habeas Corpus; Motion to Certify Class; Motion for Preliminary Injunction.
West Headnotes (14)
[1] Habeas Corpus District courts have inherent authority to grant enlargement to a defendant pending a ruling on the merits of that defendant's habeas petition. 28 U.S.C.A. § 2241.
[2] Federal Civil Procedure Commonality requirement for class certification requires plaintiffs to demonstrate that the class members have suffered the same injury. Fed. R. Civ. P. 23(a).
[3] Federal Civil Procedure To satisfy commonality requirement for class certification, plaintiffs' claims must depend upon a common contention of such a nature that it is capable of classwide resolution, which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke; this inquiry focuses on whether a class action will generate common answers that are likely to drive resolution of the lawsuit. Fed. R. Civ. P. 23(a).
[4] Federal Civil Procedure Common question of whether prison officials' failure to create safe conditions for inmates with especially vulnerable health in midst of COVID-19 pandemic violated those inmates' Eighth Amendment rights was sufficient to satisfy commonality requirement for class certification, in habeas action seeking release from prison due to spread of COVID-19
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within the prison, even though there was variation of inmates' crimes, sentences, medical histories, proximities to infected inmates, and dangers to the community. U.S. Const. Amend. 8; 28 U.S.C.A. § 2241; Fed. R. Civ. P. 23(a)(2).
[5] Federal Civil Procedure Typicality requirement for certification of medically-vulnerable class of inmates in inmates' habeas action seeking release from prison due to spread of COVID-19 within the prison, where three of the named plaintiffs had documented medical issues that were commiserate with those suffered by the class, and nothing suggested that their claims were distinct from the class. 28 U.S.C.A. § 2241; Fed. R. Civ. P. 23(a)(3).
[6] Federal Civil Procedure Typicality requirement for class certification is met if the class members' claims are fairly encompassed by the named plaintiffs' claims. Fed. R. Civ. P. 23(a).
[7] Federal Civil Procedure Prison officials acted on grounds generally applicable to all proposed class members, as required to certify class of medically vulnerable inmates seeking declaratory and injunctive relief, in inmates' habeas action alleging that prison officials' failure to create safe conditions for inmates with especially vulnerable health in midst of COVID-19 pandemic violated those inmates' Eighth Amendment rights, since officials' failure to protect inmates from the spreading virus applied to entirety of the class generally, and injunctive relief was appropriate as to the class. U.S. Const. Amend. 8; 28 U.S.C.A. § 2241; Fed. R. Civ. P. 23(b)(2).
[8] Injunction Four factors guide a district court's decision to issue a preliminary injunction: whether the plaintiffs will likely win down the road, whether an injunction would prevent the plaintiffs from being irreparably harmed, whether an injunction would harm others, and how the injunction would impact the public interest.
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[9] Sentencing and Punishment Objective component of the test for deliberate indifference to serious medical needs in violation of the Eighth Amendment requires the existence of a sufficiently serious medical need. U.S. Const. Amend. 8.
[10] Sentencing and Punishment Subjective component of the test for deliberate indifference to serious medical needs in violation of the Eighth Amendment requires that defendants have acted with “deliberate indifference,” a degree of culpability greater than mere negligence, but less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. U.S. Const. Amend. 8.
[11] Injunction Inmates demonstrated likelihood of success on merits of claim that prison officials were deliberately indifferent to their serious medical needs in violation of the Eighth Amendment, as required to obtain preliminary injunction requiring release of medicallyvulnerable inmates and ensure social distancing of remaining inmates to prevent spread of COVID-19 coronavirus; virus was spreading among prison population and staff, and for infected inmates, it could lead to pneumonia and death, for which medically vulnerable inmates were at greater risk, and prison officials had failed to separate inmates at least six feet apart, despite clear Centers for Disease Control and Prevention (CDC) guidance that such measures were necessary to stop virus' spread and save lives. U.S. Const. Amend. 8.
[12] Injunction Inmates demonstrated a risk of irreparable harm from prison officials' alleged deliberate indifference to their serious medical needs in violation of the Eighth Amendment, as required to obtain preliminary injunction requiring release of medically-vulnerable inmates and ensure social distancing of remaining inmates to prevent spread of COVID-19 coronavirus, where prison was hotspot for the virus and more dangerous than other facilities, and it was more than speculative that virus would continue to spread and pose
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a danger to inmates if officials did not increase efforts to stop the spread. U.S. Const. Amend. 8.
[13] Injunction Harm to others did not weigh against issuance of preliminary injunction requiring prison officials to release medically-vulnerable inmates and ensure social distancing of remaining inmates to prevent spread of COVID-19 coronavirus, in inmates' action alleging that officials were deliberately indifferent to their serious medical needs in violation of the Eighth Amendment; inmates only sought release to move vulnerable inmates to various other types of confinement so that they were no longer at risk of dying from the virus, and quarantining inmates 14 days before being transferring them out reduced harm to public, while there was continued risk of harm to others, including prison staff, if inmates remained in prison and virus continued to thrive among dense inmate population. U.S. Const. Amend. 8.
[14] Injunction Public interest supported granting inmates a preliminary injunction requiring release of medically-vulnerable inmates and ensuring social distancing in prison to prevent spread of COVID-19 coronavirus, in inmates' action alleging that prison officials' failure to create safe conditions for inmates with especially vulnerable health in midst of COVID-19 pandemic violated those inmates' Eighth Amendment rights; although no guarantees existed that inmates would not recidivate, they were older and suffered serious medical conditions, six inmates had already died from the virus, keeping a high population of inmates would likely multiply prison's costs to test each inmate and guard, and it was always in public interest to prevent violation of party's constitutional rights. U.S. Const. Amend. 8.
Attorneys and Law Firms
Mark A. Vander Laan, Dinsmore & Shohl, David A. Singleton, Michael L. Zuckerman, Cincinnati, OH, Freda J. Levenson, ACLU of Ohio, Joseph W. Mead, Cleveland, OH, David J. Carey, ACLU of Ohio, Columbus, OH, for Petitioners.
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James R. Bennett, II, Sara E. DeCaro, Office of the U.S. Attorney - Cleveland Northern District of Ohio, Cleveland, OH, for Respondents.
ORDER
[Resolving Doc. 1] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: *1 On April 13, 2020, Petitioners, inmates at Elkton Federal Correctional Institution, brought this emergency habeas action seeking release from Elkton due to the spread of COVID-19 within the prison. 1 Petitioners claim to represent both a class of all Elkton inmates as well as a subclass of medically vulnerable inmates. 2 Respondents opposed. 3
1 Doc. 1. 2 Id. 3 Doc. 10. On April 17, 2020 the Court held a hearing on the matter. On April 18, 2020, both parties filed additional materials in response to the Court's hearing inquiries. 4
4 Docs. 18, 19. For the foregoing reasons, the Petitioners' motion for relief is GRANTED IN PART and DENIED IN PART.
I. COVID-19 at Elkton State government and the media have well documented the spread of COVID-19 and the efforts to contain the virus and limit its impact. The virus's highly-infectious nature and the risks it poses, especially to medically vulnerable populations, has led to the implementation of unprecedented measures throughout the country and the world.
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While research concerning the virus is ongoing, for some time health officials have known and reported that asymptomatic persons spread the virus. 5 A large percentage of coronavirus-infected citizens are asymptomatic. 6 These asymptomatic persons show no, or limited, symptoms. Yet, they spread the virus.
5 CDC, Coronavirus Disease 2019: Recommendations for Cloth Face Covers, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-facecover.html (last visited Apr. 20, 2020) (citing Yan Bai, Lingsheng Yao, and Tao Wei, et al., Presumed Asymptomatic Carrier Transmission of COVID-19, JAMA (Feb. 21, 2020), https://jamanetwork.com/journals/jama/fullarticle/2762028).
6 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. TIMES (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirusasymptomatic-transmission.html.
Due to this threat from infected but asymptomatic individuals, testing, tracing and treatment became the first mitigation responsibilities. As the virus has become more widespread, state government has directed citizens to reduce the spread not only through careful hygiene practices, but also through social distancing and isolation.
For inmates in our country's prisons the virus is no less a threat, but distancing measures are only minimally available.
Defendants Elkton officials have implemented measures to lessen the COVID-19 threat. Elkton segregates new inmates for fourteen days. 7 Elkton officials evaluate existing inmates with virus symptoms to determine whether isolation or testing is appropriate. 8 They check inmate and staff temperatures. 9 Elkton officials segregate inmates for fourteen days before allowing the inmates to leave Elkton. 10
7 Doc. 10 at 8. 8 Id. at 9. 9 Id. at 9-10. 10 Id. at 27.
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But despite their efforts, the Elkton officials fight a losing battle. A losing battle for staff. A losing battle for inmates.
The parties to the present action dispute some of the factual details of the current conditions within Elkton. Even in light of these disputes, the prison's “dorm-style” design guarantees that inmates remain in close proximity to one another. 11 With the shockingly limited available testing and the inability to distance inmates, COVID-19 is going to continue to spread, not only among the inmate population, but also among the staff.
11 Doc. 10 at 7. *2 According to Respondents, Elkton has had 59 confirmed cases of COVID-19 among inmates. 12 The number of infected staff members, 46, is almost as high. 13 The number has risen even in the days since the initiation of this lawsuit and will continue to do so absent intervention.
12 Doc. 19 at 2. 13 The official numbers on the Bureau of Prison's website conflict with the numbers reported
by Respondents. The BOP's website reports 52 confirmed cases among inmates, 46 cases among staff. Contrarily, Respondents report 59 cases among inmates and 34 among staff. Compare Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited April 22, 2020), with Docs. 10 at 10, 19 at 2. Notably, it is unlikely that these figures represent the actual number of cases at the institution, given the paltry number of tests the federal government has made available for the testing of Elkton's inmates.
To date, Elkton has received only 50 COVID-19 swab tests and one Abbott Rapid testing machine with 25 rapid tests. 14 Most swab tests have already been used. Because the Department of Justice has given BOP so few tests, Elkton medical staff has needed to triage test usage.
14 Doc. 19 at 1-2. Respondents represent that “test swabs are back-ordered until July or August,” but they “believe that they will receive an additional 25 rapid test[s]” each week. 15 These additional tests are all but useless considering Elkton's 2,400 inmates.
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15 Id. Recent experience at another Ohio correctional facility, Marion Correctional Institution, run by the Ohio Department of Rehabilitation and Corrections, shows how quickly and insidiously the virus spreads among a tightly quartered prison population.
Both Elkton and Marion are low security prisons and house approximately 2,500 inmates. 16
16 Ohio Department of Rehabilitation & Correction, Marion Correctional Institution, https:// drc.ohio.gov/mci (last visited Apr. 22, 2020).
The State of Ohio has tested its prisoners en masse for COVID-19. At Marion 1,950 inmates tested positive for COVID-19. 17 This number includes large numbers of inmates who were asymptomatic and would otherwise not have been tested. 18
17 Ohio Department of Rehabilitation & Correction, COVID-19 Inmate Testing Updated 4/20/2020, https://drc.ohio.gov/Portals/0/DRC% 20COVID-19% 20Information% 2004-20-2020% 20% 201304.pdf (last visited Apr. 20, 2020).
18 Id. Everything suggests that if BOP tested as ODRC commendably has, results would show that the virus has become equally widespread within Elkton. However, without testing there is no way to know how many Elkton inmates have the virus.
The Ohio prisons virus response undercuts BOP's ability to argue that testing is either unavailable or is impossible. Why has the Justice Department allocated Elkton an entirely insignificant number of tests while Ohio has been able to pull off mass testing across not only Marion, but at multiple institutions?
While the COVID-19 tests inadequacy is one area of grave concern, testing is only one part of the multi-faceted approach institutions like Elkton must take to reduce the virus's spread.
Respondents report that the prison, in accordance with BOP guidance, has changed its operations to try to limit the virus's spread. 19 For instance, the prison has implemented health screening measures for various groups of inmates, staff, and civilians. 20 These are all good efforts.
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19 Doc. 10 at 7-11. 20 Id. at 8-9. *3 However, once the virus is inside the prison, as it already is at Elkton, screening measures can only be so effective. And screening will only help to identify individuals with active symptoms, not those asymptomatic individuals who can nevertheless spread the virus undetected.
Respondents have also implemented “modified operations” to somewhat reduce inmate contact with each other. Elkton allows inmate housing units of 150 to pick up pre-packaged meals, receive dispensed medications, and visit the commissary with only a single housing unit moving around the institution at one time. 21 Better practices, but not enough.
21 Doc. 10 at 21. Respondents attempt to liken each housing unit to a “family unit.” They say that each unit is akin to unincarcerated community members who live with roommates or family. 22 They say that each housing unit is separate from other units, visitors, and sick inmates. 23
22 Id. at 21-22. 23 Id. But each single housing unit includes about 150 people. 24 Respondents ignore that some unit inmates nonetheless circulate throughout the prison as “essential” workers. Because some untested inmates circulate throughout Elkton, the housing units are not truly isolated. And with 150 “family members,” there are significant opportunities to increase the risk of spread. Within each housing unit there seems to be little chance of obstructing the spread of the virus.
24 Id. Respondents say that soap and disinfectant are readily available, a fact that Petitioners dispute. 25 However, these supplies can only be so useful in an environment where the inmates are constantly in close proximity to one another. Likewise, the education about hygiene and social distancing Respondents tout is only effective if the inmates have the supplies and physical space to put such knowledge into practice. 26
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25 Compare Doc. 10 at 27, with Doc. 1 at 17. 26 Doc. 10 at 11-12. Furthermore, while the deteriorating health conditions at Elkton pose a danger for each of the 2,400 men who are incarcerated at Elkton, the institution's inability to stop the spread of the virus among the inmates in its care poses an even greater risk for inmates whose medical conditions put them at higher risk of death if they contract the virus. 27
27 See generally Briefs for Disability Rights Ohio and Public Health and Human Rights Experts as Amici Curiae Supporting Petitioners, Docs. 8-1 and 14-1.
Plus, while this litigation concerns Elkton's conditions for its inmates, the same conditions endanger prison staff, who must continue to go to work despite the virus's spread throughout the facility. And the Elkton spread endangers the staff's families who come into contact with Elkton's undoubtedly exposed staff.
In light of these realities, Petitioners, inmates at Elkton, bring the present action. They sue on behalf of themselves and on behalf a class of all current and future Elkton inmates. 28
28 Doc. 1 at 29. They bring additional claims on behalf of the “Medically-Vulnerable Subclass,” defined as:
[A]ll current and future persons incarcerated at Elkton over the age of 50, as well as all current and future persons incarcerated at Elkton of any age who experience: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS or prolonged use of corticosteroids and other immune weakening medications; severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease. 29
29 Id.
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*4 Petitioners seek certification of the classes. In addition, they request:
a temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Respondents to identify within six (6) hours of the Court's order, and submit to the Court a list of, all MedicallyVulnerable Subclass Members, and release all such persons within twenty-four (24) hours, with such release to include supports to ensure social distancing and other expert-recommended measures to prevent the spread of coronavirus. 30
30 Doc. 1 at 36. Petitioners define release as “discharge of incarcerated persons from the physical confines of Elkton, not necessarily release from custody.” 31 Petitioners suggest that “[r]elease options may include, but are not limited to: release to parole or community supervision; transfer furlough (as to another facility, hospital, or halfway house); or non-transfer furlough, which could entail a release person's eventual return to Elkton once the pandemic is over and the viral health threat abated.” 32
31 Id. at 2 n. 2. 32 Id. at 2. In other words, Petitioners seek an “enlargement.” Enlargement is not release, although some courts refer to it using the terms release or bail. 33 When a court exercises its power to “enlarge” the custody of a defendant pending the outcome of a habeas action, the BOP maintains custody over the defendant, but the place of custody is altered by the court. 34
33 See Declaration of Professor Judith Resnik Regarding Provisional Remedies for Detained Individuals at 8, Money et al. v. Jeffreys, No. 1:20-cv-02094 (N.D. Ill. April 4, 2020), ECF No. 24-3.
34 Id. After the release of the subclass, Petitioners request “a plan, to be immediately submitted to the Court and overseen by a qualified public health expert” that provides for mitigation efforts in line with CDC guidelines and a housing and/or public support plan for released inmates. 35 They also
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seek the release of Class Members so that the remaining inmates can follow CDC guidance to maintain six feet of space between them while in the prison. 36
35 Doc. 1 at 36-37. 36 Id. at 37. Respondents respond that Petitioners cannot challenge the conditions inside the prison through a habeas corpus action and that this Court and the BOP do not have the authority to grant early release. 37
37 Doc. 10 at 15-19.
II. Discussion [1] District courts have inherent authority to grant enlargement to a defendant pending a ruling on the merits of that defendant's habeas petition. 38 The Court finds that the exceptional circumstances at Elkton and the Petitioners' substantial claims, that are likely to succeed at the merits stage, necessitate the exercise of that authority and that such relief is proper for members of the subclass defined infra. 39
38 See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990).
39 Dotson, 900 F.2d at 79. However, given the nature of the present litigation as class action habeas proceeding, the Court is unable to determine the specific type of enlargement most suitable for each subclass member. In light of this difficulty, the Court will grant a preliminary injunction, in aid of its authority to grant enlargements, ordering Respondents to determine the appropriate means of transferring medically vulnerable subclass members out of Elkton. Pursuant to the below analysis, the Court finds that Petitioners have met the standard for a preliminary injunction.
A. Jurisdiction *5 Petitioners argue that Elkton's inability, even if it tried, to adequately protect the inmates from the risks posed by coronavirus subjects the prisoners to substantial risk of harm in violation of their Eighth Amendment rights. Petitioners say that their claim is cognizable under 28 U.S.C. § 2241
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as a habeas action because they are challenging the execution of their sentences, rather than the validity of the convictions themselves. 40 Petitioners argue that they are not seeking to challenge a specific aspect of their confinement, but the confinement itself. 41
40 Doc. 1 at 34-35. 41 Doc. 18 at 8-9. Respondents argue that habeas relief is not the proper vehicle to challenge conditions of confinement. 42
42 Doc. 10 at 15-16. Courts have attempted to clarify the types of claims appropriate for habeas relief and distinguish those claims from civil rights claims more appropriately resolved under § 1983. The general result has been that challenges to the fact or duration of confinement that seek release sound in habeas whereas actions challenging the conditions of confinement raise concerns properly addressed under § 1983. 43
43 See Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus...requests for relief turning on circumstances of confinement may be presented in a § 1983 action.”); Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
But, these seemingly bright line rules are difficult to apply in practice. The near impossibility in some cases of drawing such distinctions has become even more obvious with COVID-19. Whereas many medical needs claims might appropriately be addressed through § 1983 litigation, claims concerning COVID-19 are not so easily classified as § 1983 claims.
Inmates challenging BOP's COVID-19 response challenge the dangerous conditions within the prison created by the virus. However, the only truly effective remedy to stop the spread is to separate individuals—a measure that in our nation's densely populated prisons is typically impossible without the release of a portion of the population. So, such actions ultimately seek to challenge the fact or duration of confinement as well. 44
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44 Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020). Two federal district courts have noted without deciding that claims such as those brought by Petitioners might be cognizable as habeas claims because the relief sought would affect the duration of confinement or because the conditions complained of could not be eliminated without releasing the inmates from detention. See A.S.M. v. Donahue, No. 7:20-CV-62, 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020); Mays, 2020 WL 1812381 at *6.
In this case, the Petitioners frame their action as a § 2241 habeas claim. 45 The Sixth Circuit, echoing the distinctions recognized by other courts, has found that “ § 2241 is not the proper vehicle for a prisoner to challenge conditions of confinement.” 46 However, the Sixth Circuit has also held “ § 2241 is appropriate for claims challenging the execution or manner in which the sentence is served.” 47
45 Whereas other petitioners bringing COVID-19-related challenges have pleaded both habeas and § 1983 claims in the alternative, Petitioners do not do so here.
46 Luedtke v. Berkebile, 704 F.3d 465, 465-66 (6th Cir. 2013) (citing two additional Sixth Circuit cases that found the same).
47 United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
*6 Petitioners' action evades easy classification. Part of the difficulty rests in Petitioners' differing relief requests for the class and subclass. For the significantly vulnerable subclass the Petitioners seek immediate release, arguing that for the medically vulnerable inmates continued imprisonment at Elkton is unconstitutional given the COVID-19 outbreak.
Notably, these Petitioners do not seek a commutation of their sentences, but rather to serve their sentences in home confinement, parole, or in half-way houses at least until the risk of the virus has abated. This claim is closer to a challenge to the manner in which the sentence is served and is therefore cognizable under 28 U.S.C. § 2241.
For the remainder of the less-obviously-vulnerable class the challenges sound more as a confinement conditions claim. Petitioners seek the oversight of a public health expert to mitigate the risk COVID-19 poses to class members that remain incarcerated at Elkton. Because the not medically vulnerable Elkton inmates seek an alteration to the confinement conditions, the claims are more like § 1983 claims.
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Because Petitioners have brought their claims as a habeas petition, the Court may only properly address those claims suitable for habeas relief. The remainder of this order addresses the habeas claims of the vulnerable subclass alone.
B. Class Certification Given the emergency nature of this proceeding, a class certification determination has not yet taken place. That does not, however, preclude Petitioners from obtaining class-wide interim relief at this stage. “[T]here is nothing improper about a preliminary injunction preceding a ruling on class certification.” 48 This Court may grant preliminary injunctive relief to a conditional class.
48 Gooch v. Life Investors Ins. Co. of America, 672 F.3d 402, 433 (6th Cir. 2012).
As a preliminary matter, the Court finds that the Petitioners' subclass definition is likely too broad. Although the risk of complications from COVID-19 is serious for all inmates, the Court limits the subclass to those identified by the CDC as being at higher risk. 49 This includes all Elkton inmates 65 years or older and those with documented, pre-existing medical conditions, including heart, lung, kidney, and liver conditions, diabetes, conditions causing a person to be immunocompromised (including, but not limited to cancer treatment, transplants, HIV or AIDS, or the use of immune weakening medications), and severe obesity (body mass index of 40 or higher). 50 The subclass definition excludes those whose only risk factor is a history of smoking, given the difficulty of documenting such occurrence and identifying those individuals through BOP records alone.
49 The Court has “broad discretion to modify class definitions.” Ball v. Kasich, 307 F. Supp.3d 701, 718 (S.D. Ohio 2018).
50 CDC, Coronavirus Disease 2019: People Who Are At Higher Risk, https://www.cdc.gov/ coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited April 20, 2020).
Under Federal Rule of Civil Procedure 23(a), a class must meet the requirements of numerosity, commonality, typicality, and adequate representation. Additionally, one of Rule 23(b)'s requirements must also be satisfied.
Petitioners have made a sufficient showing at this stage to satisfy the Rule 23(a) factors for the above-defined subclass.
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*7 Numerosity: The subclass consists of hundreds of Elkton inmates. 51
51 In accordance with the Court's order, dated April 17, 2020, Respondents submitted for in camera review, lists of Elkton inmates with certain medical conditions. Although the Court cannot say with certainty the exact number of inmates who comprise the subclass, it is satisfied that the number is in the hundreds.
[2] [3] Commonality: “Commonality requires [Petitioners] to demonstrate that the class members have suffered the same injury.” 52 “Their claims must depend upon a common contention...of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” 53 This inquiry focuses on whether a class action will generate common answers that are likely to drive resolution of the lawsuit. 54
52 Ball, 307 F. Supp.3d at 719 (quoting Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011)).
53 In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 852-53 (6th
Cir. 2013) (citing Dukes, 564 U.S. at 350, 131 S.Ct. 2541). 54
Id. [4] In this case, all subclass members have been subjected to dangerous conditions in which they run a high risk of exposure to the deadly COVID-19 virus. The inquiry driving the litigation is whether the BOP's failure to create safe conditions for inmates with especially vulnerable health has violated those inmates' rights. Answering this question will determine whether the inmates are entitled to movement from Elkton.
Respondents argue that the subclass lacks commonality given the class's combination of “inmates that have different crimes, sentences, outdates, disciplinary histories, ages, medical histories, proximities to infected inmates, availability of a home landing spot, likelihoods of transmitting the virus to someone at home detention, likelihoods of violation or recidivism, and dangers to the community.” 55
55 Doc. 10 at 36-37.
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However, the Petitioners seek varied relief that allows the BOP to make individualized determination as to where each subclass member should be placed. Petitioners do not seek to open the prison gates to allow its inmates to run free. In fact, Petitioners concede that “release” might look different for different inmates. The Petitioners acknowledge that while some inmates might be placed in home confinement others should be furloughed and that in all instances such “release” could be temporary. 56
56 Doc. 1 at 2 n. 2. The motivating question in the litigation is whether the subclass members' rights are being violated by the deteriorating conditions at Elkton. As such, the subclass can satisfy commonality.
[5] [6] Typicality: “Typicality is met if the class members' claims are ‘fairly encompassed by the named plaintiffs' claims.’ ” 57 Three of the named Petitioners have documented medical issues that are commiserate with those suffered by the subclass. The fourth named Petitioner, Maximino Nieves, could represent that class, but not the subclass, as he attests that he doesn't have a serious medical history. 58 Excepting Nieves, nothing suggests that the remaining three Petitioners' claims are distinct from those of the remainder of the subclass. Typicality is satisfied. 59
57 In re Whirlpool, 722 F.3d at 852 (citation omitted).
58 Doc. 1-8 at 2. 59 Respondents argue that the named Petitioners defy typicality because they are all ineligible
for home confinement. This contention ignores the fact that other means of removal from Elkton might be available to the named Petitioners other than home confinement, such as transfer to another facility. *8 Adequate Representation: The Court is satisfied that counsel is competent to represent the class. Additionally, the interests of the named Petitioners do not conflict with those of the other subclass members.
[7] Having satisfied the Rule 23(a) requirements, the subclass must also demonstrate that it meets one of the Rule 23(b) requirements. Petitioners argue that “Respondents have acted on grounds generally applicable to all proposed Class members, and this action seeks declaratory and injunctive relief.” 60 Indeed, Respondents' failure to protect the inmates from the spreading
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virus applies to the entirety of the subclass generally and injunctive relief is appropriate as to the subclass. Rule 23(b)(2) is therefore satisfied.
60 Doc. 1 at 31. For the purposes of the preliminary injunction inquiry, the Court finds that the subclass as defined in this order likely meets the requirements for class certification.
C. Injunctive Relief [8] “Four factors guide a district court's decision to issue a preliminary injunction: whether the plaintiffs will likely win down the road, whether an injunction would prevent the plaintiffs from being irreparably harmed, whether an injunction would harm others, and how the injunction would impact the public interest.” 61 The Court considers each in turn.
61 McNeil v. Community Prob. Servs., LLC, 945 F.3d 991, 994 (6th Cir. 2019).
1. Likely Success
Petitioners' claims are predicated on a violation of their Eighth Amendment rights which protects them from “cruel and unusual punishments.” In order to succeed on an Eighth Amendment claim, Petitioners must satisfy both an objective and subjective component. 62
62 Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005).
[9] “The objective component of the test requires the existence of a ‘sufficiently serious’ medical need.” 63 Petitioners obviously satisfy this component. At this moment a deadly virus is spreading amongst Elkton's population and staff. For infected inmates, the virus can lead to pneumonia. In the worse pneumonia cases, COVID-19 victims suffer diminishing oxygen absorption, with resulting organ failure leading to death. Victims choke to death. While not every inmate who contracts the virus will die, the subclass members are at a much greater risk of doing so. They have a very serious medical need to be protected from the virus.
63 Id. (citing Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004)).
[10] The subjective component requires that Respondents have acted with deliberate indifference, “a degree of culpability greater than mere negligence, but less than ‘acts or omissions for the very
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purpose of causing harm or with knowledge that harm will result.’ ” 64 Petitioners satisfy this standard.
64 Id. at 813 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994)). While Respondents offer certain prison-practice changes to show they know COVID-19 risks and have sought to reduce those risks, the Court still finds that, at this preliminary stage of the litigation, the Petitioners have sufficiently met the threshold for showing that Respondents have been deliberately indifferent.
One only need look at Elkton's testing debacle for one example of this deliberate indifference. Additionally, Elkton has altogether failed to separate its inmates at least six feet apart, despite clear CDC guidance for some time that such measures are necessary to stop the spread and save lives.
*9 [11] Having met both prongs of the Eighth Amendment analysis, Petitioners have demonstrated a likelihood of success on the merits.
2. Irreparable Harm
Respondents argue that Petitioners have not shown that release will reduce the risk of exposure to COVID-19. But the district court cases Respondents use that have found that release would not lessen the risk to a defendant's health did not deal specifically with Elkton confinement. 65 Of the reported inmate deaths in nation-wide BOP custody, 6 out of 23, more than 1 in 4, has occurred at Elkton, making it a hotspot for the virus and certainly more dangerous than other facilities. 66
65 United States v. Taylor, No. 5:19-CR-192-KKC-MAS, 2020 WL 1501997, at *5 (E.D. Ky. Mar. 26, 2020) (noting that the Court believed that the practices at “any facility” were sufficient to protect from COVID-19); United States v. Steward, 2020 WL 1468005, at *1 (S.D.N.Y. Mar. 26, 2020) (denying release from Metropolitan Correctional Center).
66 Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited April 22, 2020).
[12] Respondents also argue that the Petitioners' harm is speculative. It is true that some subclass members may not die if they contract the virus. However, it is more than mere speculation that the
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virus will continue to spread and pose a danger to inmates if BOP does not increase its efforts to stop the spread. 67 Petitioners have therefore shown a risk for irreparable harm.
67 See Doc. 14-1 at 5-10 (describing the inadequacy of the Elkton measures and the risk of spread within the prison environment).
3. Harm to Others Respondents argue that the release of inmates from Elkton “would cause substantial damage to others” because there is no assurance that the inmates can care for themselves upon release. 68 They argue the inmates might be left without access to food, shelter, or medical care. 69
68 Doc. 10 at 3. 69 Id. at 3, 33-34. [13] As stated previously, Petitioners do not ask this Court to throw open the gates to the prison and leave the inmates that are released to fend for themselves. Instead, Petitioners seek “release” that consists of moving vulnerable inmates to various other types of confinement so that they are no longer at risk of dying from the virus. And as Respondents acknowledge, it is BOP's current policy to quarantine all inmates that are transferred from Elkton for 14 days before transfer. 70 The continued implementation of this policy reduces the risk that an inmate with COVID-19 will carry the virus with him outside of the prison.
70 Doc. 10-2 at 7. Furthermore, there is a continued risk of harm to others, including prison staff, if inmates remain in the prison and the virus continues to thrive among the dense inmate population.
4. Public Interest Respondents argue that the public faces a grave danger if inmates are to be released en masse onto the streets. They say:
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Our over-burdened police and safety services should not be forced to deal with the indiscriminate release of thousands of prisoners on the streets without any verification that those prisoners will follow the laws when they are released, that they will have a safe place to go where they will not be mingling with their former criminal associates, and that they will not return to their former ways as soon as they walk through the prison gates. 71
71 Doc. 10 at 41-42. *10 First, Respondents might as well be arguing against the release of any inmate, at any time, for any reason, because even in the best of circumstances the country's criminal justice system has no way, short of life imprisonment, of ensuring former prisoners do not recidivate. The COVID-19 pandemic has not suddenly raised this issue.
Third, the danger of recidivism reduces with age, especially after age 40. 72 The subclass inmates are older and by definition, the vulnerable sub-class inmates suffer serious medical conditions.
72 See generally United States Sentencing Commission, The Effects of Aging on Recidivism Among Federal Offenders, (Dec. 2017), https://www.ussc.gov/research/research-reports/ effects-aging-recidivism-among-federal-offenders.
Second, it bears repeating that the Petitioners are not asking the Court to dump inmates out into the streets. No one's interest would be served in doing so. The Court is confident that the transfer of prisoners from Elkton to other means of confinement could accomplish the goal of protecting Elkton's vulnerable population while also protecting public safety.
Third, six Elkton inmates have already died. Likely, they died after agonizing days under intensive care, most probably with ventilators. The BOP absorbs the high cost of this treatment—costs that are likely multiples of what it would have cost to test each Elkton inmate and guard.
[14] Finally, “it is always in the public interest to prevent the violation of a party's constitutional rights.” 73
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73 G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994).

D. The Prison Litigation Reform Act Respondents argue that the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, bars this Court from granting the inmates' release. 74 This is not so. The PLRA does not extend to “habeas corpus proceedings challenging the fact or duration of confinement in prison.” 75 Because the Court has determined that the subclass's claims are properly before the Court as a habeas action, this prohibition does not apply. 76

74 Doc. 10 at 16.

75 18 U.S.C. § 3626(g)(2).

76 See

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

2254, and 2255 filings have been deemed not covered by the PLRA.”).

Additionally, Respondents argue that a release order may only be entered by a three-judge court and that the court must find that “crowding is the primary cause of the violation of a Federal right” and “no other relief will remedy the violation.” 77 As stated previously the PLRA does not bar this habeas proceeding. However, even if it did, the Court is not ordering the release of the prisoners. Instead, the inmates will remain in BOP custody, but the conditions of their confinement will be enlarged.

77 18 U.S.C. § 3626(a)(3)(E).

III. Conclusion The Court GRANTS IN PART and DENIES IN PART Petitioners' motion for relief.
The Court orders the Respondents to identify, within one (1) day all members of the subclass as defined in this Order. Respondents must identify in the list each subclass member's sentencing court and the case number of their underlying criminal conviction.
Following identification, the Court orders Respondents to evaluate each subclass member's eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two (2) weeks.

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*11 In undertaking this evaluation, Respondents will prioritize the review by the medical threat level. For example, older inmates with heart, pulmonary, diabetes or immunity risks should receive review priority over subclass members who are younger.
Subclass members who are ineligible for compassionate release, home release, or parole or community supervision must be transferred to another BOP facility where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished. In transferring subclass members, Respondents must continue to comply with BOP policy of quarantining inmates for 14 days prior to transfer out of Elkton.
Any subclass members transferred out of Elkton may not be returned to the facility until the threat of the virus is abated or until a vaccine is available and Elkton obtains sufficient vaccine supplies to vaccinate its population, whichever occurs first.
IT IS SO ORDERED.

