United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:20-cv-01959-BMS

REMICK et al v. CITY OF PHILADELPHIA et al Assigned to: HONORABLE BERLE M. SCHILLER Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Date Filed: 04/20/2020 Jury Demand: Defendant Nature of Suit: 530 Habeas Corpus: (General) Jurisdiction: Federal Question

Plaintiff THOMAS REMICK

represented by ALI SZEMANSKI AMERICAN CIVIL LIBERTIES UNION OF PA P.O.BOX 60173 PHILADELPHIA, PA 19102 215-592-1513 Email: aszemanski@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING FEINBERG & LIN, LLP THE CAST IRON BLDG STE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 215-925-4400 Fax: 215-925-5365 Email: drudovsky@krlawphila.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG KAIRYS RUDOVSKY MESSING FEINBERG & LIN LLP THE CAST IRON BLDG STE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 215-925-4400 Fax: 215-925-5365 Email: jfeinberg@krlawphila.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN PA INSTITUTIONAL LAW PROJECT 718 ARCH ST SUITE 304 SOUTH PHILADELPHIA, PA 19106 215-925-2966 Email: mfeldman@pailp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR THE AMERICAN CIVIL LIBERTIES UNION OF PA POBOX 60173 PHILADELPHIA, PA 19102 215-592-1513 Email: ntaylor@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN M. LIN KAIRYS RUDOVSKY MESSING FEINBERG & LIN LLP THE CAST IRON BUILDING 718 ARCH ST SUITE 501 SOUTH PHILADELPHIA, PA 19106 215-925-4400 Fax: 215-915-5365 Email: slin@krlawphila.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF DECHERT LLP CIRA CENTRE 2929 ARCH ST PHILADELPHIA, PA 19104 215-994-2496 Email: theeya.musitief@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

WITOLD J. WALCZAK ACLU OF PENNSYLVANIA P.O.BOX 60173 PHILADELPHIA, PA 19102 215-592-1513 Email: vwalczak@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT DECHERT LLP 2929 ARCH ST PHILADELPHIA, PA 19104 215-994-2887 Fax: 215-655-2887 Email: ben.barnett@dechert.com ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA PO BOX 60173 PHILADELPHIA, PA 19102 215-592-1513 Email: hnelson-major@aclupa.org TERMINATED: 10/07/2020
MARY H. KIM DECHERT LLP ONE BUSH ST SUITE 1600 SAN FRANCISCO, CA 94104 415-262-4500 Fax: 415-262-4555 Email: mary.kim@dechert.com ATTORNEY TO BE NOTICED
SU MING YEH PA INSTITUTIONAL LAW PROJECT 718 ARCH STREET, SUITE 304S PHILADELPHIA, PA 19106 215-925-2966 Fax: 215-925-5337 Email: smyeh@pailp.org ATTORNEY TO BE NOTICED

Plaintiff NADIYAH WALKER

WILL W. SACHSE DECHERT LLP CIRA CENTRE 2929 ARCH STREET PHILADELPHIA, PA 19104 215-994-4000 Email: will.sachse@dechert.com ATTORNEY TO BE NOTICED
NICOLAS NOVY DECHERT LLP CIRA CENTRE 2929 ARCH ST PHILADELPHIA, PA 19104 215-994-2174 Email: nicolas.novy@dechert.com ATTORNEY TO BE NOTICED
represented by ALI SZEMANSKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN M. LIN (See above for address)

Plaintiff JAY DIAZ

LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT (See above for address) ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR (See above for address) TERMINATED: 10/07/2020
MARY H. KIM (See above for address) ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED
NICOLAS NOVY (See above for address) ATTORNEY TO BE NOTICED
represented by ALI SZEMANSKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN M. LIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT (See above for address) ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR (See above for address) TERMINATED: 10/07/2020
MARY H. KIM (See above for address) ATTORNEY TO BE NOTICED
SU MING YEH (See above for address)

Plaintiff MICHAEL ALEJANDRO

ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED
NICOLAS NOVY (See above for address) ATTORNEY TO BE NOTICED
represented by ALI SZEMANSKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN M. LIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MICHAEL DANTZLER

WITOLD J. WALCZAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT (See above for address) ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR (See above for address) TERMINATED: 10/07/2020
MARY H. KIM (See above for address) ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED
NICOLAS NOVY (See above for address) ATTORNEY TO BE NOTICED
represented by ALI SZEMANSKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN M. LIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT (See above for address) ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR (See above for address) TERMINATED: 10/07/2020
MARY H. KIM (See above for address) ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED
NICOLAS NOVY

Plaintiff ROBERT HINTON

(See above for address) ATTORNEY TO BE NOTICED
represented by ALI SZEMANSKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN M. LIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT (See above for address)

Plaintiff JOSEPH WEISS

ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR (See above for address) TERMINATED: 10/07/2020
MARY H. KIM (See above for address) ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED
NICOLAS NOVY (See above for address) ATTORNEY TO BE NOTICED
represented by ALI SZEMANSKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR (See above for address) LEAD ATTORNEY

Plaintiff JOSEPH SKINNER

ATTORNEY TO BE NOTICED
SUSAN M. LIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT (See above for address) ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR (See above for address) TERMINATED: 10/07/2020
MARY H. KIM (See above for address) ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED
NICOLAS NOVY (See above for address) ATTORNEY TO BE NOTICED
represented by ALI SZEMANSKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN M. LIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT (See above for address) ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR (See above for address) TERMINATED: 10/07/2020
MARY H. KIM (See above for address)

Plaintiff SADDAM ABDULLAH

ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED
NICOLAS NOVY (See above for address) ATTORNEY TO BE NOTICED
represented by ALI SZEMANSKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN M. LIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF

Plaintiff
JAMES BETHEA ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT (See above for address) ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR (See above for address) TERMINATED: 10/07/2020
MARY H. KIM (See above for address) ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address) ATTORNEY TO BE NOTICED
NICOLAS NOVY (See above for address) ATTORNEY TO BE NOTICED
represented by ALI SZEMANSKI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW A. FELDMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NYSSA TAYLOR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN M. LIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THEEYA MUSITIEF (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WITOLD J. WALCZAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN R. BARNETT (See above for address) ATTORNEY TO BE NOTICED
HAYDEN NELSON-MAJOR (See above for address) TERMINATED: 10/07/2020
MARY H. KIM (See above for address) ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) ATTORNEY TO BE NOTICED
WILL W. SACHSE (See above for address)

V. Defendant CITY OF PHILADELPHIA

ATTORNEY TO BE NOTICED
NICOLAS NOVY (See above for address) ATTORNEY TO BE NOTICED
represented by CRAIG M. STRAW CITY OF PHILADELPHIA LAW DEPARTMENT 1515 ARCH STREET 14TH FLOOR PHILA, PA 19102 215-683-5442 Email: craig.straw@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANNE B. TAYLOR CITY OF PHILA LAW DEPT 1515 ARCH ST 14TH FL PHILADELPHIA, PA 19102 215-683-5381 Fax: 215-683-5397 Email: anne.taylor@phila.gov ATTORNEY TO BE NOTICED
DIANA P. CORTES CITY OF PHILADELPHIA LAW DEPARTMENT 1515 ARCH ST. 17TH FLOOR PHILADELPHIA, PA 19103 215-683-5038 Email: Diana.Cortes@Phila.gov ATTORNEY TO BE NOTICED
MEGHAN E. CLAIBORNE City of Philadelphia City Solicitor's Office 1515 Arch St., 14th Floor PHILADELPHIA, PA 19102 (215) 683-5447

Defendant
BLANCHE CARNEY IN HER OFFICIAL CAPACITY AS COMMISSIONER OF PRISONS

Fax: 2156835397 Email: meghan.claiborne@phila.gov ATTORNEY TO BE NOTICED
SHANNON G. ZABEL CITY OF PHILA LAW DEPT 1515 ARCH STREET 14TH FLOOR PHILADELPHIA, PA 19102 215-683-5114 Email: shannon.zabel@phila.gov ATTORNEY TO BE NOTICED
represented by CRAIG M. STRAW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANNE B. TAYLOR (See above for address) ATTORNEY TO BE NOTICED
DIANA P. CORTES (See above for address) ATTORNEY TO BE NOTICED
MEGHAN E. CLAIBORNE (See above for address) ATTORNEY TO BE NOTICED
SHANNON G. ZABEL (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/20/2020

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRITS OF HABEAS CORPUS against All Defendants ( Filing fee $ 400 receipt number 0313-14245850.), filed by ROBERT HINTON, JAY DIAZ, JOSEPH WEISS, SADDAM ABDULLAH, NADIYAH WALKER, JOSEPH SKINNER, MICHAEL ALEJANDRO, THOMAS REMICK, JAMES BETHEA, MICHAEL DANTZLER. (Attachments: # 1 Civil Cover Sheet, # 2 Designation Form, # 3 Case

04/20/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020

Management Track Form, # 4 Exhibit A - Amon Declaration, # 5 Exhibit B - Cohen Declaration, # 6 Exhibit C - Plaintiffs' Declaration)(NOVY, NICOLAS) (Entered: 04/20/2020)
2 MOTION to Certify Class filed by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS.. (Attachments: # 1 Text of Proposed Order)(NOVY, NICOLAS) (Entered: 04/20/2020)
3 NOTICE of Appearance by JONATHAN H. FEINBERG on behalf of SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS (FEINBERG, JONATHAN) (Entered: 04/21/2020)
4 NOTICE of Appearance by SU MING YEH on behalf of SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS (YEH, SU MING) (Entered: 04/21/2020)
5 NOTICE of Appearance by MATTHEW A. FELDMAN on behalf of SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS (FELDMAN, MATTHEW) (Entered: 04/21/2020)
6 NOTICE of Appearance by HAYDEN NELSON-MAJOR on behalf of SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS (NELSON-MAJOR, HAYDEN) (Entered: 04/21/2020)
7 NOTICE of Appearance by WILL W. SACHSE on behalf of SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS (SACHSE, WILL) (Entered: 04/21/2020)
8 NOTICE of Appearance by SUSAN M. LIN on behalf of SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS (LIN, SUSAN) (Entered: 04/21/2020)

04/21/2020

9 NOTICE of Appearance by DAVID RUDOVSKY on behalf of SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS (RUDOVSKY, DAVID) (Entered: 04/21/2020)

04/22/2020

10 NOTICE of Appearance by DIANA P. CORTES on behalf of BLANCHE CARNEY, CITY OF PHILADELPHIA (CORTES, DIANA) (Entered: 04/22/2020)

04/22/2020

11 NOTICE of Appearance by SHANNON G. ZABEL on behalf of BLANCHE CARNEY, CITY OF PHILADELPHIA (ZABEL, SHANNON) (Entered: 04/22/2020)

04/22/2020

12 NOTICE of Appearance by CRAIG M. STRAW on behalf of BLANCHE CARNEY, CITY OF PHILADELPHIA (STRAW, CRAIG) (Entered: 04/22/2020)

04/22/2020

13 NOTICE of Appearance by MEGHAN E. CLAIBORNE on behalf of BLANCHE CARNEY, CITY OF PHILADELPHIA (CLAIBORNE, MEGHAN) (Entered: 04/22/2020)

04/22/2020

14 MOTION for Pro Hac Vice Mary H. Kim ( Filing fee $ 40 receipt number 0313-14250294.) filed by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS.Certificate of Service.(NOVY, NICOLAS) (Entered: 04/22/2020)

04/22/2020

15 NOTICE of Appearance by ANNE B. TAYLOR on behalf of BLANCHE CARNEY, CITY OF PHILADELPHIA (TAYLOR, ANNE) (Entered: 04/22/2020)

04/22/2020

16 ORDER THAT MARY H. KIM'S MOTION FOR ADMISSION PRO HAC VICE IS GRANTED. SIGNED BY HONORABLE BERLE M. SCHILLER ON 4/22/2020.4/22/2020 ENTERED AND COPIES EMAILED.(sg, ) (Entered: 04/22/2020)

04/23/2020

17 MOTION for Leave to File Excess Pages filed by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS..(NOVY, NICOLAS) (Entered: 04/23/2020)

04/23/2020

18 MOTION for Preliminary Injunction and Temporary Restraining Order filed by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT

HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS.Brief. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(NOVY, NICOLAS) (Entered: 04/23/2020)

04/23/2020

19 ORDER THAT PLAINTIFFS' MOTION TO EXCEED TO PAGE LIMIT IN PLAINTIFFS' BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION IS GRANTED. SIGNED BY HONORABLE BERLE M. SCHILLER ON 4/23/2020.4/23/2020 ENTERED AND COPIES EMAILED.(sg, ) (Entered: 04/23/2020)

04/24/2020

20 ORDERED THAT DEFENDANTS SHALL FILE A RESPONSE TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER DOCUMENT NO. 18 BY FRIDAY, MAY 1, 2020. THE PARTIES SHALL REPORT ON THE STATUS OF SETTLEMENT DISCUSSIONS TO THE COURT BY MONDAY, MAY 4, 2020. A TELEPHONE CONFERENCE WILL BE HELD ON THURSDAY, MAY 7, 2020 AT 10:00 A.M.. SIGNED BY HONORABLE BERLE M. SCHILLER ON 4/24/20. 4/24/20 ENTERED AND COPIES E-MAILED.(jpd, ) (Entered: 04/24/2020)

05/01/2020

21 MOTION for Leave to File Excess Pages filed by BLANCHE CARNEY, CITY OF PHILADELPHIA.Memorandum, Certificate of Service.(CLAIBORNE, MEGHAN) (Entered: 05/01/2020)

05/01/2020

22 RESPONSE in Opposition re 18 MOTION for Preliminary Injunction and Temporary Restraining Order filed by BLANCHE CARNEY, CITY OF PHILADELPHIA. (Attachments: # 1 Declaration Herdman, # 2 Declaration Trivikram, # 3 Declaration Feemster, # 4 Declaration Vetter, # 5 Declaration Lacombe, # 6 Declaration Williams, # 7 Declaration McCants, # 8 Exhibit 1, # 9 Exhibit 2, # 10 Exhibit 3, # 11 Exhibit 4, # 12 Exhibit 5, # 13 Exhibit 6, # 14 Exhibit 7, # 15 Exhibit 8, # 16 Exhibit 9, # 17 Exhibit 10, # 18 Exhibit 11, # 19 Exhibit 12, # 20 Exhibit 13, # 21 Exhibit 14, # 22 Exhibit 15, # 23 Exhibit 16, # 24 Exhibit 17, # 25 Exhibit 18, # 26 Exhibit 19, # 27 Exhibit 20, # 28 Exhibit 21, # 29 Exhibit 22, # 30 Exhibit 23, # 31 Exhibit 24, # 32 Exhibit 25, # 33 Exhibit 26, # 34 Exhibit 27, # 35 Exhibit 28, # 36 Exhibit 29, # 37 Exhibit 30, # 38 Exhibit 31, # 39 Exhibit 32, # 40 Exhibit 33)(CLAIBORNE, MEGHAN) (Entered: 05/01/2020)

05/04/2020

23 ORDERED THAT DEFENDANTS MOTION TO EXCEED THE PAGE LIMIT IS GRANTED AS OUTLINED HEREIN. SIGNED BY HONORABLE BERLE M. SCHILLER ON 5/4/2020.5/4/2020 ENTERED AND COPIES E-MAILED.(sg, ) (Entered: 05/04/2020)

05/04/2020

24 RESPONSE in Opposition re 2 MOTION to Certify Class filed by BLANCHE CARNEY, CITY OF PHILADELPHIA. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(CLAIBORNE, MEGHAN) (Entered: 05/04/2020)

05/05/2020

25 MOTION for Leave to File Excess Pages in Reply Brief filed by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS..(NOVY, NICOLAS) (Entered: 05/05/2020)

05/05/2020

26 REPLY to Response to Motion re 18 MOTION for Preliminary Injunction and Temporary Restraining Order filed by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS. (Attachments: # 1 Exhibit AA, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J, # 9 Exhibit K, # 10 Exhibit L, # 11 Exhibit M, # 12 Exhibit N, # 13 Exhibit O, # 14 Exhibit P, # 15 Exhibit Q, # 16 Exhibit R, # 17 Exhibit S, # 18 Exhibit T, # 19 Exhibit U, # 20 Exhibit V, # 21 Exhibit W)(NOVY, NICOLAS) (Entered: 05/05/2020)

05/06/2020

27 ORDER THAT PLAINTIFFS MOTION FOR LEAVE TO FILE A REPLY BRIEF IN SUPPORT OF THE MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND TO EXCEED THE PAGE LIMIT IS GRANTED. SIGNED BY HONORABLE BERLE M. SCHILLER ON 5/6/2020.5/6/2020 ENTERED AND COPIES E-MAILED.(sg, ) (Entered: 05/06/2020)

05/06/2020

28 NOTICE of Appearance by BENJAMIN R. BARNETT on behalf of SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS (BARNETT, BENJAMIN) (Entered: 05/06/2020)

05/14/2020 29 Minute Entry for Telephone Conference held on 4/24/2020 before HONORABLE BERLE M. SCHILLER(jp, ) (Entered: 05/14/2020)

05/14/2020 30 Minute Entry for Telephone Conference held on 5/7/2020 before HONORABLE BERLE M. SCHILLER(jp, ) (Entered: 05/14/2020)

05/14/2020 31 Minute Entry for Telephone Conference held on 5/11/2020 before HONORABLE BERLE M. SCHILLER(jp, ) (Entered: 05/14/2020)

05/14/2020 32 Minute Entry for Telephone Conference held on 5/14/2020 before HONORABLE BERLE M. SCHILLER (jp, ) (Entered: 05/14/2020)

05/20/2020 33 Minute Entry for telephone conference held before HONORABLE BERLE M. SCHILLER on 5/20/2020. (jp, ) (Entered: 05/20/2020)

05/27/2020 34 Minute Entry for telephone conference held before HONORABLE BERLE M. SCHILLER on 5/27/20. (jp, ) (Entered: 05/27/2020)

06/03/2020

35 CONSENT ORDER OF PARTIAL SETTLEMENT AGREEMENT WITH COURT APPROVAL RE: CERTAIN STATEMENTS; ETC.. SIGNED BY HONORABLE BERLE M. SCHILLER ON 6/3/20. 6/8/20 ENTERED AND E-MAILED.(JL) (Entered: 06/08/2020)

06/08/2020 36 Minute Entry for telephone conference before HONORABLE BERLE M. SCHILLER on 6/3/2020. (jp, ) (Entered: 06/08/2020)

06/15/2020 37 Minute Entry for telephone conference held before HONORABLE BERLE M. SCHILLER on 6/11/20. (jp, ) (Entered: 06/15/2020)

06/18/2020 38 Minute Entry for telephone conference held before HONORABLE BERLE M. SCHILLER on 6/18/2020. (jp, ) (Entered: 06/18/2020)

07/01/2020 39 Minute Entry for telephone conference held before HONORABLE BERLE M. SCHILLER on 7/1/2020. (jp, ) (Entered: 07/01/2020)

07/15/2020 40 Minute Entry for pretrial conference held before HONORABLE BERLE M. SCHILLER via telephone on 7/15/2020. (jp, ) (Entered: 07/15/2020)

07/23/2020

41 STIPULATED PROTECTIVE ORDERENTERED AS OUTLINED HEREIN. SIGNED BY HONORABLE BERLE M. SCHILLER ON 7/23/2020. 7/24/2020 ENTERED AND COPIES E-MAILED.(sg, ) (Entered: 07/24/2020)

07/23/2020

42 DISCOVERY CONFIDENTIALITY ORDER ENTERED AS OUTLINED HEREIN. SIGNED BY HONORABLE BERLE M. SCHILLER ON 7/23/2020. 7/24/2020 ENTERED AND COPIES EMAILED.(sg, ) (Entered: 07/24/2020)

08/04/2020 43 Minute Entry for telephone conference held HONORABLE BERLE M. SCHILLER on 7/29/2020. (jp, ) (Entered: 08/04/2020)

08/27/2020

44 JOINT STATUS REPORT DATED 8/27/2020 WITH REDACTIONS APPROVED BY JUDGE SCHILLER. (sg, ) (Additional attachment(s) added on 8/27/2020: # 1 EXHIBTS PART A, # 2 EXHIBITS B AND C, # 3 EXHIBIT D) (sg, ). (Entered: 08/27/2020)

09/10/2020

45 Joint Status Report, filed by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, BLANCHE CARNEY, CITY OF PHILADELPHIA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH

WALKER, JOSEPH WEISS. (Attachments: # 1 Exhibits ABCD)(kw, ) (Entered: 09/11/2020)