All Citations --- F.Supp.3d ----, 2020 WL 1940882
End of Document

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Mays v. Dart, --- F.Supp.3d ---- (2020) 2020 WL 1987007
2020 WL 1987007 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division.
Anthony MAYS, individually and on behalf of a class of similarly situated persons; and Judia Jackson, as next friend of Kenneth Foster, individually and on behalf of a class of similarly situated persons, Plaintiffs-Petitioners,
v. Thomas DART, Defendant-Respondent.
Case No. 20 C 2134 |
04/27/2020
Attorneys and Law Firms
Alexa Van Brunt, Locke E. Bowman, III, MacArthur Justice Center, Steven Grimes, Thomas Francis McAndrew, Winston & Strawn LLP, Stephen H. Weil, Sarah Copeland Grady, Loevy & Loevy, Chicago, IL, Alec Karakatsanis, Pro Hac Vice, Next Charles Lewis Gerstein, Pro Hac Vice, Civil Rights Corps, Washington, DC, for Plaintiffs-Petitioners.
James Matthias Lydon, Robert Thomas Shannon, Adam Robert Vaught, Gretchen Harris Sperry, Lari Ann Dierks, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant-Respondent.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge: 1
1 Judge Kennelly is addressing this matter as emergency judge pursuant to paragraph 5 of Second Amended General Order 20-0012.
*1 Anthony Mays and Kenneth Foster, both of whom are detained at Cook County Jail while awaiting trial on criminal charges, have sued Cook County Sheriff Thomas Dart, who operates the Jail, on behalf of a class of similarly situated persons. Mays and Foster allege the Sheriff has violated the constitutional rights of persons detained at the jail by failing to provide them with reasonably safe living conditions in the face of the current coronavirus pandemic. They assert claims under 42 U.S.C. § 1983 and for writs of habeas corpus under 28 U.S.C. § 2241.
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On April 9, 2020, the Court granted the plaintiffs' motion for a temporary restraining order in part. The Court directed the Sheriff to: (1) establish and implement, within two days' time, a policy requiring prompt coronavirus testing of detained persons with symptoms consistent with coronavirus disease; (2) within two days' time, eliminate the use of “bullpens” to hold groups of new detainees during the intake process; (3) begin to provide inmates and staff, within one day, soap and/or hand sanitizer sufficient to enable them to frequently clean their hands, and sanitation supplies sufficient to enable them to regularly sanitize surfaces in areas used in common; (4) establish and carry out, within two days' time, a policy requiring sanitation of all such surfaces between each use; and (5) within three days' time, distribute facemasks to all detained persons quarantined due to their exposure to a person exhibiting symptoms consistent with coronavirus disease. The Court overruled the plaintiffs' request for additional temporary relief, including a mandate for implementation of “social distancing” throughout the Jail and to provide facemasks to every detained person. The Court also concluded that the plaintiffs seeking habeas corpus relief had failed to exhaust available state court remedies.
The plaintiffs have now moved for entry of a preliminary injunction and other relief. They again seek writs of habeas corpus, based on newly discovered facts that they contend provide a basis to excuse their failure to exhaust state court remedies. They also seek conversion of the temporary restraining order to a preliminary injunction, and they again request an order requiring implementation of social distancing throughout the Jail, as well as transfer of detained persons from the Jail to other locations within the Sheriff's control, including electronic home monitoring. The plaintiffs also request the convening of a three-judge court under the Prison Litigation Reform Act to consider entering a “prisoner release order” within the meaning of that statute.
For the reasons stated below, the Court converts the terms of the temporary restraining order to a preliminary injunction and enters further preliminary injunctive relief regarding social distancing but denies the plaintiffs' other requests for relief.
Factual Background
*2 The following discussion of relevant facts concerning coronavirus, the Cook County Jail facilities, and the parties' claims and defenses is taken from undisputed facts, the affidavits and documentary evidence submitted by the parties, and the testimony and exhibits offered at the evidentiary hearing held on April 23, 2020.
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A. The coronavirus pandemic The rapid global spread of the novel coronavirus has led to a pandemic of extraordinary scale. The Court's decision on the plaintiffs' motion for a temporary restraining order includes a discussion of the gravity of the public health threat associated with this virus. Mays v. Dart, No. 20 C 2134, ––– F.Supp.3d ––––, ––––, 2020 WL 1812381, at *2 (N.D. Ill. Apr. 9, 2020).
Symptoms of the disease caused by the novel coronavirus—what has come to be known as COVID-19, which the Court will refer to as coronavirus disease—include fever, cough, and shortness of breath, and the health effects can be very severe, including serious damage to the lungs and other internal organs, and death. People who are sixty-five years of age or older and those with certain pre-existing health conditions, including chronic lung disease, moderate to severe asthma, serious heart conditions, diabetes, chronic kidney disease, liver disease, a body mass index of forty or higher, and other conditions have a heightened vulnerability to severe illness if they contract the coronavirus.
The rapid transmission of coronavirus has been attributed to several characteristics. Respiratory droplets containing the virus emitted by an infected person, though coughing or sneezing for example, can travel several feet and may persist in the air for several hours. In addition, because the virus can persist on some surfaces for up to three days, transmission can occur even without physical proximity to an infected person. Moreover, those who contract the virus may be asymptomatic for days or even for the entire duration of the infection but can still transmit the virus to others, making it more challenging to readily identify infected individuals and respond with necessary precautions.
There is currently no known effective treatment for coronavirus disease and no vaccine to prevent people from contracting it. Medical professionals and public health experts agree—and the evidence in this case demonstrates beyond peradventure—that the only way to curb the spread of the virus is through a multi-faceted strategy that includes testing to identify those who have been infected; isolation of those who test positive or develop symptoms consistent with the disease; quarantining those who may have come into contact with the virus; frequent sanitation of surfaces; frequent handwashing; and use of personal protective equipment (PPE) such as facemasks. And a key tactic recommended by public health experts to curb the spread of coronavirus disease has been to keep people apart from each other—what has come to be known as “social distancing.” The Centers for Disease Control's Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Guidelines”), 2 defines social distancing as “the practice of increasing the space between individuals and decreasing the
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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.
2 The Guidelines were issued on March 23, 2020 and are available at https://www.cdc.gov/ coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf.
*3 Social distancing has effectively been mandated by most state governments as a critical strategy in combatting the pandemic. Here in Illinois, the state has been under a statewide stayat-home order first imposed by Governor J.B. Pritzker effective March 20, 2020, the goal of which is to limit person-to-person contacts to curb transmission of the virus. Activities not deemed “essential” have been shut down. People have been strongly urged, and in many situations directed (by governments, employers, commercial establishments, and so on) to maintain space between themselves and others. In addition, the wearing of PPE, primarily facemasks, has been strongly advised and now required in some situations, particularly when people may come into contact with others.
The effect of the stay-at-home orders imposed in Illinois and most other states, along with advice by national officials to limit contacts and group activities, has been dramatic: schools have been closed; commercial establishments and workplaces have ceased operations, resulting in massive job losses; public events have largely been cancelled; and access to public spaces has been limited or barred entirely. Entire sectors of the national economy have slowed to a snail's pace. Society has paid a very high price to curb the spread of this highly contagious virus.
B. Operation of the Cook County Jail The Sheriff runs the Cook County Jail. As the Court stated in its written decision on the plaintiffs' motion for a temporary restraining order (TRO), the Jail is “a very large physical facility— actually a campus of separate physical facilities—whose population, if one considers including both detainees and staff, is the size of a small (but not all that small) town.” Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *1. Managing the Jail is extraordinarily challenging because of the size of its population and physical facilities, the diverse needs of the detainees, the Sheriff's public safety obligations, and his obligations to the criminal justice system. The Sheriff's public safety obligations require him to consider the appropriate custodial conditions for each detained person. As the Court has noted, the Jail's population “runs the gamut from persons with lengthy criminal records who are accused of committing violent crimes to non-violent offenders in custody for the first time who, perhaps, remain in custody only because they and their families were unable to post bond money.” Id. And the Sheriff's obligations to the people in his custody, most of whom are detained awaiting trial on crimes for which they are therefore entitled to a presumption of innocence, require him to provide care sufficient to account for each individual's physical and
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mental health conditions. This is no small task, particularly given that populations in custody are statistically more likely to have adverse health conditions, both physical and mental.
Adding an infectious disease outbreak to these conditions further complicates the difficult challenge of managing the Jail. The very nature of the Jail's setup and day-to-day operations facilitates rapid transmission of communicable diseases like the one caused by the coronavirus. First, the Jail's physical facilities are designed to accommodate large populations, all densely housed, and many in congregate settings. In particular, the Jail has many so-called “dormitory” units, which in normal times may house as many as hundreds of detained persons in a single room with closely-spaced bunk beds.
Second, the Jail is a closed environment with many spaces used in common. Persons detained there—even those housed in single-occupancy cells—do not have individual bathing facilities; toilets are typically used in common; they eat in groups under normal circumstances; and they come into contact with each other and with correctional officers in other common areas. And even when confined, detainees are in close proximity, in adjoining cells and in tiers that use a common ventilation system.
*4 Third, the routine operations of the Jail require high levels of movement of people. Detained persons must be escorted from their cells to common areas like shower and bathroom facilities. In normal times they are escorted to court hearings and recreational areas (all or nearly all of which have come to a stop). Finally, large numbers of staff personnel, as well as vendors, move in and out of the Jail and its various areas on a daily basis. In doing so, these individuals have contact with other members of the community at large, who themselves may have contracted coronavirus. Thus staff members and contractors potentially can carry the virus both into and out of the Jail.
Limiting exposure to the coronavirus in the Jail is therefore a significant challenge. Infection rate data reflects that it has been challenging to effectively curb transmission of the highly infectious coronavirus in the setting of the Jail. As of April 6, 2020, the infection rate within the Jail was an order of magnitude higher than the rate of infection in Cook County. Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *8. And on April 8, 2019, the New York Times reported that, at that time, the Jail was the largest-known source of coronavirus infections in the United States. See Timothy Williams and Danielle Ivory, Chicago's Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars (April 8, 2020), N.Y. Times, https://www.nytimes.com/2020/04/08/us/coronavirus-cook-countyjail-chicago.html (last updated April 23, 2020).
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Procedural History
A. Plaintiffs' suit and motion for a temporary restraining order The plaintiffs, Anthony Mays and Kenneth Foster, are detained at the Cook County Jail and have been housed on tiers in which at least one person had been infected with the coronavirus. On April 3, 2020, they sued the Sheriff on behalf of themselves and others similarly situated, with allegations stemming from the risks the coronavirus poses to their health. The plaintiffs seek to represent a class and two putative subclasses. The class consists of “all people who are currently or who will in the future be housed in the Cook County Jail for the duration of the COVID-19 pandemic.” Compl. (dkt. no. 1) ¶ 60. “Subclass A consists of all people who, because of age or previous medical conditions, are at particularly grave risk of harm from COVID-19.” Id. ¶ 61. “Subclass B consists of all people who are currently housed on a tier where someone already tested positive for the coronavirus.” Id. ¶ 62. Mays and Foster both have medical conditions that heighten their risk of serious health consequences from an infection by the coronavirus.
In their complaint, the plaintiffs alleged that because the Sheriff was not implementing measures to control the spread of the coronavirus at the Jail, especially those recommended in the CDC Guidelines, the conditions in the Jail facilitated rapid transmission, putting the health of detained persons at great risk. In support of this contention, the plaintiffs attached several affidavits to their complaint from individuals who had spoken to persons detained at the jail. These affidavits reported the following conditions at the Jail in late March and early April:
• detained persons were not receiving soap, hand sanitizer, or facemasks;
• facemasks that they made for themselves out of cloth were being confiscated;
• detainees were being housed in bunks or beds that were between two and four feet apart from each other;
• many detained persons were living in dormitory-style housing, where dozens of individuals shared a single room;
• detained persons were being held at intake in so-called bullpens, where numerous detainees were held together for extended periods in a crowded cell; and
*5 • the Jail's staff was not regularly sanitizing common surfaces or providing detainees with cleaning supplies to do this themselves.
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The day they filed suit, the plaintiffs moved for the issuance of writs of habeas corpus for the members of subclass A and for a TRO or preliminary injunction on behalf of the class as a whole, requiring the Sheriff to take action to control the rapid spread of the coronavirus at the Jail. The plaintiffs also moved to certify their proposed class and subclasses.
After an extended hearing on the motion for a temporary restraining order, the Court issued a written decision on April 9, 2020 denying the request for writs of habeas corpus and partially, but not entirely, granting the motion for a TRO. Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *6, 14–16. In ruling on this motion, the Court considered the affidavits from medical experts, individuals who had spoken to detainees, and those from Jail officials and employees. The Sheriff had raised a hearsay objection to the Court's consideration of the affidavits from individuals who had spoken to detainees, but hearsay may be considered in ruling on a motion for a TRO or for a preliminary injunction. See SEC v. Cherif, 933 F.2d 403, 412 n.8 (7th Cir. 1991). 3 The TRO directed the Sheriff to take the following actions: (1) establish and implement a policy requiring prompt testing of symptomatic detainees, and—if medically appropriate and feasible based on the availability of testing materials—detainees who may have been exposed to the virus; (2) implement social distancing during intake and suspend the use of bullpens to hold detained persons awaiting intake; (3) provide all detained persons with adequate soap or sanitizer for hand hygiene; (4) provide staff personnel and detained persons with adequate cleaning supplies to regularly sanitize surfaces and objects, including in high-traffic areas such as shower facilities; (5) establish a policy requiring frequent sanitation of these areas; and (6) provide facemasks to all detained persons in quarantine. Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *14–15.
3 “Given its temporary nature, ‘a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.’ ” FTC v. Lifewatch Inc., 176 F. Supp. 3d 757, 761 (N.D. Ill. 2016) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)). The same, of course, is true of a TRO.
The Court denied several of the plaintiffs' requests for relief. They sought an order mandating social distancing throughout the facility, not just at intake, arguing that this was one of the critical outbreak control measures outlined in the CDC Guidelines. Id. at ––––, at *10. The Court declined to mandate social distancing beyond intake, reasoning that there are space constraints at the Jail and the Guidelines expressly recognized that social distancing may not be feasible in a correctional facility. Id. The Court also declined the plaintiffs' request for direct screening of medically vulnerable detainees before they show symptoms of infection, also because the CDC Guidelines did not mandate this. Id. In addition, the Court denied the plaintiffs' request to require the Sheriff issue facemasks to every detained person, as the CDC Guidelines recommended this
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only for those who had come into contact with a symptomatic individual. Id. at ––––, at *12, 15. Finally, the Court declined the plaintiffs' request to transfer the members of subclass B to a safe facility or other forms of custody, because the plaintiffs had failed to show that the other protective measures that the Court had ordered would be inadequate to protect detained persons from the health risks associated with the coronavirus outbreak. Id. at ––––, at *15. The Court also declined subclass A's request for emergency writs of habeas corpus, concluding that they had failed to exhaust available state court remedies. Id. at ––––, at *6.
B. The Sheriff's response and current conditions at the Jail
1. April 13 status report *6 On April 13, pursuant to the Court's direction, the Sheriff filed a status report regarding compliance with the TRO. First, with respect to the directive to test symptomatic detainees, the Sheriff reported that Cermak Health Services, an arm of Cook County that provides healthcare to persons detained at the Jail, maintains the supplies for medical testing and actually administers such tests. 4 According to the Sheriff, Cermak had determined that it would not be medically appropriate to test all detained persons in quarantine. The Sheriff therefore instructed his personnel to isolate and refer symptomatic detainees to Cermak for further evaluation and testing.
4 From a chain-of-command standpoint, Cermak is under the control of Cook County, not the Sheriff.
As to the order to maintain social distancing during the Jail's intake process, the Sheriff implemented a modified procedure that maintains six feet of distance between all detained persons awaiting intake and provides them with facemasks. Use of the bullpens was discontinued.
Regarding the order to distribute facemasks, the Sheriff stated that he had acquired and on hand sufficient surgical masks to distribute to all quarantined detainees and employees and that he was continuing his efforts to obtain additional masks. Additionally, the Sheriff was in the process of procuring cloth masks that would be available to any detained person who requested one.
The Sheriff further reported that on April 9, he delivered approximately 28 gallons of hand sanitizer and 980 bars of soap for distribution in the Jail. He also ordered distribution of soap and sanitizer twice per week going forward. The Sheriff noted concern that some detained persons may use the soap or hand sanitizer as a weapon and that some might try to consume hand sanitizer. These considerations required the Sheriff to determine on a detainee-by-detainee basis whether to distribute hand sanitizer or soap.
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With respect to the sanitation-related directives in the TRO, the Sheriff reported that he had distributed cleaning supplies to staff and detained persons on April 10. He also issued a sanitation policy to ensure that frequently touched areas such as doorknobs and phones are sanitized between uses. He issued another a policy requiring each living unit officer to ensure that surfaces are routinely cleaned and sanitized during the officer's shift. Additionally, the Sheriff stated that he was planning to hire an independent contractor to professionally clean the Jail.
2. April 17 updates from the Sheriff On April 17, three days after the Sheriff submitted his status report, officials from the Chicago Department of Public Health (CDPH), including one designated as a CDC epidemic intelligence service officer, inspected the Jail. These officials had toured the Jail roughly a month prior, on March 20, and issued recommendations for controlling COVID-19 at the Jail. A report from this inspection, dated March 27, was introduced in connection with the preliminary injunction hearing held on April 23. The March 27 recommendations from the CDPH included screening and classifying inmates based on their level of risk associated with coronavirus disease and “considering mass release of inmates to decompress the jail for urgent public health reasons.” Levin Dec. (dkt. no. 70) at 10.
A report from the more recent April 17 had not yet been received by the Sheriff as of the April 23 hearing. The Sheriff therefore submitted statements and testimony from two Jail officials who participated in the April site visit: Rebecca Levin, a senior public health advisor to the Sheriff, and Michael Miller, the Executive Director of the Cook County Department of Corrections. Levin stated that during the April 17 inspection, the officials commended the Jail's efforts to reduce density in housing units. Miller testified that the officials visited two of the dormitory units—Dorm 4, the largest dormitory unit, and Dorm 2—and commented positively about the organization and cleanliness of these spaces.
*7 In a declaration dated April 17, Miller also provided an update to the Sheriff's April 14 status report on efforts to control the coronavirus outbreak at the Jail. He reported that each person detained in a quarantine tier was receiving a new surgical-type facemask each day. Miller anticipated that at its current rate of consumption of masks, the Sheriff would exhaust his supplies on June 7, 2020. He added that, “as supplies permit,” the Sheriff planned to distribute masks to detainees who are not on quarantine tiers. Miller Dec., Def.'s Resp. to Renewed Mot. for Prelim. Inj., Ex. E (dkt. no. 62-5) ¶ 24.
Although the TRO did not require the Sheriff to implement social distancing beyond modifying his intake procedures, Miller reported in his April 17 affidavit that the Sheriff had engaged in a
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significant effort to increase social distancing at the Jail. Specifically, he reported the following measures: opening previously closed divisions to better distribute detainees across available space; converting housing on 175 tiers to single-occupancy cells only; limiting dormitory units to fifty percent of capacity, with the exception of detainees in medical or “restricted housing,” id. ¶ 12; and limiting the number of detained persons released into dayroom common areas to half the number assigned to that area. He reported that beds in dormitory units have been spaced so that they are at least six feet apart, and if beds are bolted to the floor, then detained persons are distributed so that there is six feet of distance between occupied beds.
Attached to Miller's declaration was a spreadsheet with the occupancy rates as of April 17 on each tier of the Jail, including units in Cermak and Division 8, the Residential Treatment Unit (RTU). Miller later explained that the RTU provides twenty-four-hour access to medical care and houses people who have medical needs (though the level of need was not described). This spreadsheet showed, apparently contrary to the statement in Miller's declaration, that some dormitory units were still occupied above fifty percent capacity. For example, Tier D of Dorm 1 in Division 2, which was not then under quarantine, was occupied at eighty-one percent capacity. In addition, many dormitory units in the RTU, Division 8, were occupied at nearly full capacity. For example, Tier 2F was occupied at ninety-seven percent capacity, and Tier 2G was occupied at one hundred percent capacity. (Also, Tiers 2Q and 2R in Division 6 were occupied at sixty percent and sixtythree percent capacity, respectively. They are not labeled as dormitory units in the spreadsheet, but they each have a forty-person capacity.)
The Sheriff submitted additional evidence reflecting that his ability to implement social distancing had increased by virtue of, among other things, a significant expansion of the electronic home monitoring program. He offered a chart showing a steady decline in the Jail's daily population over the previous month, including a reduction of roughly 230 detainees between April 9, when the Court issued the TRO, and April 17. Another chart showed a steady increase in the jail's electronic home monitoring population over the previous month, with an increase of approximately 300 detainees on electronic home monitoring between April 9 and April 17. The Sheriff also offered evidence, however, that utilization of this program had been extended to its outside limits, or nearly so, in light of the apparent exhaustion of program vendor's supply of monitoring equipment.
3. Plaintiffs' reports regarding conditions at the Jail In anticipation of the preliminary injunction hearing, the plaintiffs submitted a number of affidavits identifying problems or deficiencies in the Sheriff's compliance with the directives in the TRO. These affidavits were from individuals who had spoken to detained persons between April 14 and April 18, and they described these persons' current experiences at the Jail. According to these
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affidavits, symptomatic individuals are not being tested. Additionally, although facemasks are now being distributed, detainees reported, it is not happening regularly.
*8 The detained persons discussed in the affidavits also reported inadequacies in cleaning and sanitation practices at the Jail. Several stated that detained persons lack cleaning supplies for their individual cells and that some common spaces lack cleaning supplies as well. And even where cleaning solution is available, they reported, cloths or wipes have not been provided to enable use of the solution. A number of detainees also reported that commonly used objects, such as telephones, are not being sanitized between uses. In addition, they stated, the Jail's staff has not been cleaning cells, and some common areas are cleaned only every other day, meaning they stand uncleaned despite multiple uses and repeated touching by numerous detained persons and potentially staff personnel.
The detainees also reported an inability or great difficulty in practicing social distancing. In common areas where detained persons eat, several stated, it has been impossible to practice social distancing due to the arrangement of picnic-style benches. Tape or paint markings have been placed on the floor in some dayrooms to designate appropriate space for social distancing, but, they reported, some correctional officers have mocked the practice of social distancing, and many have failed to enforce it. By way of example, detained persons have been using, at the same time, telephones that are spaced only two feet apart.
C. The renewed preliminary injunction motion In their renewed motion for a preliminary injunction, filed on April 14, 2020, the plaintiffs contend that the Sheriff's efforts in response to the TRO “have not worked and cannot work to abate the spread of the disease” caused by the coronavirus. Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 4. The plaintiffs focus primarily on two inadequacies of the Sheriff's efforts to date: failure to identify and transfer medically vulnerable detainees out of the Jail, and insufficient social distancing, which, the plaintiffs contend, “is the only way to prevent intolerable risk to [their] health and lives.” Id. at 2.
The plaintiffs request the following in their renewed motion for a preliminary injunction. First, they ask for a preliminary injunction ordering the Sheriff to mandate social distancing throughout the Jail. In support of this request, the plaintiffs have submitted the declaration of Dr. Gregg Gonsalves, an epidemiologist at the Yale School of Medicine and School of Public Health, who opined that social distancing is “the only way to prevent further, essentially uncontrolled, spread of the virus” in the Jail. Id., Ex. G (dkt. no. 55-7) ¶ 29. In the alternative, the plaintiffs argue that if the Court concludes that additional social distancing is not possible, an order should be entered requiring the
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Sheriff to transfer detained persons to another safe facility, or the Court should request convening a three-judge panel with the authority to order the release of detainees, as required under the Prison Litigation Reform Act. See 18 U.S.C. § 3626(a)(3)(B). In addition, subclass A has renewed its request for issuance of emergency writs of habeas corpus. 5
5 The plaintiffs also sought expedited discovery, but that largely became a moot point in light of later developments, so the Court does not discuss the request here.
In response, the Sheriff argues that he has sufficiently addressed the risks to the health of persons in his custody, in accordance with constitutional requirements, through the protective measures he has already implemented; his efforts were consistent with the recommendations in the CDC Guidelines; and he has taken substantial steps to implement social distancing. The Sheriff also appears to contend that further implementation of social distancing was not realistically possible in the Jail at this time. In response to the plaintiff's contention that the Sheriff has not adequately abated the risk of infection to medically vulnerable detainees, he argues that he cannot screen such individuals, because he does not have access to detained persons' health information. Furthermore, the Sheriff has explained, he already refers all medical complaints and issues to Cermak, and nothing more on his part is required to satisfy the requirements of the Fourteenth Amendment.
*9 In their reply brief, the plaintiffs acknowledge that the Sheriff has taken “dramatic steps” to increase social distancing in the Jail. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 6. They contend, however, that these efforts have been insufficient to remedy the constitutional violation. They reaffirm their request to immediately convene a three-judge court to determine whether to release detained persons. They also reaffirm their request for a preliminary injunction mandating social distancing throughout the Jail as well as transfer of detained persons to “some other safe location,” id. at 2, and they ask the Court to issue such an order contemporaneously with a request to convene a three-judge panel. Additionally, the plaintiffs ask the Court to convert the TRO to a preliminary injunction.
1. Hearing on motion for preliminary injunction The Court held an evidentiary hearing on the preliminary injunction motion by videoconference on April 23, 2020. In light of the unusually compressed time schedule necessitated by the development of the coronavirus pandemic and increases in confirmed coronavirus infections at the Jail, the Court determined that it would consider the parties' affidavits (giving due consideration to issues regarding weight) and would permit each side to call one live witness. Executive Director Miller testified as the Sheriff's witness; he offered, among other things, updates to his April 17 affidavit regarding the Sheriff's efforts to manage the coronavirus outbreak.
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With respect to screening medically vulnerable detainees, Miller testified that the Jail was doing what it could based on the limited medical information that it has available. Miller explained that Cermak conducts a medical evaluation of every detained person at intake, and based on this, it transmits information called “alerts” to the Jail to inform housing decisions based on medical needs. These alerts do not contain any diagnostic information; rather, they simply specify the accommodations necessary to address a medical need. For example, an alert from Cermak may inform the Jail that a detained person should be housed on a bottom bunk, but it will not state the medical reason for this determination. Miller testified that Cermak has not “yet” created an alert for those who have heightened risk of severe health consequences from a coronavirus infection. Without such an alert, Miller explained that the Jail is conducting coronavirus screening based on any medical information about a detained person that it already has, including existing alerts.
Miller also reported that the Jail had made additional efforts to implement social distancing. To encourage persons housed in dormitory units to stay at their beds rather than congregating in common spaces, the Jail has been providing them with free books, writing pads, and puzzle books. In addition, Miller stated, detainees throughout the Jail are now released to use shared shower facilities one at a time. In common areas, six-foot intervals have been demarcated with spray paint markings. Correctional officers, Miller said, have been trained to enforce social distancing by first communicating to detained persons the importance of maintaining the distance, and if that fails, using disincentives such as loss of microwave privileges. Miller acknowledged that despite this, detainees have not always been practicing social distancing and that they continue to congregate in common spaces such as eating areas.
Miller reported that the Jail's staff has worked diligently to increase the Jail's ability to reduce the density of the population in its housing units. Over the past month, he stated, the Jail has opened up several hundred additional housing units. Between April 17 and April 23, the Jail doubled the number of detainees housed in single-occupancy cells, and this effort included moving 260 detainees out of double-occupancy cells. Miller stated that there are currently no detainees housed in double-occupancy cells without a medical or security reason. Most of those who are still in double-occupancy cells, he said, are either housed by Cermak or are designated by Cermak as requiring placement in a double-occupancy cell due to a health condition or possible suicide risk. Miller did not explain why a health condition might require placement in a double-occupancy cell. Some of those in double-occupancy cells have been placed there, he said, due to disorderly conduct —though, again, he did not explain how double-celling serves a security purpose in such situations. Miller acknowledged on cross examination that social distancing is impossible for persons housed in double-occupancy cells.
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*10 Miller also reported that roughly 1,000 detainees are still being housed in dormitory units. He stated that approximately seventy percent of that population must remain in those units due to a medical need, though he did not explain this. As for the remainder, Miller cited one possible non-medical reason that some detainees must remain in dorm units: they are housed there in accordance with requirements of the Prison Rape Elimination Act. He explained that it would be “very challenging to try to separate those individuals and keep them protected as we need to under the PREA Act so that those individuals are not vulnerable in other areas while they're incarcerated.” April 23, 2020 Tr. at 46–47. Again, however, Miller did not explain this.
Miller supplemented his testimony with an updated spreadsheet showing the occupancy of the Jail's housing units as of April 23. This spreadsheet showed that the capacity of almost every tier that was not in Cermak, the RTU, or under quarantine was fifty percent or below. However, in Division 2, Tier D1-D was at eighty-one percent capacity, and Tier D4-R was at fifty-nine percent (Tier D3-B was right at fifty percent). A number of Cermak and RTU tiers had occupancy rates as high as ninety-seven or one hundred percent.
On cross examination, the plaintiffs' counsel asked Miller about the high occupancy levels in certain Cermak and RTU tiers reported in the April 17 and April 22 spreadsheets. Miller explained that Cermak needed to house those individuals together to be able to provide them with access to care at all hours of the day or night. Miller acknowledged that social distancing was not possible for those housed in the Cermak and RTU tiers.
Plaintiffs' counsel also asked Miller about a high occupancy rate listed in the April 17 spreadsheet for a tier (referenced above) that was not in Cermak, the RTU, or under quarantine: Tier D of Dorm 1 in Division 2, which was then at eighty-one percent capacity. The April 22 spreadsheet showed that the dorm was still at the same capacity. Miller stated: “There's another security level and/or issue with having this many people on this tier that we've had to abide by.” Id. at 31. He did not clarify the nature of the security issue. Miller acknowledged that social distancing was not possible for detainees on that tier.
When the Court asked Miller if there was still room at the Jail to move more detainees out of dorms and into cells, Miller responded, “I do have a plan in my back pocket.” Id. at 57. He explained that he was working on moving people out of Dorms 1, 2, and 3. He added that the Jail is considering reconfiguring housing arrangements on tiers for detainees who are women to see if there is a way to create more capacity, presumably to disperse the much larger population of detainees who are men.
As for cleaning and sanitation of common areas, Miller reported that detainees have been given the supplies they need to do sanitation; he attributed shortfalls in sanitation to their own behavior. For
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example, he stated, at each microwave stations and shared showers and toilets, detained persons have been provided cleaning solution so that they can sanitize the facility prior to use.
Finally, Miller stated, to ensure implementation of its response measures, such as sanitation of common areas or use of PPE, the Sheriff has deployed “audit teams” that oversee these efforts. For example, the Jail has a PPE audit team that patrols PPE use and educates staff members and detained persons who are not using PPE properly.
Plaintiffs called as their hearing witness Dr. Homer Venters, a medical doctor with over a decade of experience in correctional health. Dr. Venters is the former Deputy Medical Director of the New York City Jail Correctional Health Service, a position in which he oversaw care of detainees and medical policies governing care in New York City's twelve jails. He had previously submitted a declaration along with plaintiffs' preliminary injunction reply brief. At the hearing, he testified that, in his view, the Jail's coronavirus response efforts have three key deficiencies: (1) lack of a cohesive coronavirus response plan; (2) failure to screen for individuals at higher risk of experiencing severe health consequences from a coronavirus infection; and (3) insufficient social distancing.
*11 First, Dr. Venters explained that having a cohesive plan, rather than a collection of policy documents that address different aspects of emergency response, is a critical first step to addressing an outbreak of a communicable disease in a jail facility. He stated that because jails are such complex systems, employing and housing several thousand people, it is not possible to respond to a large outbreak without a single, coordinate plan that coordinates response measures implemented by security, health, and administrative staff.
Second, Dr. Venters testified that screening medically vulnerable individuals is critical so that they can immediately receive heightened surveillance of possible symptoms of a coronavirus infection. This heightened surveillance would entail daily checks on those individuals for symptoms such as elevated temperature, shortness of breath, and fatigue.
Third, Dr. Venters emphasized the importance of social distancing in combatting the spread of coronavirus. In his declaration, Dr. Venters stated that medical literature on the coronavirus confirms that social distancing is an essential strategy in controlling an outbreak. During the hearing, he explained that because the coronavirus spreads so easily through respiratory droplets emitted from an infected person, transmission “is greatly impeded by physical distance that we establish through social distancing.” Id. at 67.
During his testimony, Dr. Venters emphasized that practicing social distancing only in some specific areas of a congregate setting like the Jail is insufficient to curb virus transmission rates.
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Because people are densely packed in many contexts during routine operations of a detention facility—e.g., sleeping areas, dayrooms, shower facilities, and areas where medication is dispensed —it is critical to implement social distancing throughout the entire facility. Dr. Venters explained that a “lack of a full commitment or complete commitment to social distancing” in the Jail would promote faster transmission of the coronavirus, and more detainees and staff would become “seriously ill.” Id. at 74. In his declaration, Dr. Venters had observed that the concern about severe health effects is heightened when considering detainees, because they are statistically more likely than the general public to have pre-existing health problems such as cardiovascular disease and cancer.
Dr. Venters also discussed the importance of communication with detainees and staff as a means to ensure that they practice social distancing in an appropriate way. Specifically, he said, to ensure widespread observance of this practice, individuals must understand what social distancing means and why it is important.
On cross examination, Dr. Venters acknowledged that outbreak management in a correctional setting imposes “unique challenges,” id. at 79, and that the CDC Guidelines are “now the most important set of principles” on response, id. at 81. He also acknowledged that the CDC Guidelines provide that social distancing might not always be feasible in a correctional setting.
Dr. Venters testified that although use of single-occupancy cells facilitates social distancing, doing so poses a risk of increasing detainees' psychological distress from social isolation. He also testified that the Jail's practice of housing detainees with mental health conditions in doubleoccupancy cells is inappropriate, because they cannot practice social distancing at all. Though these two concerns point in opposite directions, Dr. Venters reconciled them by clarifying that, in the current pandemic environment, housing detainees in single-occupancy cells is preferable to double-occupancy because social distancing is critical. To address the psychological toll of isolation in single-occupancy cells, Dr. Venters testified, the Jail should provide opportunities for detained persons to come out of their cells and benefit from engagement with others in common areas while practicing social distancing.
*12 Dr. Venters's testimony largely buttressed the points made by several other medical doctors and epidemiologists in affidavits and declarations that the plaintiffs had attached to their complaint and briefing of this motion. The plaintiffs' medical, public health, and correctional health experts have analogized the conditions in the Jail to those on cruise ships, which have experienced some of the largest concentrated outbreaks of the coronavirus. Specifically, these experts observe, a jail, like a cruise ship, is an environmentally enclosed, congregate-living setting with high levels of movement of people. Mohareb Dec., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj., Ex. B
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(dkt. no. 64-3) at 5; Gonsalves Dec., Pls.' Renewed Mot. for Prelim. Inj., Ex. G (dkt. no. 55-7) ¶¶ 17, 27; Med. Profs.' Dec., Compl., Ex. B (dkt. no. 1-2) ¶¶ 24, 25, 26.
In particular, Dr. Amir Mohareb, a medical doctor who is a biothreat response expert and an instructor at Harvard Medical School, used the example of the Diamond Princess cruise ship to highlight the importance of social distancing. The Diamond Princess sailed from Japan to Hong Kong in January of this year. After one of its passengers tested positive for the coronavirus in the last week of January, “strict precautions of hand hygiene and cabin isolation were implemented for all crew and passengers.” Mohareb Dec. (dkt. no. 64-3) at 5. Despite these efforts, 700 of the people who had been on the ship tested positive for the virus over the course of the following month. This example, Dr. Mohareb, said, reflects that in the context of a congregate living arrangement like a cruise ship, hand hygiene and cabin cell isolation are insufficient to control the transmission of the coronavirus. He stated that a jail, which is similarly a congregate environment, “constitutes an equal or greater risk setting to that of a cruise ship.” Id.
Dr. Mohareb explained that because respiratory droplets emitted by an infected person can travel up to six feet and be inhaled by another, social distancing is “a necessary intervention to prevent the spread of infection” from the coronavirus. Id. at 3, 6. He emphasized that social distancing is particularly important because an infected person may be mildly symptomatic or not symptomatic at all. Dr. Mohareb also noted that numerous authoritative bodies, including the CDC, the World Health Organization, and the Infectious Diseases Society of America, have recommended social distancing to control the transmission of coronavirus. He added that mathematical modeling supports a conclusion that social distancing is “the primary means by which individuals can be safely protected from the threat of COVID-19.” Id. at 5.
All of the plaintiffs' expert affidavits emphasized the critical need to implement social distancing in order to meaningfully control the spread of the virus. Gonsalves Dec. ¶ 29 (social distancing is the “only way” to control outbreak); see also Rasmussen-Torvik Dec., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj., Ex. C (dkt. no. 64-4) ¶ 9. They reiterated Dr. Venters's point that the very design of a correctional facilities promotes transmission of the coronavirus because it densely packs large groups of people together. Dr. Gonsalves stated that although correctional facilities are like cruise ships in that they are enclosed environments, they present an even higher risk of rapid transmission of the coronavirus because of “conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources.” Gonsalves Dec. ¶ 17. In a joint declaration, five medical doctors with experience working in a correctional setting —including three doctors who had worked at the Jail—similarly observed that the “crowded congregate housing arrangements” of jails and prisons promote the transmission of respiratory illnesses like the coronavirus disease. Med. Profs.' Dec. (dkt. no. 1-2) ¶ 24
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*13 Beyond providing additional support for the points in Dr. Venters's testimony, the plaintiffs' other medical and public health experts added that the risks of severe health consequences from a coronavirus infection are not limited only to those who have preexisting medical conditions or are over the age of sixty-five. According to Dr. Gonsalves, “young and healthy individuals may be more susceptible than originally thought.” Gonsalves Dec. ¶ 5. He reported that in March, the CDC reported that one-fifth of infected people between the ages of twenty to forty-four had been hospitalized. Dr. Mohareb also stated that “a fraction of patients with COVID-19 in all groups go on to develop severe respiratory disease.” Mohareb Dec. at 1.
At the conclusion of the April 23 preliminary injunction hearing, the Court extended the TRO, which was set to expire that day, pending its ruling on the motion for a preliminary injunction.
Discussion
“A preliminary injunction is an extraordinary remedy.” Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). A court's determination of whether to issue a preliminary injunction or temporary restraining order involves a two-step inquiry, with a threshold phase and a balancing phase. Id. First, the party seeking the preliminary injunction has to make a threshold showing, which has three elements: (1) reasonable likelihood of success on the merits of the claim; (2) irreparable harm to the movant absent preliminary injunctive relief; (3) lack of adequate remedies at law. Id. If the movant makes the threshold showing, the court proceeds to the balancing step, in which it determines “whether the balance of harm favors the moving party or whether the harm to other parties or the public sufficiently outweighs the movant's interests.” Id.
Because they request relief that changes the status quo or requires the Sheriff to take affirmative action, the plaintiffs are requesting what is sometimes referred to as “mandatory” preliminary injunctive relief. See Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997);
O'Malley v. Chrysler Corp., 160 F.2d 35, 37 (7th Cir. 1947); cf. Schrier v. Univ. Of Co., 427 F.3d 1253, 1260 (10th Cir. 2005) (“[D]etermining whether an injunction is mandatory as opposed to prohibitory can be vexing.”). Mandatory preliminary injunctions typically are “cautiously viewed and sparingly issued.” Graham, 130 F.3d at 295 (quoting Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)); see also Knox v. Shearing, 637 F. App'x 226, 228 (7th Cir. 2016). But “there may be situations justifying a mandatory temporary injunction compelling the defendant to take
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affirmative action” based on the circumstances, Jordan, 593 F.2d at 774, and “the clearest [of] equitable grounds,” W. A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958). At least two courts have recognized the unusual nature of mandatory preliminary injunctions and yet issued them after finding violations of the rights of people in custody during the coronavirus pandemic. See Barbecho v. Decker, No. 20-CV-2821 (AJN), 2020 WL 1876328, at *2, 8–9 (S.D.N.Y. Apr. 15, 2020); Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *2, 14–15 (W.D.N.Y. Apr. 2, 2020).
In assessing each claim, the Court will address the first threshold requirement for a preliminary injunction: likelihood of success on the merits, which requires showing only a “better than negligible” chance of success. Whitaker, 858 F.3d at 1046 (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). Generally speaking, “[t]his is a low threshold,” id., but the Court gives the matter greater scrutiny here in light of the fact that plaintiffs are seeking affirmative conduct by the Sheriff.
A. Habeas corpus claim *14 Plaintiffs and subclass A have petitioned for a writ of habeas corpus under 28 U.S.C. § 2241. The Court first addresses the issue of exhaustion of remedies and then considers subclass A's ability to satisfy the criteria for a representative action.
1. Exhaustion As the Court concluded in its TRO decision, a petition for a writ of habeas corpus under 28 U.S.C. § 2241 is the appropriate mechanism for a state pretrial detainee to challenge his or her detention. Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015). “Because a pre-trial detainee is not yet in custody pursuant to the judgment of a State court, relief under 28 U.S.C. § 2254 is not available.” Id. (internal quotation marks omitted).
Section 2241 has no express exhaustion requirement, but courts apply a common-law exhaustion rule. Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004). A pretrial detainee must “exhaust all avenues of state relief” before seeking a writ of habeas corpus through a section 2241 action. See United States v. Castor, 937 F.2d 293, 296–97 (7th Cir. 1991). Although there are exceptions, “the hurdle is high.” Richmond, 387 F.3d at 604. In deciding whether an exception applies, courts “must balance the individual and institutional interests involved, taking into account ‘the nature of the claim presented and the characteristics of the particular administrative procedure
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provided.’ ” Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (quoting McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded by statute on other grounds as recognized in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)). A court may excuse exhaustion where:
(1) requiring exhaustion of administrative remedies causes prejudice, due to unreasonable delay or an indefinite timeframe for administrative action; (2) the agency lacks the ability or competence to resolve the issue or grant the relief requested; (3) appealing through the administrative process would be futile because the agency is biased or has predetermined the issue; or (4) where substantial constitutional questions are raised.
Id.
It is undisputed that a state court has the authority to release a pretrial detainee. A person who is detained in Illinois may challenge his or her detention by seeking judicial review of his or her bond.
725 Ill. Comp. Stat. Ann. 5/110-6. On March 23, 2020, in response to an emergency petition filed by the Cook County Public Defender, the Presiding Judge of the Cook County Circuit Court's Criminal Division issued an order setting out an expedited bond hearing process that applied to seven designated classes of detained persons. Def.'s Resp. to Mot. for TRO, Ex. E (dkt. no. 31-1) at 1–2. The seven classes included those at an elevated risk of contracting coronavirus due to their ages or underlying medical conditions—that is, the putative members of subclass A. Id. The expedited hearings took place from March 24 through March 27. Id. at 3–5. Although the expedited hearings do not appear to be currently ongoing, Cook County's courts are still available for emergency matters, and judges are hearing motions to review or reduce bail daily at all locations where court is held. Def.'s Supp. Resp. to Mot. for TRO, Ex. A (dkt. no. 41-1) at 1.
In the TRO decision, the Court concluded that the plaintiffs—who both were named as representatives of subclass A—could not show that they exhausted available state remedies before petitioning for habeas corpus because they did not “contend that they sought expedited bond hearings or initiated any sort of state proceedings challenging their bonds.” Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *6. The Court declined to excuse exhaustion because it found that the state's existing bond reduction process is “anything but futile”; the plaintiffs did not show that the process is “unduly time-consuming in a way that undermines their claimed constitutional rights”;
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and they did not show that state courts cannot remedy the type of constitutional violations they raise. Id.
*15 After the Court issued its decision, the plaintiffs' counsel learned that Foster had sought release in the Circuit Court of Cook County through an expedited bond hearing. (The plaintiffs do not contend that Mays separately sought release in state court prior to the filing of this lawsuit.) Foster is charged with domestic battery, robbery, and unlawful restraint. Pls.' Renewed Mot. for Prelim. Inj., Ex. F (dkt. no. 55-6) at ECF p. 3 of 17. His bail was set at $50,000, requiring him to post $5,000 to be released, which he is unable to afford. Id. In his motion to reduce bond, he described his serious medical conditions and explained that they place him at a heightened risk of becoming critically ill if he contracts coronavirus. Id. at ECF p. 4–5 of 17. He also argued that it would violate his constitutional rights to keep him in custody during the coronavirus pandemic. Id. at ECF p. 13 of 17. On April 2, 2020, a state trial judge heard and denied Foster's motion. See id. at ECF p. 16 of 17.
The plaintiffs argue that Foster has sufficiently presented his request to the state courts and should not be required to do more. They acknowledge that he has not exhausted all avenues of state relief: he could appeal the state court's denial of his motion to reduce his bond, but plaintiffs do not contend that he done so. They argue, however, that the Court should excuse exhaustion based on the futility of an appeal or the Court's equitable authority to excuse exhaustion. They contend that an appeal would take weeks to pursue, making appellate remedies practically unavailable to him in light of the urgency of the coronavirus pandemic and causing an unreasonable delay that would force him to continue to suffer the alleged harm. In support of this contention, they offer an affidavit from Lester Finkle, the Chief of Staff to the Cook County Public Defender, who explains the procedure for interlocutory appeals of denials to modify bail. Pls.' Renewed Mot. for Prelim. Inj., Ex. C (dkt. no. 55-3). Under Illinois Supreme Court Rule 604(c), before a defendant can file such an appeal, he must file a verified motion in the trial court providing certain information about himself. Id. ¶ 2. Only after the trial court denies the verified motion can the defendant file an appeal. Id. The affidavit submitted by the plaintiffs reflects that this process typically takes two to four weeks. Id. ¶ 5. After that, if the appellate court denies the defendant's appeal, he can seek discretionary review in the Illinois Supreme Court. Id. ¶ 3. Based on this information, the plaintiffs argue that their state-court remedies are futile or practically unavailable and that requiring them to pursue these remedies would unfairly prejudice them.
The plaintiffs' contentions are not persuasive. Their only evidence, Finkle's affidavit, describes how long such an appeal would take under ordinary circumstances. But here we are not dealing with not ordinary circumstances. The affidavit does not adequately show how the state appellate process would be expected to work for a medically vulnerable detainee claiming that due to a
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global pandemic that has infiltrated the Jail, he faces immediate risk of serious health consequences unless his bail is reduced. We know the state courts are capable of dealing with emergency requests of this type promptly and efficiently; Cook County trial court judges dealt quickly and efficiently with hundreds of such requests in late March, and they continue to do so now. There is no reason to believe that the Illinois Appellate Court would treat such an appeal as an ordinary, run-of-the-mill bail issue and would refuse to deal with it promptly. Although a court may excuse exhaustion in
the unusual case where a state process would cause an unreasonable delay, see, e.g., Gonzalez, 355 F.3d at 1016, the plaintiffs have not established that this is so in the present situation.
The plaintiffs also contend that the existing bond review processes provide no effective remedy for the claims that the class members advance in this case. Specifically, they contend that the Illinois
statute governing bail, 725 Ill. Comp. Stat. Ann. 5/110-5, does not require state courts to consider a detained person's medical health in deciding whether to set or reduce the amount of bail and that state judges making those decisions would not be expected to consider the medical risks at the Jail. But they point to no evidence that state courts are not permitted to consider detained persons' medical conditions, let alone that state courts reviewing bonds are not actively considering detained persons' medical conditions in light of the coronavirus pandemic. To the contrary, the evidence in the record suggests that state courts are considering the medical dangers the coronavirus presents to detained persons. As the Court indicated in its TRO decision, between early March and early April 2020, the Jail's population decreased by over 1,175 detainees, Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *6; since then, the population has decreased by at least 300 more detainees, see Def.'s Resp. to Renewed Mot. for Prelim. Inj., Ex. A (dkt. no. 62-1) at 1. An affidavit submitted by the plaintiffs reflects that this reduction in the Jail's population has occurred, at least in part, because state court judges have granted bond reductions. See Pls.' Renewed Mot. for Prelim. Inj., Ex. B (dkt. no. 55-2) ¶ 3 (state courts released 719 detainees through an expedited process for bond reconsiderations in light of the coronavirus pandemic). In short, the contention that state courts cannot or will not consider detained persons' medical conditions in bond review proceedings is unsupported. Accordingly, the Court concludes that the plaintiffs have not shown that the state courts do not provide an effective remedy for detained persons with medical conditions that place them at a high risk of severe illness or death if they contract coronavirus.
*16 The plaintiffs also appear to argue that the state courts cannot provide an adequate remedy because, they contend, unlike the federal habeas claims in this case, state courts can consider factors other than medical need. That contention is based on an erroneous premise, which the Court will discuss momentarily, that a district court addressing a habeas corpus petition challenging jail
conditions under section 2241 cannot or would not consider other factors such as whether a detainee poses a threat to public safety. The bottom line is that the plaintiffs have not shown that the bond reduction remedy offered by the state courts is any less effective than a federal remedy.
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For these reasons, the Court concludes—as it did in its TRO decision—that the plaintiffs have no likelihood of success on the habeas corpus claim advanced by them on behalf the representatives of subclass A due to their failure to exhaust available state court remedies.
2. Representative action Even if the plaintiffs could establish some likelihood of success on their contention that the failure to exhaust state remedies should be excused, they would be unable to satisfy the criteria for a representative action. Although the Court need not actually certify a representative action at this point, before issuing a preliminary injunction it would need to find that the requirements for such an action conditionally would be met. Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *3 (collecting cases). Because the plaintiffs cannot satisfy those requirements, the representative class has no likelihood of success on the merits.
In the Seventh Circuit, the Federal Rule of Civil Procedure that governs class actions, Rule 23, does not apply to habeas corpus proceedings. Bijeol v. Benson, 513 F.2d 965, 967–68 (7th Cir. 1975); cf. Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010). But representative actions—which are analogous to class actions—on rare occasions can be brought in habeas corpus proceedings. Bijeol, 513 F.2d at 967–68; see also United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 220–21 (7th Cir. 1976); Kazarov v. Achim, No. 02 C 5097, 2003 WL 22956006, at *8 (N.D. Ill. Dec. 12, 2003); United States ex rel. Green v. Peters, 153 F.R.D. 615, 619 (N.D. Ill. 1994); Faheem-El v. Klincar, 600 F. Supp. 1029, 1033 (N.D. Ill. 1984). The Seventh Circuit has not “set down a strict formula which must be mechanically followed” before people in custody can bring a representative habeas corpus action. Morgan, 546 F.2d at 221. Instead, it has suggested that courts can look to the provisions of Rule 23 in determining whether a representative action is appropriate, though courts need not “precisely” comply with Rule 23. Id. n.5. The Court thus finds that Rule 23 is instructive in analyzing whether plaintiffs can bring a representative action. The parties seem to agree; they discuss the issue within the framework of Rule 23.
To bring a class action, and by analogy a representative action, a plaintiff must show that the proposed class meets the four requirements of Rule 23(a): “numerosity, commonality, typicality, and adequate representation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). In addition, “the proposed class must satisfy at least one of the three requirements listed in Rule 23(b).” Id. at 345, 131 S.Ct. 2541. The plaintiffs here rely on, or analogize to, Rule 23(b)(2), which applies 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).
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The parties dispute whether subclass A satisfies each requirement of Rule 23, as applied to representative actions, apart from numerosity. The Court discusses each disputed requirement in turn.
a. Commonality
*17 To establish that they are likely to satisfy the commonality requirement, the plaintiffs must show that there likely “are questions of law or fact common to” the members of subclass A. Fed. R. Civ. P. 23(a)(2). “That language is easy to misread.” Wal-Mart, 564 U.S. at 349, 131 S.Ct. 2541. “Commonality requires the plaintiff[s] to demonstrate that the class members have suffered the same injury.” Id. at 349–50, 131 S.Ct. 2541 (internal quotation marks omitted). In addition, “[t]heir claims must depend upon a common contention” for which the “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.”
Id. at 350, 131 S.Ct. 2541. Thus “what matters...is not the raising of common ‘questions’ ...but rather, the capacity of a [representative] proceeding to generate common answers apt to drive the resolution of the litigation.” Id. at 350, 131 S.Ct. 2541 (emphasis omitted). “Where the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members, there is a common question.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014).
Subclass A conditionally satisfies the commonality requirement because the plaintiffs likely can show that its members “suffered the same injury.” See Wal-Mart, 564 U.S. at 349–50, 131 S.Ct. 2541. Specifically, the members of subclass A can show that the Sheriff's response to the coronavirus pandemic gave rise to their habeas claim. In addition, the plaintiffs point to several questions the determination of which, they contend, will resolve issues that are central to the validity of their habeas claim. For purposes of commonality, the Court need consider only one: whether coronavirus presents so severe a risk of harm to some people in the Sheriff's custody such it is unconstitutional to confine them in in the Jail. 6 In a representative proceeding, a common answer to that question likely would drive the resolution of the litigation by resolving a core issue underlying subclass A's request for a writ of habeas corpus.
6 The Court notes that the plaintiffs posed different questions in their motion for class certification than in their reply brief in support of their motion for a preliminary injunction.
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Compare Pls.' Mot. to Cert. Class (dkt. no. 6) at 7–8 with Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21–22. Which particular question the Court identifies as conditionally satisfying the commonality requirement makes no difference for the purpose of this opinion. Regardless, at least one question the plaintiffs pose in their reply brief would also satisfy the commonality requirement: whether detainees in the Jail, as a matter of due process, are entitled to practice social distancing consistent with people in the community at large.
The Sheriff contends that subclass A cannot satisfy the commonality requirement because its members seek habeas corpus relief that would require individual proceedings or determinations. But issues pertaining to the individualized nature of the desired injunctive relief go to the requirements of Rule 23(b), not commonality. See id. at 360–62, 131 S.Ct. 2541; Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 379–80 (7th Cir. 2015). In other words, the commonality requirement of Rule 23(a) does not demand that the relief ultimately awarded to each plaintiff be the same. See id.; Suchanek, 764 F.3d at 756 (commonality of relief is not essential); In re IKO Roofing Shingle Prod. Liab. Litig., 757 F.3d 599, 602 (7th Cir. 2014) (“[The commonality requirement as discussed in] Wal–Mart has nothing to do with commonality of damages.”). Nor is this a case in which the commonality requirement is not satisfied because individual plaintiffs experienced the harm in meaningfully different ways. Cf. Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497–98 (7th Cir. 2012) (class of disabled students did not meet commonality requirement where its members likely experienced alleged violations of federal and state law in different ways). The putative members of subclass A all experienced the alleged harm from the Sheriff's response to coronavirus in the same or similar ways, specifically their allegedly increased risk of exposure to the virus. In addition, all of them raise the same kind of claim, and their claims all involve a common question that would resolve a central issue of that claim.
*18 The Court acknowledges that, in a case raising claims similar to the habeas corpus claims asserted in this one, another judge in this district recently took a different approach with regard to commonality. A putative representative class of convicted prisoners in Money v. Pritzker, No. 20-CV-2093, ––– F.Supp.3d ––––, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020), also sought habeas corpus relief and medical furloughs or home detentions under section 1983 based on an allegedly inadequate response to the coronavirus pandemic by the director of the Illinois Department of Corrections. Id. at ––––, at *1–2. For the section 1983 claim, the court found the only common question “apt to drive the resolution of the litigation,” id. at ––––, at *15 (quoting Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541), was “which class members should actually be given a furlough,” id. That question did not satisfy the commonality requirement, the court found, because “individualized determinations” would be necessary to answer it. Id. The court
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also indicated that the habeas claim would not be “suitable for representative or class treatment” because “release determinations must be made on an individual basis regardless of the vehicle for considering and effectuating them.” Id. at ––––, at *21 n.15. The court did not clarify whether it based its finding that the habeas claim would be unsuitable for representative or class treatment on the commonality requirement or another Rule 23 consideration. See id.
This Court respects the court's decision in Money, which it cites as persuasive authority elsewhere in this opinion. But to the extent that the court in Money found that the putative classes failed to satisfy the commonality requirement because their requested relief would entail individualized determinations, this Court departs from the analysis in Money. As indicated, the commonality requirement does not mean that the relief ultimately awarded to each plaintiff must be the same. Thus whether the release determinations would need to be made on an individual basis does not factor into the Rule 23(a) commonality analysis.
The Court concludes, for the reasons stated above, that the putative class satisfies Rule 23(a)'s commonality requirement.
b. Typicality
The Sheriff contends that the putative subclass does not meet Rule 23(a)'s typicality requirement. He does not explain why, and he is incorrect. The named plaintiffs' habeas corpus “claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other [subclass] members and is based on the same legal theory.” Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018) (alteration omitted). “This requirement is meant to ensure that the named representative's claims have the same essential characteristics as the claims of the class at large.” Id. (internal quotation marks omitted). Typicality is satisfied for subclass A because the named plaintiffs have alleged the same injurious conduct stemming from the Sheriff's response to the coronavirus pandemic as the other members of the subclass and have advanced the same legal theory as the subclass at large.
c. Rule 23(b)(2)
Rule 23(b)(2) is the sticking point for the habeas corpus plaintiffs' attempt to bring a representative action on behalf of subclass A. As indicated, Rule 23(b)(2) allows for class
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certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief...is appropriate respecting the class as a whole.”
Fed. R. Civ. P. 23(b)(2). It “applies only when a single injunction or declaratory judgment would provide relief to each member of the class,” not “when each individual class member would be entitled to a different injunction.” Wal-Mart, 564 U.S. at 360, 131 S.Ct. 2541.
The Sheriff contends that the putative subclass A does not satisfy Rule 23(b)(2) because the plaintiffs seek individualized relief. He suggests that any habeas corpus proceeding would need to account for each subclass member's individual circumstances, including, for example, the danger each detainee would pose to the public if released. The plaintiffs expressly concede that the relief would need to be at least partly individualized. They contend, however, that this could be achieved through “brief, individual proceedings” without defeating class certification. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 23; see also Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 16.
*19 In actions where plaintiffs seek an injunction that “would merely initiate a process through which highly individualized determinations of liability and remedy are made,” Rule 23(b)(2) is not satisfied. Jamie S., 668 F.3d at 499 (7th Cir. 2012) (injunction that established a system for identifying disabled children and implementing individualized education plans and remedies did not satisfy Rule 23(b)(2) because it “merely establishe[d] a system for eventually providing individualized relief”). Compare id. and Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 893 (7th Cir. 2011) (in case challenging insurer's performance of hail storm damage appraisals, injunction requiring class-wide roof reinspection did not satisfy Rule 23(b)(2) where it “would only initiate thousands of individualized proceedings to determine breach and damages”) with Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chi., 797 F.3d 426, 441–42 (7th Cir. 2015) (proposed class was maintainable under Rule 23(b)(2) where plaintiffs asked the court for a declaration that a school board's policies violated Title VII and prospective relief including a moratorium on a challenged practice and the appointment of a monitor).
The plaintiffs concede that issuing writs of habeas corpus in this case would entail individualized proceedings but not that Rule 23(b)(2) precludes them from proceeding on a representative basis. They suggest that the type of supposedly brief, individualized proceedings they seek “have long been commonplace in class litigation.” Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 23. But the cases they cite to support that proposition are distinguishable from this one. Both Barnes v. District of Columbia, 278 F.R.D. 14 (D.D.C. 2011), and Dunn v. City of Chicago, 231 F.R.D. 367 (N.D. Ill. 2005), amended on reconsideration, No. 04 C 6804, 2005
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WL 3299391 (N.D. Ill. Nov. 30, 2005), involved individualized proceedings on damages under Rule 23(b)(3), not individualized proceedings for injunctive relief under Rule 23(b)(2). See Barnes, 278 F.R.D. at 19–23; Dunn, 231 F.R.D. 367, at 375–78. Dunn also involved class
members who had variations in how they experienced the constitutional violations—an issue the court properly discussed as part of the commonality analysis, not the Rule 23(b)(2) analysis. See id. at 372.
Even if the plaintiffs did not concede it, individualized proceedings would be required for writs of habeas corpus that the plaintiffs seek because the Prisoner Litigation Reform Act (PLRA) applies to their habeas corpus claims. Under the PLRA, in tailoring any prospective or preliminary injunctive relief “in any civil action with respect to prison conditions,” a court must “give substantial weight to any adverse impact on public safety,” among other considerations. 18 U.S.C. § 3626(a)(1)(A), (a)(2). The PLRA defines “civil action with respect to prison conditions” as “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2). Thus if the plaintiffs' habeas claims constitute civil actions as defined by the PLRA, the Court would need to give substantial weight to the public safety of granting writs, which would require consideration of, among other things, any danger each individual member of subclass A poses to the public.
As the Court indicated in its TRO decision, the question of whether detained persons can even use a section 2241 petition to challenge the conditions of their confinement has divided courts. Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *6 (comparing, e.g., Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (a prisoner may challenge the conditions of his confinement in a federal habeas corpus petition) and Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (same) with Spencer v. Haynes, 774 F.3d 467, 469–70 (8th Cir. 2014) ( section 2241 petitions may not challenge conditions)). The Seventh Circuit has expressed a “long-standing view that habeas corpus is not a permissible route for challenging prison conditions,” at least when a prisoner's claim does not have “even an indirect effect on the duration of punishment.” Robinson v. Sherrod, 631 F.3d 839, 840–41 (7th Cir. 2011). But the Seventh Circuit has also noted that “the Supreme Court [has] left the door open a crack for prisoners to use habeas corpus to challenge a condition of confinement.” Id. at 840 (quoting Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005)) (citing Nelson v. Campbell, 541 U.S. 637, 644–46, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004); Bell v. Wolfish, 441 U.S. 520, 526 n.6, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Preiser v. Rodriguez, 411 U.S. 475, 499–500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)).
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*20 In the TRO decision, the Court said that it did not need to decide the question of whether the plaintiffs could challenge conditions of confinement in a habeas corpus proceeding definitively at the time but stated that were it “required to address this point, [the Court] would not consider it to be an absolute bar to plaintiffs' motion for a temporary restraining order.” Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *6. The Court stated that “[t]he plaintiffs' claims, as they have framed them, do bear on the duration of their confinement (they contend, ultimately, that they cannot be held in the Jail consistent with the Constitution's requirements), and they are not the sort of claims that are, or can be, appropriately addressed via a claim for damages.” Id.
But the plaintiffs' claims also bear on the conditions of their confinement: they challenge the constitutionality of the conditions in the Jail during the coronavirus pandemic, and they contend that the conditions are so deficient that it is unconstitutional for subclass A to be confined at the Jail. The Seventh Circuit has not expressly addressed whether the PLRA applies to habeas corpus petitions that involve conditions of confinement, but it has not foreclosed the application of the PLRA to such petitions. Cf. Walker v. O'Brien, 216 F.3d 626, 634 (7th Cir. 2000) (stating that actions “brought under section 2241...as habeas corpus petitions are not subject to the PLRA”— but not addressing such petitions that challenge the conditions of confinement); see also Thomas v. Zatecky, 712 F.3d 1004, 1005 (7th Cir. 2013) ( Walker holds, among other things, “that a collateral attack under § 2241 or § 2254 is not a ‘civil action’ for the purpose” of the PLRA (emphasis added)). By specifying that a “civil action with respect to prison conditions...does not include habeas corpus proceedings challenging the fact or duration of confinement in prison,” the language of the PLRA appears suggests that it may cover other types of habeas corpus proceedings, including, potentially, those challenging the conditions of confinement. See Advocate Health Care Network v. Stapleton, ––– U.S. ––––, 137 S. Ct. 1652, 1659, 198 L.Ed.2d 96 (2017) (courts should interpret a statute in a way that would “give effect, if possible, to every clause and word”). And at least some courts addressing the issue have suggested that the PLRA applies to habeas corpus petitions involving the conditions of confinement. See Jones v. Smith, 720 F.3d 142, 145, 145 n.3 (2d Cir. 2013) (the PLRA does not apply to “habeas petition[s] seeking to overturn a criminal conviction or sentence” but presumably would apply to conditions-of-confinement habeas claims brought under section 2241); Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C. Cir.) (habeas corpus petitions challenging conditions of confinement “would have to be subject to the PLRA's...rules, as they are precisely the sort of actions that the PLRA sought to address”), on reh'g, 159 F.3d 591 (D.C. Cir. 1998).
Accordingly, the Court concludes that the PLRA applies to the plaintiffs' habeas corpus claim. The PLRA's mandate that a court “give substantial weight to any adverse impact on public safety”
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before issuing preliminary injunctive or prospective relief thus would apply to the habeas corpus claim. See 18 U.S.C. § 3626(a)(1)(A), (a)(2). To do so, the Court would need to consider the circumstances of the detained persons and any threat they pose to public safety, which plainly would vary from one person to another. This is a process that would render the claim unsuitable to certification under Rule 23(b)(2) or its analogy for representative actions.
The plaintiffs also state, in two sentences found at the very end of a small-type, twenty-fourline footnote, that a release order would not require a court to resolve individualized questions regarding safety because such an order would give the Sheriff discretion on which detained persons to release. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21 n.16. The plaintiffs make this point with respect to commonality for their section 1983 claim, not on the question of whether the habeas corpus claim may be handled on a representative basis. They nowhere attempt to explain how the Court could condition the issuance of writs of habeas corpus on detainee-specific decisions made by the Sheriff. As this Court stated in its TRO decision, “[t]he issuance of [a] writ of habeas corpus through a section 2241 petition is a federal remedy (in other words, it does not depend on state law).” Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *7. Nor could the issuance of a writ depend on subsequent decisions by a detained person's custodian. The habeas corpus claim proceeds against the custodian based on the fundamental, long-standing rule that a person in custody “may be liberated if no sufficient reason is shown to the contrary.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (quoting Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885)). The only remedy available for a habeas corpus claim is liberation of the person in custody. See id. It is difficult to imagine a writ of habeas corpus that would tell a jailer to release the petitioner— unless he decides it would not be a good idea to do so. Plaintiffs offer no authority supporting the proposition that a writ of habeas corpus could appropriately be issued in this way.
*21 In sum, though representative habeas corpus actions do not need to comply “precisely” with Rule 23, Morgan, 546 F.2d at 221 n.5, the plaintiffs cannot meet the requirements for representative treatment. 7
7 The Court acknowledges that this is different from the conclusion it reached in the TRO decision, in which it conditionally certified subclass A. See Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *4. But that was, of course, a provisional decision. And even for a nonconditionally certified class, a court may alter or amend an order granting class certification at any point before final judgment. Fed. R. Civ. P. 23(c)(1)(C); Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (class certification
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order is “inherently tentative,” and a district court “remains free to modify it in the light of subsequent developments in the litigation”). Because the plaintiffs' habeas corpus claims founder on the exhaustion requirement, and because they have not established that the claims may be pursued on a representative basis, their representative action on behalf of subclass A has no likelihood of success on the merits. Accordingly, the plaintiffs' request for the Court to release medically vulnerable members of subclass A on unsecured or non-monetary bail conditions pending review of their habeas corpus claims is moot.
B. Section 1983 claim The Court next addresses the question of likelihood of success on the plaintiffs' section 1983 claim, dealing with conditional class certification first, followed by the merits. The Court then addresses certain provisions of the PLRA as applied to the section 1983 claim.
1. Conditional class certification For their section 1983 claim, the plaintiffs seek class-wide relief in the form of a preliminary injunction. But because the plaintiffs only recently filed the lawsuit, there has not yet been a class certification ruling. As the Court indicated in its TRO opinion, “[t]his does not foreclose the possibility of relief for the plaintiffs at this stage, because a district court has general equity powers allowing it to grant temporary or preliminary injunctive relief to a conditional class.” Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *3 (citing Lee v. Orr, No. 13 C 8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013); Al Otro Lado v. Wolf, 952 F.3d 999, 1005 n.4 (9th Cir. 2020);
Gooch v. Life Inv'rs Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012); Howe v. Varity Corp., 896 F.2d 1107, 1112 (8th Cir. 1990)). “Furthermore, Federal Rule of Civil Procedure 23(b)(2) ‘does not restrict class certification to instances when final injunctive relief issues’ and permits certification of a conditional class for the purpose of granting preliminary injunctive relief.” Id. (quoting Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)).
As indicated, to bring a class action a plaintiff must show that the proposed class meets the four requirements of Rule 23(a): “numerosity, commonality, typicality, and adequate representation.”
Wal-Mart, 564 U.S. at 349, 131 S.Ct. 2541. In addition, “the proposed class must satisfy at least one of the three requirements listed in Rule 23(b).” Wal-Mart, 564 U.S. at 345, 131 S.Ct. 2541. The plaintiffs rely on Rule 23(b)(2).
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*22 As an initial matter, the Court must clarify the scope of the class or subclasses for which the plaintiffs have sought certification. They assert count 1 under section 1983 on behalf of all putative members of a class consisting of “all people who are currently or who will in the future be housed in the Cook County Jail for the duration of the COVID-19 pandemic.” Compl. (dkt. no. 1) ¶ 60. In their reply brief in support of their motion for a preliminary injunction, however, the plaintiffs indicate that they also request injunctive relief for claims under section 1983 specifically for the putative members of proposed subclass B, which consists of “all people who are currently housed on a tier where someone has already tested positive for the coronavirus,” id. ¶ 62. See, e.g., Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 29 (requesting the transfer of members of putative subclass B). Accordingly, the Court takes this as meaning that, with respect the section 1983 claim, the plaintiffs seek injunctive relief on behalf of both the overall class and subclass B.
The parties dispute whether the class and subclass B satisfy each requirement of Rule 23, except for numerosity. The Court's analysis earlier in this opinion finding that subclass A (the subclass seeking habeas relief) satisfies the typicality and commonality requirements apply to the overall class and subclass B as well. Specifically, the class and subclass B satisfy the commonality requirement because their members “have suffered the same injury” and their claims “depend upon a common contention” for which class action proceedings will “generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541 (emphasis omitted). As with subclass A, the claims members of the class and subclass B raise at least one common question that satisfies Rule 23(a)'s commonality requirement: whether coronavirus presents so severe a risk of harm to those in the Sheriff's custody that their conditions of confinement are unconstitutional. For the reasons previously discussed, Rule 23(a)'s commonality requirement does not involve whether each member of the class would be entitled to identical relief.
The Class and subclass B also satisfy Rule 23(a)'s typicality requirement. Each member's section 1983 claim arises from the Sheriff's response to the coronavirus pandemic—“the same
event or practice or course of conduct”—and “is based on the same legal theory.” See Lacy, 897 F.3d at 866 (alteration omitted).
The Court's analysis under Rule 23(b)(2), however, differs from its analysis regarding the habeas corpus claim. Again, Rule 23(b)(2) allows for class certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive
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relief...is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). It “applies only when a single injunction or declaratory judgment would provide relief to each member of the class,” not “when each individual class member would be entitled to a different injunction.” WalMart, 564 U.S. at 360, 131 S.Ct. 2541.
A good deal of the injunctive relief that the plaintiffs seek would provide relief to the entire class via a single order. Specifically, on behalf of the overall class, the plaintiffs request a single order mandating social distancing and/or extending the TRO or converting it to a preliminary injunction, which would provide the same relief to each class member. Accordingly, the class satisfies the requirements of Rule 23(b) to the extent the plaintiffs request relief under section 1983 mandating social distancing and/or extending the TRO or converting it into a preliminary injunction.
The plaintiffs' requests for prisoner transfers and/or releases on behalf of subclass B, however, likely would entail individual determinations to some degree. The parties do not dispute that the PLRA applies to the plaintiffs' section 1983 claim or that the 1983 claim involves prison conditions. As discussed earlier with regard to the habeas corpus claim, before granting prospective or preliminary injunctive relief on the section 1983 claim, the PLRA requires the Court to “give substantial weight to any adverse impact on public safety,” in addition to making other findings. 18 U.S.C. § 3626(a)(1)(A), (a)(2). As indicated, the Sheriff contends that these individual determinations prevent certification under 23(b)(2). As the Court has discussed, the plaintiffs contend (albeit only in a footnote) that a court would not be required to make those individual determinations because a court could grant a single injunction while delegating those questions to the Sheriff. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 21 n.16; see also Brown, 563 U.S. at 537–38, 131 S.Ct. 1910 (three-judge court adequately considered “public safety by leaving” decision “of how best to comply with its population limit to state prison officials”). The Court recognizes that analysis of whether the Sheriff may exercise discretion in carrying out a transfer or release order may be different for the section 1983 claim. Among other differences, a petition for habeas corpus contemplates a singular form of relief with regard to habeas—release from custody—whereas a court has a broader spectrum of possible relief under
section 1983. See Rumsfeld, 542 U.S. at 435, 124 S.Ct. 2711; Preiser, 411 U.S. at 484–86, 489, 93 S.Ct. 1827. The range of injunctive relief available under section 1983 may allow courts to “leave details of implementation to [a] State's discretion by leaving sensitive policy decisions to responsible and competent policy state officials.” See, e.g., Brown, 563 U.S. at 538, 131 S.Ct. 1910. The Court need not decide that issue now, however, because, as it will explain later in this
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opinion, at this point it concludes that the predicate under the PLRA for convening a three-judge court or ordering prisoner transfers has not been established.
*23 In sum, the Court conditionally certifies the class to the extent the plaintiffs request relief under section 1983 requiring social distancing and/or extending the TRO or converting it to a preliminary injunction. The Court declines to decide whether subclass B satisfies the requirements of Rule 23(b) because it is not necessary to do so at this time.
2. Likelihood of success on the merits The injunctive relief requests remaining for determination are the class's requests to require social distancing throughout the Jail and (it appears) advance identification and further screening of detained persons with conditions that make them more vulnerable to severe health consequences from coronavirus disease, as well as their request to convert the TRO to a preliminary injunction. (The Court addresses in later sections the plaintiffs' request to require the Sheriff to transfer detainees out of the Jail and to convene a three-judge panel.)
The claims of the class arise under the Due Process Clause of the Fourteenth Amendment. “When a state actor [ ] deprives a person of his ability to care for himself by...detaining him..., it assumes an obligation to provide some minimum level of well-being and safety.” Johnson v. Rimmer, 936 F.3d 695, 706 (7th Cir. 2019) (quoting Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir. 1998)). The Due Process Clause requires a jailer to provide a pretrial detainee with food, shelter, and basic necessities, including reasonably adequate sanitation, ventilation, bedding, hygienic materials, and utilities, Hardeman v. Curran, 933 F.3d 816, 820 (7th Cir. 2019), and to “meet[ ] the person's medical needs while he is in custody,” Johnson, 936 F.3d at 706. More broadly, the Due Process Clause protects pretrial detainees, who “have not been convicted of anything,” Miranda v. County of Lake, 900 F.3d 335, 350 (7th Cir. 2018), from conditions that “amount[ ] to punishment.” Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2467, 192 L.Ed.2d 416 (2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); Hardeman, 933 F.3d at 823.
Here there is no question that the plaintiffs' claims involve conditions that are sufficiently serious to invoke the Fourteenth Amendment; the Sheriff does not argue otherwise. A pretrial detainee may establish a Fourteenth Amendment violation based on a condition, or combination of conditions, posing an “unreasonable risk of serious damage to [his] future health.” Henderson v. Sheahan, 196 F.3d 839, 847 (7th Cir. 1999) (decided under Eighth Amendment “deliberate indifference”
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standard). See Helling v. McKinney, 509 U.S. 25, 33, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (Eighth Amendment case; “exposure of inmates to a serious, communicable disease” that poses a risk of future harm is a deprivation sufficiently serious to invoke constitutional protections). This is precisely where persons detained in the Jail find themselves. The coronavirus is indisputably present in the Jail. And the persons detained there are housed in settings that facilitate its transmission. This is true throughout the Jail, given the close proximity in which even single-celled detained persons are housed and the fact that they occupy common areas like bathrooms, showers, and dayrooms where other inmates congregate or have been present. And it is particularly true for detained persons who are doubled celled and those who are still housed in the dormitory units, where dozens (or more) spend twenty-four hours per day, or close to it, in the same room. It is equally undisputed that persons are detained in these settings with the knowledge of the Sheriff and his personnel, who have assigned them to live in these quarters while aware of the risks of virus transmission. All of this, taken together, is sufficient for the plaintiffs to have well more than a “better than negligible chance,” see Whitaker, 858 F.3d at 1046, of establishing the threshold requirement of their due process claim—conduct that the Sheriff knows puts detainees at a significant risk of serious harm from coronavirus. See Kingsley, 135 S. Ct. at 2472; Miranda, 900 F.3d at 353. Meeting this threshold requirement of the due process standard does not require an intent to cause harm; it requires only knowledge of “the physical consequences” of one's conduct.
Kingsley, 135 S. Ct. at 2472.
*24 The primary dispute before the Court, and the point on which the Sheriff focuses his defense, involves the second requirement of a due process claim. To succeed on their claim, the plaintiffs must show that the Sheriff's conduct in addressing the risks posed by exposure to coronavirus is objectively unreasonable in one or more respects. See, e.g., McCann v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018). At the preliminary injunction stage, however, the plaintiffs are not required to prove this definitively; they are required only to establish a reasonable likelihood that they will ultimately succeed in proving it.
The plaintiffs concede that the Sheriff and others have taken significant steps to reduce the Jail's population and to decrease the number of persons housed in groups or double celled. They argue, however, that the Sheriff's actions do not go far enough and that detained persons continue to be unreasonably exposed to a risk of serious harm. The plaintiffs contend that social distancing is not being enforced even in units where detained persons are single celled, given joint usage of showers, toilet facilities, and dayrooms. And, they say, social distancing is not even a possibility for the hundreds who are double celled or remain in dormitory units. The plaintiffs also contend that despite policies promulgated by the Sheriff, proper sanitation—in particular, frequent cleaning of surfaces and facilities used in common, distribution of cleaning materials to detainees, and so on—
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is not actually being carried out on the ground. Finally, the plaintiffs contend—and it is undisputed —that nothing has been done by the Sheriff to enable him to identify, in advance, detained persons with medical or other conditions that make them particularly vulnerable to serious illness should they contract the coronavirus.
The Sheriff argues that he and others have taken significant steps to reduce the risk to detained persons from coronavirus. One critical aspect of this is a very significant reduction in the overall population of the Jail, accomplished by bond reductions issued by judges and by expansion, to its limits, of the Sheriff's electronic home monitoring program. In addition, in recent weeks, there have been far fewer new detainees admitted on a daily basis than has been the case historically, presumably due to fewer arrests. At the same time, the Sheriff has taken steps to increase capacity, including by reopening previously shuttered buildings and parts of buildings within the Jail complex. Together, these actions have enabled the Sheriff to take further steps to separate persons who remain detained in the Jail. Specifically, a far greater percentage of detainees are now in cells by themselves. And far fewer are housed in the dormitory units than before, with many having been transferred to single-cell units. In addition, at the Sheriff's direction, detainees have been provided guidance regarding social distancing. The Sheriff has also instituted policies to enhance sanitation practices and to carry out these policies. He has also implemented the distribution of facemasks to certain detained persons—in particular, those who are in quarantine—consistent with the availability of supplies, and he has undertaken efforts to acquire more. (Some of this has taken place as a result of the TRO entered on April 9.)
It cannot reasonably be disputed that the Sheriff has undertaken a significant, and impressive, effort to safeguard detained persons in his custody from infection by coronavirus. And based on the record, including the testimony of Executive Director Miller at the April 23 hearing, the Court is satisfied that the Sheriff and his staff have acted in good faith, with the goal of protecting the people placed in his custody, consistent with his obligation to maintain security.
*25 Were this an Eighth Amendment case involving convicted prisoners, the efforts the Court has just described likely would be the end of the story. To prevail in a case involving a convicted prisoner, a plaintiff is required to show that the prison official was deliberately indifferent to the risk of harm to the plaintiff—in other words, the official knew about but disregarded that risk. See, e.g., Orr v. Shicker, 953 F.3d 490, 499 (7th Cir. 2020); Garcia v. Armor Corr. Health Serv., Inc., 788 F. App'x 393, 395 (7th Cir. 2019). Were the plaintiffs in this case required to make that showing, they would be unable to prevail; the Sheriff has been anything but deliberately indifferent to the risk of harm to pretrial detainees from coronavirus.
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But because this is a case involving persons detained prior to an adjudication of their guilt or innocence, the Sheriff's good intentions are not dispositive of the plaintiffs' claims. There is a critical difference between a claim regarding conditions of confinement brought by pretrial detainees like the plaintiffs and one brought by a convicted prisoner under the Eighth Amendment, who unlike a pretrial detainee can constitutionally be subjected to punishment. See Hardeman, 933 F.3d at 824 (Eighth Amendment standard is “more demanding”). The standard by which a court evaluates a claim by a pretrial detainee like the plaintiffs “is solely an objective one.”
Kingsley, 135 S. Ct. at 2473. The plaintiffs are not required to show that the Sheriff had an intent to punish or to harm them, id.; indeed, they need not show any sort of malicious or bad intent at all. Rather, what they are required to show—actually, on a preliminary injunction, simply establish a reasonable likelihood of showing—is that the Sheriff's conduct with respect to the particular condition has been objectively unreasonable in one or more respects. See McCann, 909 F.3d at 886. In applying this standard, a court “focus[es] on the totality of facts and circumstances” the defendant faced “to gauge objectively—without regard to any subjective belief held by the [defendant]—whether the response [to the conditions] was reasonable.” Id.
The plaintiffs contend that the Sheriff's response to the coronavirus outbreak at the Jail has not been objectively reasonable or sufficiently protective of the people in his custody, at least with respect to the issues currently before the Court—social distancing, sanitation, and identification and monitoring of highly vulnerable detainees. In evaluating the plaintiffs' contentions, the Court assesses objective reasonableness “from the perspective of ‘a reasonable [official] on the scene,’ based on what the [official] knew at the time.” Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *9 (quoting Kingsley, 135 S. Ct. at 2473). The question, in the present context, is whether the Sheriff “acted reasonably to mitigate the risks to [the] health and safety of detainees.” Id. (citing Hardeman, 933 F.3d at 825; Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)). And in determining the reasonableness of the Sheriff's actions, the Court “must account for his legitimate interest in managing the Jail facilities,” and it must “defer to policies and practices that ‘are needed to preserve internal order and discipline and to maintain institutional security.’ ” Id. (quoting
Kingsley, 135 S. Ct. at 2473); see Bell, 441 U.S. at 547, 99 S.Ct. 1861.
The fact of the matter is that the Sheriff's actions have not eliminated the risk to detained persons; far from it. But this, too, is not dispositive. Although a jailer must make a reasonable effort to abate conditions that pose an excessive risk to the health or safety of the people in his custody, the fact that he fails to prevent actual harm does not mean that his response was unreasonable. See Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008) (applying Eighth Amendment deliberate indifference standard). More specifically, the Constitution does not require a detention facility to provide “foolproof protection from infection” by a communicable disease. Forbes v. Edgar,
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112 F.3d 262, 266 (7th Cir. 1997) (applying Eighth Amendment standard); see also Smith v. Sangamon Cty. Sheriff's Dep't, 715 F.3d 188, 191 (7th Cir. 2013) (applying Eighth Amendment standard; “Prison and jail officials are not required to guarantee [a] detainee's safety.” (internal quotation marks omitted)). That said, the ongoing risk to detained persons at the Jail, confirmed by increases in the number who have tested positive for coronavirus and the death of six detained persons from coronavirus disease as of April 23, is the backdrop against which the Court must view the Sheriff's conduct.
*26 The Court begins with the question of social distancing. As the plaintiffs see it, a policy that fails to fully implement social distancing throughout the Jail—which indisputably has not happened—cannot possibly be considered an objectively reasonable response to the coronavirus outbreak there. At least until full social distancing is enforced, the plaintiffs contend, detained persons face an unacceptably high risk of death or serious harm to their health.
The Sheriff's position is likewise simple and straightforward. His implementation of a coronavirus response plan at the Jail complies, he says, with the CDC Guidelines, and for this reason his actions have been objectively reasonable. The Guidelines, he points out, do not require social distancing in correctional facilities where it is not feasible given physical space, population, and staffing. 8 The plaintiffs respond that the CDC Guidelines are not a surrogate for constitutional due process requirements.
8 Largely based on this aspect of the CDC Guidelines, the Court, in deciding the TRO motion, declined to require the Sheriff to enforce social distancing other than during the intake process, one very obvious point at which social distancing was not taking place. The TRO ruling, however, is neither final nor binding. The Court has reassessed the matter with the benefit of more thorough briefing and a more complete record.
To support his position that compliance with the CDC Guidelines should effectively be dispositive, the Sheriff cites Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001). There the Seventh Circuit held that a convicted prisoner could not show that prison officials had been deliberately indifferent to his lack of access to safe drinking water, because radium concentrations in the prison's drinking water were at a level that the U.S. Environmental Protection Agency deemed at the time to be safe. Id. at 472– 73. The court noted that because prisoners are not entitled to better quality of air, water, or environment than the general public, prisons do not have “a duty to take remedial measures against pollution or other contamination that the agencies responsible for the control of these hazards do not think require remedial measures.” Id.
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The Sheriff's reliance on Carroll is unavailing. First of all, the plaintiffs do not suggest any entitlement on the part of pretrial detainees to conditions that exceed health and safety standards applicable to the general public. But that aside, the CDC Guidelines, unlike the EPA standards relied upon in Carroll, do not say or suggest that compliance makes detained people safe. This is particularly so in view of the fact that the Guidelines include feasibility qualifiers, particularly in relation to social distancing. See CDC Guidelines at 1, 3, 4, 11. Given this limitation, the Guidelines are not the same as a safety standard set by a regulatory agency.
For their part, the plaintiffs suggest that the CDC Guidelines “shed no light” on whether the Sheriff's conduct has been objectively reasonable, in conformity with constitutional requirements. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 10 (quoting Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 1996)). The Court disagrees with this as well. The plaintiffs rely to a significant extent on Thompson. There the court, considering a claim of excessive force against a police officer—a claim also determined by a standard of objective reasonableness—stated that a policy on the use of force established by the police department was “completely immaterial [on] the question of whether a violation of the federal constitution has been established.” Id. at 454. But later, in United States v. Brown, 871 F.3d 532 (7th Cir. 2017), the Seventh Circuit clarified that Thompson simply means that a police department's own policies do not establish the standard of what is reasonable for purposes of the Constitution. See id. at 537 (“Despite its strong language, Thompson should not be understood as establishing a rule that evidence of police policy or procedure will never be relevant to the objective-reasonableness inquiry.”). The court explained in Brown that, in the fact-intensive objective reasonableness analysis, evidence of national or widely used police policies could be relevant to helping a factfinder understand how a reasonable officer might have behaved under the circumstances that faced the defendant. Id. at 538. The court noted that the relevance of such policy evidence may turn on the “factual complexity” of the circumstances facing the defendant, and it may be less relevant in circumstances in which a factfinder can rely on common sense to determine the reasonableness of conduct. See id.
*27 Here—unlike, perhaps, a relatively simple excessive force claim against an arresting officer—the circumstances facing the Sheriff in operating the Jail are quite complex. In these circumstances, guidance from an expert body like the CDC is beneficial in assessing the objective reasonableness of the Sheriff's conduct in the face of an ongoing outbreak. Indeed, in Forbes, the Seventh Circuit concluded that a prison's response to a case of active tuberculosis in its facility had
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been objectively reasonable in part because it had implemented and effected the recommendations of the CDC. Forbes, 112 F.3d at 267.
In sum, the CDC Guidelines are an important piece of evidence to consider in assessing the Sheriff's conduct, but they cannot be appropriately viewed as dispositive standing alone. Indeed, the CDC's recommendations on tuberculosis were not dispositive in Forbes; the court also considered other facts—noting, for example, that the prison had only one case of active tuberculosis, “a far cry” from an outbreak. Id. As the Court has indicated, one reason why the CDC Guidelines are not appropriately viewed as dispositive of the plaintiffs' due process claims is the way in which they account for feasibility. Although feasibility may be a consideration in determining objective reasonableness, see Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010) (decided under deliberate indifference standard), no case of which the Court is aware sets it as a dispositive factor. That, however, is exactly what the CDC Guidelines do, at least if read as the Sheriff suggests: they set a feasibility or practicality limitation on social distancing practices that they also call “a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” CDC Guidelines at 4. One can certainly understand why the CDC, a public health body, has acknowledged these sorts of limits upon its ability to prescribe guidelines for managing jails. But from a constitutionallaw standpoint, it is difficult to believe that “do what you can, but if you can't, so be it” 9 satisfies a jailer's constitutional obligation to take objectively reasonable steps to mitigate known risks to the life and health of people in his custody who are detained awaiting determination of their guilt or innocence.
9 The Court does not intend by this to suggest that this is the attitude of the Sheriff, the Executive Director, or their staff. Here the Court is characterizing a legal argument, not any person's behavior.
Currently the Sheriff is housing hundreds of detained persons under conditions that make social distancing completely impossible or nearly so, or at least very difficult. Those for whom it is completely impossible are the detainees who are double celled. Those for whom it is at least very difficult and likely impossible are detainees who are housed in dormitory units that are not operating at a greatly reduced capacity. Specifically, a significant number of the existing dormitory units are operating at or greater than fifty percent capacity. Based on the record before the Court, social distancing is practically impossible in such units, and this cannot be completely attributed to detainee conduct or misconduct: if people are kept in groups in relatively close quarters, it is entirely predictable that they will have difficulty maintaining separation.
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At the current stage of the pandemic, group housing and double celling subject detainees to a heightened, and potentially unreasonable and therefore constitutionally unacceptable, risk of contracting and transmitting the coronavirus. Such arrangements make it impossible or unduly difficult to maintain social distancing, a “cornerstone” of the reduction of coronavirus transmission among detainees. The Court, however, must account for and give deference to the Sheriff's interest in managing the Jail facilities and to practices that are needed to preserve order and discipline and maintain security. See Kingsley, 135 S. Ct. at 2473; Bell, 441 U.S. at 547, 99 S.Ct. 1861. These include documented considerations that make group or double celling appropriate or necessary. Feasibility limitations imposed by existing or otherwise available physical facilities are also taken into account, though this is not and cannot be a controlling factor. In this regard, it is worth noting that despite general statements by both sides to the contrary, it does not appear, based on the evidence, that the Sheriff has yet hit the feasibility limit on getting detainees out of group housing, even if one considers only the Jail complex itself. See Apr. 23, 2020 Hearing Tr. at 57:2–19 (testimony by Executive Director Miller referencing the possibility of further moves of detained persons out of dormitories).
*28 Based on the evidence submitted, the Court finds that the plaintiffs are reasonably likely to succeed on their contention that group housing or double celling of detained persons is objectively unreasonable given the immediate and significant risk to their life and health from transmission of coronavirus, except in the following situations:
• Persons detained in tiers or dormitories currently under quarantine following a positive test for the coronavirus within the tier or dormitory, as this makes it inadvisable to transfer them to other housing arrangements until the quarantine period has expired (what the Sheriff refers to as “quarantine tiers”).
• Detained persons who have tested positive for the coronavirus and are under medical observation (what the Sheriff refers to as “isolation tiers”), a housing arrangement that the CDC Guidelines specifically authorize.
• Detained persons who have tested positive for coronavirus and are recovering (what the Sheriff refers to as “convalescent tiers”), which the CDC Guidelines likewise authorize.
• Double-celled or dormitory-housed detainees for whom there is a documented determination by a medical or mental health professional that single-celling poses a risk of suicide or selfharm.
• Persons detained housed in a dormitory unit that is at less than fifty percent capacity, which the record reflects will permit adequate social distancing.
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• Detained persons committed, at the documented direction of a medical or mental health professional, to a group housing unit that is equipped for medical or mental health treatment, if but only if there is not available space in an appropriate housing or medical unit that permits full social distancing.
Detained persons housed in any of the listed “acceptable” arrangements will, however, need facemasks that are replaced at appropriate intervals and must be provided with instruction on how to use a facemask and the reasons for its use. They also must be instructed, at regular intervals, on the importance of social distancing.
The Court has omitted from the list above two categories of detained persons referenced in Executive Director Miller's affidavits and testimony: persons put into group housing or double celled because of conduct issues (including those who Miller referred to during his testimony as “our disorderly...population,” Apr. 23, 2020 Tr. at 52:6) or for reasons associated with the PREA. On the record as it currently stands, the plaintiffs have a reasonable likelihood of succeeding on a contention that it is objectively unreasonable to effectively preclude social distancing for such persons. With regard to PREA detainees, the proposition that they cannot be single celled is counterintuitive, to say the least. 10 And with regard to individuals with conduct issues, without more the Court cannot say that there is an objectively reasonable basis to hold them in a setting that does not permit adequate social distancing. With regard to detained persons in these categories, the Court is willing to entertain a properly-supported request by the Sheriff to include them in the category of persons who may be appropriately detained in group housing, perhaps with appropriate distancing.
10 This is so whether these persons are alleged perpetrators or likely victims, which is not clear from the record.
Beyond what the Court has described, the plaintiffs have not established a reasonable likelihood of success on their due process claims. Specifically, the Court is not prepared to say that it is constitutionally inappropriate, in light of the coronavirus pandemic, to detain persons in the Jail in any form of group housing or to detain them in single cells given the likelihood of multiple uses of common facilities and areas. This would be tantamount to saying that, in the present circumstances, the Constitution prohibits detaining people in jails. The plaintiffs have not established, and are not likely to be able to establish, that this is so.
*29 Next, the Court addresses the plaintiffs' contentions regarding advance identification of detained persons who are especially vulnerable to severe illness or death if they contract the coronavirus. The Court remains unpersuaded that the plaintiffs have a reasonable likelihood
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of showing that this is objectively unreasonable and thus violative of those class members' constitutional rights. The plaintiffs' experts opined that screening is important so that vulnerable individuals can be monitored for symptoms. Miller explained, however, that any person with symptoms consistent with coronavirus disease is already provided immediate screening and treatment, and medical professionals treating such a person will have immediate access to his or her medical records (which include an inventory of medical conditions reported by the detained person upon intake or thereafter). Though, as the Court stated in its TRO decision, advance identification of persons with heightened vulnerability would appear to be a good practice and perhaps a best practice, the plaintiffs have not shown that failing to do so is, under the circumstances, objectively unreasonable.
Finally, the Court addresses the plaintiffs' request for extension of the TRO. The TRO required the Sheriff to establish and implement a policy regarding coronavirus testing; provide cleaning supplies to detainees and staff and soap and/or hand sanitizer to detained persons; establish and implement a policy regarding sanitization of frequently touched surfaces; and provide facemasks to all detained persons who are quarantined. Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *14–15. The plaintiffs ask the Court to convert these requirements into a preliminary injunction. The Sheriff argues that the Court need not extend or convert the TRO because he has complied with it and continues to do so.
A court “retains the power to grant injunctive relief” even after the defendant ceases the allegedly unlawful conduct. Milwaukee Police Ass'n v. Jones, 192 F.3d 742, 748 (7th Cir. 1999); see also
United Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l, 563 F.3d 257, 275 (7th Cir. 2009). The moving party must show that such relief still is required. Milwaukee Police Ass'n, 192 F.3d at 748. “The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” Id. (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)); see also United Air Lines, Inc., 563 F.3d at 275 (“The court may consider how easily former practices might be resumed at any time in determining the appropriateness of injunctive relief.”). Where the cessation of an allegedly wrongful activity occurred “only after a lawsuit has been filed,” a district court is “within its discretion” to find that the cessation was “not voluntary, and that even a voluntary cessation is not determinative.” Id.
Although the Sheriff appears to have complied with the TRO, the Court cannot say that the constitutional violations the Court sought to address will not recur absent an extension of the TRO's requirements. The Sheriff's actions to develop policies on sanitation and coronavirus testing, distribute soap and cleaning supplies, and distribute facemasks to detained persons who are
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quarantined—at least those done after the April 9 TRO—cannot be said to have been undertaken entirely voluntarily. Rather, they were done in response to the TRO, and there is at least some evidence of problems in carrying out the TRO's directives. In addition, without a court order, there is at least a possibility that these important measures could slip to the wayside, despite the Sheriff's best intentions, as he works to manage the complexities of the Jail during this public health crisis. For these reasons, the Court concludes that it is appropriate to convert the TRO to a preliminary injunction.
3. Transfer The plaintiffs next request the transfer of members of subclass B out of the Jail “to another safe location in the Sheriff's custody.” Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 2. Until recently, they primarily suggested that such a location could include “home confinement or electronic home monitoring.” Pls.' Resp. to April 3, 2020 Ord. (dkt. no. 26-1) at 17; see also Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 16–17 (requesting transfer without specifying the location to which detained people should be transferred). But in their most recent reply brief, they suggest that this also could include transfer to “another correctional space, a hospital or medical facility, a clinic, [or] administrative furlough.” Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 29. The Sheriff contends that, under the PLRA, only a three-judge court may order such transfers and that, regardless, he lacks the authority to transfer detainees to electronic home monitoring. The Court starts with the threshold issue: whether this Court may, on its own, order the transfer of detained persons as proposed by the plaintiffs.
*30 As indicated, under the PLRA, “[i]n any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court.” 18 U.S.C.§ 3626(a)(3)(B). The PLRA defines “prisoner release order” as “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4). It defines “prison” as “any Federal, State, or local facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law.” Id. § 3626(g)(5). This definition plainly includes the Jail.
The plaintiffs contend that the transfer of detained persons that they seek would not be a prisoner release order because it would simply involve moving them from one place under the Sheriff's control to another place under his control. That misses the mark. Transfers to home confinement, administrative furlough, or electronic home monitoring in particular—which, at least up until they filed their reply brief, are the primary forms of transfer the plaintiffs have requested—would
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constitute prisoner release orders because they would have “the purpose or effect of reducing [the] population” of the Jail. Id. § 3626(g)(4); Money, ––– F.Supp.3d at ––––, 2020 WL 1820660, at *12 (transfers of prisoners to temporary medical furlough or home detention within the state's custody would constitute prisoner release orders because “the PLRA does not focus on custodial status under state law, nor does it say anything about whether the reduction of population is temporary or permanent.”). Population reduction is the “whole point” of the transfers the plaintiffs seek—they propose to prevent or curb the spread of coronavirus to detained persons, and in particular those who are vulnerable, by reducing the Jail's population. See id. at ––––, at *13.
The transfers sought by the plaintiffs would constitute prisoner release orders for an additional reason: they would direct the release of detained persons out of the Jail. See 18 U.S.C. § 3626(g)(4). The plaintiffs contend that, for people confined at home at the direction of a state authority, a home may amount to a prison within the meaning of the PLRA. To be sure, the list of institutions that qualify as prisons under the PLRA is not limited to those specified in the statute. Witzke v. Femal, 376 F.3d 744, 753 (7th Cir. 2004) (confinement in a drug rehabilitation halfway house qualified as confinement in a correctional facility under the PLRA). But, as defined by the PLRA, a prison is a facility. Id. § 3626(g)(5). The common definition of a facility is “a building or establishment that [provides a service or feature of a specified kind].” 11 That does not appear to cover a person's home; a home, even one in which a person is residing subject to a court or law enforcement authority's order, is not a place that provides specified services or features. 12 It is hard to see the PLRA's definition of “prison” stretching that far. In addition, even if home confinement and/or electronic home monitoring constitutes imprisonment under state law (an issue the Court need not decide), an order mandating the transfer of prisoners out of the Jail to confinement in their homes likely would constitute a prisoner release order because it would “direct[ ] the release [of prisoners] from...a prison” to another place of confinement, 18 U.S.C. § 3626(g)(4).
11 Facility, Oxford English Dictionary Online, https://www.oed.com/view/Entry/67465? redirectedFrom=facility& (last visited April 26, 2020).
12 Home, Oxford English Dictionary Online, https://www.oed.com/view/Entry/87869? rskey=8yYRsS&result=1&isAdvanced=false (last visited April 26, 2020).
*31 The plaintiffs, however, appear to take the position even if prisoner transfers have the effect of reducing the prison population, a single-judge court may order them where the basis for the order is not crowding or overcrowding. They may be correct. One of the PLRA's requirements for the entry of a prisoner release order by a three-judge panel is that “crowding is the primary cause of the violation of a Federal right.” 18 U.S.C. § 3626(a)(3)(E)(i). Some courts have concluded that single-judge courts can order the transfers of prisoners, at least to other facilities, where the purpose
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of the transfer involves the prisoners' medical needs or vulnerabilities. See Plata v. Brown, No. C01-1351 TEH, ––– F.Supp.3d ––––, 2013 WL 12436093, at *9–10, 15 (N.D. Cal. June 24, 2013) (ordering the transfer to other institutions of certain medically high-risk categories of prisoners out of two prisons where they were at risk of contracting Valley Fever, a disease not spread through
human-to-human contact); Reaves v. Dep't of Correction, 404 F. Supp. 3d 520, 523–24 (D. Mass. 2019) (denying a stay pending appeal and explaining why the PLRA permitted the court to order the transfer of a quadriplegic prisoner to a medical facility equipped to care for him in
Reaves v. Dep't of Correction, 392 F. Supp. 3d 195 (D. Mass. 2019), appeal docketed, No. 19-2089 (1st Cir. Nov. 4, 2019)); see also Money, 2––– F.Supp.3d at ––––, 020 WL 1820660, at *12 n.11 (suggesting that a single-judge courts can order prisoner transfers for reasons other than crowding). This conclusion seems correct: because three-judge courts can order prisoner releases only where crowding is the primary cause of the violation of a federal right, 18 U.S.C. § 3626(a) (3)(E)(i), to ensure the vindication of people in custody's constitutional rights, the PLRA must be read to permit courts to order transfers where some other condition causes the violation of a constitutional right. See Plata, ––– F.Supp.3d at ––––, 2013 WL 12436093, at *9–10.
But a single judge's ability to order a prisoner transfer for reasons other than crowding makes no difference in this case: the primary basis for the transfers the plaintiffs request is to reduce crowding in the Jail. See Money, ––– F.Supp.3d at ––––, 2020 WL 1820660, at *13 (plaintiffs' suggestion that they did not seek a remedy for overcrowding “contradict[ed] the allegations of their complaint and their entire theory of the case”). To put it in simple terms, one of plaintiffs' core contentions is that their constitutional rights are being violated because social distancing, which they contend is crucial to protect their health, has not been or cannot be accomplished at the Jail. Social distancing is essentially the converse of overcrowding. Thus it is apparent that the plaintiffs' request for prisoner transfers or releases is based on overcrowding.
To be more specific, one of the central allegations in the complaint is that the crowded conditions in the Jail “ensure the continued[,] rapid, uncontrolled spread of COVID-19 within the Jail and beyond—because the Jail is not and cannot be isolated from the larger community” and “because the Jail is a crowded, congregate environment.” Compl. (dkt. no. 1) ¶ 2; see also, e.g., id. at ¶¶ 20, 25–26, 30–35, 37–41, 46, 51. The plaintiffs hinge their legal arguments on the contention that “without a reduction of the Jail's population, the lives and safety of the persons confined there cannot be reasonably protected” because “social distancing is not possible with the current jail population.” Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 1; see also, e.g., Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 1 (“The virus is spreading rapidly in the jail..., and that is not surprising: People are sleeping within three feet of each other, eating and using showers in close proximity to each other, and touching the same surfaces.”). They contend that the imperative of social distancing is an undisputed “medical necessity” and that “[a]ll of the evidence
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in this record supports that proposition.” Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 3. As indicated, they cite evidence from a range of sources—including the CDC, the governor of Illinois, the City of Chicago, and medical and epidemiological experts— reflecting that social distancing is among the most effective and important interventions to reduce the spread of coronavirus and protect public health right now. Id. at 3–5; see also, e.g., Pls.' Renewed Mot. for Prelim. Inj. (dkt. no. 55) at 4–8. And, crucially, they contend that social distancing at the jail is impossible because of its current population levels. Id. at 10 (“[I]f the current population of a jail unavoidably creates intolerable risk to life and health then the current population must change.”); see also id. at 10–13; Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 6–8. In short, the plaintiffs are requesting transfers because social distancing is impossible; with that in mind, it is incongruous to contend that crowding is not the basis or primary basis for seeking compelled transfers. See Money, ––– F.Supp.3d at ––––, 2020 WL 1820660, at *13.
*32 Citing United States v. Cook County, 761 F. Supp. 2d 794 (N.D. Ill. 2000), the plaintiffs contend that the PLRA applies only to prisoner release orders that are “explicitly related to population caps,” not to all such orders stemming primarily from crowding. Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 32 (citing id. at 796 –97). That interpretation stretches the statute's language too far. Even if “[s]ponsors of the PLRA were especially concerned with courts setting ‘population caps,’ ” Plata, ––– F.Supp.3d at ––––, 2013 WL 12436093, at *10 (quoting Gilmore v. California, 220 F.3d 987, 998 n. 14 (9th Cir. 2000)), the PLRA's text does not limit prisoner release orders issued by three-judge courts to only orders that set population caps, see 18 U.S.C. § 3626(a)(3)(E). United States v. Cook County does not suggest otherwise. The three-judge court in that case found “that overcrowding [was] a primary cause of unconstitutional conditions at the jail” because it caused, among other things, “excessive force by guards, grossly unsanitary and unhealthy conditions, and grossly inadequate medical (including mental-health) care.” Cook County, 761 F. Supp. 2d at 797. Although these conditions might have existed even without overcrowding, overcrowding made them worse. Id. at 797–98. Thus the purpose of the prisoner release order in Cook County was not merely to set prison caps but, rather, to address constitutional violations caused primarily by overcrowding. See id. The same is true in this case: the severe medical risks posed by coronavirus would exist even if the Jail was not crowded, but the plaintiffs contend the crowding at the Jail significantly enhances those risks and makes the outbreak more challenging to control. The purpose of a transfer order would be to address alleged constitutional violations stemming from coronavirus due to crowding in the Jail, and that is the type of order than only a three-judge court may issue.
4. Three-judge court
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The plaintiffs also have asked the Court to convene a three-judge court “to consider whether and to what extent to enter a prisoner release order.” Pls.' Reply in Supp. of Renewed Mot. for Prelim. Inj. (dkt. no. 64) at 2. Under the PLRA, “[i]n any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court.” 18 U.S.C.§ 3626(a)(3)(B). The Sheriff contends that the requirements for convening a three-judge court have not been met.
The PLRA provides that no court may enter a prisoner release order unless two requirements are met. 18 U.S.C. § 3636(a)(3)(A). First, a court must have “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order.” Id. § 3636(a)(3)(A)(i) (the “previous order requirement”). In addition, the defendant must have “had a reasonable amount of time to comply with the previous court orders.” Id. § 3636(a)(3)(A)(ii) (the “reasonable time requirement”).
Together, these requirements ensure that a three-judge court's prisoner release order is a “last resort remedy.” Brown, 563 U.S. at 514, 131 S.Ct. 1910. A party requesting a prisoner release order and the convening of a three-judge court must file “materials sufficient to demonstrate” that both requirements have been met. Id. § 3636(a)(3)(C). A federal judge can also request sua sponte the convening of a three-judge court if both requirements are met. Id. § 3636(a)(3)(D). The judge need not consider the likelihood of whether a three-judge court would issue a prisoner release order. See Plata v. Schwarzenegger, No. C01-1351-TEH, 2007 WL 2122657, at *1 (N.D. Cal. July 23, 2007).
a. Previous order requirement
The Court starts with the previous order requirement. It previously entered an order for less intrusive relief by issuing the TRO. Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *14– 16. The Sheriff contends that the TRO does not satisfy the PLRA's previous order requirement because it did not include an order requiring social distancing. In the TRO decision, the Court found that the plaintiffs had failed “to show a reasonable likelihood of success on their contention that the Sheriff is acting in an objectively unreasonable manner by failing to mandate full social distancing.” Id. at ––––, at *10. The Court declined to order relief with respect to social distancing throughout the Jail but required the Sheriff to enforce social distancing in connection with the new detainee intake process. Id. at ––––, at *14.
The previous order requirement is “satisfied if the court has entered one order [that] ‘failed to remedy’ the constitutional violation.” Brown v. Plata, 563 U.S. at 514, 131 S.Ct. 1910. Neither
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the statute nor the relevant case law suggests that a court must attempt all possible steps short of release before requesting the convening of a three-judge court. See 18 U.S.C. § 3636; Brown, 563 at 514–16, 131 S.Ct. 1910. And the PLRA does not require a previous order involving a particular type of remedy; instead, it simply requires a previous order that attempted but failed to remedy the constitutional deprivation itself. See id. In Brown, the Supreme Court affirmed an order of a three-judge court mandating a population limit for California's prison system as a remedy for constitutional violations in two class actions, one involving a class of prisoners with serious mental disorders and the other involving prisoners with serious medical conditions. Id. at 499, 502, 131 S.Ct. 1910. The Court found that district courts “acted reasonably when they convened a three-judge court,” despite recent, ongoing plans to address the at-issue constitutional violations, because they “had a solid basis to doubt” that the “additional efforts...would achieve a remedy.” Id. at 516, 131 S.Ct. 1910.
*33 In the TRO, the Court ordered relief less intrusive than a prisoner release order. Specifically, it required the Sheriff to establish and implement policies regarding coronavirus testing and sanitation in the Jail, implement social distancing during the new detainee intake process, provide adequate soap and/or hand sanitizer and sanitation supplies, and provide facemasks to all detained persons who are quarantined. Mays, ––– F.Supp.3d at ––––, 2020 WL 1812381, at *14–15. Because the TRO has not remedied the overall claimed constitutional violation—deficient conditions in the Jail during a pandemic—it satisfied the PLRA's previous order requirement.
b. Reasonable time requirement
Additionally, before a three-judge court is convened under the PLRA, the defendant must have “had a reasonable amount of time to comply with the previous court orders,” as indicated. Id. § 3636(a)(3)(A)(ii). This provision “requires that the defendant have been given a reasonable time to comply with all of the court's orders.” Brown, 563 U.S. at 514, 131 S.Ct. 1910 (emphasis added). In some situations, a court may need “to issue multiple orders directing and adjusting ongoing remedial efforts” while it “attempts to remedy an entrenched constitutional violation through reform of a complex institution.” Id. at 516, 131 S.Ct. 1910. “Each new order must be given a reasonable time to succeed, [and] reasonableness must be assessed in light of the entire history of the court's remedial efforts.” Id. But a court may request the convening of a threejudge court even while its remedial efforts are ongoing; otherwise, a court unreasonably would have “to impose a moratorium on new remedial orders” before a three-judge court considers the issuance of a prisoner release. Id.
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In Brown, the Supreme Court found that defendants in the two consolidated cases had reasonable time to comply with court orders where one court had “engaged in remedial efforts” for five years and the other court had done so for twelve years. Id. Remedial efforts were ongoing when the district courts requested three-judge courts, but those ongoing efforts merely attempted “to solve the crisis” through the same “basic plan[s]” as earlier efforts. Id. at 515, 131 S.Ct. 1910. In one case, a special master the district court appointed to oversee remedial matters had issued over seventy remedial orders. Id. The courts had no “assurance[s] that further, substantially similar efforts would yield success absent a population reduction.” Id. Indeed, advances that had been made in one case were “ ‘slip-sliding away’ as a result of overcrowding.” Id. (quoting courtappointed special master).
The plaintiffs contend that the Sheriff has had a reasonable time to comply with the Court's previous order. They have requested a preliminary injunction ordering social distancing, but, in light of the urgency of the situation, they also have requested the convening of a three-judge court to consider the question of prisoner release. The plaintiffs appear to contend that if an injunction directing social distancing does not remedy the alleged constitutional violations, then only the immediate release of prisoners by a three-judge court will achieve a remedy, so a three-judge court needs to be ready to issue a ruling as soon as that time comes. The Sheriff contends that he has not reasonably had time to comply with any such order because the Court has not directed him to implement social distancing throughout the Jail.
The Court recognizes that determination of what amounts to a “reasonable time” to comply with a court's previous orders may depend on the circumstances, and here the circumstances are extraordinary, involving an infectious virus that can be transmitted quickly from person to person. So here, perhaps, a “reasonable time” may amount to days or a small number of weeks, not years as may be the case in other situations. Undue delays in responding to the coronavirus pandemic may place detained persons' health and lives in imminent danger.
*34 Unlike in Brown, however, the ongoing remedial efforts in this case might remedy the ongoing constitutional violation—which, to be clear, involves the objective reasonableness of the Sheriff's response to the coronavirus outbreak, not existence of coronavirus itself—if given adequate time. The Sheriff has offered evidence that may be understood to suggest that he is making a substantial effort to comply with the Court's order and attempt to improve the conditions of confinement at the Jail in response to the coronavirus pandemic. As detailed earlier in this opinion, he has complied with the TRO by implementing social distancing at intake; developing and implementing a plan to distribute soap, sanitizer, and cleaning suppliers more frequently; and
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providing facemasks to detained persons housed on tiers under quarantine. In addition, he has made efforts to spread out detainees within the Jail, even though the TRO did not mandate it. As detailed earlier, he has opened up previously closed units, doubled the number of persons housed in single-occupancy cells, attempted to ensure that detained persons are assigned beds in dorm units that are spaced more than six feet apart, and adopted various practices to encourage detained persons to practice social distancing in dorms and in common areas. As the Court has explained, it believes that the narrowly tailored relief it is ordering via this opinion appropriately addressed the claimed constitutional violations on which the plaintiffs have shown a likelihood of success. Unlike in Brown, the additional relief ordered in this decision is not based on the same “basic plan” as earlier efforts but rather takes a different and focused approach. Brown, 563 U.S. at 515, 131 S.Ct. 1910. In short, it will require preventative public health measures that the Court has not previously ordered and that the Sheriff has not shown he has implemented.
Further, although the PLRA's previous order requirement refers to a single order, its reasonable time requirement uses the plural “orders.” Compare 18 U.S.C. § 3626(a)(3)(A)(i) with id. § 3626(a) (3)(A)(ii); see also Brown, 563 U.S. at 514, 131 S.Ct. 1910. Nothing in the statute or the relevant case law indicates that a court must convene a three-judge panel after issuing only one order. Rather, the case law reflects that a court can, and perhaps in some circumstances should, make additional efforts beyond a single TRO before convening a three-judge court to consider ordering the release of imprisoned or detained persons. See id. (releasing prisoners is a “last resort remedy”). This seems particularly true where, as here, a Court has a basis on which to issue an additional order that is not “substantially similar” to its previous order and thus can attempt a new approach to remedying the constitutional violation that might “yield success.” Cf. Brown, 563 U.S. at 515, 131 S.Ct. 1910.
For these reasons, the Court is not persuaded that it has given its less-intrusive orders “a reasonable time to succeed,” Brown, 563 U.S. at 516, 131 S.Ct. 1910; that the Sheriff has “reasonable amount of time to comply” with those orders, 18 U.S.C. § 3636(a)(3)(A)(ii); or that the Sheriff could have reasonable time to comply in light of the further efforts the Court is taking in this order to remedy the claimed constitutional violations. The Court concludes that the PLRA's reasonable time prerequisite for the convening of a three-judge court has not yet been satisfied.
For these reasons, the Court declines to request the convening of a three-judge court. 13
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13 As the Court has previously advised the parties, however, immediately after the issuance of the TRO, the Court advised the chief circuit judge of the pendency of the case and the potential need, at some point, to convene a three-judge court.
5. Irreparable harm In addition to showing a likelihood of success on the merits, the plaintiffs must show that they will likely suffer irreparable harm without a preliminary injunction. Whitaker, 858 F.3d at 1044. Irreparable harm is “harm that cannot be repaired and for which money compensation is inadequate.” Orr v. Shicker, 953 F.3d 490, 502 (7th Cir. 2020) (internal quotation marks omitted). The plaintiffs must show more than a “mere possibility” of harm but not that harm has already occurred or is certain to occur. Whitaker, 858 F.3d at 1045. “[A] remedy for unsafe conditions need not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).
The plaintiffs have satisfied this requirement. They have shown a likelihood that, without additional measures to expand and enforce social distancing and the continuation of measures aimed at enhancing sanitation of surfaces within the Jail and otherwise curbing the spread of coronavirus among detained persons, some of the class members will contract the virus. If they contract coronavirus, class members— particularly those over the age of sixty-five or with certain preexisting health conditions—risk severe health consequences, including death. These grave risks to health are not an insignificant possibility for the class members, all of whom are live in the Jail's congregate environment, where the coronavirus has been spreading for weeks and where detained persons—even those who sleep their own cells—share spaces like common areas and showers. Therefore, the plaintiffs have adequately shown a likelihood that they will suffer irreparable harm without a preliminary injunction.
6. No adequate remedy at law *35 The plaintiffs also must show that they have no adequate remedy at law should the preliminary injunction not issue. Whitaker, 858 F.3d at 1046. They are not required to show that a remedy is “wholly ineffectual” but rather “that any award would be seriously deficient as compared to the harm suffered.” Id. Where harm cannot be practicably remedied by monetary damages, there is no adequate legal remedy. See id.; Foodcomm Int'l v. Barry, 328 F.3d 300, 304 (7th Cir. 2003); see also W.S.R. v. Sessions, 318 F. Supp. 3d 1116, 1126–27 (N.D. Ill. 2018) (no adequate remedy of law to address harm from prolonging child's separation from parent). The plaintiffs have clearly shown that the risk of harm to their health and possibly their lives cannot
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be fully remedied through damages, and therefore they have shown that they have no adequate remedy at law.
7. Balancing of harms “Once a moving party has met its burden of establishing the threshold requirements for a preliminary injunction, the court must balance the harms faced by both parties and the public as a whole.” Whitaker, 858 F.3d at 1054. The nature of the balancing analysis depends on the moving party's likelihood of success: the higher the likelihood, the more the balance tips in favor of granting injunctive relief. Id. Before issuing an injunction ordering a defendant to perform an affirmative act, which can impose “significant burdens on the defendant,” a court must give “careful consideration [to] the intrusiveness of the ordered act, as well as the difficulties that may be encountered in supervising the enjoined party's compliance with the court's order.” Kartman, 634 F.3d at 892 (discussing certification of a class seeking mandatory injunctive relief).
The Sheriff argues that the balance of harms weighs against issuing a preliminary injunction because he is doing the best he can to contain the spread of coronavirus at the Jail, including, he contends, following the CDC Guidelines to the greatest extent possible. He argues that an order requiring him to implement more health and protective measures would be disruptive to his ongoing and persistent efforts to protect detainees from coronavirus. He also argues that the Court should defer to his expertise and judgment regarding the best policies and practices to implement at the Jail, particularly in light of the fundamental need for him to maintain internal security and order. See Bell, 441 U.S. at 547–48, 99 S.Ct. 1861. The plaintiffs contend that the risk of severe health consequences or death to the class members is so grave that it tips the balance of harms in favor of granting a preliminary injunction. Additionally, the plaintiffs argue the public's interest in containing outbreaks of coronavirus favors granting injunctive relief.
The Court concludes that the balance favors granting preliminary injunctive relief to the plaintiffs to the limited extent contemplated by this order. First, as detailed above, the plaintiffs have presented ample evidence of conditions that pose an unreasonable risk of serious harm to the class members' health and, despite the laudable strides the Sheriff has made since the Court issued the TRO, at least some shortcomings in the Sheriff's mitigation of that risk. This evidence tips the balance in favor of injunctive relief because, as the Court has explained, the plaintiffs have far surpassed their burden of demonstrating a “better than negligible” likelihood of success on the merits. Whitaker, 858 F.3d at 1046 (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). The interest of the public in containing the spread of coronavirus further tips the balance in favor of injunctive relief.
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As it did in issuing the TRO, the Court acknowledges the deference owed to the Sheriff in the operation of the Jail and in his development of internal procedures to maintain safety, order, and security and to response to this severe crisis. The Court recognizes the immense amount of time and work that the Sheriff and his staff have spent trying to respond to this crisis. The Court further recognizes that compliance with judicial orders impose burdens on the Sheriff and his staff, in no small part by requiring them to devote some of their limited time and resources to following a court's directives.
*36 The Court has taken these considerations into account in ordering the limited relief described in this order. It has ensured that the relief is narrowly drawn, extends no further than necessary, and is the least intrusive means necessary to address the shortcomings discussed earlier in this opinion. The Court has tailored the relief to account for deference to the Jail's ongoing planning and efforts to address the risks associated with the coronavirus outbreak. The Court also has, as indicated earlier, taken into account the enhanced requirements for issuing what it has referred to as a “mandatory injunction.” And the Court has concluded that it will not encounter significant obstacles in supervising the order despite its mandatory nature. Despite these considerations, the risk to the health and safety of detainees and others is sufficient to permit and require preliminary injunctive relief.
C. Preliminary injunctive relief For the reasons stated above, the plaintiffs have met the criteria for a preliminary restraining order with regard to at least parts of Count 1 of their complaint. The Court orders as follows and will also include this in a separate preliminary injunction order issued under Federal Rule of Civil Procedure 65(d).
• The Sheriff shall maintain and carry out a policy requiring prompt coronavirus testing of: (1) detained persons who exhibit symptoms consistent with coronavirus disease, and (2) at medically appropriate times, detained persons who have been exposed to others who have exhibited those symptoms or have tested positive for coronavirus. With regard to the category (2), the Sheriff must acquire and maintain sufficient testing materials so that determination of the appropriateness of testing such persons is made pursuant to medical and public health considerations and not the availability of testing materials.
• The Sheriff shall enforce social distancing during the new detainee intake process, including continued suspension of the use of bullpens and other multiple-person cells or enclosures to hold new detainees awaiting intake.
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• The Sheriff shall provide soap and/or hand sanitizer to all detainees in quantities sufficient to permit them to frequently clean their hands.
• The Sheriff shall provide sanitation supplies sufficient and adequate to enable all staff and detainees to regularly sanitize surfaces and objects on which the virus could be present, including in all areas occupied or frequented by more than one person (such as two-person cells, as well as bathrooms, showers, and other surfaces in common areas). The Sheriff shall also maintain and carry out a policy requiring sanitization between all uses of frequently touched surfaces and objects as well as monitoring and supervision to ensure that such sanitization takes place regularly.
• The Sheriff shall provide facemasks to all detained persons who are quarantined—i.e., those who have been exposed to a detained person who is symptomatic (even if not coronaviruspositive). The facemasks must be replaced at medically appropriate intervals, and the Sheriff must provide the users with instruction on how to use a facemask and the reasons for its use.
• The Sheriff shall establish by no later than April 29, 2020 and shall put into effect by no later than May 1, 2020 a policy precluding group housing or double celling of detained persons, except in the following situations:
• Persons detained in tiers or dormitories currently under quarantine following a positive test for the coronavirus within the tier or dormitory (“quarantine tiers”);
• Detained persons who have tested positive for the coronavirus and are under medical observation (“isolation tiers”);
• Detained persons who have tested positive for coronavirus and are recovering (“convalescent tiers”);
• Double-celled or dormitory-housed detainees for whom there is a documented determination by a medical or mental health professional that single-celling poses a risk of suicide or self-harm;
*37 • Persons detained housed in a dormitory unit that is at less than fifty percent capacity; and
• Detained persons committed, at the documented direction of a medical or mental health professional, to a group housing unit that is equipped for medical or mental health
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treatment, if but only if there is not available space in an appropriate housing or medical unit that permits full social distancing.
• Detained persons housed in any of the listed “acceptable” arrangements must be provided with facemasks that are replaced at medically appropriate intervals. The detained persons must be provided with instruction on how to use a facemask and the reasons for its use. They also must be instructed, at regular intervals, on the importance of social distancing.
• On May 1, 2020, the Sheriff shall file a report regarding his compliance with the terms of the preliminary injunction.
Finally, the Court will entertain submissions by the parties regarding the duration of the preliminary injunction, in particular the social distancing provisions. Typically, a preliminary injunction lasts until the trial on the merits, but the order the Court is entering is predicated on an underlying condition—the ongoing pandemic—that, one can hope, will not last indefinitely. Under ordinary circumstances, there is nothing constitutionally inappropriate about housing detained persons in groups and allowing them to come into contact with each other. Currently we are not living in ordinary circumstances—hence the preliminary injunction—but once matters return to something approaching normal, it may be appropriate to loosen the requirements of the injunction. The Court (either the emergency judge or the assigned judge) will address this with the parties at a future date.