09/24/2020 46 JOINT STATUS REPORT. EXHIBITS (Attachments: # 1 EXHIBIT A, # 2 EXHIBIT B, # 3 EXHIBIT C)(sg, ) (Entered: 09/24/2020)

10/07/2020

47 NOTICE of Withdrawal of Appearance by HAYDEN NELSONMAJOR on behalf of All Plaintiffs (NELSON-MAJOR, HAYDEN) (Entered: 10/07/2020)

10/09/2020

48 JOINT STATUS REPORT by CITY OF PHILADELPHIA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(jpd, ) (Entered: 10/09/2020)

11/02/2020

49 JOINT STATUS REPORT by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, BLANCHE CARNEY, CITY OF PHILADELPHIA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS. (Attachments: # 1 EXHIBIT A, # 2 EXHIBIT B, # 3 EXHIBIT C, # 4 EXHIBIT D)(JL ) (Entered: 11/02/2020)

11/09/2020 50 DECLARATION OF JACQUAR STOKES, CERTIFICATE OF SERVICE. (jpd, ) (Entered: 11/09/2020)

11/12/2020

51 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION filed by JACQUAR STOKES. CERTIFICATE OF SERVICE PROPOSED ORDER. (sg, ) (Entered: 11/12/2020)

11/18/2020

52 JOINT STATUS REPORT. (Attachments: # 1 EXHIBIT A, # 2 EXHIBIT B, # 3 EXHIBIT C, # 4 EXHIBIT D, # 5 EXHIBIT E, # 6 EXHIBIT F, # 7 EXHIBIT G)(sg, ) (Attachment 7 replaced on 11/18/2020) (jp, ). (Entered: 11/18/2020)

12/09/2020

53 JOINT STATUS REPORT by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, BLANCHE CARNEY, CITY OF PHILADELPHIA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, JACQUAR STOKES, NADIYAH WALKER, JOSEPH WEISS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(jpd, ) (Entered: 12/09/2020)

12/16/2020

54 Statement by Sharif Ali Shelton regarding certain conditions in Philadelphia Department of Prisons facilities. (jp, ) (Entered: 12/16/2020)

12/18/2020

55 ORDERED THAT THE CONSENT ORDER ON PARTIAL SETTLEMENT OF JUNE 3, 2020 DOCUMENT NO. 35 , REMAINS IN FULL EFFECT UNLESS MODIFIED BY THE TERMS OF THIS ORDER. FURTHER, ON APPLICATION OF THE PLAINTIFFS, AND AFTER FULL CONSIDERATION OF THE POSITIONS OF THE PARTIES, IT IS HEREBY ORDERED AS OUTLINED HEREIN. SIGNED BY HONORABLE BERLE M. SCHILLER ON 12/17/20. 12/18/20 ENTERED AND COPIES E-MAILED.(jpd, ) (Entered: 12/18/2020)

12/24/2020 56 Joint Status Report dated December 21, 2020. (Attachments: # 1 Exhibit A) (jp, ) (Entered: 12/24/2020)

12/28/2020

57 MOTION for Reconsideration re 55 Order, filed by BLANCHE CARNEY, CITY OF PHILADELPHIA.Brief, Declarations, Certificate of Service. (Attachments: # 1 Declaration of Commissioner Carney, # 2 Declaration of Dr. Trivikram)(TAYLOR, ANNE) (Entered: 12/28/2020)

12/30/2020

58 INTERIM ORDER THAT THE AGREED-UPON TESTING OF ALL INCARCERATED PERSONS WITHIN THE PDP FOR COVID-19 SHALL BE COMPLETED NO LATER THAN WEDNESDAY, JANUARY 13, 2021. DURING THE TESTING PERIOD REFERRED TO IN PARAGRPH 1 OF THIS ORDER, PDP SHALL REPORT TO PLAINTIFFS COUNSEL AND THE COURT THE RESULTS OF THESE TESTS, BY HOUSING AREA, IN ALL FACILITIES OF THE PDP, INCLUDING, FOR EACH HOUSING UNIT, THE TOTAL NUMBER OF PEOPLE TESTED AND THE NUMBERS OF POSITIVE AND NEGATIVE RESULTS. THESE REPORTS SHALL BE MADE ON TUESDAY AND FRIDAY OF EACH WEEK. BY FRIDAY, JANUARY 8, 2021, DEFENDANTS SHALL SUBMIT TO THE COURT AND PLAINTIFFS COUNSEL A PROPOSED OPERATIONS/MANAGEMENT PLAN FOR THE PDP TO IMPROVE OUT-OF-CELL TIME GOING FORWARD. A TELEPHONE CONFERENCE IN THIS MATTER WILL TAKE PLACE ON TUESDAY, JANUARY 12, 2021 AT 11:30 A.M. IT IS FURTHER ORDERED THAT TO THE EXTENT THIS ORDER CONFLICTS WITH THE COURTS ORDER OF DECEMBER 17, 2020 (DOCUMENT NO. 55 , WHICH IS THE SUBJECT OF DEFENDANTS MOTION FOR RECONSIDERATION, IT SHALL NOT BE CONSTRUED AS GRANTING THAT MOTION IN WHOLE OR IN PART.. SIGNED BY HONORABLE BERLE M. SCHILLER ON 12/29/20. 12/30/20 ENTERED AND COPIES E-MAILED. (jpd, ) Modified on 1/14/2021 (lisad, ). Modified on 1/21/2021 (jpd, ). (Entered: 12/30/2020)

01/06/2021

59 INTERIM ORDER AND NOW, THIS 6TH DAY OF JANUARY 2021, THE COURTS ORDER OF DECEMBER 29, 2020 (DOCUMENT NO. 58) IS SUPPLEMENTED AS OUTLINED HEREIN.. SIGNED BY HONORABLE BERLE M. SCHILLER ON 1/6/2021. 1/6/2021 ENTERED AND COPIES E-MAILED. (sg, ) Modified on 1/14/2021 (lisad, ). Modified on 1/21/2021 (jpd, ). (Entered: 01/06/2021)

01/12/2021 60 Minute Entry for Telephone Conference held before HONORABLE BERLE M. SCHILLER on 1/12/2021. (jp, ) (Entered: 01/12/2021)

01/12/2021 61 JOINT STATUS REPORT. (Attachments: # 1 EXHIBIT A, # 2 EXHIBIT B)(sg, ) (Entered: 01/12/2021)

01/13/2021

62 ORDERED THAT WHILE OPERATING UNDER THE CURRENT SHELTER-IN-PLACE POLICY, THE DEFENDANTS SHALL INCREASE THE COHORT SIZE FOR OUT-OF-CELL TIME TO A MINIMUM OF THREE CELLS AT ONE TIME ON EACH HOUSING UNIT TO PROVIDE ALL PERSONS HOUSED IN THE PHILADELPHIA DEPARTMENT OF PRISONS (PDP) WITH AT LEAST 45 MINUTES OF DAILY OUT-OF-CELL TIME FOR PURPOSES OF SHOWERING, PHONE CALLS, AND EXERCISE. PDP STAFF SHALL SPECIFICALLY INFORM INCARCERATED PERSONS THAT UNDER THIS PROCEDURE THEY MUST MAINTAIN AT LEAST SIX FEET OF SEPARATION FROM ANYONE WHO IS NOT THEIR CELLMATE, AND THAT THE FAILURE TO ABIDE BY THAT POLICY MAY RESULT IN THEIR RETURN TO THEIR CELL. THE PROVISIONS OF THIS ORDER SHALL NOT SUPERSEDE THE CONDITIONS IMPOSED BY A MEDICALLY NECESSARY QUARANTINE WHEN A KNOWN POSITIVE HAS BEEN IDENTIFIED. UPON THE RECEIPT OF THE RESULTS OF UNIVERSAL TESTING, THE COURT SHALL CONSIDER FURTHER ORDERS ON SHELTER-IN-PLACE AND OUT-OF-CELL TIME.. SIGNED BY HONORABLE BERLE M. SCHILLER ON 1/13/21. 1/13/21 ENTERED AND COPIES EMAILED. (jpd, ) Modified on 1/14/2021 (lisad, ). Modified on 1/21/2021 (jpd, ). (Entered: 01/13/2021)

01/28/2021

63 ORDERED: BASED ON THE TESTING DATA PROVIDED BY THE PDP, THE PDP SHALL STEADILY INCREASE ITS COHORT SIZES IN ORDER TO PROVIDE ADDITIONAL OUT-OF-CELL TIME TO THE INCARCERATED POPULATION. PDP SHALL PROVIDE TWO HOURS OF OUT-OF-CELL TIME BY FEBRUARY 10, 2021, AND THREE HOURS OF OUT-OF-CELL TIME BY FEBRUARY 24, 2021. IT IS FURTHER ORDERED THAT: DEFENDANTS MOTION FOR RECONSIDERATION (DOCUMENT NO. 57) IS DISMISSED AS MOOT. ETC.. SIGNED BY HONORABLE BERLE M. SCHILLER ON

1/28/2021.1/28/2021 ENTERED AND COPIES E-MAILED.(sg, ) (Entered: 01/28/2021)

02/04/2021 64 JOINT STATUS REPORT. (Attachments: # 1 EXHIBIT)(sg, ) (Entered: 02/04/2021)

02/18/2021 65 JOINT STATUS REPORT (Attachments: # 1 Exhibit A)(jpd) (Entered: 02/18/2021)

03/04/2021

66 JOINT STATUS REPORT by SADDAM ABDULLAH, MICHAEL ALEJANDRO, JAMES BETHEA, BLANCHE CARNEY, CITY OF PHILADELPHIA, MICHAEL DANTZLER, JAY DIAZ, ROBERT HINTON, THOMAS REMICK, JOSEPH SKINNER, NADIYAH WALKER, JOSEPH WEISS. (Attachments: # 1 EXHIBIT A, # 2 EXHIBIT B, # 3 EXHIBIT C)(sg, ) (Entered: 03/05/2021)

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2:20-cv01959-BMS
2.20

 
 Case 2:20-cv-01959-BMS Document 1 Filed 04/20/20 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

:

Case No.
ELECTRONICALLY FILED IMMEDIATE RELIEF SOUGHT

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRITS OF HABEAS CORPUS
INTRODUCTION 1. Plaintiffs-Petitioners (“Plaintiffs”) are ten individuals held at the Philadelphia Department of Prisons (“PDP”) who, as a result of the policies, practices, and actions adopted and undertaken by Defendants-Respondents (“Defendants”), are at significant risk of contracting COVID-19 (also known as the Coronavirus) and suffering from severe disease and possible death. The current conditions of confinement at PDP’s facilities create a heightened and unreasonable risk of COVID-19 for any confined person, and a substantial risk of severe illness or death for those who are elderly and/or medically vulnerable to COVID-19. The named Plaintiffs, on their own behalf and on behalf of all others similarly situated, seek immediate changes in the conditions

Case 2:20-cv-01959-BMS Document 1 Filed 04/20/20 Page 2 of 24
of their confinement to protect them from this clear and present danger of disease and death, and to ensure humane living conditions, as required by the United States Constitution. Plaintiffs seek injunctive relief that would require, among other things, Defendants to comply with recognized public health and safety measures, as adopted by the Centers for Disease Control and Prevention (“CDC”), to prevent the spread of the virus for those confined at jails and prisons.
2. Absent the implementation of and strict adherence to emergency measures that comply with these recommended public health and safety measures, Plaintiffs seek the release of individuals 55 and older and those with medical conditions that place them at heightened risk of severe illness or death from COVID-19, as these individuals face heightened risks of lifethreatening conditions, and their removal from PDP would facilitate the quarantine and social distancing measures recommended by the CDC and other public health officials.
3. Prisons and jails have become epicenters of COVID-19 in cities throughout the country. In the PDP, on April 16, the city reported that a cumulative total of 100 incarcerated people had tested positive for the virus.1 The next day, Philadelphia Commissioner of Public Health Dr. Thomas Farley reported an additional thirteen new cases within the PDP.2 By Sunday, April 19, the number of total reported cases rose to over 120.3 These numbers will continue to rise
1 On Thursday, April 16, 2020, Philadelphia Managing Director Brian Abernathy provided this information during an April 16th, 2020 press conference. See Philadelphia Department of Public Health, Update on COVID-19 Coronavirus Response in Philadelphia, Facebook (April 16, 2020), https://www.facebook.com/phillyhealth/videos/175556743555021 (Managing Director Abernathy noting that 100 incarcerated individual tested positive at approximately the 26 minute mark). 2 See Philadelphia Department of Public Health, Update on COVID-19 Coronavirus Response in Philadelphia, Facebook (April 17, 2020), https://www.facebook.com/phillyhealth/videos/ 2975919772519206/ (Dr. Farley noting the increase at approximately the 12 minute mark). 3 See Max Marin & Aaron Moselle, ‘Scared for Their Lives’: Inside the Coronavirus Outbreak in Philadelphia’s Jails, WHYY (April 19, 2020), https://whyy.org/articles/scared-for-their-livesinside-the-coronavirus-outbreak-in-philadelphias-jails/.
2

Case 2:20-cv-01959-BMS Document 1 Filed 04/20/20 Page 3 of 24

exponentially. The population within PDP is uniquely vulnerable to the spread of COVID-19 due

to the congregate nature of jails, exacerbated by unnecessary crowding, inadequate sanitation,

denial of hygiene products, and inadequate quarantine procedures. The current conditions within

PDP’s facilities create an extreme risk for the rapid, uncontrollable spread of COVID-19 among

the incarcerated population, correctional officers, health care workers, and beyond jail walls to the

larger Philadelphia community.

4. To comply with basic Constitutional guarantees against cruel and unusual

punishment and due process of law, conditions must be substantially improved to adhere to CDC

guidelines for social distancing and enhanced sanitation and hygiene practices. Defendants must

implement adequate quarantine and social distancing protocols; provide adequate hygiene

supplies; ensure that sanitation practices conform to CDC standards; conduct recreation and meal

service in a manner that allows for appropriate social distancing; and require the use of Personal

Protective Equipment (“PPE”) for staff and those incarcerated.

I.

JURISDICTION AND VENUE

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

§ 1983, 28 U.S.C. §§ 2201, 2202, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et

seq. (“ADA”), for relief from both detention and conditions of confinement that violate their

Fourteenth Amendment and/or Eighth Amendment rights under the U.S. Constitution.

6. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C.

§ 2241 (habeas corpus), 28 U.S.C. § 1651 (All Writs Act), 28 U.S.C. § 1343(a) (civil rights

jurisdiction), and 28 U.S.C. § 1331 (federal question jurisdiction).

7. This Court is the appropriate venue pursuant to 28 U.S.C. § 1391(b)(2) because the

events and omissions giving rise to the claims occurred in the Eastern District of Pennsylvania.

3

Case 2:20-cv-01959-BMS Document 1 Filed 04/20/20 Page 4 of 24

II.

PARTIES

8. Thomas Remick, Nadiyah Walker, Jay Diaz, Michael Alejandro, Michael Dantzler,

Robert Hinton, Joseph Weiss, Joseph Skinner, Saddam Abdullah and James Bethea are all adult

individuals currently incarcerated at a PDP facility and are at a heightened risk for more severe

symptoms and potential death from COVID-19 due to their age and/or underlying medical

conditions. They sue for injunctive and declaratory relief on behalf of themselves and on behalf

of those who currently are or will in the future be subject to these unconstitutional conditions of

confinement within the PDP.

9. Defendant City of Philadelphia is a political subdivision organized and existing

under the laws of the Commonwealth of Pennsylvania. The City of Philadelphia funds, controls,

and operates the Philadelphia Department of Prisons. The City of Philadelphia currently has

immediate custody over Plaintiffs and all other putative class members.

10. Defendant Blanche Carney is the Commissioner of PDP. Defendant Carney

currently has immediate custody over Plaintiffs and all other putative class members. Defendant

Carney is a policymaker for the City of Philadelphia, and she is sued in her official capacity.

11. Defendant City of Philadelphia and Carney have at all relevant times acted under

color of state law.

4

Case 2:20-cv-01959-BMS Document 1 Filed 04/20/20 Page 5 of 24

III.

FACTUAL ALLEGATIONS

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

12. We are in the midst of the most significant pandemic in generations. As of April

20, 2020, there were 32,284 confirmed cases of COVID-19 in Pennsylvania and 1,112 deaths.4,5

In the City of Philadelphia, there have been 8,764 cases and 240 deaths as of April 20.6 These

numbers likely underestimate the impact and spread of the virus, given the lack of testing.7

13. The virus spreads from person to person through respiratory droplets, close

personal contact, and from contact with contaminated surfaces and objects.8 There is no vaccine

against COVID-19, and there is no known medication to prevent or treat infection.9 Social

distancing (deliberately keeping at least six feet of space between persons10) and a vigilant hygiene

regimen, including washing hands frequently with soap and water, are the only known measures

4 See Exhibit A, Expert Declaration of Dr. Joseph Amon, Ph.D. MSPH, ¶ 5 (“Amon Decl.”). Dr. Amon is an infectious disease epidemiologist, Director of Global Health and Clinical Professor in the department of Community Health and Prevention at the Drexel Dornsife School of Public Health with past experience as an epidemiologist in the Epidemic Intelligence Service of the U.S. Center for Disease Control and Prevention. 5 COVID-19 Data for Pennsylvania, Philadelphia Department of Health (April 2020), https://cutt.ly/Tt1J66h. 6 Id. 7 See Exhibit B, Expert Declaration of Robert L. Cohen, M.D., ¶ 24(i) (“Cohen Decl.”). Dr. Cohen, an internist with more than 30 years of experience, is an expert in correctional health care and correctional health system management. He has been appointed as a federal court monitor of healthcare delivery in jails and prisons around the country and for decades has provided expert consulting on conditions within the PDP. 8 Amon Decl. ¶ 21; Cohen Decl. ¶ 11. 9 Amon Decl. ¶ 6; Cohen Decl. ¶ 2. 10 Amon Decl. ¶ 22-24; Cohen Decl. ¶ 21.
5

Case 2:20-cv-01959-BMS Document 1 Filed 04/20/20 Page 6 of 24
for protecting against transmission of COVID-19.11 Because the coronavirus spreads among people who do not show symptoms, everyone has to act as if everyone has the disease.12
14. The older a person is, the greater their risk of serious illness or death from COVID19.13 A February 29, 2020 preliminary report found that individuals age 50-59 had an overall mortality rate of 1.3%; 60-69-year-olds had an overall 3.6% mortality rate, and those 70-79 years old had an 8% mortality rate.14
15. People of any age are also at an elevated risk if they suffer from 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, or asthma.15 An early report from the World Health Organization (“WHO”) estimated the mortality rate of 13.2% for COVID19 patients with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.16
11 Amon Decl. ¶ 22-24; Cohen Decl. ¶ 9. 12 Cohen Decl. ¶ 12. 13 Amon Decl. ¶ 9 (observing that “those ≥54 years could be considered high risk for severe disease and death.”); Cohen Decl. ¶ 36. 14 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ (data analysis based on WHO China Joint Mission Report). 15 Amon Decl. ¶ 8; Cohen Decl. ¶ 43. 16 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf
6

Case 2:20-cv-01959-BMS Document 1 Filed 04/20/20 Page 7 of 24
16. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza.17 According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.18 For people in the highest risk populations, the fatality rate of COVID-19 infection can be greater than 13 percent.19 Patients who do not die from serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurological damage, loss of digits, and loss of respiratory capacity.20
COVID-19 Poses an Increased Risk of Serious Harm or Death in Correctional Settings, Including the PDP. 17. People in congregate environments—places where people live, eat, and sleep in close proximity—face increased danger of coronavirus infection and COVID-19, as already evidenced by the rapid spread of the virus in cruise ships and nursing homes.21 It is extremely difficult, and at times impossible, for people who are confined in prisons, jails, and detention centers to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission of the disease.22
17 House Oversight and Reform Committee Hearing on Coronavirus Response, Day 1, C-SPAN (March 11, 2020), https://www.c-span.org/video/?470224-1/dr-fauci-warns-congresscoronavirus-outbreak-worse. 18 How the Novel Coronavirus and the Flu are Alike...and Different, NPR (March 20, 2020), https://www.npr.org/sections/goatsandsoda/2020/03/20/815408287/how-the-novel-coronavirusand-the-flu-are-alike-and-different. 19 Cohen Decl. ¶ 44. 20 Y. Wu et al., Nervous System Involvement After Infection with COVID-19 and Other Coronaviruses (March 30, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7146689/. 21 Amon Decl. ¶ 29; Cohen Decl. ¶ 5. 22 Id.
7

Case 2:20-cv-01959-BMS Document 1 Filed 04/20/20 Page 8 of 24
18. Correctional settings further increase the risk of contracting COVID-19 because of
the concentration of people with chronic, often untreated, illnesses in a setting with minimal levels
of sanitation, limited access to personal hygiene, limited access to medical care, presence of many high-contact surfaces, and no possibility of staying at a distance from others.23
19. Incarcerated people are dying, including a recent death of an incarcerated person at the Riverside Correctional Facility (“RCF”), the women’s prison within the PDP.24 At the Chicago
Cook County Jail and at New York City Rikers Island, the transmission rates for COVID-19 are estimated to be the highest in the world.25
20. Numerous public health experts, including Dr. Joseph Amon,26 Dr. Robert L. Cohen,27 Dr. Gregg Gonsalves,28 Ross MacDonald,29 Dr. Marc Stern,30 Dr. Oluwadamilola T.
23 Amon Decl. ¶¶ 28-29, 33-35, 38, 43, 45; Cohen Decl. ¶¶ 4-5, 36. 24 Jeremy Roebuck, Laura McCrystal, Chris Palmer and Dylan Purcell, Philly Reports First Inmate Death From Coronavirus In Its Jails, Philadelphia Inquirer (April 14, 2020) https://www.inquirer.com/news/philly-jail-coronavirus-death-inmate-first-blanche-carney20200414.html; see also He Died In Prison From The Coronavirus — Three Days Before A Breakthrough In His 30-Year Fight To Clear His Name, Philadelphia Inquirer (April 15, 2020), https://www.inquirer.com/news/sci-phoenix-coronavirus-death-rudolph-sutton-pennsylvaniainnocence-project-20200415.html (detailing first death from COVID-19 in the Pennsylvania Department of Corrections). 25 Amon Decl. ¶ 38; Cohen Decl. ¶ 17-18, 39. 26 Amon Decl. ¶ 63. 27 Cohen Decl. ¶ 4-6. 28 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror (March 11, 2020), https://cutt.ly/BtRSxCF. 29Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (March 19, 2020), https://cutt.ly/ptRSnVo. 30 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington Assoc. of Sheriffs & Police Chiefs (March 5, 2020), https://cutt.ly/EtRSm4R.
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Oladeru and Adam Beckman,31 Dr. Anne Spaulding,32 Homer Venters,33 the faculty at Johns Hopkins schools of nursing, medicine, and public health,34 and Josiah Rich35 have all strongly cautioned that people booked into and held in jails are likely to face serious, even grave, harm due to the COVID-19 pandemic.
21. Each day of the past week, between 1 and 13 new people have tested positive for the virus within PDP with greater than 120 cases reported within the facilities.36 On April 17, 2020, at the City’s daily Update on COVID-19 Response in Philadelphia, Dr. Thomas Farley, Commissioner of Public Health, announced that there were 13 new cases in PDP in one day alone.37
22. Two weeks ago, within PDP, the infection rate was more than double the rate of infection of the City as a whole.38
31 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, (March 10, 2020), https://cutt.ly/QtRSYNA. 32 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (March 9, 2020). 33 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (March 12, 2020), https://cutt.ly/jtRSPnk. 34 Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland, March 25, 2020, https://cutt.ly/stERiXk. 35 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, The Guardian (March 13, 2020 3:00 p.m.), https://cutt.ly/itRSDNH. 36 See supra notes 1-2. 37 See supra note 2. 38 See The Defender Association of Philadelphia, Covid-19 in Philly Jails, https://www.philadefender.org/wp-content/uploads/2020/04/Jail-Infection-Jurisdictions-andZip_Landing-Page_4.8.20.pdf; Cohen Decl. ¶ 7.
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23. The higher rate of COVID-19 infections in the PDP exacerbates the disproportionate impact the virus has had on people of color, both nationally and in Philadelphia.39 In Philadelphia, Black people make up 44 percent of the City’s total population, yet as of February, over 69 percent of the incarcerated people in the PDP were Black, and almost 19 percent were Latinx, with racial minorities totaling over 88 percent of the incarcerated population.40
24. Staff as well as incarcerated people are being infected with COVID-19. Defendants have adopted a policy of not disclosing the number of correctional officers who have tested positive, but as of April 16, 2020, 43 officers self-reported positive tests.41
25. Risk mitigation is the only viable strategy to combat the spread of COVID-19 and prevent serious harm or death to class members.42 This requires creating and implementing a comprehensive plan to address the spread of COVID-19 in PDP. Given the current population numbers and the housing structures within PDP, risk mitigation also requires the release of individuals who are at high risk of severe disease if infected with COVID-19.43 Release of the medically vulnerable population protects them from transmission of COVID-19, limits the burden
39 Ryan Briggs, Nina Feldman, African Americans Lead Coronavirus Deaths In Philadelphia, WHYY (April 8, 2020), https://whyy.org/articles/african-americans-lead-coronavirus-deaths-inphiladelphia/; see also CBS News, Philadelphia’s Black Communities Disproportionately Hit By City’s Coronavirus Pandemic (April 10, 2020), https://www.cbsnews.com/news/coronaviruspandemic-philadelphia-black-communities-disproportionately-hit/. 40 Philadelphia Jail Report: July 2016 – February 2020, https://www.phila.gov/media/20200320153910/Full-Public-Jail-Report-February-2020-1.pdf. 41 Prisoners Being Released from City, State Prisons Are Not Being Tested for COVID-19, NBC Philadelphia (April 16, 2020), https://www.nbcphiladelphia.com/investigators/prisoners-beingreleased-from-city-state-prisons-are-not-being-tested-for-covid-19/2365885/. 42 See Amon Decl. ¶ 60; Cohen Decl. ¶ 9. 43 Amon Decl. ¶ 60; Cohen Decl. ¶ 43.
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on the region’s health care infrastructure by reducing the number of people who will become seriously ill from COVID-19, and facilitates other risk mitigation measures.44
26. Defendants have failed to respond to and manage the continued risk of harm posed by the COVID-19 outbreak by not following public health guidance from the CDC for correctional facilities. The guidelines require: (a) providing all incarcerated persons a six-foot radius or more of distance from any other persons, including during meals, transportation, court sessions, recreation, counts, and all other activities; (b) instituting a safety plan to prevent a COVID-19 outbreak in PDP’s facilities in accordance with CDC guidelines; (c) making sanitation solutions readily and freely available for the purposes of cleaning cells, dormitories, laundry, and eating areas, including sufficient antibacterial soap, and lifting any ban on alcohol-based hygiene supplies (e.g. hand sanitizer, cleaning wipes); (d) providing adequate and appropriate COVID-19 testing for incarcerated persons, jail staff, and visitors; (e) waiving all medical co-pays for those experiencing COVID-19 like symptoms; and (f) providing sufficient personal protective equipment, particularly masks, and to all staff and incarcerated people.45
44 Amon Decl. ¶ 51, 60; Cohen Decl. ¶ 10, 43. 45 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus
Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.
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The Current Conditions of Confinement at PDP’s Facilities Fail to Comply with CDC Guidelines and Exacerbate the Extreme and Imminent Danger Faced by Class Members of Contracting and Possibly Dying from COVID19. 27. Defendants have failed to implement the necessary safeguards outlined above, thus creating extreme risk to all incarcerated individuals in the PDP, and imminent danger to Plaintiffs.46 28. Defendants fail to allow for adequate social distancing consistent with all public health guidelines. a. The Detention Center (“DC”) contains both dormitory-style housing (“dorms”) as well as several cellblocks. Individuals housed in dorms sleep in bunk beds less than 6 feet apart. The dorms, in some circumstances, house more than 30 individuals in a unit. One block is comprised of multiple dorm units, each a cage-like structure, with only metal fencing separating each unit such that air flows between each block, allowing the transmission of COVID19 between units. Social distancing is not possible in this setting. b. Many people incarcerated in PDP are double-celled. In Curran-Fromhold Correctional Facility (“CFCF”), up to four people may be housed in a quarantine cell. Due to the size of the typical PDP cell, which contains bunk beds, a toilet, a sink, and sometimes a desk, it is difficult or impossible for cellmates to remain six feet apart at all times. c. Phone usage is vital during the pandemic for people to contact their attorneys as well as friends and family who are not permitted to visit. Because of the way phones
46 The named Plaintiffs have provided Declarations outlining their experiences in PDP’s facilities. See Exhibit C. Plaintiffs’ experts’ Declarations review the concerning patterns and trends identified in those Declarations. See Amon Decl. ¶ 33; Cohen Decl. ¶ 24.
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are positioned, using phones requires standing within two feet of other people for extended periods of time.
29. Defendants have failed to adequately and consistently provide necessary hygiene products for incarcerated people in PDP.
a. Soap is not available for all incarcerated people at all times, especially for those who cannot buy soap from the commissary. Some who have requested soap from correctional officers were told that no free soap is available.
b. At least one named Plaintiff went without soap for four days. c. Plaintiffs are unable to consistently wash their hands. d. PDP does not provide any hand sanitizer to those incarcerated within their facilities. 30. Defendants have failed to provide for adequate cleaning, sanitizing and disinfecting of all spaces. a. Cleaning and disinfectant supplies are inadequate for regular and necessary cleaning of living areas, including cells. PDP failed to provide plaintiffs with the bleach and disinfectant necessary to clean their cells on a regular basis. Some Plaintiffs have gone for a month without being able to clean and disinfect their cells. b. People at all PDP facilities must share phones that are not disinfected between uses. c. People at all PDP facilities must share showers, sinks, and toilets that are not cleaned or disinfected between each use. d. No toilets in PDP facilities have lids. Many toilets fail to adequately flush, allowing waste matter to remain.
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31. Defendants have failed to provide and mandate the use of adequate personal protective equipment.
a. Correctional officers, and even prison medical staff, inconsistently use masks and often interact with people without wearing masks. These same correctional officers move between different areas of PDP’s facilities.
b. Although PDP has distributed cloth face masks to incarcerated people, PDP does not clean or exchange these cloth face masks on an adequate basis, and Plaintiffs have been required to wear the same mask for multiple days or weeks. Nor does PDP instruct people how to wear the masks.
32. Defendants have failed to provide for adequate isolation or quarantine measures. a. Upon entry to the PDP, incarcerated people are placed into a “quarantine”
unit. This is a standard prison practice for new admissions to jail facilities at all times. Due to the COVID-19 pandemic, the need for a quarantine unit is enhanced—and requires placement for a minimum of 14 days. In PDP facilities, however, people newly admitted are not always held in quarantine for a full 14 days before transfer to general population.
b. When an incarcerated person displays symptoms of COVID-19, he or she is frequently neither isolated nor tested for COVID-19.
c. Even if someone has tested positive for COVID-19 and is taken to another location, he or she is often returned to general population without testing to ensure that COVID19 is no longer present or contagious.
33. PDP relies on near 24-hour lockdowns. a. People are let out of their cells for a mere 15 minutes, occasionally once a
day, but many PDP facilities do not let people out for days on end.
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b. In these circumstances, people are unable to bathe or shower for multiple days.
c. For those in single or double cells, these conditions constitute solitary confinement, causing and exacerbating mental illness and mental distress.
d. People detained in these conditions suffer serious physical harms without the ability to exercise for prolonged periods of times.
e. With people locked in their cells for prolonged periods, access to medical care for chronic conditions and acute illnesses unrelated to COVID-19 has been severely limited.
34. PDP’s measures have improperly interfered with the right to counsel. a. Given the PDP’s failure to take adequate risk mitigation measures, in-
person legal visits pose an unreasonable medical risk to all involved. b. Further, PDP administrators have not undertaken efforts to arrange legal
calls between counsel and incarcerated clients, and any such efforts have resulted in a laborious and time-consuming process.
The Named Plaintiffs are at Heightened Risk due to the Unsafe and Inhumane Conditions of Confinement at PDP’s Facilities. 35. Plaintiffs are at a heightened risk for serious illness and death due to medical vulnerabilities and/or age. These risks are exacerbated—thus further increasing the risk of serious illness or death—because Plaintiffs are incarcerated under the conditions described above. 36. Thomas Remick is a 30-year-old individual held at DC, who was diagnosed with sarcoma and requires regular chest x-rays. He also lives in a dorm setting. 37. Jay Diaz is a 30-year-old individual housed at RCF who suffers from asthma. He requires breathing treatments, which have not been provided despite his requests. He has stage 3 cervical and ovarian cancer.
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38. Nadiyah Walker is a 43-year-old individual housed at RCF who suffers from seizure-causing epilepsy, diabetes, asthma, and anemia.
39. Michael Alejandro is a 27-year-old individual held at DC who suffers from asthma. He lives in a dorm setting.
40. Michael Dantzler is a 45-year-old individual incarcerated in the medical unit at DC. He has vascular disease that makes him prone to blood clots, and in February 2020, had emergency surgery to remove a pulmonary embolism. Even in the medical unit, Mr. Dantzler has not had his cell cleaned nor has he had access to cleaning products to clean the cell himself. A doctor comes to his cell every week, but the doctor does not always wear a mask.
41. Robert Hinton is a 63-year-old individual held at CFCF, who has Hepatitis C that has caused damage and scarring to his liver. He is currently experiencing pain on the side of his abdomen.
42. Joseph Weiss is a 57-year-old Army Veteran held at CFCF. Due to being wounded in combat, he has a metal rod and pins in his femur and walks with a cane.
43. Joseph Skinner is a 38-year-old individual held at CFCF with severe asthma currently incarcerated at CFCF. He must use an inhaler daily, has been hospitalized 4 or 5 times, and was previously intubated due to his asthma.
44. James Bethea is a 53-year-old individual housed at the Philadelphia Industrial Correctional Center (“PICC”), and suffers from asthma, Hepatitis C, arthritis, and diabetes.
45. Saddam Abdullah is a 29-year-old individual incarcerated at PICC. He has asthma and had 4 recent acute asthma attacks. His inhaler is not working, and after his most recent asthma attack, medical staff refused to provide a breathing treatment. He has experienced chills, loss of
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taste and smell, and difficulty breathing. Because he did not have a fever, he was not tested for COVID-19 and was not medically isolated.

IV.

CLASS ACTION ALLEGATIONS

46. Plaintiffs Remick, Walker, Diaz, Alejandro, Dantzler, Hinton, Weiss, Skinner,

Abdullah, and Bethea bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedure

on behalf of themselves and a class of similarly situated individuals.

47. Plaintiffs Remick, Walker, Diaz, Alejandro, Dantzler, Hinton, Weiss, Skinner,

Abdullah, and Bethea seek to represent a class of all current and future detainees held in custody

at PDP’s facilities (“Class”), including two subclasses: (1) persons who, by reason of age or

medical condition, are particularly vulnerable to injury or death if they were to contract COVID-

19 (“Medically-Vulnerable Subclass”), and (2) persons who, by reason of their disability, are

particularly vulnerable to injury or death if they were to contract COVID-19 (“Disability

Subclass”).

48. The “Medically Vulnerable Subclass” is defined as all current and future persons

in the custody of the Philadelphia Department of Prisons who are 55 or older,47 as well as all

current and future persons held of any age who have a medical condition that places them at

increased risk of COVID-19 illness, injury, or death, including but not limited to: (a) lung disease,

including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other

chronic conditions associated with impaired lung function; (b) heart disease, such as congenital

heart disease, congestive heart failure, or coronary artery disease; (c) chronic liver or kidney

disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e)

epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt

47 Amon Decl. ¶ 9; Cohen Decl. ¶ 43.

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of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy. All Plaintiffs represent the Medically Vulnerable Subclass.
49. The “Disability Subclass” is defined as all current and future persons in the custody of the Philadelphia Department of Prisons who have an impairment that substantially limits one or more of their major life activities and who are at increased risk of COVID-19 illness, injury, or death due to their disability or any medical treatment necessary to treat their disability, including but not limited to those who have: (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure, or coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders and/or (i) developmental disability.48 All Plaintiffs represent the Disability Subclass.
50. This action has been brought and may properly be maintained as a class action as it satisfies the numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
51. Joinder is impracticable because (1) the class members are numerous; (2) the classes include unidentifiable future members; and (3) the class members are incarcerated,
48 The disability subclass is separate and apart from the medically vulnerable class as age, and some conditions within the medically vulnerable class, such as pregnancy, are not factors that place a person under the ambit of the ADA’s protections.
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rendering their ability to institute individual lawsuits limited, particularly in light of the court closures in the City of Philadelphia.
52. Common questions of law and fact exist as to all members of the proposed classes: All have the right to receive adequate COVID-19 prevention, testing, and treatment.
53. Plaintiffs’ claims are typical of the members of the class because Plaintiffs and all class members are injured by the same wrongful acts, omissions, policies, and practices of Defendants-Respondents as described in this Complaint. Plaintiffs’ claims arise from the same practices, policies, and conduct that gives rise to the claims of the class members, and are based on the same legal theories.
54. Plaintiffs Remick, Walker, Diaz, Alejandro, Dantzler, Hinton, Weiss, Skinner, Abdullah, and Bethea have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class. They have no interests adverse to the interests of the proposed class. They retained pro bono counsel with experience and success in the prosecution of civil rights litigation. Counsel for Plaintiffs know of no conflicts among proposed class members or between counsel and proposed class members.
55. Defendants have acted on grounds generally applicable to all proposed class members, and this action seeks declaratory and injunctive relief. Plaintiffs therefore seek class certification under Rule 23(b)(2).
56. In the alternative, the requirements of Rule 23(b)(1) are satisfied, because prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of contact for the party opposing the proposed classes.
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V. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Unconstitutional Conditions of Confinement in Violation of the Eighth and Fourteenth Amendment to the U.S. Constitution 42 U.S.C. § 1983/28 U.S.C. § 2241 Class & Medically Vulnerable Subclass versus All Defendants 57. Under the Eighth and Fourteenth Amendments, corrections officials are required to provide for the reasonable health and safety of persons, whether sentenced or in pretrial detention, and they must provide humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982). Correctional officials have an affirmative obligation to protect persons in their custody from infectious disease. Correctional officials also have an obligation not to place persons in their custody in oppressive conditions involving prolonged lockdowns and solitary confinement. Officials violate the rights of incarcerated individuals when they are either deliberately indifferent to conditions of confinement that are likely to cause them serious illness and that pose an unreasonable risk of serious damage to their future health, Helling v. McKinney, 509 U.S. 25, 33-34 (1993), or if their acts are objectively unreasonable. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2470 (2015). 58. PDP’s facilities, as currently operated, are unable to comply with public health guidelines to prevent an outbreak of COVID-19, and Defendants have not and cannot provide for the safety of the Class, nor have they been providing humane conditions of confinement. Defendants have not taken appropriate steps to test for, treat, or prevent COVID-19 outbreaks, and Defendants are unable to protect the Medically Vulnerable Subclass from serious harm caused by COVID-19, in violation of their constitutional obligation to provide humane conditions of confinement for the Class and Medically Vulnerable Subclass.
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59. Absent the immediate implementation of the CDC-mandated health and safety measures, further relief in the form of releases of highly vulnerable inmates will be necessary.
60. Defendants have violated the rights of the Class under the Eighth and Fourteenth Amendments.
SECOND CLAIM FOR RELIEF Violation of the Americans with Disabilities Act
42 U.S.C. §§ 12101 et seq Disability Subclass versus Defendant City of Philadelphia 61. Title II of the ADA requires public entities, such as PDP, to reasonably accommodate people with disabilities in all programs and services for which people with disabilities are otherwise qualified. 62. Plaintiffs, and other members of the Class, are qualified individuals with a disability under the meaning of the ADA. 63. Access to medical treatment and safe conditions of confinement are programs or services that PDP’s facilities must provide to incarcerated people for purposes of the ADA. 64. Defendants intentionally discriminate against people with disabilities by intentionally denying them reasonable accommodations in accordance with CDC guidelines and necessary to protect themselves from COVID-19. 65. If the population is reduced to allow for adequate social distancing, reasonable accommodations in accordance with CDC guidelines are necessary to protect people with disabilities including, but not limited to: single celling, provision of cleaning supplies, access to soap to facilitate handwashing, and staggered dining and recreation times in numbers that permit social distancing.
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66. Failing to provide these reasonable accommodations is illegal discrimination under the ADA entitling Plaintiffs and members of the Disability Subclass to injunctive and declaratory relief.

VI.