Conclusion
The Court grants the plaintiffs' motion for preliminary injunction in part and denies it in part as set out in this Memorandum Opinion and Order [dkt. no. 55].

All Citations --- F.Supp.3d ----, 2020 WL 1987007
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2020 WL 2405350 Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Dianthe MARTINEZ-BROOKS et al., Plaintiffs, v.
D. EASTER & Michael Carvajal, Defendants.
No. 3:20-cv-00569 (MPS) |
Signed 05/12/2020
Attorneys and Law Firms
David S. Golub, Jonathan M. Levine, Silver, Golub & Teitell, Stamford, CT, Sarah French Russell, Legal Clinic, Quinnipiac University School of Law, Hamden, CT, Marisol Orihuela, Jerome N. Frank Legal Services—Wall St. Yale Law School, New Haven, CT, for Plaintiffs.
RULING ON MOTION FOR TEMPORARY RESTRAINING ORDER AND MOTION TO DISMISS
Michael P. Shea, U.S.D.J.
I. INTRODUCTION *1 On March 27, 2020, Congress gave federal prison officials an extraordinary tool to confront the extraordinary threat posed by the novel coronavirus within prison walls: the authority to transfer any federal inmate from prison to confinement in his or her home. A week later, the Attorney General of the United States urged the Director of the Bureau of Prisons (“BOP”) to “maximize” the use of that tool as soon as possible, stating in an April 3 memorandum that “[g]iven the speed with which this disease has spread through the general public,” and the Bureau’s “profound obligation to protect the health and safety of all inmates,” “it is clear that time is of the essence.” ECF No. 24-2 at 48-49. The Attorney General’s memo was triggered by an outbreak of COVID-19, the disease caused by the novel coronavirus, at the Danbury Federal Correctional Institution (“FCI Danbury”), a low security prison in Danbury, Connecticut, and two other federal prisons; the memo directed the BOP to “immediately review all inmates who have COVID-19 risk factors” for potential placement in home confinement, “starting with inmates incarcerated at ... FCI Danbury” and the other two facilities. Id. at 49. This case – brought by four inmates at FCI Danbury – involves
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an apparent failure of the Warden and staff at FCI Danbury to take these exhortations seriously. The four inmates, all of whom have COVID-19 risk factors, have made a preliminary showing that officials at FCI Danbury are making only limited use of their home confinement authority, as well as other tools at their disposal to protect inmates during the outbreak, and that these failures amount to deliberate indifference to a substantial risk of serious harm to inmates in violation of the Eighth Amendment. Accordingly, I grant in part the inmates’ motion for a temporary restraining order and issue an order that requires the Warden at FCI Danbury to adopt a process for evaluating inmates with COVID-19 risk factors for home confinement and other forms of release that is both far more accelerated and more clearly focused on the critical issues of inmate and public safety than the current process. Factual disputes as to other issues the inmates raise preclude me from granting further relief at this time, but I also order an expedited period of discovery and schedule a hearing for June 11, 2020, to adjudicate the inmates’ motion for preliminary injunction.
II. PROCEDURAL HISTORY On April 27, the inmates (the “Petitioners”) filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 against the Warden of FCI Danbury and the Director of the Bureau of Prisons (the “Respondents”). They sought to represent a class consisting of all inmates in the men’s prison and the two women’s prisons making up FCI Danbury, as well as a “medically vulnerable” subclass consisting of those inmates with COVID-19 risk factors. They alleged that “[t]he only effective way to minimize the potential devastation from COVID-19 in BOP facilities generally and FCI Danbury in particular is to downsize immediately the incarcerated population and, for the prisoners who remain at the institution, to undertake aggressively the detection, prevention, and treatment measures that public health and medical experts have recommended, including effective social distancing.” ECF No. 1 at 34. They further alleged that Respondents were violating the Eighth Amendment by “fail[ing] to use the BOP’s available statutory authority to reduce the population of FCI Danbury to mitigate the severe risk posed by COVID-19,” ECF No. 1 at 41, and by failing to take adequate safety measures—including distancing, hygiene, testing, and medical treatment —to protect inmates during the outbreak.
*2 The Petition seeks a wide range of relief, including an order “requiring Respondents to release from custody or to home confinement members of the [medically vulnerable] Subclass and requiring Respondents to provide medically adequate social distancing and health care and sanitation for members of the Class who remain.” ECF No. 1 at 66.
On April 30, the Petitioners filed an “emergency motion for temporary restraining order and preliminary injunction,” seeking an order requiring Respondents to “enlarge [i.e., transfer] to home confinement all women currently housed in the satellite camp at FCI Danbury,” “enlarge to home
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confinement all members of the medically vulnerable Subclass,” 1 and “implement appropriate measures to maximize social distancing and improve hygiene” for the remaining inmates or transfer them to safer BOP facilities. ECF No. 14 at 1. Together with their Petition and motion, Petitioners filed declarations from inmates housed at each of the three prisons within FCI Danbury, as well as declarations from experts and other evidence.
1 During oral argument on the motion for temporary restraining order and preliminary injunction, Petitioners’ counsel stated that, by asking for an order of “enlarge[ment],” Petitioners were not seeking the immediate, indiscriminate release of inmates, but instead asking for a process by which inmates would be evaluated promptly for transfer to home confinement, with the urgency reflected in the Attorney General’s April 3 memo. The order I issue today requires the implementation of such a process.
On May 5, the Respondents filed a joint motion to dismiss the habeas petition under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and an opposition to the motion for temporary restraining order and preliminary injunction. The Respondents argued that the Court lacked jurisdiction over the habeas petition, that it failed state a claim, and that the Petitioners’ motion should be denied. With regard to jurisdiction, the Respondents argued, among other things, that the Court was prohibited from entertaining the Petitioners’ requests for “enlargement”, because doing so would exceed the limited authority of district courts to modify sentences once they are imposed; that the Prison Litigation Reform Act, 18 U.S.C. § 3626, foreclosed such relief; and that the Petitioners had failed to exhaust administrative remedies. The Respondents also submitted a lengthy declaration by the Warden and defended her efforts to combat the COVID-19 crisis on the merits, detailing safety measures the Warden had imposed at FCI Danbury, including enhanced sanitation, quarantine of inmates, isolation of groups of inmates, the provision of masks and other protective equipment to inmates and staff, and delivery of food and programming directly to the living units. Finally, the Respondents argued that this habeas petition cannot be maintained as a class action.
I held oral argument on May 6, 2020, and now issue this ruling.
III. FACTUAL BACKGROUND The factual background is taken from the Petition, the declarations submitted by Petitioners, and the Warden’s declaration.
A. The Petitioners Petitioners are four inmates currently serving terms of imprisonment at FCI Danbury. Petitioners suffer from medical conditions that place them at higher risk for serious illness or death from the
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disease caused by the SARS-CoV-2 virus (“COVID-19”). They bring this habeas petition on behalf of themselves and a putative class of all inmates currently in custody at FCI Danbury, or who will be in custody at FCI Danbury during the course of the COVID-19 pandemic (“the Class”), as well as a subclass consisting of all such individuals who are also at heightened risk for serious illness or death from COVID-19 (“the Medically Vulnerable Subclass”).
*3 Petitioner Dianthe Martinez-Brooks is a 50-year-old woman currently housed in FCI Danbury’s women’s minimum-security camp. ECF No. 1 (“Petition”) ¶ 1. Ms. Martinez-Brooks suffers from systematic lupus erythematosus, an inflammatory autoimmune disease of the connective tissue, for which she takes corticosteroids. Id. The prolonged use of corticosteroids can cause a person to be immunocompromised. 2 Ms. Martinez-Brooks also suffers from asthma and hypertension. Id. She is serving a 48-month sentence for wire fraud, and her projected release date is June 25, 2022. ECF No. 1-3 at 2.
2 People Who Are at Higher Risk for Severe Illness, CDC (Apr. 15, 2020), https:// www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
Petitioner Kenneth Cassidy is a 54-year-old man currently housed at FCI Danbury’s men’s prison, a low-security facility. ECF No. 1-4 at 2. He has had three heart attacks, has had pneumonia in his right lung more than 20 times, and suffers from multiple chronic medical conditions, including asthma, coronary artery disease, and hypertension. Id. He is morbidly obese. Id. at 3. Mr. Cassidy is serving a 5 year sentence for conspiracy to commit wire fraud and willful failure to file an income tax return. Id. His projected release date is March 31, 2021 and his projected home confinement release date is October 1, 2020. Id.
Petitioner Rejeanne Collier is a 64-year-old woman currently housed in the Women’s Camp. Petition ¶ 2. She suffers from lupus, hypertension, and hepatitis C and has been treated for cancer while in custody. Id. She is serving a 15 ½ year term of imprisonment for conspiracy to possess with intent to distribute and to distribute one kilogram or more of heroin. ECF No. 24-2 at 38-39.
Petitioner Jackie Madore is a 50-year-old woman currently housed in the low security satellite prison. Petition ¶ 3. She suffers from hypertension, hypothyroidism, and hepatitis C. Id.
B. The COVID-19 Pandemic The COVID-19 pandemic is an ongoing, once-in-a-century public health crisis to which no reader will need much introduction. As of May 11, 2020, there have been a whopping 1.3 million confirmed cases and roughly 80,000 deaths from COVID-19 in the United States alone. Cases in
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the U.S., CDC.gov (last updated May 11, 2020). 3 Shops, restaurants, and offices remain shuttered in many states, and unemployment has reached levels unseen since the Great Depression.
3 URL: https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
Not all Americans, however, are equally at risk. It is well established that the elderly and those suffering from certain preexisting medical conditions are at significantly higher risk of serious illness or death from COVID-19. According to the Centers for Disease Control and Prevention (“CDC”), those at high risk for severe illness from COVID-19 include people who are 65 years and older, have chronic lung disease or moderate to severe asthma, have serious heart conditions, are immunocompromised, are severely obese, have diabetes, have chronic kidney disease and are undergoing dialysis, or have liver disease. 4 High-risk individuals face significantly higher mortality rates should they contract COVID-19 than the general population. According to one report, for example, the mortality rate from COVID-19 is 8.4% for individuals with hypertension, 8.0% for individuals with chronic respiratory disease, 7.6% for individuals with cancer, and 13.2% for individuals with cardiovascular disease. ECF No. 1 at 9-11 (citing Report of WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-oncovid-19-final-report.pdf (last visited May 7, 2020)).
4 People Who Are at Higher Risk for Severe Illness, CDC (Apr. 15, 2020), https:// www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
*4 Petitioners’ medical conditions place them in this high-risk group. And Petitioners face an additional risk that even most of those in the high-risk group do not: They are incarcerated. According to Petitioners’ expert, “[t]he risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” ECF No. 1-1 at 3. And it is not difficult to imagine why. The vast majority of the inmates at FCI Danbury live in large dormitory halls lined with bunk beds, each housing roughly 50 or more inmates, with shared bathrooms and common spaces. This arrangement makes effective social distancing virtually impossible.
Thus, not surprisingly, numerous federal and state prisons are contending with significant COVID-19 outbreaks, and FCI Danbury is no exception. Since the pandemic began, sixty-nine inmates at FCI Danbury have tested positive, out of an inmate population of approximately 1,000. ECF No. 24-2 at 25. But this figure may well understate the true number of COVID-19 cases at FCI Danbury, in light of the limited testing that has been conducted. One inmate has died since the crisis began. In fact, FCI Danbury was one of only three federal prisons specifically identified
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by Attorney General William Barr in an April 3, 2020 memo to the Director of the Bureau Prisons ordering immediate action to place vulnerable inmates on home confinement. ECF No. 24-2 at 48. In the memo, Attorney General Barr noted the “significant levels of infection” at FCI Danbury, along with FCI Oakdale and FCI Elkton. Id.
C. The Warden’s Efforts To Contain the Outbreak The extent to which the Warden has implemented adequate measures to control the COVID-19 outbreak at FCI Danbury and protect inmates is hotly disputed in this case. The Warden’s efforts and the Petitioners’ allegations regarding their insufficiency are described in the sections that follow.
1. Social Distancing According to the CDC, social distancing is “the best way to reduce the spread of coronavirus disease 2019 (COVID-19).” Social Distancing, CDC (May 6, 2020), https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html. Practicing social distancing requires individuals to stay at least 6 feet from other people, to avoid gathering in large groups, and to stay out of crowded places and avoid mass gatherings. Id. These measures are virtually impossible to observe in a prison setting, particularly at facilities like FCI Danbury. FCI Danbury consists of three facilities—a low-security men’s prison, a minimum-security women’s camp, and a low-security women’s satellite prison. ECF No. 24-2 at 4-5.
In the men’s prison, there are seven units of open, dorm-style housing, two smaller rooms that can house ten to twelve inmates each, and three units of individual cells. ECF No. 24-2 at 4. Thus, the majority of the inmates at the men’s prison live in large, open dormitories, with shared common spaces and bathrooms. For example, Petitioner Kenneth Cassidy sleeps in a room with 65 other prisoners. ECF No. 1-4 at 9. He sleeps within one foot of the prisoner on the bunk above him, and within three to four feet of the four prisoners in the two bunks on either side of him. Id. There are no barriers between the beds. Id. As of May 4, 2020, the men’s prison housed 719 inmates. ECF No. 24-2 at 4.
In the women’s satellite prison, all of the women are housed in a single dormitory-style room that accommodates approximately 160-170 beds. Petition ¶ 36. The room is divided into cubicles, each containing two bunk beds, separated by approximately four feet. Id. Beds in each cubicle are immediately adjacent to the cubicle wall, which does not reach to the ceiling. Id. In some instances the wall does not even reach the top of the bunk bed, and the woman on the top bunk sleeps right next to the woman on the top bunk in the adjacent cubicle. Id. The women in the satellite prison
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share three bathrooms, each of which includes between 4-8 toilets, sinks, and showers. Id. As of May 4, 2020, the women’s satellite prison housed 131 inmates. ECF No. 24-2 at 5.
*5 The women’s prison camp is a large building divided into four dormitories, each consisting of cubicles and bunk beds. Id. at 4. The cubicles have no doors and their dividing walls do not extend to the ceilings. Petition ¶ 37. The bunk beds are less than six feet apart. Id. Each of the four dormitories has a common shower and bathroom area. Id. Three of the dorms house 47 women each, and the fourth houses 7. Id. As of May 4, 2020, the women’s camp housed 134 inmates. ECF No. 24-2 at 4. 5
5 As these two sentences show, the figures estimated by Petitioners differ somewhat, but not materially, from those estimated by Respondents; these differences may be a function of the different times at which they filed their submissions.
The Petitioners complain that social distancing—arguably the most effective measure for preventing the spread of COVID-19—is impossible at FCI Danbury. Most of the inmates at FCI Danbury live in large, open dormitories with 50 or more other inmates, where they sleep within 3 to 4 feet of between 3 and 5 other prisoners. Petition ¶ 149. Prisoners use the same bathrooms and share a limited number of toilets, sinks, and showers, as well as a limited number of telephones and computers, which are located close together in common areas. Id. Moreover, according to Petitioners, prisoners are unnecessarily made to line up in close proximity to one another to receive their meals and medications. Id. ¶ 150.
The Warden contends that she has taken substantial steps toward implementing social distancing. In general, smaller inmate groups at FCI Danbury have been formed by separating inmates by housing unit so they can “shelter in place” with the fewest number of fellow inmates. ECF No. 24-2 at 9. These groups are rotated through the recreation facility by themselves, and the facility is disinfected between groups. Id. Programs, including “Education, Psychology, and Religious Services” are delivered in each unit, and meals are delivered directly to the units by staff (rather than inmate food service workers) in order to maintain the integrity of the inmate group quarantine. Id. While the Respondents compare this arrangement to “family units in the general population,” and note that an inability to full socially distance is typical of many, if not all, correctional institutions, ECF No. 24-1 at 73, the fact remains that true social distancing appears to be unachievable at FCI Danbury, creating an environment where the risk of transmission is significantly heightened.
2. Screening and Testing
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Petitioners contend that the Warden has failed to adequately screen inmates for COVID-19 symptoms and test and isolate inmates exhibiting symptoms. According to Petitioners, inmates who complain to staff of symptoms consistent with COVID-19—including coughing, congestion, and shortness of breath—are routinely unable to obtain immediate medical examination, are not tested for COVID-19, and are returned to the general population until their symptoms worsen. Petition ¶ 131. For example, Kimberly Hoisington, an inmate at the satellite prison, indicates that on March 26, she reported being ill to staff on two separate occasions, but was told to lie down. ECF No. 1-7 at 2. By early morning on March 27, she developed severe chest pain and was eventually taken to the hospital, where she tested positive for COVID-19. Id. Similarly, Christina Korbe, an inmate at the satellite prison, submitted testimony indicating that, in early April, she began experiencing symptoms consistent with COVID-19, including a severe headache, body aches, fever, shortness of breath, and “a terrible cough”—the “worst cough I have ever had.” ECF No. 1-5 at 2. She spoke to the medical department multiple times about her symptoms but was never offered a test for COVID-19. Id. Despite her symptoms, she was not quarantined but was instead kept with the general population. Id. She further claims that she has personally observed many other prisoners with symptoms similar to hers, but that the majority of these women were not placed into quarantine. Id. at 3. Petitioner Cassidy, an inmate at the men’s prison, indicates that “[a]pproximately 80% of prisoners in my unit show flu-like symptoms, including fever, coughing, body aches, shortness of breath, chest pressure, and headaches.” ECF No. 1-4 at 3.
*6 Inmate Christina Korbe also relates that, on April 24, a woman at the satellite prison became extremely sick, vomiting and struggling for air. ECF No. 1-5 at 3. Other inmates were around her, trying to help her, without wearing any gloves or masks. Id. She was sick for hours and throughout the night, and the inmates did not understand why the staff did not take her to the hospital. Id. In response to concern among the inmates, a correctional officer (a lieutenant) came into the dormitory and announced that anyone who used the phone to contact people on the outside about the incident would get a disciplinary violation, and that the inmates needed to “stay in [their] lane” because they “are not doctors.” Id. The sick woman was eventually taken to the hospital early on April 25. Id. At oral argument, the Respondents indicated that she was taken to the hospital because she was aspirating—choking on her own vomit—and that she was intubated for this reason, although she also tested positive for COVID-19. The Respondents further indicated that she was taken off the ventilator the very next day and sent back to FCI Danbury after only two nights in the hospital. According to Christina Korbe, many of the women who had been in contact with the woman who was taken to the hospital were tested for COVID-19, and at least ten of them tested positive. These women have been quarantined, but were first allowed to come back to the dormitory to get their personal belongings and take showers. Id. at 3-4.
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The Warden contends that inmates are screened daily for COVID-19 symptoms. For example, beginning on April 9, 2020, the Lieutenants at FCI Danbury began visiting each housing unit daily to take the temperature of all inmates assigned to that unit. ECF No. 24-2 at 24. Any inmate found to have a temperature of 99 degrees or higher is sent to Health Services for a follow-up assessment by a licensed health care provider. Id. Petitioners contend, however, that these readings are sometimes manipulated to avoid appropriate follow-up by requiring prisoners to drink a glass of cold water, attributing high readings to equipment error, or holding the temperature wand too far from inmates’ foreheads. Petition ¶ 134. According to inmate Kimberly Hoisington, for example, when she was taken to the hospital, her temperature was 102 degrees upon arrival, while an hour earlier, FCI Danbury staff had told her that her temperature was 97 degrees. ECF No. 1-7 at 2.
In general, the Warden claims that any inmate at FCI Danbury presenting with symptoms consistent with COVID-19 is immediately evaluated by a medical provider to determine whether testing and/ or isolation is appropriate, whether contact tracing might be necessary, and whether inmates with whom the symptomatic inmate had contact might need to be quarantined. ECF No. 24-2 at 24. The decision whether to test an inmate for COVID-19 is made by BOP medical providers based on a number of criteria, including but not limited to: (1) the nature and severity of the symptoms; (2) the inmate’s potential exposure to COVID-19; and (3) whether the inmate is considered “highrisk.” Id. On April 14, 2020, FCI Danbury received an Abbott “ID NOW” machine that can deliver test results within approximately 15 minutes. Id. at 24-25. As of May 4, 2020, FCI Danbury had 150 COVID-19 testing kits in stock, and the facility has the ability to order and quickly receive additional kits from a designated vendor if needed. Id. at 25. Since the advent of the emergency, 205 inmates have been tested for COVID-19; sixty-nine inmates and fifty-six staff have tested positive. Id. This includes testing of every woman at the satellite prison, performed at the behest of U.S. Senator Christopher Murphy between May 2nd and 3rd, during which 20 of 143 women tested positive. Id.
3. Isolation and Quarantine The Petitioners claim that the Warden has further failed to adequately isolate individuals testing positive for COVID-19 and to quarantine individuals who have had contact with inmates infected with COVID-19. According to the CDC’s “Interim Guidance on Management of [COVID-19] in Correction and Detention Facilities,” “as soon as an individual develops symptoms of COVID-19, ... they ... should be immediately placed under medical isolation in a separate environment form other individuals,” and “persons who are close contacts of a confirmed or suspected COVID-19 case ... should be placed under quarantine for 14 days.” CDC (May 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/ guidance-correctional-detention.html [hereinafter CDC, Interim Guidance]. For medically isolated
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individuals, the CDC provides the following criteria for how long an individual testing positive must be isolated:
*7 • 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 feverreducing 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 feverreducing medications AND
• The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND
• At least 10 days have passed since the first symptoms appeared
• For individuals who had a confirmed positive COVID-19 test but never showed symptoms:
• At least 10 days have passed since the date of the individual’s first positive COVID-19 test AND
• The individual has had no subsequent illness
Id.
According to Petitioners, in spite of this guidance, prisoners who test positive for COVID-19 are returned to the general population far earlier than appropriate. Petition ¶ 140. For example, Tamika Somerville, an inmate at the satellite prison, indicates that a woman in her unit, who sleeps in the adjacent cubicle, was removed from the unit because she had a fever, tested positive for COVID-19 on a Tuesday, and was returned to the unit that same Friday. ECF No. 1-9 at 3. The Petitioners also indicate that staff members who test positive for COVID-19 return to work while still symptomatic. For example, inmate Marius Mason indicates that one officer told her she still felt ill and did not want to be at work, but was nonetheless told to return. ECF No. 1-6 at 3.
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The Warden, on the other hand, indicates that separate housing spaces have been established for “isolation” (for inmates demonstrating symptoms) and “quarantine” (for asymptomatic inmates) in each of the three facilities, and each facility has the ability to create additional isolation/quarantine space should the need arise. ECF No. 24-2 at 10-11. She indicates that all inmates who present with COVID-19 symptoms are isolated and tested the same day, “provided testing supplies are available.” Id. at 26. According to the warden, under no circumstance are inmates who have been placed in isolation released to the general population prior to meeting the CDC’s symptom-based criteria. 6 Id. at 27. Staff are subjected to screening, including having their temperature taken, prior to the start of every shift. Id. at 16. If a staff member reports symptoms consistent with COVID-19, he or she is sent home. Id. at 17. If a staff member tests positive, his or her suitability for returning to work is evaluated under the CDC’s symptom-based criteria (as described in footnote 4). Id.
6 The Warden describes these criteria as follows: “(1) being fever-free for greater or equal to 72 hours without the use of fever-reducing medication, and (2) respiratory symptoms have improved, and (3) at least 7 days have passed since the first symptoms appeared.” ECF No. 24-2 at 27.
4. Sanitation and Hygiene *8 Petitioners claim that they do not have adequate cleaning supplies to clean their personal areas, and that shared living spaces throughout the facility are not regularly or properly disinfected to prevent the spread of COVID-19. Petition ¶ 159. Telephones, computers and video calling equipment, and televisions shared by hundreds of prisoners are not cleaned or disinfected between uses, and the common areas in which the equipment is located is not regularly or properly disinfected. Id. ¶ 161. CDC Guidance further recommends thoroughly cleaning and disinfecting all areas where confirmed or suspected COVID-19 cases spent time. CDC, Interim Guidance. According to Petitioners, however, units where prisoners who test positive were housed are not being subjected to any heightened cleaning. Petition ¶ 162. Petitioners also indicate that prisoners have no access to hand sanitizer, which has been out of stock at the commissary for the duration of the present crisis, and that liquid soap dispensers were only recently installed in the men’s prison but are not regularly restocked. Id. ¶ 163. According to the Petitioners, soap is unavailable to indigent prisoners. Id. ¶ 165.
The Warden, by contrast, indicates that cleaning supplies are distributed throughout the facility on a daily basis, including a broad-spectrum disinfectant (“Virex II/256”), which was added specifically to address the coronavirus threat. ECF No. 24-2 at 12-13. Once in the housing units, cleaning supplies are maintained in small caddies or bins kept in staff offices or closes, which inmates can then ask to bring back to their living areas. Id. at 13. Large area disinfection is being performed
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at both the satellite prison and the men’s prison through the use of backpack cleaning chemical sprayers. Id. While the Warden indicates that recreational areas are disinfected between uses, she does not indicate whether items such as phones and computers are disinfected between uses. As for soap and other personal hygiene products, the Warden maintains that inmates at FCI Danbury are provided with basic soap and personal hygiene products by the institution, and that “there is never a reason an inmate should not have access to soap at FCI Danbury.” Id. at 14. In addition, prisoners can purchase up to 13 different kinds of soap, as well as other personal hygiene products, from the commissary. Id. The Warden does not indicate whether inmates have access to hand sanitizer.
5. Personal Protective Equipment According to the Warden, staff at FCI Danbury have, and will continue to have, access to appropriate personal protective equipment (“PPE”). ECF No. 24-2 at 15. Upon reporting to work each day, staff at FCI Danbury are provided with new surgical masks, which they are required to wear throughout their shift. Id. Additional PPE, including gowns, gloves, N-95 particulate respirators, and face shields, are available for staff working in Health Services, Receiving & Discharge, and isolation housing units. Id. Staff are instructed as to the proper use of PPE. Id. Inmates at FCI Danbury were initially provided with two of the same surgical masks provided to staff. Id. at 16. Once FCI Danbury was able to procure cloth masks, two of these masks were issued to every inmate. Id. Upon request, inmates are still provided with the same surgical masks provided to staff. Id. Inmates are required to wear these masks at all times, except when they are eating or sleeping, and failure to do so can result in disciplinary action. Id.
Petitioners contend that the usage of PPE is inconsistent, and correctional staff do not enforce mask usage against prisoners who refuse to cover their faces, nor do correctional staff consistently wear masks or gloves when they are in the units. Petition ¶ 182. Prisoners—including prisoners on cleaning duty—are not provided with gloves to protect their hands from exposed surfaces. Id. ¶ 180. And in many parts of the facility, FCI Danbury only provides one mask per prisoner and, therefore, prisoners have no protection when their masks are being washed. Id. ¶ 179.
6. Medical Treatment for Other Conditions Petitioners allege that, since the onset of the COVID-19 crisis, non-virus medical needs have sometimes gone unattended. Petition ¶ 188. Prisoners who do not present with a fever during sick call cannot gain access to a physician, and sick call requests unrelated to the virus go unanswered for prolonged periods of time. Id. Petitioners indicate that medical triage in the men’s prison is conducted by a social worker without medical training, who is openly contemptuous of the men’s needs. Petition ¶ 129. Petitioner Cassidy represents, for example, that the social worker told the men in his unit, “You are all fucking children with nothing more than a flu so stop your shit you're
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not going home early.” ECF No. 1-4 at 5-6. She has also told the men, “I don't need medical training to tell you you're not sick so go lay the fuck down.” Id.
*9 Petitioners further indicate the prison pharmacy has been closed, and medications must be shipped from another facility, resulting in delays in their delivery and disruption of medication regimens. Id. ¶ 189. Petitioner Cassidy, for example, indicates that he did not receive the correct dose of his medication for two weeks in April, ECF No. 1-4 at 3, and Petitioner Martinez-Brooks indicates that her blood pressure medicine ran out on April 2 and additional medicine did not reach her until April 10. ECF No. 1-3 at 4. Similarly, inmates with special medical diets or allergies have received meals containing ingredients harmful to their health. Prisoners with peanut allergies have received meals containing peanut products, and Petitioner Cassidy, who suffers from diverticulosis, has received meals containing rice and beans. Petition ¶ 190. Petitioners further indicate that, as a result of staff shortages, officers and staff are sometimes not available to respond to medical emergencies. Id. ¶ 187.
The Warden, while acknowledging that several medical staff are on leave, for reasons both related and unrelated to COVID-19, indicates that a BOP Medical Asset Support Team, including an Associate Warden, two physician assistants, and one pharmacist, has been dispatched to FCI Danbury to assist with its COVID-19 response. ECF No. 24-2 at 25-26. The Warden maintains that inmates continue to have access to Health Services, but that, in order to maintain the integrity of the group quarantines, Health Services staff (including the social worker and the dental hygienist) go to the individual housing units to pass out and collect “sick call forms,” which are written requests to Health Services. Id. at 26. These staff do not perform any assessments at that time. Id. The “sick call” forms are then triaged by a registered nurse or a physician assistant for appropriate action. Id. If it is determined that inmates need to be seen in the clinic, they are set for an appointment at a time they can move to the clinic with other members of their quarantine group or unit. Id. For emergent medical needs, an inmate can always be specifically called up to the clinic outside the scheduled time for his or her unit. Id. The Warden also indicates that the pharmacy at FCI Danbury has remained functioning throughout the course of the current crisis, and that there are two scheduled times per day when inmates can, with their quarantine group, proceed to the clinic for “pill line” or for staff-assisted medication administration. Id. at 27.
D. Home Confinement and Compassionate Release By contrast to the abundant factual disputes regarding the Warden’s implementation of safety measures, the facts regarding the Warden’s use of home confinement and compassionate release are largely undisputed.
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1. Home Confinement The Bureau of Prisons has statutory authority to transfer prisoners to home confinement under
18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. ECF No. 24-2 at 18. Under 18 U.S.C. § 3624(c)(2), the Bureau of Prisons may “place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.” Under 34 U.S.C. § 60541, the BOP may release some or all eligible elderly offenders 7 and eligible terminally ill offenders 8 from BOP facilities to home detention, upon written request from either BOP staff or an eligible offender.
7 The statute defines “eligible elderly offender” to mean an offender in the custody of the Bureau of Prisons (i) “who is not less than 60 years of age”; (ii) “who is serving a term of imprisonment that is not life imprisonment based on conviction for an offense or offense that do not include any crime of violence ..., sex offense ..., or offense under chapter 37 of title 18, and has served 2/3 of the term of imprisonment to which the offender was sentenced”; (iii) “who has not been convicted in the past of any Federal or State crime of violence, sex offense, or other offense described in clause (ii)”; (iv) “who has not been determined by the Bureau of Prisons, on the basis of information the Bureau uses to make custody classifications, and in the sole discretion of the Bureau, to have a history of violence, or of engaging in conduct constituting a sex offense or other offense described in clause”; (v) “who has not escaped or attempted to escape”; (vi) whose release “will result in a substantial net reduction of costs to the Federal Government”; and (vii) “who has been determined by the Bureau of Prisons to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.” 34 U.S.C. § 60541(g)(5)(A).
8 The statute defines “eligible terminally ill offender” to mean an offender who (i) “is serving a term of imprisonment based on a conviction for an offense or offenses that do not include any crime of violence ..., sex offense ..., offense described in section 2332b(g)(5)(B) of title 18, or offense under chapter 37 of title 18”; (ii) “satisfied the criteria specified in clauses (ii) through (vii) of subparagraph (A) [defining eligible elderly offender]”; and (iii) “has been determined by a medical doctor approved b the Bureau of Prisons to be ... (I) in need of care at a nursing home, intermediate care facility, or assisted living facility ... or ... (II) diagnosed with a terminal illness.” 34 U.S.C. § 60541(g)(5)(D).
*10 On March 26, 2020, Attorney General Barr issued a memorandum to the Director of the Bureau of Prisons, titled “Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic.” ECF No. 24-2 at 45. In the memo, Attorney General Barr stated that “there are some at-risk inmates who are non-violent and pose minimal likelihood of recidivism and who
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might be safer serving their sentences in home confinement rather than in BOP Facilities.” Id. He directed the Bureau to “prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.” Id. The memo provides a non-exhaustive list of discretionary factors for evaluating inmates for confinement. First and foremost among these is the “age and vulnerability of the inmate to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines.” Id. The other factors in the memo include:
• The security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities;
• The inmate’s conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment under this Memorandum;
• The inmate’s score under PATTERN, with inmates who have anything above a minimum score not receiving priority treatment under this Memorandum;
• Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;
• The inmate’s crime of conviction, and assessment of the danger posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.
Id. at 46.
On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which authorized the Director of the Bureau of Prisons to lengthen the amount of time prisoners can be placed on home confinement under Section 3624(c)(2)—previously capped at the shorter of 10% of their sentence or 6 months—provided that the Attorney General makes a finding that “emergency conditions will materially affect the functioning of the Bureau.” 9 CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020).
9 Section 12003(b)(2) provides that “[d]uring the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau,
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the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020).
Attorney General Barr made quick use of his authority under the CARES Act, issuing a memo on April 3, 2020, in which he made the requisite finding that “emergency conditions are materially affecting the functioning of the Bureau.” ECF No. 24-1 at 48. The memo indicated that the Bureau of Prisons was “experiencing significant levels of infection at several of our facilities, including FCI Oakdale, FCI Danbury, and FCI Elkton.” Id. Noting the Bureau’s “profound obligation to protect the health and safety of all inmates,” Attorney General Barr directed the Bureau to “move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.” Id.
Reflecting the urgency of the situation, Attorney General Barr’s memo directed immediate action. He directed the Bureau to “immediately review all inmates who have COVID-19 risk factors, as established by the CDC,” to “immediately maximize appropriate transfers,” and to “begin implementing this directive immediately.” Id. at 49. He noted that, “[g]iven the speed with which this disease has spread through the general public, it is clear that time is of the essence,” and directed the Bureau to “implement this Memorandum as quickly as possible....” Id.
*11 Attorney General Barr’s memorandum specifically named FCI Danbury—out of over one hundred BOP facilities--as one of three experiencing significant outbreaks and with respect to which the Bureau was to move “as quickly as possible.” Id. 48-49. Moreover, the Attorney General made clear that the Bureau’s review was to include “all at-risk inmates—not only those who were previously eligible for transfer” and “starting with the inmates incarcerated FCI Oakdale, FCI Danbury, FCI Elkton, and similarly situated facilities where [the Director] determine[s] that COVID-19 is materially affecting operations.” Id. at 49. The Attorney General went further, stating that although the BOP has limited resources to monitor inmates on home confinement, he was authorizing it to transfer inmates to home confinement “even if electronic monitoring is not available, so long as BOP determines in every such instance that doing so is appropriate and consistent with our obligation to protect public safety.” Id. Noting, however, the Bureau’s responsibility to protect the public, Attorney General Barr directed the Bureau to continue to make “individualized determinations” and cautioned against the “indiscriminate” release of prisoners. Id. at 50.
Despite the explicit statutory authority under the CARES Act to place any inmate on home confinement, and despite Attorney General Barr’s urgent memorandum calling out FCI Danbury and directing immediate action, the Warden’s use of her home confinement authority has been
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limited. Since March 26, the Warden indicates that of the nearly 1,000 inmates at FCI Danbury, only 159 inmates have been reviewed for home confinement, and only 21 of these have been released to home confinement. ECF No. 24-2 at 23. 10
10 The Warden indicates that another 2 inmates have been released on furlough until the beginning of a previously established home confinement date. ECF No. 24-2 at 23-24.
In her description of the Bureau’s—and FCI Danbury’s—implementation of Attorney General Barr’s memoranda and the Bureau’s expanded home confinement authority under the CARES Act, the Warden indicates that BOP Case Management staff are reviewing inmates for suitability for home confinement, and that inmates do not need to apply to be considered, although any inmate who believes he or she is eligible may submit a request. Id. at 22. The Warden indicates that BOP is currently assessing “a number of factors to ensure an inmate is suitable for home confinement including, but not limited to, reviewing the inmate’s institutional disciplinary history for the last twelve months; ensuring the inmate has a verifiable release plan; verifying the inmate’s primary offense is not violent, a sex offense, or terrorism related; and confirming the inmate does not have a current detainer.” Id. at 23. In addition, the Warden indicates that, at this time, BOP is “prioritizing for consideration those inmates who either (1) have served 50% or more of their sentence, or (2) have 18 months or less remaining in their sentence and have served 25% or more of their sentence.” Id. The Warden does not provide any indication regarding the extent to which inmates’ COVID-19 risk factors—such as their age and preexisting medical conditions—are weighed in evaluating inmates for home confinement.
A Danbury Inmate Bulletin from the Warden dated April 16, 2020 and titled “Criteria for Home Confinement based on COVID-19 Guidelines,” apparently distributed to inmates, indicates that the criteria for home confinement include: “No incident reports in the past 12 months (regardless of severity level)”; “U.S. Citizen”; “PATTERN risk score is MINIMUM”; and “Mental Health Care Level is less than CARE-MH 4.” ECF No. 15-7 at 2. The April 16 Bulletin further indicates that “Other considerations” include age, projected release date, percentage of time served, medical care level, issues related to victims, date of arrival to FCI Danbury, gang-related activity, health concerns of residents in the proposed release plan, and medical needs/concerns in the community. Id. A more recent Danbury Inmate Bulletin, dated April 21, 2020 and titled “Updated criteria for Home Confinement based on COVID-19 guidelines,” lists eight criteria that “must” be met to be eligible for home confinement:
*12 1. Primary Offense is not violent;
2. Primary Offense is not sex offense;
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3. Primary Offense is not terrorism;
4. No detainer;
5. Mental Health Care Level is less than IV;
6. PATTERN risk score is MIN;
7. No Incident Reports in the past 12 months;
8. Inmate must have served at least 50% of their sentence [bolded in original]
ECF No. 15-8 at 1. The April 21 Bulletin gives no indication whether and how inmates’ COVID-19 risk factors are factored into the analysis.
2. Compassionate Release Under 18 U.S.C. § 3582(c)(1)(A), a sentencing court may, upon motion of the Director of the Bureau of Prisons or upon motion of the defendant, reduce a defendant’s term of imprisonment if it finds that “extraordinary and compelling reasons warrant such a reduction.” 11 This authority is often referred to as “compassionate release.” Importantly, if the Bureau of Prisons does not bring a motion for compassionate release on behalf of a defendant, the defendant may only bring a motion on his or her own behalf after either “fully exhaust[ing] all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf” or “the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.”
18 U.S.C. § 3582(c)(1)(A).
11 The statute further requires the sentencing court to consider the factors set forth in Section 3553(a) to the extent that they are applicable. 18 U.S.C. § 3582(c)(1)(A).
Since the COVID-19 crisis began, it does not appear that the BOP has issued any updated internal guidance as to the standards to be used in assessing whether there are “extraordinary and compelling reasons” warranting a reduction in a defendant’s term of imprisonment. Respondents’ brief points to a BOP program statement that was last updated in January 2019. ECF No. 24-1 at 31 (citing Program Statement 5050.50, available at http://www.bop.gov/ policy/progstat/5050_050_EN.pdf). That document, of course, makes no mention of the current pandemic; nor does it mention the risk of infection inside prisons in general. Instead, it identifies a few extreme situations that might make “compassionate release” appropriate. These extreme cases
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include: “inmates who have been diagnosed with a terminal, incurable disease” or “an incurable, progressive illness” or “debilitating injury” that has left them “completely disabled” or “capable of only limited self care and ... confined to a bed or chair more than 50% of waking hours”; inmates who are 65 or older, suffer from “chronic or serious medical conditions related to the aging process,” experience “deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility,” have no prospect of “substantial improvement” in their condition from “conventional treatment,” and have served at least half their sentence; inmates age 65 or older who have served the greater of 10 years or 75% of their sentence; and inmates whose minor children “are suddenly without a family member caregiver due to that caregiver’s death or incapacitation.” Id. Even in these cases, “compassionate release” is far from guaranteed. Instead, the inmate must satisfy a host of criteria, some of which are focused on public safety but others of which include the age at which the inmate committed the offense, whether the inmate lived with the caregiver (in cases of deceased caregivers), and whether the inmate received public funding or had a job prior to incarceration. Id.
*13 For the Bureau of Prisons to bring a motion for compassionate release on behalf of a defendant, a lengthy, multi-tiered administrative process must first play out. First, the Warden must determine that the request warrants approval. Requests do not reach the Warden’s desk, however, until “various staff” at the prison have reviewed the request first. ECF No. 24-2 at 27. Next, even if the Warden approves the request, BOP regulations provide that the Director will make a motion under Section 3582(c) only after further review by both the General Counsel and either the Medical Director or the Assistant Director, Correctional Programs Division. 28 C.F.R. § 571.62. Since the beginning of the COVID-19 crisis, however, the Warden has not approved a single request for compassionate release for referral to the General Counsel, and consequently no inmate at FCI Danbury has reached the latter stages of the Bureau’s administrative process. See ECF No. 24-2 at 27 (indicating that, from the beginning of the COVID-19 crisis through May 4, 2020, prison officials have received 241 requests for compassionate release and that, of these, 136 have been processed and denied, 18 have been returned to the inmate seeking further information, 70 are being reviewed by “various staff who need to review the application,” and 17 are awaiting the Warden’s review).
In the event that the Warden denies a request, a defendant may bring a motion on his or her own behalf only after either “fully exhaust[ing] all administrative rights to appeal,” including appeals to the appropriate Regional Director and then to the General Counsel, or else waiting for the 30day statutory period to expire. 28 C.F.R. §. 571.63; 28 C.F.R. § 542.15.
Where inmates from across the country have managed to bring COVID-19 related motions for compassionate release on their own behalf, they have enjoyed significant success before courts in
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this District. See ECF No. 24-2 at 52-54 (indicating that approximately 25 out of 48 COVID-19 related motions for compassionate release have been granted in this District alone since the crisis began).
IV. DISCUSSION As noted, Respondents have filed both a motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and a response to the Petitioners motion for a temporary restraining order and preliminary injunction. In the discussion below, I deny the Rule 12(b)(1) motion because I find that the Warden’s jurisdictional challenges lack merit; I grant in part and deny in part the motion for temporary restraining order and order expedited discovery and an evidentiary hearing to adjudicate the motion for preliminary injunction; and I deny the Rule 12(b)(6) motion because I find that the Petition states a claim under 28 U.S.C. § 2241.
A. The Warden’s Jurisdictional Arguments
1. Rule 12(b)(1) Standard “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citations and internal quotation marks omitted). “[W]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits. In that case, the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. (citations, quotation marks, and alterations omitted). “A case is properly dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Gonzalez v. Option One Mortgage Corp., 2014 WL 2475893, at *2 (D. Conn. June 3, 2014).
2. Sentencing Finality, the Court’s Authority under Section 2241, and the BOP’s Statutory Discretion Respondents argue that “[t]his Court lacks authority to divest the BOP and sentencing courts of their jurisdiction to place inmates in home confinement or the sentencing judge’s authority to amend a term of imprisonment.” ECF No. 24-1. This argument is not an obstacle to the temporary restraining order I issue today, because the order does not divest the BOP of any authority or infringe on the sentencing judge’s authority to amend a term of imprisonment. It merely directs
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the Respondents to exercise the authority already conferred on them to place inmates in home confinement and consider requests for compassionate release in a manner that does not violate the Eighth Amendment.
*14 First, Respondents point to well-established law regarding the finality of sentences and the limited, statutory authority of sentencing courts to modify them after they are imposed. See, e.g.,
Dillon v. United States, 560 U.S. 817, 824 (2010) (“A judgment of conviction that includes a sentence of imprisonment constitutes a final judgment and may not be modified by a district court except in limited circumstances.” (internal quotation marks and alterations omitted)); 18 U.S.C. § 3582(c) (“The court may not modify a term of imprisonment once it has been imposed except that ... [listing specific exceptions for “compassionate release” and subsequent lowering of applicable Guideline ranges]”). But it is clear from context that these restrictions apply to sentencing courts. See 18 U.S.C. 3582(a) (referring to the factors that “[t]he court” must consider “in determining whether to impose a term of imprisonment); id. 3582(c) (again referring to the “the court” when stating “[t]he court may not modify a term of imprisonment”); id. 3582(c)(1) (B) (allowing “the court” to modify a term of imprisonment to the extent allowed by statute or by Rule 35); Fed. R. Civ. Crim. P. 35(a) (“Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.”). It is less clear whether they apply to a judge presiding over a 2241 petition who did not sentence the petitioner—a common situation, because 2241 petitions must be filed in the jurisdiction of the place of confinement rather than the jurisdiction of the sentencing court. Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (“[T]he general rule [is] that for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement.”)
I need not decide whether I have authority to modify the Petitioners’ sentences, however, because the order I impose today does not modify any sentences. What it does do is ensure that inmates who face an imminent risk of serious illness or death from the rapid spread of the coronavirus within the facility receive prompt review of either a request for compassionate release or consideration for home confinement, both of which are within the statutory authority of the BOP.
Respondents also argue that “release” is not an available remedy to a Section 2241 petitioner who challenges the conditions of his or her confinement, citing cases from courts outside the Second Circuit that have so held. See, e.g., Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (“Glaus’s [2241] habeas corpus petition would be proper if release were among the possible remedies for an Eighth Amendment deliberate indifference claim. Unfortunately for Glaus, it is not. 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
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from custody is not an option.”). But in their motion for a temporary restraining order, Petitioners do not seek “release from custody.” Instead, they seek (among other relief) “enlarge[ment] to home confinement,” ECF No. 14 at 1 12 ; in home confinement, they would remain within the “custody” of the BOP. See 18 U.S.C. 3624(c)(2) (authorizing the BOP to make home confinement placements under a subsection entitled “[p]release custody”); see also United States v. Hope, 2018 WL 358490, at *4 (D. Mont. Jan. 10, 2018) (“When a defendant is transferred pursuant to Section 3624(c), he remains under BOP custody until his prescribed term of imprisonment expires.”). In any event, Respondents cite no Supreme Court or Second Circuit decision suggesting that release is categorically unavailable to a Section 2241 petitioner asserting an Eighth Amendment claim. To the contrary, the Second Circuit affords habeas petitioners bail, albeit “in unusual cases, or when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001).
12 It is true that one of the forms of relief sought in the habeas petition itself is “release from custody.” ECF No. 1 at 66 (praying for the issuance of a writ of habeas corpus or injunctive relief “requiring Respondents to release from custody or to home confinement members of the [medically vulnerable] Subclass....”).
Although Mapp does not mention Section 2241, it involved a habeas petition brought on behalf of immigration detainees, who commonly rely on Section 2241. See, e.g., Basank v. Decker, 2020 WL 1953847 (S.D.N. Y Apr. 23, 2020) (2241 petition filed by ICE detainees seeking release because of the public health crisis posed by COVID-19); Ferreyra v. Decker, 2020 WL 1989417 (S.D.N.Y. Apr. 27, 2020) (same). Further, the Mapp court’s statement of its holding makes clear that a federal court’s bail authority sweeps broadly across the habeas spectrum: “We hold 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 cases.” Mapp, 241 F.3d at 223. During the ongoing pandemic, district courts within the Circuit have relied on the authority of Mapp to issue bail or temporary release orders to 2241 petitioners who have argued that their conditions of confinement and medical histories make them especially vulnerable to serious illness from COVID-19. See, e.g., Basank, 2020 WL 1953847, at *13 (“Even if [ICE detainees petitioning under Section 2241] had not met the requirements for a preliminary injunction, the Court would release them on bail pending final resolution of their habeas claims under the Second Circuit’s decision in Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001).”); Ferreyra, 2020 WL 1989417, at *12 (same); Coronel v. Decker, 2020 WL 1487274, at *8-9 (S.D.N.Y. March 27, 2020) (finding that “Petitioners have raised substantial claims” and that “[r]elease is ... necessary to make the
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habeas remedy effective” because “[i]f Petitioners were to remain detained, they would face a significant risk that they would contract COVID-19—the very outcome they seek to avoid.”).
*15 Respondents also argue that “Petitioners ... are seeking to divest the BOP of its statutory and regulatory discretion as to which inmates should be placed on home confinement.” ECF No. 24-1 at 47. Here, Respondents invoke the language of Section 3621(b), which states, in part, that “[n]otwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” 18 U.S.C. § 3621(b). But this provision is not an obstacle to the order I impose today either, for several reasons. First, Petitioners’ argument that Respondents are not adequately exercising their authority under Section 3624, as expanded by the CARES Act and the Attorney General’s memo, does not require the Court to “review[ ]” “a designation of a place of imprisonment under this subsection,” i.e., under subsection 3621(b). Petitioners are not challenging their designation to FCI Danbury. Rather, they are challenging Respondents’ failure adequately to exercise their separate, recently expanded statutory authority under subsection 3624(c)(2) to place inmates on home confinement. While subsection 3621(b) gives the BOP broad, general authority over designations of and transfers to “places of imprisonment,” a term that some courts have construed to cover halfway houses as well as prisons, see, e.g., Goldings v. Winn, 383 F.3d 17, 26 (1st Cir. 2004), subsection 3624(c)(2) provides specific, independent authority to place inmates in home confinement. 13 So in finding preliminarily that Respondents are not exercising their authority under subsection 3624(c) (2) in a constitutionally adequate manner, I am not “review[ing]” the BOP’s “designation of a place of imprisonment” under subsection 3621(b). 14 Second, to the extent there is any ambiguity about whether Section 3621(b) or any other statute bars judicial review of the Respondents’ failures to exercise their authority under Section 3624, I would construe it not to do so to avoid the constitutional question that would arise from a wholesale bar on judicial review in the circumstances of this case. Triestman v. United States, 124 F.3d 361, 378 (2d Cir. 1997) (“[W]e must construe a federal statute to avoid constitutional questions where such a construction is reasonably possible. By construing the habeas-preserving paragraph of Section 2255 to provide that habeas corpus remains available to federal prisoners when Section 2255 is not available and when the failure to allow for some form of collateral review would raise serious constitutional questions, we do just that.”); see also Webster v. Doe, 486 U.S. 592, 603 (1988) (“[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.... We require this heightened showing in part to avoid the serious constitutional question that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” (internal citations and quotation marks omitted)). 15
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13 To be sure, the two are not unrelated, and the Second Circuit has suggested, in dicta, that, while the broad authority in subsection 3621(b) is discretionary, the “prerelease” provisions of Section 3624, which includes the home confinement authority of subsection 3624(c)(2), “impose[ ] an affirmative, discretion less obligation on the BOP, where practicable, to send an offender to a less-restrictive facility during a transitional period prior to final release.” Levine v. Apker, 455 F.3d 71, 75 (2d Cir. 2006) (citing cases, including Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004) (noting the “shall” language in Section 3624(c)(1))).
14 18 U.S.C. § 3625, which makes the provisions of the Administrative Procedure Act inapplicable to designation, transfer, and placement decisions by the BOP, also is not a bar to Petitioners’ challenge, which is brought under the habeas statute, 28 U.S.C. § 2241, not the Administrative Procedure Act.
15 During oral argument, Respondents also cited two decisions by another judge on this court, Fournier v. Zickefoose, 620 F. Supp.2d 313 (D. Conn. 2009) and United States v. Ford, 2009 WL 3059129 (D. Conn. Sept. 21, 2009). But neither decision suggests that the Court is foreclosed from reviewing whether Respondents are exercising their authority under Sections 3624(c)(2) or 3582(c)(1)(A) in conformity with the Eighth Amendment. In Fournier, the Court reviewed the petitioner’s Section 2241 claim regarding the BOP’s refusal to allow her to serve the remainder of her sentence in a halfway house or home confinement but found that it failed on the merits. Fournier, 620 F. Supp. 2d at 317-18 (noting that “[t]he general rule is that the Fifth Amendment’s Due Process Clause does not confer any right upon an inmate to any particular custody or security classification,” that the BOP had acted “within its authority to place Fournier” in a halfway house for a shorter period than she desired, and that her Eighth Amendment claim failed because she “neither claims that she has been deprived of the minimal civilized measure of life’s necessities” nor asserts that the Warden acted with a sufficiently culpable state of mind). Similarly, in Ford, the court found that the defendant’s challenge to his designation to FCI Fairton failed on the merits, concluding that “the BOP [ ] act[ed] well within its authority under section 3621” in making the designation. 2009 WL 3059129, at * 1.
3. The Prison Litigation Reform Act and Res Judicata Respondents also raise objections based on the Prison Litigation Reform Act, 18 U.S.C. § 3626 (the “PLRA”), and res judicata, or claim preclusion. ECF No. 24-1 at 54-58. For the reasons set forth below, I find that neither objection precludes the order I enter today.
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a. The PLRA *16 The provisions of the PLRA set forth in 18 U.S.C. § 3626 impose restrictions on the types of relief federal courts can award in “any civil action with respect to prison conditions.” 18 U.S.C. § 3626(a). Among other things, the statute requires that prospective relief—the type Petitioners seek in this case—be “narrowly drawn, extend[ ] no further than necessary to correct the violation of the Federal right, and [be] the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a). In addition, the statute imposes strict prerequisites before a federal court may issue a “prisoner release order,” which is broadly defined as “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or non-admission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4). Those prerequisites include the failure of some other, earlier-imposed remedy to address the deprivation of the federal right and the convening of a three-judge court. Id. § 3626(a)(3). None of these provisions apply, however, unless the proceeding is a “civil action with respect to prison conditions,” a term that “means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2) (emphasis added). Whether the requirements of Section 3626 apply here turns on whether the italicized language in the preceding sentence describes this case. For the reasons set forth below, I find that it does, and thus that Section 3626 is inapplicable.
The Petitioners in this case are challenging the conditions of their confinement but they are also challenging the “fact ... of confinement in prison.” Specifically, they contend that their medical histories and the outbreak at FCI Danbury combine to place them in grave danger from COVID-19; that at current facility population levels, they and other FCI Danbury inmates cannot comply with CDC guidelines for physical distancing; and that “[a]s long as prisoners are unable to practice physical distancing, any other mitigating steps will fail to decrease meaningfully the risk of COVID-19 infections at FCI Danbury.” ECF No. 1 at 21. The Petition seeks an order either releasing them from custody altogether or releasing them to home confinement, id. at 66, because, “[a]bsent significant de-densifying, people who are confined in prisons, jails, and detention centers, as well as staff, will find it impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission.” Id. at 26; see also id. at 34 (“The only effective way to minimize the potential devastation from COVID-19 in BOP facilities generally and at FCI Danbury in particular is to downsize immediately the incarcerated population....”). In short, Petitioners contend that the fact of their confinement in prison itself amounts to an Eighth Amendment violation under these circumstances, and nothing short of an order ending their confinement at FCI Danbury will alleviate that violation. 16
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16 This contention distinguishes this case from the situation in Alvarez v. Larose, 20cv782DMS(AHG) (S.D. Cal. May 9, 2020) (attached to Respondents’ Notice of Additional Authority, ECF No. 29 at 16), where the court recently reached a different conclusion about the applicability of Section 3626 based in part on the fact that “Plaintiffs fail to argue there are no set of conditions of confinement that would be constitutionally sufficient.” ECF No. 29 at 16. Here, Petitioners are making precisely that argument as to the medically vulnerable subclass.
These allegations show that, under the plain language of the definition quoted above, this is a habeas proceeding challenging “the fact ... of confinement in prison.” A “fact,” when used with “the”, refers to, among other things, the “actual occurrence of an event” or the “real existence of a situation or state of affairs.” Oxford English Dictionary (3d ed., Sept. 2014), https://www.oed.com/ view/Entry/67478 (emphasis original); see also Webster’s Third New International Dictionary (defining a “fact” as, among other things, “something that has actual existence,” “an occurrence, quality, or relation the reality of which is manifest in experience or may be inferred with certainty,” and “an actual happening in time and space.”). “Confinement” in turn, is defined as “the act or state of being confined,” i.e., “imprison[ed],” Webster’s Third New International Dictionary,— a status that plainly applies to each of the Petitioners and those they seek to represent in this case. “[T]he fact ... of confinement,” then, refers generally to the existence of the state of being imprisoned. Because Petitioners contend that the Eighth Amendment violation inheres in their incarceration at Danbury FCI and cannot be remedied unless they are removed from that setting, Petitioners are challenging the fact—or “existence”—of their confinement. See also Wilson v. Williams, 2020 WL 1940882, at *5, 10 (N.D. Ohio Apr. 22, 2020) (concluding that a similar habeas petition brought by inmates at FCI Elkton “ultimately seek[s] to challenge the fact or duration of confinement,” as well as the conditions of confinement, and that the petition is not subject to the PLRA, 18 U.S.C. § 3626); Wilson v. Williams, 20-3447, ECF No. 23-1 (6th Cir. May 4, 2020) (denying the Government’s motion to stay, holding that, “[w]here a petitioner claims no set of conditions would be constitutionally sufficient, we construe the petitioner’s claim as challenging the fact of the confinement,” and concluding that the PLRA does not apply.).
*17 The above construction of the statutory language accords meaning to all parts of the definition of “civil action with respect to prison conditions”—following a well-established canon of statutory construction. See, e.g., U.S. v. Bernier, 954 F.2d 818, 819-20 (2d Cir. 1992) (“[C]ourts must give effect to every word of a statute where possible.... The sole exception to this rule of construction applies where the statute groups words together in a list, in which case the words should be given a related meaning.... No ‘list’ appears in section 924(c), which contains only two words. Accordingly, each word should be given separate effect according to its plain meaning.”). Because
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the first part of the definition already limits its scope to proceedings “with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison,” habeas petitions unrelated to conditions of confinement—such as challenges to the validity of a conviction or the length of the sentence imposed by the court—are already excluded from the scope of the PLRA. Thus, to interpret the habeas clause of the definition to refer only to these types of petitions would make the clause superfluous. By contrast, interpreting the clause to refer to a subset of habeas petitions “with respect to the conditions of confinement ...”—namely, those that challenge the “fact or duration of confinement” by claiming, for example, that no constitutional conditions of confinement are possible under the circumstances—gives effect to all parts of the definition. Put differently, read as a whole, see U.S. v. Lockhart, 749 F.3d 148, 154 (“[I]t is well established that statutory phrase should not be construed in isolation; we read statutes as a whole.”) (internal quotation marks and citations omitted), the definition in subsection (g)(2) strongly suggests that there are habeas proceedings that challenge both the conditions of confinement and the “fact or duration of confinement,” and that such petitions are exempt from the statute. The present case presents just such a petition. 17
17 To the extent that its meaning is unclear, there is little law that further illuminates the phrase “but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). I could find no legislative history that shed real light on the phrase, nor any case law within the Second Circuit that explicates it. As Respondents note, the Second Circuit has suggested, in dicta, that the PLRA applies to at
least some habeas petitions challenging conditions of confinement. Jones v. Smith, 720 F.3d 142, 145 n.3 (2d Cir. 2013) (after noting that an earlier decision had held that a habeas petition was not a “civil action” for purposes of the fee requirements of the PLRA, stating as follows: “We recognize that [the earlier decision] spoke in general terms to the effect that ‘habeas corpus petitions’ are not civil actions covered by the PLRA. We nonetheless assume without deciding that, in so saying, the court meant habeas corpus petitions that challenge criminal convictions and sentences, and not petitions, sometimes brought under
28 U.S.C. § 2241, that complain of conditions of confinement, which are analogous to
suits under 42 U.S.C. § 1983 complaining of conditions of confinement. The logic of our [earlier decision] was to distinguish between civil actions covered by the PLRA and others based on the type of relief sought, rather than the statute under which relief was sought.”). But, for one, neither Jones nor the earlier decision it cites interpreted Section 3626(g)(2), as Section 3626 was not at issue in those cases, and it is unclear whether its definition of “civil action with respect to prison conditions” applies to other provisions of the PLRA. Moreover, given the state of the law in the Second Circuit, the Jones dicta does not clearly address whether the PLRA applies to habeas petitions that challenge both conditions
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of confinement and the fact or duration of confinement. Before and after Jones, district courts within the Second Circuit have entertained cases that challenged conditions but did not seek release from confinement. See, e.g., Ilina v. Zickefoose, 591 F. Supp.2d 145, 150 (D. Conn. 2008) (denying motion to dismiss 2241 petition challenging conditions of confinement where prisoner sought “restoration of needed medical care at FCI Danbury”); Anderson v. Williams, 2016 WL 7217588, at *2 (evaluating on the merits Section 2241 petition challenging conditions of confinement and motion for preliminary injunction to ensure that petitioner received certain medical tests and treatment). The Jones dicta is best read to suggest that it is these types of petitions that fall within the ambit of the PLRA (though not necessarily Section 3626). To the extent that Respondents read Jones to equate “habeas corpus petitions that challenge criminal convictions and sentences” with the term “habeas corpus proceedings challenging the fact or duration of confinement in prison” in subsection (g)(2)—a statutory provision that, again, the Jones court did not address—such a reading is inconsistent with the plain language of subsection (g)(2) for the reasons set forth above.
b. Res Judicata *18 Respondents’ res judicata argument points out that two of the petitioners have filed motions for “compassionate release” under 18 U.S.C. § 3582(c)(1)(A), and that one of those motions— filed by Petitioner Cassidy—was denied without prejudice by the sentencing judge. (The motion has since been renewed, reportedly following Mr. Cassidy’s efforts to exhaust his administrative remedies under Section 3582(c)(1)(A), and is pending before that judge.) Respondents assert that “Petitioner Cassidy does not simply get a ‘do-over’ in the District of Connecticut after his same claim was rejected by” his sentencing judge. ECF No. 24-1 at 54-55. During oral argument, Petitioners’ counsel argued that Section 3582(c)(1)(A) and the Eighth Amendment consist of different elements and apply different legal standards, and so there would be no preclusive effect on this case from a ruling by a sentencing judge denying a Section 3582 motion.
This argument raises novel issues—including whether an inmate could raise an Eighth Amendment claim in a motion brought under Section 3582(c)(1)(A) and whether a ruling on the merits of such a motion (as opposed to a mere denial without prejudice) should be treated as a judgment having claim preclusive effect. See Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 366 (2d Cir. 1995) (“The doctrine of res judicata, or claim preclusion, holds that following entry of a valid final judgment, the parties to the suit and their privies are thereafter bound not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” (internal quotation marks omitted)). For the moment, however, I need not decide these issues, because
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Respondents have not suggested that there are inmates falling in the medically vulnerable subclass whose Section 3582 motions have been denied on the merits by their sentencing judges. Should there be, the Respondents may file a motion asking that those persons be excluded from the group being prioritized for home confinement review under the order I issue today, in which case I will likely need to decide the issues set forth above. Any such motion should attach a copy of the judge’s ruling denying the Section 3582(c)(1)(A) motion.
4. Exhaustion 18 18
It is debatable whether the exhaustion requirement for a Section 2241 habeas petition should be treated as a “jurisdictional” issue rather than as an affirmative defense. As discussed below, the requirement is judge-made, rather than statutory, and is subject to various exceptions. Nonetheless, because Respondents classify it as a “jurisdictional” flaw and because some district courts within the Second Circuit have as well, see e.g., United States v. Grajales, 2019 WL 2617027, at *2 (E.D.N.Y. June 26, 2019); but see Oliva v. INS, 1999 WL 61918, at *3 (S.D.N.Y. Feb. 10, 1999), I treat it under the heading of jurisdictional issues.
Respondents argue that the Petitioners have failed to exhaust administrative remedies. ECF No. 24-1 at 42-43, 58-65. They make this argument with respect to both Petitioners’ requests for release to home confinement and their requests for “additional ‘safety’ measures.” Id. at 43. Here, I address the exhaustion issue only with respect to the Petitioners’ requests for release to home confinement, as I grant the TRO only so that the medically vulnerable class can be properly considered for that type of relief and for compassionate release.
Exhaustion in the context of Section 2241 habeas petitions is a judge-made rule subject to judge-made exceptions. U.S. ex rel. Scranton v. State of New York, 532 F.2d 292, 294 (2d Cir. 1976) (“While 28 U.S.C. [ ] Section 2241 does not by its own terms require the exhaustion of state remedies as a prerequisite to the grant of federal habeas relief, decisional law has superimposed such a requirement in order to accommodate principles of federalism.”); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001) (“[O]ur decision today [applying the cause and prejudice standard for a Section 2241 habeas petitioner who had defaulted on his administrative remedies] rests solely on the requirement of administrative exhaustion as spelled out in our decisional law....” (emphasis added)); McPherson v. Lamont, 2020 WL 2198279, at *6 (D. Conn. May 6, 2020) (“Because Sec. 2241’s exhaustion requirement is a judicial invention, it is amenable to judge-made exceptions.”). 19 Those exceptions include futility (“exhaustion may be
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unnecessary where it would be futile, either because agency decisionmakers are biased or because the agency has already determined the issue”); incapability (“exhaustion may be unnecessary where the administrative process would be incapable of granting adequate relief”); and undue prejudice (“an unreasonable or indefinite timeframe for administrative action may sufficiently prejudice [petitioners] to justify a federal court in taking a case prior to the complete exhaustion of administrative remedies”). Washington v. Barr, 925 F.3d 109, 118-19 (2d Cir. 2019); see also Gonzalez v. Perrill, 919 F.2d 1, 2 (1990) (In Section 2241 case, noting that “[t]he controlling standard is unambiguous: an appellant must exhaust his administrative remedies before seeking federal review of his conviction unless administrative procedures are unavailable or are incompetent to provide adequate redress.”).
19 At one point, Respondents assert that the exhaustion requirement of the Prison Litigation Reform Act— 42 U.S.C. § 1997e—applies to habeas proceedings. ECF No. 24-1 at 62. This is an inaccurate statement of the law in the Second Circuit. Carmona, 243 F.3d at 634 (noting Second Circuit’s earlier holding that Section 1997e does not apply to habeas proceedings brought under 28 U.S.C. § 2254 and stating that, “[d]oubtless the same rule should obtain in Section 2241 cases as in Section 2254 petitions,” and that “[a] number of other circuits—relying primarily on the ground that habeas proceedings are not civil actions—have ruled the [Prison] Litigation Reform Act inapplicable to habeas actions brought by federal prisoners under Section 2241.”); United States v. McGriff, 468 F. Supp.2d 445, 447 (E.D.N.Y. 2007)(“A habeas petition [brought under Section 2241] is not subject to the administrative exhaustion requirement of the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a); instead it is subject to the judicially-created requirement that federal prisoners must exhaust their administrative remedies prior to filing a petition for habeas relief.” (internal quotation marks and citations omitted)).
*19 The Petitioners have set forth sufficient facts to support a finding that at least the final exception—undue prejudice from delay—applies here. As noted above, the Warden has considered only 159 inmates for home confinement 20 to date and has not yet even addressed 44% of the compassionate release requests. Further, even after the Warden makes a decision, the BOP’s administrative remedy process involves two additional layers of review (by the Regional Director and General Counsel), and each layer involves a new form and a new mailing. See 28 C.F.R. § 542.15. Given the rapid spread of COVID-19 at FCI Danbury, as evidenced by the number of positive tests among inmates and staff to date, Petitioners have shown that that they would likely suffer irreparable harm if they were required to exhaust the administrative remedy process before
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seeking relief in court. Accordingly, I find that the Petitioners are excused from exhaustion with respect to their claims seeking release to home confinement. 21
20 In her declaration, the Warden states that “[i]nmates do not need to apply to be considered for home confinement,” although they may do so. ECF No. 24-2 at 22.
21 Respondents also assert that “[a]s release from custody or placement in home confinement is not a remedy available under a 28 U.S.C. § 2241 conditions of confinement habeas, an exhaustion analysis is not essential with respect to those claims.” ECF No. 24-1 at 43. They cite no authority for the notion that “release from custody or placement in home confinement is not a remedy” for Section 2241 claims challenging conditions of confinement, however, and, as discussed above, several district courts within the Second Circuit have released Section 2241 petitioners challenging their conditions of confinement in light of COVID-19, relying on the broad authority to grant bail in habeas cases set forth in Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001).
B. The Petitioners’ Request for a Temporary Restraining Order 22 22 The rules governing habeas proceedings allow for application of the Federal Rules of
Civil Procedure, including Rule 65 governing temporary restraining orders and preliminary injunctions, “to the extent that they are not inconsistent with any statutory provisions or these rules.” Rule 12 of the Rules Governing Section 2254 Cases in the United States District Court; see also Rule 1(b) (“The district court may apply any or all of these rules to a habeas corpus petition not covered by [ 28 U.S.C. § 2254].”).
1. Legal Standard “It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). In general, a party seeking a preliminary injunction or temporary restraining order “must ... show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the party’s favor, and that an injunction is in the public interest.” American Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015) (citing Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). “A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citation omitted). The burden on the moving party is higher where, as here, that party seeks
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a mandatory injunction—that is, an injunction commanding a positive act, as opposed to one that merely maintains the status quo. The Second Circuit has instructed that a mandatory injunction “should issue ‘only upon a clear showing that the moving party is entitled to the relief requested,