REQUEST FOR RELIEF

67. Plaintiffs Thomas Remick, Nadiyah Walker, Jay Diaz, Michael Alejandro, Michael

Dantzler, Robert Hinton, Joseph Weiss, Joseph Skinner, Saddam Abdullah, and James Bethea and

Class Members respectfully request that the Court order the following:

a. Certification of this case as a Class Action under Fed. R. Civ. P. 23(b)(2);

b. Injunctive relief ordering Defendants to immediately mitigate the serious risk

of illness, death, and harm from COVID-19 and to provide humane conditions

of confinement to those who are incarcerated or detained in the PDP;

c. A preliminary injunction directing Defendants to submit a plan to the Court

within five days, to be overseen by a qualified public health expert pursuant to

Fed. R. Evid. 706, which outlines specific mitigation efforts, in line with CDC

guidelines, to significantly reduce the risk of contraction of COVID-19 by all

Class Members;

d. In the absence of immediate and effective compliance with paragraphs b and c,

injunctive relief and/or writs of habeas corpus requiring Defendants to:

(i.) Release the Medically Vulnerable Subclass Members;

(ii.) Provide these individuals with educational resources on COVID-19,

including instructions that they should self-isolate for the CDC-

recommended period of time (currently 14 days) following release;

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Case 2:20-cv-01959-BMS Document 1 Filed 04/20/20 Page 23 of 24 (iii.) A housing and/or public support plan for any released Class or Subclass Members with exposure to or infection with COVID-19 confirmed by testing, and who do not readily have a place to self-isolate for the CDCrecommended period of time (currently 14 days).
e. A declaration that Defendants’ policies and practices violate the Eighth and Fourteenth Amendments and that Defendants’ policies and practices violate the Americans with Disabilities Act with respect to the Disability Subclass.
f. An award of Plaintiffs’ attorneys’ fees and costs; and g. Any further relief this Court deems just and appropriate.
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Respectfully submitted,
/s/ Su Ming Yeh Su Ming Yeh (PA 95111) /s/ Matthew A. Feldman Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 (215)-925-2966 smyeh@pailp.org mfeldman@pailp.org

/s/ David Rudovsky David Rudovsky (PA 15168) /s/ Jonathan H. Feinberg Jonathan H. Feinberg (PA 88227) /s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 drudovsky@krlawphila.com jfeinberg@krlawphila.com slin@krlawphila.com

/s/ Nyssa Taylor Nyssa Taylor (PA 200885)* /s/ Witold J. Walczak Witold J. Walczak (PA 62976) /s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) /s/ Ali Szemanski Ali Szemanski (PA 327769)* AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 ntaylor@aclupa.org vwalczak@aclupa.org HNelson-Major@aclupa.org aszemanski@aclupa.org

/s/ Will W. Sachse Will W. Sachse (PA 84097) /s/ Benjamin R. Barnett Benjamin R. Barnett (PA 90752) /s/ Mary H. Kim Mary H. Kim* /s/ Nicolas A. Novy Nicolas A. Novy (PA 319499) /s/ Theeya Musitief Theeya Musitief (PA 327295)* DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 (215) 994-2496 Will.Sachse@dechert.com Ben.Barnett@dechert.com Mary.Kim@dechert.com Nicolas.Novy@dechert.com Theeya.Musitief@dechert.com

* indicates counsel who will seek admission or pro hac vice admission

Attorneys for Petitioners/Plaintiffs

DATE: April 20, 2020

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Case 2:20-cv-01959-BMS Document 1-1 Filed 04/20/20 Page 2 of 2

Attachment

Plaintiffs: THOMAS REMICK, NADIYAH WALKER, JAY DIAZ, MICHAEL ALEJANDRO, MICHAEL DANTZLER, ROBERT HINTON, JOSEPH WEISS, JOSEPH SKINNER, SADDAM ABDULLAH, and JAMES BETHEA, on behalf of themselves and all others similarly situated.

Plaintiffs’ Counsel:

/s/ Su Ming Yeh Su Ming Yeh (PA 95111) /s/ Matthew A. Feldman Matthew A. Feldman (PA 326723) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 T: 215-925-2966 smyeh@pailp.org mfeldman@pailp.org

/s/ David Rudovsky David Rudovsky (PA 15168) /s/ Jonathan H. Feinberg Jonathan H. Feinberg (PA 88227) /s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 drudovsky@krlawphila.com jfeinberg@krlawphila.com slin@krlawphila.com

/s/ Witold Walczak Witold Walczak (PA 62976) /s/ Nyssa Taylor* Nyssa Taylor (PA 200885) /s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) /s/ Ali Szemanski* Ali Szemanski (PA 327769) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 ntaylor@aclupa.org HNelson-Major@aclupa.org aszemanski@aclupa.org
* indicates counsel who will seek admission or pro hac vice admission

/s/ Will W. Sachse Will W. Sachse (PA 84097) /s/ Benjamin R. Barnett Benjamin R. Barnett (PA 90752) /s/ Mary H. Kim Mary H. Kim* /s/ Nicolas A. Novy Nicolas A. Novy (PA 319499) /s/ Theeya Musitief Theeya Musitief (PA 327295)* DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 Phone: (215) 994-2496 will.sachse@dechert.com Ben.Barnett@dechert.com Mary.Kim@dechert.com Nicolas.Novy@dechert.com Theeya.Musitief@dechert.com

Case 2:20-cv-01959-BMS Document 1-2 Filed 04/20/20 Page 1 of 1

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CASE MANAGEMENT TRACK DESIGNATION FORM

Thomas Remick, et al., on behalf of themselves and

:

all others similarly situated

:

v.

:

City of Philadelphia; and Blanche Carney, in her official :

capacity as Commissioner of Prisons

:

CIVIL ACTION NO. 20-cv-1959

In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for plaintiff shall complete a Case Management Track Designation Form in all civil cases at the time of filing the complaint and serve a copy on all defendants. (See § 1:03 of the plan set forth on the reverse side of this form.) In the event that a defendant does not agree with the plaintiff regarding said designation, that defendant shall, with its first appearance, submit to the clerk of court and serve on the plaintiff and all other parties, a Case Management Track Designation Form specifying the track to which that defendant believes the case should be assigned.

SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS:

(a) Habeas Corpus – Cases brought under 28 U.S.C. § 2241 through § 2255.

( X)

(b) Social Security – Cases requesting review of a decision of the Secretary of Health

and Human Services denying plaintiff Social Security Benefits.

()

(c) Arbitration – Cases required to be designated for arbitration under Local Civil Rule 53.2. ( )

(d) Asbestos – Cases involving claims for personal injury or property damage from

exposure to asbestos.

()

(e) Special Management – Cases that do not fall into tracks (a) through (d) that are

commonly referred to as complex and that need special or intense management by

the court. (See reverse side of this form for a detailed explanation of special

management cases.)

()

(f) Standard Management – Cases that do not fall into any one of the other tracks.

()

04/20/2020
Date
215-994-2529
Telephone

Nicolas A. Novy
Attorney-at-law
215-994-2222
FAX Number

Plaintiffs-Petitioners
Attorney for
nicolas.novy@dechert.com
E-Mail Address

(Civ. 660) 10/02

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Exhibit A

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Declaration of Joseph J. Amon, Ph.D. MSPH
I, Joseph J. Amon, declare as follows:
Background and Expertise
1. I am an infectious disease epidemiologist, Director of Global Health and Clinical Professor in the department of Community Health and Prevention at the Drexel Dornsife School of Public Health. I also hold an appointment as an Associate in the department of epidemiology of the Johns Hopkins University Bloomberg School of Public Health. My Ph.D. is from the Uniformed Services University of the Health Sciences in Bethesda, Maryland and my Master of Science in Public Health (MSPH) degree in Tropical Medicine is from the Tulane University School of Public Health and Tropical Medicine.
2. Prior to my current position, I have worked for a range of non-governmental organizations and as an epidemiologist in the Epidemic Intelligence Service of the US Centers for Disease Control and Prevention. Between 2010 and 2018, I was a Visiting Lecturer at Princeton University, teaching courses on epidemiology and global health. I currently serve on advisory boards for UNAIDS and the Global Fund against HIV, TB and Malaria and have previously served on advisory committees for the World Health Organization.
3. I have published 60 peer-reviewed journal articles and more than 100 book chapters, letters, commentaries and opinion articles on issues related to public health and health policy.
4. One of my main areas of research focus relates to infectious disease control, clinical care, and obligations of government related to individuals in detention settings, in which I have published a number of reports assessing health issues in prison and detention settings and more than a dozen peer-reviewed articles. In 2015-2016, I was a co-editor of a special issue of the British journal, “The Lancet,” on HIV, TB and hepatitis in prisons. I also serve on the editorial boards of two public health journals. My resume is attached as Exhibit A.
Information on COVID-19 and Vulnerable Populations
5. COVID-19 is a coronavirus disease that has reached pandemic status. As of today (4/19), according to the World Health Organization 2,245,872 confirmed cases have been diagnosed in 213 countries or territories around the world and more than 152,707 deaths due to COVID-19 have been reported.1 In the United States, which has the highest number of reported cases in the world, 695,353 confirmed cases have been reported with the disease and 32,427 people have died thus far,2 though
1 See https://www.who.int/emergencies/diseases/novel-coronavirus-2019 accessed April 19, 2020.
2 See https://covid19.who.int/region/amro/country/us accessed April 19, 2020

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these numbers likely underreport the actual infections and deaths.3 In Pennsylvania,
as of 12:00 pm on April 18, 2020, there were 31, 069 confirmed cases and 836 deaths reported by the state department of health.4 In Philadelphia alone, as of April
17, 2020 there were a total of 8,563 cases and 298 deaths. Friday, April 17th, saw a one-day increase in the city of 518 new cases and 24 deaths.5 Since March 6, there
have been 2,618 individuals hospitalized due to COVID-19, with 99% of those cases occurring in individuals age 25 years or older.6 There has been an exponential
increase in cases in Philadelphia since March 12 with the number of people infected increasing, on average, by 20% every day7:

# of Cases (Cumulative)

Number of Confirmed Cases of COVID-19 in Philadelphia, PA March 17 - April 17, 2020

9000

8000

7000

6000

5000

4000

3000

2000

1000

0

3/17

3/21

3/25

3/29

4/2

4/6

4/10

4/14

4/18

Date

6. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death. There is no vaccine to prevent COVID19. There is no known cure or proven anti-viral treatment for COVID-19 at this time. The specific mechanism of mortality of critically ill COVID-19 patients is
3 See https://www.washingtonpost.com/national/us-deaths-from-coronavirus-top-1000-amid-incompletereporting-from-authorities-and-anguish-from-those-left-behind/2020/03/26/2c487ba2-6ad0-11ea-992357073adce27c_story.html accessed April 3, 2020.
4 See https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx accessed April 17, 2020; 5 See Update on COVID-19 Coronavirus Response in Philadelphia, available at https://www.facebook.com/phillyhealth/videos/2975919772519206/.(As reported by Dr. Thomas Farley, Philadelphia’s Commissioner of Public Health). 6 Ibid; https://www.arcgis.com/apps/opsdashboard/index.html#/85054b06472e4208b02285b8557f24cf accessed April 17, 2020. 7 See http://91-divoc.com/pages/covid-visualization/ accessed April 12, 2020

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uncertain but may be related to virus-induced acute lung injury, inflammatory response, multiple organ damage and secondary nosocomial infections.
7. The World Health Organization (WHO) identifies individuals at highest risk to include those over 60 years of age and those with cardiovascular disease, diabetes, chronic respiratory disease, and cancer.8 The WHO further states that the risk of severe disease increases with age starting from around 40 years.
8. The US CDC identifies “older adults [65 and older] and people of any age who have serious underlying medical conditions” as at higher risk of severe disease and death.9 The CDC identifies underlying medical conditions to include: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease (“including asthma or chronic obstructive pulmonary disease [chronic bronchitis or emphysema] or other chronic conditions associated with impaired lung function”), neurological and neurologic and neurodevelopmental conditions “[including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability…”], and current or recent pregnancy.10 The CDC also identifies individuals with a body mass index (BMI) greater than 40 to be at higher risk for severe illness.11 According to the CDC, hypertension has been associated with increased illness severity and outcomes.12 Hypertension is the most common underlying condition, either alone or in combination with others, for people hospitalized for COVID-19.13 Based upon reports of a high proportion of ICU patients with cerebrovascular disease and diabetes, some researchers have speculated that increased risk of severe illness may be associated with common medicines (ACE2-stimulating drugs) prescribed for hypertension and diabetes.14
9. Data from US COVID-19 cases published by the CDC on March 19, 2020, found that hospitalization rates and intensive care unit (ICU) admission rates were nearly identical for individuals aged 45-54 and individuals aged 55-64 (between approximately 20-30% for both groups for hospitalization and between 5-11% for
8 See https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-sitrep-51-covid19.pdf?sfvrsn=1ba62e57_4 accessed March 21, 2020
9 See https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html accessed March 21, 2020
10 See https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf accessed March 21, 2020
11 See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html accessed April 3, 2020 12 https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html April 14, 2020. 13 See https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm?s_cid=mm6915e3_w accessed April 13, 2020. Hypertension may be an indicator of heart disease. It is a stronger indicator when coupled with high cholesterol. 14 See https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)301168/fulltext?fbclid=IwAR2oRXHweQuw3CLmgJuAh7q556SJ83lnw4m8_G9LK8GtppeAPUtwGG1Fn9o accessed April 3, 2020

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both groups for ICU admission).15 This suggests that individuals >45 years could be considered high risk for severe disease while those ≥54 years could be considered high risk for severe disease and death. In a recent CDC Morbidity and Mortality Weekly Report, 89% of patients hospitalized for COVID-19 had at least one underlying health condition. The most frequently reported underlying health conditions included hypertension (50%), obesity (48%), chronic metabolic disease, including diabetes (36%), chronic lung disease, including asthma and COPD (35%), cardiovascular disease (28%), neurological disease (14%), renal disease (13%), immunosuppressive conditions (10%), and gastrointestinal and liver disease (7%).16 While these findings do not demonstrate causality, the association of these conditions with individuals with severe illness is broadly consistent with other knowledge of the risk for severe illness from COVID-19 and other types of coronaviruses.
Health profile of plaintiffs
10. I have reviewed the declarations of the following individuals: Michael Alejandro, Joseph Skinner, Robert Hinton, Joseph Weiss, Jay Diaz (birth-name Jessica Garcia), Thomas Remick, Michael Dantzler, James Bethea, Saddam Abdullah, and Nadiyah Walker.
11. Michael Alejandro is a 27-year-old man held at the Detention Center in Philadelphia who reports having asthma. This condition puts him at increased risk for severe symptoms and death from COVID-19 if infected.
12. Joseph Skinner is 38-year-old man currently held at Curran Fromhold Correctional Facility (CFCF) facility in Philadelphia. Mr. Skinner reports having asthma, which in the past required hospitalization and intubation. This condition puts him at increased risk for severe symptoms and death from COVID-19 if infected.
13. Robert Hinton is a 63-year-old man held at CFCF. He reports having hepatitis C which previously caused damage to his liver. His age and medical condition puts him at increased risk for severe symptoms and death from COVID-19 if infected.
14. Joseph Weiss is a 57-year-old man held at CFCF. His age puts him at increased risk for severe symptoms and may put him at increased risk of death from COVID if infected.
15. Jay Diaz is a 30-year-old individual, held at Riverside Correctional Facility. He reports having asthma and stage 3 cervical and ovarian cancer. His medical conditions puts him at increased risk for severe symptoms and death from COVID-19
15 See https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm, accessed March 21, 2020 16 See https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm, accessed April 19, 2020.

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if infected.
16. Thomas Remick is a 30-year-old man, held at the Detention Center. He reports being diagnosed with aggressive sarcoma. His medical condition puts him at increased risk for severe symptoms and death from COVID-19 if infected.
17. Michael Dantzler is a 45-year-old man, held in the medical unit at the Detention Center. He reports having a vascular disease that makes him prone to blood clots and reports undergoing emergency surgery on February 20, 2020 to remove a pulmonary embolism, during that operation the doctor lacerated his kidney, and he must receive periodic imaging and medication to ensure the kidney heals properly. His medical conditions put him at increased risk for severe symptoms and death from COVID-19 if infected.
18. James Bethea is a 53-year-old man held at the Philadelphia Industrial Correctional Center (PICC). He reports having asthma, being a regular smoker, having diabetes, and a prior diagnosis of hepatitis C. In addition, he reports suffering from schizophrenia and bipolar disorder. His medical condition puts him at increased risk for severe symptoms and death from COVID-19 if infected.
19. Saddam Abdullah is a 29-year-old man held at PICC. He reports having severe asthma. His medical condition puts him at increased risk for severe symptoms and death from COVID-19 if infected. He also reports having symptoms consistent with those of COVID-19, including difficulty breathing, chills, and loss of smell and taste. He reports that despite being examined by medical staff, he was neither tested for COVID-19 or isolated from other patients and treated as a “suspect case”. If detention staff do not take immediate steps to isolate individuals reporting these types of symptoms, with or without accompanying fever, they are putting at risk everyone who comes in close contact (as defined by CDC as within six feet) with such individuals.
20. Nadiyah Walker is a 43-year-old woman held at RCF. She reports having epilepsy, diabetes, and asthma. Her medical condition puts her at increased risk for severe symptoms and death from COVID-19 if infected.
Understanding of COVID-19 Transmission
21. According to the US CDC, the disease is transmitted mainly between people who are in close contact with one another (within about 6 feet) via respiratory droplets produced when an infected person coughs or sneezes.17 It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to
17 See https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html accessed March 21, 2020

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be the main way the virus spreads.18 New data examining the potential for air and surface contamination, conducted in a hospital setting, suggests that the transmission distance of COVID-19 may extend to 4 meters or about 13 feet.19 This same study found that half the samples taken from the soles of the shoes of hospital staff were positive for SARS-CoV-2 virus.
22. People are thought to be most contagious when they are most symptomatic (the sickest), however there is increasing evidence of asymptomatic20 and presymptomatic transmission, and there remain unclear dynamics around “super spreader” events where large numbers of people become infected from one source. Speech and other vocal activities such as shouting or singing have been shown to generate air particles which could transmit the virus responsible for COVID-19, with the rate of emission corresponding to voice loudness. News outlets have reported that during a choir practice in Washington on March 10, presymptomatic transmission likely played a role in SARS-CoV-2 transmission to approximately 40 of 60 choir members.21 A recent report by the CDC of presymptomatic transmission in Singapore identified seven clusters of COVID-19 in which presymptomatic transmission likely occurred, accounting for 6.4% of locally acquired cases examined.22 These findings are similar to research outside of Hubei province, China, which found that 12.6% of transmissions could have occurred before symptom onset in the source patient.23 In a recent report from a Boston homeless shelter, of 397 people tested, 146 (37%) tested positive for the coronavirus. All reported no symptoms.24 In some studies, up to half of individuals testing positive for the coronavirus reported no or mild symptoms.25 While the degree of asymptomatic transmission remains uncertain, a CDC MMWR stated that, “Because persons with asymptomatic and mild disease…are likely playing a role in transmission and spread of COVID-19 in the community, social distancing and everyday preventive behaviors are recommended for persons of all ages to slow the spread of the virus, protect the health care system from being overloaded, and protect older adults and persons of any age with serious underlying medical conditions.”26
18 See https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html accessed March 21, 2020 19 See https://wwwnc.cdc.gov/eid/article/26/7/20-0885_article accessed April 13, 2020/ 20 See https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html accessed March 21, 2020; See also: Bai Y, Yao L, Wei T, et al. Presumed asymptomatic carrier transmission of COVID-19.JAMA. Published online February 21, 2020. doi:10.1001/jama.2020.2565 and Zhang W, Du RH, Li B, et al. Molecular and serological investigation of 2019-nCoV infected patients: implication of multiple shedding routes. Emerg Microbes Infect. 2020;9(1):386-389. 21 See https://www.latimes.com/world-nation/story/2020-03-29/coronavirus-choir-outbreak accessed April 2, 2020 22 See https://www.cdc.gov/mmwr/volumes/69/wr/mm6914e1.htm?s_cid=mm6914e1_w accessed April 2, 2020 23 See https://wwwnc.cdc.gov/eid/article/26/6/20-0357_article accessed April 2, 2020 24 CDC Reviewing ‘Stunning’ Universal Testing Results from Boston Homless Shelter, Boston 25 News https://www.boston25news.com/news/cdc-reviewing-stunning-universal-testing-results-boston-homelessshelter/Z253TFBO6RG4HCUAARBO4YWO64/ (April 15, 2020). 25 See Pien Huang, What We Know About The Silent Spreaders Of COVID-19, NATIONAL PUBLIC RADIO (Apr. 13, 2020), https://www.npr.org/sections/goatsandsoda/2020/04/13/831883560/can-a-coronavirus-patient-who-isntshowing-symptoms-infect-others. 26 See Coronavirus Disease 2019 in Children — United States, February 12–April 2, 2020, CENTERS FOR DISEASE CONTROL & PREVENTION (Apr. 20, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6914e4.htm?s_cid=mm6914e4_w.