or where extreme or very serious damage will result from a denial of preliminary relief.’ ” Tom

Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (quoting v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985)).

Abdul Wali

*20 The Petitioners seek a temporary restraining order to vindicate two somewhat distinct constitutional claims. As to the subclass of medically vulnerable inmates at high risk of serious illness or death from COVID-19, the Petitioners’ chief complaint is the Warden’s failure to make prompt, meaningful use of her authority to place inmates on home confinement and to grant compassionate release—the only measures they contend are capable of offering such inmates adequate protection from COVID-19. With respect to the broader class consisting of all inmates at FCI Danbury, the Petitioners claim that the Warden has failed to implement adequate safety measures to contain the spread of the virus and mitigate the risks of infection, including adequate screening, testing, isolation, quarantine, sanitation, hygiene, and personal protective equipment. I address each of these claims in turn.

2. The Medically Vulnerable Subclass and the Warden’s Home Confinement and Compassionate Release Authority
a. Likelihood of Success on the Merits – Eighth Amendment Under the Eighth Amendment, prison officials must “ensure that inmates receive adequate food, clothing shelter, and medical care, and must take reasonable measure to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prisoners have a right, in other words, to “humane conditions of confinement.” Id. “[H]aving stripped [incarcerated persons] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Id. at 833.
Prison officials violate a prisoner’s Eighth Amendment right to humane conditions of confinement when two conditions are met. First, under the “objective” component of the analysis, “the alleged deprivation must be, ‘objectively,’ sufficiently serious.” Id. at 834. Second, under the “subjective” component, prison officials must have acted with a “sufficiently culpable state of mind,” namely, “ ‘deliberate indifference’ to inmate health or safety.” Id.

i. Objective Component
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To satisfy the objective component, “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. Here, this requirement is easily satisfied. Courts have long recognized that prison officials have an Eighth Amendment duty to protect inmates
from exposure to communicable disease. See, e.g., Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect inmates from infectious
disease.”); Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981) (“[F]ailure to adequately screen newly arrived inmates for communicable disease” represents an “(omission) sufficiently harmful
to evidence deliberate indifference to serious medical needs” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))); id. (“[I]t is unnecessary to require evidence that an infectious disease has actually spread in an overcrowded jail before issuing a remedy.”).
It is undisputed that there is an active and serious outbreak of COVID-19 at FCI Danbury. Attorney General Barr’s April 3rd memorandum specifically identifies FCI Danbury as one of three federal prisons experiencing “significant levels of infection.” ECF No. 24-2 at 48. A recent test of the inmates at the satellite prison—conducted following the intervention of Senator Chris Murphy— revealed that 20 of the 143 women at the facility had active infections. ECF No. 24-2 at 25. In addition, 62 other inmates have been tested for COVID-19, and 49 of these have tested positive, for a total of 69 positive tests. ECF No. 24-2 at 25. The high rate of positive tests outside of the satellite prison, and significant questions raised by the Petitioners as to the adequacy of testing, suggest this number may underrepresent the true number of COVID-19 infections at FCI Danbury. But even if that were not the case, the undisputed evidence leaves no doubt that FCI Danbury is experiencing an active outbreak of COVID-19.
*21 Further, the structure of the three facilities at FCI Danbury—even assuming that all reasonable precautions and safety measures are being fastidiously observed (which the Petitioners dispute)—heightens the risk of transmission. The cornerstone of the public health response to COVID-19 is to practice “social distancing.” In the State of Connecticut, for example, social gatherings of more than 5 people continue to be prohibited, and members of the public are directed to wear face coverings wherever a six-foot distance cannot be maintained. Coronavirus Disease 2019 (COVID-19), CT.gov, https://portal.ct.gov/Coronavirus (last visited May 7, 2020); see also Social Distancing, Centers for Disease Control and Prevention (April 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/ social-distancing.html (“Limiting face-to-face contact with others is the best way to reduce the spread of [COVID-19],” including staying at least 6 feet from other people and avoiding group gatherings.). In the meantime, the vast majority of the 140 inmates at the satellite prison live and sleep in a perpetual large gathering—a single dormitory hall with bunk beds separated by four feet or less, with shared common spaces such as bathrooms and showers. See ECF No. 1 at 12-13. The inmates at the camp and the men’s prison fare little better in terms of social distancing. Most of the
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inmates at the camp and the men’s prison live in dorms that house roughly 50 people each. ECF No. 1 at 14. Put differently, at a time when public health officials are counseling strict adherence to social distancing practice, most inmates at FCI Danbury live in close contact with between 50 and 140 other inmates, in a facility with a serious, active COVID-19 outbreak.
It is also undisputed—and, indeed, by now common knowledge—that COVID-19 is a highly dangerous disease that poses a significant risk of severe illness and death, particularly for members of the Medically Vulnerable Subclass. See ECF No. 1-1 at 6 (“Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.”); see also Wilson v. Williams, 2020 WL 1940882, at *8 (N.D. Ohio Apr. 22, 2020) (“For infected inmates, the virus can lead to pneumonia. In the wors[t] pneumonia cases, COVID-19 victims suffer diminishing oxygen absorption, with resulting organ failure leading to death.”). According to one report, the mortality rate from COVID-19 is 8.4% for individuals with hypertension, 8.0% for individuals with chronic respiratory disease, 7.6% for individuals with cancer, and 13.2% for individuals with cardiovascular disease. ECF No. 1 at 9-11 (citing Report of WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization at 12 (Feb. 28, 2020), https://www.who.int/docs/default-source/ coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf (last visited May 7, 2020)).
In short, with respect to Petitioners and other members of the Medically Vulnerable Subclass, Petitioners have demonstrated a likelihood of success on the merits on their claim that they are “incarcerated under conditions posing a substantial risk of serious harm.”
ii. Subjective Component Under the subjective prong, a prison official may be held liable for inhumane conditions of confinement “only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847; see also
Brock v. Wright, 315 F.3d 158, 164 (2d Cir. 2003) (“In order to prove deliberate indifference in a challenge to [a] prison inmate’s conditions of confinement, the prisoner must show that a particular defendant ‘knows of and disregards an excessive risk to inmate health or safety.’ ” (quoting
Farmer, 511 U.S. at 837)). In the context of threats to an inmate’s health, a plaintiff must show that the defendant “acted with deliberate indifference to [the plaintiff’s] medical needs.” Brock, 315 F.3d at 162 (citing Estelle, 429 U.S. at 104). In other words, the Petitioners must show that “the prison official knew of and disregarded the plaintiff’s serious medical needs.” Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)). “Deliberate indifference requires more than negligence, but less than conduct
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undertaken for the very purpose of causing harm.” Cir. 1994).

Hathaway v. Coughlin, 37 F.3d 63, 66 (2d

Here, it cannot be disputed that the Respondent Warden knew of the substantial risk of serious harm posed by the COVID-19 outbreak at FCI Danbury. On April 3—more than one month ago —Attorney General Barr issued an urgent memo to the Bureau of Prisons regarding COVID-19, noting the “significant levels of infection at several of our facilities, including ... FCI Danbury.” ECF No. 24-2 at 48. The Warden and her staff at FCI Danbury understood the threat posed by COVID-19 at least as early as March 19, 2020, when they began modifying the operations at all three FCI Danbury facilities in response. ECF No. 24-2 at 9-11. Further, given the pervasive daily media coverage of the pandemic, the seriousness of the threat posed by COVID-19—and the particular vulnerability of elderly individuals as well as those with certain preexisting medical conditions—are so well known that it would be implausible to suggest that prison officials are
unaware of this risk. See Farmer, 511 U.S. at 842 (“[A] fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”).

*22 The parties vigorously dispute, however, whether prison officials have acted with deliberate indifference to the risk posed by COVID-19. The Petitioners contend that the Warden’s failure to transfer medically vulnerable prisoners from FCI Danbury to home confinement “in any meaningful numbers” constitutes deliberate indifference. ECF No. 15 at 39. I find that they have shown a likelihood of success on the merits with respect to this contention. I also find that Warden’s
handling of “compassionate release” requests under Section 3582(c)(1)(A) bolsters the finding of deliberate indifference.

Home Confinement As discussed above, the CARES Act has given the Bureau of Prisons explicit authority to place any inmate on home confinement, and the Attorney General has made the emergency findings triggering that authority. He has also directed the Bureau of Prisons in urgent terms to “immediately review all inmates who have COVID-19 risk factors, as established by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton, and similarly situated facilities....” ECF No. 24-2 at 48-49 (emphases added). His April 3, 2020 memorandum could not have conveyed a greater sense of urgency, instructing the Bureau to “begin implementing this directive immediately at the facilities I have specifically identified,” noting that “time is of the essence,” and asking for implementation “as quickly as possible.” Id. at 49.
In spite of the explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortations of the
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head of the government department in which the Bureau of Prison sits, the implementation of this directive at FCI Danbury has been slow and inflexible. The Warden indicates that only 159 inmates have been reviewed since March 26, and a mere 21 inmates have actually been placed on home confinement, out of a population of roughly 1,000. ECF No. 23-24. Moreover, the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness of the health risk faced by vulnerable inmates. Indeed, the most recent inmate bulletin regarding home confinement criteria does not even expressly mention health risks or how they will be evaluated. ECF No. 15-8 (noting “updated criteria for Home Confinement based on COVID-19 guidelines” but not specifying any guidelines and listing only non-healthrelated criteria). And the Warden’s description of the home confinement review process suggests that, rather than prioritizing review based on age, medical history, and COVID-19 risk factors, FCI Danbury is focusing on those who have served the larger portions of their sentences. ECF No. 24-2 at 23.) In fact, the inmate bulletins make clear that those who have not served a specified percentage of their sentences are categorically disqualified: any inmate who has not served at least 50% of his or her sentence is deemed ineligible for home confinement, irrespective of vulnerability to COVID-19. ECF Nos. 15-7, 15-8. 23 Other criteria in the inmate bulletins are similarly unrelated to medical vulnerability and, at best, only tangentially related to public safety. For example, any inmate with an incident report in the past 12 months—no matter the seriousness—is deemed ineligible for home confinement, regardless of any health condition he or she might have. ECF Nos. 15-7, 15-8. At oral argument, the Government suggested that such an inmate could seek compassionate release as an alternative. But that is a dead end at FCI Danbury: Of the 241 requests for compassionate release filed since the COVID-19 crisis began, the Warden has signed off on exactly 0. 24 ECF No. 24-2 at 28.
23 The Warden’s declaration puts it slightly differently: “BOP is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentence, or (2) have 18 months or less remaining in their sentence and have served 25% or more of their sentence.” ECF No. 24-2 at 23.
24 This is particularly troubling in light of the fact that numerous judges, including the undersigned, have denied motions for compassionate release because the inmate has not first waded through the statutorily mandated administrative process for requesting compassionate release from the Warden—a process that now appears to be the definition of futile.
*23 Especially in light of the Barr memos, it is unimaginable that the Respondents would not be taking COVID-19 medical risk factors—some of which, by some estimates, give an inmate a better than 10% chance of dying should the inmate contract COVID-19—into consideration in reviewing inmates for home confinement. But, at the very least, the lack of any express mention of
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such factors in both the inmate bulletins and the Warden’s declaration suggests that prison officials are not giving these risk factors the weight they plainly deserve.
The Warden argues that the measures taken at FCI Danbury to protect inmates from COVID-19, including screening, testing, quarantining, isolation of COVID-19 positive inmates, enhanced sanitation, and widespread use of personal protective equipment, show that she has not disregarded, or acted with deliberate indifference toward, the threat posed by COVID-19. But even accepting the Warden’s account of the scope, consistency, and effectiveness of these measures—an account the Petitioners vigorously dispute—Petitioners have shown a likelihood of success on the merits of their claim that the Warden’s inadequate implementation of the home confinement authority in the CARES Act constitutes “deliberate indifference” under the Eighth Amendment. The Warden does not dispute the impossibility of instituting effective social distancing measures in facilities, like FCI Danbury, where the vast majority of the population lives and sleeps in large dormitory halls lined with bunk beds, sharing bathroom and shower facilities. See ECF No. 24-1 at 73. But without social distancing measures, reliable containment of a highly contagious disease is nearly impossible. This makes transfer to home confinement (or compassionate release, discussed below) the only viable measure by which the safety of highly vulnerable inmates can be reasonably assured. While the Warden is free to exercise discretion in choosing among equally effective measures to protect inmates from serious risks, choosing inevitably inadequate measures to the exclusion of a plainly superior one constitutes deliberate indifference. See, e.g., Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“[M]ere disagreement over the proper treatment ... does not create a constitutional claim ... [s]o long as the treatment given is adequate.”); id. (“In certain instances, a physician may be deliberately indifferent if he or she consciously chooses an easier and less efficacious treatment plan.” (internal quotation marks and citations omitted)); see also Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (reasonable jury could find that putting prisoner into protective custody but failing to protect her from a risk that persisted even in protective custody was unconstitutional).
Put somewhat differently, even with the measures that the Warden has put in place, due to the impossibility of adequate social distancing, confinement at FCI Danbury—due to the very structure of the facility—continues to pose a grave risk to vulnerable inmates’ health. For this reason, Congress has provided statutory authority for, and the Attorney General has directed the warden to “immediately” implement, the broad use of home confinement for vulnerable inmates. Under the circumstances of the present crisis, the Warden’s failure to make prompter, broader use of this authority to protect the lives of vulnerable inmates is likely to constitute deliberate indifference.
In short, by failing to make meaningful use of her home confinement authority, the Warden has failed to implement what appears to be the sole measure capable of adequately
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protecting vulnerable inmates—a measure the Attorney General directed the BOP to implement “immediately” and with “dispatch”—in favor of measures that, even if they were fully and painstakingly implemented, would still leave vulnerable inmates subject to a grave risk to their health. Petitioners have thus shown a likelihood of success on the merits on their claim that, with respect to the Medically Vulnerable Subclass, the Warden has disregarded a “substantial risk of serious harm” by “failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. 25
25 Respondents do not argue that the Warden’s hands were tied by BOP policy set by the BOP Director in setting the criteria for home confinement at FCI Danbury—an argument that would easily have been available in this case given that Petitioners have named both the Warden and the Director as Respondents. In any event, such an argument would not be dispositive, as a prison official does not comply with the Eighth Amendment when he or she knows of a serious risk to inmate safety but fails to address it due to mechanical reliance on prison policy. See Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (reasonable jury could find that “the defendants here acted with a sufficiently culpable state of mind in mechanically following [hepatitis C Guideline regarding substance abuse] and refusing to prescribe him [hepatitis C drug]”; “[t]he operative question in this case is not whether the Guideline’s substance abuse policy is generally justifiable, but whether a jury could find that the application of the policy in plaintiff’s case could have amounted to deliberate indifference to plaintiff’s medical needs”; “there is no evidence suggesting that the defendants took any step whatsoever to investigate—let alone verify—whether it would be medically appropriate to ignore the unanimous advice of [plaintiff’s] treating physicians ... and apply the Guideline’s substance abuse policy in [plaintiff’s] case.”).
Compassionate Release under Section 3582(c)(1)(A) *24 The Warden has another source of authority she may use to remove medically vulnerable inmates from the dangerous environment at FCI Danbury, and at the same time reduce the density within the prison for all inmates. Unfortunately, the record in this case makes clear she is not making adequate use of that authority either. Specifically, neither the Warden nor the BOP as a whole is implementing Section 3582(c)(1)(A) in the way Congress intended when it adopted the First Step Act, and neither has made any noticeable effort to update the process for evaluating “compassionate release” requests to take account of the COVID-19 pandemic. For the medically vulnerable inmates at FCI Danbury, this failure bolsters my conclusion that Petitioners have shown a likelihood of success on the merits on their claim that the Respondents are displaying deliberate indifference in violation of the Eighth Amendment.
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First, some history is in order. Before the First Step Act was enacted in 2018, only the Director of the Bureau of Prisons could file a motion with the sentencing court seeking “compassionate release” under Section 3582(c)(1)(A). “The BOP rarely did so.... From 1984 to 2013, an average of only 24 inmates were released each year through BOP-filed motions.” United States v. Rodriguez, 2020 WL 1627331, at *2 (E.D. Pa. April 1, 2020). According to a 2013 report of the Department of Justice’s Inspector General, these low numbers stemmed in part from poor management, a lack of clear standards, and inconsistent implementation of the compassionate release program. Id. “In an effort to improve and increase the use of the compassionate-release process, the First Step Act amended § 3852(c)(1)(A) to allow prisoners to directly petition courts for compassionate release, removing the BOP’s exclusive ‘gatekeeper’ role.” Id. The current version of the statute allows defendants to bring motions for release themselves at the earlier of two occurrences: (1) the defendant’s “fully exhaust[ing] all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or [2] the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility.” 18 U.S.C. § 3582(c) (1)(A).
The First Step Act left the BOP an important role in the process, as the defendant must still exhaust his administrative remedies with the BOP before filing a motion in court. 26 And given the statute’s specification of the timing for exhaustion—either the time needed for full exhaustion or the lapse of 30 days from receipt of the request by the warden, whichever is earlier—it appears that Congress assumed that sometimes the BOP would act on the request within 30 days of the Warden’s receipt of the request, and sometimes it would not. Further, one might assume that, after the 2013 Inspector General’s report and Congress’s reaction to it, the BOP would have built a better system for processing compassionate release requests administratively. Finally, one might assume that the BOP would have modified its internal “compassionate release” guidance to take account of the serious risk of severe illness or death faced by medically vulnerable inmates housed in prisons with COVID-19 outbreaks. Unfortunately, the record in this case belies all of these assumptions. According to the Warden’s declaration, “since this emergency began” through May 4, 2020—a period that spans more than 6 weeks since the Warden placed the prison on “modified operations” on March 19, ECF No. 24-2 at 10—the Reduction in Sentence Coordinator at FCI Danbury has received 241 requests for compassionate release; of these, 136 have been processed and denied, 18 have been returned to the inmate seeking further information, 70 are being reviewed by staff, and 17 “are awaiting” the Warden’s review. ECF No. 24-2 at 27.
26 There is a split among district courts within the Second Circuit as to whether the statute’s exhaustion requirement is mandatory, or whether it can be “waived” or excused by the district judge for reasons such as futility, irreparable harm, and similar equitable doctrines.
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Compare United States v. Roberts, 2020 WL 1700032, at *2 (S.D.N.Y. April 8, 2020) (“[T]he Court must abide by Congress’s choice, given Section 3582(c)’s clear command that the Court “may not” grant compassionate release except under the conditions Congress prescribed.”) with United States v. Colvin, 2020 WL 1613943, at *2 (D. Conn. April 2, 2020) (“[I]n light of the urgency of Defendant’s request, the likelihood that she cannot exhaust her administrative appeals during her remaining eleven days of imprisonment, and the potential for serious health consequences, the Court waives the exhaustion requirement of Section 3582(c)(1)(A).”). I have adopted the former position, finding that a defendant may not file a motion with the sentencing court until either he or she has exhausted the available administrative remedies or 30 days have lapsed from receipt of the request by the warden. United States v. Nathaniel Smith, 2020 WL 1903160 (D. Conn. April 17, 2020).
*25 These figures are striking for two reasons. First, the figures make clear that the FCI Danbury staff has, to date, not granted a single request for compassionate release—a batting average that is dramatically less favorable to inmates than the frequency with which courts in this District are granting Section 3582 motions. ECF No. 24-2 at 52-54 (Government’s listing of rulings by District of Connecticut judges on COVID-based Section 3582(c)(1)(A) motions showing that approximately 25 out of 48 have been granted, some with the Government’s consent). 27 This suggests that the Warden is setting an impossible high bar for these requests. 28 Alternatively, it suggest that the Warden has not set a new standard for compassionate release in light of the pandemic, but is applying an obsolete one that takes no account of the risk of illness or death to medically vulnerable inmates from COVID-19: As discussed above, the BOP’s January 2019 policy statement makes no mention of COVID-19 or the risk posed by infectious diseases inside prisons in general, and restricts use of “compassionate release” authority to a few, extreme situations that have little to do with susceptibility to COVID-19. Respondents have not suggested they have made any attempt to adjust the January 2019 standards for compassionate release to account for new “extraordinary and compelling” circumstances presented by COVID-19 in the prison setting.
27 Out of the 48, 7 involved inmates at Wyatt, which is a detention facility, albeit one that also houses sentenced prisoners immediately after sentencing. Only two of the Wyatt detainees were released, according to the Government’s spreadsheet. ECF 24-2 at 52-54. The Bail Reform Act, rather than Section 3582(c)(1)(A), governs release as to detainees.
28 Apparently, she is not the only one. Information Petitioners filed on the docket concerning the handling of Section 3582 requests at BOP Elkton—which is under a court injunction
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in light of a COVID-19 outbreak there, see Wilson v. Williams, 2020 WL 1940882 (N.D. Ohio April 22, 2020)—only confirms what appears to be the near-impossible standard the BOP is applying to these requests. According to a filing by the Government in the Wilson case, of 243 medically vulnerable inmates who have submitted a request for compassionate release to the warden at FCI Elkton, “[o]nly one inmate ... met the criteria for compassionate release.” ECF No. 26-4 at 4.
Second, the figures suggest that the Warden is processing request for compassionate release based on COVID-19 at a pace that disregards the seriousness of the risk faced by medically vulnerable inmates. The figures show that over more than six weeks, FCI Danbury has not made even an initial response to some 44% of compassionate release requests, justifying the Petitioners’ assertion that the staff at the facility are “failing to timely respond to requests for emergency compassionate relief.” Petition ¶ 119. Further, an initial response from the Warden—when it arrives—is only the first step in a multi-tiered administrative remedy process the inmate must follow to “fully exhaust[ ]” administrative remedies. That process requires each inmate to appeal the denial by the Warden to a BOP Regional Director, followed by an appeal to the BOP General Counsel. 28 C.F.R. § 571.63; 28 C.F.R. § 542.15. For each level of appeal, the inmate must use a different form and mail it to a different reviewing official. Id. Even if the inmate’s request to the Warden is approved—something that has not happened at Danbury since the outset of the pandemic—that approval must go through at least three more layers of review involving the BOP General Counsel, the Medical Director or an Assistant Director, and, finally, the Director. 28 C.F.R.§ 571.62. It does not appear that the BOP has updated these regulations since the First Step Act was passed, let alone made any attempt to suspend them or otherwise accelerate the process during the pandemic.
From all this it should be obvious that the BOP, from the Warden at FCI Danbury up through the Director, is not allowing—and, indeed, under its current regulations cannot allow—a defendant to “fully exhaust[ ] all administrative rights to appeal a failure of the Bureau of Prisons” to bring a motion for compassionate release before the expiration of the 30 days specified in the statute.
18 U.S.C. § 3582(c)(1)(A). So, as far as the record at FCI Danbury shows, it is practically impossible for a defendant to “fully exhaust” a compassionate release request within the BOP before expiration of the 30-day period, despite Congress’s apparent intent. Further, it is, at least during the COVID-19 crisis at FCI Danbury, impossible to find any success within the existing administrative remedy process; the applicable standards appear to make no allowance for the grave risks posed by COVID-19, even for members of the Medically Vulnerable Subclass, and the Warden indicates she has not approved for referral a single request. The 30-day period under the statute is simply dead time during which there is no prospect the BOP will come to the defendant’s aid.
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*26 All of these circumstances support the order I issue today, which requires the Warden to process Section 3582 requests more promptly and requires her to explain why, apparently, no consideration is being given in this process to the serious risk of illness or death posed to the medically vulnerable subclass.
While these circumstances might also support broader relief against the Director, the Director is not a proper party in this case because he is not the immediate custodian of the Petitioners.
Rumsfeld, 542 U.S. at 434-35 (“The federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is ‘the person who has custody over [the petitioner].’ 28 U.S.C. § 2242.... The consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner’s habeas petition.... In accord with the statutory language ..., longstanding practice confirms that in habeas challenges to present physical confinement—‘core challenges’—the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” (alteration in original)). Thus, unless the Petitioners can provide a reason not to do so within 7 days of this order, I will dismiss the 2241 Petition against the Director.
* * *
To be clear, I am not suggesting that the Eighth Amendment requires the Warden to place on home confinement or recommend for compassionate release every inmate who has a COVID-19 risk factor. In Farmer, the Supreme Court held that “a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 511 U.S. at 847 (emphasis added). Whether it is a “reasonable measure” to place an inmate on home confinement or grant compassionate release in a particular case will depend on the severity of the risk faced by the inmate from COVID-19 in light of his or her age and medical history, the danger the inmate presents to the residents of the home environment under consideration, and the danger to the public at large. The determination must be individualized, as the Petitioners acknowledged at oral argument, ECF No. 28 at 9, and, in some cases, such as where the inmate has a recent record of violence, may properly result in denying home confinement or compassionate release even to inmates whose age or medical histories place them at risk of serious injury or death from COVID-19. But difficult as this determination may be, Petitioners have made a preliminary showing that, in these circumstances, the Eighth Amendment requires that it be made promptly and that it focus on the critical issues of inmate and public safety.
b. Irreparable Harm
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“A showing of irreparable harm is the single most important prerequisite” for the issuance of a temporary restraining order. Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citations omitted). To satisfy the irreparable harm requirement, the Petitioners must demonstrate that, absent a temporary restraining order, “they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Id. (internal quotation marks and citations omitted).
*27 A substantial risk of serious illness or death has often been found to constitute irreparable harm. See, e.g., Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 43-44 (2d Cir. 1997) (finding irreparable harm where the closure of a treatment program would pose serious risk of harm to plaintiffs, including “death, illness or disability”); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332-33 (2d Cir. 1995) (upholding District Court’s irreparable harm finding based on the “risk of injury, infection, and humiliation”).
More specifically, Courts across the country have concluded that the risk of contracting COVID-19 as a result of unsafe conditions of confinement constitutes irreparable harm. See, e.g., Wilson v. Williams, 2020 WL 1940882, at *9 (N.D. Ohio Apr. 22, 2020) (finding that the risk of exposure to COVID-19 at FCI Elkton—one of two other facilities that, like FCI Danbury, were specifically identified by Attorney General Barr’s April 3 memo as experiencing significant outbreaks— constituted irreparable harm); Mays v. Dart, 2020 WL 1812381, at *13 (N.D. Ill. Apr. 9, 2020) (The risk of “severe health consequences, including death, if they contract coronavirus disease” constituted “irreparable harm.”); Basank v. Decker, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”).
FCI Danbury is experiencing an active COVID-19 outbreak—one of the worst in the federal prison system. One inmate at the prison has already died as a result of contracting the virus, and it is undisputed that members of the vulnerable subclass face a serious risk of meeting the same fate should they contract the virus. In light of the impossibility of instituting effective social distancing in the setting of a prison, like FCI Danbury, where inmates live and sleep in large dormitories lined with bunk beds, the grave risk to Petitioners persists despite the measures prison officials have taken to combat the virus.
In addition to the imminent prospect of serious physical harm, medically vulnerable inmates have alleged a violation of an important constitutional right—the right to be free from cruel and unusual punishment. “In the Second Circuit, it is well-settled that an alleged constitutional
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violation constitutes irreparable harm.” Basank v. Decker, 2020 WL 1481503, at *4 (citing cases); Connecticut Dep't of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citations omitted)); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“[T]he alleged violation of a constitutional right ... triggers a finding of irreparable harm.” (emphasis original)). Thus, the alleged violation of subclass members’ constitutional right to be free from cruel and unusual punishment itself constitutes “irreparable harm.”
In short, Subclass Members easily satisfy the irreparable harm prerequisite for issuing a temporary restraining order.
c. Balance of the Equities and the Public Interest “Where the Government is the opposing party, the final two factors in the temporary restraining order analysis—the balance of the equities and the public interest—merge.” Coronel v. Decker, 2020 WL 1487274, at *7 (S.D.N.Y. Mar. 27, 2020) (citing Planned Parenthood of New York City, Inc. v. U.S. Dep't of Health & Human Servs., 337 F. Supp. 3d 308, 343 (S.D.N.Y. 2018)).
*28 As an initial matter, “the public interest is best served by ensuring the constitutional rights of persons within the United States are upheld.” Coronel, 2020 WL 1487274, at *7 (quoting
Sajous v. Decker, 2018 WL 2357266, at *13 (S.D.N.Y. 2018)); see also Doe v. University of Connecticut, 2020 WL 406356, at *6 (D. Conn. Jan. 23, 2020) (noting the “public interest in avoiding violations of constitutional rights”); Barbecho v. Decker, 2020 WL 1876328, at *7 (S.D.N.Y. Apr. 15, 2020); G & V Lounge, Inc. v. Michigan Liquor Control Com'n, 23 F.3d 1071, 1079 (6th Cir. 1994) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.”).
Moreover, the Petitioners’ interest in avoiding serious illness or death must weigh heavily on the scales. While I am not unmindful of the unprecedented challenges faced by the Warden in combatting the COVID-19 pandemic, not to mention the challenges of operating a prison —including maintaining order and discipline, maintaining health and safety, and achieving the prison’s penological and rehabilitative objectives—under even the best of circumstances, and while I approach imposing additional duties on her at this time with great hesitation, the burdens faced by the Warden must yield to medically vulnerable inmates’ interest in avoiding serious illness or death, as well as the public’s interest in seeing those inmates’ constitutional rights vindicated.
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Respondents argue that an assessment of the public interest also requires individualized consideration of an inmate’s suitability for release, taking into account the safety of the inmate, his or her family, and the public. I agree, and the order I issue today mandates such individualized consideration, albeit on a basis more accelerated and more focused on the critical factors of inmate and public safety than the current home confinement review process at FCI Danbury.
3. Safety Measures With respect to the broader putative class, the Petitioners argue that the Warden has failed to institute the measures necessary to prevent the continued spread of COVID-19 at FCI Danbury and to protect inmates from infection. Aside from the Warden’s use of home confinement and compassionate release to protect medically vulnerable patients and reduce the population at FCI Danbury, which is addressed above, the Petitioners argue that the Warden has further failed to (1) adequately screen inmates for COVID-19 symptoms, (2) test symptomatic inmates, (3) isolate infected patients, (4) quarantine patients thought to have been exposed, (5) implement adequate social distancing, (6) observe proper sanitation measures, (7) provide staff and inmates with adequate personal protective equipment, soap, and sanitizers, and (8) provide adequate medical care to inmates with COVID-19 as well as other medical conditions. But while the salient facts regarding the Warden’s use of her home confinement and compassionate release authority are generally undisputed, factual disputes abound with respect to the Petitioners’ other allegations. For example, while Petitioners contend that prison officials “willfully refused to take temperatures or test for fever in order to avoid identifying cases of possible COVID infection,” ECF No. 1 ¶ 132, the Warden claims that “[t]his could not be further from the truth,” and that, since April 9, 2020, FCI Danbury has conducted daily temperature checks for all inmates. ECF No. 24-2 at 24. Similarly, while Petitioners contend that symptomatic patients are not being tested appropriately, the Warden maintains that “[a]ny inmate at FCI Danbury presenting with symptoms consistent with COVID-19 is immediately evaluated by a medical provider to determine whether testing and/or isolation is appropriate.” ECF No. 24-2 at 2. And while Petitioners claim that the use of personal protective equipment such as masks has been inconsistent and is not enforced, the Warden indicates that both staff and inmates are required to wear face masks and are provided with personal protective equipment as appropriate. Id. at 15.
*29 These factual disputes preclude me from concluding at this stage that the Warden’s implementation of measures to protect against the spread of COVID-19 exhibits deliberate indifference to the serious risks posed by the virus, and thus that the Petitioners are likely to succeed on the merits of this portion of their claim. It is well established that “[t]he existence of factual disputes necessitates an evidentiary hearing ... before a motion for preliminary injunction may be decided.” Kern v. Clark, 331 F.3d 9, 12 (2d Cir. 2003) (internal quotation marks and citations
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omitted). Perhaps recognizing the conflicting factual record on mitigation and safety measures, the Petitioners submitted a proposed order following oral argument, ECF No. 26-1, that does not include an order directing the Warden to implement the various measures at issue (again, most of which the Warden contends she is already implementing). I thus deny the Petitioner’s request for a temporary restraining order to the extent that it asks the Court to direct the Warden to implement safety measures and report to the Court on the status of those measures.
C. The Propriety of Multi-Party Treatment Although the Second Circuit has “conclude[d] that the class action device should not be imported into collateral actions, at least in its full vigor as contemplated by Rule 23,” it has recognized “the power of the judiciary ... to fashion for habeas actions appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.” U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974). In Preiser, the court allowed “a multi-party proceeding similar to the class action” on behalf of young adults serving misdemeanor sentences, largely because the petitioners’ claims were “applicable on behalf of the entire class” and “uncluttered by subsidiary issues.” Id. at 1126. The Court noted several other “persuasive justifications” for affording class action treatment, including that “many of those serving reformatory sentences are likely to be illiterate or poorly educated,” “most would not have the benefit of counsel to prepare habeas corpus petitions,” and “considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue is thereby avoided.” Id. Noting that “the precise provisions of Rule 23 are not applicable to these proceedings,” the Court nonetheless found that consideration of the four Rule 23(a) prerequisites further bolstered its conclusion that class treatment was appropriate. Id. The approach laid out by the Preiser court is, in short, both flexible and sensitive to the particular circumstances of a given case.
In any event, I need not make a formal determination as to class certification—or, more precisely, as to whether a multi-party proceeding analogous to a class action is appropriate. “It is well established that ‘[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class’ and that the ‘court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers.’ ” Strouchler v. Shah, 891 F. Supp. 2d 504, 517 (S.D.N.Y. 2012) (quoting Alba Conte & Herbert Newberg, Newberg on Class Actions § 9:45 (4th Ed.2002)). Thus, in Strouchler, the court “[p]reliminarily examin[ed] plaintiffs’ entitlement to class status,” concluded that “it is likely that plaintiffs will be able to meet the Rule 23 prerequisites of numerosity, commonality, typicality, and adequacy” as well as the requirements of Rule 23(b)(2), and granted in part plaintiffs’ motion for preliminary injunction. Id. at 518-19; see also LaForest v. Former Clean Air Holding Co., Inc., 376 F.3d 48, 58 (2d Cir. 2004) (finding that the District Court did not
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abuse its discretion in issuing a preliminary injunction prior to class certification and in reliance on representative evidence of irreparable harm). By analogy to this established practice in the class action context, I need only determine at this stage whether multi-party treatment is likely to be appropriate.
*30 Moreover, the scope of my inquiry as to multi-party treatment need not extend beyond the scope of the claim addressed by this ruling and the temporary restraining order I issue. I have concluded above that the Petitioners, as medically vulnerable inmates, have shown that they are likely to succeed on the merits of their claim that the Warden’s implementation of her home confinement and compassionate release authority violates their constitutional rights. I have further found that they face irreparable harm should preliminary relief not be granted, and that issuing a temporary restraining order is in the public interest. The injunction I issue below directs the Warden to make prompt, meaningful use of her home confinement and compassionate release authority; expeditiously to consider all medically vulnerable inmates for home confinement and compassionate release; and to discontinue the use of unduly burdensome eligibility criteria that are divorced from the interests of vulnerable inmates as well as the public and that preclude otherwise eligible inmates from consideration. At this stage, I need only consider, on a provisional basis, whether multi-party treatment is likely appropriate as to this claim and the associated relief. 29
29 Should I later find that other claims, issues, or forms of relief the Petitioners are pursuing are inappropriate for multi-party, representative treatment, I see no reason why, for example, I could not employ an analogue to issue certification under Rule 23(c)(4). Thus, I need not determine whether all claims, issues, and forms of relief in this case are appropriate for multiparty treatment in this ruling.
I find that, as in Preiser, the claim as to which I now grant preliminary relief—that the Warden’s implementation of her home confinement and compassionate release authority violates the constitutional rights of medically vulnerable inmates—is plainly “applicable on behalf of the entire [subclass]” and “uncluttered by subsidiary issues.” Id. It is the Warden’s existing process as applied to medically vulnerable inmates that amounts to deliberate indifference—a process that applies to the entire subclass, as evidenced, for example, by the single set of home confinement criteria published by the Warden. See ECF Nos. 15-7, 15-8. I do not rule on the propriety of the Warden’s determination as to any particular inmate; thus, the fact that these determinations will likely require at least some degree of individualized inquiry does not destroy the common questions inherent in the claims under consideration.
Other considerations also counsel in favor of a multi-party proceeding at this stage. As in Preiser, the majority of the vulnerable inmates would be unlikely to have the benefit of counsel in pursuing
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individual habeas petitions absent a multi-party proceeding. Similarly, multi-party treatment avoids the “considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue,” Preiser, 506 F.2d at 1126. Furthermore, because the present ruling addresses the constitutionality of the processes employed by the Warden—processes that, in the interest of fairness, efficiency, and accuracy, must be uniform —individual adjudication, and the conflicting directives it would likely generate, would unduly burden the Warden and interfere with the fair and efficient operation of the home confinement and compassionate release programs, thus undermining the very constitutional interests Petitioners seek to vindicate.
Consideration of the Rule 23(a) prerequisites further bolsters my conclusion that multi-party treatment is likely appropriate. According to the Government, there are 984 inmates at FCI Danbury. ECF No. 2401 at 14. At FCI Elkton, a facility with 2,368 inmates, 30 Petitioners indicate that the BOP identified 837 medically vulnerable prisoners. ECF No. 26 at 3. If a similar proportion of inmates at FCI Danbury are medically vulnerable, that would mean the putative Medically Vulnerable Subclass consists of roughly 350 inmates. This would easily satisfy Rule 23’s numerosity requirement. 31 I also find that, even applying the “more stringent standards” alluded to by the Preiser court, 506 F.2d at 1127, commonality is likewise satisfied. Facts regarding the process employed by the Warden in considering inmates for home confinement and compassionate release are common to the entire putative subclass, as are the legal questions regarding whether the Warden’s handling of those processes in these circumstances is constitutional. And while members of the putative class may vary in terms of the severity of their COVID-19 risk factors, all are recognized as falling in the high-risk group as to which heightened precautions are justified. 32 Typicality is similarly satisfied; because the process at issue is applicable to all inmates, “each member’s claim arises from the same course of events,”—the establishment and operation of this process—“and each class member makes similar legal arguments to prove the defendant’s liability.” In re Flag Telecom Holdings, Ltd. Securities Litigation, 574 F.3d 29, 35 (2d Cir. 2009) (internal quotation marks and citations omitted); see also Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993) (“Evidence indicating the employer discriminated in the same general fashion against the class representatives and against other members of the class was held sufficient to satisfy the typicality requirement.” (citing Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 596-98 (2d Cir. 1986))). Finally, Petitioners are represented by experienced and qualified counsel, and there is no reason to think that the named petitioners are inadequate representatives of the class, thus satisfying the adequacy requirement.
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30 FCI Elkton, BOP.gov, https://www.bop.gov/locations/institutions/elk (last visited May 10, 2020).
31 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (holding that “numerosity is presumed at a level of 40 members”) and Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (courts do not require “evidence of exact class size or identity of class members to satisfy the numerosity requirement”).
32 Petitioners and Respondents jointly propose that the Medically Vulnerable Subclass be defined as follows: All individuals in custody at FCI Danbury, while the threat of COVID-19 at the facility remains, who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension. ECF No. 26 at 2.
*31 In short, I conclude that the Petitioners are likely to show that proceeding on a multi-party basis with respect to the claim at issue is appropriate, and thus that injunctive relief as to the medically vulnerable subclass is appropriate at this stage.
D. The Government’s Rule 12(b)(6) Motion In deciding a motion to dismiss under Rule 12(b)(6), the Court must determine whether the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). In considering such a motion, the court must construe the complaint liberally, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
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To survive a motion to dismiss, “[a]fter the court strips away conclusory allegations, there must remain sufficient well-pleaded factual allegations to nudge plaintiff’s claims across the line from conceivable to plausible.” In re Fosamax Products Liab. Litig., 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010). “When a complaint is based solely on wholly conclusory allegations and provides no factual support for such claims, it is appropriate to grant defendants[’] motion to dismiss.” Scott v. Town of Monroe, 306 F. Supp. 2d 191, 198 (D. Conn. 2004).
With respect to the Petitioners’ claim that the Warden’s failure to make prompt, meaningful use of her home confinement and compassionate release authority constitutes deliberate indifference under the Eighth Amendment, I have found that the Petitioners’ claim is not only plausible, but is likely to succeed on the merits.
The Petitioners have also plausibly alleged that the Warden has failed to implement adequate measures to prevent the continued spread of COVID-19 at the prison, in violation of the Petitioners’ Eighth Amendment rights. The Petitioners have plausibly alleged that they face a grave risk of serious illness or death due to COVID-19, see, e.g., Petition ¶¶ 25-34 (listing Petitioners’ medical conditions rendering them particularly vulnerable to COVID-19), ¶¶ 56-76 (describing why prisons are particularly susceptible to outbreaks of COVID-19), and thus that they are “incarcerated under conditions posing a substantial risk of serious harm,” Farmer, 511 U.S. at 834, satisfying the objective component of the deliberate indifference analysis. The prisoners have further plausibly alleged that prison officials “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety,” Brock, 315 F.3d at 164. Petitioners have alleged, for example, that instead of screening inmates for COVID-19 in good faith, so that symptomatic patients can be tested and, if necessary, isolated, prison officials have “falsely discounted the readings of elevated temperatures in order to avoid taking appropriate follow-up action.” Petition ¶ 132. While the Warden contests this account, I must accept the Petitioners allegations as true for the purposes of this motion. Similarly, Petitioners allege that on April 24, a woman at the satellite prison exhibiting serious symptoms was ignored by correctional staff and left among the general population for hours, despite the urgings of the other prisoners, before finally being taken to the hospital where she tested positive for COVID-19. Petition ¶ 54. The Petitioners further allege that prison officials threatened retaliation against any inmate who told anyone on the outside about this incident. Id. These and other allegations—which I must accept as true for the purposes of this motion—satisfy the subjective component of the deliberate indifference standard.
*32 For the above reasons, the Government’s Rule 12(b)(6) motion to dismiss is DENIED.
V. RELIEF
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For the reasons discussed above, I grant in part and deny in part Petitioners’ motion for temporary restraining order and issue the orders set forth below. The temporary restraining order that follows is aimed at accelerating the process for evaluating inmates for home confinement and compassionate release, and focusing that process on achieving a “reasonable” balance between the risks to inmate safety and the risks to public safety. See Farmer, 511 U.S. at 847.
TEMPORARY RESTRAINING ORDER
1. Within 3 days of this order, Respondent Warden (the “Respondent”) shall file on the docket, under seal, a list of “medically vulnerable inmates at Danbury FCI,” consisting, more specifically, of the following:
All individuals in custody at FCI Danbury who are aged 65 or over and/or who have any of the following conditions specifically identified by the United States Centers for Disease Control as putting them at higher risk for severe illness from COVID-19: (a) chronic lung disease including moderate to severe asthma, COPD, emphysema, chronic bronchitis, idiopathic pulmonary fibrosis and/or cystic fibrosis; (b) immunocompromised status, including status as a transplant recipient, on chemotherapy, HIV positive, prolonged use of corticosteroids, using immunosuppressive medication, and/or having an immune deficiency; (c) severe obesity (BMI of 40 or higher); (d) diabetes mellitus Type I or Type II, (e) gestational diabetes mellitus; (f) chronic kidney disease on dialysis; (g) chronic liver diseases, cirrhosis; and/or (g) serious heart conditions, including congestive heart failure, coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary hypertension.
a. Within 1 day of this order, counsel for petitioners and respondents shall confer with each other (to the extent they have not already done so) about how to identify promptly the inmates who fit the criteria listed above, including, if feasible, through the use of ICD codes, as discussed during the recent teleconference;
b. The list referred to in paragraph 1 shall include the identity of the inmate, the inmate’s sentencing court, and the case number of the inmate’s underlying criminal conviction but shall not include information about the specific medical condition suffered by each inmate;
c. The list referred to in paragraph 1 shall be organized by facility within Danbury FCI (i.e., one list for the men’s facility, one list for the women’s satellite prison, and one list for the women’s camp)
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d. The list shall indicate, as to each inmate, whether that inmate (a) has submitted a request for compassionate release under 18 U.S.C. § 3582(c)(1)(A), and (b) has been reviewed for home confinement since March 26, 2020, and if so, whether the inmate has been designated for home confinement.
e. If compiling the information described in paragraph 1d. will significantly delay the creation and filing of a list setting forth just the information described in paragraphs 1, 1b., and 1c., then the Respondents may initially, within 3 days of this order, file a list including only the information set forth in paragraphs 1, 1b., and 1c., and then, within 7 days of this order, file a second version of the list including all of the information described in paragraphs 1 and 1b.-1d.
*33 f. Respondent shall provide the list to Petitioners’ counsel, and the list shall be marked “Confidential-Attorneys’ Eyes Only” and be treated accordingly under the Protective Order entered in this case, ECF No. 9.
g. Respondent shall file on the docket with the list a declaration setting forth the process used to identify those persons described in paragraph 1, including a description of the databases searched.
2. Within 3 days of this order, Respondent shall:
a. Finalize and implement a process that makes full and speedy use of the home confinement authority under 18 U.S.C. § 3624(b) and the CARES Act and, as directed by the Attorney General’s April 3, 2020 Memorandum, “immediately maximize[s] appropriate transfers to home confinement [for] all appropriate inmates held at ... FCI Danbury,” in particular, by (a) prioritizing for review for home confinement all inmates identified on the list described in paragraph 1, (b) assigning substantial weight in that review to the inmate’s risk factors for COVID-19 based on CDC guidance, (c) eliminating all requirements that the inmate have served some portion of his or her sentence to be eligible for placement on home confinement, (d) eliminating the requirement that a “primary or prior offense” not be a violent offense; (e) eliminating the requirement that the inmate be “without incident reports in the past 12 months (regardless of severity level)”; (f) modifying any requirement that a person approved for home confinement be quarantined at the facility for 14 days to allow for immediate release to home confinement for those inmates as to whom Respondent verifies, after reasonable inquiry, that the inmate is not showing symptoms and is able to self-isolate for the same period in the home confinement setting. 33
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b. File a statement on the docket explaining why the Court should not also require the review process described in paragraph 2a. to eliminate or modify the requirements that the PATTERN risk score be “MIN” and that the Mental Health Care Level be less than IV, ECF No. 15-8 at 2.
c. Publish to inmates the factors to be considered in the revised home confinement review process developed by the Warden in accordance with this order.
33 By “eliminating” particular “requirements,” I do not mean to suggest that these considerations are irrelevant to the Warden’s assessment of the appropriateness of home confinement for a particular inmate. To the contrary, a particular inmate’s violent history, for example, is obviously relevant to the assessment of the danger his or her release might pose to the public and thus should be accorded weight in the determination. The purpose of eliminating these and other categorical exclusions is to make the process more individualized and more amenable to a proper and reasonable balancing of inmate safety and public safety.
3. Within 7 days of this order, Respondent shall:
a. Provide written notice of either (a) a referral of the matter in writing with recommendation of approval of the request, 28 C.F.R. § 571.62, or (b) a denial of the request, together with the appropriate appeal form, 28 C.F.R. §§ 571.63, 542.15, to each inmate described in paragraph 1 (or, if that is not administratively feasible, to each inmate) who has made a written request for compassionate release based on COVID-19 under 18 U.S.C. § 3582(c)(1)(A) but has not yet received a decision.
b. Finalize and implement a process whereby each inmate described in paragraph 1 (or, if that is not administratively feasible, each inmate) who makes a written request for compassionate release based on COVID-19 receives notice of either the referral of their request, with a recommendation of approval, or its denial, with the appropriate appeal form, within 7 days of the date the request is received by a member of the Danbury FCI staff.
c. File a statement on the docket explaining whether and how the criteria in the BOP’s Program Statement governing compassionate release have been updated to take account of the COVID-19 crisis and, if they have not been, showing cause why the Court should not require the Warden to promulgate revised compassionate release criteria for use at FCI Danbury that take full and appropriate account of the threat posed by COVID-19 to medically vulnerable inmates.
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*34 4. Within 13 days of this order, as to each person described in paragraph 1, the Respondent Warden shall complete the home confinement review process described in paragraph 2a. and shall either (a) approve such person for home confinement and (i) place him or her on home confinement or (ii) place him or her in quarantine within the facility for 14 days before placing him or her on home confinement, or (b) deny such person home confinement.
5. Within 13 days of this order, the Respondent Warden shall provide to the Court (under seal) an individualized explanation for each denial of home confinement as to an inmate described in paragraph 1, including at least a brief description of the factual basis for any factors deemed to outweigh the danger to the inmate from COVID-19, and shall show cause why each such inmate should not be transferred to another facility within the BOP where adequate social distancing is possible.
6. Within 13 days of this order, Respondent shall file a status report describing her efforts to comply with this order.
7. On May 26, 2020, at 1:00 p.m., the parties shall participate in a telephonic status conference with the Court to determine whether this order should be extended. See Fed. R. Civ. P. 65(b)(2).

HEARING ON MOTION FOR PRELIMINARY INJUNCTION
The Court will hold a hearing on the motion for preliminary injunction on June 11, 2020 at 9:00 a.m. Before the hearing, the parties shall participate in expedited discovery. The parties shall meet and confer within one day of this order to discuss the scope and timing of that discovery. By May 14, 2020 at noon, they shall file a joint proposal regarding that scope and timing, and shall indicate any disagreements. The Court will hold a telephonic status conference to discuss the proposal on May 14, 2020 at 3:00 p.m.

IT IS SO ORDERED. All Citations Slip Copy, 2020 WL 2405350
End of Document

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2017 WL 7050280 Only the Westlaw citation is currently available.
United States Court of Appeals, Sixth Circuit.
Edison Alexander PEOPLES, Plaintiff–Appellant, v.
Catherine S. BAUMAN, et al., Defendants–Appellees.
No. 16–2096 |
FILED September 05, 2017
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
Attorneys and Law Firms
Edison Alexander Peoples, Marquette, MI, pro se.
John L. Thurber, Office of the Attorney General, Lansing, MI, for Defendants–Appellees.
Before: SILER and BATCHELDER, Circuit Judges; BERTELSMAN, District Judge. *
* The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky, sitting by designation.
ORDER
*1 Edison Alexander Peoples, a pro se Michigan prisoner, appeals the district court's dismissal of all claims raised in his civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).
In 2014, Peoples sued thirty-three employees of Alger Correctional Facility (LMF) for their alleged involvement in three incidents occurring during his incarceration there. In an amended complaint, Peoples stated that the first incident began on June 13, 2011, when various defendants ordered
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him to lie in sewage from a flooded cell in order to shackle him. Peoples reluctantly complied, “saturating his pants, underwear[,] and shirt in sewage” in the process. Peoples was placed in handcuffs and leg irons, which were connected to a belly chain, securing him “in a permanent crouch[ing] position” that caused him extreme pain. He “remained in this state for approximately thirty and one half hours.”
The second incident occurred on June 21, 2011. Peoples alleged that he received a prison disciplinary hearing before Defendant Hursh for misusing or destroying his mattress. Peoples claimed that he asked Hursh to call witnesses but that Hursh failed to do so. Peoples was found guilty, and Hursh imposed a 30–day loss-of-privileges sanction and ordered him to pay $48.33 in restitution.
The third incident began on August 8, 2011. After Peoples barricaded himself in his cell, he was sprayed with mace in his face, chest, and body, leaving all of his clothing saturated. He “surrendered” shortly afterwards and was shackled in the same crouching position as in the June 13 incident. Peoples claimed that the restraints severely decreased his mobility and caused him extreme pain, as did the intense burning from the mace. He was so restrained that “he was unable to pull his pants down to reli[e]ve his bowels or urinate.” The restraints were not removed until August 11, and he was not permitted to wash the mace from his body until August 18.
Seeking an injunction and declaratory and monetary relief, Peoples asserted multiple causes of actions stemming from these incidents, mostly Eighth Amendment violations or state law torts. As to Hursh, Peoples asserted violations of his Fourteenth Amendment due process rights.
The district court disposed of Peoples's claims in three separate orders. On October 24, 2014, the district court, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A and 42 U.S.C. § 1997e(c), dismissed sua sponte defendants Bauman, Sprader, Lesatz, Hood, Taskila, Smith, Immel, O'Dell, Lee, Johnson, and Branus. The court determined that Peoples's claims against these defendants were impermissibly based upon only a theory of respondeat superior or a “failure to act.” Additionally, the district court determined that Hursh was a hearing officer, and as such, was entitled to absolute judicial immunity from damages. Finally, the court determined that John Doe defendants one through eleven, as unnamed defendants, could not be served and thus were “not properly parties to [the] action.” However, the district court ordered service of Peoples's amended complaint against the remaining defendants Lindenmuth, Rankin, Rondeau, Curtis, Kienitz, Sadak, Tennyson, Wickstrom, Scott, and McDonald.
*2 On August 3, 2015, in ruling on a motion for summary judgment filed by the defendants, the district court dismissed defendants Lindenmuth, Rankin, Rondeau, Curtis, and Scott, concluding
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that Peoples failed to exhaust his administrative remedies against them. However, the district court determined that Peoples had properly exhausted his claims as to the August 8, 2011 incident against defendants Kienitz, Sadak, Tennyson, Wickstrom, and McDonald.
On May 20, 2016, the district court granted the remaining defendants' motion for summary judgment asserting qualified immunity and dismissed Peoples's remaining claims. Specifically, the district court concluded that the remaining defendants were entitled to qualified immunity from Peoples's Eighth Amendment claims. And after determining that Peoples had no federal claims remaining, the district court declined to exercise supplemental jurisdiction over his state law claims and dismissed them without prejudice. Peoples now appeals the district court's dismissal of all his claims.
October 24, 2014 Order Peoples challenges the district court's October 24, 2014 order that sua sponte dismissed defendants Bauman, Sprader, Lesatz, Hood, Taskila, Smith, Immel, O'Dell, Lee, Johnson, Branus, and Hursh. However, Peoples fails to challenge the district court's determination that John Does one through eleven were “not properly parties to this action.” Accordingly, he has waived any appellate argument as to these defendants. See Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007).
We review de novo a district court's dismissal of a prisoner's complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A and 42 U.S.C. § 1997e(c). Flanory v. Bonn, 604 F.3d 249, 252 (6th Cir. 2010). Each of these statutes allows a court to dismiss a complaint that fails to state a claim for relief. 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); 42 U.S.C. § 1997e(c)(2). “[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679.
First, Peoples challenges the district court's determination that his claims against Bauman, Sprader, Lesatz, Hood, Taskila, Smith, Immel, O'Dell, Lee, Johnson, and Branus merely amounted to allegations of respondeat superior or the failure to act. See Miller v. Calhoun Cty., 408 F.3d 803, 817 n.3 (6th Cir. 2005) (“Because § 1983 liability cannot be imposed under a theory of respondeat superior, proof of personal involvement is required for a supervisor to incur personal liability.”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (noting that § 1983 liability must be based upon “active unconstitutional behavior” and not just a defendant's failure to act).
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He argues that his complaint alleged that: (1) each defendant was involved in the constitutional violations he experienced; and (2) he sufficiently alleged supervisory liability.
In his amended complaint, Peoples alleged that defendants Hood, Taskila, Smith, Immel, O'Dell, Lee, Johnson, and Branus each visited his cell in the days after the August 8, 2011 incident began and he told each of them that he was currently experiencing pain and suffering from having been maced and placed in restraints. (Peoples did not include Bauman, Sprader, and Lesatz in this allegation; his separate allegations against those defendants will be addressed later.) This claim implicates defendants as being liable for denying him humane conditions of confinement. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (noting that liability in such cases attaches where “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”).
*3 Similarly, Peoples's allegations amounted to more than a mere “failure to act.” See Shehee, 199 F.3d at 300. It can be said that those supervisory defendants, by personally witnessing the alleged abuse committed by other prison employees and taking no action in response, “at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984); see Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016) (noting that while active unconstitutional behavior by a supervisory official is required to impose supervisory liability, “active” behavior does not require the supervisor to actually “put his hands on the injured party or even [be] physically ... present at the time of the constitutional violation”) (emphasis added). Accordingly, we vacate the district court's dismissal of defendants Hood, Taskila, Smith, Immel, O'Dell, Lee, Johnson, and Branus, and remand so that the district court can further consider Peoples's claims against them.
Peoples also argues that his amended complaint alleged sufficient factual content to show that defendants Bauman, Lesatz, and Sprader were liable for constitutional violations against him. Peoples argues that these defendants denied him a mattress and other bedding during times when his cell was very cold. The district court did not appear to consider these allegations; we vacate and remand with instructions to do so. See Francis v. Altiere, 491 Fed.Appx. 539, 541 (6th Cir. 2012).
Additionally, the district court apparently did not consider Peoples's claim alleging that Lesatz, Sprader, and Bauman were aware, through various prison documents, of a history at LMF of using restraints and mace as a means to inflict punishment upon prisoners. In certain circumstances, a supervisor's failure to train and supervise offending officers in light of such information can
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support a showing of knowing acquiescence in unconstitutional conduct. See Peatross, 818 F.3d at 242–43. Accordingly, we vacate the dismissal of Lesatz, Sprader, and Bauman, and remand so that the district court can consider this allegation.
Lastly, Peoples challenges the district court's dismissal of Defendant Hursh. First, Peoples points out that he alleged in his amended complaint that he directly told Hursh about his pain and suffering following the August 8, 2011 incident. Accordingly, for the reasons given as to the other defendants connected to this incident, the district court erred in dismissing Hursh without addressing this claim. However, the district court correctly determined that to the extent that Hursh was acting as a hearing officer, Hursh was entitled to absolute judicial immunity. See Shelly v. Johnson, 849 F.2d 228, 230 (6th Cir. 1988). Accordingly, we vacate the district court's October 24, 2014 order in part and affirm in part, and remand for further proceedings.
August 3, 2015 Order Peoples next challenges the district court's August 3, 2015 order that dismissed defendants Lindenmuth, Rankin, Rondeau, Curtis, and Scott for failure to exhaust his administrative remedies against them. The district court also determined that Peoples had not exhausted his claims as to the June 13, 2011 incident.
“Dismissal of a prisoner's civil rights claim for failure to exhaust administrative remedies is reviewed de novo.” Risher v. Lappin, 639 F.3d 236, 239 (6th Cir. 2011). The Prison Litigation Reform Act (PLRA) requires prisoners to properly exhaust their available administrative remedies before bringing suit in federal court. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion demands that a prisoner “complete the administrative review process in accordance with the applicable procedural rules.” Woodford, 548 U.S. at 88. “[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “[A] prisoner cannot satisfy the ... exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance.” Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009).
*4 Peoples complained about the June 13, 2011 incident in a grievance identified as LMF–11– 07–1403–27b. The district court summarily rejected this grievance as not having exhausted any claims because “it was rejected as a policy issue per P.D. 03.02.130 ¶ F.1.” Michigan Department of Corrections Policy Directive 03.02.130 ¶ F.1. states: “A grievant may not grieve the content of policy or procedure except as it was specifically applied to the grievant.” This policy led the Michigan Department of Corrections (MDOC) to conclude that Peoples's grievance was “non-
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grievable.” We have held, in an unpublished opinion, that an inmate “cannot be required to exhaust administrative remedies regarding non-grievable issues.” Figel v. Bouchard, 89 Fed.Appx. 970, 971 (6th Cir. 2004). Accordingly, Peoples's claims in this grievance were not subject to dismissal for failure to exhaust administrative remedies. See id.
Peoples complained about the August 8, 2011 incident in a grievance identified as LMF–11– 08–1817–17a. Because Peoples identified defendants Kienitz, Sadak, Tennyson, Wickstrom, and McDonald in this grievance, the district court determined that his claims against them were properly exhausted. However, the district court concluded that Lindenmuth, Rankin, Rondeau, Curtis, and Scott were not mentioned and that the claims against them had not been exhausted. The district court was correct as to all defendants except Scott.
According to the applicable policy directive, a grievant must provide the facts underlying the issue being grieved and include “[d]ates, times, places, and names of all those involved.” MDOC Policy Directive 03.02.130 ¶ R (emphasis added). Because Peoples failed to name Lindenmuth, Rankin, Rondeau, and Curtis in this grievance, he failed to exhaust his claims against them as to this incident. See Sullivan v. Kasajaru, 316 Fed.Appx. 469, 470 (6th Cir. 2009). However, Peoples specifically identified defendant Scott, a registered nurse, in this grievance. He stated that though Scott provided him with eye medication after he was maced, he was not given the opportunity to wash the mace from his body. Further, Peoples stated that all persons mentioned in the grievance were “defendants because of their deliberate failure to ensure [his] physical wellbeing.” In his amended complaint, Peoples claimed that Scott failed to ensure that he could wash the mace from his “person and clothing.”
The standard for preserving a claim through a grievance is relaxed. A prisoner need only provide “prison officials [with] fair notice of the alleged mistreatment or misconduct that forms the basis of the constitutional or statutory claim made against a defendant in a prisoner's complaint.” Bell v. Konteh, 450 F.3d 651, 654 (6th Cir. 2006) (quoting Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003) ). Here, by identifying Scott by name and generally claiming that Scott prevented him from washing the mace from his body, Peoples gave fair notice of his alleged mistreatment by Scott. Accordingly, the district court erred in dismissing Scott for failure to exhaust his administrative remedies. We vacate the district court's August 3, 2015 order in part and affirm in part, and remand for further proceedings.
May 20, 2016 Order
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Peoples next challenges the district court's May 20, 2016 order granting defendants Kienitz, Sadak, Tennyson, Wickstrom, and McDonald's motion for summary judgment on qualified immunity grounds for their involvement in the August 8, 2011 incident.
We review de novo the district court's grant of summary judgment on the grounds of qualified immunity. See Stoudemire v. Mich. Dep't of Corr., 705 F.3d 560, 565 (6th Cir. 2013). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In reviewing a summary judgment motion, we view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party.” Stoudemire, 705 F.3d at 565.
*5 Qualified immunity shields government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “To determine whether an officer is entitled to qualified immunity, a court evaluates two independent prongs: whether the officer's conduct violated a constitutional right, and whether that right was clearly established at the time of the incident.” Richko v. Wayne Cty., 819 F.3d 907, 914–15 (6th Cir.) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009) ), petition for cert. filed (U.S. Oct. 20, 2016) (No. 16–538).
Peoples's complaint implicates various Eighth Amendment claims relating to the August 8, 2011 incident, including the use of excessive force, inhumane conditions of confinement, and deliberate indifference to his serious medical needs. As an initial matter, Peoples argues that the district court failed to fully address all his claims. We agree.
Though Peoples's allegations implicated multiple Eighth Amendment claims, the district court evaluated his restraints claim under only an excessive-force standard and his mace claim under only a deliberate-indifference-to-his-serious-medical-needs standard. And the district court addressed Peoples's restraint and mace claims in isolation, thus failing to consider the combined negative impact of the two. See Francis, 491 Fed.Appx. at 543. And lastly, the district court never considered People's claims relating to his “inhumane” and “hazardous living conditions”— challenges to his conditions of confinement—and this court thus has no ruling to review. Accordingly, we conclude that the district court prematurely dismissed Peoples's excessive-force and conditions-of-confinement claims.
Excessive Force
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“The Eighth Amendment proscribes the unnecessary and wanton infliction of pain against prisoners.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). An Eighth Amendment claim consists of both subjective and objective components. Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014). In the excessive-force context, the subjective component turns on “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). “The objective component requires the pain inflicted to be ‘sufficiently serious.’ ” Williams, 631 F.3d at 383 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) ).
Peoples alleged that he was confined in a painful crouching position from the restraints for about three days. Also, he claimed the “complete denial of bedding [and] shoes and socks” during this time period in an allegedly cold cell. And he alleged that he experienced intense burning from the mace, and was not permitted to wash it from his body for about ten days. Under circumstances similar to this case, courts have determined that the continued use of restraints and the failure to permit a prisoner to wash off mace can support a showing of excessive use of force. See Danley v. Allen, 540 F.3d 1298, 1308 (11th Cir. 2008) (“Although less common than the direct application of force, subjecting a prisoner to special confinement that causes him to suffer increased effects of environmental conditions—here, the pepper spray lingering in the air and on him—can constitute excessive force.”); Williams v. Benjamin, 77 F.3d 756, 765 (4th Cir. 1996) (prisoner was shackled and was not permitted to wash off mace for eight hours); Harris v. Jones, No. 10– 1580 (6th Cir. Dec. 9, 2010) (unpublished). We make no ultimate determination whether Peoples's allegations here constitute excessive force. However, we remand so that the district court may do so, considering the combined negative impact of all of Peoples's allegations.
Conditions of Confinement *6 The Eighth Amendment requires prison officials to provide humane conditions of confinement. Farmer, 511 U.S. at 832. “[P]rison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care.” Id. A conditions-of-confinement claim has two elements: (1) the deprivation alleged must be sufficiently serious under an objective standard of review; and (2) the prison official's “state of mind [must be] one of ‘deliberate indifference’ to inmate health or safety.” Id. at 834. “To move beyond the pleading stage ... an inmate must allege that he has been deprived ‘of the minimal civilized measure of life's necessities.” ’ Harden– Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981) ).
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Parsing out what type of Eighth Amendment framework each of the many factual allegations in this case falls under is undoubtedly a laborious undertaking. See Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 569–70 (6th Cir. 2013). There may be some overlap between Peoples's excessiveforce and conditions-of-confinement claims. Here though, Peoples's allegations, including the denial of bedding, shoes, socks, uncontaminated clothing, and the ability to use a toilet for days, warrant such an analysis by the district court on remand. The district court is best suited for this task, rather than this court for the first time on appeal. Accordingly, we remand with instructions for the district court to consider all of Peoples's allegations connected with the August 8, 2011 incident in light of the appropriate constitutional framework, including whether he sufficiently alleged a conditions-of-confinement claim. However, the district court need not review Peoples's medical-needs claim on remand because, as discussed below, we conclude that the district court correctly dismissed it.
Deliberate Indifference to Medical Needs The Eighth Amendment forbids prison officials from “unnecessarily and wantonly inflicting pain” on a prisoner by acting with “deliberate indifference” to a prisoner's serious medical needs.
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976) ). As such, a viable Eighth Amendment claim has objective and subjective components. Id. The objective component requires that the medical need be sufficiently serious. Id. A serious medical need is one that is “so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). The subjective component requires a showing that the defendant knew of, and acted with deliberate indifference to, a threat to an inmate's health or safety. Blackmore, 390 F.3d at 895–96.
Viewing all facts and reasonable inferences in favor of Peoples, the district court did not err in granting summary judgment on his medical-needs claim. Regarding the objective component, the district court determined that Peoples “failed to show that his medical need was sufficiently serious.” We agree that there is no evidence in the record that Peoples had been diagnosed with a serious medical need, or had one that would be obvious even to a lay person. See Villegas, 709 F.3d at 570. Accordingly, the district court properly dismissed this claim. We further add that Peoples's allegations do not fit within the framework of a “typical medical-needs claim [which] deals with a deprivation of medical care” or “involves the interference with a prescribed treatment plan.” Id. at 569–70. Rather, Peoples's allegations were “premised on the notion” that the defendants' alleged actions increased his risk of medical complications. Id. In these particular circumstances, these allegations do not implicate a medical-needs claim. Accordingly, the district court properly dismissed this claim.
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Collateral Matters *7 Besides challenging the district court's three orders disposing of his claims, Peoples challenges other collateral matters. First, Peoples argues that a magistrate judge erred in denying his first and second motions to compel discovery. Although Peoples asserts various discovery violations on appeal, he concentrates mostly on the defendants' failure to provide him with: (1) a personal copy of a cell extraction video (he admits that he viewed the video once); and (2) “exempt policy directives.” Next, Peoples claims that the district erred in failing to rule on objections he filed to the magistrate judge's denial of his motions to compel, and on a motion for the U.S. Marshals Service to serve a subpoena. This latter issue is dispositive of the first.
Peoples filed two motions under Federal Rule of Civil Procedure 72(a), one objecting to the magistrate judge's order denying his motions to compel discovery and the other objecting to the magistrate judge's order denying his motion to serve a subpoena. Rule 72(a) states that a district judge “must consider timely objections” to a magistrate judge's order. Fed. R. Civ. P. 72(a); see Bell v. Int'l Bhd. of Teamsters, No. 96–3219, 1997 WL 103320, at *4 (6th Cir. Mar. 6, 1997) (table) (discussing a prior version of the rule). The district court never ruled on Peoples's objections. On remand, the district court will be able to do so.
Lastly, Peoples argues that the district court failed to rule on his motion filed under Federal Rule of Civil Procedure 56(d). In that motion, Peoples essentially asked the district court to allow him more time to respond to the defendants' motion for summary judgment asserting qualified immunity because he first wanted to obtain additional discovery. However, this issue is now moot because: (1) this court vacates most of the district court's August 3, 2015 order granting summary judgment on qualified immunity grounds; and (2) Peoples's only dismissed claim resulting from this order, his medical-needs claim, is meritless for the reasons given above.
Accordingly, for the above reasons, we AFFIRM the district court's orders in part, and VACATE and REMAND in part for further proceedings consistent with this opinion.

All Citations Not Reported in Fed. Rptr., 2017 WL 7050280

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2020 WL 2306565 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Santo Valenzuela ARIAS, Edson Louis, Job Velasquez Estrada, Petitioners, v.
Thomas DECKER, in his official capacity as Director of the New York Field Office of U.S. Immigrations & Customs Enforcement; and Chad Wolf, in his official
capacity as Acting Secretary, U.S. Department of Homeland Security, Respondents.
20 Civ. 2802 (AT) |
Signed 05/08/2020
Attorneys and Law Firms
Brooke Menschel, Sonia Marquez, Brooklyn Defender Services, Brooklyn, NY, for Petitioners.
Samuel Hilliard Dolinger, U.S. Attorney's Office, New York, NY, for Respondents.
OPINION AND ORDER
ANALISA TORRES, District Judge:
*1 Petitioners, Santo Valenzuela Alias and Edson Louis, were detained by Immigration and Customs Enforcement (“ICE”) in the Essex County Correctional Facility (“Essex Comity Jail”) in New Jersey, where cases of COVID-19 have been identified. 1 Petition ¶ 2, ECF No. 1. Petitioners filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, requesting release from ICE custody because of the public health crisis posed by COVID-19. See Petition. Petitioners also submitted an application for a temporary restraining order (“TRO”) and preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, seeking an order (1) releasing them on then own recognizance, subject to reasonable and appropriate conditions, and (2) restraining Respondents, Thomas Decker, as Director of the New York Field Office of ICE, and Chad Wolf, as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO Mem. at 1, ECF No. 3.
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1 The Petition included a third Petitioner, Job Velasquez Estrada. See Petition ¶ 8. Respondents released Velasquez Estrada on April 7, 2020, prior to the issuance of the TRO. See TRO at 1. Accordingly, in this order, “Petitioners” refers only to Valenzuela Arias and Louis.
The Court granted the TRO, and directed Respondents to show cause why it should not be converted into a preliminary injunction. Valenzuela Arias v. Decker, No. 20 Civ. 2802, 2020 WL 1847986, at *9–10 (S.D.N.Y. Apr. 10, 2020). For the reasons stated below, Petitioners’ request for a preliminary injunction is GRANTED as follows: (1) Petitioners shall remain released, subject to the conditions set by the Court, see ECF Nos. 20, 21, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes unless Respondents first obtain the Court’s permission.
BACKGROUND
Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. Petition ¶¶ 6, 7. They were housed in the Essex County Jail, where as of May 4, 2020, at least three detainees, 83 correction officers, and three civilian staff members have been diagnosed with COVID-19. Ortiz Decl. ¶ 31, ECF No. 33-1.
Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of serious injury or death if exposed to COVID-19. As a result of rib and chest wall injuries, Louis, age 37, suffers from breathlessness and chronic pain. Petition ¶ 6. Shortly before his release, after feeling ill and fainting, he was hospitalized and then returned to the Essex County Jail. Id. Louis also suffers from post-traumatic stress disorder, depression, and anxiety. Id. Valenzuela Arias, age 27, has a lump on the left side of his chest, which requires surgical removal. Id. ¶ 7. Petitioners represent that the lump is caused by gynecomastia, which results from a hormone imbalance that can be associated with testicular tumors, liver disease, and hyperthyroidism, among other conditions. Pet. Reply at 10, ECF No. 31.
*2 Petitioners moved for a TRO on April 8, 2020. ECF No. 3. The Court held a telephonic hearing on April 9, 2020, see April 9, 2020 minute entry, and on April 10, 2020, entered a TRO ordering Petitioners’ release, Valenzuela Arias, 2020 WL 1847986, at *9–10. The Court extended the TRO for good cause for an additional fourteen days in order to consider the parties’ submissions on the question of whether the TRO should be converted to a preliminary injunction. ECF No. 32. 2 The Court now addresses, in turn, Respondents’ argument that the action should be severed into three individual proceedings, the question of venue, and the merits of Petitioners’ request for a preliminary injunction.
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2 The Court concludes that the record is sufficient to resolve the matter without an evidentiary hearing. See Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir. 1998) (“An evidentiary hearing is not required when the relevant facts either are not in dispute ... or when the disputed facts are amenable to complete resolution on a paper record.” (citations omitted)).
DISCUSSION
I. Severance Consistent with its decision at the TRO stage, the Court remains unpersuaded by Respondents’ argument that the petition should be severed into separate habeas actions. Valenzuela Arias, 2020 WL 1847986, at *2–3; Resp. Opp. at 13–14, ECF No. 28.
The Court denied Respondents’ request to sever Petitioners’ claims for two reasons. First, the Court concluded that severance is inappropriate on the grounds of judicial economy and fairness. Id. at *2. Courts in this district have relied on this principle to deny the Government’s request to sever a number of multi-party habeas petitions similar to this one. See Coronel v. Decker, 20 Civ. 2472, 2020 WL 1487274, at *2 (S.D.N.Y. Mar. 27, 2020) (severance denied because “the [c]ourt has already read and digested the record and heard lengthy oral argument on this motion—and the urgent need to timely decide [p]etitioners’ motion for a temporary restraining order in light of the immediate risk to the health of the [p]etitioners counsel against severance at this juncture.”); Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1953847, at *3 (S.D.N.Y. Apr. 23, 2020) (denying respondents’ request to sever a similar action brought by petitioner-detainees); Coronel, 20 Civ. 2472, ECF No. 35 at 3 (S.D.N.Y. Apr. 1, 2020) (denying without prejudice respondents’ motion to sever the joint petition after receiving further briefing). The amount of effort expended by this Court has only increased since the TRO stage, and splitting Petitioners’ claims now would create even greater inequity.
Second, the Court concluded that a single habeas action is merited because this matter is “uncluttered by subsidiary issues.” United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125–26 (2d Cir. 1974); TRO at 4–5. In Sero, the Second Circuit considered a proposed habeas corpus class action brought by young adult misdemeanants (ages 16 to 21), on behalf of themselves and all others similarly situated, who were serving a reformatory sentence in excess of the adult penalty for the same misdemeanor. Id. at 1119. The court of appeals held that a “multi-party proceeding similar to the class action authorized by [ Rule 23 of the Federal Rules] of Civil Procedure” was
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permissible, because the judiciary has the inherent authority under the All Writs Act, 28 U.S.C. § 1651, to fashion “expeditious methods of procedure in a specific case.” Id. at 1125 (citing
Harris v. Nelson, 394 U.S. 286, 294 (1969)); see also Bertrand v. Sava, 684 F.2d 204, 219 (2d Cir. 1982) (finding no error in the district court’s decision to “certify a [habeas] class of ‘all Haitian aliens transferred from [an Immigration and Naturalization Service facility] ..., who have requested political asylum and parole, but have remained in respondent’s custody’ ” (citation omitted)). Respondents contest the applicability of Sero, arguing that unlike in that case, each Petitioner here relies on different medical conditions, and may have had different levels of exposure to individuals infected with COVID-19. Resp. Opp. at 13–14. This argument misapprehends Petitioners’ claims. Although they have different underlying illnesses, Plaintiffs share an increased risk of serious complications if they contract the virus. And this case does not turn on the degree to which each Petitioner may have been exposed to infected individuals; it turns on the alleged risk created by the conditions in the Essex County Jail, which is common to all Petitioners.
*3 The Court remains convinced, therefore, that a procedure such as this multi-party habeas action is appropriate where Petitioners “shar[e] certain complaints about the legality” of their confinement. Bertrand v. Sava, 535 F. Supp. 1020, 1024 (S.D.N.Y. 1982) (citations omitted), rev'd on other grounds, 684 F.2d 204 (2d Cir. 1982); see also id. at 1024–25 (“Such initiative and flexibility are essential to modern use of the writ [of habeas corpus] in order to cut through barriers of form and insure that miscarriages of justice are corrected.”).
Accordingly, Respondents’ request to sever the action into three individual habeas petitions is DENIED.
II. Venue Respondents argue that they are not properly named in the petition, because although Petitioners are detained at the command and under the authority of Respondents, Respondents have contracted with a state facility to hold Petitioners. Resp. Opp. at 12. 28 U.S.C. § 2242 provides that an application for a writ of habeas corpus should be directed to “the person who has custody over [the applicant].” See also 28 U.S.C. § 2243 (“The writ, or order to show cause shall be directed to the person having custody of the person detained.”). The Supreme Court has held that in challenges to detention, therefore, the proper respondent is the “person who has the immediate custody of the party detained, with the power to produce the body of [petitioner] before the court or judge.”
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (internal quotation marks and citation omitted). Respondents contend that Petitioners’ immediate custodian is the warden of the Essex County Jail, the facility that housed them. Resp. Opp. at 12. And, because the Petitioners were detained in a
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New Jersey facility, Respondents argue that the Southern District of New York is not the proper venue for their claims. Id.; see Padilla, 542 U.S. at 451 (Kennedy, J., concurring) (“[W]hen an action is brought in the district court, it must be filed in the district court whose territorial jurisdiction includes the place where the custodian is located.”).
The Court disagrees. Though it remains an unsettled question, “courts in this [d]istrict have repeatedly recognized, in cases where a petitioner is detained in a non-federal facility pursuant to the power and authority of the federal government and under a contract with the federal government, the proper respondent is the federal official with the most immediate control over that facility.” Cruz v. Decker, No. 18 Civ. 9948, 2019 WL 4038555, at *3 (S.D.N.Y. Aug. 27, 2019) (internal quotation marks and citation omitted) (collecting cases), aff'd, No. 18 Civ. 9948, 2019 WL 6318627 (S.D.N.Y. Nov. 26, 2019). Petitioners are held in a county jail under contract with ICE, but they are “in custody pursuant only to the power and authority of the federal government,” and, therefore, the person with the power to produce their bodies and effect their release is “the federal official most directly responsible for overseeing the contract facility.” Rodriguez Sanchez v. Decker, No. 18 Civ. 8798, 2019 WL 3840977, at *2 (S.D.N.Y. Aug. 15, 2019) (emphasis added) (internal quotation marks, citation, and alterations omitted); see also You v. Nielsen, 321 F. Supp. 3d 451, 461 (S.D.N.Y. 2018) (“Petitioner’s immediate custodian is not the warden of the Bergen County Jail, but, in fact, ICE officials located in this district.”); Matias Madera v. Decker, No. 18 Civ. 7314, 2018 WL 10602037, at *3 (S.D.N.Y. Sept. 28, 2018) (“[T]he ICE District Director represents the first and most immediate federal official who is able [to] respond to the petition and, if indicated, deliver the relief sought.”).
*4 In this case, “Field Office Director Decker [is] the federal official with the most immediate control over the non-federal facility in which Petitioner[s] [are] being detained,” and is the proper respondent. Rodriguez Sanchez, 2019 WL 3840977, at *4; see also, e.g., Garcia v. Decker, No. 20 Civ. 1345, 2020 WL 1435007, at *2 (S.D.N.Y. Mar. 24, 2020) (“Respondent Decker is located within this [d]istrict and, as Director of the ICE NY Field Office, has control over [p]etitioner’s detention.”); Matias Madera, 2018 WL 10602037, at *4 (“Respondent Decker is thus [the] proper respondent in these proceedings, because he can order the release of [p]etitioner.”). And Decker’s office is located within the territorial jurisdiction of this Court. See Petition ¶ 9.
Accordingly, Respondents’ motion to dismiss Decker and to transfer Petitioners’ claims to the District of New Jersey is DENIED.
However, “there is generally only one proper respondent to a given prisoner’s habeas petition.” Padilla, 542 U.S. at 434. Unlike Decker, Wolf is the acting Secretary of Homeland Security, a
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“remote supervisory official” who does not have “immediate custody” of Petitioners. Id. at 435 (internal quotation marks and citation omitted); see Petition ¶ 10. Because he is “only connected to Petitioner[s] as Decker’s supervisor,” he is “not a proper party to this case.” Matias Madera, 2018 WL 10602037, at *4.
Accordingly, Wolf is DISMISSED from this action.
III. Preliminary Injunction
A. Legal Standard A preliminary injunction sought against government action taken pursuant to a statute or regulatory scheme requires that “the moving party ... demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction.” Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016). “A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citation omitted).
B. Analysis
1. Irreparable Harm To establish irreparable harm, Petitioners “must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Id. (internal quotation marks and citation omitted). Petitioners have shown irreparable harm by establishing the risk of injury to their health and constitutional rights. See Barbecho v. Decker, No. 20 Civ. 2821, 2020 WL 1876328, at *6 (S.D.N.Y. Apr. 15, 2020) (“[I]rreparable harm exists where, as here, petitioners face imminent risk to their health, safety, and lives.” (internal quotation marks and citation omitted)). The Court addresses each injury in turn.
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a. Risk of Serious Illness or Death
Based on the record before it, the Court concludes that Petitioners would face a risk of serious illness or death if returned to civil immigration detention at the Essex County Jail.
i. Essex County Jail
As of the date of this opinion, there are more than 3.8 million confirmed cases of COVID-19 worldwide and over 1.25 million cases in the United States. Center for Systems Science and Engineering at Johns Hopkins University, Coronavirus COVID-19 Global Cases, Coronavirus Resource Center (May 7, 2020), https://coronavirus.jhu.edu/map.html. Some 267,996 people have died from the disease worldwide; at least 26,130 have died in New York. Id. New Jersey also has a devastating outbreak of the virus, with 1,381 deaths in Essex County. New Jersey Dep't of Health, New Jersey COVID-19 Dashboard, Official Site of the State of New Jersey (May 7, 2020), https:// www.nj.gov/health/cd/topics/covid2019_dashboard.shtml (noting 133,635 confirmed cases and 8,801 deaths statewide).
*5 The nature of detention facilities makes exposure and spread of the virus particularly harmful. Gregg S. Gonsalves, Ph.D., an epidemiologist at the Yale School of Medicine and School of Public Health, submitted a declaration in this matter, discussing the conditions at the Essex County Jail, among others, after reviewing Centers for Disease Control and Prevention (“CDC”) guidance, ICE guidance, and the declaration filed by the jail’s director. Gonsalves Decl. ¶¶ 3, 43, ECF No. 34-1. It is Gonsalves’ “professional judgment that individuals placed in these jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected.” Id. ¶ 63. Jaimie Meyer, M.D., M.S., who has worked extensively on infectious disease treatment and prevention in the context of jails and prisons, agrees; she submitted a declaration in another action in this district noting that the risk of COVID-19 to people held in New York-area detention centers “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.
This Court also recently concluded that vulnerable detainees at the Essex County Jail are at risk of serious illness or death, notwithstanding the additional measures taken at the facility. Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1953847, at *6 (S.D.N.Y. Apr. 23, 2020). A number of other courts in this district have also recognized the threat that COVID-19 poses to detained
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individuals, including the Essex County Jail. See, e.g., Coronel, 2020 WL 1487274, at *3 (“[B]eing in immigration detention places [p]etitioners at significantly higher risk of contracting COVID-19. Individuals in carceral settings are at a ‘significantly higher’ risk of spreading infectious diseases.” (citation omitted)); United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”) (collecting authorities); see also In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020) (holding that “reduction of county jail populations, under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19” in light of “the profound risk posed to people in correctional facilities arising from the spread of COVID-19”).
ii. Petitioners’ Medical Conditions
Courts have recognized the health risk posed by COVID-19 to be particularly acute for detainees who have underlying illnesses. See Jones v. Wolf, No. 20 Civ. 361, 2020 WL 1643857, at *13 (W.D.N.Y. Apr. 2, 2020) (“[P]etitioners with the CDC-identified vulnerabilities face a grave, irreparable risk to their health and safety if they remain confined under current conditions” in a facility where COVID-19 is spreading); United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”).
The Court takes judicial notice that COVID-19 causes severe medical complications and has increased lethality among people with underlying health problems. People Who Are at Higher Risk for Severe Illness, Centers for Disease Control and Prevention (Apr. 15, 2020), https:// www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html (“[P]eople of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.”); see Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”); Basank, 2020 WL 1953847, at *7 (taking judicial notice of medical conditions recognized by the CDC as resulting in increased risks of contracting COVID-19 or developing serious, and potentially fatal, complications from the virus).
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*6 Petitioners are at particular risk for severe illness or death, because their preexisting medical conditions make them more likely to develop serious complications due to COVID-19. Respondents do not dispute that Louis’ breathing restrictions and chest injuries put him in the high-risk category, and that a doctor who examined him concluded that he faces grave consequences should he contract the virus. Petition ¶ 6; see Resp. Opp. at 20–21. Valenzuela Arias has a lump in his chest that requires surgery, which could render him significantly more vulnerable to COVID-19. See, e.g., S. Lei, et al., Clinical Characteristics and Outcomes of Patients Undergoing Surgeries During the Incubation Period of COVID-19 Infection, EClinicalMedicine at 5 (2020), https://doi.org/10.1016/j.eclinm.2020.100331 (“The data in this study suggest that surgery may accelerate and exacerbate disease progression of COVID-19.”). Moreover, there is a real possibility that his gynecomastia is a symptom of another serious illness that would increase his risk from the virus. Pet. Reply at 10. The Court rejects Respondents’ assertion that Valenzuela Arias is not at heightened risk of COVID-19 complications because his condition is not listed on the CDC website. Resp. Opp. at 21.
The risk that Petitioners will face a severe, and quite possibly fatal, infection in immigration detention constitutes irreparable harm warranting a preliminary injunction. See Barbecho, 2020 WL 1876328, at *6 (concluding that detainees who “face a risk of severe, irreparable harm —including death—if they contract COVID-19” met burden of showing irreparable harm);
Coronel, 2020 WL 1487274, at *3 (“Due to their serious underlying medical conditions, all [p]etitioners [at Essex County Jail, among others,] face a risk of severe, irreparable harm if they contract COVID-19.... [B]eing in immigration detention places [p]etitioners at significantly higher risk of contracting COVID-19. Individuals in carceral settings are at a ‘significantly higher’ risk of spreading infectious diseases.” (citation omitted)); Basank, 2020 WL 1953847, at *7 (holding that immigration detainees at the Essex County Jail faced irreparable harm because of the threat of COVID-19); Velesaca v. Decker, No. 20 Civ. 2643, Order, ECF No. 29 (S.D.N.Y. Apr. 16, 2020) (granting immediate release of petitioner in light of the COVID-19 pandemic); Nikolic v. Decker, No. 20 Civ. 2500, ECF No. 19 at 1 (S.D.N.Y. Apr. 3, 2020) (ordering release of medically vulnerable individual in light of COVID-19).
b. Constitutional Violations
Second, Petitioners have also shown irreparable injury because they allege a violation of their constitutional rights. In the Second Circuit, it is well settled that an alleged constitutional violation constitutes irreparable harm. See, e.g., Connecticut Dep't of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citation omitted)); Statharos v. New
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York City Taxi & Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”);
Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that immigration detainee established irreparable injury by alleging that prolonged immigration detention violated his constitutional due process rights).
The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the preliminary injunction.
2. Likelihood of Success on the Merits
Petitioners argue that a return to confinement in the Essex County Jail would violate their due process rights. Pet. Reply at 10–15. The Court agrees. Notwithstanding the steps that have been taken at the facility since the Court issued its TRO, Petitioners have met their burden of showing a likelihood of success on the merits.
a. Legal Standard
*7 The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate’s “transfer while seriously ill” where that transfer posed a risk of fatal heart failure).
Immigration detainees can establish a substantive due process violation for unmet medical needs 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,
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35 (2d Cir. 2017). “Deliberate indifference” to serious medical needs “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 defendant-official knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety.” Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (internal quotation marks, citation, and alterations omitted).
Additionally, the Supreme Court has recognized that government authorities may be deemed “deliberately indifferent to an inmate’s current health problems” where they “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)).
b. Analysis
Respondents argue that ICE has set in motion various steps to improve health and sanitation at the Essex County Jail, and have submitted the declaration of the facility’s warden attesting to the actions taken. See Ortiz Decl. They point out that the Essex County Jail has implemented health and temperature checks for all detainees who enter the facility, provided additional on-site medical staff, obtained testing kits, obtained protective equipment and supplies, educated staff, inmates, and detainees on best practices, put into place new food service protocols (including no longer permitting detainees or inmates to work in the kitchens), increased cleaning, suspended classes and religious services led by volunteers, and limited attorney visits to window visits only. Resp. Opp. at 8–10; see also Ortiz Decl. ¶¶ 8–9, 15–21. Respondents contend that these measures undercut Petitioners’ deliberate indifference claim. Resp. Opp. at 15–20.
The standard for deliberate indifference, however, is not one of malice. Rather, Petitioners may establish deliberate indifference through intentional denial of care (the subjective standard), or by showing that Respondents “recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the [Respondents] knew, or should have known, that the condition posed an excessive risk to [the Petitioners’] health or safety” (the
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objective standard). Charles, 925 F.3d at 87. 3 Based on the record before it, the Court concludes that the inadequate measures implemented by Respondents amount to a reckless failure to act with reasonable care to protect Petitioners as high-risk individuals. 4
3 Respondents imply that in Charles, the Second Circuit held that the Court may find deliberate indifference only if, in addition to finding that Respondents have objectively failed to act with reasonable care, the Court separately finds that their actions “shock[ ] the contemporary conscience.” Resp. Opp. at 16 (internal quotation marks omitted). That is not the law. Instead, the Second Circuit has explicitly stated that, with respect to a claim of unmet medical needs by detainees, once deliberate indifference is shown, a “court need not ... conduct a separate analysis, over and above the deliberate indifference analysis, of whether the state’s conduct ‘shocks the conscience.’ ” Charles, 925 F.3d at 86; see id. n.11 (clarifying that the court of appeals has applied “separate ‘shocks the conscience’ analysis in cases that do not involve the medical needs of those the state has taken into custody”). In other words, the failure to take objectively necessary measures to protect vulnerable inmates from a deadly pandemic is per se conscience-shocking. See id. at 86 (“The Supreme Court has held that the point of conscience shocking is reached when government actors are deliberately indifferent to the medical needs of pretrial detainees.”).
4 The Court concludes that Petitioners have established a likelihood of success on the merits on their substantive due process claim, both articulated as a conditions of confinement claim, see Helling, 509 U.S. at 33 (discussing a conditions of confinement claim and raising “exposure of inmates to a serious, communicable disease” as an example), as well as an unmet medical needs claim, see Charles, 925 F.3d at 87 (discussing deliberate indifference to medical needs). Indeed, where, as here, a communicable disease renders the general conditions of confinement dangerous to Petitioners’ health, and meeting Petitioners’ medical needs requires that Respondents take specific measures to prevent their infection, the conditions of confinement and unmet medical needs claims essentially merge.
*8 First, the Court finds that Respondents have not put into place adequate measures to identify, protect, and treat detainees who are at a heightened risk of contracting or suffering grave complications from COVID-19. Respondents indicate that vulnerable detainees “are being housed separately,” and that staff working with them wear personal protective gear. Ortiz Decl. ¶ 33. But detainees are designated as high-risk only if, in the facility’s judgment, they have “chronic conditions that place them at higher risk for COVID-19” and “those conditions are not wellcontrolled.” Ortiz Supp. Decl. ¶ 18, ECF No. 33-2. It is not clear how the facility determines which underlying illnesses are “well-controlled,” nor is there any evidence in the record that
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demonstrates that an inmate with a “well-controlled” chronic condition is not still at increased risk of experiencing complications from a COVID-19 infection.
Moreover, Respondents cannot provide assurances that COVID-19 is not already present among the separately housed vulnerable population. Although Respondents assert that they engage in “daily monitoring” of high-risk detainees, Ortiz Decl. ¶ 15(f), and “increased monitoring” of the detainee population as a whole, id. ¶ 15(g), there is evidence that the facility’s procedures are not thorough. For example, detainees recently released from the Essex County Jail report that individuals with apparent COVID-19 symptoms remained among the general population. See Khan Decl. ¶ 15, ECF No. 34-3 (reporting that after reporting that he was “feeling generalized pain, muscle aches, and had lost [his] sense of taste and smell ... [n]obody took [his] temperature or gave [him] a blood test”); id. ¶¶ 12, 14 (describing other sick detainees who were untreated and kept in the general population); Perez Decl. ¶ 12, ECF No. 34-4 (“While I was [in the Essex County Jail], I can think of about eight people who were sick with headaches and fevers, which I understand are symptoms of coronavirus. It would take four or five days for these men to go to medical and while they waited, they were still in the dorms around other people.”). In any event, when it comes to vulnerable detainees like Petitioners, monitoring them for signs of infection is too little, too late. See also Gonsalves Decl. ¶ 52 n.71 (noting that the facilities fail to explain “who conducts that monitoring, how, when, or where it is conducted, or what steps are taken if a person exhibits symptoms of COVID-19 infection”). The best, and perhaps only, way to protect them is to prevent infection in the first place. Respondents have not taken meaningful steps to do so.
Second, with respect to general conditions of confinement, the evidence submitted by Respondents does not indicate that social distancing is being practiced in various daily situations inside the Essex County Jail. See How to Protect Yourself & Others, Centers for Disease Control and Prevention (Apr. 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html (recommending maintaining at least six feet of distance from other persons at all times and noting that “[k]eeping distance from others is especially important for people who are at higher risk of getting very sick”). Detainees sleep in either a cell with a bunk bed, or in a dorm, which includes “bunks around the perimeter of the dorm” with “a seating area and recreation yard” in the center of the dorm. Ortiz Decl. ¶ 6. The facility’s director concedes that the top and bottom bunks of each bed are separated by less than six feet, and that the beds, which are bolted to the ground, are also less than six feet apart from each other. Ortiz Supp. Decl. ¶ 7; see Picasso Decl. ¶ 6, ECF No. 3-3 (noting that detainees in Essex County Jail sleep “very close together—two people in a small room with bunk beds”); Khan Decl. ¶ 7 (“The dorm is one big hall and there are about 48 people in our dorm.... I was always within six feet from other people no matter where I went in the dorm.”); Perez Decl. ¶ 4 (“The cells were small and I was very close to my cellmate – I could not stay six feet away from him in the cell.”). Moreover, even in the common areas, it does not appear that
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detainees can consistently practice social distancing. Perez Decl. ¶ 6 (“When we were out of our cells, the group of 30 people would use the phones, the bathrooms and the microwave.... We were always very close to one another and always within six feet of one another.”); Picasso Decl. ¶¶ 4– 5 (attesting that it was “impossible to maintain six feet of distance” in the common space); Pena Decl ¶¶ 4–5, ECF No. 3-2 (averring that even after the facility reduced the number of inmates who could be out of their cell at any given time, “the dorms weren't big enough for us to stay away from people and we would still come into contact with them—people would group in lines waiting for the phone and the bathrooms. It was impossible to stay away from people even if I wanted to because the room just wasn't big enough.”). Gonsalves opines that “[g]enerally social distancing is impossible to obtain in a jail or prison setting, and none of the ICE declarations provide any evidence to alter my view.” Gonsalves Decl. ¶ 56. Attempts to practice social distancing are also for naught when detainees are forced to come into contact with surfaces that may have been touched by symptomatic individuals or items that belong to symptomatic individuals. See Khan Decl. ¶ 12 (attesting that when a symptomatic individual was removed from the general population and placed in quarantine, staff at the facility asked the detainees to pick up the symptomatic individual’s belongings, without any protective equipment); see also Gonsalves Decl. ¶ 55 (“[W]hile efforts to increase cleaning are admirable, in my opinion the frequencies for cleaning outlines are still inadequate. Rather than cleaning surfaces a handful of times each day, surfaces should be wiped down with disinfecting chemicals on a continual basis each time they are touched to prevent the spread of the virus.”).
*9 Third, the Essex County Jail uses “cohorting” to separate possibly infected detainees. But instead of isolating each individual, the facility groups them together. See Ortiz Decl. ¶ 21. This practice risks spreading the virus to otherwise healthy inmates. See Gonsalves Decl. ¶ 47. Respondents complain that in granting the TRO, the Court “misinterpret[ed] [the Essex County Jail’s] practices and CDC guidance as pertains to the ‘cohorting’ of detainees,” Resp. Opp. at 17, because the Court found that the Essex County Jail’s practice of cohorting individuals with potential exposure to the virus was not in line with the CDC’s admonition that “[o]nly individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention (Apr. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html; see Valenzuela Arias, 2020 WL 1847986, at *4. Respondents argue that the CDC also indicates that correctional facilities may cohort exposed individuals as a last resort, so long as they are not cohorted with confirmed cases. Resp. Opp. at 17–18; see Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. There is no evidence in the record that individually quarantining exposed detainees would be impossible. But more to the point, if vulnerable detainees
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with underlying illnesses face the possibility of being cohorted with others who may or may not be infected with COVID-19, then the vulnerable detainees face an increased risk of infection with the virus. 5 The cohorting practice described, therefore, does not adequately protect Petitioners.
5 Indeed, a court in this district recently described a similar cohorting practice as a “Kafkaesque approach” that “will inevitably permit the virus to spread.” United States v. Scparta, No. 18 Cr. 578, 2020 WL 1910481, at *1 (S.D.N.Y. Apr. 20, 2020).
Fourth, Respondents’ assurance that the Essex County Jail is “testing its entire population using rapid antibody screening,” Ortiz Decl. ¶ 32, provides no solace. The facility’s medical director explains that population-wide testing is underway using “[a]ntibody blood tests, which are also called serology tests,” Anicette Decl. ¶ 8, as a “screening tool to determine appropriate housing conditions,” id. ¶ 11. The Essex County Jail first tested all new admissions, then detainees deemed to be high-risk, and is now in the process of testing the remainder of the population. Id. ¶ 13. The facility quarantines for 14 days any individual who tests positive for certain antibodies associated with COVID-19. Id. ¶ 15. This procedure is deeply flawed, as Meyer explains in her supplemental declaration. See Meyer Supp. Decl., ECF No. 34-2. Meyer attests that it can take more than a week after infection for a person to develop the relevant antibodies, and even then, a number of confounding factors might lead to the non-development of those antibodies. Id. ¶ 18. As a result, “when it comes to assessing whether or not a person currently has COVID-19, a negative test result tells us nothing more than if we had not done a test in the first place. One cannot be reassured by a negative test. At most, it would be evidence that the individual did not have COVID-19 or was not exposed to it approximately 2 weeks ago.” Id. ¶ 19. Further, “an antibody test still cannot tell us whether or not someone actually has the virus or is contagious to others,” because “[t]here is evidence that people can be contagious for weeks before they develop symptoms and for weeks after they have recovered from COVID-19.” Id. ¶ 23. For this reason, Meyer opines that the Essex County Jail “is currently misinterpreting and misusing the results of these antibody tests in a way that puts detained persons and staff at significantly greater risk of harm related to COVID-19,” because it is likely to result in contagious individuals being housed with healthy ones, and insufficient measures being taken to protect detainees wrongly classified as immune. Id. ¶ 30; see id. ¶¶ 31–42 (describing in detail the diagnostic errors in the Essex County Jail’s testing plan). 6 Indeed, in her expert opinion, the Essex County Jail’s “testing protocol would significantly increase the risk of COVID-19 in the facility more so than if there was no testing at all.” Id. ¶ 48 (emphasis added).
6 Gonsalves corroborates Meyer’s assessment:
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It is also particularly concerning that Essex County Jail plans to use serologic, or so-called antibody, testing of detainees to make critical decisions about how to house and isolate its population. Although Essex County Jail touts this plan as a sign of its commitment to comprehensive testing, antibody testing should not be used to diagnose active infection (PCR-based antigen tests are used for that) nor as a way to ascertain if someone has been exposed to or recovered from or is immune from SARS-COV-2. The CDC, the Food and Drug Administration (“FDA”), and the World Health Organization (“WHO”) all warn against using antibody tests to determine whether an individual is infected or was previously infected with COVID-19. The New York City Department of Health and Mental Hygiene recently warned healthcare providers that “serologic tests should not be used to diagnose acute or priors SARS-CoV-2 infection, nor should they be used to determine immune status to SARS-CoV-2. Due to the prevalence of false results (e.g. false positive and false negatives), the uncertainty, in fact, lack of evidence to support even a true positive results’ association with immune protection, relying on serologic tests in this way may in fact increase exposure to COVID-19 among detainees at Essex County Jail. Gonsalves Decl. ¶ 50 (internal quotation marks and citations omitted).
*10 Finally, the Court is not persuaded that it should draw an inference in Respondents’ favor based on what Respondents characterize as swift action by ICE to identify and release vulnerable detainees. Resp. Opp. at 18. For one, this Court is not alone in finding that the pace of ICE’s response demonstrates deliberate indifference to the needs of those in its custody. See Fraihat v. U.S. Immigration & Customs Enf't, No. 19 Civ. 1546, 2020 WL 1932570, at *22 (C.D. Cal. Apr. 20, 2020) (“[ICE] made an intentional decision to promulgate only non-binding guidance for the first month of the pandemic, despite some knowledge of the risk posed by COVID-19. The March 6, March 27, and April 4, 2020 ICE guidance documents illustrate [ICE’s] awareness of a grave risk, but their failure to mandate a facility-wide response.”). But more importantly, ICE did not release the Petitioners before the Court. The question presented is whether the conditions in which Respondents seek to hold these Petitioners exhibit a reckless disregard for their health, taking into account their preexisting medical conditions. That ICE has released other individuals is not relevant.
A number of courts in this district and beyond have held that habeas petitioners have demonstrated a likelihood of success under similar conditions. In Basank v. Decker, this Court ordered immediate release of ten individuals detained in ICE custody at county jails in New Jersey, including the
Bergen and Essex County Jails. No. 20 Civ. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020); see also Basank, 2020 WL 1953847, at *13 (converting TRO into preliminary injunction on supplemented record). In Coronel, another court in this district released seven ICE detainees, including detainees at the Essex County Jail, due to their underlying medical conditions, which include obesity, hypertension, and gastrointestinal problems, in light of ICE’s insufficient steps
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to protect high-risk detainees. 2020 WL 1487274, at *1, *10. The same critical deficiencies have led other courts in this district to find a likelihood of success on the merits of a deliberate indifference claim brought by ICE detainees. See Velesaca v. Decker, No. 20 Civ. 2643, TRO Hr'g Tr. at 23:10–15, ECF No. 30 (S.D.N.Y. Apr. 13, 2020) (“[A]lthough the record reflects the respondents have taken general proactive steps to prevent the spread of COVID-19 in the Orange County Correctional Center, consistent with other courts in this district, I find such measures are unresponsive to [petitioner’s] needs as a high-risk individual”); Barbecho, 2020 WL 1876328, at *4 (ordering release of detainees because “beyond [a] custody re-assessment, [r]espondents have failed to offer any evidence of measures designed to address the needs of those high-risk detainees
who ICE has re-assessed and determined should remain in ICE custody”); Avendaño Hernandez v. Decker No. 20 Civ. 1589, 2020 WL 1547459, at *2–3 (S.D.N.Y. Mar. 31, 2020) (holding that an immigration detainee had established a “substantial claim for deliberate indifference” where ICE and the county jail in which he was held had “not taken any action to address the particular risks that COVID-19 poses to high-risk individuals,” but rather had taken “only generalized proactive measures to prevent detainees within [their] care from contracting and spreading the virus”). 7
7 Courts in other districts have also found that ICE detainees have shown a likelihood of success on their claims that continued confinement, without adequate protection for their health, violates their due process rights. In Hope v. Doll, a court granted the immediate release of 22 immigration detainees held at facilities with reported COVID-19 cases, finding that “the protective measures in place ... are not working.” No. 20 Civ. 562, ECF. No. 11 at 13 (M.D. Pa. Apr. 7, 2020). As the court explained, “[i]t now seems that our worst fears have been realized—COVID-19 is spreading, and not nearly enough is being done to combat it. We cannot allow the [p]etitioners before us, all at heightened risk for severe complications from COVID-19, to bear the consequences of ICE’s inaction.” Id. at 19. A court in that same district released 13 individuals from ICE detention, who suffered from medical conditions such as high blood pressure, diabetes, asthma, and trouble breathing.
Thakker v. Doll, No. 20 Civ. 480, 2020 WL 1671563, at *1, *10 (M.D. Pa. Mar. 31, 2020). In finding that the petitioners had shown a likelihood of success on the merits, the court noted that the petitioners had demonstrated that, “despite their best efforts, they cannot practice these effective preventative measures in [detention] [f]acilities.” Id. at *8. “Considering ... the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk [p]etitioners in this case,” the court determined that it “cannot countenance physical detention in such tightly-confined, unhygienic spaces.” Id. In Malam v. Adducci, the court released an ICE detainee, notwithstanding the precautionary measures taken by the facility, because the petitioner was “not ensured anything close to reasonable safety.” No. 20 Civ. 10829, 2020 WL 1672662, at *12 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020)
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(internal quotation marks and citation omitted). The court found that “the only reasonable response by [r]espondents is the release of [p]etitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to [p]etitioner from COVID-19.” Id. *11 To be clear, the Court does not hold that the CDC’s guidelines amount to strict rules of constitutional law that Respondents must follow in every circumstance. Contra Resp. Opp. at 15– 16. The Court does, however, take the numerous ways in which the Essex County Jail has failed to implement protective measures for high-risk individuals to be an overwhelming indication that the conditions of confinement are dangerous to detainees like Petitioners, and that their specific medical needs as vulnerable individuals would go unmet in custody. Thus, as the Court previously concluded, “Respondents know, or should know, that [the steps taken so far] are not enough to protect vulnerable detainees like Petitioners from an unreasonable risk of serious damage to their health.” Valenzuela Arias, 2020 WL 1847986, at *8.
The Court holds, therefore, that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners’ conditions of confinement pose excessive risks to their health and that their specific medical needs were unmet. 8
8 The Court does not reach Petitioners’ additional argument that they are likely to succeed on the merits of the claim that their due process rights were violated because the facilities’ conditions are punitive. Pet. Reply at 13–14.
3. Balance of Equities and Public Interest
The equities and public interest weigh heavily in Petitioners’ favor. Petitioners face irreparable injury—to their constitutional rights and to their health.
The potential harm to Respondents is limited. Respondents have not identified a specific danger to the public or risk of flight that necessitates returning Petitioners to confinement in an ICE detention facility. See generally Resp. Opp. In any event, the Court has imposed strict conditions of release that fully address any such concerns. See ECF Nos. 20, 21. Respondents note that Valenzuela Arias was mandatorily detained pursuant to 18 U.S.C. § 1226(c). Resp. Opp. at 4–5. However, courts have the authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). As such, Respondents have failed to justify Petitioners’ detention in unsafe conditions.
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Finally, the public interest favors Petitioners’ release. Petitioners were confined for civil violations of the immigration laws. In the current crisis, public health and safety are best served by rapidly decreasing the number of individuals held in confined, unsafe conditions. As another court in this district has observed, “[d]ecreasing the [ICE detention] population will ... ‘mitigate the damage’ to both the [j]ail and the surrounding community and thereby ‘reduce the death toll.’ ” Barbecho, 2020 WL 1876328, at *7 (quoting United States v. Nkanga Nkanga, No. 18 Cr. 713, 2020 WL 1529535, at *1 (S.D.N.Y. Mar. 31, 2020)). “Indeed, reducing the size of the population in jails and prisons reduces the level of risk both for those within those facilities and for the community at large.” Id. (internal quotation marks, citation, and alterations omitted).
Respondents argue that the public interest is disserved by “constitutionalizing” the Government’s response to a public health crisis. Resp. Opp. at 22. Suffice it to say that the constitutional requirement that the Government eliminate “a condition of confinement that is sure or very likely to cause serious illness and needless suffering” for those it has chosen to imprison is not a novel one.
Helling, 509 U.S. at 33. When that fundamental obligation is violated, there is no public interest in turning a blind eye. Rather, “the public interest lies with the enforcement of the Constitution.”
Ligon v. City of New York, 925 F. Supp. 2d 478, 541 (S.D.N.Y. 2013).
*12 Accordingly, the Court holds that Petitioners have established their entitlement to a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure. 9
9 Respondents argue that granting a preliminary injunction would improperly give Petitioners “the ultimate relief [they] seek[ ].” Resp. Opp. at 23 (quoting WarnerVision Entm't Inc. v. Empire of Carolina, Inc., 101 F.3d 259, 261 (2d Cir. 1996) (internal quotation marks omitted)). But the purpose of a preliminary injunction is to “prevent irreparable injury so as to preserve the court’s ability to render a meaningful decision on the merits.” WarnerVision, 101 F.3d at 261 (internal quotation marks and citation omitted). The Court has determined that the only way to prevent irreparable harm to Petitioners pending final adjudication of this action is to release them from an unsafe detention facility.
IV. Mapp v. Reno Even if Petitioners had not met the requirements for a preliminary injunction, the Court would release them on bail pending final resolution of their habeas claims under the Second Circuit’s decision in Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). In Mapp, the Second Circuit held “that the federal courts have inherent authority to admit to bail individuals properly within
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their jurisdiction” including immigration detainees petitioning for habeas relief. Id. A habeas petitioner’s “fitness for bail” depends on “whether the habeas petition raises substantial claims and whether extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.” Id. at 230 (internal quotation marks, citation and alteration omitted).
For the reasons already stated, Petitioners’ habeas claims are plainly substantial. Indeed, as the Court has already held, they are likely to succeed on the merits. And releasing Petitioners from confinement pending final adjudication of their petition is necessary to “make the habeas remedy effective.” Id. “Severe health issues have been the prototypical but rare case of extraordinary circumstances that justify release pending adjudication of habeas.” Coronel, 2020 WL 1487274, at *9 (collecting cases); see, e.g., Barbecho, 2020 WL 1876328, at *8 (“If these Petitioners— whose medical conditions place them at a higher risk of severe illness, or death, from COVID-19 —were to remain detained, they would face a significant risk that they would contract COVID-19 —the very outcome they seek to avoid. Release is therefore necessary to make the habeas remedy effective.” (internal quotation marks and citation omitted)); United States v. Nkanga, No. 18 Cr. 713, 2020 WL 1695417, at *3 (S.D.N.Y. Apr. 7, 2020) (granting bail pending resolution of a habeas claim under 28 U.S.C. § 2255 given “the defendant’s age; his multiple health issues; the nature of the defendant’s offense; [and] the precise timing of the sentencing proceeding (which occurred on March 12, 2020) in relation to the emerging COVID-19 pandemic” (internal quotation marks and citation omitted)). Detention of Petitioners pending final adjudication of this action could cause severe illness or death—precisely the harm their petition seeks to avert. The effectiveness of the habeas remedy can only be preserved, therefore, by Petitioners’ remaining released for the duration of this matter.
*13 Accordingly, the Court holds, in the alternative to granting Petitioners’ motion for a preliminary injunction, that bail is imposed pending final resolution of their petition for habeas corpus. Their bail conditions shall be the same as the conditions set in the TRO, and extended by the preliminary injunction.
CONCLUSION
For the reasons stated in this opinion, it is hereby ORDERED that:
1. Petitioners’ request for a preliminary injunction is GRANTED as follows:
a. Petitioners shall remain released, subject to the conditions already set by the Court, and
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b. Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes unless Respondents first obtain the Court’s permission; 10
2. Wolf is DISMISSED from this action; and
3. The preliminary injunction shall remain in effect until further order of the Court.
10 Respondents argue that the preliminary injunction should not prohibit Respondents from rearresting Petitioners if they determine that the public health crisis is over, or if Petitioners violate the terms of their release. Resp. Opp. at 22–25. Perhaps those occurrences would warrant an application to the Court for a modification of this order. But the Court shall not pass on the hypothetical circumstances that might allow redetention.
SO ORDERED.