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23. The understanding of direct transmission as the most likely means of SARSCoV-2 coronavirus transmission combined with evidence of asymptomatic and presymptomatic transmission suggests that, while hand washing and disinfecting surfaces is advisable, the main strategy for limiting disease transmission is social distancing and that for such distancing to be effective it must occur before individuals display symptoms.
24. Because of the risk of airborne spread, the CDC now recommends that everyone who is coming into contact with the air that others may breathe covers their face, though the CDC recognizes that a face covering is not a substitute for social distancing.27 On April 16, 2020, the Pennsylvania Department of Health called for everyone to wear masks in public spaces. The CDC guidance recommends washing these masks after use. The CDC further recommends that individuals not to touch their eyes, nose, and mouth when removing their face covering and, after removal, immediately wash their hands.28
25. Recognizing the importance of social distancing, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of risk mitigation strategy. 50 states, 7 territories, and the District of Columbia have taken some type of formal executive action in response to the COVID-19 outbreak.29 Through one form or another, these jurisdictions have declared, proclaimed, or ordered a state of emergency, public health emergency, or other preparedness and response activity for the outbreak. Earlier this month Pennsylvania Governor, Tom Wolf, declared a state of emergency, which he buttressed on March 19 with an order closing non-essential businesses.30 On April 1, Governor Wolf extended county-by-county stay at home orders to cover the entire state of Pennsylvania.31 These kinds of orders are quickly spreading nationwide, after beginning in California on March 19. As of April 7, at least 316 million people in at least 42 states, 3 counties, 9 cities, the District of Columbia, and Puerto Rico are being directed to stay home.32
26. These public health measures aim to “flatten the curve” of the rates of infection so that those most vulnerable to serious complications from infection will be least likely to be exposed and, if they are the numbers of infected individuals will be low enough that medical facilities will have enough beds, masks, and ventilators for those who need them.
27 See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html 28 See https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html 29 See https://www.astho.org/COVID-19/ accessed March 21, 2020 30 See https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-business-closure-
order.pdf
31See https://www.governor.pa.gov/newsroom/gov-wolf-sec-of-health-pennsylvania-on-statewide-stayat-home-order-beginning-at-8-pm-tonight-most-prudent-option-to-stop-the-spread/ accessed April 2, 2020.
32 See https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html accessed April 14, 2020.

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27. US cities are starting to see the level of COVID-19 cases seen in previous global hotspots. On Thursday, March 26, Governor Cuomo announced that 100 people had died of the coronavirus between Wednesday and Thursday morning. 33 As of Friday, March 27, the cumulative death toll in the state stood at 450.34 In response, the city’s health commissioner again urged all New Yorkers to follow the stay at home order, emphasizing the impact on the city’s already strained health system.35 As of April 18, 2020, New York City’s death toll had reached 12,712.36 Pennsylvania is roughly 10 days behind New York City, following a similar trendline of cases and deaths.37
Risk of COVID-19 in Jail Facilities
28. The conditions of jail facilities pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.
29. Jails are enclosed environments. These kinds of enclosed environments, like cruise ships and nursing homes, have seen higher rates of COVID-19 infection than the general population. Jails have even greater risk of COVID-19 transmission than other enclosed environments because of crowding within the facility, limited access to hygiene, and structural limitations. People in jails are housed in crowded spaces of limited size and are subjected to security measures that force them into close contact with guards. They cannot practice the “social distancing” necessary to effectively prevent the spread of COVID-19. Bathrooms facilities—toilets, showers, and sinks— phones, and other common areas are shared, without adequate surface disinfection between users. Food preparation and distribution without proper precautions also presents a further site for the virus to spread. Infectious spread presents a particular challenge in these facilities where the population often is disproportionately vulnerable, while facilities provide limited medical care.38
30. CDC guidance on correctional and detention facilities,39 posted March 23, 2020, specifically recommends implementing social distancing strategies to increase the
33 See https://www.nytimes.com/2020/03/26/world/coronavirusnews.html?action=click&pgtype=Article&state=default&module=stylncoronavirus&variant=show&region=TOP_BANNER&context=storyline_menu?action=click&pgtype=Article&st ate=default&module=styln-coronavirus&variant=show&region=TOP_BANNER&context=storyline_menu#link18cce12f accessed March 26, 2020.
34 https://nypost.com/2020/03/27/another-84-people-killed-by-coronavirus-in-new-york-city/ accessed March 28, 2020.
35 See https://nypost.com/2020/03/25/de-blasio-warns-half-of-all-new-yorkers-will-get-covid-19/ accessed March 26, 2020.
36 See https://nypost.com/2020/04/18/nyc-coronavirus-deaths-near-13000-but-daily-toll-is-going-down/ accessed April 19, 2020. 37 See https://www.businessinsider.com/new-york-city-coronavirus-cases-over-time-chart-2020-3 accessed March
26, 2020. 38 https://www.prisonpolicy.org/health.html accessed March 26, 2020. 39 See: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-
detention.html accessed March 23, 2020

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physical space between incarcerated/detained persons “ideally 6 feet between all individuals, regardless of the presence of symptoms” including: 1) increased space between individuals in holding cells, as well as in lines and waiting areas such as intake; stagger time in recreation spaces; restrict recreation space usage to a single housing unit per space; 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; limit the size of group activities; reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions.
31. The CDC guidance also describes necessary disinfection procedures including to thoroughly clean and disinfect all areas where a confirmed or suspected COVID-19 case spent time.40
32. The CDC guidance also recommends that correctional facilities provide a no-cost supply of soap, preferably liquid soap, sufficient to allow frequent hand washing.
33. Based upon the declarations I reviewed (paragraph 10 above), the Philadelphia Department of Prisons (PDP) does not appear to be adopting the procedures necessary to prevent COVID-19 transmission. The physical infrastructure and routine practice of Philadelphia jails raise significant challenges to maintaining distancing between detainees and preventative hygiene by those within the facilities. These challenges, which are typical of most detention centers, include
a) People housed in PDP facilities either live in a dormitory setting (such as those described by plaintiffs housed in the Detention Center where approximately 30 men live in the same room and sleep within 6 feet of each other) or are routinely double-celled. People at all PDP facilities share showers, sinks and toilets. In addition, large groups of people share the same phones. Using the phones requires standing within two feet of other people for extended periods. As a result, no one held within PDP facilities can practice social distancing to the extent required by CDC necessary to prevent the spread of COVID-19.
b) Access to soap is limited, with many people in the PDP going days without the use of soap to wash their hands. Nor does PDP provide hand sanitizer to those incarcerated with its facilities.
c) Correctional officers inconsistently use masks and often interact with incarcerated people without masks.
d) Though PDP distributed cloth-face-coverings to incarcerated people, people in PDP facilities are not able to clean or wash their face coverings. Nor did PDP provide people with additional coverings to allow for alternating and cleaning their masks.
40 Ibid

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e) Facilities used by multiple people, including toilets, showers, and telephones are not cleaned or disinfected on a regular basis.
f) People incarcerated within PDP have no regular access to cleaning materials to clean and disinfect their cells or living quarters.
g) PDP has adopted inconsistent practices for quarantining people newly admitted to PDP facilities.
h) People who display symptoms of COVID-19 within the facilities have not been tested or isolated from others and remain in general population. PDP medical staff appear not to be testing all people who exhibit symptoms of COVID-19.
i) As is true in detention facilities generally, communal bathroom facilities pose a risk of transmission and it is not usually possible for an incarcerated person to move throughout PDP without coming into contact with many other people.
j) Access to medical care is inadequate at PDP. There are delays in individuals’ ability to access care.
34. Based upon the information provided to me, and my prior knowledge of detention facilities, I am concerned that the Philadelphia Department of Prisons does not have the ability to implement the critically important principle of social distancing, such as maintaining six feet of separation at all times between detainees, including at meals and with the location of beds. Where detention facilities house detained individuals in dormitory style arrangements or small cells where they are crowded and bunked together and must share phones, bathrooms, and showers, these facilities will not be able to prevent or slow COVID-19 transmission.
35. Nor am I aware of the necessary measures being taken at the PDP to identify and properly quarantine individuals at high risk, those with potential exposure to suspected or confirmed cases or to isolate those with symptoms consistent with COVID-19. These steps are essential to preventing transmission of COVID-19.
36. Introduction of new people into detention facilities who have had contact with the community outside the facility—be it correctional officers and other staff, new individuals coming into custody, people on work release, or individuals serving intermediate sentences—creates a link from transmission occurring in the community to those who are detained. The possibility of asymptomatic transmission means that monitoring fever of staff or detainees is inadequate for identifying all who may be infected and preventing transmission. This is also true because not all individuals infected with COVID-19 report fever in early stages of infection.
37. The alternative is to test all staff and detainees entering the facility. However, this would require frequent (daily) tests, implemented at multiple times a day as staff and detainees entered the facility. In addition to the cost and labor required to implement

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this approach, the United States is currently facing a shortage of COVID-19 tests that make such a solution impracticable: In a survey of U.S. cities (that included Philadelphia, Pittsburgh, Erie, and Easton), 92.1% of cities reported that they do not have an adequate supply of test kits.41 Shortages are likely to become more severe over the next three to four weeks when there will be a major shortage of chemical reagents for COVID-19 testing and enormous increases in demand.42 Given the shortage of COVID-19 testing in the United States, it is likely that jails are and will continue to be unable to conduct aggressive, widespread testing to identify all positive cases of COVID-19. The lack of widespread testing in communities and the current presence of COVID-19 in all 50 states means that it is impractical to ask detainees about their travel history– all communities should be assumed to have community transmission which is why statewide and national restrictions on movement and gatherings have been put in place.
Heightened Rates of COVID-19 Infection and Spread Within Detention Facilities
38. The rates of spread in the facilities that have been testing for COVID-19 illustrates the dangers the conditions in these facilities pose to those who are detained there, and to the broader community. In Cook County Jail, Chicago in a matter of two days, the number of individuals infected jumped from 38 inmates43 to 89 inmates and 12 staff members.44 As of April 1, there were 167 confirmed cases among detained individuals, even after the jail released 400 individuals.45 At Rikers Island in New York, on Saturday March 21, a jail oversight agency indicated that 21 inmates and 17 employees tested positive.46 Four days later, on Wednesday, March 26, 75 inmates and 37 employees tested positive.47 As of Tuesday, March 31, 141 staff and 180 individuals in custody had tested positive at Rikers and city jails in New York City.48 The Legal Aid Society in New York recently reported that the infection rate for COVID-19 at local jails is more than seven times higher than the rate citywide and 87 times higher than the country at large.49
39. On Friday, March 27, 2020, the first incarcerated person in PDP tested positive for COVID-19.50 Since that time, the number of infections within Philadelphia’s jails has
41 https://www.usmayors.org/issues/covid-19/equipment-survey/ accessed March 28, 2020. 42 https://www.nytimes.com/2020/03/27/opinion/coronavirus-trump-testing-shortages.html accessed March 28,
2020. 43 See https://www.nbcchicago.com/news/local/cook-county-jail-says-17-inmates-have-tested-positive-for-
coronavirus/2244652/ accessed March 26, 2020. 44 See https://www.politico.com/news/2020/03/29/federal-prison-first-coronavirus-death-153387 accessed March
29, 2020. 45 See https://www.nbcchicago.com/news/local/167-cook-county-jail-detainees-have-tested-positive-for-covid-19officials-say/2248892/ accessed April 2, 2020. 46 https://www.nbcnewyork.com/news/coronavirus/21-inmates-17-employees-test-positive-for-covid-19-on-rikers-
island-officials/2338242/ accessed March 23, 2020. 47 See https://nypost.com/2020/03/25/new-coronavirus-cases-in-nyc-jails-outpacing-rest-of-the-city/ accessed March
26, 2020 48 See https://www.theguardian.com/us-news/2020/apr/01/rikers-island-jail-coronavirus-public-health-disaster
accessed April 2, 2020. 49 See: https://newyork.cbslocal.com/2020/03/26/coronavirus-rikers-island/ accessed March 26, 2020 50 https://www.phila.gov/2020-03-27-city-provides-update-on-covid-19-for-friday-march-27-2020/

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risen exponentially. Over the past week, each day between 1 and 13 new people test positive for the virus within PDP. On April Thursday 16, 2020, the City reported approximately a total 100 of incarcerated people tested positive for the virus within PDP.51 On Friday, Commissioner of Public Health Dr. Thomas Farley reported 13 additional new cases incarcerated people with the virus within PDP.52
40. On April 14, 2020 a woman in her forties held at Riverside Correctional Facility, was the first incarcerated person to die as a result of COVID19.53 It was reported that she had underlying medical conditions but the city government did not specify what conditions she had.
41. In addition to the incarcerated people, the rate of infection among correctional officers has risen exponentially. Although PDP’s Commissioner, Blanche Carney, declined to report the total number of correctional employees who contracted the virus, the prison’s labor union business agent, Eric Hill informed reporters that as of Tuesday, April 14th, 43 officers tested positive. Hill warned this was only a selfreported number and the true number of prison employees who contracted the virus could be higher.54
42. The data above confirms high rates of infection among correctional officers and other staff. These individuals all face an increased risk of COVID-19 exposure as they are less able to practice the recommended strategy of social distancing in carrying out their official duties. If corrections officers are significantly affected by COVID-19, whether through being infected, exposed by detainees, their fellow officers or in the community, large numbers will be unavailable to work due to self-quarantine or isolation, at the same time that large numbers of detainees who are potentially exposed will need to be put into individual isolation or transferred to advanced medical care, putting tremendous stress on detention facilities.
Infrastructure in Detention Facilities Will Likely Be Insufficient to Address Needs of COVID-19 Patients
43. Once COVID-19 enters into detention facilities, these facilities will likely be unable to address the infectious spread and the needs of infected individuals due to lack of testing and insufficient physical and medical infrastructure.
44. In cases where there are confirmed or suspected cases of COVID-19, the CDC recommends medical isolation, defined by the CDC confining the case “ideally to a single cell with solid walls and a solid door that closes” to prevent contact with others
51 Philadelphia’s Managing Director Brian Abernathy provided this information during Mayor Kenney’s April 16th, 2020 press conference at approximately the 25 minute mark. See https://www.phila.gov/programs/coronavirusdisease-2019-covid-19/updates/ 52 See Update on COVID-19 Coronavirus Response in Philadelphia, available at https://www.facebook.com/phillyhealth/videos/2975919772519206/. 53 https://www.phila.gov/2020-04-14-city-provides-update-on-covid-19-for-april-14-2020/ 54 Claudia Vargas, Prisoners Not Being Released from City, State Prisons not Being Tested for COVID-19, NBC Philadlephia, https://www.nbcphiladelphia.com/investigators/prisoners-being-released-from-city-state-prisons-arenot-being-tested-for-covid-19/2365885/ (April 16, 2020).

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and to reduce the risk of transmission. Individuals in isolation should also be provided their own bathroom space.55
45. Individuals in close contact of a confirmed or suspected COVID-19 case - defined by the CDC as having been within approximately 6 feet of the individual for a prolonged period of time or having had direct contact with secretions of a COVID-19 case (e.g., have been coughed on) – should be quarantined for a period of 14 days. The same precautions should be taken for housing someone in quarantine as for someone who is a confirmed or suspected COVID-19 case put in isolation.56
46. The CDC guidance recognizes that housing detainees in isolation and quarantine individually, while “preferred”, may not be feasible in all county jail settings and discusses the practice of “cohorting” when individual space is limited. The term “cohorting” refers to the practice of isolating multiple laboratory-confirmed COVID19 cases together as a group or quarantining close contacts of a particular case together as a group. The guidance states specifically that "Cohorting should only be practiced if there are no other available options” and exhorts correctional officials: “Do not cohort confirmed cases with suspected cases or case contacts.” [emphasis in original]. Individuals who are close contacts of different cases should also not be kept together.
47. The CDC guidance also says that detention facilities should “Ensure that cohorted cases wear face masks at all times.”57 This is critical because not all close contacts may be infected and those not infected must be protected from those who are if individuals are cohorted. In a survey of United States cities, 91.5% of the cities reported that they do not have an adequate supply of face masks for their first responders and medical personnel.58 There are also widespread shortages of personal protective equipment — particularly N-95 masks — sufficient to provide even for health care workers, in our nation’s hospitals, let alone medical providers and other individuals coming into contact with the virus in county jails .59 Many public health leaders are calling for masks to be reserved for health care staff, who face increased risk and are vitally needed to sustain emergency care. Hospitals in the New York City area, unable to access masks locally, are reportedly turning to a private distributor to airlift millions of protective masks out of China.60
48. Cloth face masks, like the ones provided to those within PDP, are not considered by the Pennsylvania Health department as personal protective equipment.61 However, the
55 Ibid. 56 Ibid 57 Ibid
58 https://www.usmayors.org/issues/covid-19/equipment-survey/ accessed March 28, 2020. 59 https://www.nytimes.com/2020/03/27/opinion/coronavirus-trump-testing-shortages.html accessed
March 28, 2020.
60 See: https://lancasteronline.com/news/health/hospital-suppliers-take-to-the-skies-to-combat-direshortages/article_0830ffb0-6f89-11ea-89ed-bbd859186614.html accessed March 26, 2020
61 https://www.health.pa.gov/topics/Documents/Diseases%20and%20Conditions/ Homemade%20Mask%20Guidance.pdf

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health department recognizes that homemade masks can be an effective complement to handwashing, social-distancing and other mitigation measures. Nonetheless, they are effective only when used in combination with frequent hand-cleaning with alcohol-based hand rub or soap and water. To properly clean and sanitize masks, according to the CDC, they should be washed with a washing machine.62 Detainees should be instructed in how to properly put on and take off masks, including cleaning their hands every time they touch the mask, covering the mouth and nose with the mask and making sure there are no gaps, avoiding touching the mask while using it; and replacing the mask with a new one if it becomes damp (e.g., from sneezing) and not to re-use single-use masks. For those wearing the cloth masks on a continuous basis, the masks should be replaced and washed daily. There are times when detainees will necessarily not be able to wear masks, if available. For example, during meals. In these instances, detainees should eat individually or with proper distancing from others.
49. Where individual rooms are not available, the CDC guidance describes a hierarchy of next best options for cohorting, which in order from lesser risk to greater risk includes housing individuals under medical isolation: 1) in a large, well-ventilated cell with solid walls and a solid door that closes fully; 2) in a large, well-ventilated cell with solid walls but without a solid door; 3) in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells; 4) 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.63
50. Many jails and prisons also lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. As examples, jails often use practical nurses who practice beyond the scope of their licenses; have part-time physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals.
51. According to Commissioner of Health Dr. Thomas Farley, as of April 17, 2020, 33% of Philadelphia’s hospital beds and ICU beds were still available.64 In other public data, as of April 19, 2020 the City of Philadelphia reports having only 252 remaining ICU beds available.65 Large numbers of ill detainees and corrections staff will strain Philadelphia’s medical infrastructure. If infection spreads throughout Philadelphia’s jails, overwhelming the facilities own limited resources, the burden of caring for these individuals will shift to local medical facilities. The few facilities will likely not be able to provide care to all infected individuals with serious cases, increasing the likelihood that these individuals will die.66
62 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html 63 Ibid 64 See Update on COVID-19 Coronavirus Response in Philadelphia, available at https://www.facebook.com/phillyhealth/videos/2975919772519206/. 65 See https://www.arcgis.com/apps/opsdashboard/index.html#/85054b06472e4208b02285b8557f24cf (accessed April 19, 2020). 66 See https://www.post-gazette.com/news/health/2020/03/20/Rural-counties-in-Pennsylvania-struggle-on-theirown-as-COVID-19-spreads/stories/202003180034 accessed March 23, 2002. Even in regions with highly developed

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Existing Protocols Will Not Prevent Introduction of COVID-19
52. I have reviewed the PDP Response to COVID-1967 released on April 13, 2020 and PDP’s COVID-19 Frequently Asked Questions.
53. Based on my training and decades of professional experience in public health, the procedures described therein are entirely inadequate to prevent or mitigate the rapid transmission of COVID-19 in Philadelphia’s jails. I am unaware of any epidemiologist or any public health expert who would consider these procedures to be sufficient preventive measures. The protocols do not sufficiently implement any of the preventative measures outlined below. The lack of specific attention to date in PDP’s guidance on COVID-19 indicates 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.
54. Social distancing: Although PDP recognizes that social distancing is an important preventive measure, its guidance remains woefully inadequate. The PDP Response to COVID-19 document refers to inmate social distancing only in the context of official/legal visits. Nothing is stated in reference to how social distancing among inmates will be carried out.
a) The PDP protocol notes that inmates will be “housed shelter-in-place” and only have limited movement outside of their cells for showers and phone calls. The Protocol further notes “to allow for increased social distancing” certain staff will be working on a rotational basis, one week on and one week off. The protocol only notes that “social distancing” will occur during official and legal visits. While PDP correctly recognizes the importance of social distancing, these suggested steps fall woefully short of what is necessary to prevent transmission of COVID-19 and say nothing about crowding in housing units.
b) While the prison population has declined approximately 13 percent in the last month,68 this population decrease provides no indication that to believe that social distancing within dormitories and cells will be possible when the facilities are operating at close to normal capacity. To the contrary, according to two of the plaintiffs, when the population of jails increase, staff consolidate the remaining people into limited sections of the units. The plaintiffs report most people remain double-celled. Nor is there any indication that social distancing will be possible where bathrooms and phones are shared by many individuals.
c) Nor has PDP made any functional attempt to improve social distancing within the facilities. No Plaintiffs reported beds moved to accommodate more space
health systems, COVID-19 is straining ability to care, creating cause for alarm for less-equipped health care systems in regions that do not act to mitigate risk of infection. See https://www.nytimes.com/2020/03/12/world/europe/12italy-coronavirus-health-care.html accessed March 23, 2020 67 https://www.phila.gov/media/20200413152258/PDP-Response-COVID-19.pdf 68 See First Death Reported in Philadelphia Prison System, https://whyy.org/articles/coronavirus-update-growth-ofpa-cases-continues-to-slow-police-urge-asian-americans-to-report-hate-crimes/ (April 14, 2020).