All Citations Slip Copy, 2020 WL 2306565
End of Document

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Case 2:20-cv-11053-MAG-RSW ECF No. 30-31 filed 05/18/20 PageID.2477 Page 1 of 24
DECLARATION OF PAUL DRAUS, PhD I, Paul Draus, PhD, declare as follows:
1. I am a Professor of Sociology at the University ofMichigan-Dearborn. I have taught courses in Medical Sociology, Health Policy and numerous other areas here since 2005. My complete CV is attached. (Background and Qualifications - include CV or resume)
2. Knowledge re: public health, epidemiology, and correction: I earned my PhD in Sociology from Loyola University Chicago in 2001. My dissertation was focused on tuberculosis contact tracing and treatment that I engaged in directly as a Public Health Advisor in New York City from 1992-1993 and as a Community Epidemiologist at Cook County Hospital in Chicago from 1993-2000. I have also been an volunteer classroom instructor inside the Michigan Department of Corrections since 2008. My statement is based on this set of experiences. I have worked cooperatively with MDOC for years and I am well aware of the challenges that they face in dealing daily operations even when not faced with a pandemic. I give them full credit for trying to work within a set of difficult circumstances that they did not create and cannot control. This statement is based on my professional judgment of the current situation, as I understand it, and is not intended to disparage the work of correctional professionals.
3. Lectures, published articles, books, etc. (See attached CV). 4. Based on my training and experience in infectious disease epidemiology, the only
way to properly contain an epidemic is through breaking the cycle of infection. This requires several things: accurate identification of active cases of disease, adequate medical isolation of all potentially infectious cases, and widespread testing of all potentially exposed persons, both symptomatic and asymptomatic. Contact investigations should properly proceed using a concentric circle model, identifying
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those individuals in close contact with every confirmed case first, and moving outward to identify others who may be infected but not yet symptomatic, though still potentially contagious. However, because of the prison setting and the number of people who are confined in close proximity, the highly infectious nature of the coronavirus, and the inability to implement effective social distancing to prevent early transmission, it may not be possible to take these steps. 5. For this reason, widespread testing among prisoners is necessary: Based on my experience and professional judgment, the current practice of testing only symptomatic individuals or suspected cases is insufficient because every symptomatic confirmed case revealed by such testing merely represents the end point of a trail of infection. This means that you are already well behind the virus from an infection control standpoint. Use of Personal Protective Equipment (PPEs) and deep cleaning of surfaces, especially in shared environments, may limit spread ofcontagion going forward but does nothing about transmission that has already occurred. At the very least extensive testing should be conducted within all housing units where cases have emerged, in order to understand the extent of spread. Physical separation or quarantine of those infected from those uninfected should be implemented for a fourteen-day period. As the CDC guidelines indicate, best practice would be to quarantine all individuals exposed to either a confirmed or a suspected case. 6. Testing everyone goes beyond current CDC recommendations, but that is necessary given the prison environment. Given the fixed structure and congregate nature of the prison, widespread community transmission is likely to have occurred prior to detection of any single case. In such a situation, where preventive social distancing and effective
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quarantine of exposed persons is impossible, the only way to keep the incarcerated population and frontline staff safe is to implement universal testing inside the facilities so that effective contact tracing and separation (i.e. cohorting) of the infected, exposed and uninfected can occur. This is also in the best long-tenn interest of the facilities as it will limit the number of new cases needing medical attention. 7. Widespread testing among prison staff is necessary. The fact is that prisons, with their concentrations of aging and vulnerable populations, are defacto health care institutions even without a pandemic. Under the current circumstances, prisons are effectively coronavirus tinderboxes which may pose risk to incarcerated people, correctional staff and the broader community if they flare into full outbreaks. Every correctional officer is by default a frontline health care worker and similar care should be taken to protect them as are taken in hospitals and nursing homes where COVID-19 cases have been diagnosed.
I declare under penalty of perjury that the following is true and correct.
Paul Draus, PhD Dated: May 18, 2020
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Paul J. Draus
CURRICULUM VITAE
work phone: 313.583.6628 e-mail: draus@umich edu cell phone: 313.319.2651
Education PhD, Sociology. Loyola University, Chicago, IL January 2001
Dissertation: "Consumed in the City: Observing Tuberculosis in the 1990s" Chair: Dr. Anne Figert MA, American Studies, summa cum Laude. University of Wyoming, Laramie, WY May 1992 BA, English, Honors Program, magna cum Laude. Loyola University, Chicago, IL May 1990
Employment History Professor of Sociology Department of Behavioral Sciences The University of Michigan-Dearborn, Dearborn, Ml Fall 2016-present
Director, Master of Criminal Justice and Criminology Program The University of Michigan-Dearborn, Dearborn, Ml Winter 2020-Winter 2023
Associate Professor of Sociology and Health Policy Studies Department of Behavioral Sciences The University of Michigan-Dearborn, Dearborn, Ml Fall 2010-Summer 2016
Director, Master of Public Administration and Master of Public Policy Programs The University of Michigan-Dearborn, Dearborn, Ml Fall 2010-Summer 2013; July 2014-July 2016
Assistant Professor of Sociology and Health Policy Studies Department of Behavioral Sciences The University of Michigan-Dearborn, Dearborn, Ml, Fall 2005-Summer 2010
Research Scientist and Ethnographer Center for Interventions, Treatment and Addictions Research Wright State University School of Medicine, Dayton, OH June 2002-July 2005
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Case 2:20-cv-11053-MAG-RSW ECF No. 30-31 filed 05/18/20 PageID.2481 Page 5 of 24
Regional Epidemiologist, Ohio Substance Abuse Monitoring Network (OSAM) Columbus, OH January 2004-July 2005
Visiting Assistant Professor, Departments of Sociology and American Studies Grinnell College, Grinnell, IA Fall 2000-Spring 2002
Contract Ethnographer U.S. Census Bureau, Washington, DC 2000 - 2001
Lecturer, Department of Sociology and Anthropology Loyola University Chicago, Chicago, IL Fall 1999 - Spring 2000
Lecturer, Department of Sociology and Anthropology Indiana University Northwest, Gary, IN Spring 1997
Epidemiologist I & II, Tuberculosis Control Program Hektoen Institute for Medical Research at Cook County Hospital Chicago, IL 1993 - 2000
Public Health Advisor New York City Department of Health Bureau of Tuberculosis Control New York, NY 1992-1993
Honors and Awards
2014 Michigan Campus Compact Community Service-Learning Award 2019-2020 Provost Faculty Fellow
Scientific and Professional Societies Memberships Member, American Sociological Association Member, North Central Sociological Association Member, Society for the Study of SociaI Problems Member, Society for Urban Ecology
Curriculum Development Urban Sociology (SOC 435) developed as Academic Service Learning course, Winter 2008.
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Inside-Out Prison Exchange (SOC 476) developed as a specialized upper level course entitled "Ghettos and Prisons/' Fall 2008. Health Policy Studies Senior Seminar (HPS 402) developed as a participatory service-learning seminar, Winter 2012-Winter 2018. Interdisciplinary Foundations course, "Weeds, Wastelands and the Salvation of the World" developed as part of initial cohort of first-year seminars to be offered Fall 2020. Sociological Theory (SOC 308) developed as an online, active-learning course, to be offered Fall 2020.
Graduate/Undergraduate Student Supervision
PhD Students Palmer, I. PhD candidate at Wayne State University, Department of Sociology. Serving on Committee. McDuffie, A. Currently preparing for preliminary examinations at Wayne State University, Department of Sociology. Serving on Committee.
MPP Students
Zadoff, J., "Government Intervention in Promoting Recycling of Lithium-Ion Batteries: A Policy Analysis." Master of Public Policy Program, April 20.15. Director of Committee. Manley, M., and Roddy, A. "Building Restorative Networks with the Michigan Department of Corrections." Graduate students in Public Policy and Applied Mathematics and Statistics. Summer 2014 research project, presented at North Central Sociological Association Annual Meetings in Cleveland, OH, April 2015.
Undergraduate Research Projects
Liang, David and Ganesh, P. Low Altitude Wind Turbines. Undergraduate Research in Sustainable Energy (U-RISE) Program. May-August 2019. Freeman, Paris. Green Redevelopment and the Role of Ethnography: Using Qualitative Methods to Engage a Detroit Neighborhood about Greening Infrastructure. Office of Research and Sponsored Programs (ORSP) Summer Research Program, May-August 2018. Oldham, Leah. The Life Narratives of Female Athletes at the University of Michigan-Dearborn. Meeting of Minds XXVI, the University of Michigan-Dearborn, May 11th 2018.
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Gates, Omitra. Community Advocacy through Photography: an ethnographic excursion of Detroit. Meeting of Minds XXVI, the University of Michigan-Dearborn, May 11th 2018. Freeman, P., Makled, T., and Draus, P. (2016). Greening and the Grassroots: The Importance of Engagement with Detroit Residents Concerning Green Infrastructure. Conference paper based on community-based research in Detroit, published online at: https·l/www umflint edu/sites/defa11ltlfiles/gr0t1ps/Research and Sponsored™Programs/MOM Ip freeman pdf Freeman, P. The Greening of West Grand Boulevard. Summer Fall Service Learning project in Urban Sociology, presented at Michigan Sociological Association Annual Meetings in Flint, Ml, in October 2015. Makled, T. Using Service Learning to Study Neighborhood Land Use Strategies. Fall Service Learning project in Urban Sociology, presented at North Central Sociological Association Annual Meetings in Cleveland, OH, April 2015.
Other Teaching Experiences
Designed and taught three-hour workshop on "The Policing Experience and the Sanctity of Life" to ten cohorts of Dearborn Police Officers as component of Alternatives toViolent Force .(AV..E) series, UM-Dearborn 2017-2019. Designed and taught weeklong Seminar Series in Applied Social Science Research Methodology, Vytautas Magnus University, Kaunas, Lithuania, September 2014. Funded by Lithuanian Council of Science. Designed and taught eight-week workshop on Qualitative Research Methods at Macomb Correctional Facility, 2013-2014. Designed and taught four week workshop on Storytelling and Society through Americorps Program at Wind River Tribal College, Ethete, WY, summer 2000.
Publications a) Books
Draus, Paul. (2004). Consumed in the City: Observing Tuberculosis at Century's End. Philadelphia: Temple University Press. Draus, Paul. Wreckage and Restoration: The Collision of Trauma, Ecology and Design in Contemporary Detroit. Under contract, the University of Pittsburgh Press.
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Draus, Paul. Wind in the Weeds: One Man's Fight for the Future of Detroit. In discussion with Wayne State University Press.
b) Papers Published or Accepted for Publication in Refereed Journals Draus, P., Haase, D., Napieralski, J., Roddy, J., and Qureshi, S. (2019). Wounds, Ghosts and Gardens: Historical Trauma and Green Reparations in Berlin and Detroit. Cities 93: 153-163. https·//dai org/10 1016/j cities 2019.05 002
Draus, P., and Roddy, J. (2018). Weeds, Pheasants and Wild Dogs: Resituating the Ecological Paradigm in Postindustrial Detroit. International Journal of Urban and Regional Research 42(5): 807-827. bttps·//doi argho 1111/1468-2427 12627
Draus, P., Lovall, S., Formby, T., Baldwin, L., and Lowe-Anderson, W. (2018). A Green Space Vision in Southeast Michigan's Most Heavily Industrialized Area. Urban Ecosystems. Published online May 11. DOI 10.1007/s11252-018-0765-7
Draus, P., Roddy, J., and McDuffie, A. (2018). "It's Like Half and Half": Austerity, Possibility and Daily Life Inside a Depopulated Detroit Neighborhood. City, Culture and Society. Published online February 17. https·/fdai arg/10 1016/j ccs 2018 01 001
Draus, P., Roddy, J., and Asabigi, K. (2016). Parallel Paradoxes and Useful Uselessness: Notes on the Confluence of Ethnography, Mindfulness and Recovery. SAGE Open. Published online December 1. DOI: 10.1177/2158244016679684
Roddy, J., Draus, P., and Asabigi, K. (2016). The Cost of Recovery: Shifts in Income and Expenses During a Three-Phased Transition from Sex Work and Addiction to Drug Treatment and Independent Living. Journal of Applied Social Science, Vol. 10(2): 132-146. Draus, P., and Roddy, J. (2016). Ghosts, Devils and the Undead City: Detroit and the Narrative of Monstrosity. Space and Culture, Vol. 19 (1): 67-79. Draus, P., Roddy, J., and Asabigi, K. (2015). Streets, Strolls and Spots: Sex Work, Drug Use and Social Space in Detroit. The International Journal of Drug Policy, Vol. 26 (5): 453-460. Draus, P., Roddy, J., and Asabigi, K. (2014). Making Sense of the Transition to Drug Treatment from the Detroit Streets. Qualitative Health Research, Vol. 25 (2): 228-240. Draus, P., and Roddy, J. (2014). Paintings, Pensions and Pain. Contexts, Vol. 13(2): 58-60. Draus, P.; Roddy, J.; and McDuffie, A. (2013). We Don't Have No Neighborhood: Advanced Marginality and Urban Agriculture in Detroit. Urban Studies, Vol. 51(12): 2523-2538.
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Draus, P., and Lempert, L. (2013). Growing Pains: Reflection and Action in the Ryan Correctional Theory Group, Detroit, Ml. The Prison Journal, Vol. 93 (2): 138 - 161.
Roddy, J., Draus, P., White, E. and Asabigi, K. (2013). Moving Parts and Balancing Acts: Building and Maintaining a Collaborative Partnership in Detroit. Advances in Applied Sociology, Vol. 3 (1): 26-36.
Draus, P.; Roddy, J.; and Greenwald, M. (2012). Heroin Mismatch in the Motor City: Addiction, Segregation and the Geography of Opportunity. Journal ofEthnicity in Substance Abuse, Vol. 11(2): 149-73.
Draus, P.; Roddy, J.; and Greenwald, M. (2010). I always kept a job: Income generation, heroin use and economic uncertainty in 21st century Detroit. The Journal ofDrug Issues, Vol. 40(3): 841-870.
Draus, P.; Roddy, J.; and Greenwald, M. (2010). A Hell of a Life: Addiction and Marginality in Post-Industrial Detroit. Social & Cultural Geography, Vol. 7(11): 663-680.
Draus, P. (2009). Substance Abuse and Slow-Motion Disasters: The Case of Detroit. The Sociological Quarterly, Vol. 50: 360-382.
Draus, P., Carlson, R. (2009). The Game Turns on You: Crack, Sex, Gender and Power in Small Town Ohio. The Journal ofContemporary Ethnography, Vol. 38 (3): 384-408.
Draus, P., Carlson, R. (2008). Down on Main Street: Drugs and the Small-Town Vortex. Health & Place, Vol. 15: 247-254.
Draus, P., Carlson, R. (2007). Change in the Scenery: an ethnographic exploration of crack cocaine use in rural Ohio. Journal ofEthnicity in Substance Abuse, Vol. 6(1): 81-107.
Draus, P., Carlson, R. (2006). Needles in the haystacks: The social context of initiation to heroin injection in rural Ohio. Substance Use and Misuse, Vol. 41(8): 1111-1124.
Siegal, H., Draus, P., Carlson, R., Falck, R., Wang, J. (2006). Perspectives on Health Among Adult Users of Illicit Stimulant Drugs in Rural Ohio. Journal ofRural Health, Vol. 22(2): 169-173.
Falck, R., Siegal, H., Wang, J., Carlson, R., Draus, P. (2005). Non-medical drug use among adults in small towns in Ohio. Journal ofSubstance Abuse Treatment, Vol. 28(4):341-9.
Draus, P., Siegal, H., Carlson, R., Falck, R., Wang, J. (2005). Cracking the cornfields: Recruiting illicit stimulant drug users in rural Ohio. Sociological Quarterly, Vol. 46:165-189.
Draus, P. (2001). A Tale of Treatment: Tuberculosis Control in a Low-Income Neighborhood in the United States. Current Sociology, Vol. 49:189-206.
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Papers Submitted or in Process for Publication in Refereed Journals
Draus, P.1 Haase1 D.1 Napieralski, J.1 Qureshi, 5., and Roddy, J. Lurking in the Bushes:
Informality, Illicit Activity and Transitional Green Space in Berlin and Detroit. Revise and resubmit, cultural geographies.
Draus, P., Haase1 D., Napieralski, J., Sparks, A., Qureshi, 5., and Roddy, J. Wastelands, Greenways and Gentrification: Introducing a Comparative Framework with a Focus on Detroit, USA. Under review, Sustainability.
Draus, P., Roddy, J., and Franke, D. Restorative Reentry in Detroit: Implementing Family Conferencing Though a Therapeutic Community. Revise and resubmit, Michigan Journal of Community and Service Learning.·
Book Chapters in Edited Volumes
Draus, P. Green Dreams, Open Wounds: Sustainability and Inclusive Design in Detroit, USA. 2020. Chapter accepted for inclusion in edited volume on Sustainable Responses of UNESCO Cities of Design1 edited by Karl Stocker and Sigrid Burstmayr. In press. Price, C., Draus, P.1 Wellman, R., Gleicher, 5., Alazzawi, H., Pepin1 K.1 Norwood, D., and Sampson, N. The Healthy Dearborn Coalition: An lnterdisciplinary1 Continuing Collaboration between University, Health, Government and Community in Southeast Michigan. Chapter submitted to International Handbook on Public Sociology, edited by Leslie Hossfeld. In press. Draus, P. Qualitative Methods in Substance Abuse Research. 2017. Pp. 129-145 in Research Methods in the Study of Substance Abuse. Jonathan VanGeest, Timothy P. Johnson1 and Sonia Alemagno1 editors. New York: Springer International. Draus, P., and Roddy1 J. Sex Work. 2016. Pp. 177-194 in Understanding the HIV/AIDS Epidemic in the United States: The Role ofSyndemics in Shaping the Public's Health. Wright, Eric R.1 and Carnes, Neal (editors). New York: Springer International. Draus, P., and Roddy1 J. 2015. Drugs and Public Health and Safety in Geographic and Economic Context. Pp. 335-368 in The Wiley Handbook on Drugs and Society, Henry Brownstein, editor. Hoboken, NJ: Wiley-Blackwell. Draus, P. 1999. With Cornelius Howard. Spying on an Eyesore: Space, Place and Urban Decay. Pp. 59-79 in Constructions of Urban Space: Research in Urban Sociology1 Vol. 5. Hutchison, R. (editor). Bingley, UK: Emerald Group Publishing.
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Blog Posts
Draus, P. 2018. Buried scars, green dreams: historical trauma and environmental healing in contemporary Detroit. Posted on Post-lnd1,strial Stories, an outgrowth of Scars of History and Healing Spaces workshop, The European Solidarity Centre, Gdansk, October 2018. https·//postindustria!stories org/index php/workshop2018/presentation-by-pa111-draus-prof/
Draus, P., and Roddy, J. Scraping Black Bottom: Linking Memory, identity and Community in Detroit. October 2, 2016 guest post on Understanding Society blog maintained by Daniel Little. http·//1,oderstandingsociety blogspot com/2016/10/guest-post-by-pa11l-dra1is-andjuliette html
Draus, P. Thoughts on "Culture of Health.'' January 4, 2016 on Authority Health website. http·//www authorityheaIth org/-/populatioo-heaIth-blog/uncategorizedftho11ghts-on-culture­ of-heaIth
Draus, P., and Roddy, J. Ghosts and Monsters in the Motor City: challenging the trope of Detroit's decline. December 24, 2015 on London School of Economics American Politics & Policy Blog. http·//blogs lse ac uk/usappblog/2015/12/24/ghosts-and-monsters-in-the-motor-city­ challeogiog-th e-tro pe-of-detroits-d eeline/
Draus, P. Paul Draus, PhD, on Detroit and Other Depopulated Cities. December 15, 2014 on Vytautas Magnus University website. http·//www vd1, lt/en/paul-draus-phd-on-detroit-and­ other-depop11lated-cities/
Draus, P. Teaching Points: Paul Draus comments on "Ghettos & Prisons." September 5, 2012. Points: The Blog of the Alcohol & Drugs History Society. https·//pointsadhsblog wordpress com/2012/09/05/teachiog-points-pa1,l-dra1,s-commentary­ ao-the-class/
Reports
Draus, P., and Roddy, J. November 2019. Rejoining Detroit: Justice System Impacts and Employment Opportunities in the Motor City. Commissioned by the Detroit Regional Workforce Fund, United Way of SE Michigan.
Draus, P., and Roddy, J. May 2019. Evaluation Report: Chance For Life Organization.
Draus, P., and Roddy, J. 2013. Building a Healthy Community in Detroit: Tracking the Impact of the Hope Village Initiative Area. Institute Integrated Assessment Report Series Volume Ill Report 2. University of Michigan, Graham Institute for Environmental Sustainability. Accessed 6/16/2016 at http·//graham 1,mich edu/medialfiles/HOPEVillagelA Baseline pdf
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Invited Talks
The Detroit Windmill Project: A Model Platform for Upcycling and Green Energy. Jornada Showcase, Detroit, Michigan, December 7th, 2019. With Carlos Nielbock.
Weeds & Drugs. TEDx Dearborn, October 19th 2019, under theme of"Unexpected Connections.11
Buried Scars, Green Dreams: Socio-spatial Trauma and Redevelopment in Detroit, Michigan. Presented at interdisciplinary workshop entitled"Scars of History and Healing Spaces,, at International Workshop European Center for Solidarity, Gdansk, Poland, October 11th 2018.
Design as a Solution to Exclusion: Case Studies from Detroit, USA. Presented at Vytautas Magnus University, Kaunas, Lithuania, October 4th 2018.
Design & Protest in Detroit: Tracing Scars and Healing Spaces. Presented at FH JOANNEUM Institute for Design and Communication 2018 Lecture Series. Graz, Austria, May 8 2018. See http://designmonat.at/en/events/fh-joanneum-lecture-by-paul-draus/
Building the FRoG Vision: Nature, Community, Labor and Industry in Detroit's Backyard. Presented to University of Michigan-Dearborn Metropolitan Research Group, October 5, 2016.
Pheasants, Farms and Trees of Heaven: Re-examining the Ecological Paradigm in Postindustrial Detroit. With Juliette Roddy. Presented as part of the Detroit School Series, the University of Michigan, Ann Arbor Ml, December 4, 2015.
Disaster and Resilience in Detroit: A Sociological Journey. Presented at Henry Ford Centennial Library, Armchair Academy Series, Dearborn Ml, January 14, 2015.
Sex Work, Drug Use and the Problem of Agency. Presented at 4th Annual Sujal Symposium for Health and Social Justice, the University of Michigan-Ann Arbor, October 18th, 2014.
Challenges to Sustainable Urban Development in the USA: the Case of Detroit. Presented at Vytautas Magnus University, Kaunas, Lithuania, September 29, 2014.
A Swiftly Shifting City: Landscape and Social Change in Detroit. Presented at Tulane University, City Culture and Community Program, January 31, 2014.
Illicit Circulations: Sex, Drugs and Money in Detroit. Presented at Grand Valley State University, Department of Sociology, November 15, 2012.
Horror and Hope in the Motor City: an Ethno-Geographic journey. Presented at the University of Wyoming American Studies Program, Laramie, WY, November 8, 2011.
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Fresh Off the Streets: Social Networks and Economic Lives of Former Sex Workers in Detroit. Presented at the Center for Urban Research and Learning (CURL), Loyola University Chicago, October 8, 2010.
Heroin and Spatial Mismatch: 'White' and 'Black' patterns of heroin use and acquisition in 21st Century Detroit. Presented at the University College of London, Department of Geography, January 20th 2010
Digging Detroit: Drugs, Work and Worth in the Aftermath of Abandonment. Presented at Cambridge University, August 27-28, 2007, Cambridge, England.
Hidden Populations, Vulnerable Populations: Addressing HIV-Related Stigma in Rural Communities. Keynote address delivered at Midwest AIDS Training and Education Center (MATEC) conference on HIV/AIDS in Rural Communities, Sault Ste. Marie, June 2007.
Notes from the Hidden Country: Exploring Illicit Substance Use in the Rural Midwest. Plenary address delivered at the national conference of the Rural Center for AIDS/STD Prevention (RCAP) and the National Rural Health Association (NRHA), Bloomington, Indiana, April 2007.
White Lines, Black Crack: Myths of Race, Drugs and Small Town America. Presentation given at 4th and 5th Annual Conference on White Privilege, Pella, IA April 2003 and May 2004.
Lessons from Poor Historians: Ethnography and the Social Context of Tuberculosis. Presented at quarterly meeting of the Metropolitan Chicago Tuberculosis Coalition, September 26, 2001, Chicago, IL.
Presentations at Professional Meetings Victims and Veterans of the War on Drugs Find Their Voice: An Aspirational Agenda for the Post-Trump Era. With Juliette Roddy, the University of Michigan-Dearborn. Society for the Study of Social Problems (SSSP) Annual Meetings. New York, NY, August 2019. Design as a Solution to Exclusion: Case Studies from Detroit, USA. Society for the Study of Social Problems (SSSP) Annual Meetings. New York, NY, August 2019. Prisoner Representation, Prisoner Studies and the IRB. With Juliette Roddy, the University of Michigan-Dearborn, Society for the Study of Social Problems (SSSP) Annual Meetings, New York, NY, August 2019. Trauma, Reparations and Redevelopment in Detroit: Ethnographic Snapshots of Environmental Justice Struggles. American Sociological Association (ASA) Annual Meetings, New York, NY, August 2019.
Green Reparations in Berlin and Detroit: Sociospatial Trauma and the Role of Urban Nature. Presented at Spaces and Flows International Ninth International Conference on Urban and ExtraUrban Spaces, Heidelberg, Germany, October 26th 2018.
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Place and Process-Based Approaches to Population Health in Dearborn, Detroit, and Ypsilanti. Presented at Coalition of Urban and Metropolitan Universities (CUMU) 24th Annual Conference. Chicago, IL, October 24th 2018.
Condemning the System while Towing the Line: Compromises, Conflicts and Contradictions of the Inside-out Prison Exchange Program. Society for the Study of Social Problems (SSSP) Annual Meetings. Philadelphia, PA, August 2018.
Lurking in the Bushes: Substance Use, Sex Work and Urban Nature in Berlin and Detroit. American Sociological Association (ASA) Annual Meetings. Philadelphia, PA, August 2018. Restorative Justice in Prison and Community Settings in Detroit. With Juliette Roddy. Society for the Study of Social Problems (SSSP) Annual Meetings. Philadelphia, PA, August 2018.
Green Fingers, Green Walls, Green Scars: Sociospatial Trauma and the Role of Urban Nature in Berlin and Detroit. With Juliette Roddy, the University of Michigan-Dearborn. Society for the Study of Social Problems (SSSP) Annual Meetings. Philadelphia, PA, August 2018.
Hatred, Division and Healing in Berlin and Detroit: Sociospatial Trauma and the Role of Urban Green Space. Association of American Geographers (AAG) Annual Meeting. New Orleans, LA April 14, 2018. With Dagmar Haase and Salman Qureshi, Humboldt University Berlini Jacob Napieralski, Juliette Roddy, Nichole Bowman, and Alec Sparks (student), The University of Michigan-Dearborn.
From Red Lines to Green Scars: Analyzing the Relationship between Socio-spatial trauma and Urban Green Space in Detroit, Michigan (Poster). Association of American Geographers (AAG) Annual Meeting. New Orleans, LA. April 12, 2018. With Alec Sparks (student), Jacob Napieralski, Nichole Bowman (student\ University of Michigan- Dearborn.
Crossing the Thin Blue Line: Teaching and Talking about/to/with the Police. Presentation and panel discussion at North Central Sociological Association Annual Meetings, Pittsburgh, PA,
April 71 2018. With Juliette Roddy, the University of Michigan-Dearborn, Waverly Duck, the
University of Pittsburgh, and Tony Gaskew, the University of Pittsburgh-Bradford.
A Sociologist on the Brownfield Board: Insights from an Outsider. Presented at the EPA National Brownfields Training Conference, Pittsburgh, PA December 2017.
Restorative Practices and Violence Prevention: Local Efforts in Southeast Michigan Focused on Repairing and Avoiding Harm. With Juliette Roddy, University of Michigan Dearborn, and Derrick Franke, MA, Academic Specialist, Michigan State University. Michigan's Premier Public Health Conference (MPPHC). Mackinac Island, Ml. October 4, 2018.
Active Absences: Moving Narratives of Memory, Loss, Identity and Community in Detroit. With Juliette Roddy, University of Michigan-Dearborn. Society for the Study of Social Problems (SSSP), Montreal, CA. August 12, 2017.
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Training Police: Alternatives to Violent Force. With Juliette Roddy, Paul Draus and Donald Shelton, University of Michigan-Dearborn. Society for the Study of Social Problems (SSSP), Montreal, CA. August 11, 2017.
A Greenspace Vision in Southeast Michigan's Most Heavily Industrialized Area. With Sam Lovall and Treva Formby. Presented at the International Association for Great Lakes Research (IAGLR) Annual Meeting, May 2017, Detroit, Ml.
Scraping Black Bottom: Linking Memory, Identity and Community in Detroit. Presented at the Midwest Historical Archaeology Annual Meetings, Detroit, Ml, September 2016.
Between the Man and the Monster: Negotiating Collaborative Relationships with Oppressive and Exploitive Organizations. Presented at the Society for the Study of Social Problems Annual Meetings, Seattle, WA, August 2016.
Weeds, Rats and Crackheads: Re-examining the Ecological Paradigm in Post-Industrial Detroit. With Juliette Roddy. Presented at the Society for the Study of Social Problems Annual Meetings, Chicago, IL, August 2015.
Green Light, Shifting Shadows: Snapshots of Race and Marijuana in Michigan. With Juliette Roddy. Presented at the Society for the Study of Social Problems Annual Meetings, Chicago, IL, August 2015.
Adapting to Disaster: Narrative Accounts of Detroit1s Ongoing Deconstruction. With Anthony McDuffie and Juliette Roddy. Presented at the Society for the Study of Symbolic Interaction Annual Meeting, Chicago, IL, August 2015.
We Are Garbage People: Austerity, Possibility and the Daily Routines of Detroit1s Submerged Workers. With Juliette Roddy and Anthony McDuffie. American Sociological Association Annual Meeting, Chicago, IL, August 2015.
Adapting to Disaster: Narrative Accounts of Detroit1s Ongoing Deconstruction. With Anthony McDuffie and Juliette Roddy. Presented at the North Central Sociological Association Annual Meeting, Cleveland, OH, April 2015.
Mapping Stories: Linking Ethnography and Geography through Narrative in Detroit. Presented at Couch-Stone Symposium, Society for the Study of Social Interaction, St. Petersburg, FL, March 2015.
Given the Greenlight in Detroit: Photographic illustrations of themes developed during medical marijuana research. With Juliette Roddy. Presented at the American Public Health Association 142nd Annual Meetings, New Orleans, LA, November 2014.
We Are Garbage People: Daily Routines of Detroit1s Submerged Workers. With Juliette Roddy and Anthony McDuffie. Society for Cultural Anthropology Biennial Meetings, Detroit, Ml, May 2014.
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A Swiftly Shifting City: Dynamics of Linked Landscape and Social Change in Detroit. With Juliette Roddy and Jacob Napieralski. Poster presented at Conference on Complex Systems, Health Disparities & Population Health. National Institutes of Health, Bethesda MD, February 2014.
A Swiftly Shifting City: Linked Landscape and Social Change in Detroit. With Juliette Roddy. Presented at the Spaces and Flows Conference, Amsterdam, Netherlands, November 2013.
Streets, Strolls and Sanctuaries: Gender, mobility and safety in Detroit's drug and prostitution zones. With Juliette Roddy. Presented at the American Sociological Association Annual Meetings, New York, NY, August 2013.
The Loudest of the Loud: Impacts of the Michigan Medical Marijuana Legislation on Urban and Suburban Patterns of Use, Procurement and Association. With Juliette Roddy. Presented at the Society for the Study of Social Problems Annual Meetings, New York, NY, August 2013.
Digging Detroit: A Multilayered Excavation of Landscape and Social Change in a Postindustrial City. With Juliette Roddy. Innovation Briefing Delivered at The Engaged Campus: Ddving Innovation through Partnerships Conference, Dearborn, Ml May 2013.
The Cost of Recovery: Economic Profiles of Former Street Sex Workers in Detroit. With Juliette Roddy. Presented at the American Public Health Association 140th Annual Meetings, San Francisco, CA October 2012.
Illicit Circulations: Sex, Drugs, and Money in Detroit. With Juliette Roddy. Presented at the Spaces and Flows Conference, Detroit, Ml, October 2012.
We Don't Have No Neighborhood: Advanced Marginality and the Utopian Future of Postindustrial Detroit. With Juliette Roddy and Anthony McDuffie. Presented at the American Sociological Association Annual Meetings. Denver, CO, August 2012.
Green Recovery in Detroit: Comparing Two Promising Efforts in the Early Stages. Presented at the American Public Health Association 139th Annual Meeting, Washington, D.C., October 31, 2011.
The Street, the Stroll and the Spot: Negotiations of social and semipublic space in Detroit's drug and prostitution zones. With Juliette Roddy. Presented at The Pub, the Street, and the Medicine Cabinet: The 6th International Conference on the History of Alcohol and Drugs, Buffalo, NY, June 25th, 2011.
Fresh Off the Streets: Social Networks and Economic Lives of Detroit Sex Workers. With Juliette Roddy. Poster presented at AcademyHealth Annual Research Meetings, Seattle, WA, June 13th, 2011.
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Redundant Situations: Making the transition to treatment from the Detroit streets. With Juliette Roddy. Presented at the North Central Sociological Association Annual Meetings, Cleveland, OH, April 2011.
Ghosts, Devils, and the Undead City: Crisis and Survival in Detroit. Presented at the Canadian American Studies Association Annual Meetings, Windsor ON, October 2010.
Webs and Circuits: Describing the Social Networks of Detroit Heroin Users. Presented at the Midwest Sociological Society Annual Meetings, Chicago, April 2010.
Heroin and Spatial Mismatch: "White" and "Black" patterns of income generation, heroin use and acquisition in 21st Century Detroit. With Juliette Roddy. Presented at the Society for the Study of Social Problems Annual Meetings, San Francisco, August 2009.
Teaching in Correctional Settings: Experiences from the Inside-Out Program. Roundtable presentation at The Midwest Sociological Society Annual Meetings, Des Moines, April 2009.
Sorting Out the Bad Apples: Public Schools and the Code of the Street on Season 4 of The Wire. With Bryan Granger, Shavon Holcomb and Lynn McMeal, presented at "Heart of the City: Black Urban Life on The Wire," Ann Arbor, February 2009.
Heroin and Bare Life: drugs, work and worth in the post-industrial city. With Juliette Roddy. Paper presented at the American Sociological Association Annual Meeting, Boston, August 2008.
'I always kept a job': Work patterns, social networks and heroin use in 21st century Detroit. With Juliette Roddy. Presented at the Society for the Study of Socia I Problems Annua I Meeting, New York City, August 2007.
Substance Ab(use) and Slow Motion Disasters: The Need for a Critical Counter-Narrative. Paper presented at the Society for the Study of SociaI Problems AnnuaI Meetings, Montreal, Canada, August 2006.
Who's Using Who?: Gender, Power, Sex and Crack Cocaine in Small Town Ohio. Paper presented at Qualitative Health Research Annual Conference, Edmonton, Canada, April 2006.
Crack Cocaine Use and Health Risk Behavior in Rural Ohio: An Ethnographic Exploration. Paper presented at Society for Applied Anthropology, Annual Meeting, Santa Fe, NM, April 2005.
Down on Main Street: Drugs and the Small Town Vortex. Paper presented at Midwest Sociological Society Annual Meetings, Kansas City MO, April 2004.
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Needles in the Haystacks: Pathways to illegal drug injection in small-town Ohio. Paper presented at American Public Health Association Annual Meetings, San Francisco CA, November 16-19, 2003.
Cracking the Cornfields: Recruiting active stimulant users in small-town Ohio. Paper presented at Society for Applied Anthropology, Annual Meeting, Portland, OR, March 2003.
Difficult Negotiations: Coercion, Care and Compliance in Tuberculosis Therapy. Paper presented at Society for the Study of Social Problems, Annual Meetings, Chicago, IL, August 2002.
Race in Your Face: John Brown in Iowa. Presentation given at Third Annual Conference on White Privilege, Pella, IA, April 2002.
Darkness on the Edge of Town: Race, Drugs, Disease and Other American Demons. Presented at Charles University, Prague, Czech Republic, March 2002.
Tuberculosis Control, Ethnography and Foucault: Notes on Theory and Methodology. Presented at American Sociological Association, Annual Meetings, Anaheim, CA, August 2001.
Hard Case Histories: Narratives of Homelessness, Illness and Addiction. Presented at American Sociological Association, Annual Meetings, Anaheim, CA, August 2001.
Attitudes Towards Community and Institutional Distrust: From Cafe to Crime Zone. Presentation given at the U.S. Census Bureau, Washington, DC, February 2001.
From Xela to Chicago: Cross-Cultural Comparison of Public Hospital Spaces in Guatemala and the United States. Paper presented at Qualitative Health Research Conference, sponsored by International Institute for Qualitative Research, Banff, Alberta, Canada, April 2000.
Tuberculosis Transmission in an Inner-City Car Wash. Poster co-authored with Chris Caudill and James McAuley of the Centers for Disease Control and William Paul of the Chicago Department of Health. Presented at the Annual Conference of the American Lung Association, San Diego, CA 1999.
Spying on an Eyesore: Space, Place and Urban Decay. With Cornelius Howard. Presented at the American Sociological Association, Annual Meeting, Chicago, IL 1999.
Inside the Myopticon: Medical Surveillance, Foucault, and Subjectivity. Presented at the American Sociological Association, Annual Meeting, Chicago, IL 1999.
Tales of Treatment: Tuberculosis Control in the Street. Presented at the American Sociological Association Annual Meetings, San Francisco, CA 1998.
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Subsistence Labor, Marginal Economics, and the Urban Homeless. With Talmadge Wright. Presented at the Society for the Study of Social Problems Annual Meetings, New York, NY, August 1996.
Research Grants
Tangle-Overridden Urban Space. (Co-Investigator, with Tzveta Kassabova and Holly Hughes, UM-Ann Arbor). University of Michigan Mcubed. FUNDED: $15,000 over one year.
Place-Based Projects as Catalysts for Resilience: A Social-Ecological-Design Approach. Draus, Paul. Office of Research and Sponsored Programs (ORSP) UM-Dearborn Scholars Grant. FUNDED: $15,000 over one year, May 2018-June 2019.
A Green Energy Village in Detroit's Eastern Market: Establishing a Strategy for Scalability and Integrated Assessment. Draus, Paul (Pl). With Juliette Roddy, Kevin Bai (UM-Dearborn), Joshua Newell (UM-Ann Arbor), Carlos Nielbock, Janai Gilmore (CAN Art Handworks), Lydia Levinson, Dan Carmody (Eastern Market Corporation). Graham Sustainability Center Catalyst Grant. FUNDED: $10,000 over one year, May 2018-September 2019.
Violence Prevention as Community Health Work: Street Outreach Programs in Two Michigan Cities (Pl). The University of Michigan-Dearborn Community-Based Research Seed Grant. Co­ Investigator, Dr. Juliette Roddy. FUNDED: $4,000 over two years, June 2017-June 2019.
Green Space, Health and Quality of Life in Detroit and Berlin (Pl). University of Michigan Humboldt-Universitat zu Berlin Collaboration on Applications of Cooperative Research in the Social Sciences. FUNDED: $100,000 over 2 years, January 2017-January 2019.
Restorative Reentry in Detroit: Implementing Family Conferencing Through a Therapeutic Community (Pl). Submitted to Michigan Institute for Clinical & Health Research (MICHR). FUNDED: $30,000 over one year, September 2015-August 2016.
Supporting Restorative Reentry in Detroit: A Proposal to the Skillman Foundation (Pl). Small Project Grant, the Technical Assistance Center, the University of Michigan-Ann Arbor. FUNDED: $7,500 over 3 months. June-August 2015.
Green Infrastructure and Social Equity: Examining Community Engagement & Risk Communication Strategies Related to Environmental Remediation in Southwest Detroit (Pl). The Spivack Program in Applied Social Research and Social Policy, the American Sociological Association (ASA). FUNDED: $2,975 over two years, May 2015-May 2016.
Restorative Reentry in Detroit: An Interdisciplinary Collaborative Approach. The University of Michigan-Dearborn Community-Based Research Seed Grant. Co-Investigator, Dr. Juliette Roddy. FUNDED: $4,000 over two years, June 2014-June 2016.
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Digging Detroit: Multilayered Mapping of Landscape and Social Change in Detroit. (Pl). The University of Michigan-Dearborn Step 2 Grant for Faculty Research. FUNDED: $15,000 over two years, April 2013-April 2015.
Building a Healthy Community in Detroit: Tracking the Impact of the Hope Village Initiative. University of Michigan, Graham Institute for Environmental Sustainability. Co-Investigator, with Dr. Juliette Roddy. FUNDED: $28,000 over two years, May 2012-May 2014.
The Depopulation of Oakwood Heights: An Exploratory, Community-Based Study. (Pl). The University of Michigan-Dearborn Community-Based Research Seed Grant. FUNDED: $8,000 over two years, June 2012-June 2014.
Black, White and Shades of Gray: Racial and Spatial Impacts of Michigan's Medical Marijuana Policy on the Users. Co-Investigator, Dr. Juliette Roddy. The University of Michigan-Dearborn Rackham (Replacement) Grant/Pilot Study. FUNDED: $6,000 over two years, April 2011-June 2013.
Tracing Changes in the Urban Landscape: An ethno-geographic study of the RecoveryPark Project. (Pl). The University of Michigan-Dearborn, Office of Research and Sponsored Programs, Faculty Summer Research Grants. FUNDED: $6,000 over two years, April 2011-June 2013.
An Ethnographic and Economic Investigation of the Fresh Start Prostitution Reform Program. Co-Investigator, Dr. Juliette Roddy. (NIDA 1 R21 DA027145-01). Community Influences on Health Behavior (CIHB) Group. FUNDED: $275,000 over two years, beginning October 10, 2009.
Social Networks and Contexts of Health Risk Behavior Among Active Heroin Users in Detroit: An Exploratory Ethnographic Study. (Pl). University of Michigan-Dearborn, Office of Research and Sponsored Programs, Faculty Summer Research Grants. FUNDED: $6,000 over two years, July 2006-February 2008.
Service Activities
a) University Service Campus-wide Committees Experiential Education Work Group, Summer 2010 Health Programs Committee, Summer 2011-2012 Transition Committee for Office of Research and Sponsored Programs, Winter 2014 Engagement Day Planning Committee, Fall 2014 Office of Metropolitan Impact (OMI) Advisory Committee, 2013-present CASL Restructuring Task Force, January 2018-2019
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College (CASL, CECS, COE, SOM) Committees Dean's Task Force on Integrated Bands (2017-2018) CASL Climate Committee (2015-2018), Faculty Co-Chair 2017-2018. CASL Strategic Planning Committee (2014-2016) CASL Grants Committee (2008-2010)
Departmental Committees Department Executive Committee, Sociology Discipline Coordinator, Fall 2015-Fall 2018 Faculty Search Committees for Sociology (2009), Public Administration (Chair, 2012), Health Policy Studies (2013), Criminal Justice Studies (2013), Public Health (2014), Anthropology (2016)
b) Professional Activities
Guest Editor, Michigan Journal ofCommunity SeNice Learning, special issue on Detroit, Fall 2016.
Editorial Review Board, Journal of Prison Education and Reentry, 2015-present.
Frequent reviewer, Journal of Contemporary Ethnography; Health & Place; Urban Studies; International Journal of Drug Policy; International Journal of Urban and Regional Research; Qualitative Health Research; American Journal ofPublic Health.
Co-Chair, Health, Health Policy and Health Services Division, Society for the Study of Social Problems 2015-2017.
Council Member At-Large, North Central Sociological Association (NCSA). Elected fall 2017 for two-year term (2018-2020). American Association of Humanist Sociologists (AHS), November 2018, Detroit, Ml. Crossing the Thin Blue Line: Teaching and Talking About/To/With the Police. Organized workshop.
North Central Sociological Association (NCSA), April 2018, Pittsburgh, PA. Crossing the Thin Blue Line: Teaching and Talking About/To/With the Police. Organized panel discussion.
Restorative Justice=Results Mini-Conference at the University of Michigan-Dearborn, December 1 2017. Organized four-hour conference and presented research results.
Michigan's Premier Public Health Conference (MPPHC), Mackinac Island, Ml. October 2017. Restorative Practices and Violence Prevention: Local Efforts in Southeast Michigan Focused on Repairing and Avoiding Harm. Co-organized session with Juliette Roddy.
Exhibit 30, Declaration of PhD Draus - 21

Case 2:20-cv-11053-MAG-RSW ECF No. 30-31 filed 05/18/20 PageID.2498 Page 22 of 24
Society for the Study of Social Problems (SSSP), August 2017, Montreal, Canada. Organized roundtable paper session for Health, Health Policy, and Health Services Division. Twenty-five papers were included and presiders assigned for each table of five presenters.
Mini-Symposium on Socio-Design and its Applications in Europe and Detroit, June 2017, Detroit Ml. Organized four-hour event involving local artists, architects and designers in discussion with visiting designers from Austria, focused on social dimensions of design. Justice Studies Association (JSA), June 2017, Detroit, Ml. Co-organized session with Juliette Roddy and Derrick Franke entitled "Localized Efforts at Justice Reform in Michigan."
International Association for Great Lakes Research (IAGLR) Annual Meeting, May 2017, Detroit, Ml. Organized panel discussion entitled "What Good Does It Do Me?: Engaging Community Stakeholders in the Implementation and Valuation of Green Infrastructure."
North Central Sociological Association (NCSA), April 2017, Indianapolis, IN. Co-organized session with Juliette Roddy and Derrick Franke entitled "Moving Outside the Academy: Localized Efforts at Crime Prevention & Criminal Justice Reform in Michigan."
Michigan Association for Local Public Health (MALPH), October 2016, Kalamazoo, Ml. With Juliette Roddy, co-organized session on "Drugs, Justice, the Environment and Health in Detroit/featuring presentations by both students and faculty from UM-Dearborn based on collaborative research conducted with community partners in Detroit.
American Sociological Association (ASA), August 2016, Seattle, WA. With Jason Schnittker, co-organized session entitled "Health and the Carceral State", for the Medical Sociology section.
Society for the Study of Social Problems (SSSP), August 2016, Seattle, WA. Organized sessions on "Environment and Health" and "Defining and Debating the Culture of Health."
North Central Sociological Association (NCSA), April 2016, Chicago, IL. Organized session entitled "Drugs, Justice, Health and Recovery in Detroit", featuring presentations by both students and faculty from UM-Dearborn.
North Central Sociological Association (NCSA), April 2015, Cleveland, OH. Organized and chaired session entitled "Land, Law, Leaf and Quality of Life in Detroit", featuring presentations by both students and faculty from UM-Dearborn.
Society for the Study of Social Problems (SSSP), August 2014, San Francisco, CA. Organized and chaired two linked sessions on "People, Places and Things: Applying Actor-Network Theory to Substance Use Behaviors."
Book Reviews
Exhibit 30, Declaration of PhD Draus - 22

Case 2:20-cv-11053-MAG-RSW ECF No. 30-31 filed 05/18/20 PageID.2499 Page 23 of 24
The Pastoral Clinic: Addiction and Dispossession Along the Rio Grande. (2011). Book reviewed for Social Forces, Vol. 90(1): 328-330.
Race, Space and Riots. (2008). Book reviewed for City & Community, Vol. 7(2): 183-185.
Suffering in the Land of Sunshine. (2007). Book reviewed for Health: An Interdisciplinary Journal for the Social Study of Health, Illness and Medicine, Vol. 11(3): 419-428.
Community Service
Board Member, Self Help Addiction Rehabilitation (SHAR) Inc.
Board Member, Downriver Delta Community Development Corporation.
Board Member, Friends of the Rouge River,
Community Representative, Downriver Community Conference Brownfield Consortium.
Member, City of Dearborn Brownfield Redevelopment Committee.
Member, Health Dearborn Coalition.
Presenter, UM-Dearborn Digital Education Day, 2017 and 2018. Invited to share practices incorporating digital media into my teaching pedagogy.
Expanding Inside-Out Prison Exchange in the State of Michigan. (Pl). Ford Foundation subaward from Temple University, Philadelphia, PA. Grant awarded September 2015 for work to be completed by the end of the calendar year. FUNDED: $10,000 over 4 months.
Tour narration, 2019 Rouge Cruise, August 6. Provided commentary for three hour boat cruise on the Detroit and Rouge Rivers.
Facilitator, Fort-Rouge Gateway (FRoG) Partnership, dedicated to enhancing access to green space in Lower Rouge River watershed, and involving a number of community organizations as well as government and corporate entities, including Michigan Department of Transportation (MDOT), Greening of Detroit, Southwest Detroit Business Association, Sierra Club, Motor Cities National Heritage Area, UAW Local 600, and the Marathon Petroleum Company. Major project of the Fort Street Bridge Park was funded for approximately $1M after four years of effort and construction slated to begin October 2019.
Facilitator, Michigan Theory Group at Macomb Correctional Facility, focused on promoting meaningful dialogue and expanding educational opportunities inside the prison system, as well as outreach to larger community, promoting Restorative Justice and initiating program and research design with Michigan Department of Corrections (MDOC) and community partners
Exhibit 30, Declaration of PhD Draus - 23

Case 2:20-cv-11053-MAG-RSW ECF No. 30-31 filed 05/18/20 PageID.2500 Page 24 of 24
such as Self Help Addiction Rehabilitation (SHAR). Group has facilitated ten trainings of faculty Inside-Out Prison Exchange and organized three Restorative Justice Summits and two conferences on education in prison, Confined Minds I (2009) and Confined Minds II (2019).
REFERENCES
Janet R. Hankin Professor Department of Sociology 2259 FAB Wayne State University Detroit, Ml 48201 Phone: (313) 577-2930 Email: ad4388@wayne edtJ
Martin J. Hershock Dean of the College of Arts, Sciences and Letters The University of Michigan-Dearborn 4901 Evergreen Rd. Dearborn, Ml 48128 Phone: (313) 583-6541 Email: mhershoc@umd 1,micb edu
Juliette K. Roddy The NARBHA Institute James Wurgler MD Chair of Criminal Justice and Behavioral Health Department of Criminology and Criminal Justice Northern Arizona University Phone: (928) 523-5214 Email: J1J1iette Roddy@natJ edu
Prof. Dr. Karl Stocker Head Institute Design & Communication FH JOANNEUM / University of Applied Sciences Alte Poststrafse 152 A-8020 Graz Phone: +43.316.5453.8625 Email: karl stocker@fh-joannellm at
Exhibit 30, Declaration of PhD Draus - 24

 
 Case 2:20-cv-11053-MAG-RSW ECF No. 1 filed 04/29/20 PageID.1 Page 1 of 56

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, JERMAINE, CAMPBELL, and LAMONT HEARD, individually, and on behalf of all other similarly situated,

Plaintiffs,

-v-
WILLIS CHAPMAN, Warden, Macomb Correctional Facility; Noah Nagy, Warden, G. Robert Cotton Correctional Facility (JCF); MELINDA BRAMAN, Warden, Parnall Correctional Facility (SMT); Bryan Morrison, Warden Lakeland Correctional Facility (LCF); HEIDI WASHINGTON, Director, Michigan Department of Corrections; sued in their official capacities,

Case No. Hon.