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between people while sleeping.
55. Screening Measures: PDP’s protocols do not address how the facilities will account for the large number of people who have already been exposed to COVID-19. This includes not only new detainees, but also staff, vendors and other individuals who go in and out of detention facilities. Screening measures will not be sufficient to identify infected individuals who come into PDP facilities because of presymptomatic and asymptomatic transmission and community spread, which make temperature checks insufficient. Facilities would also need increased physical space to isolate those who may be infected upon entry. a) The FAQ states that “Before entry, every employee/vendor/attorney/etc. will be screened at each point of entry, every time he/she enters a PDP facility. When entering a PDP facility, employees will be asked to tell medical personnel if they have a fever, dry cough or shortness of breath- the significant symptoms of COVID-19.” These are “significant symptoms” of COVID-19 but individuals with COVID-19 may be asymptomatic or presymptomatic and other symptoms are also associated with COVID-19. The FAQ goes on to state that employees, attorneys, and non-PDP City staff will not be permitted entry if they are symptomatic. Again, this is insufficient. At a minimum, staff and vendors answering affirmative to any of the following questions should be told to isolate or quarantine themselves and seek medical clearance before returning to work:  Have you experienced any symptoms of COVID-19 (fever, shortness of breath, sore throat, cough, temperature, loss of smell, loss of taste, myalgia, fatigue, nausea, diarrhea) since your last screening?  Have you had any close contact with anyone diagnosed with COVID19?  Have you had any close contact with anyone displaying symptoms of COVID-19 (shortness of breath, cough, temperature, loss of smell, loss of taste, fatigue, sore throat, myalgia, nausea, and diarrhea)?  Have you been in close contact with anyone who has been told to selfquarantine themselves?
b) PDP Protocol states that newly admitted people will be quarantined for 14 days and kept separate from the general population until cleared. Individuals are quarantined in cohorts (groups), however they are not given masks upon entering quarantine, are unable to maintain social distancing, and do not have consistent access to soap and disinfecting agents. Moreover, one plaintiff reported being transferred into general population within a couple days after sharing a cell with someone exhibiting COVID symptoms, violating the basic purpose of quarantine. It is difficult to manage the quarantining of all new intakes as each cohort must be quarantined for 14 days without admitting anyone new. If a new person is added to the cohort the period of quarantine must restart.

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56. Isolation: The CDC recommends medical isolation of confirmed or suspected cases. A range of strategies are presented for isolation depending upon the infrastructure of the facility, however what is recommended as the most effective approach is confining confirmed and suspected cases individually “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. Individuals in isolation should also be provided their own bathroom space.69 a) PDP protocol notes that “inmate exhibiting symptoms or self-reporting exposure will be removed from the standard intake quarantine area and housed separate on another facility or campus for presumed or possible cases.” The PDP protocol does not require isolation of confirmed or suspected cases, the protocol only that “housing units” may be isolated and those people who require COVID-19 assessment may be together in a facility with 100 beds. Such protocols will do nothing to mitigate the spread of this virus. b) Moreover, several plaintiffs reporting seeing or hearing multiple people on their unit who displayed symptoms of the virus. These symptomatic people remained on their unit in general population and in close proximity to others. Plaintiff Saddam Abdullah reports experiencing symptoms consistent with COVID-19 for over one week, yet the staff has not acted to test or isolate Mr. Abdullah from the rest of the men incarcerated in PICC. Allowing these symptomatic individuals to remain in general population endangers the health and safety of all those inside PDP facilities. c) The PDP protocol in general lacks a clear understanding of the difference between isolation and quarantine. Medical isolation refers to confining a confirmed or suspected COVID-19 case to prevent contact with others and to reduce the risk of transmission. Quarantine involves separating and restricting the movement of people who were close contacts of an individual who is sick with a contagious disease. The document refers to isolation, “quarantine” and “self-quarantine” only briefly and inappropriately.
57. Failure to Comply with Its Own Protocol: Even where PDP states that it is addressing this source of infection, discrepancies between the stated policies and the declarations of the plaintiffs provide a basis for concerns that ideal response plans are not being implemented. a) PDP states that staff will supply inmates with cleaning products and soap. Plaintiffs report not receiving either cleaning supplies or hand sanitizer or even a sufficient amount of soap to allow for hand cleaning. The lack of soap is such that several plaintiffs report being without soap for days. Moreover, all plaintiffs report that in order to obtain sufficient soap they must have access to money and purchase it from the commissary. b) Moreover, as noted above, it does not appear that PDP is following it’s own protocol when it comes to quarantining those coming into the prison or even testing and isolating symptomatic individuals.
69 Ibid.

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58. PPE: The CDC recognizes that masks are not a substitute for social distancing. Therefore, even when masks are worn, it is still important for facilities to practice social distancing. This is especially true where the masks are only cloth masks, not the medical grade N-95 masks that are being used in hospitals to prevent spread of COVID-19 between workers who come into close contact with the virus.
a) Plaintiffs report receiving one cloth-face-coverings per person, they have no ability to wash or clean these coverings and no ability to receive new masks. They report wearing the same mask without interruption for days or weeks. The distribution of one face-covering to each incarcerated person without providing a concomitant ability for the person to wash that covering will do nothing to mitigate the spread of the virus.
Conclusions
59. CDC guidance on correctional and detention facilities,70 posted March 23, 2020 reiterates many of the points previously made in this declaration, including: 1) Incarcerated/detained persons are at “heightened” risk for COVID-19 infection once the virus is introduced; 2) There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including from staff and transfer of incarcerated/detained persons; 3) Options for medical isolation of COVID-19 cases are limited; 4) Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19; 5) The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants; and 6) Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
60. The only viable public health strategy available is risk mitigation. Even with the bestlaid plans to address the spread of COVID-19 in detention facilities, the release of individuals who can be considered at high-risk of severe disease if infected with COVID-19 is a key part of a risk mitigation strategy. 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.
61. To the extent that vulnerable detainees have had exposure to known cases with laboratory-confirmed infection with the virus that causes COVID-19, they should be tested immediately in concert with the local health department. Those who test negative should be released to home quarantine for 14 days. Where there is not a suitable location for home quarantine available, these individuals could be released to housing identified by the county or state Department of Health.
70 See: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html accessed March 23, 2020

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62. Other individuals who may not be identified as high risk should also be considered for release. Reducing the overall number of individuals in detention facilities will facilitate social distancing for remaining detainees and lessen the burden of ensuring the safety of detainees and corrections officers.
63. Given the physical infrastructure of facilities, the challenges of providing security without close contact, and the lack of proper equipment (such as masks) to prevent transmission, I do not believe detention facilities are equipped to ensure the safety of those in their custody. Releasing individuals at highest risk who can then self-isolate – either in their homes or in facilities arranged by the local department of health – provides a significantly better likelihood of preventing infection, disease spread and death, both in the facility and in the community at large.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 19th day of April 2020 in Princeton, New Jersey.
Joseph J. Amon, PhD MSPH

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Exhibit B

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Declaration of Robert L. Cohen, M.D. Regarding the Spread of COVID-19 in the Philadelphia Department of Prisons Professional Background 1. I am an internist with expertise in correctional health care and the management of health care delivery systems in the correctional setting. I received my M.D. degree from Rush Medical College at Rush University. I have worked as a physician, administrator, and expert in the care of prisoners and persons with HIV infection for more than thirty years. I was Director of the Montefiore Rikers Island Health Services from 1981 to 1986. In 1986, I was Vice President for Medical Operations of the New York City Health and Hospitals Corporation. In 1989, I was appointed Director of the AIDS Center of St. Vincent’s Hospital. I represented the American Public Health Association (APHA) on the Board of the National Commission for Correctional Health Care for 17 years. I have served as a federal court monitor overseeing efforts to improve medical care for prisoners in Florida, Ohio, New York State, and Michigan. I have served as a testifying expert in numerous prior cases concerning medical care issues in the Philadelphia Department of Prisons (formerly known as the Philadelphia Prison System).1 I have been appointed to oversee the care of all prisoners living with AIDS in Connecticut, and I also serve on the nine-member New York City Board of Corrections. Coronavirus of 2019 Poses a Significant Threat in the PDP 2. Coronavirus disease of 2019 (COVID-19) is a pandemic. COVID-19 is caused by a novel coronavirus (SARS-CoV-2) for which there is no established curative medical treatment
1 My work in Philadelphia has included expert testimony on behalf of the plaintiff classes in Bowers v. City of Philadelphia, No. 06-cv-3229, and Williams v. City of Philadelphia, No. 08cv-1979. Additionally, the Philadelphia Court of Common Pleas appointed me to monitor the Philadelphia jail medical care system in 1991 in the Jackson v. Hendrick matter.
1

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and no vaccine. UpToDate2 reports an overall case mortality rate from the disease of 2.3 percent, though the rate ranges in different geographical regions.
3. The numbers of COVID-19 cases in Philadelphia and Pennsylvania are rising rapidly, resulting in a public health crisis. Pennsylvania was declared a major disaster area due to COVID-19 on March 30, 2020. Cases in the City of Philadelphia increased from the first positive tests on or about March 16, 2020 to 8,045 as of April 16, 2020.3 As of April 16, 2020, there were 27,735 cases in Pennsylvania.4
4. The current conditions in the Philadelphia Department of Prisons (PDP) create a high risk of contributing to an uncontrolled outbreak of COVID-19. Jails and prisons are long known to rapidly spread air-borne respiratory infection because they house a large number of persons held in cramped conditions with inadequate airflow. Tuberculosis, for example, is a respiratorally transmitted disease that is significantly less transmissible than COVID-19, yet it has been responsible for numerous outbreaks of illness in prisons and jails over the years. For this reason, the Centers for Disease Control and Prevention (CDC) recommend screening for tuberculosis in all jails and prisons. Everyone is at risk for COVID-19 infection, and, given the danger of transmission presented by COVID-19, jails and prisons require more intense screening and testing than conducted for tuberculosis.
5. Everyone who lives and works in a jail is at high risk of contracting the disease.
2 UpToDate is an online medical reference resource widely used in hospitals and health organizations and by private physicians. The 2.3 percent figure is from an update on April 4, 2020. 3 City of Philadelphia, Coronavirus Disease 2019 (COVID-19), https://www.phila.gov/programs/coronavirus-disease-2019-covid-19/testing-and-data/#covid-19positive-test-results 4 Pennsylvania Department of Health, COVID-19 Data for Pennsylvania, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx
2

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Jails promote the spread of respiratory illnesses because large groups of people are forced suddenly into crowded congregate housing arrangements. Normal civilian recommendations that are made with the expectation that individuals can safely shelter in place are not relevant to a jail where congregate living is forced on all who enter. This situation is complicated by the fact that custody and other personnel who care for detainees live in the community and can carry the virus into the facility with them and, just as concerning, out into the community at large.
6. At a time when (a) the President’s task force on COVID-19 recommends limiting gatherings to no more than 10 persons, (b) the President has declared a national emergency, (c) CDC recommends wearing a face mask in public settings where social distancing is difficult to maintain, and (d) there is a stay-at-home order in Pennsylvania through at least April 30, 2020, the City of Philadelphia has nearly 4,000 people residing in congregate living conditions in the PDP with a continuing influx of new admissions every day. Because of the structure of PDP’s facilities and manner in which daily activities occur in those facilities, incarcerated persons intermingle, and it is not possible to limit gatherings to less than 10 individuals or engage in social distancing required by public health guidance. The conditions in the PDP’s facilities are contrary to current public health recommendations. These circumstances have already, and will continue to, result in the spread of disease both within the PDP and to the broader community.
7. Indeed, there are already large numbers of confirmed cases of COVID-19 in the PDP. On Friday, March 27, 2020, the first incarcerated person in PDP tested positive for COVID-19.5 Since that time, the number of infections within Philadelphia’s jails rose exponentially. Over the past week, each day between 1 and 9 new people test positive for the virus within PDP. As of April 16, 2020 at 1pm, in total approximately 100 incarcerated people
5 https://www.phila.gov/2020-03-27-city-provides-update-on-covid-19-for-friday-march-272020/
3

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have tested positive for the virus within PDP.6 Within PDP, the infection rate appears to be more than double the rate of infection of the City as a whole.7 On April 17, 2020, at the City’s daily Update on COVID-19 Response in Philadelphia, Dr. Thomas Farley, Commissioner of Public Health, announced that there were 13 new cases in PDP.8
8. The PDP’s Commissioner has adopted a policy of not disclosing the number of correctional officers who have tested positive, but as of April 16, 2020, 43 officers had selfreported positive tests.9 Full disclosure of the quantitative metrics of the COVID-19 pandemic in the PDP is critical to provide those who work and live there, and those to whom they come home, full and up-to-date understanding of this evolving medical crisis. Critically, infection rates can identify preventive actions which are succeeding, and more importantly, prevention strategies which are not working.
9. Medical care for COVID-19 focuses on prevention, which emphasizes physical distancing, handwashing, respiratory hygiene, and the wearing of masks. Paper masks should be replaced daily, cloth masks can be washed and re-used, but must be washed on a daily basis. Improper use of masks can transfer the virus.10
6 Philadelphia’s Managing Director Brian Abernathy provided this information during Mayor Kenney’s April 16th, 2020 press conference at approximately the 25 minute mark. See https://www.phila.gov/programs/coronavirus-disease-2019-covid-19/updates/ 7 See The Defender Association Of Philadelphia, Covid-19 in Philly Jails avail at https://www.philadefender.org/wp-content/uploads/2020/04/Jail-Infection-Jurisdictions-andZip_Landing-Page_4.8.20.pdf. 8 This information was provided at the 12-minute mark of the press conference: https://www.facebook.com/phillyhealth/videos/2975919772519206/ at the 12minute mark 9 Prisoners Being Released from City, State Prisons Are Not Being Tested for COVID-19, NBC Philadelphia (April 16, 2020), https://www.nbcphiladelphia.com/investigators/prisoners-beingreleased-from-city-state-prisons-are-not-being-tested-for-covid-19/2365885/ 10 https://health.ny.gov/publications/7224/
4

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10. Currently, severe cases of the disease can be treated only with supportive care including respiratory isolation, oxygen, and mechanical ventilation. In cities with widespread disease, hospitals are anticipating a lack of ventilation equipment to handle the expected cases.
11. COVID-19 is transmitted by infected people when they sneeze or cough. Droplets of respiratory secretions infected with the virus can survive as an aerosol for up to three hours.11 Droplets can be directly transmitted by inhalation to other individuals in close proximity. Droplets can land on surfaces and be picked up by the hands of another person who can then become infected by contacting a mucous membrane (eyes, mouth, or nose) with their hand. Infected droplets can remain viable on surfaces for variable lengths of time, ranging from up to three hours on copper, 24 hours on cardboard, and two to three days on plastic and stainless steel.12
12. COVID-19 can be transmitted by asymptomatic individuals, and it is estimated that approximately six percent of infections are transmitted by asymptomatic persons.13 This is critical in a jail because persons coming into the jail or already in jail and newly infected may be asymptomatic, are confined in close quarters, and are passing the infection without outward signs of illness.
13. Infected individuals become symptomatic in a range of 2.5 to 11.5 days with 97.5 percent of infected individuals becoming symptomatic within 11.5 days. Typically, an infected individual becomes symptomatic around day five of their infection. The total incubation period is
11 National Institute of Health (available at https://www.nih.gov/news-events/news-releases/newcoronavirus-stable-hours-surfaces). 12 Id. 13 Wycliffe Wei, Zongbin Li, Calvin Chiew, Sarah Yong, Matthias Toh, and Vernon Lee, Presymptomatic Transmission of SARS-CoV-2 Singapore, January 23-March 16, 2020, Morbidity and Mortality Weekly Report, Vol. 69, April 1, 2020 (available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6914e1.htm).
5

Case 2:20-cv-01959-BMS Document 1-5 Filed 04/20/20 Page 7 of 22
thought to extend up to 14 days.14 Thus, persons coming into jails can be asymptomatic at intake screening only to become symptomatic later during incarceration. For that reason, a comprehensive correctional intake screening test for COVID-19, including COVID-19 testing, is essential. No person whose COVID-19 status is unknown should be admitted into the general population of PDP without being tested for the presence of virus. With the rapid testing now available, results can be available in less than an hour, and certainly within one day. COVID-19 testing of new admissions to the jail is the appropriate strategy for mitigating spread of the disease. Despite Some Appropriate Policy Measures Taken to Address COVID-19 in the PDP, Considerably More Must be Done to Protect Incarcerated Persons and the Community
14. I have reviewed the PDP’s published explanation of measures it has declared it will pursue to respond to COVID-19.15 Although some of the measures outlined in PDP’s public statement are appropriate, there are significant omissions which indicate that PDP is not taking sufficient action to limit the spread of COVID-19. I note that, for purposes of my commentary on these measures (paragraphs 15-22), I have assumed that PDP is actually implementing the measures it has described in its public statements. As discussed below (starting at paragraph 23), it appears that PDP is not appropriately implementing the measures it describes.
15. PDP’s policy is to quarantine all new admissions for 14 days. It would be more appropriate to test all new admissions, and then place them in the appropriate setting in the jails when results are available. Removing infected persons from the intake quarantine group as quickly as possible will reduce the likelihood of spread within the new intake population.
14 https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html#Asymptomatic 15 PDP Response to COVID-19, https://www.phila.gov/media/20200413152258/PDP-ResponseCOVID-19.pdf
6

Case 2:20-cv-01959-BMS Document 1-5 Filed 04/20/20 Page 8 of 22
Maintenance of a “new admission quarantine” group is difficult, and persons living in the jail have reported that PDP does not keep this group together for 14 days, with some people sent to general population after as little as 7 days.
16. PDP’s plan to quarantine symptomatic patients is appropriate, but the plan must include testing these persons for COVID-19. PDP’s plan states that symptomatic patients should be “assessed accordingly.” If “assessed accordingly” means testing for COVID-19, that is appropriate. If not, the plan should be revised to include testing of all symptomatic patients. Symptomatic persons and persons with confirmed COVID-19 diagnoses should be cohorted separately.
17. PDP describes a 100-bed facility for housing symptomatic and COVID-19 confirmed patients. The population of PDP is approximately 4,000. This 100-person facility will be filled very quickly. In New York City’s Jails, which also house a population of approximately 4,000, there are currently 362 persons who are confirmed COVID-19 positive. 143 more are under observation and may be COVID-10 positive.
18. The charts below show the scope of the epidemic in New York City’s jails, which as of April 19, 2020, had a population of 4,078 incarcerated people. The charts below show that as of Sunday, April 19, there were cumulatively 775 Department of Correction staff with confirmed COVID-19. 123 staff of the Correctional Health Services had confirmed COVID-19.
7

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Case 2:20-cv-01959-BMS Document 1-5 Filed 04/20/20 Page 11 of 22
19. PDP states that it will provide incarcerated people with masks, but this is not sufficient. If paper masks are provided, a new one must be provided every day. If cloth masks are provided, people who receive them should be given an opportunity to wash them at least once daily. Training on putting on masks, and training on the safe removal of masks must be provided by health staff.
20. A program of health education, provided by health trained professionals, not PDP security staff, must be provided, in addition to posting appropriate printed material encouraging physical distancing, handwashing, mask wearing, intensive surface cleaning, and hygienic coughing procedures, and showing the videos mentioned in the PDP Response document.
21. The PDP Response document makes no mention of physical distancing except for a section on counsel visits. Distancing should take place in every aspect of life within PDP facilities. For example, sleeping arrangements must allow for six feet of separation between beds in dormitory areas. When people housed in cells are permitted to leave their cells, distancing must be required. Distancing is not optional. It is essential for individuals to be able to separate six feet to prevent them from getting infected.
22. The PDP response essentially places the entire jail population in solitary confinement. There is no provision for at least four hours of day of out of cell time, which allows for at least two hours of large muscle recreation out of doors. Accounts Provided by Persons Incarcerated in PDP Facilities Show Deeply Concerning Trends Which Indicate that PDP is Placing the Incarcerated Population, and Especially the Medically Vulnerable Population, at Great Risk.
23. I have reviewed the Declarations of Saddam Abdullah, Michael Alejandro, James Bethea, Michael Dantzler, Jay Garcia, Robert Hinton, Thomas Remick, Joseph Skinner, Nadiyah Walker, and Joseph Weiss. Based upon this review, and assuming the truth of the statements
10

Case 2:20-cv-01959-BMS Document 1-5 Filed 04/20/20 Page 12 of 22
made in these Declarations, there are significant problems in the manner in which PDP is addressing COVID-19 in its facilities.
24. In summary, those Declarations establish the following patterns: a. People housed in PDP facilities either live in a dormitory setting, where more than 30 people sleep within 6 feet of each other, or are routinely doublecelled. People at all PDP facilities share showers, sinks and toilets. In addition, people share the phones, which are located less than 2 feet apart from each other. Using the phones requires standing within two feet of other people for extended periods of time. As a result, no one held within PDP facilities can practice social distancing to the extent required by CDC guidance necessary to prevent the spread of COVID-19. b. Many people incarcerated in PDP are double celled. c. Access to soap is limited, with many people incarcerated in the PDP going days without the use of soap to wash their hands. Nor does PDP provide hand sanitizer to those incarcerated with its facilities. d. Correctional officers inconsistently use masks and often interact with incarcerated people without masks. e. Though PDP has distributed cloth face coverings to incarcerated people, people in PDP facilities are not able to clean or wash their face coverings. Nor did PDP provide people with additional coverings to allow for alternating and cleaning their masks. f. Facilities used by multiple people, including toilets, showers, and telephones are not cleaned or disinfected on a regular basis.
11

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g. People incarcerated within PDP have no regular access to cleaning materials to clean and disinfect their cells or living quarters.
h. PDP has adopted inconsistent practices for quarantining people newly admitted to PDP facilities.
i. People who display symptoms of COVID-19 within the facilities have not been tested or isolated from others and remain in general population. PDP medical staff appear not to be testing all people who exhibit symptoms of COVID-19. Moreover, when incarcerated people do test positive for COVID19, PDP does not quarantine them for a sufficient length of time to ensure they are no longer contagious.
25. These patterns are deeply problematic. They demonstrate a failure to properly protect persons incarcerated in the PDP from the spread of COVID-19 and result in a substantial risk that the disease will be spread throughout the PDP’s facilities. The risk of spread within PDP’s facilities likewise presents a significant risk to the entire community given that correctional staff enter and exit PDP facilities every day. With significant spread of disease among people incarcerated in the PDP’s facilities, there is an enhanced likelihood of spread of the disease in the communities where correctional staff members live.
26. In review of the declarations referenced in paragraph 23, I have observed that several of these incarcerated persons have underlying medical conditions or illness that make them especially vulnerable to complications or death should they contract COVID-19.
27. Joseph Skinner has severe asthma, and required intubation in the past. He is 38 years old. COVID-19 presents as an upper respiratory illness, and progresses over several days
12

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to lower respiratory disease, and often severe pneumonia. Mr. Skinner is at high risk of serious complications and death should he become infected.
28. Robert Hinton is a 63 year old man with chronic Hepatitis C, and according to his description, cirrhosis. His age and his chronic liver disease with cirrhosis places him at high risk of serious complications and death should he become infected.
29. Joseph Weiss is 57 years old. He describes being exposed to an incarcerated person with a high fever. Because of his age, he is at high risk for becoming seriously ill and dying should he become infected.
30. Jay Diaz is 30 years old. He has two serious medical problems, asthma and ovarian cancer, which place him at high risk of serious complications and death should be become infected and develop COVID-19.
31. Thomas Remick is a 30-year-old man with a history of sarcoma, a cancer. For this reason he is at high risk for developing serious complications and death should be become infected with the coronavirus.
32. Michael Dantzler is a 45 year old. He has vascular disease and has had life threatening complications of his disease. Two months ago, on February 20, a blood clot caused a pulmonary embolism and he received emergency surgery. The surgery was complicated by a laceration of his kidney. Mr. Dantzler has serious underlying vascular disease which means he is at increased risk for serious complications and death should he become sick with COVID-19.
33. James Bethea is 53 years old. He has multiple medical problems including hepatitis C and diabetes. He also has serious mental illness for which he has been treated with anti-psychotic medications. Because of his age, his liver disease, his diabetes, and his serious
13

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mental illness, James Bethea is at increased risk of becoming seriously ill and dying should he contract COVID-19.
34. Saddam Abdullah is a 29 year old man. He has severe asthma. He had four asthma attacks in April which were not responsive to his inhaler. In these circumstances he requires a nebulizer to provide him with aerosolized medication. PDP Medical staff refused to provide Mr. Abdulla with his required nebulizer treatment because they were concerned that the nebulized might spread coronavirus treatment. The medical staff’s concern is not without merit, but Mr. Abdulla requires treatment for his asthma. He is at high risk for serious complications and death should he become infected.
35. Nadiyah Walker is a 43-year-old woman. She has epilepsy, asthma, diabetes and anemia. She has not been provided with the inhaler she uses to treat her asthma. Because of her asthma, she is at high risk for complications and death from COVID-19 infection. Patients with asthma and diabetes are a very high risk for complications and death from COVID-19 infection.
36. These medical issues are representative of what I would expect to see in a large urban jail. There is a high prevalence of serious chronic disease. Persons older than 50 are likely to have multiple chronic medical conditions and be receiving multiple medications. For these reasons, I expect that large portions of the PDP population are at risk of severe complications or death from COVID-19. This underscores the urgent need for PDP to engage in appropriate measures to limit the spread of COVID-19 among the incarcerated population in its facilities. Recommendations for Safe Management of COVID-19 in PDP
37. Incarcerated persons in quarantine or in isolation for suspicion or known infection must be monitored. Persons in quarantine should be monitored daily for symptoms and
14

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temperature. Individuals in isolation require multiple daily temperature checks and monitoring of blood oxygen levels to ensure stability. The required monitoring has had an effect – severely stressing or overwhelming – on staffing in facilities with significant infections. The COVID-19 pandemic has had a similar effect on staffing in most hospital settings.
38. All persons newly admitted to PDP should be tested for COVID-19. 39. Most persons being discharged from the PDP have uncertain COVID-19 status. All persons living and working in the jails are at very high risk of COVID-19 infection. Data published by the Philadelphia Defender Association suggest that rates within the PDP’s jails are close to three times the rates in the general population of Philadelphia.16 By comparison, the infection rates for persons living in New York City’s jails is more than 8,000 per 100,000, with 686 correctional officers having become infected as of April 16, 2020.17 If a person of unknown COVID-19 status is discharged from the jail quarantine, they have a significant likelihood of being infected, and they can infect persons they come into contact with in the community. For this reason, persons being discharged from PDP who have uncertain status need to be tested with a rapid COVID-19 test prior to discharge and given appropriate instructions on protecting themselves and others. Testing should not be used to delay release. Additionally, homeless persons who are COVID-19 positive and symptomatic should be provided a hotel room on release from jail until their condition has stabilized. 40. The current CDC recommendations for social distancing and frequent handwashing measures, which are the only measures available to protect against infection, are extremely unlikely to be adequately enforced in the current correctional environment at the PDP. The mandatory cleaning and sanitizing of all surfaces multiple times each day, in bathrooms,
16 https://www.philadefender.org/covid-philly-jails/. 17 https://www1.nyc.gov/site/boc/covid-19.page
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toilets, showers, tables, and all surfaces will be extremely difficult to ensure, as evidenced by the information provided in the above-referenced declarations. Adequate cleaning supplies and necessary personal protective equipment for all persons must be provided, including a daily disposable mask or a means to clean cloth masks. Alcohol based hand sanitizer should also be provided.
41. A large number of employees work in jails and prisons. These individuals have frequent contact with incarcerated persons, which often requires them to violate the recommended CDC guidelines for social distancing.18 Frequent handwashing is not easily available for inmates or staff. Their risk is considerable. As noted, at least 40 employees of the PDP self reported that they tested positive for COVID-19 as of April 16, 2020, and the number of infected employees will undoubtedly be larger when this Declaration is filed. These employees return to their homes and can and will transmit the infection to others in their families and community. In this sense, jails act as incubators of respiratory infectious disease. COVID-19 is experiencing a rapid and dramatic spread within the PDP and this ongoing outbreak is inevitably resulting in spread to the community. All staff entering the jail should be screened daily for temperature and symptoms, and should be sent home if they cannot pass the screen. Opinions and Conclusions
42. It is my opinion that at this time, testing for COVID-19 must be expanded to all persons admitted to PDP, all symptomatic persons, and all persons about to be discharged. These tests need to be done as rapidly as possible due to problems with potential for transmission in the quarantined population and the need to discharge people quickly. Rapid COVID-19 testing also
18 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html)
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needs to be expanded for as many people as possible because of the ongoing continuing rise in cases and continuing transmission within PDP’s jails. Implementation of this measure is necessary to protect both the population of incarcerated people and the civilian population who will be exposed to employees who work within the jails.
43. It is my opinion that—to the extent, for any reason, they are not immediately released—any incarcerated person over 50 and, certainly anyone over 55, or with severe mental illness, or a medical vulnerability as set forth below, along with all persons in quarantine or who have potentially been exposed to the virus should, immediately, have a daily symptom and temperature screening. An individual’s immune system is the primary defense against this infection. As a result, people over 55 years of age and persons with impaired immunity, including chronic diseases, have a higher probability of death if they are infected. It is important to note that the older a person is, the higher the likelihood of death; this is thought to be due to impaired immunity with aging. Persons of any age with a number of health conditions including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, severe obesity, and asthma, also have an elevated risk.19
44. Early reports estimate that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and
19 World Health Organization, Coronavirus disease (COVID-19) advice for the public: Myth busters (available at https://cutt.ly/dtEiCyc) (“Older people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to becoming severely ill with the virus.”); see CDC, “Groups at Higher Risk of Severe Illness” (available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-athigher-risk.html) .
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7.6% for cancer.20 Persons with severe mental illness in jails and prisons are also, in my opinion, at increased risk of acquiring and transmitting infection because of likely inability or impaired ability to communicate their symptoms and their difficulty in accessing care.
45. Any positive symptom or temperature should require respiratory isolation and testing for COVID-19. All symptomatic persons under investigation and known COVID-19 positive detainees need to have clinical monitoring every shift including vital signs (pulse, temperature, respirations) and pulse oximeter testing to determine respiratory status. This information is essential to identify patients who cannot be cared for in the jails who require hospitalization.
46. It is my opinion that all persons whom PDP anticipates discharging who have uncertain COVID-19 status need to be tested with a rapid COVID-19 test prior to discharge.
47. All symptomatic persons requiring discharge planning services to assure safe transition back to their community must have access to these services, including temporary housing.
48. Maintaining physical distance of six feet between incarcerated persons would not be possible in two person cells, which have a footprint of approximately 6’ by 9’. The bunk beds take up a large part of the available space, as does the sink and the toilet in these rooms. I have visited many two-person cells in PDP. They do not allow for maintenance of six feet of distance between persons. Similarly, dormitory housing at more than 50% utilization does not allow for maintenance of six feet distance between persons because beds are fixed to the floor much closer than six feet apart.
18

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49. COVID-19 is present in fecal matter. Persons sharing toilets which are not sterilized after each use may place persons at risk for infection by COVID-19 via fecal oral transmission.21 22
50. It is my opinion, consistent with CDC recommendations, that all incarcerated persons and staff should wear a facemask—and a facemask that is clean. Employees interacting with potentially positive people (most incarcerated people at this time) must wear CDC recommended personal protective equipment.
51. It is my opinion that all inmates in the PDP’s jails should receive full and free access to sanitation supplies (including soap, cleaning supplies, paper supplies and sanitizer with at least 60 percent alcohol) and adequate advice, orally and in writing, by appropriately trained health personnel, regarding the relevant symptoms to look for, the urgency of the social distancing, and appropriate use of PPE.
52. Free and unlimited phone calls should be available to mitigate the extreme stress of the prolonged solitary confinement status now operating at PDP facilities, and the banning of visits from family and friend. Alcohol or bleach wipes should be provided to each person before they make a phone call to allow them to sterilize the phone, both the handpiece and the phone’s keyboard. Adequate phones should be available to allow for increased use, and they should be spaced six feet apart.
53. PDP administration should document that cleaning supplies are available to persons working and living in the jail, that all surfaces in all housing and living areas are cleaned at least three/four times a day. This information should be published.
21 https://doi.org/10.1038/s41575-020-0295-7 22 https://linkinghub.elsevier.com/retrieve/pii/S0016508520302821
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54. It is my opinion that all persons housed in the Jail should receive information, both verbally and in writing, about the latest CDC and public health guidance about the COVID19 disease, including best practices and updated protocols as they emerge.
55. It is my opinion that all persons housed in the PDP should receive clean, laundered sheets and clothing at least twice a week, and showers with soap once per day, and at least two hours daily of large muscle recreation.
56. It is my opinion that sufficient physical distancing must be implemented throughout the PDP jails, including allowing for six feet of distance between inmates, in addition to the measures outlined above for those who are positive or symptomatic, pending test results.
57. It is my opinion that inmates must continue to have access to timely and emergency medical and mental health care as this virus continues to spread.
58. It is my opinion that statistics reflecting the state of the pandemic in PDP be published daily and provided to the community, including those who live and work in the jails. This data is essential to assure that current pandemic management plans are working, and to provide timely evidence if they are not, so that plans can be changed. Elements of this daily published report must include:
a. Number of patients with confirmed COVID-19 b. Number of patients tested each day c. Number of positive and number of negative results received each
day d. Number of correctional staff with confirmed COVID-19 positive
(cumulative) e. Number of health staff with confirmed COVID-19 (cumulative)
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f. Total number of incarcerated people over the age of 55 g. Total in infirmary status h. Total pregnant women in custody i. Number in quarantine status, including those quarantined upon
admission and those quarantined as a result of exposure to COVID-19 infected persons j. Number of symptomatic persons awaiting testing results k. Number of COVID-19 positive persons in cohorted housing l. Total hospitalized
i. Daily hospital admissions ii. Daily hospital discharges iii. Daily number of patients on ventilators iv. Deaths (daily and cumulative) 59. In reaching my opinions in this matter, I have relied on my personal expertise, professional experience in correctional medicine, as well as the statements referenced above regarding operations at the PDP I declare under penalty of perjury that the foregoing is true and correct. Executed this 20th day of April, 2020 in New York, New York.
21

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 1 of 36
Exhibit C

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 2 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF THOMAS REMICK THOMAS REMICK, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am a 30-year-old man serving a sentence of 11 ½ to 23 months of incarceration for robbery and burglary. I have been in custody since May 2019. I am held at the Detention Center (DC) in Philadelphia.
2. I was diagnosed with sarcoma in 2015, and had a tumor removed from my leg in 2016. The doctor told me my tumor was an aggressive type of cancer that commonly spreads to the lungs. As part of my medical care, I am supposed to have chest x-rays every 6 months. When I arrived at PDP a little over a year ago, I received one x-ray. I had a second x-ray in March, after my public defender complained to the prison.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 3 of 36
3. As a result of this medical condition, I understand that I am at heightened risk of severe symptoms and death due to COVID-19.
4. I have already filed grievances seeking assistance due to my medical condition. 5. In addition to my sarcoma condition, I have a broken kneecap as a result of a car accident
that occurred before my incarceration. While I was housed at CFCF, I wore a brace. When I entered DC, they took this brace away from me. 6. I also suffer from headaches and allergies. When I reported this to the medical staff, I was instructed to buy Tylenol from the commissary. 7. I am currently housed in Q dorm with 20 other people, though the dorm normally holds 48 people. This is a large open space with bunk beds, shared toilets, and sinks. However, even with fewer people, the beds in the dorm are still close together and we all sleep within 3 feet of other people. It is impossible for all of us to stay six feet apart from every other person while in the dorm. 8. Previously, I was housed in D Dorm, where there were mice on the bunks. 9. Most of the time, several people in Q dorm are coughing. 10. Two weeks ago, a man in Q Dorm became very ill, and started urinating and defecating on himself. The officers removed him from the dorm. 11. Recently, three new people were transferred to our block from E&D annex because the prison was planning on closing the annex and was spreading people out among the other dorms. However, the new people only stayed for lunch and then were moved back to their original dorm. I later learned that someone on the E&D annex had been sent to the hospital. The hospital tested him for COVID-19, the test came back positive, and that is why the prison returned everyone to E&D annex.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 4 of 36
12. One officer who works the 7 am to 3 pm shifts gives us cleaning supplies and lets us clean our dorm every three hours. When this officer is not on duty, the other officers keep the cleaning supplies locked up and refuse to give us access to them. As a result, we can only clean our dorms when this one specific officer is on duty.
13. We received face masks last week. We are supposed to be allowed to change them every Tuesday.
14. Not all of the people in my dorm wear their masks all the time. The officers told us that we have to wear the masks when we leave the dorm, but they do not make us wear them while in the dorm.
15. While I see officers with masks on when they are coming into or leaving our dorm, officers will sometimes remove their masks once they are on our dorm and are staying for a shift.
16. Someone came onto our block from the quarantine unit and told us he had been there for between 7 and 10 days. I thought people were supposed to be quarantined for 14 days when they arrived at the prison.
17. The officers hand out soap and toilet paper once per week. If you run out of soap, you have to wait until the following week or buy it from the commissary. If you do not have money or access to the commissary, you will not have enough soap to wash yourself.
18. The officers have a hand sanitizer pump for their own use in their enclosed officers’ station. Most of the officers prohibit us from using the hand sanitizer, though one officer lets me have some hand sanitizer when I help hand out the food.
19. I understand that the food trays are prepared and assembled at a central location in CFCF then distributed to all the other facilities.
20. I am scared that I will get sick.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 5 of 36

I, Susan Lin, certify that Thomas Remick relayed the above information to me over the phone on April 16, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Due to restrictions on communication between counsel and those incarcerated in the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Mr. Remick.

Dated: April 16, 2020

/s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 slin@krlawphila.com

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 6 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF JAY DIAZ JAY DIAZ, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am a 30-year-old man. I have been held at Riverside Correctional Facility (RCF) since November 9, 2019. I am being held on $10,000 cash bail for an open possession with intent to deliver controlled substances charge. I also have a probation detainer that holds me in custody.
2. I have asthma, and I normally use an inhaler. Since being incarcerated, I have not had access to an inhaler. In addition, I sometimes need “breathing treatments” but I have not received those while in custody. I currently have to take deep breaths when I talk. I have asked a nurse for breathing treatments but have not received any.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 7 of 36
3. In addition, I have stage 3 cervical and ovarian cancer. I was diagnosed in December 2018, and before my incarceration I was receiving treatment at Temple Hospital. My oncologist told me that the cancer made me more susceptible to infections. I was scheduled to have a hysterectomy in May followed by radiation and chemotherapy. I am currently experiencing abdominal pain, difficulty holding urine, lower back pain and frequent feeling that I need to urinate. Since being incarcerated, I have not had any treatment for this cancer. I was supposed to go for a medical visit on March 27, 2020 but was not sent to this visit.
4. I filed a grievance a week or so ago about the lack of access to medical care and my situation but received no response.
5. As a result of my asthma and cancer, I understand that I am at heightened risk of severe symptoms and risk of death due to COVID-19.
6. I am currently housed in E Unit with about 60 other people. While the unit is less than half full, the staff has condensed us into the bottom tier of the unit, leaving the top tier empty. Though I do not have a cellmate, many people on the unit are double-celled.
7. We eat our meals in our cells. 8. We are on lockdown and generally get out of our cells for about 15-20 minutes, sometimes
once a day, sometimes twice. It has been weeks since we have been let into the yard. 9. When we are let out of our cells, 10-20 people are let out at a time to use the phones,
showers, and to get water. 10. Some staff try to enforce social distancing but others do not. There are distance markers on
the floor but no instructions on how to use them. 11. While most of us try to abide by social distancing, it is impossible do so when using the
phones as they are less than 2 feet apart. When we use the phones we must stand elbow to

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 8 of 36
elbow. We generally try to clean the phones after every use with disinfectant that staff gives us. The staff do not require that we clean the phones, nor does the staff clean the phones for us, but we do it on our own initiative. I am the block representative and I make sure the phones are cleaned. 12. We share the showers, which are separate stalls. Showers are cleaned twice a day, but not after every use. 13. On April 1, I received a cloth mask, but no instructions on whether or how often to clean it. We all wear masks whenever we leave our cells. 14. Some staff wear masks and others do not. Multiple sergeants have visited our unit without masks. 15. At least four people on my unit have had symptoms of COVID-19, including loss of sense of taste, burning nostrils, and waking up in sweats. None of those people have been medically isolated or tested. 16. I was supposed to have a court date on March 17, where I understood I was to plead guilty and receive a sentence of 11 ½ to 23 months of incarceration with immediate parole. This meant I would have been released from jail. I did not get into court on March 17th and have not heard anything about my case since February. I do not know when my next court date is. 17. I fear for my life if I am kept in jail.
I, Matthew A. Feldman, certify that Jay Diaz relayed the above information to me over the phone on April 16, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Due to restrictions on communication between counsel and those incarcerated in

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 9 of 36

the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Mr. Diaz.