Defendants.

IMMEDIATE RELIEF SOUGHT /

COMPLAINT FOR CLASS CERTIFICATION AND FOR TEMPORARY RESTRAINING ORDER
AND PERMANENT INJUNCTION

Plaintiffs, by and through counsel Daniel E. Manville, Mich. State Univ

Clinical Law Professor, and Kevin Ernst of Ernst Charara & Lovell, PLC, request

that the Court grant an injunction requiring the Defendants to follow the guidelines

1

Case 2:20-cv-11053-MAG-RSW ECF No. 1 filed 04/29/20 PageID.2 Page 2 of 56
for prisons issued by the Center for Disease Control (CDC) during the COID-19
pandemic.
INTRODUCTION
The Middle District Court for the State of Louisiana recently stated:
[T]he exponential growth of the novel coronavirus has resulted in emergency declarations by the President and the Governor, as well as governors of numerous other states. Due to the nature of this virus, the risk of contracting the virus in a prison environment, where at least 23 inmates have already tested positive, poses a sufficiently high risk, rendering this matter ripe for adjudication even though Plaintiff has not contracted the virus. The United States Supreme Court has held that the risk of contracting a serious disease may indeed constitute an unsafe, life-threatening condition that violates the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 33, (1993). Further, the Supreme Court held that it would be odd to den an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing et had happened to them. Id. With the clear danger posed by COVID-19 in the [prison], Plaintiff has adequately demonstrated standing.[1] 1. Plaintiffs, and the proposed class members, all of whom are prisoners under
the jurisdiction of the Michigan Department of Corrections (MDOC), claim that the
failure to follow the CDC s COVID 19 Guidelines for prisons violates their Eighth
Amendment rights by exposing them to substantial risk of illness and death. Social
distancing and hygiene measures are currently the only defense against COVID-19
while in prisons. Those protective measures are exceedingly difficult if not
1 Marlowe v. LeBlanc, CV 18-63-BAJ-EWD, 2020 WL 1955303, at *2 (M.D. La. Apr. 23, 2020).
2

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impossible, in the current environment of a prison, where Plaintiffs share sleeping quarters, toilets, sinks, phones, and showers, eat in communal spaces, and are in close contact with the many other detainees and officers. 2. Prisons provide an ideal environment for an infectious disease to spread. They are designed to keep large numbers of people in relatively small spaces with very little personal space or privacy. Prisons are often filled to prescribed limits, if not over the limits. Thus, the possibility of social distancing is extremely limited to begin with. Despite this, in all Michigan prisons, Defendants are providing very little personal protection equipment and products, if any, to Plaintiffs, and the proposed class members, to safeguard against the spread of the Novel Corona Virus to inmates and prison staff. As of April 23, 2020, this failure has resulted in 1325 inmates testing positive out of the 2381 inmates tested - .55% infection rate of those tested.2 This is more than 2 times the state average for person tested who have serious symptoms.3 Based on prison data, only 13 prisons out of 30 have not had at least one inmate test positive4, most of which are located in the Upper
2 MDOC does not test their own staff. But the agenc isn t testing its own staff, though two Michigan corrections officers have died from the virus. The Detroit News reported that at least 210 of the state s 12,000 corrections staff have tested positive. The department, like most states, relies on staff getting tested elsewhere if they show symptoms. https://www.themarshallproject.org/2020/04/24/these-prisons-are-doing-mass-testing-for-covid19-and-finding-mass-infections
3 https://www.clickondetroit.com/news/michigan/2020/04/09/tracking-michigancovid-19-tests-data/
4 See attached Exhibit 2, https://medium.com/@MichiganDOC/mdoc-takes-steps-to-preventspread-of-coronavirus-covid-19-250f43144337
3

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Pennisula. However, given the lack of random testing, there is no evidence to conclude that the virus is no present in those institutions. As of April 23, there were 30 reported deaths among inmates. MDOC has acknowledged that staff members have also tested positive for COVID-19 and some have died5, yet has done nothing to thoroughly test staff or otherwise prevent them from spreading the deadly virus to inmates. 3. Certain Michigan prisons have recorded high percentages of inmates that have tested positive for COVID-19, such as Macomb Correctional Facility, G. Robert Cotton Correctional Facility, Parnall Correctional Facility, Lakeland Correctional Facilit , and Women s Huron Valle Correctional Facilit . See Exhibit 2. MDOC has not tested the entire population raising concerns that high numbers of inmates are positive, but have not been tested.6 Michigan has tested the entire population of only one prison (Lakeland), unlike other states which have aggressively tested inmate populations.7 At Lakeland, some 800 prisoners, approximately 55% of the inmate population, tested positive; 80% of the prisoners testing positive were

5 See Exhibit 3; id.

6 Other states are performing massive testing of inmates so that they can bring the spread of

COVID-19 under control. However, testing of only inmates will not allow Michigan to control the

spread of COVID-19 because MDOC does not test its officers.

7 See attached Exhibit 4, Marion Correctional Facility, in Ohio, tested its entire prison population

and found that 1,828 inmates

73% of its population

tested positive.

https://www.marionstar.com/story/news/local/2020/04/19/1-800-inmates-marion-correctional-

positive-coronavirus/5163285002/

4

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asympomatic.8 Most of these prisoners are in the high risk population .9 MDOC has confirmed that not all tests results have been returned.10 According to reports, based on the testing results from Lakeland, MDOC will now begin testing all inmates at G. Robert Cotton Correctional Facility the week of April 26, 2020. 4. It is extremely likely that the COVID-19 situation for inmates will get worse, and not better, unless something is done to require Defendants to implement the CDC s guidelines for prisons, especially as they pertain to separating infected individuals, providing personal protective equipment to inmates and staff, ensuring social distancing for housing, feeding and yard, providing for the separation of chronic care inmates and other vulnerable populations, and ensuring sanitization of surfaces that can spread the virus. 5. Despite the ticking time bomb that COVID-19 represents, MDOC has failed to implement necessary or adequate policies and practices throughout its prisons. Plaintiffs have been denied proper and equal access to vital preventative measures to avoid the transmission of COVID-19, in violation of federal law and the United States Constitution. While the MDOC adopted policies in response to
8 https://www.fox17online.com/news/coronavirus/785-inmates-test-positive-for-coronavirus-at-prison
9 According to the Public Relation Person for MDOC, Lakeland houses about 1,400 inmates, half of which Gautz said are over the age of 55 or have chronic health conditions.” https://komonews.com/news/coronavirus/600-inmates-test-positive-for-covid19-in-onemichigan-prison 10 See attached Exhibit 5, https://nbc25news.com/news/coronavirus/600-inmates-test-positivefor-covid19-in-one-michigan-prison
5

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this pandemic, they only encompass some of the guidelines recommended by the CDC while ignoring critical measures of the recommended guidelines for halting the spread of the disease, including widespread testing, social distancing, and, perhaps most importantly, separation of inmates who test positive from those who are not positive. Notably, MDOC has failed to implement or enforce many of the policies it did adopt at different prisons. 6. MDOC s failure is especially harmful to Plaintiffs and the classes they seek to represent. The Lakeland Corrections Facility (LCF) confines many aged and chronic care inmates. LCF houses a large population of inmates that are over 65, have serious pre-existing health conditions, or both. The CDC warns that these are precisely the type of people most at risk for serious illness, or even death, from COVID-19. Yet, MDOC has not taken meaningful measures that will control the spread of COVID-19. 7. In LCF s Housing Unit 2-E, which is a Pole Barn, residents of Unit 2-E were recently told by health service and prison staff that since some of the residents had already tested positive thus exposing the other residents, there was no reason to quarantine the infected inmates from those that had not yet been tested.11 Insead, MDOC has apparently chosen to quarantine entire housing units
11 See attached Exhibit 13, Declaration of Heard, para. 4. 6

Case 2:20-cv-11053-MAG-RSW ECF No. 1 filed 04/29/20 PageID.7 Page 7 of 56
containing both infected and non-infected inmates without separating the known infected population.12 8. MDOC s failures do not just affect inmates. Prison health is community health. An outbreak at any one prison could easily spread to the surrounding communities through prison and medical staff. Time is running out for proper protections to be put into place. Plaintiffs seek immediate relief from this Court before it is too late.
Named Plaintiffs and Factual Allegations 9. Plaintiff Elliott Abrams, 974262, is an inmate presently confined at Macomb Corrections Facility (MRF). At all times relevant, he was confined with MDOC under a criminal sentence issued by a court of the State of Michigan. See attached Exhibit 7. Even though Abrams has a compromised immune system because he had his spleen removed prior to entering the prison system, he is required to share a cell with another inmate. Since his incarceration, MDOC has been aware that he has a compromised immune system.13
12 Counsel Manville was schedule to have legal telephone calls with inmates at the Cotton Prison on April 17 and then another legal call on April 20 at the Parnall Prison. These calls were canceled due to entire housing units at each of the two prisons being placed under quarantine. These cancellations were contrar to MDOC s polic . 13 On April 13, 2020, Abrams filed two grievances as to being subjected to COVID-19. One grievance was addressed to the Warden-Defendant and the other directed at the DirectorDefendant. A response was provided to both grievances. The grievance against the warden was rejected claiming he was following polic , and could not resolve Abrams claim. The grievance against the Director was rejected as being duplicative. Abrams then sought second step grievance forms but has not received such forms yet.
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10. Abrams s parole date is ne t ear. He fears he will not live to see that date. He is forced to share a cell with another inmate with little to no effort to enforce social distancing, with no personal protection equipment, and lives in constant fear he will contract COVID-19. He has seen infected inmates removed from the prison in body bags and fears he might be the next one. 11. Defendants have designated numerous cells at MRF for double occupancy. Each cell includes two desks, two chairs, a bunk bed, and two personal property footlockers. At MRF, some of the cells do not have their own bathrooms. Instead at the beginning of each of the four levels or wings of the prison, there is a community bathroom with three toilet stalls, two urinals, four sinks, and two wall mounted electric hand dryers and two showers stalls. Each of the four wings has two payphones, a drinking fountain, a garbage can, a kiosk and a microwave located by the stairs leading up to the cells. At least 16 inmates are now housed on cots in the dayroom due to overcrowded conditions, and these inmates use the same bathroom, kiosk, microwave, telephone, and chow area as the other inmates. 12. Abrams has observed that commonly used areas are not consistently wiped, disinfected or cleaned. 13. Prison meals are served in common areas where inmates are not required to maintain spacing of six feet while waiting to be served their food. The telephones
8

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are not disinfected after each use and there is no restriction limiting the number of people who can use either of the phones, and they are constantly handled by multiple inmates every waking hour. 14. There is a kiosk room in the unit that contains a JPAY system (similar to a computer which allows inmates to send emails to family members and others) and a store, where twice a month inmates can order items from the prison store to be delivered to the housing unit. Generally, staff will allow only two inmates in the kiosk room at the same time, however, the kiosk room is not sanitized after each use. Inmate porters undertake only one cleaning per each eight hour shift. 15. Each staff member is required to do three shakedowns for each shift worked. Abrams repeatedly observed officers conduct shakedowns of multiple inmates without changing gloves or otherwise disinfecting their hands and persons. 16. Plaintiff Craig Seegmiller, 327625, is an inmates presently confined at G. Robert Cotton Facility (JCF), Jackson, Michigan. At all times relevant he was confined with MDOC under a criminal sentence issued by a court of the State of Michigan. See attached Exhibit 8. 17. Seegmiller is confined in a pole barn at JCF. He is confined in a cubicle with seven other inmates in an area that is approximately 10 by 12 feet. It is physically impossible for eight people to maintain six feet of social distancing in an area measuring 10 x 12 feet. There are a total of 20 cubes in the pole barn, with a total
9

Case 2:20-cv-11053-MAG-RSW ECF No. 1 filed 04/29/20 PageID.10 Page 10 of 56
population of 160 inmates. Each side of the pole barn has 10 cubes. There are two bathrooms on each side of the pole barn. Each bathroom has three shower stalls, three urinals, and four toilets for the 80 inmates in each side. 18. The ceiling in the polebarn is approximate 12 feet high. The divider walls of the cubes are eight feet high, thus allowing for the free flow of air (and potentially coronavirus particles beween cubes 19. There are two JPAY computers, one store kiosk, and five telephones on each side which are shared by the 80 inmates on each particular side. Plaintiff Seegmiller has never observed the phones, the computers or the store sanitized by prison porters or staff after being used by other inmates. Prison staff has made available a limited supply of cleaning materials for each day but these supplies quickly run out and once the daily cleaning supplies are exhausted, none are available until the next day. 20. As of April 20, 2020, five of the inmates in Seegmiller s cube tested positive. However, Seegmiller was never tested and became extremely distressed. After expressing his concerns, he was temporarily moved to a different housing unit for approximately 36 hours, and then returned to the pole barn under the same conditions without being tested.14 He constantly lives in fear that he will die because of the lack
14 Seegmiller filed two grievances. One was against the Warden and the other against Director Washington on April 9, 2020. These grievances were returned to him on April 13, 2020. He filled out and submitted step II s appeals for both grievances on April 17, 2020 but has not received responses.
10

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of treatment and testing provided to inmates even after they have been exposed to inmates with known infections. 21. On April 17, 2020, after several inmates tested positive, JCF staff went through each pole barn and cut the power to ceiling fans, ostensibly to prevent the airborn spread of the coronavirus, however, that was the extent of the protective measures provided by MDOC. Seegmiller was not provided with the ability to social distance and was not proved any PPE or sanitizing products. 22. Plaintiff Robert Reeves, 222810, is also presently confined at JCF, but is not in the pole barns. At all times relevant he was confined with MDOC under a sentence issued by a court of the State of Michigan. See attached Exhibit 9. 23. Prior to his confinement at JCF, Reeves was confined at Parnall Correctional Facility (SMT) in Jackson, Michigan. At SMT, he contracted COVID-19 when he was housed in 58-B 10 block . He was only at Parnall for one month, from February 25, 2020, to March 28, 2020. There, he was confined in a one-man cell that had open bars. There were more than 300 inmates confined in the open-bar cell block with him. These 300 inmates share 13 open showers. Reeves was required to go to chow hall at SMT. Inmates stood in line waiting for food in close proximity to other inmates, and once they got to the chow hall, they sat two at a table, about two feet from each other. Reeves was only given a mask after he tested positive for COVID-19. He was forced into close proximity with other infected inmates prior to testing positive.
11

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24. After Reeves tested positive for COVID-19, the only care he received was a transfer from SMT to JCF, where he was placed in a one-man cell. The next day, another positive inmate was placed in the cell with him. 25. Reeves was given a mask on March 28th, and 16 days later, he still had the same mask. He was told to wash the mask that he has. When he tried to exchange his mask for a new one, staff told him that the don t have e tras. 26. On April 14th, Reeves observed that staff members were not wearing gloves or masks when handing out various items to inmates, despite the known infections 27. JCF K-Unit, where Reeves is placed, appears to be designated for inmates who tested positive for COVID 19. These inmates share the same showers, bathroom, phones, JPAY and kiosks. 28. K-Unit has 88 cells, with two inmates to a cell. Each cell is eleven by eight feet. There are three showers in K-unit, and one inmate is allowed in each shower at a time. Reeves observed the bathroom in K-unit being cleaned only one time per day by an inmate who is positive for COVID-19. 29. There is a nurse in K-unit at all times wearing a mask. The nurse calls each inmate out of their cell every day to take their blood pressure and temperature. Inmates sit in the same chair, and the same medical equipment and supplies are used without being cleaned or disinfected between inmates. The nurses do not change their gloves from inmate to inmate.
12

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30. Reeves has not been given any supplies to clean his cell. There is a mop and broom in K unit for all inmates to use; this is the same mop that is used to clean the bathroom. 31. Inmates are fed in their cells. He has not seen a doctor, nor did he receive medical instructions on what to do if his symptoms get worse, despite complaining of chest pain, coughing up blood, and having problems breathing. Reeves was told it was normal and to just endure it. 32. Because Reeves tested positive for COVID-19, he is not permitted to send kites (internal correspondence), mail, or to file grievances. 33. After 21 days in quarantine at JCF, Reeves was transferred to Gus Harrison in Adrian, Michigan. At Gus Harrison, he is allowed to send out mail and write grievances, but because he keeps being transferred, it is hard to get the grievance responses back from the Grievance Coordinator, or a receipt that the grievance was received. 34. Plaintiff Vincent Glass is also confined at SMT. At all times relevant he was confined with MDOC under a sentence issued by a court of the State of Michigan. See attached Exhibit 11. 35. Glass is confined in 10-block This block is five ( 5 ) floors high, with the back part of the cells part of the exterior walls. This means that the cell fronts are facing each other with a gap of about fort ( 40 ) feet from the south wall to the north inside of the cell block. The cellblock is about a football field long and has
13

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approximately three hundred and sevent ( 370 ) individual cells. Based on its design, there is no method for preventing the spread of the COVID-19. 36. The inmates confined to 10-block are told to social distance themselves from other inmates, but that is not possible. Each cell has bars on the front of it so that inmates are always passing your cell on a gallery that is about three ( 3 ) feet wide. For an inmate to leave his cell and go to base, to go to chow, to take a shower, or to use the telephone, Glass had to go by 10 to 30 inmates who were within two feet of him so he could get to the stairs to go to the base. When Glass would go to the chow hall, there were inmates in the chow hall either eating or waiting to get served and no social distancing was required. There is no distance of si ( 6 ) feet required in the chow hall. 37. Glass was confined on the upper level of 10-Block. To go to chow, the bathroom, the shower, etc., Glass had to pass within close proximity of 10 to 3 inmates. When engaging in these activities, it was all but impossible to maintain six feet of social distancing between other inmates. 38. Glass was told by MDOC officers that Warden-Defendant Melinda Braman approved the placement of COVID 19-positive inmates in 10-block without additional steps to separate and protect 10-block inmates from the known COVID19 positive inmates.
14

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39. Jermaine Campbell, 1745168, is housed at JCF. At all times relevant he was confined with MDOC under a sentence issued by a court of the State of Michigan. See attached Exhibit 12. 40. Campbell has been treating for asthma while housed in MDOC custody and is highly susceptible to severe respiratory complications if infected with COVID-19. 41. Campbell lives in an eight man cube that is 20 by 10 feet. He sleeps within three of his cell mates. He eats in the same area as other inmates and cannot adhere to CDC standards for social distancing. He was given two masks made out of state issued clothing, no replacement masks have been issued, and he has received no other PPE. 42. Campbell is a parole violator, has served his minimum sentence, and is therefore eligible for immediate parole. However, he has not been informed if and when he will be released on parole. 43. Campbell is familiar with DOM 2020-29 or 30 (the MDOC policy for COVID-19) issued by MDOC Director Washington. It is flagrantly being ignored by staff at JCF. 44. Officer Dettloff was confirmed as having COVID-19 on April 18, 2020. Yet Dettloff continued to work with Correction Officers Divish Brown who continued to come to Campbell s unit without PPE. On April 20, 2010, Campbelll and a group of inmates brought this to the attention of Dettloff s supervisor, ARUS Parson. She
15

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stated that these officers do not have to self-quarantine and that dying was part of prisonlife. 45. The attitudes of these prison staff show that the don t care whether inmates live or not. Confronted with such an attitude, Campbell fears for his safety and whether he will live to see the future. 46. Plaintiff Lamont Heard is an inmate presently confined at LCF. At all times relevant he was confined with MDOC under a sentence issued by a court of the State of Michigan. See attached Exhibit 13. 47. Heard is confined in pole barn E-2 at LCF with identical dimensions as those in which Plaintiff Seegmiller is confined, eight men to a 10 12 cube, 20 cubes to each side of the pole barn.. 48. Inmates can leave their cubes starting at 5:50 am and are required to be locked down in the cubes at 11:30 pm. During the time they are not required to be in the cube, the inmates in Unit E-2 are allowed yard privileges for approximately 30 minutes at least 10 times a day. When out of their cubes, no social distancing is enforced. 49. Heard was told by medical staff that since some inmates in Unit 2-E already tested positive and exposed other Unit 2-E inmates, there was no reason to quarantine any of the inmates.
16

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50. Plaintiff Heard was informed by both medical and unit officers not to request medical care unless it was severe. However, when he asked what is considered severe, no one would tell him. Comments like that from staff creates a high level of fear that if you contract COVID-19, it will be too late to have medical staff provide life-saving care.15 51. Heard was given three masks and told that he had to wash them because staff would not provide more masks. Heard s temperature is not regularl taken. 52. Heard has observed prison staff pat down inmates either without gloves or without changing gloves between patting down other inmates.
Named Defendants 53. Defendant Willis Chapman is the Warden at MRF and is responsible for the confinement of Plaintiff Abrams and all other inmates confined there. He is responsible reasonably to ensure the health and safety of the prisoners confined at MRF. 54. Defendant Noah Nagy is the Warden at JCF and is responsible for the confinement of Plaintiff Seegmiller and all other inmates confined there. He is responsible reasonably to ensure the health and safety of the prisoners confined at JCF
15 On April 13, 2020, Heard filed two grievances. One grievance against the Warden for failure to protect against COVID-19 and the other grievance against the Director for her failure to protect against COVID-19. Heard received no response to either grievance.
17

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55. Defendant Melinda Braman is the Warden at SMT and is responsible for the confinement of Plaintiff Reeves and all other inmates confined there. She is responsible reasonably to ensure the health and safety of the prisoners confined at SMT. 56. Defendant Bryan Morrison is the Warden at LCF. He and is responsible for the confinement of Plaintiff Lamont Heard and all other inmates confined there. He is responsible reasonably to ensure the health and safety of the prisoners confined at LCF. 57. Defendant Heidi Washington is the Director of the MDOC. She is responsible for the confinement of all inmates in the State of Michigan and is required by law to provide adequate medical care so that the named plaintiffs and class members lives are not put in jeopardy. 58. Each Defendant is required by the Eighth Amendment to confine Plaintiffs, and the class members, in conditions that do not subject their lives to dangerous conditions that could result in disease, death or other serious medical injuries. 59. Each Defendant is sued in their official capacities only.
JURISDICTION AND VENUE 60. This action arises under the Eighth Amendment to the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is proper in this court pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
18

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61. This Court has jurisdiction over Plaintiffs claims for declarator and
injunctive relief pursuant to 28 U.S.C. § 2201and 2202.
62. Pursuant to Fed. R. Civ. P. 23(b)(2), Plaintiffs seek class certification based
on the method and manner that COVID-19 care is provided to those confined within
the prison system today and in the future.
63. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1) because
Defendant Chapman resides in the Eastern District of Michigan; venue is also proper
pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or
omissions giving rise to Plaintiffs claims occurred in the Eastern District of
Michigan.
EIGHTH AMENDMENT ISSUE OF COVID-19
COVID-19 Is a Deadly Pandemic and a Public Health Emergency 64. Since the end of 2019,16 the Novel Coronavirus that causes Coronavirus Disease 2019 (or COVID-19)17 has ravaged the world, country to country.18 The
16 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, Wall St. J. (Mar. 2020, 11:59 PM), available at www.wsj.com/articles/u-s-coronavirus-cases-top-1-00011583917794 17 The World Health Organization officially adopted the name COVID-19 for the novel coronavirus disease on February 11, 2020, WHO Twitter Post (Feb. 11, 2020), twitter.com/WHO/status/ 1227248333871173632?s=20 18 The first case of COVID-19 outside of China was reported by officials in Thailand on January 8, 2020. See WHO statement on novel coronavirus in Thailand, WHO (Jan. 13, 2020), www.who.int/news-room/detail/13-01-2020-who-statement-on-novel-coronavirus-in-thailand . Over the next several weeks, the outbreak spread to the Republic of Korea, Japan, and Singapore. See Statement on the meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV), WHO (Jan. 23, 2020)
19

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extensive body of evidence regarding COVID-19 demonstrates that it is a highly communicable respiratory virus that spreads through airborne transmission, close contact and touching common surfaces containing the virus. 65. On January 30, 2020, the World Health Organization declared the COVID-19 outbreak a Public Health Emergenc of International Concern as cases had been reported in five WHO regions in one month. 19 The next day, the U.S. Secretary of Health and Human Services declared under Section 319 of the Public Health Service Act (42 U.S.C. § 247d), that COVID-19 present[ed] a Public Health Emergenc in the United States. 20 On March 11, 2020, the World Health Organization announced that the COVID-19 outbreak can be characterized as a pandemic, as the rates of infection continue to rise in many locations around the world and across the United States. 21

www.who.int/news-room/detail/23-01-2020-statement-on-the-meeting-of-the-internationalhealth- regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus(2019-ncov). By January 21, 2020, the first case of COVID-19 in the United States was detected in Washington State. Washington State Department of Health, 2019 Novel Coronavirus Outbreak (COVID-19), www.doh.wa.gov/emergencies/coronavirus. 19 Public Health Emergency of International Concern declared (Jan. 30, 2020), www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen (The WHO s Emergenc Committee noted that earl detection, isolating and treating cases, contact tracing and social distancing measures in line with the level of risk can all work to interrupt virus spread ).

20 Secretary Azar Delivers Remarks on Declaration of Public Health Emergency for 2019 Novel

Coronavirus (Jan. 31, 2020), www.hhs.gov/about/leadership/secretary/speeches/2020-

speeches/secretary-azar-delivers-remarks-on-declaration-of-public-health-emergency-2019-

novel-coronavirus.html; Secretary Azar Declares Public Health Emergency for United

States for 2019 Novel Coronavirus (Jan.

31, 2020),

www.hhs.gov/about/news/2020/01/31/secretary-azar-declares-public-health-emergency-us-

2019-novel- coronavirus.html.

21 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease

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66. On March 10, 2020, Michigan Governor Gretchen Whitmer, under MCL
30.403(4), declared a state of emergenc to mitigate the spread of COVID-19,
protect the public health, and provide essential protections to vulnerable
Michiganders. 22 Subsequently, Governor Whitmer determined on March 13,
2020 that COVID-19 represents a public health emergency and issued another
executive order banning the gathering of all events with over 250 people. 23
Governor Whitmer then issued another Executive Order on March 23, which
provides individuals ma onl leave their home or place of residence under
ver limited circumstances to last at least three weeks.24
67. Governor Whitmer issued Executive Order 2020-29 on March 29, 2020,
directing the MDOC, to implement limited and temporary COVID-19-related
(COVID-19) Outbreak (Mar. 13, 2020), www.whitehouse.gov/presidential-actions/proclamationdeclaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ ; see also WHO Director-General s opening remarks at the media briefing on COVID-19 (Mar. 11, 2020), www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19---11-march-2020 ( WHO has been assessing this outbreak around the clock and we are deeply concerned both by the alarming levels of spread and severity, and by the alarming levels of inaction. We have therefore made the assessment that COVID-19 can be characterized as a pandemic. Pandemic is not a word to use lightly or carelessly. It is a word that, if misused, can cause unreasonable fear, or unjustified acceptance that the fight is over, leading to unnecessary suffering and death. ). 22 See Executive Order 2020-10 (COVID-19) (March 10, 2020), www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521790--,00.html. 23 See Michigan Gov. Whitmer orders ban on all events with over 250 people due to coronavirus, Mar. 13, 2020, www.clickondetroit.com/news/local/2020/03/13/all-michigan-k-12-schools-toclose-due-to-coronavirus-concerns-officials-say/ . 24 See Michigan issues stay-at-home order amid coronavirus: Here s what it means, Mar. 23, 2020, www.clickondetroit.com/news/2020/03/23/michigan-issues-stay-at-home-order-amid coronavirus-heres-what-it-means/
21

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protocols and procedures regarding entry into facilities operated by the Michigan Department of Corrections and transfers to and from the Department s custod . . . and to temporarily suspend certain rules and procedures to facilitate the implementation of those recommendations. 25 68. The Governor ordered MDOC to develop several risk reduction protocols related to COVID-19.
a. These measures include screening individuals based on temperature and travel in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention ( CDC ). EO 202029(1)(a).
b. Developing and implementing protocols for incarcerated persons who display symptoms of COVID-19, including methods for evaluation and processes for testing, notification of the Department of Health and Human Services ( DHHS ), and isolation during testing, while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments. EO 2020-29(1)(d).
25 See Executive Order 2020-29 (COVID-19) (March 29, 2020), www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html .
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c. Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, ke boards, etc.), on a regular and ongoing basis. EO 202029(1)(g).
d. Ensuring access to personal h giene products for incarcerated persons and correctional staff, including soap and water sufficient for regular handwashing. EO 2020-29(1)(h).
e. Posting signage and continuall educating on the importance of social distancing, handwashing, and personal h giene. EO 202029(1)(j).
f. Practicing social distancing in all programs and classroomsmeaning a distance of at least six feet between people in any meeting, classroom or other group. EO 2020-29(1)(k).
g. Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact. EO 2020-29(1)(k).
69. Similarly, on March 13, 2020, Mark Hackel the Executive of Macomb County (where MRF is located) declared a state of emergency to deal with COVID-19 and so that [e]mergenc activates response and recover elements
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of the county's emergency operations plan and directs county resources to be utili ed to the fullest e tent. 26 70. In only a few months, over 2.8 million people worldwide have been diagnosed with COVID-19, and almost 300,000 of those people have died.27 As of the drafting of this complaint, over 1,000,000 Americans have tested positive for COVID-19, while the number of deaths has risen to over 60,000.28 Those numbers, which are widely believed to be dramatically underreported, are growing rapidly every day. There is no vaccine or cure for COVID-19. No one is immune.
COVID-19 Is Easily Transmissible and Will Spread Rapidly in a Prison Environment
71. The number of COVID-19 cases is growing exponentially. 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 pandemic without effective public health intervention, with as many as 1.7 million deaths in the most severe projections. 29
26 See Macomb County declares state of emergency due to COVID-19, March 13, 2020, www.wxyz.com/news/national/coronavirus/macomb-county-declares-state-of-emergency-dueto-covid-19 27 World Health Organization, Corona Virus disease 2019 (COVID-19) Situation Report 69, (Mar. 29, 2020), www.who.int/docs/default-source/coronaviruse/situation-reports/20200329sitrep-69-covid- 19.pdf?sfvrsn=8d6620fa_2. 28 https://coronavirus.jhu.edu/map.html 29 Chas Danner, CDC s Worst-Case Coronavirus Model: 214 Million Infected, 1.7 Million Dead, N.Y. Mag. (Mar. 13, 2020), https://nymag.com/intelligencer/2020/03/cdcs-worst-case-
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72. Moreover, according to leading medical experts and virologists, a second wave of the spread of infection is all but inevitable. 73. COVID-19 is a particularly contagious disease. A recent study showed that the virus could survive for up to three hours in the air, four hours on copper, twenty-four hours on cardboard, and two to three days on plastic and stainless steel- the same type of surfaces inmates come into contact every day in the prison setting.30 Another study of an early cluster of COVID-19 cases in Wuhan, China, revealed the dangers of indirect transmission resulting from infected people contaminating common surfaces- in the study, it was a communal restroom, like the restrooms that MDOC s inmates use.31 74. New research also shows that controlling the spread of COVID-19 is even more difficult because of the prominence of asymptomatic transmissioninfection, transmission by people who are contagious, but exhibit limited or no symptoms, rendering any screening tools dependent on identifying symptomatic behavior ineffective. 32
coronavirus-model-210m-infected-1-7m- dead.html 30 Marilynn Marchione/AP, No vel Coronavirus Can Live on Some Surfaces for Up to 3 Days, New Tests Show. TIME, (Mar. 11, 2020), https://time.com/5801278/coronavirus-stays-on-surfacesdays-tests/.fortunately 31 Cai J, Sun W, Huang J, Gamber M, Wu J, He G. Indirect virus transmission in cluster of COVID19 cases, Wenzhou, China, 2020. 26 Emerg Infect Dis. 6, (2020) https://doi.org/10.3201/eid2606.200412 . 32 Chelsea Ritschel, Coronavirus: Are People Who Are Asymptomatic Still Capable of Spreading COVID-19? Independent (Mar. 15, 2020), https://www.independent.co.uk/life-style/health-andfamilies/coronavirus-symptoms-asymptomatic-covid-19-spread-virus-a9403311.html
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75. COVID-19 has been especially dangerous in areas of close confinement,
such as cruise ships and assisted living facilities. It follows that jails and prisons
are particularly vulnerable to an outbreak. In fact, jails and prisons are at an even
greater risk because of their close quarters and communal living spaces.33
76. E perts predict that [a]ll prisons and jails should anticipate that the
coronavirus will enter their facilit . 34
77. Many jails throughout Michigan and all over the country, and around the
world are releasing people with the aim of preventing massive outbreaks of
severe illness and death from COVID-19.
78. Governor Whitmer issued an E ecutive order to initiate temporar . . .
COVID-19 protocols and enhanced early-release authorization for county jails,
local lockups, and juvenile detention centers. 35 Jails across the Michigan have
released inmates as a result.36
33 Evelyn Cheng and Huileng Tan, China Says More than 500 Cases of the New Coronavirus Stemmed from Prisons, CNBC, (Feb. 20, 2020), https://flipboard.com/article/china-says-morethan-500-cases-of-the-new-coronavirus-stemmed-from-prisons/f-5db96100fa%2Fcnbc.com 34 See Nicole Wetsman, Prisons and jails are vulnerable to COVID-19 outbreaks, The Verge (Mar. 7, 2020), https://flipboard.com/article/china-says-more-than-500-cases-of-the-new-coronavirusstemmed-from-prisons/f-5db96100fa%2Fcnbc.com (quoting Tyler Winkelman, co-director of the Health, Homelessness, and Criminal Justice Lab at the Hennepin Healthcare Research Institute in Minneapolis). 35 See, Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody; temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers, March 10, 2020, https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-523422--,00.html 36 See Hundreds of inmates released from Metro Detroit county jails amid coronavirus (COVID19) outbreak, April 1, 2020, https://www.clickondetroit.com/news/local/2020/04/02/hundreds-of-
26

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79. The CDC recommends the following for virus transmission prevention: a. Wash hands often with soap and water for at least 20 seconds especially after you have been in a public place, or after blowing your nose, coughing, or sneezing. b. If soap and water are not readily available, use a hand sanitizer that contains at least 60% alcohol. Cover all surfaces of your hands and rub them together until they feel dry. c. Stay home if you are sick, except to get medical care. d. After coughing or sneezing, immediately wash your hands with soap and water for at least 20 seconds. If soap and water are not readily available, clean your hands with a hand sanitizer that contains at least 60% alcohol. e. Clean and disinfect frequently touched surfaces daily.37 f. Engage in social distancing.
80. Many of these recommendations like staying home if sick are simply not feasible in a prison. That is all the more reason it is important to take the proper precautions that can be taken.
COVID-19 Poses a High Risk of Serious Illness and Death to Older Adults and Adults with Underlying Medical Conditions.
inmates-released-from-metro-detroit-county-jails-amid-coronavirus-covid-19-outbreak/ 37 How to Protect Yourself Coronavirus Disease 2019 (COVID-19), CDC (Mar. 18, 2020), www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html (last visited Apr. 25, 2020).
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81. COVID-19 is more likely to cause serious illness and death for older adults and those with certain underlying medical conditions, including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke developmental delay, and pregnancy.38 These underlying medical conditions increase the risk of serious COVID- 19 disease for people of any age. For people over the age of 50 or with medical conditions that increase the risk of serious COVID-19 infection, symptoms such as fever, coughing, and shortness of breath can be especially severe. 82. Plaintiffs Abrams and Campbell are typical members of subclass of those inmates who are designated as chronic care inmates due to their high risk of medical complications and the subclass of those confined in a double bunk cell. (Ex. 7, Abrams, ¶ 2; Ex. 19, Hawkins, page 4, ¶¶1-3; Ex. 22, Marr, ¶¶3-4).39
38 The MDOC s healthcare s stem has designated patients who suffer these ailments as Chronic Care patients and can be easily identified from the medical record system. 39 Medical information in this and the paragraphs that follow are drawn from the expert testimony of two medical professionals filed in a recent filed federal case in Washington State, as well the website of the Harvard Medical School. See Expert Declaration of Dr. Marc Stern, Dawson v. Asher, No. 20-0409 (W.D. Wa. filed Mar. 16, 2020), ECF No. 6, https://www.aclu.org/legaldocument/dawson-v-asher-expert-declaration-dr-marc-stern; Expert Declaration of Dr. Robert Greifinger, Dawson v. Asher, No. 20-0409 (W.D. Wa. filed Mar. 16, 2020), ECF No. 4, https://www.aclu.org/legal-document/dawson-v-asher-expert-declaration-dr-robert-greifinger;
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83. The COVID-19 virus can cause severe damage to lung tissue, sometimes leading to a permanent loss of respiratory capacity, and can damage tissues in other vital organs, including the heart and liver. 84. Patients with serious cases of COVID-19 require advanced medical support, including negative pressure ventilation and extracorporeal mechanical oxygenation in intensive care. Patients not killed by serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage and loss of respiratory capacity. 85. Emerging evidence suggests that COVID-19 can also trigger an overresponse 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. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner. 86. Many people infected with the virus, however, are completely asymptomatic carriers. People can be infected with the virus and not display any
Expert Declaration of Dr. Jonathan Golob, Dawson v. Asher, No. 20-0409 (W.D. Wa. filed Mar. 16, 2020), ECF No. 5, https://www.aclu.org/legal-document/dawson-v-asher-expert-declarationdr-jonathan-golob; Coronavirus Resource Center, Harvard Health Publishing, Harvard Medical School (Mar. 27, 2020), https://www.health.harvard.edu/diseases-andconditions/coronavirusresource-center.
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symptoms, or only have very mild symptoms, but still spread the disease to others who may not be as lucky. 87. Most people in high-risk categories who develop serious symptoms will need advanced supportive care requiring highly specialized equipment that is in limited supply, such as ventilator assistance, and a team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. That level of support can quickly exceed local health care resources. 88. Chronic care patients should expect a prolonged recovery, including the need for extensive rehabilitation to accommodate profound reconditioning, loss of digits, neurologic damage, and the loss of respiratory capacity. 89. The infection rate of COVID-19 is at least ten times higher than that of a severe seasonal influenza, even in advanced countries with highly effective health care systems. According to preliminary data from China, a much greater percentage of people in high-risk categories who contracted COVID-19 died than those who were not in high-risk categories.40
40 World Health Organization, Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), at 12 (Feb. 28, 2020), https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: 13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer ); Wei-jie Guan et al., Comorbidity and its impact on 1,590 patients with COVID-19 in China: A Nationwide Analysis, medRxiv, (Feb. 27, 2020) at 5, https://www.who.int/publicationsdetail/report-of-the-who-china-joint-mission-on-coronavirus-disease-2019-(covid-19) (finding
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90. The only known, effective measures to reduce the risk for vulnerable
people of serious illness or death caused by COVID-19 are aggressive social
distancing and heightened attention to hygiene and disinfection measures that
MDOC is making impossible at prisons with double-bunking and prisons with
dormitory settings in pole barns.
CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities
91. Because of this looming disaster, the CDC has published guidance for
correctional and detention facilities to prepare and protect inmates and personnel from the COVID-19 pandemic.41 The CDC s guidance includes the following
advice for preventing the spread of COVID-19 in a correctional or detention
facility:
a. Facilities should ensure availability of sufficient stocks of hygiene
supplies, cleaning supplies, personal protective equipment
( PPE ), and medical supplies (consistent with the healthcare
that even after adjusting for age and smoking status, patients with COVID- 19 and comorbidities of chronic obstructive pulmonary disease, diabetes, hypertension, and malignancy were 1.79 times more likely to be admitted to an ICU, require invasive ventilation, or die, the number for two comorbidities was 2.59); Fei Zhou et al., Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, Lancet (March 11, 2020), tb. 1, www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext (finding that among hospital patients, who tended to be older, of those who had COVID-19 and died, 48% had hypertension, 31% had diabetes, and 24% had coronary heart disease). 41 CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional Detention Facilities, CDC, www.cdc.gov/coronavirus/2019-ncov/hcp/clinicalcriteria (last visited Apr. 25, 2020).
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capabilities of the facility). i. This includes liquid soap, alcohol-based hand sanitizer containing at least 60% alcohol, recommended PPE including facemasks and gloves, and supplies for testing, such as sterile viral transport media and sterile swabs.
b. Facilities should make contingency plans in the event of PPE shortages.
c. Facilities should provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing.
d. Facilities should provide alcohol-based hand sanitizer containing at least 60% alcohol.
e. Facilities should adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response, including cleaning and disinfecting frequently touched surfaces several times per day, such as bathrooms, telephone areas, kiosk areas, and microwave areas, etc.
f. Facilities should encourage all persons in the facility to protect themselves by practicing good cough etiquette and good hand hygiene and avoiding touching of the eyes, nose, or mouth.
32

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g. Facilities should encourage these behaviors by posting signage throughout the facility and communicating the information verbally on a regular basis.
h. Facilities should implement social distancing strategies to increase the physical space between incarcerated persons (ideally 6 feet between all individuals, regardless of the presence of symptoms), such as when feeding in the housing unit and when the inmates are standing in line, waiting to use the showers, waiting to use telephone or the Jpay system. o This should include enforcing increased space between individuals in cells, pole barns, and other places where inmates are confined and, staggering time in recreation spaces, staggering meals and rearranging seating in the dining hall to increase space between individuals, limiting the size of group activities, and rearranging housing spaces to increase space between individuals.
o This should include separating those with chronic care issues from within the present prisons and place them in facilities that have lower risk to exposure to the coronavirus.
33

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i. Facilities should be providing inmates with information and consistent updates about COVID-19 and its symptoms.
The MDOC Has Adopted Grossly Inadequate Polices in Response to the COVID-19 Pandemic 92. While the MDOC has implemented policies in response to the COVID-19 pandemic, these procedures are woefully inadequate and do not comport with man of the CDC s recommendations. While the MDOC issued a Director s Office Memorandum on Management of COVID-19 on April 8, 2020 for all Michigan Correctional Facilities, MDOC s polic does not implement all the CDC Guidelines for prisons. See attached Exhibit 27. 93. For example, the CDC recommends considering rela ing restrictions on allowing alcohol-based sanitizer in the secure setting where security concerns allow. 42 MDOC s polic acknowledges that hand sanitizer is a method for preventing COVID-19, and MDOC is allowing until further notice, alcoholbased hand sanitizer and wipes that are provided to correctional facilities by the Department to be permitted within the secure perimeter of a correctional facility for use by staff. 94. However, staff are not permitted to bring alcohol-based hand sanitizer or wipes through the gate. MDOC still mandates that inmates are not allowed to
42 See note 50, supra. 34

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use any sanitizers and suggest that inmate use soap to wash their hands. But as MDOC s own policies acknowledge, this is not always practical, and thus inmates are at an increased risk of contracting and spreading COVID-19. 95. In addition to being inadequate, some of MDOC s policies are impossibl opaque, further preventing proper precautions from taking place. For example, the CDC guidance e plains that, while difficult, social distancing is a cornerstone to reducing transmission of respiratory diseases such as COVID19. 43 The CDC then provides examples of steps that can be taken in prisons and jails.44 The MDOC s Memorandum, in contrast, states only that facilities should follow social distancing recommendations, including within programing, classrooms, chow lines, staff screenings, office buildings, etc. The MDOC states that there should be a distance of at least six feet between all individuals, but there is no implementation of the policy especially as to housing, chow hall, and exercise areas. Notably, since inmates cannot control the movement and behavior of other inmates, they cannot maintain social distancing without the aid of MDOC staff to enforce it. 96. Inmates are still allowed yard time at certain prisons and also are allowed to gather in the chow hall without social separation. There are no restrictions for
43 Id. 44 Id.
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distancing when it comes to using the bathroom or bunking with other inmates in cubes, cells and other living areas, such as dayrooms, classrooms and gyms. 97. The Director s Memorandum ignores the crucial issue of how the policies are to be implemented.
FACTUAL ALLEGATIONS IN MICHIGAN PRISONS 98. MDOC seems to have entered the beginning stages of full pandemic within its prisons. It has caused fear in the inmates what will happen to them:
Inmate Efren Paredes Jr., an inmate at Lakeland, said the virus has taken a toll on those behind bars. 45The mood around the prison is ver somber. There s a great deal of pain and anxiety people are experiencing during this time, understandably so, 99. Human beings confined inside Michigan prisons sleep within three feet of each other. They are denied medical treatment or must wait several days to receive it, do not have adequate access to soap, and share multiple common areas without adequate supplies to clean them. They are shuffled from housing unit to housing unit with no regard for which people are symptomatic and which are not. The inmates cannot protect themselves, including by practicing social distancing, and they do not have access to the necessary hygiene services and facilities to avoid infection, which puts them at imminent risk of substantial bodily harm and death.

45

https://komonews.com/news/coronavirus/600-inmates-test-positive-for-covid19-in-one-

michigan-prison.

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100. People confined in prisons must be furnished with the basic human needs, one of which is reasonable safet . Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (citations omitted). Yet Plaintiffs, as well as the class and subclasses they represent, all face imminent risk of serious injury or death once they are exposed to COVID19 in the prison. 101. Starkly, in the midst of a public health crisis, the people currently confined with MDOC have no adequate safeguards against the severe threat of this novel coronavirus all they ask is to be treated humanely while they are confined with in the custody of MDOC during this perilous time, without the ability to protect themselves from the virus or to get medical care outside of prison medical providers. 102. Because of the ongoing, s stemic violations of Plaintiffs constitutional rights, Plaintiffs seek class-wide relief requiring Defendants to take basic and necessary steps to safeguard the health of people who, due to the nature of their confinement, are not only at heightened risk of infection and death but are also rendered unable to take the simple steps to protect themselves that have become common place outside of prison. 103. Plaintiffs request that MDOC be ordered to test all inmates, even those who are asymptomatic.
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104. Plaintiffs request that MDOC be ordered to reopen some of the available cell
blocks or prisons and separate those who have tested positive from those who have
not.
105. Plaintiffs also request that those inmates who are medically designated as
chronic care inmates should be placed in cellblocks or prisons with access and
proximity to appropriate intensive care facilities.
106. Plaintiffs are aware that it is the intent of Defendants to open a unit called
Green Oaks facility next door to the Woodland Correctional Facility in Whitmore
Lake. This facility has been closed for a number of years. It is to hold less than 200
inmates. The memorandum issued by prison staff does not designate what inmates
will be confined at Green Oaks, but it is assumed that those who have tested positive
for COVID-19 will be placed there.
107. The below was provided by a whistleblower that works at one of the prisons.
This morning the Department has informed MCO that an additional location will be used to house COVID-19 positive prisoners. It is the vacant Green Oaks facility next door to the Woodland Correctional Facility in Whitmore Lake. They intend to open this location at the end of next week and are currently seeking volunteers statewide to temporarily work at this location. It will house less than 200 prisoners and the officers will work 12 hour shifts with the usual RDO sets that we currently have at other locations. Officers will be provided full PPE at this location. Volunteers will be provided hotel lodging, per diems and travel reimbursement per the policy. Volunteer requests will be screened by the Department and the selection criteria will likely be the current staffing levels of the facility the volunteer is currently at. In addition to seeking volunteers, it is likely that the Department will temporarily reassign officers from surrounding work locations to this
38

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location as was done in the Jackson complex and at Lakeland. These temporary reassignments are authorized under emergency conditions per our contract (Article 4) and Civil Service rules. The target number of officers to work at Green Oaks is 50. I will post the volunteer memo from the Department at the bottom of this update.
108. The problem with this remed is that MDOC has over 1500 inmates that have testified positive, so MDOC will continue to confine the COVID 19 positive inmates with those who are not positive. 109. Plaintiffs believe that the following cell blocks could be opened and used to house infected inmates. Cell blocks 4, 5, 6, 7, 8, 11 and 12 at Jackson Prison. The Standish Correctional facility was closed about 10 years ago, but it is still standing and could be made functional.
Facts from Other Inmates 110. The named Plaintiffs have also gathered factual declarations from other inmates as to their conditions of confinement in relation to the COVID-19.
a. Demonte Anderson is confined in a pole barn at Cotton Prison and states that he was given no cleaning supplies and was not provided social distancing in the pole barn, at chow, or in the yard. See attached Exhibit 17.46
46 The rumor is that within a week or two, JCF (Cotton Prison) will start testing all inmates. 39

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b. Jason Canrell is confined at Oak Correctional Facility in a double bunk cell. There is no social distancing during chow or yard. See attached Exhibit 18.
c. Dax Hawkins is confined at Kinross Correctional Facility in a pole barn and is a Chronic Care inmate. There is no social distancing in the pole barn, at chow, or any place in the pole barn. See attached Exhibit 19.
d. Dwight Henley is confined at Macomb Prison in a two-person cell. The dayroom in the housing unit has been turned into a 16-bed cube and these 16 inmates must use our bathrooms, telephones, kiosks and showers. The officers do pat downs using the same gloves to pat each inmate down. See attached Exhibit 20.
e. Mitchell Hodges is confined at Lakeland Prison in a pole barn.47 Inmates are not engaging in distancing in the pole barn, at meals, and in the yard. See attached Exhibit 21.
f. Trevor Killian is now confined at Gus Harrison Correction Facility. When confined at Parnall Prison and without being furnished PPE, he was forced to clean the gym and weight pit that was being used by those
47 This is the prison that undertook testing of all inmates, and the results from the returned tests, was that 600 inmates had tested positive. See notes 7-9, supra.
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that were tested positive for COVID-19. After being forced to clean the gym he tested positive for COVID-19. See attached Exhibit 22. g. Eugene Marr is confined at Cotton Prison in a pole barn with 160 other inmates. He is designated at a Chronic Care inmate but is provided no separation from the 160 other inmates in the pole barn. See attached Exhibit 23. h. Lu Szenay is confined at the Women s Prison in a two-person cell. The women are not required to social distance from other inmates in the unit she is confined in. See attached Exhibit 24. i. Robert Winburn is confined at the Cotton Prison and is housed in a Pole Barn. There is no attempt at social distancing of the 160 inmates in the pole barn, at chow, or at yard. Medical staff are passing out medications in the pole bar, which requires the inmates to stand in long lines, and the medical staff do not change their masks or gloves when passing medications. See attached Exhibit 25. j. David Lyons is confined at Macomb Prison and on April 16, 2020, was moved to Housing Unit 2, which contained positive tested inmates and those who had not tested positive, such as himself. See attached Exhibit 26. MDOC C fi e e of Positive Tested Inmates in Segregation
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111. At certain prisons, Defendants confined inmates who tested positive for
COVID-19 in segregation, usually in bunk beds in the hallway of these units. This
procedure is contrary to medical experts warnings.
Placement of positive tested inmates in segregation will exacerbate the conditions for spreading COVID-19. Dr. Elizabeth Chiao has opinied that such placement does not per se prevent the spread of COVID-19 virus through the prison. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.[48]
112. This Court should issue an order precluding the confinement of positive tested
inmates in segregation and to require that these inmates be placed in a separate,
medical housing unit.
CLASS ACTION ALLEGATIONS
113. Pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), Plaintiffs bring
this action on behalf of themselves and all similarly situated persons.
114. Plaintiffs propose to represent a class composed of all inmates who currently
are, or who in the future will be, incarcerated with the MDOC, at its different prisons,
48 See attached Exhibit 14, Expert Decl. of Elizabeth Y. Chiao, ¶13, Russell, et al. v. Harris County, Texas, No. 4:19-cv-00226 (EDF No. 32-2 (S.D. Tex. Mar. 27, 2020).
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and who are subjected to the MDOC s policies and practices regarding COVID-19 ( Class ). This present class would be more than 37,000 inmates. 115. Alternately, Plaintiffs seek to represent five subclasses of MDOC s inmates:
A. Those inmates who are Double Bunked in individual cells and are not able to engage in social distancing as required by the CDC guidelines based on the conditions within the housing units.
B. Those inmates who are confined in Pole Barns that have two sections, with each section containing at least 20 cubes, holding 8 inmates in an area of 8 12 .
C. Those inmates who have been designated by medical staff as Chronic Care inmates and according to the CDC are at high risks of severe illnesses from COVID-19 infection, including death these high-risk conditions include: People aged 65 or older; People with chronic lung disease or moderate to severe asthma; People who have serious heart conditions; People who are immunocompromised including cancer treatment; and People of any age with severe obesity (body mass index [BMI] >40) or certain underlying medical conditions, particularly if not
43

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well controlled, such as those with diabetes, renal failure, or liver disease. D. Those inmates confined in open cellblocks. E. Those inmates who have not tested positive who are confined in cell blocks with inmates who have tested positive. 116. All named Plaintiffs are typical members of the Class. 117. Plaintiff Abrams and inmate Cantrell are typical members of the subclass of those inmates who are confined to a two-person cell. (Ex. 7, Abrams, ¶ 3; see also Ex. 18, Cantrell, ¶2). 118. Plaintiffs Abrams and Campbell are typical members of subclass of those inmates who are designated as Chronic Care inmates due to their High-Risk of medical complications and the subclass of those confined in a double bunk cell. (Ex. 7, Abrams, ¶ 2; Ex. 23, Marr, ¶¶3-4). 119. Plaintiffs Seegmiller, Campbell, and Heard are typical members of the subclass of those inmates confined in Pole Barns. (Ex. 8, Seegmiller, ¶ 2; Ex. 12, Cambpell, ¶4; Ex. 13, Heard, ¶2). 120. Plaintiff Reeves is a typical member of the subclass of those confined in an open cell block. (Ex. 9, Reeves, ¶3; Ex. 11, Glass, ¶¶2-6). 121. Both Plaintiff Glass are typical members of the subclass of those inmates confined in an open housing unit that encourages the spread of COVID-19 and where
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staff have placed 29 COVID-19-infected inmates in the same housing unit without providing precautionary measures to those confined in that unit from becoming infected. (Ex. 11, Glass, ¶¶2-4). 122. This action has been brought and may properly be maintained as a class action under Federal law and satisfies numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a). 123. Numerosity: The joinder of each class member would be impracticable because the class is so numerous. The approximate number of Class members exceeds 37,000.
a. The subclass of double bunking would in the thousands. Joining all members of the Class is impracticable due to the size and the fluctuating population of the MDOC.
b. The subclass of those confined in Pole Barns would be 2,000 or more inmates. Joining all members of the Class is impracticable due to the size and the fluctuating population of the MDOC.
c. As to those designated as Chronic Care patients by MDOC, approximately 550 inmates over age of 55 live at LCF. Joining all 550 inmates over age 65 would be impracticable. In addition, some of the housing units at Lakeland are designated as Chronic Care Units .
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Joining all members of the Class is impracticable due to the size and the fluctuating population of the MDOC. d. The subclass of those inmates confined in open cellblocks would be 1,500 or more inmates. Joining all members of the Class is impracticable due to the size and the fluctuating population of the MDOC e. The subclass of those inmates confined in the dayrooms, gyms and classrooms would be over 500 inmates when all prisons are totaled. Joining all members of the Class is impracticable due to the size and the fluctuating population of the MDOC. 124. Commonality: Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class, in that they all have a right to be administered COVID-19 prevention, testing, and treatment measures. The common questions of law and fact include: a. Whether the proposed Class of approximately 37,000 inmates are
being subjected to COVID-19 in an unconstitutional manner; b. Whether Defendants adequately protect the Class and subclasses
from the immediate threat of COVID-19; c. Whether the failure of the Defendants to comply with the CDC s
guidelines for prisons as to COVID-19 imposes a substantial risk of serious harm or death to those confined with MDOC;
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d. Whether the Defendants requirement of two inmates confined to a single cell violates the social separation and creates a substantial risk of injury or death to the Class and subclasses;
e. Whether the Defendants requirement of 8 inmates to be confined to a cube in Pole Barns, with a total confinement of 160 inmates in the Pole Barn, violates the social separation and creates a substantial risk of injury or death to those inmates so confined;
f. Whether Defendants placement of inmates on bunk beds in the day rooms, gym or other rooms where the inmates cannot engage in social separation create a substantial risk of injury or death;
g. Whether the Defendants allow inmates to gather in the chow hall for meals without enforcing social distancing creates a substantial risk of injury or death;
h. Whether the Defendants allow inmates to gather in the yards without enforcing social distancing creates a substantial risk of injury or death;
i. Whether Plaintiffs and the class members Eighth Amendment rights are being violated by Defendants failure to implement adequate procedures and practices to protect the class from COVID-19 in violation of the Eighth Amendment; and
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j. Whether Defendants failure to implement adequate procedures and practices against the COVID-19 virus constitutes cruel and unusual punishment under the Eighth Amendment., including death.
125. Typicality: Plaintiff s claims are t pical and representative of each class and subclass member s claims against Defendants, as identified above. The claims of Plaintiffs and the Class all arise from the same conduct by Defendants and are based not only on identical legal theories, but also seek identical relief. All members of the Class are similarl injured b Defendants wrongful conduct and the harms Plaintiffs suffer are typical of the harms suffered by the Class. Adequacy of Class Counsel: Plaintiffs and their counsel will fairly and adequately represent the interests of the class. Plaintiffs have no interest contrary to those of class members. Plaintiffs class counsel, Daniel E. Manville, is engaged in two other class action against the MDOC s Director: Bownes, et al. v. Washington, et. al., Case No. 2:14-cv- 11691 (E.D. Mich.), Hon. Laurie J. Michelson, and Ackerman, et al., v. Washington, Case No. 4:13-cv-14137 (E.D. Mich.), Hon. Linda V. Parker. Class Counsel Ernst Chara & Lovell are currently engaged in two other class actions, one involving the Michigan Unemployment Insurance Agency Cahoo, et. al. v. SAS Institute, Inc., Case No. 2:17-cv-10657 (E.D. Mich), Hon. David M. Lawson, and one against the Cities of Detroit and Hamtramck, Robertson, e al v. Breakthrough Towing, et al, Case No. 2:19-cv-10266, Hon.
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126. A class action is superior to other available methods for fairly and efficiently adjudicating this controversy, especially since joinder of all Class members is impracticable. 127. Each class member is irreparabl harmed as a result of Defendants wrongful conduct. Litigating this case as a class action will reduce the risk of repetitious litigation relating to the Defendants conduct. 128. Plaintiffs do not seek monetary damages, except as may be incidental to declaratory or injunctive relief.
Exhaustion 129. Pursuant to the Prison Litigation Reform Act (PLRA), MDOC s inmates are required to exhaust the available prison grievance process prior to the filing of a lawsuit. 42 U.S.C. § 1997e(a). 130. The named Plaintiffs in this case filed grievances against their respective warden-Defendants and separate grievances against Defendant- MDOC Director Washington. 131. Prison officials either (1) have not processed the grievances, (2) reject the grievances claiming Defendants are complying with policy, (3) reject the grievances because the inmates are grieving a polic , which is not allowed b MDOC s grievance policy directive49, (4) reject the grievance against the Director by claiming
49 Exhibit 15, Policy Directive 03.02.130, Prisoner/Parolee Grievances, Para. J.8. 49

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it is duplicative of the grievance against the warden, or (5) request more time to provide responses to grievances. 132. If an inmate has tested positive, prison officials refuse to allow the inmate to file a grievance and confiscate all the inmate s property for at least 14 or more days. 133. In Rose v. Blake, 136 S.Ct. 1850, 1858 (2016), the United States Supreme Court recognized that exhaustion is not required if the grievance process is not available. The Court looked to whether the processes were capable of use for the accomplishment of a purpose, and whether the sought-after relief is accessible or ma be obtained Id. at 1858-59 (citing Booth v. Churner, 532 U.S. 731, 738 (2001)). See also Does 8-10 v. Snyder, 945 F.3d 951, 963 (6th Cir. 2019) (holding MDOC s PREA grievance process is, in practice, unavailable ). The manner that the grievance process is functioning now makes the process unavailable. 134. A grievance process in unavailable when a prison office responds that their office does not have the authorit to consider such a claim, (despite what regulations or guidance materials may promise) it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Ross, 136 S. Ct. at 1859. 135. MDOC s grievance polic does not allow an inmate to grieve the content of the policy or procedure except as it was specifically applied to the grievant. Exhibit 15, Grievance Policy, PD 03.02.130, Para. J.8. However, when Plaintiffs attempted
50

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to challenge the social distancing polic , or the lack of PPE or saniti er as it applied to them , their grievances were rejected on the grounds that the were challenging the content of the policy. This Court should find that plaintiffs have exhausted all available remedies in compliance with the PLRA, given the unavailability of a grievance process. 136. In considering when the grievance process is not available when imminent danger exists, Judge Posner stated that [i]f a prisoner has been placed in imminent danger of serious physical injury by an act that violates his constitutional rights, administrative remedies that offer no possible relief in time to prevent the imminent danger from becoming an actual harm can t be thought available. 50 Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) (collecting cases).51 See also Evans v. Saar, 412 F. Supp. 2d 519, 527 (D. Md. 2006) (declining to dismiss for non-e haustion, given shortness of time, where plaintiff challenged the protocol for his impending execution and the grievance process was not complete); Howard v. Ashcroft, 248 F. Supp. 2d 518, 533 34 (M.D. La. 2003) (holding that
50 In Fletcher, Judge Posner found that the prison system had an emergency grievance process that Fletcher failed to use and thus was not subject to imminent danger. Id. at 1174. Michigan s grievance process does not provide for an emergency procedure. 51 In Fletcher, Judge Posner went on to explain when the grievance process becomes available during an imminent danger situation.
If it takes two weeks to exhaust a complaint that the complainant is in danger of being killed tomorrow, there is no possibilit of some relief and so nothing for the prisoner to exhaust. 623 F.3d at 1174.
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prisoner fighting transfer from community corrections to a prison need not exhaust where appeal would take months and prison officials wanted to transfer her despite any pending appeal); Ferguson v. Ashcroft, 248 F. Supp. 2d 547, 563 64 (M.D. La. 2003) (same as Howard); Borgetti v. Bureau of Prisons, 2003 WL 743936, *2 n.2 (N.D. Ill. Feb. 14, 2003) (holding that the court s jurisdiction is secure to decide a case in which the prisoner sought immediate injunctive relief and exhaustion would almost certainly take longer than the remainder of his sentence). 137. The MDOC s grievance process can take from 60-90 days to complete all three steps. Exhibit 9, para. II. B the completion of the MDOC s grievance process, the members of the class or proposed class members could be infected with COVID 19 and/or dead from the complications it causes. 138. All health officials have recognized COVID-19 creates an imminent danger for inmates. Therefore, the named Plaintiffs should not be required to complete the exhaustion of the grievance process when their lives are hanging in the balance. 139. Defendants may argue that the lawsuit must be dismissed because not all named Plaintiffs had exhausted the grievance process. This argument lacks merit. See Foster v. Gueory, 655 F.2d 1319, 1321 22 (D.C. Cir. 1981) (explaining that each individual plaintiff in a class-action suit need not have pursued the available administrative remedies if at least one member of the plaintiff class has met the filing prerequisite (cited in Jackson, 254 F.3d at 269)).
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Conclusion WHEREFORE, Plaintiffs and the class members request that this Court grant the following: A. A Declaratory Judgement that their rights were violated; B. Find that Defendants have violated the Eighth Amendment in providing of medical care as to the COVID-19 virus that all inmates are being subjected to; C. Issue an emergency motion for temporary restraining order and a permanent injunction, requiring Defendants to: 1. Provide testing for all prisoners within 14 days 2. Test all COs, prison staff within 14 days. 3. Provide immediate referral to hospital upon display of severe symptoms for any inmate with a positive test 4. Sanitize all commonly touched areas after every use 5. Immediate stop all inmate and CO transfers except for those related to separating COVID-19 inmates/Cos 6. Make disinfectant supplies available at all times, free of charge 7. Provide instruction materials on proper use of PPE to prevent crosscontamination, especially with gloves and masks
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8. Release lowest-level security inmates to home confinement after quarantine for 14 days
9. Provide and require use of PPE for all inmates 10. Enforce social distancing of at least six feet at all times 11. Frequently communicate to all incarcerated people information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices; 12. Ensure that each incarcerated person receives, free of charge, an individual supply of hand soap and paper towels sufficient to allow frequent hand washing and drying each day; an adequate supply of clean implements for cleaning such as sponges and brushes and disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings; 13. Require that all prison staff wear person protective equipment, including CDC-recommended surgical masks, when interacting with any person or when touching surfaces in cells or common areas; 14. Require that all prison staff wash their hands, apply hand sanitizer containing at least 60% alcohol, or change their gloves both before and after interacting with any person or touching surfaces in cells or common areas;
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15. Take each incarcerated person s temperature dail (with a functioning and properly operated and sanitized thermometer) to identify potential new COVID-19 infections;
16. Assess (through questioning) each incarcerated person daily to identify potential COVID-19 infections;
17. Conduct immediate testing for anyone displaying known symptoms of COVID-19 and quarantine pending results;
18. Ensure that inmates identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video visitation with loved ones, communications with counsel, and personal property;
19. Respond to all emergency (as defined by the medical community) requests for medical attention within an hour;
20. Provide sufficient disinfecting supplies, free of charge, so inmates can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use;
21. Waive all medical co-pays for those experiencing COVID-19-related symptoms;
55

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D. Enter an order and judgment granting reasonable attorne s fees and costs pursuant
to 42 U.S.C. §1988;
E. Order such other and further relief as this Court deems just, proper, and equitable.
Respectfully submitted,
/s/ Daniel E. Manville Daniel Manville (P39731) Counsel for Plaintiffs and the proposed
Class and Subclass Director, Civil Rights Clinic, MI. State University College of Law P.O. Box 1570 East Lansing, Michigan 48823 (517) 432-6866 daniel.manville@law.msu.edu
Kevin Ernst (P44223) Ernst Charara & Lovell, PLC Counsel for Plaintiffs and the proposed
Class and Subclass 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 kevin@ecllawfirm.com
PROOF OF SERVICE
I, Daniel E. Manville certify, under penalty of perjury, that on April 29 , 2020 , I caused a copy of the above document to be served by Email on AG Cori Barkman and Kevin O Dowd, from the Corrections Division, Attorne s Office due to the filing of an emergency motion for temporary restraining order and motion for class certification.
/s/ Daniel E. Manville Daniel E. Manville
56

 
 Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.237 Page 1 of 34

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on behalf of all others similarly situated,

Plaintiffs,

-v-
WILLIS CHAPMAN, Warden, Macomb Correctional Facility; NOAH NAGY, Warden at G. Robert Cotton Correctional Facility (JCF); MELINDA BRAMAN, Warden, Parnall Correctional Facility (SMT); BRYAN MORRISON, Warden Lakeland Correctional Facility (LCF); HEIDI WASHINGTON, Director of the Michigan Department of Corrections, sued in their official capacities only,

Case No. 2:20-cv-11053-MAG-RSW Hon. Mark A. Goldsmith Maj. Judge R. Steven Whalen

Defendants.

PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER & INJUNCTIVE RELIEF
AND BRIEF IN SUPPORT
Plaintiffs, Elliott Abrams, Craig Seegmiller, Vincent Glass, Robert Reeves, and
Lamont Heard, on behalf of themselves and all others similarly situated, by and through
their counsel, Daniel E. Manville, Michigan State University Clinical Law Professor,
hereby move this Court, pursuant to Fed. R. Civ. P. 65, for entry of a Temporary

Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.238 Page 2 of 34
Restraining Order and Injunctive Relief. As demonstrated in the following brief, Defendants have violated the Eighth Amendment to the U.S. Constitution by failing to provide Plaintiffs with reasonably safe living conditions in the face of the current COVID19 pandemic. As a result, Plaintiffs seek entry of a temporary restraining order requiring Defendants to take additional precautions to stem the spread of the virus.

Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.239 Page 3 of 34
CONCISE STATEMENT OF ISSUES PRESENTED Should the Court issue a preliminary injunction and enjoin the Defendants from
subjecting inmates to the COVID-19 virus where it is refusing to comply with CDC Guidelines?
Plaintiffs Answer: Yes.

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CONTROLLING AUTHORITY FOR RELIEF SOUGHT In determining whether to grant an emergency application for a temporary restraining order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id.

Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.241 Page 5 of 34
I) INTRODUCTION The world is in the midst of a global health pandemic. The President has declared a
national emergency. Across the country, 43 states and Washington, D.C. have issued, and in some cases extended, “Shelter-in-Place” Orders. As things stand, COVID-19 has no vaccine, no treatment, and no cure. The only option to keep infections to a minimum in an effort to contain this public health emergency is to practice social distancing, proper hygiene, and intensify cleaning.
Meanwhile, as COVID-19 is spreading wildly across the country, a much quieter outbreak is occurring within the Michigan Department of Corrections (“MDOC”) where inmates remain confined in crowded facilities where social distancing is virtually impossible. As a result, inmates and correctional staff alike are particularly vulnerable to serious illness and potentially even death from the COVID-19 virus.
With this in mind, Plaintiffs seek immediate class-wide relief requiring Defendants to take critical steps to provide reasonably safe living conditions in the face of the COVID19 pandemic. Specifically, Plaintiffs seek changes to MDOC policy, as well as a change in the locations where inmates are kept in custody. These measures are not only in Plaintiffs’ best interests, but also in the best interest of correctional staff and the public at large because further outbreak of this virus will infect scores of individuals across our communities.

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NOTICE OF COMPLIANCE WITH LOCAL RULE 7.1(a_ Local Rule 7.1(a) requires Plaintiffs to ascertain whether this motion will be opposed. However, because this motion is being filed contemporaneously with the Complaint, there is not yet an attorney of record for Defendants in this case. Thus, pursuant to Local Rule 7.1(a)(2)(B), the undersigned counsel certifies that he was not able to obtain concurrence in the relief sought in this motion.
2

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II) STATEMENT OF FACTS A. COVID-19 IS SPREADING RAMPANTLY COVID-19 is spreading exponentially in Michigan and in the United States. The
risk of harm is so outrageous that President Trump proclaimed that the COVID-19 outbreak in the United States constituted a national emergency, beginning March 1, 2020. (Ex. 1, Proclamation 9994).1 As of April 28, 2020, 1,031,290 people in the United States have contracted COVID-19, with 57,043 people dying from the virus – figures that understate its spread, as they include only those who have managed to get tested. (Ex. 2, Worldometer’s COVID-19).2 Because the virus spreads more rapidly when people are in close contact with each other, government officials in forty-three (43) states and Washington, D.C. have issued “stay-at-home” or “shelter-in-place” directives, with exceptions only for essential services like grocery shopping and trips to the pharmacy. (Ex. 3, 43 States Now Have Stay-At-Home Orders).3
Likewise, on March 23, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-21 in response to the COVID-19 outbreak. (Ex. 4, MI Executive Order 2020-21).4 The Order limited gatherings and travel, and required workers who are
1 Proclamation 9994 of March 13, 2020, https://www.federalregister.gov/documents/2020/03/18/202005794/declaring-a-national-emergency-concerning-the-novel-coronavirus-disease-covid-19-outbreak 2 https://www.worldometers.info/coronavirus/country/us/ 3 Silverstein, Jason, “43 States Now Have Stay-At-Home Orders For Coronavirus. These Are The 7 That Don't” (April 6, 2020), CBS News. Available at: https://www.cbsnews.com/news/stay-at-homeorders-states/
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not necessary to sustain or protect life to stay home. (Id.) On April 9, 2020, the Governor reaffirmed the measures set forth in Executive Order 2020-21 and extended their duration to April 30, 2020. (Ex. 5, MI Executive Order 2020-42).5 Indeed, Michigan has become one of the global epicenters of the outbreak with a more than 37,778 reported cases and at least 3,315 deaths reported. (Ex. 6, Michigan Data). 6
B. DBOETDEILNYTIHOANRPMLACES PLAINTIFFS AT IMMINENT RISK OF SUBSTANTIAL Reducing the spread of the virus is especially challenging in prisons. This is due to a number of factors, including confined individuals’ inability to protect themselves through social distancing, lack of medical and hygiene supplies, constant cycling of people through the prisons, and inadequate medical care within the prison itself. Compl. ¶¶ 7-57 and ¶¶ 96-112 In Michigan, as of April 22, 2020, 655 MDOC prisoners have tested positive for COVID-19. (Ex. 6, Michigan Data). This case count places MDOC as the sixth highest “jurisdiction” in the state, only surpassed by Genesee County (1,362), Macomb County (4,628), Oakland County (6,463), Wayne County (6,535) and Detroit City (8,026). (Id.) However, the growing devastation in other prisons around the country is a harbinger for
4 Executive Order 2020-21 (COVID-19), State of Michigan (Mar. 23, 2020) https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626-,00.html) 5 Executive Order 2020-42 (COVID-19), State of Michigan (Apr. 9, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html 6 Michigan Data, State of Michigan (Apr. 22, 2020), https://www.michigan.gov/coronavirus/0,9753,7406-98163_98173---,00.html
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what almost certainly awaits MDOC if immediate safeguards are not enacted. For instance, at the Marion Correction Institution in Marion, Ohio, 1,828 inmates have tested positive, along with 109 staff members. (Ex. 7, Coronavirus in Ohio: More Than 1,800 Inmates at Marion Correctional Test Positive).7
C. SATBAROTAUETTEAGTINEHDSEIFNENCDEOEENRDGARLETGOEAXTPIEMRSPTELSTETMHINEANGVTSE IEMXMPREEDSISAETDE GARNADVEECFFOENCCTEIRVNE Based upon the heightened risk posed by COVID-19 in prisons, public health experts and prison administrators across the country have made it abundantly clear that inmates should be released from detention facilities, not only for their own safety, but also for the safety of others.8 In Michigan, Governor Whitmer has authorized enhanced earlyrelease for county jails, local lockups, and juvenile detention centers in an effort to mitigate

7 Coronavirus in Ohio: More Than 1,800 Inmates at Marion Correctional Test Positive, The Columbus Dispatch (Apr. 19, 2020) https://www.dispatch.com/news/20200419/coronavirus-in-ohio-more-than1800-inmates-at-marion-correctional-test-positive

8 See Ex. 9, Letter from Bd. of Correction of the City of New York to Criminal Justice Leaders (Mar.

21, 2020) (stating: “We urge you to follow your colleagues in Los Angeles County (CA), San Francisco

(CA), Cook County (IL), Autauga County (AL), Augusta County (VA), Allegheny County (PA),

Hamilton County (OH), Harris County (TX), Travis County (TX), and Cuyahoga County (OH), and

take

action

now

to

release

people

from

City

jails.”)https://www1.nyc.gov/assets/boc/downloads/pdf/News/covid-19/Letter-from-BOC-re-NYC-

Jails-and-COVID-19-2020-03-21.pdf ; Ex. 10, Linh Ta, Iowa’s prisons will accelerate release of

approved inmates to mitigate COVID-19, Times Republican (Mar. 23, 2020),

https://www.timesrepublican.com/news/todays-news/2020/03/iowas-prisons-will-accelerate-release-

of-approved-inmates-to-mitigate-covid-19/ (stating, “To mitigate a possible outbreak and create more

room in Iowa’s overcrowded prisons, the Iowa Department of Corrections plans to expedite the release

of about 700 inmates…”); Ex. 11, California Chief Justice Issues Second Advisory on Emergency

Relief Measures (Mar. 20, 2020), https://newsroom.courts.ca.gov/news/california-chief-justice-issues-

second-advisory-on-emergency-relief-measures .

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Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.246 Page 10 of 34
the COVID-19 spread. (Ex. 8, Executive Order No. 2020-29).9 Similarly, Chief Justice Bridget M. McCormack and Executive Director of the Michigan Sheriffs’ Association, Matt Saxton, have issued a joint statement urging judges and sheriffs to “use the statutory authority they have to reduce and suspend jail sentences for people who do not pose a public safety risk[,]… release far more people on their own recognizance while they await their day in court…[a]nd judges should use probation and treatment programs as jail alternatives.” (Ex. 12, Joint Statement).10
The federal government has also acknowledged the grave threat posed by a viral outbreak in prisons and detention centers. Indeed, on March 26, 2020, Attorney General William Barr stated that the Federal Bureau of Prisons is exploring the release of at-risk prisoners to home confinement in order to reduce the overall prison population. (Ex. 13, AG William Barr Pushes Expansion of Home Confinement to Reduce Prison Populations Amid Coronavirus).11 Likewise, DHS’s subject matter experts have stressed that COVID19 is exponentially more likely to spread in “congregate settings,” such as prisons. (Ex.
9 Executive Order No. 2020-29 (Apr. 26, 2020), https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-523422-,00.html 10 Joint Statement (Mar. 26, 2020), https://courts.michigan.gov/NewsEvents/press_releases/Documents/CJ%20and%20MSA%20Joint%20Statement%20draft%202%20(0 03).pdf 11 Alexander Mallin, AG William Barr Pushes Expansion of Home Confinement to Reduce Prison Populations Amid Coronavirus, ABC News (Mar. 26, 2020), https://abcnews.go.com/Politics/agwilliam-barr-pushes-expansion-home-confinement-reduce/story?id=69816504
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14, Letter from Scott A. Allen and Josiah Rich to The Honorable Bennie Thompson at pg. 2, 3, 4, 5, 7).12 As such, “DHS should consider releasing all detainees in high risk medical groups, such as older people and those with chronic disease.” (Id. at 5-6).
Because the virus spreads more rapidly when people are in close contact with each other, the Center for Disease Control (“CDC”) has issued “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.” (Ex. 15, CDC Guidelines).13 The CDC “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.” Id.
The CDC notes that “[t]here 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,

12 Letter from Scott A. Allen and Josiah Rich, to The Honorable Bennie Thompson, Chairman, House

Committee

on

Homeland

Security

(Mar.

19,

2020), https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-Allen-Rich-to-

Congress-Re.html#document/p4/a557238

13 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention (Apr. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html
7

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admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.” Id. at pg. 2. The CDC further notes that “[p]ersons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.” (Id.)
With regard to cleaning, the CDC emphasizes that “[e]ven 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.” Id. at pg. 9. These measures include disinfecting objects and surfaces in common areas and cleaning shared equipment. Id.
In addition to disinfection practices, correctional facilities should also “[r]einforce 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).” Id. at pg. 10. Moreover, inmates should also be provided with no-cost access to: Soap… Running water, and hand drying machines or disposable paper towels for hand washing… Tissues and no touch trash receptacles for disposal. Id.
Most importantly, detention facilities should “[i]mplement social distancing strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms).” Id. at pg. 11. In this
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regard, inmates should be separated in common areas, recreation spaces, fining halls, during group activities, and in their cells. Id.
D. MCODNOTRCOLHTAHSE FSAPRILEEADD OTFOTIHMEPVLIERMUSE.NT APPROPRIATE MEASURES TO The MDOC acknowledges the risks involved and has allegedly enacted a number of measures to protect its inmates. (Ex. 16, MDOC Response and Information on Coronavirus).14 However, even if the guidance set forth by the MDOC were being followed, it is wholly insufficient to adequately shield inmates from the crisis at hand.
1. Inmates Cannot Practice Social Distancing First, social distancing is virtually impossible in a prison setting. (Ex. 17, Glass Decl. at ¶ 3). In some areas, “bunks are separated by less than six (6) feet,” requiring inmates to contravene CDC Guidelines when they sleep. (Ex. 19, Abrams Decl. at ¶ 5). In addition to sleeping, in some facilities, food preparation, service and meals are communal, where inmates sit at tables just feet apart from one another. (Ex. 20, Reeves Decl. at ¶ 5; Ex. 17, Glass Decl. at ¶ 4-6). In others, prison staff makes no effort to ensure that prisoners wear face masks or keep at least six (6) feet when retrieving and returning meal trays. (Ex. 19, Abrams Decl. at ¶ 14). Indeed, MDOC spokesman, Chris Gautz, readily concedes that because inmates eat, sleep and live in closely confined quarters, they cannot achieve the social distancing needed to effectively prevent the spread of COVID-19:
14 MDOC Response and Information on coronavirus (COVID-19), (updated Apr. 16, 2020), https://medium.com/@MichiganDOC/mdoc-takes-steps-to-prevent-spread-of-coronaviruscovid-19-250f43144337
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Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.250 Page 14 of 34
We’ve been practicing social distancing to the extent we can in a prison. Really anything outside of your immediate living area. If you’re in a cell, obviously your bunkmate is going to be within 6 feet of you. (Ex. 21, Michigan Department of Corrections Taking Steps to Curb COVID-19).15
2. Cleaning And Disinfecting Practices Not only do inmates sleep within six feet of each other within their cells, but they also share sinks, toilets, showers, computers, telephones, microwaves, and drinking fountains, with very little disinfection between uses. (Ex. 19, Abrams Decl. at ¶ 6-11 and 16; Ex. 22, Seegmiller Decl. at ¶ 9-10; Ex. 20, Reeves Decl. at ¶ 4). Furthermore, some facilities are still operating a community laundry and most inmates only receive a change of uniform and linens twice a week. (Ex. 19, Abrams Decl. at ¶ 17). Finally, at least one inmate noted that his facility does not maintain a sufficient amount of cleaning supplies so that inmates may regularly disinfect cells, as recommended by CDC Guidelines. (Ex. 19, Abrams Decl. at ¶ 15).
3. Personal Protective Equipment (PPE) Inmates, as a whole, are not being issued facemasks or other forms of PPE. Rather, inmates are only receiving masks after testing positive for COVID-19. (Ex. 20, Reeves Decl. at ¶ 7). Equally concerning is that several inmates have reported both officers and medical staff either not changing dirty PPE after use, or not wearing PPE at all. (Ex. 19,
15 Cody Butler, Michigan Department of Corrections taking steps to curb COVID-19, WILX (Apr. 8, 2020), https://www.wilx.com/content/news/Michigan-Department-of-Corrections-taking-steps-tocurb-COVID-19-569483901.html
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Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.251 Page 15 of 34
Abrams Decl. at ¶ 13; Ex. 17, Glass Decl. at ¶ 7; Ex. 20, Reeves Decl. at ¶ 11; Ex. 23, Heard Decl. at ¶ 7).
According to a survey conducted by Harvard University and the National Commission on Correctional Health Care, who collected data from more than 320 facilities housing approximately 10 percent of the country’s inmates across 47 states (the “Harvard Study”), “The nationwide shortage of personal protective equipment (PPE) as well as ancillary supplies (such as cleaning products and thermometer probes) is also a problem for correctional health care operations.” (Ex. 24, Harvard Study).16
4. Quarantine and Isolation Defendants are not quarantining inmates who have exhibited symptoms or even tested positive for COVID-19. (Ex. 17, Glass Decl. at ¶ 8; Ex. 20, Reeves Decl. at ¶ 7). In fact, in Lakeland Corrections Facility Housing Unit 2-E, which is a Pole Barn, inmates were recently told by health service and prison staff that due to some inmates already testing positive in that unit and the other unit inmates in that unit already being exposed to these positive tested inmates that there was no reason to further quarantine any of
16First Research Findings Measure COVID-19 Prevalence In U.S. Prisons, Jails, Harvard Kennedy School (April 09, 2020), https://www.hks.harvard.edu/faculty-research/policy-topics/fairnessjustice/first-research-findings-measure-covid-19-prevalence
11

Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.252 Page 16 of 34
the inmates. This failure to quarantine inmates is becoming the standard procedure.17 Compl. at Introduction, pg. 4.
5. Adequate Health Care Those who have been exposed to the virus or exhibit symptoms are not properly treated. Robert Reeves, who tested positive around March 28, 2020, is yet to see a physician, nor did he receive any information with regard to worsening symptoms “despite complaining of chest pain, coughing up blood, and having problems breathing.” (Ex. 20, Reeves Decl. at ¶ 19). Rather, he was “just told it was normal and to go through it.” (Id.)
6. Testing Finally, Plaintiffs are seeking implementation of rapid testing as the current protocol is woefully insufficient: If a prisoner has symptoms and meets the criteria for testing, the MDOC will seek permission from the local health department in the county the prison is in to conduct a test utilizing a test kit. A limited number of test kits have distributed to all MDOC facilities, but can only be used after the MDHHS authorizes the test. (Ex. 16, MDOC Response and Information on Coronavirus). Thus, because MDOC cannot provide widespread testing, inmates and employees are entirely unaware about who has actually contracted the disease. This is especially concerning given that prison staff regularly cycles through the facilities. As a result, it is
17 Counsel Manville was schedule to have legal telephone calls with inmates at the Cotton Prison on April 17 and then another legal call on April 20 at the Parnall Prison. These calls were canceled due to entire housing units at each of these two prisons being placed under quarantine.
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Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.253 Page 17 of 34
impossible for inmates to avoid interaction with these individuals who may be carriers of the virus. In fact, among the key findings of the Harvard Study were that correctional staff have a higher infection rate than inmates:
*****
(Ex. 24, Harvard Study). With correctional staff affected, the outbreak then spreads to the staff’s family and
the community. As courts have noted, “[t]he more people we crowd into [a] facility, the more we’re increasing the risk to the community.” United States v. Stephens, No. 15-cr95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020), see Ex. 30.
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E. CONCLUSION
In sum, so long as Plaintiffs are detained, they cannot protect themselves by
practicing social distancing, nor can Defendants provide the sanitization and hygiene
required to avoid infection. Additionally, inmates and staff are not being regularly tested.
For these reasons, Defendants have violated the Eighth Amendment to the U.S.
Constitution by failing to provide Plaintiffs with reasonably safe living conditions. As a
result, Plaintiffs seeks entry of a temporary restraining order requiring Defendants to take
additional precautions to stem the spread of the virus.
III) LAW & ARGUMENT
A. CEXOHUARUTSTIHNGAVPERISINOHNEGRREINETVAPNOCWE EPRROTCEODUPRREOSTECT PRISONERS WHILE
[T]he exponential growth of the novel coronavirus has resulted in emergency declarations by the President and the Governor, as well as governors of numerous other states. Due to the nature of this virus, the Court finds that the risk of contracting the virus in a prison environment, where at least 23 inmates have already tested positive, poses a sufficiently high risk, rendering this matter ripe for adjudication even though Plaintiff has not contracted the virus. The United States Supreme Court has held that the risk of contracting a serious disease may indeed constitute an unsafe, life-threatening condition that violates the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 33, … (1993). Further, the Supreme Court held that 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.” Id. With the clear danger posed by COVID-19 in the [prison], Plaintiff has adequately demonstrated standing. [Marlowe v. LeBlanc, CV 18-63-BAJ-EWD, 2020 WL 1955303, at *2 (M.D. La. Apr. 23, 2020) see Ex. 27.]
When determining whether to grant injunctive relief, Court analyze four (4) factors:
“(1) whether the movant has a strong likelihood of success on the merits; (2) whether the 14

Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.255 Page 19 of 34
movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n., 110 F.3d 318, 322 (6th Cir. 1997). The court must balance each of the four factors and “no single factor is dispositive.” City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750, 754 (E.D. Mich. 2008).
Importantly, a federal courts equitable powers to enjoin unconstitutional prison conditions are not impaired by the Prison Litigation Reform Act’s (“PLRA”) exhaustion requirement. FTC v. Dean Foods Co., 384 U.S. 597 (1966). Indeed, the Supreme Court has long recognized that federal courts possess a “traditional power to issue injunctions to preserve the status quo while administrative proceedings are in progress and prevent impairment of the effective exercise of appellate jurisdiction.” Id. at 604. As explained in Wagner v. Taylor, 836 F.2d 566 (D.C. Cir, 1987), “[i]f [a] court may eventually have jurisdiction of the substantive claim, the court's incidental equitable jurisdiction, despite the agency’s primary jurisdiction, gives the court authority to impose a temporary restraint in order to preserve the status quo pending ripening of the claim for judicial review.” Id. at 571. Accordingly, the Court held that although Title VII complainants must ordinarily exhaust administrative remedies before seeking judicial relief, district courts retain jurisdiction to grant interim injunctive relief where plaintiffs face irreparable injury. Id. at 574-576; See also Jackson v. D.C., 254 F.3d 262, 268 (D.C. Cir.2001) (holding that
15

Case 2:20-cv-11053-MAG-RSW ECF No. 2 filed 04/30/20 PageID.256 Page 20 of 34
that “the PLRA contains nothing expressly foreclosing courts from exercising their traditional equitable power to issue injunctions to prevent irreparable injury pending exhaustion of administrative remedies.”); Marlowe v. LeBlanc, CV 18-63-BAJ-EWD, 2020 WL 1955303, at *2 (M.D. La. Apr. 23, 2020) (cited Jackson, COVIC-19 prison case); Foster v. Gueory, 655 F.2d 1319, 1321–22 (D.C.Cir.1981) (explaining that each individual plaintiff in a class-action suit need not have pursued the available administrative remedies “if at least one member of the plaintiff class has met the filing prerequisite.”)
B. PDLEAFIENNTDIAFFNSTSAARREE VLIIOKLEALTYINTGOTHSEUIRCCEEIEGDHTOH NAMTEHNEDMMENETRIRTISGHBTESCAUSE Plaintiffs have retained two experts in this lawsuit. Both Dr. Adam Lauring and Dr. Jeremy Young, are infectious disease specialists. The report by Dr. Lauring is attached as Ex. 25, along with his CV, and the report of Dr. Young is attached as Ex. 26, along with his CV. Both experts are aware of the risk posed by infectious diseases in prisons is significantly higher than in the community, “both in terms of multiple risks of transmission and exposure to individuals who become infected.” Ex. 25, at para. 1; Ex. 36, at para. 5. There is also the issue of adequate of cleaning supplies being provided to inmates for self-cleaning and the cleaning of surfaces. Id. As Dr. Lauring stated based on his review of some of the declaration of named Plaintiffs:
The declarants attested to the fact that individuals confined have limited access to disinfectant, if at all, or basic cleaning supplies with which to clean their shared cells, shared living quarters, common areas, or hightouch surfaces. One declarant describes his only cleaning utensil as a mop. High-touch surfaces, such as light switches, door and sink knobs,
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telephones, tables, etc., should be sanitized after each use. Failure to properly sanitize shared spaces, common areas, and high- touch surfaces that detained individuals heavily use, seriously increases the risk of the spread of COVID-19 and demonstrates the MDOC’s failure to take the most fundamental precautions for preventing the spread of the disease.
Ex. 25, at para. 33.
Based on the housing situation in Michigan prison system, “it is nearly impossible
for jails and prisons to provide the atmosphere of “shelter in place” or “stay at home”
social distancing, given the number of individuals that work in and are housed in these
facilities in the current system.” Ex. 25, para. 26.
These experts are familiar with prison systems and how inmates are confined
within the housing units. They both are certain that the spread of COVID-19 will soon
reach the pandemic levels within the Michigan prison system. “[T]he growing
devastation in other prisons around the country is a harbinger for what almost certainly
awaits MDOC if immediate safeguards are not enacted.” Ex. 29, Para. 12.
After his review of the declarations and numerous other documents, Dr. Young
found that
Based on my understanding of the Lakeland Correctional Facility (LCF), my review of relevant materials, my experience working on public health in prisons and other correctional facilities, and my review of the relevant literature, it is my opinion that LCF has failed to implement infection control procedures sufficient to prevent and manage a COVID-19 outbreak. The current infection control measures in place to reduce the spread of COVID-19 at LCF are grossly inadequate, particularly considering its vulnerable population. My understanding is that many other MDOC facilities, not just LCF, are not following the appropriate measures of quarantine, social distancing, and hand hygiene necessary to
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protect inmates. These MDOC facilities include, but appear to be not limited to: Macomb Correctional Facility (MRF), G. Robert Cotton Correctional Facility (JCF), and Parnall Correctional Facility (SMT). This could result in severe harm to detained individuals, prison staff, and the broader community. The reasons for this conclusion are detailed below. Ex. 26, at para. 22. Both experts recommended similar steps MDOC should undertake to prevent a pandemic that can cause the deaths of many inmates and staff. These recommendations are contained in the relief section of this complaint, so they need not be repeated here. Probably the MOST important recommendation made by these experts is that MDOC must act NOW. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in this facility is a matter of days, not weeks.
Ex. 25, Lauring, at para. 42. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in MDOC facilities is a matter of days, not weeks. This is an imminent threat to inmates, correctional employees and their families, and the greater community.
Ex. 26, Young, at para. 28. To demonstrate a violation of the Eighth Amendment, convicted prisoners must
show that defendants were deliberately indifferent to “a substantial risk of serious harm” and that they disregarded that risk by failing to take reasonable measures. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Under this rubric, there is both an objective and a subjective component. Id. at 835-38.
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1. Objective Risk of Harm To satisfy the objective component, the Plaintiffs must demonstrate that the constitutional deprivation was “objectively, ‘sufficiently serious.” Id. at 837-838, 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). As the Court noted, “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.” Id. “Objectively, the health risks posed by COVID-19 are abundantly clear.” Awshana, et al. v. Adducci, No. 20-10699, 2020 WL 1808906, at *7 (E.D. Mich. Apr. 9, 2020), see Ex. 31. Indeed, federal courts from coast to coast, including several jurists in this very district, have routinely recognized that “[d]etention exacerbates the threat of contracting COVID-19.” United States v. Patino, Case No. 18-20451, 2020 WL 1676766, at *3 (E.D. Mich. Apr. 6, 2020), see Ex. 32; United States v. Kennedy, Case No. 18-20315, 2020 WL 1493481, at *2 (E.D. Mich. Mar. 27, 2020) (describing “heightened risk of danger to detainees” noted by the CDC, because of “low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational
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environments, inability of most patients to leave the facility, and limited ability of
incarcerated/detained persons to exercise effective disease prevention measures (e.g.,
social distancing and frequent handwashing”, see Ex. 33; Miller v. United States, Case No.
16-20222-1, 2020 WL 1814084, at *3 (E.D. Mich. Apr. 9, 2020) (“While the COVID-19
pandemic is devastating in every region it invades, prison populations are subject to
heightened vulnerability”), see Ex. 34; Malam v. Adducci, No. 20-10829, 2020 WL
1672662 (E.D. Mich. Apr. 6, 2020) (Granting the temporary restraining order and ordering
immediate release from ICE custody”), see Ex. 35.18
The foregoing line of precedent reflects the emerging judicial consensus that the
close proximity in detention facilities and the medical risks of the COVID-19 virus
combine to present an objectively sufficiently serious medical risk to all inmates. Indeed,
18 See also Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877, at *1 (9th Cir. Mar. 24, 2020) (sua sponte ordering immediate release of immigrant petitioner “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers”), see Ex. 39; United States v. Muniz, 2020 WL 1540325, at *1 (S.D. Tex. March 30, 2020) (Granting Defendant’s motion for compassionate release, noting “news reports of the virus’s spread in detention centers within the United States … demonstrate that individuals housed within our prison systems nonetheless remain particularly vulnerable to infection [from COVID-19].”) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting, “By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.”), see Ex. 36; United States v. Stephens, No. 15-cr-95, 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, recognizing that “inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”), Ex. 30; Thakker v. Doll, No. 20-cv-480, 2020 WL 1671563, at *6 (M.D. Pa. Mar. 31, 2020) (The Court explained that “[s]ocial distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19” and that the petitioners had shown that, “despite their best efforts, they cannot practice these effective preventative measures in the Facilities.”) Ex. 29.
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CDC Guidelines quite clearly reflect that COVID-19 is a highly contagious virus and have published a twenty-six (26) page manual to curb the spread of the contagion. (Ex. 15, CDC Guidelines). Those who have been infected with the virus may not become symptomatic for up to fourteen days. (Id. at 11). In light of these facts and the present lack of a vaccine or cure for the virus, frequent handwashing, social distancing, sanitation, and the use of PPE are the only available methods to protect against coronavirus infection. (Id. at 9-13).
However, affidavits submitted by Plaintiffs illustrates that inmates are being housed in congregate living situations as there are no restrictions when it comes to using the bathroom, bunking, and gathering in the cafeteria. (Ex. 17, Glass Decl. at ¶ 3-6; Ex. 20, Reeves Decl. at ¶ 5; Ex. 19, Abrams Decl. at ¶ 5 and 14). The MDOC has actually acknowledged this point, stating: “If you’re in a cell, obviously your bunkmate is going to be within 6 feet of you.” (Ex. 21, Michigan Department of Corrections Taking Steps to Curb COVID-19).19 The affidavits also reflect that inmates currently lack the means to attempt to protect themselves from a potential coronavirus infection, such as an adequate supplyof soap, cleaning supplies, or with PPE such as facemasks. (Ex. 19, Abrams Decl. at ¶ 6-11 and 13-17; Ex. 22, Seegmiller Decl. at ¶ 9-10; Ex. 20, Reeves Decl. at ¶ 4, 7, and 11; Ex. 17, Glass Decl. at ¶ 7; Ex. 23, Heard Decl. at ¶ 7). Finally, the MDOC is not quarantining inmates who have exhibited symptoms, providing adequate medical
19 Cody Butler, Michigan Department of Corrections taking steps to curb COVID-19, WILX (Apr. 8, 2020), https://www.wilx.com/content/news/Michigan-Department-of-Corrections-taking-steps-tocurb-COVID-19-569483901.html
21

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treatment when they exhibit symptoms and screening its population to identify, and separate, infected inmates. (Compl. at Introduction, pg. 4; Ex. 17, Glass Decl. at ¶ 8; Ex. 20, Reeves Decl. at ¶ 7 and 19; Ex. 16, MDOC Response and Information on Coronavirus). When this compilation of evidence is taken together, the MDOC conditions significantly increase the risk that inmates will contract and spread a highly contagious, life-threatening, virus with no vaccine, effective treatment, or cure. See Coronel v. Decker, No. 20-cv-2472, 2020 WL 1487274 at *5 (S.D.N.Y. Mar. 27, 2020) (Holding that the correctional facilities measures “do nothing to alleviate the specific, serious, and unmet medical needs of… [inmates].”); see also Basank v. Decker, No. 20-CV- 2518, 2020 U.S. Dist. LEXIS 53191, 2020 WL 1481503, at *5) (S.D.N.Y. Mar. 26, 2020) (Holding that the general measures were “patently insufficient” to protect any inmates from infection absent “enforcement of requisite social distancing.”), see Ex. 37.
Moreover, 43 states and Washington, D.C. have issued “shelter-in-place” directives, closing public schools and non-essential businesses, banning people from eating in restaurants or even congregating in small groups, and requiring all residents to stay in their homes unless it is absolutely necessary to leave. (Ex. 3, 43 States Now Have Stay-At-Home Orders). Even when they leave, people are advised to stay at least six feet from others, wear masks, avoid touching their faces, and routinely wash/sanitize their hands. The message is clear: the risk of contracting COVID-19 is objectively unprecedented.
As the Court explained in Helling, the Government violates the Eighth Amendment 22

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when it confines a prison inmate in unsafe conditions and “ignore[s] a condition of confinement that is sure or very likely to cause serious illness.” Id. at 32. In recognition that Plaintiffs cannot maintain the necessary distance from their fellow inmates, nor do they have access to the requisite supplies to adhere to the government’s hygiene guidelines for preventing infection, Plaintiffs have shown a reasonable likelihood of success on their contention that current MDOC conditions creates an objectively substantial risk of serious harm in violation of the Eighth Amendment.
2. Subjective Indifference The subjective component requires Plaintiffs to show that (1) “the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner,” (2) the official “did in fact draw the inference,” and (3) the official “then disregarded that risk.” Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir.2014). “Because government officials do not readily admit the subjective component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence....” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009) (brackets, citation, and internal quotation marks omitted). Here, in light of the statistical evidence it cannot be seriously disputed that government officials, including Defendants, are subjectively aware of the risks posed by COVID-19. Again, as of April 22, 2020, 655 MDOC prisoners have tested positive for COVID-19, placing it as the sixth highest “jurisdiction” in the state. (Ex. 6, Michigan
23

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Data). The disparity between MDOC and other jurisdictions clearly supports the proposition that Defendants have been made well aware that prison conditions facilitate the spread of COVID-19 and exacerbate the risk of infection for prison inmates.
In addition to the empirical data, Governor Whitmer has implemented Executive Order 2020-29, the Michigan Sheriffs’ Association has issued a “Joint Statement,” and the CDC has published formal Guidelines, all directly aimed at safety within correctional institutions. (Ex. 8, Executive Order No. 2020-29; Ex. 12, Joint Statement; Ex. 15, CDC Guidelines). In fact, the MDOC’s own publications emphasize awareness of the COVID19 outbreak. (Ex. 16, MDOC Response and Information on Coronavirus (COVID-19).
The list of reasonable measures to prevent the spread of COVID-19 is well delineated and publicized: “[s]ocial distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19.” Thakker v. Doll, No. 20-cv-480, 2020 WL 1671563 at *8. (M.D. Pa. Mar. 31, 2020), see Ex. 29. The CDC has stated that social distancing of at least six feet at all times is the “cornerstone of reducing transmission” of COVID-19 within detention facilities, is pushing facilities to “[p]rovide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing,” and is advising that facilities must, “[s]everal times a day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas.” (Ex. 15, CDC Guidelines at pg. 4, 8 - 10).
Despite this knowledge, as set forth in the prior section of this briefing, Defendants 24

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are disregarding the grave risk posed by COVID-19 by failing to provide Plaintiffs with adequate space and cleaning/disinfecting supplies necessary to allow staff and inmates to remain safe. Nor have Defendants provided timely and adequate medical care to identify, isolate, and treat people who develop symptoms. As a result, the entire class has a substantial risk of contracting COVID-19.
In sum, COVID-19 is a threat to Plaintiffs’ health and safety of a magnitude unseen in history. By failing to implement basic measures recommended by healthcare experts, the CDC, and Governor Whitmer - including access to basic medical screening and treatment protocols for infectious disease, providing adequate hygiene supplies, and giving people sufficient space to social distance – Defendants are knowingly exposing Plaintiffs, correctional staff and the public at large to the lethal virus in violation of the Eighth Amendment. Accordingly, Plaintiffs have shown that they are likely to succeed on the merits of their Eighth Amendment claims.
C. PRLEALINETFIFFS WILL SUFFER IRREPARABLE HARM ABSENT EMERGENCY An injury will be deemed irreparable when it “is not fully compensable by monetary damages or [the] nature of the loss would make damages hard to calculate.” S. Glazer’s Distributors of Ohio v. Great Lakes Brewing Co., 860 F. 3d 844, 852 (6th Cir. 2017). Importantly, “when reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438, 445 (6th Cir. 2003) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
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In this case, Plaintiffs will suffer irreparable harm without a temporary restraining order. First and foremost, COVID-19 infection makes many people extremely ill and, in some people, it can be fatal. As of April 22, 2020, 198,668 people globally have been mortally injured as a result of the virus. (Ex. 28, World Health Organization, Situation Report – 93). Similarly, as of April 22, 2020, 655 MDOC inmates have tested positive for COVID-19, with 25 fatalities. (Ex. 6, Michigan Data). Indeed, there is no injury that is more irreparable than death. See In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985) (Where, as here, Plaintiffs demonstrate “irreparable harm which decidedly outweighs any potential harm to the defendant,” the “degree of likelihood of success required” is less, and a plaintiff need only “serious questions going to the merits.”)
Moreover, the best option to keep infections to a minimum is to practice social distancing. However, the MDOC readily concedes that social distancing is not feasible: “If you’re in a cell, obviously your bunkmate is going to be within 6 feet of you.” (Ex. 21, Michigan Department of Corrections Taking Steps to Curb COVID-19). Thus, these grave risks to health are not an insignificant possibility for the Plaintiffs, most of whom have not been given sufficient soap, sanitizing agents, cleaning products, let alone PPE. As the Supreme Court aptly noted in Helling:
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. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Helling, 509 U.S. at 33; Wilson v. Gordon, 822 F.3d 934, 958 (6th Cir. 2016) (holding that
26

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delay in medical treatment can constitute irreparable injury and noting that “[c]ourts routinely uphold preliminary injunctions where the alleged irreparable harm involves delay in or inability to obtain medical services”).
As such, being compelled to endure a highly contagious and deadly virus that has no vaccine, no treatment, and no cure, without appropriate lifesaving measures, readily satisfies irreparable injury threshold.
D. THE RPUEBQLUIECSITNETDEIRNEJSUTNACTNIDONBALANCE OF EQUITIES WEIGH IN FAVOR OF The final factor to be considered in determining whether to enjoin Defendants is a balancing of the equities and determination of whether the public interest would be served from the issuance of an injunction. See Nken v. Holder, 556 U.S. 418, 435 (2009) (holding that where the Government is the non-moving party, the third and fourth factors generally “merge” into one: “Once an applicant satisfies the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party.”); Malam, No. 20-10829, 2020 WL 1672662, at *13 (stating that “the final two factors - the balance of equities and the public interest – merge, because ‘the government’s interest is the public interest.’”). This factor, too, points decidedly in Plaintiffs’ favor. First and foremost, the Sixth Circuit has squarely held that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir.1994). Consequently, issuance of an injunction would serve the public interest as it would require the Defendants to
27

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comply with CDC Guidelines and remedy the Eighth Amendment violation of Plaintiffs’
constitutional rights.
Additionally, issuance of the injunction will slow the spread of the COVID-19 virus.
As a result, Plaintiffs, prison staff and prison staff families will be protected from
unnecessary exposure which could potentially result in serious illness and/or death. On the
other hand, if MDOC continues the inadequate practices of double bunking without
allowing inmates to “social distance” or ignoring basic CDC guidelines, the experts opine
that the loses will be of incalculable quantity and duration. Plaintiffs’ requested injunctive
relief are now common-place in the free world and there is no reason they cannot be more
frequently and expeditiously administered in prison.
Finally, the public interest is also best served by issuance of the injunction as it will
alleviate the burden on local communities and health care infrastructure where the
detention facilities are located. As one court wisely noted:
a COVID-19 outbreak at a detention facility could result in multiple detainees- five, ten or more- being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm ventilator resources, those ventilators become unavailable for all the usual critical illnesses. And ventilators used to treat detainees cannot be used to treat others who contract the virus. . . . In the alternate scenario where detainees are either confined in conditions facilitating ‘social distancing’ or are released, the tinderbox scenario of a large cohort of people getting sick all at once is less likely to occur, and the peak volume of patients hitting the community hospital would level out.
Jones v. Wolf, Case No. 20-361, 2020 WL 1643857, at *13 (W.D.N.Y. Apr. 2, 2020)
(internal citations and quotations omitted), see Ex. 38. 28

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On the other hand, if the Defendants are directed to become compliant with CDC Guidelines, then the only potential harm is economic: prison staff may have to expend additional time, and the state may have to expend additional money, to provide the information, hygiene products, cleaning agents, and medical treatment necessary to kill the virus. However, the challenges presented by a financial investment does not mean that constitutional protections fall by the wayside. Indeed, government officials are bound by constitutional requirements even when they are dealing with difficult and unfamiliar challenges to public health and safety. The government has chosen to incarcerate Plaintiffs. By making this decision, the government takes on an obligation to protect their health and safety. In turn, Defendants will also be safeguarding the health and safety of Defendants themselves, their families, prison staff and the community at large.
Ultimately, the financial burden required to reduce the substantial risk that Plaintiffs will be exposed to a deadly disease does not tip the balance in Defendants’ favor because “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc., 23 F.3d at 1079. Accordingly, the public interest would be served by issuance of a preliminary injunction requiring Defendants to implement constitutionally adequate measures to prevent the spread of COVID-19 in the MDOC. IV) CONCLUSION
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For the foregoing reasons, Plaintiffs respectfully request that this Court GRANT this motion and issue a temporary restraining order and preliminary injunction ordering the relief requested in their motion.
Respectfully submitted,
/s/ Daniel E. Manville Daniel Manville (P39731) Director, Civil Rights Clinic, MI. State University College of Law P.O. Box 1570 East Lansing, Michigan 48823 (517) 432-6866 daniel.manville@law.msu.edu
PROOF OF SERVICE I, Daniel E. Manville certify, under penalty of perjury, that on April 30, 2020 , I caused a copy of the above document to be served by Email on CORI BARKMAN AND DEVIN O’DOWD, AGs in the Corrections Division, Attorney’s Office due to the filing of an emergency motion for temporary restraining order and motion for class certification.
/s/ Daniel E. Manville Daniel E. Manville
30

 
 Case 2:20-cv-11053-MAG-RSW ECF No. 41 filed 05/30/20 PageID.2558 Page 1 of 4

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, et al.,

Plaintiffs,

-vWILLIS CHAPMAN, et al.,

Case No. 20-cv-11053 Hon. Mark A. Goldsmith Mag. Judge R. Steven Whalen

Defendants. /

EMERGENCY MOTIONS FOR EXPEDITED DISCOVERY AND
EXPEDITED EVIDENTIARY HEARING AND
BRIEF IN SUPPORT

Plaintiffs, through Counsel Daniel E. Manville, Kevin Ernst, and Hannah

Fielstra, request this Court to grant these motions for limited expedited discovery

and to set a date and time for an evidentiary hearing, and state in support.

1. Plaintiffs sought concurrence in these motions and have not received a

response by the time of the filing of these motions. In the request for concurrence,

Plaintiffs stated that if Defendants will agree to such motion, a notice of withdrawal

and a stipulation and order will be submitted to this Court.

2. Plaintiffs are requesting that these motions be heard on an emergency basis

due to the life and death situation that COVID-19 can impose on those 39,000

inmates confined within the prison system of Michigan.

Case 2:20-cv-11053-MAG-RSW ECF No. 41 filed 05/30/20 PageID.2559 Page 2 of 4
3. Plaintiffs are requesting this Court to set an expedited scheduling order as to the holding of an evidentiary hearing on their injunctive motion (ECF No. 22). 4. This matter was referred to a settlement conference but not a single issued could be resolved through that process. 5. Plaintiffs and the proposed class are being subjected hourly to potential serious long-term medical complications and, if not, death, and now that it is clear this matter cannot be resolved through settlement, Plaintiffs are requesting relief of an emergency nature. 6. In preparation for an evidentiary hearing, Plaintiffs are requesting limited discovery in this matter. The expedited discovery is needed in the following areas:
-Depositions of Defendants Washington and Dr. McIntrye Chief Medical Officer; -Any writings relating to the grievance process that were issued since December 1, 2019 to present; -All writings in relation to the testing of prison staff; -A listing of the designation of pole barns, the number of cubes in each, the number of bunk beds in each, and the number of inmates in each;

Case 2:20-cv-11053-MAG-RSW ECF No. 41 filed 05/30/20 PageID.2560 Page 3 of 4
-A list of witnesses to testify at the evidentiary hearing and a summary of their testimony and the providing of any documents to be used with that witness; -An entry on land as to the following cellblocks at Jackson Prison, Cellblocks 3, 4, 5, 6, 7, 8, 11, 12, the prior infirmary / hospital located inside Jackson, and any other areas inside Jackson prison, including use of a 35mm camera for still pictures and a video camera; -To be allowed to bring one or more experts as to entry on land for review and possible testing of water, heating/cooling system, plumbings, etc. 7. This limited discovery is needed so that Plaintiffs can obtain and present evidence to this Court as to the unconstitutional conditions that exist within the MDOC and the available remedies as to social distancing. 8. Only through this limited expedited discovery can the Plaintiffs present a meaningful and informative evidentiary hearing. 9. Plaintiffs are asking this Court to order that Defendants produce the documents requests within 7 days of the delivery of the discovery requests. 10. Plaintiffs are asking that the depositions of these above identified individuals be started within 10 days of the discovery requests and be completed within 3 days thereafter.

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WHEREFORE, this Court should grant this Motion and set a date and time for
an evidentiary hearing, and grant an expedited discovery schedule as set forth above.
Respectfully submitted,
/s/ Daniel E. Manville Daniel Manville (P39731) Director, Civil Rights Clinic, MI. State University College of Law P.O. Box 1570 East Lansing, Michigan 48823 (517) 432-6866 daniel.manville@law.msu.edu
Certificate of Service I Daniel E. Manville, under penalty of perjury states that the above document was served by ECF system on counsel for the defendants on May 30, 2020.
s/ Daniel E. Manville

 
 Case 2:20-cv-11053-MAG-RSW ECF No. 44 filed 06/01/20 PageID.2568 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, et al.,

Plaintiffs, v. WILLIS CHAPMAN, et al.,

Case No. 20-11053 HON. MARK A. GOLDSMITH

Defendants. ______________________________/

ORDER REQUIRING RESPONSE TO EMERGENCY MOTIONS (Dkts. 41, 42), GRANTING MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF (Dkt. 32), AND GRANTING IN PART DEFENDANTS’ MOTION FOR LEAVE TO FILE A SUR-REPLY (Dkt. 35)

The Court held a telephonic status conference on June 1, 2020, to discuss Plaintiffs’

emergency motions (Dkts. 41, 42). Based on the discussions at the conference, Defendants must

file responses to the emergency motion by noon on June 2, 2020.

The Court has also reviewed the motion to file an amicus brief (Dkt. 32). Plaintiffs

concurred in the motion. Defendants did not concur in the motion to file an amicus brief, but they

have not filed a response in opposition to the motion. The Court has reviewed the motion and

finds that it ought to be granted. The amicus brief (Dkt. 34) is deemed filed.

Defendants’ motion for leave to file a sur-reply (Dkt. 35) is granted in part. The issue of a

sur-reply brief was discussed at the May 22, 2020 status conference. Although Plaintiffs oppose

the sur-reply brief, the Court finds Defendants have shown good cause exists to file a sur-reply to

address any purported factual or legal inaccuracies in Plaintiffs’ reply brief. Defendants may file

a sur-reply on or before June 5, 2020, not to exceed five pages.

SO ORDERED.

Dated: June 1, 2020 Detroit, Michigan

s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge

 
 Case 2:20-cv-11053-MAG-RSW ECF No. 46 filed 06/03/20 PageID.2590 Page 1 of 7

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, et al.,

Plaintiffs,

-vWILLIS CHAPMAN, et al.,

Case No. 20-cv-11053 Hon. Mark A. Goldsmith Maj. Judge R. Steven Whalen

Defendants. /

REPLY TO DEFENDANTS’ RESPONSE (R 45) TO PLAINTIFFS’ EMERGENCY MOTIONS (R. 41 AND R. 42)

Defendants have offered no realistic solution to the issue of social distancing

in the prison system. The solution offered by the Defendants was attrition as to confinement of eight people in each cube in the pole barns. Defendants would obtain social distancing by not replacing a prisoner from a cube when said prisoner was moved out of that cube. One can fathom that this method would take 5 or 10 years

to obtain social distancing through attrition. It seems that Defendants will not directly deal with the issues of protecting inmates from COVID-19 by eliminating social distancing, retesting, and cleansing the prison.
In their Response, Defendants are basically arguing that due to “possible costs” of bringing one or more of the cellblocks at Jackson Prison online that the

1

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requirements of Eighth Amendment should be ignored (R. 45-1, PageID.2588-89). This is not now the law, nor has it ever been the law. See Bounds v. Smith, 430 U.S. 817, 825 (1977) (holding that “the cost of protecting a constitutional right cannot justify its total denial”); Glover v. Johnson, 478 F. Supp. 1075, 1078 n.2 (E.D. Mich. 1979) (holding, in response to female inmates' equal protection claim, that cost considerations cannot justify unwillingness to operate a prison system in a constitutional manner because the “state has constitutional obligations to its individual prisoners which override other, economic considerations”); see also Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991) (stating that a lack of funds allocated to prisons by the state legislature will not excuse the failure of prison systems to maintain minimum levels of medical services); Ramos v. Lamm, 639 F.2d 559, 573 & n.19 (10th Cir. 1980) (stating that lack of funding is no excuse for depriving inmates of their constitutional rights); Women Prisoners, Penological Interests, and Gender Stereotyping: An Application of Equal Protection Norms to Female Inmates, 32 Colum. Hum. Rts. L. Rev. 251, 277 (2000) (“Because financial considerations are not unique to prisons, the Turner justification for applying a different standard of review is not present. Financial considerations are not a separate category of legitimate penological interests to be given equal weight as security, rehabilitation, and deterrence because cost alone does not justify differential treatment, and monetary constraints are not unique to prisons.”).
2

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Defendants cast all their eggs on the Affidavit of Bush (R. 45-1). The problem with this is that it is natural for prison staff to claim that things cannot be done. However, once ordered by a court, it is done. Plaintiffs have never claimed that all of these cell blocks at Jackson were operational. They have claimed that these cell blocks were there and night be a source for additional cells. The Affidavit of Bush has not completely taken away that possibility.
As to Cell Blocks 4 and 5 (R. 45-1, PageID.2584-85), they are the newer cell blocks and all aspects functioned when first opened about 12 years ago. Why storage of papers overrides the lives and medical conditions of inmates is not explained by Bush. It is admitted by Bush that in 5 Block that “[t]he ground level rooms and offices are used by the MDOC transportation and training units for administrative purposes.” (Id.) It can then be assumed that 5 Block, which is connected to 4 Block, has running water, electricity and toilets. Therefore, Bush’s claim in Paragraph 12 of all the constructions and changes that would be required to bring all cell blocks at Jackson online is not factually accurate (R. 45-1, PageID.2588). The only way this Court can know which of these claims by Bush are accurate is by Plaintiffs doing an entry on land with experts.
In this affidavit, Bush mention the security of the prison as to key-operated cells. Plaintiffs will concede that it is unlikely that cell blocks 6, 7, 8, 11 and 12 have electronic system to open and close doors. However, cell blocks 4 and 5 likely do. It
3

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is Plaintiffs understanding that MDOC is presently operating cell blocks 9 and 10, in what is known as Parnall Correctional Facility, and it is likely that these cell blocks do not have an electronic system to open and close doors. There are also cell blocks 1, 2 and 3, in what is known as Reception and Guidance Center, that has identical constructed buildings as these other cell blocks, and likely do not have electronic monitoring system for opening and closing cells.
Bush mentions the plumbing in blocks 4-8 as being intact but has a concern that since water has not flowed for 10 years through those water pipes there might be plumbing issues (R. 45-1, PageID.2586). The problem with that statement is Bush also claimed that Block 5 is used for administrative offices, so it is hard to believe that water does not flow there each day. At Jackson Prison, deep wells provide water where needed and these well were located on the South side of the prison. This would mean that for water to get to 4 and 5 blocks, it likely had to flow through pipes that Bush is claiming has not saw water for 10 years or more.
Bush also mentions “Functionality” issues if these blocks are opened (Id., PageID.2587). One issue mentioned is medical. The state-wide hospital is on the backside of Jackson Prison. Second issue mentioned is mental health services, but the hospital is right around the corner. Third issue mentioned is food service. Plaintiffs agree that it might be difficult to provide meals but not impossible. There are four prisons within a quarter mile, if not closer, of these cellblocks at Jackson.
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This was not mentioned by Bush. Further, he never explained why each of these prisons could not prepare “x” amount of extra food to be provided if any of the cell blocks are opened. Bush does mention that “because elevators are non-operational, food service employees would need to carry the trays up various flights of stairs to deliver meals, three times a day, to inmates.” (R.45-1, PageID.2587, para. c). The inmates confined in the operational cell blocks at Jackson prison are not fed in their cells. They come down to base and many go to the chow hall to eat. We know that in regular housing units with 2 inmates to a cell, these inmates go to base and get their good and then return to their cell to eat the food. Bush never explained why that could not be done.
Bush only mention of Blocks 11 and 12 was that they have been vacant since 2002. It is Plaintiffs’ understanding that these two blocks had a significant amount of upgrading done around 1995 and they should still be in decent shape but without an inspection that cannot be determined.
Block 7 has been operated as a museum for a number of years. It is hard to believe that this block did not have electricity and running water. This Court may not be aware that 7-block is connected to 6-block at one end and the other end is connected to 8-block. It seems that the water to get to 7-block had to flow through the pipes leading up to 8-block. The same could be said as to water flowing to 5-
5

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block had to either go through or by 8, 7 and 6 blocks. None of this is explained by Bush.
It seems that the purpose of Bush’s affidavit was to put before this Court as many obstacles the he could create. However, based on the above, he might not have read closely what he was signing on to. By now, MDOC should know that making conclusory statements will not be sufficient to allow it not to comply with what the constitution mandates.
It seems there are numerous discovery requests that Defendants will agree to but based on Bush’s affidavit they don’t want a close review of these cell blocks. If during the tours, it is demonstrated that certain cell blocks cannot be opened, Plaintiff would concede that to this Court. Plaintiffs has already done that when Defendants pointed to the issues of reopening the Riverside Correctional Facility. Defendant never addressed Stanish Prison or others mentioned by Plaintiffs.
Due to the affidavit of Bush, Plaintiffs now has to expand their request for entry on land to include the cell blocks in the Reception Center and the cell blocks at Parnall Prison based on the above issues raised by Plaintiffs. Plaintiffs would request that staff be made available so that the experts, and counsel for Plaintiffs, can understand the issues raised by Bush’s affidavits and it can be demonstrated why each of the different cell blocks cannot be opened. Further, Plaintiffs would request to take the deposition of Bush.
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Plaintiffs are aware that they have no duty or obligation to present to this Court the means for Defendants to meet their constitutional obligations in the seeking of an injunction. Case law requires Defendants to comply with a court’s order. However, to prevent significant medical issues, and even some deaths of Plaintiffs, Plaintiffs are willing to work with the Defendants to meet their constitutional obligations.
WHEREFORE, for the reasons stated above and in the emergency motions, this Court should allow the limited discovery as requested by Plaintiffs. This Court should further allow Plaintiffs to enter on the land of the Reception center to enter into Cellblocks 1-3 and on the land of Parnall Prison to enter into Cellblocks 9, 10 and 16, and the taking of the deposition of prison staff Bush. Respectfully submitted,
/s/ Daniel E. Manville Daniel Manville (P39731) Director, Civil Rights Clinic, MI. State University College of Law P.O. Box 1570 East Lansing, Michigan 48823 (517) 432-6866 daniel.manville@law.msu.edu
Certificate of Service I, Daniel E. Manville, states under the penalty of perjury that on June 3, 2020, the above document was served on Defendants’ counsel by the ECF system.
s/ Daniel E. Manville
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 Case 2:20-cv-11053-MAG-RSW ECF No. 47 filed 06/03/20 PageID.2597 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, et al.,

Plaintiffs, v. WILLIS CHAPMAN, et al.,

Case No. 20-11053 HON. MARK A. GOLDSMITH

Defendants. ______________________________/

ORDER GRANTING IN PART EMERGENCY MOTION FOR EXPEDITED DISCOVERY AND
EXPEDITED EVIDENTIARY HEARING (Dkt. 41), AND DENYING EMERGENCY MOTION TO WITHDRAW STIPULATION AND ORDER REQUIRING RESPONSE
TO MOTION FOR CLASS CERTIFICATION (Dkt. 42)

The parties attempted to resolve this matter through mediation, but their efforts were

unsuccessful. Subsequently, Plaintiffs’ filed an emergency motion for expedited discovery and

expedited evidentiary hearing (“Discovery Motion”) (Dkt. 41) with respect to Plaintiffs’ motion

for a temporary restraining order, and an emergency motion to withdraw stipulation and order

requiring response to motion for class certification (“Withdraw Motion”) (Dkt. 42).1 For the

reasons stated below, the first motion is granted in part and the second motion is denied.

The parties agree that an evidentiary hearing is necessary to resolve Plaintiffs’ pending

motion for a temporary restraining order. Plaintiffs seek the following discovery in advance of a

hearing:

1. Depositions of Defendants Washington and Dr. McIntyre Chief Medical Officer;

1 The motion descriptions are based on the titles of the motions themselves. The descriptions on the docket appear to be displaying incorrectly.

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2. Any writings relating to the grievance process that were issued since December 1, 2019 to present;
3. All writings in relation to the testing of prison staff;
4. A listing of the designation of pole barns, the number of cubes in each, the number of bunk beds in each, and the number of inmates in each;
5. A list of witnesses to testify at the evidentiary hearing and a summary of their testimony and the providing of any documents to be used with that witness;
6. An entry on land as to the following cellblocks at Jackson Prison, Cellblocks 3, 4, 5, 6, 7, 8, 11, 12, the prior infirmary / hospital located inside Jackson, and any other areas inside Jackson prison, including use of a 35mm camera for still pictures and a video camera; and
7. To be allowed to bring one or more experts as to entry on land for review and possible testing of water, heating/cooling system, plumbings, etc.
Discovery Mot. ¶ 6.
In their response brief (Dkt. 45), Defendants do not object to limited depositions,
information related to the pole barns, and witness lists and summaries of expected testimony, so
long as the expedited discovery is a reciprocal process. Resp. at 3-5. However, Defendants are
not willing to voluntarily provide entry into MDOC facilities, grievance information, and
information related to staff testing. Id. at 5-9.
The Court has reviewed the parties submissions and finds that the following limited
discovery is warranted:
1. The parties must exchange a list of witnesses expected to testify at the evidentiary hearing and a summary of their expected testimony on or before noon on June 5, 2020. Any documents that the parties expect their witnesses to rely upon must also be furnished to the opposing party by noon on June 5, 2020.
2. Each party may conduct up to two deposition in advance of the evidentiary hearing. Each deposition is limited to no more than two hours. Depositions must be completed by June 11, 2020.
3. Unless Defendants withdraw their exhaustion defense, Defendants must furnish to Plaintiffs any grievances and grievance responses filed at the facilities that
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are the subject of this litigation and that concern COVID-19 from December 1, 2019, to the present. These disclosures must be made by June 8, 2020.

Plaintiffs Discovery Motion (Dkt. 41) is denied without prejudice in all other respects.

With respect to Plaintiffs’ emergency motion to withdraw the stipulation and order (Dkt.

42), Plaintiffs argue that without a resolution on the class certification motion, only the named

Plaintiffs would benefit from a favorable ruling on the motion for a temporary restraining order.

Mot. ¶ 7. It is not clear that a favorable ruling on Plaintiff’s motion for a temporary restraining

order would necessarily be limited to the named Plaintiffs, and Plaintiffs have not cited any

authority in support of that position. Defendants argue that the stipulation continues to serve an

important purpose, which is to allow the parties to focus on the motion for a temporary restraining

order and the expedited discovery. Resp. at 10-12. The Court agrees with Defendants that the

best use of resources is preparing for an evidentiary hearing. Therefore, Plaintiffs’ Withdraw

Motion (Dkt. 42) is denied.

The evidentiary hearing on Plaintiffs’ motion for a temporary restraining order is set for a

video hearing on June 17, 2020 at 8:30 a.m. Video hearing procedures will be explained by

separate order. By noon on June 15, 2020, each party must file a copy of all exhibits expected to

be presented at the hearing, and also file a pre-hearing brief summarizing the expected testimony

of witnesses.

SO ORDERED.

Dated: June 3, 2020 Detroit, Michigan

s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge

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 Case 2:20-cv-11053-MAG-RSW ECF No. 55 filed 06/11/20 PageID.2678 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLIOTT ABRAMS, et al.,

Plaintiffs, v. WILLIS CHAPMAN, et al.,

Case No. 20-11053 HON. MARK A. GOLDSMITH

Defendants. ______________________________/

STIPULATED ORDER WITHDRAWING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION (Dkt. 22) AND MOTION TO CERTIFY CLASS (Dkt. 7), AND STAYING
PROCEEDINGS

Having reviewed the Sixth Circuit’s June 9, 2020 decision in Wilson, et al. v.

Williams, et al., Case No. 20-3447, the parties to the above-captioned matter,

through counsel, hereby stipulate and agree to the following:

(1) Plaintiffs’ pending motion for temporary restraining and/or preliminary

injunction (Dkt. 22) and motion to certify class (Dkt. 7) are hereby withdrawn;

(2) This case shall be stayed pending the outcome of any appeal in the Wilson, et

al. v. Williams, et al. case, unless the stay is earlier modified or vacated by

this Court for good cause after notice to the parties and an opportunity to be

heard;

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(3) If the Wilson, et al. v. Williams, et al. case is either not appealed or it is not

reversed and/or modified on appeal, Plaintiffs will dismiss this case, subject

to approval by the named Plaintiffs, which Plaintiffs’ counsel will seek within

seven days of the date of this Order.

SO ORDERED.

Dated: June 11, 2020 Detroit, Michigan
Stipulated and agreed:

s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge

Dated: 6/10/20

/s/ Daniel Manville Daniel Manville (P39731) Attorney for Plaintiffs daniel.manville@law.msu.edu

Dated: 6/10/20

/s/ Kevin J. O’Dowd Kevin J. O’Dowd (P39383) Attorney for MDOC Defendants odowdk@michigan.gov

2