Dated: April 19, 2020

/s/ Matthew A. Feldman Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 T: 215-925-2966 mfeldman@pailp.org

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 10 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF NADIYAH WALKER NADIYAH WALKER, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of her knowledge and belief:

1. I am a 43-year-old woman currently held at the Riverside Correctional Facility (RCF). I have been in custody since September 1, 2019. I am held on $150,000 bail for an open robbery charge. I also have probation detainers holding me as a result of this open charge.
2. I have epilepsy and suffer from seizures. My last seizure occurred in February. In addition, I also have diabetes, asthma, and anemia.
3. I have not received any medical treatment for my asthma. A few days ago, I had an asthma attack and the staff refused to give me a pump. They told me I was “hyperventilating.”
4. I filed a grievance on or around April 11, 2020 and received no response.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 11 of 36
5. I understand that as a result of my medical conditions, I am at heightened risk of severe symptoms and death due to COVID-19.
6. I am currently housed on E-Unit at RCF with approximately 60 other women. Although the unit is less than half full, they closed the top tier, so the remaining women are mostly double-celled on the bottom tier. I do not have a cellmate, though many others do.
7. We all share showers and phones. 8. My toilet has no lid and low water pressure; it does not flush properly and waste comes up
after I flush. 9. We are on lockdown and only let out of our cells for about 15-20 minutes in the morning
and 15-20 minutes most nights. The guards generally let 10-20 people out of their cells at a time to shower, use the phones, and get water. 10. We cannot social distance when we use the phones because the phones are spaced less than 2 feet apart. 11. The shower is cleaned twice a day, not after every use. 12. I received one cloth mask around April 9. I try to wash my mask in my sink every night with soap that I purchased from the commissary. The staff do not provide additional masks or soap for washing masks. 13. I have to purchase soap because the staff do not provide soap sufficient for us to wash our hands frequently. 14. I see the staff use hand sanitizer but they have not provided any for us. 15. I heard that an RCF staff member who sometimes worked on my unit died from the virus. 16. I know that two women on my unit had fevers but the staff did not take them off the unit. Instead, they were just told to stay in their cells.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 12 of 36

17. I am terrified for my life. I am afraid that if I had an asthma attack or a seizure, no one would come to help me.

I, Matthew A. Feldman, certify that Nadiyah Walker relayed the above information to me over the phone on April 16, 2020 and that she gave me permission to relay this information in a declaration signed on her behalf. Due to restrictions on communication between counsel and those incarcerated in the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Ms. Walker.

Dated: April 19, 2020

/s/ Matthew A. Feldman Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 T: 215-925-2966 mfeldman@pailp.org

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 13 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF MICHAEL ALEJANDRO MICHAEL ALEJANDRO, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am a plaintiff in this lawsuit. I am a 27-year-old man currently held at the Detention Center (DC) in Philadelphia. I have been in custody since February 25, 2020.
2. I am being held as a pretrial detainee charged with aggravated assault. My bail on these charges is set at 10% of $25,000.
3. I am also being held pursuant to a probation detainer, as my new charges would constitute a violation of probation if I am found guilty of them.
4. I suffer from asthma, which I understand places me at heightened risk for more severe symptoms and potential death from COVID-19.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 14 of 36
5. I am currently housed with 31 other inmates in a dorm, which is approximately the size of half of a basketball court (approximately 2,350 square feet). We sleep in bunkbeds, approximately 2 to 3 feet apart.
6. We all eat together in this one large room. 7. It is impossible to stay 6 feet apart from each other while in this jail. 8. All 32 of us share 1 shower, 2 urinals, and 1 toilet. The toilet does not have a lid. 9. The showers and toilets are only cleaned once a day in the morning. 10. All of the inmates use the same phones. These phones are spaced less than 2 feet apart.
The phones are cleaned only once per day in the morning, and the phones are not cleaned after each use. 11. The block itself is cleaned once per day in the morning, but the bunks are not cleaned, because people are often sleeping in their bunks during cleaning. 12. While we are told that everyone is supposed to get soap once a week on Monday, we do not actually receive soap. I asked a correctional officer whether I could get soap, and was told they did not have any to give out. In order to get soap to wash my hands and body, I have to purchase it from the commissary with my personal money. 13. We are not given hand sanitizer, disinfectant, or cleaning materials. In order to obtain disinfectants, people have to sneak it from staff and block workers, who will occasionally look the other way. 14. Two weeks ago, the prison staff gave the inmates cloth masks, made of what appeared to be bedsheet-like material and elastic. We cannot wash these masks. We had one opportunity to switch out our mask and receive a fresh mask. I chose not to switch mine

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 15 of 36

out. In order to get a new mask, you had to be without a mask for a couple of hours while you waited for a new one. 15. The correctional officers wear masks. 16. We do not have gloves. 17. I hear a lot of coughing in my unit and think at least 3 people may be sick. I have not seen or heard anything about the medical department evaluating them. 18. I have not been tested for COVID-19 and I have not seen nor heard that anyone else in my unit has been tested either. 19. We have been locked down in this dorm for almost one month.
I, Susan Lin, certify that Michael Alejandro relayed the above information to me over the phone on April 15, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Due to restrictions on communication between counsel and those incarcerated in the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Mr. Alejandro.

Dated: April 15, 2020

/s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 slin@krlawphila.com

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 16 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF MICHAEL DANTZLER MICHAEL DANTZLER, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am a 45-year-old man currently incarcerated at the Detention Center (DC). I am held pretrial on $150,000 cash bail in an open case where the main charge is the unlawful possession of firearms. I was arrested on September 20, 2018, and have been held in custody since that time.
2. I have a vascular disease that makes me prone to blot clots. On February 20, 2020, I had emergency surgery to remove a pulmonary embolism. During the surgery, the doctors lacerated my kidney by accident. I take medication to help the laceration heal and receive

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 17 of 36
periodic imaging to ensure it is healing properly. I lost 50 pounds in the two months since my surgery. 3. I understand that, because of my medical condition, I am at heightened risk of severe symptoms and death due to COVID-19. 4. I filed a grievance challenging the conditions at this jail and asking to be released. I have not received an answer to my grievance. 5. I am currently housed in a cell by myself on the medical unit at DC along with two other people. 6. In the whole time I have been here, no one has ever cleaned my cell. I do not have access to any cleaning products so I cannot clean the cell myself. 7. Block workers clean the hallways and other areas outside of the cells. 8. The officers have never given me any soap. I have had to buy all my soap from the commissary. 9. I am on lockdown and in my cell for at least 23 hours a day. I am allowed out of my cell only to use the shower and phone. I am worried that not moving around will lead to another blood clot. 10. A doctor comes to my cell every week. The doctor does not always wear a mask. 11. The officers are supposed to wear masks but do not always do so. The officers do not wear gloves. 12. I was first given a mask about 2 weeks ago. It was made out of white fabric. I was not able to clean or change my mask. I wore that same mask for 14 days before I was given a second mask.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 18 of 36

13. I am worried that I will die here either from COVID-19 or from a blood clot because I am not able to move.

I, Hayden Nelson-Major, certify that Michael Dantzler relayed the above information to me over the phone on April 16, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Due to restrictions on communication between counsel and those incarcerated in the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Mr. Dantzler.

Dated: April 16, 2020

/s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 HNelson-Major@aclupa.org

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 19 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF ROBERT HINTON ROBERT HINTON, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am 63-years-old and currently held at Curran-Fromhold Correctional Facility (CFCF) in Philadelphia. I have been in custody since my arrest on April 7, 2020. I was admitted to CFCF on April 8, 2020.
2. I am being held as a pretrial detainee charged with aggravated assault. My bail is set at $200,000.
3. I have Hepatitis C, which caused damage to and scarring of my liver. I understand that as a result of my age and medical condition I am at heightened risk for more severe symptoms and death due to COVID-19,

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 20 of 36
4. I am currently experiencing pain on the side of my abdomen. 5. I have been in “quarantine” since I arrived at CFCF on April 8th. This “quarantine” means
that I have been housed in a small “multipurpose room” with 2 other people. There are 2 bunk beds, and we all share one toilet and one sink. It is impossible to keep 6 feet away from the other people given the size of the room. 6. Once a day, I am released from the multipurpose room for 20 minutes to use the phone and shower. The showers are not being cleaned with disinfectant and I have no shower shoes, so I must walk barefoot in these showers. 7. When I arrived at CFCF, I received some soap. It did not last long. I used up all of this soap a few days ago. I have been begging officers to give me more. I have had to go without soap for several days. 8. I clean the cell when I can. I ask the correctional officers for a spray bottle of cleaner and sometimes the officers will give it to me; sometimes the officers refuse. 9. All meals are brought to our cell. The officers do not always collect the trays after meals. In the late afternoon on April 16, my breakfast and lunch trays were still on the floor and there were cockroaches in the cell. 10. The officers gave me a single mask made out of cloth when I arrived. Because I do not have consistent access to soap, I am not able to wash or clean this mask. I have not received a replacement mask in the eight days that I have been at CFCF. 11. I do not have access to gloves or hand sanitizer. 12. The officers wear masks most of the time but there have been occasions when I have seen them interacting with incarcerated people while not wearing masks. 13. Someone takes my temperature two or three times a day.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 21 of 36

14. When I initially arrived, I was told that I would be in “quarantine” for fourteen days but a lieutenant recently told me it might be longer because there is “no room in the jail.”
15. I am scared that I will die if I stay in custody and catch the virus.

I, Hayden Nelson-Major, certify that Robert Hinton relayed the above information to me over the phone on April 16, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Due to restrictions on communication between counsel and those incarcerated in the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Mr. Hinton.

Dated: April 16, 2020

/s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 HNelson-Major@aclupa.org

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 22 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF JOSEPH WEISS JOSEPH WEISS, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am 57-years-old. I am an Army veteran, having served for 10 years. I was wounded in combat, and as a result have a metal rod and pins in my femur. I walk with a cane.
2. I have been in custody since my arrest on April 3, 2020. I have been held at CurranFromhold Correctional Facility (CFCF) since April 4, 2020.
3. I am being held pretrial at CFCF on $75,000 bail for an open aggravated assault charge. 4. I understand that I am at heightened risk of severe symptoms and death due to COVID-19
because of my age.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 23 of 36
5. Upon arriving at CFCF, I was placed in a “quarantine” cell. It is a converted multipurpose room. It is only a couple of feet bigger than a normal cell. This multipurpose room has two bunk beds, and a shared sink and toilet.
6. In the quarantine multipurpose room, I was housed with two other people. It was impossible to stay 6 feet away from the other people.
7. Someone checked our temperatures three times a day. 8. I did not receive a mask when I arrived. I only received one several days after my arrival. 9. I do not have access to gloves. 10. The correctional officers are wearing gloves and masks. 11. On April 7, 2020, one of the other men in the multipurpose room with me ran a 103 degree
fever and the officers removed him from the multipurpose room. The next day the correctional officers gave us spray bottles of bleach and told us to clean down the room. 12. I was later transferred to a regular cell within CFCF. I am currently by myself in the cell. Since being transferred to the cell, the officers check my temperature twice a day. 13. I did not have access to any soap for the first four days of my time at CFCF. I did not receive any soap until I was transferred out of the multipurpose room to a regular cell. 14. No one cleans our cells and we do not have access to cleaning products. 15. I am scared for my life here and I feel like I am in a death trap.
I, Hayden Nelson-Major, certify that Joseph Weiss relayed the above information to me over the phone on April 16, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Due to restrictions on communication between counsel and those

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 24 of 36

incarcerated in the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Mr. Weiss.

Dated: April 16, 2020

/s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 HNelson-Major@aclupa.org

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 25 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF JOSEPH SKINNER JOSEPH SKINNER, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am a plaintiff in this lawsuit. I am a 38-year-old man currently held at the CurranFromhold Correctional Facility (CFCF) in Philadelphia. I have been in custody since July 2, 2019.
2. I suffer from severe asthma. I use an inhaler daily. In the past, I have been hospitalized 4 or 5 times and have been intubated due to my asthma. The last time I was hospitalized was in 2015. I understand that my medical condition places me at heightened risk for more severe symptoms and potential death from COVID-19.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 26 of 36
3. I am being held as a pretrial detainee charged with possession with intent to deliver drugs. My bail on these charges is set at $20,000
4. I am also being held pursuant to a probation detainer, as my new charges would constitute a violation of probation if I am found guilty of them.
5. I am housed in a cell on a block with over 70 people in it. 6. Most people on this block are double-celled. I shared my cell with someone until the
morning of April 15th. I expect to have a new cellmate shortly. 7. The cell, which is roughly the same size as the inside of a standard SUV, contains a set of
bunk beds, a chair, as well as a toilet and sink which we both share. The toilet does not have a lid. There is no way to maintain a distance of six feet apart from your cellmate at all times. 8. We have been on lockdown for the past month. We were told we would be let out twice a day for 15 minutes each time. This does not happen daily because there have been too few correctional officers showing up for work. 9. I receive food in my cell and eat while in my cell. 10. The phones are approximately 1 foot apart from each other. Because we only have limited opportunities to use the phones, every time you use the phones, you are within six feet of another inmate. The phones are not cleaned between each use; the block workers clean them approximately 2 to 4 times per day. 11. The block workers clean the block 2 to 4 times per day. 12. I received one mask a week ago. I cannot wash this mask. I have been using the same mask for a week without cleaning it. 13. The correctional officers have been wearing masks and gloves for the past two weeks.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 27 of 36
14. None of the inmates have gloves except for the block workers who get them to clean. 15. The jail is not giving us soap – not even “county soap” (the soap everyone is supposed to
get for free). When we ask the officers for it, the officers say they do not have any. In order to get soap to wash my hands and body, I have to purchase it from commissary with my own money. 16. Nor do I have access to hand sanitizer. 17. There are 8 showers on the block, and they are shared among 70 people. These showers are only cleaned once per week. The showers are not cleaned after each use. 18. Before the lockdown began, we could clean our cell one time per week. Now, if you want to clean your cell, you have to ask an officer for cleaning material – some officers will give it to you and some refuse. They will give you a broom, a mop, bleach, and disinfectant. I have cleaned my cell once per week since the lockdown began. 19. The officers continually bring newly admitted people onto my block. I had heard that the jail would keep people in the quarantine unit for 14 days after they were admitted to the jail, but officers brought 8 new people onto my block after only 7 days of being quarantined. I, Susan Lin, certify that Joseph Skinner relayed the above information to me over the phone on April 15, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Due to restrictions on communication between counsel and those incarcerated in the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Mr. Skinner.
/s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 28 of 36

Dated: April 15, 2020

718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 slin@krlawphila.com

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 29 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF SADDAM ABDULLAH SADDAM ABDULLAH, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am a 29-year-old man currently held pretrial at Philadelphia Industrial Correctional Center (PICC). I am being held on $1,000,000 cash bail as a result of a third degree homicide charge.
2. I have asthma, and had four asthma attacks during the week of April 6, 2020 alone. My inhaler is not working. After one of my asthma attacks, medical staff came and checked me but refused to give me a breathing treatment. They told me the droplets from the breathing treatment could spread the virus.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 30 of 36
3. I understand that as a result of my medical condition, I am at heightened risk for severe symptoms and death due to COVID-19.
4. Last week, I had chills. I could not taste or smell and had difficulty breathing. I put in a sick call request detailing my symptoms. Medical staff came and checked my temperature, but told me I did not have a fever. The staff offered me Tylenol and Robitussin, but I declined.
5. I filed an emergency grievance, but have not yet received any response. 6. I was not tested for the coronavirus nor was I medically isolated in any way. 7. I am currently on H-1 unit with approximately 100 other people on the unit. The unit is
mostly full and generally, we are all double-celled. 8. I am in a cell approximately 6’ x 9’ with a cellmate. It is impossible to stay 6 feet apart
from my cellmate when we are in the cell. 9. We share a toilet and sink. The toilet does not have a lid and when the people in the cell
next to mine flush their toilet, some of the material they flushed comes up in my toilet, and vice versa. 10. We have been on lockdown for several weeks. We are only allowed out of our cells for 1520 minutes once every 3-4 days. 11. When people are let out of their cells, the officers let eight people out at a time, sometimes fewer than that. 12. From approximately March 31 through April 15, 2020, I did not have any toilet paper. 13. I have one bar of soap that I purchased from commissary but no hand soap. The officers are supposed to give out soap every week but they do not do so.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 31 of 36
14. I received one cloth mask made out of bedsheet material. I received that mask on March 23. I received no instructions on how to clean this mask.
15. I have not been able to clean my cell for the entire time I have been on lockdown. I received no cleaning supplies for my cell.
16. When we are out of our cells, there is no enforcement of social distancing. 17. The phones are very close together, close enough that when I am standing in front of one
phone, I can touch the phone next to it. Whenever I use the phone, I am within 2 feet of another person. 18. Last week, approximately six or seven people on my unit had symptoms of the virus, including coughing and fever. They were all left on the unit. To my knowledge, the staff did not test or isolate any of those people. 19. Staff sometimes, but not always, wear masks. Some staff approach and talk to inmates without masks on. 20. On April 15, while I was on the phone, a Major approached me without a mask on. He got right in my face, close enough to touch me, and told me to get off the phone. The guard then threatened me, saying “I’m gonna put you in the hospital.” 21. I know one inmate who was transferred to our unit after being quarantined in the COVID trailers for only 14 days. He had tested positive for coronavirus and staff moved him to our unit without a second test to confirm that he was virus-free. 22. I fear that my life is in jeopardy if I remain in custody.
I, Matthew A. Feldman, certify that Saddam Abdullah relayed the above information to me over the phone on April 15 and April 16, 2020 and that he gave me permission to relay this information

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 32 of 36
in a declaration signed on his behalf. Due to restrictions on communication between counsel and those incarcerated in the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Mr. Abdullah.

Dated: April 19, 2020

/s/ Matthew A. Feldman Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 T: 215-925-2966 mfeldman@pailp.org

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 33 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, JAY DIAZ, NADIYAH :

WALKER, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as Commissioner of Prisons,

: : : :

Defendants-Respondents.

: :

Case No. Filed Via ECF

DECLARATION OF JAMES BETHEA JAMES BETHEA, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am a 53-year-old man currently housed at Philadelphia Industrial Correctional Center (PICC). I am serving a sentence for a technical violation of parole. In March 2018, Judge Coyle sentenced me to time-in to 23 months of incarceration, followed by probation, for a misdemeanor simple assault and resisting arrest. On September 24, 2018, Judge Coyle revoked my parole as a result of a technical violation and I was taken into custody. For my technical violation, I was sentenced to serve my back-time. I understand that I will not be released until July 2020.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 34 of 36
2. I am also facing charges for contraband, but was ordered released on own recognizance, so this charge is not holding me in custody.
3. I have asthma and use albuterol daily. When out of custody, I smoke daily. I have been treated for Hepatitis C and suffer from arthritis. In addition, I have been diagnosed with schizophrenia and bipolar disorder and was previously prescribed zyprexa. I have also been diagnosed as borderline diabetic and was previously prescribed metformin.
4. I understand that as a result of my medical condition, I am at heightened risk for serious symptoms and death due to COVID-19.
5. I have asked to go to medical, but those requests have been denied. I understand that the medical staff have stopped taking all sick calls.
6. Officers come around twice a day to check everyone’s temperature. 7. I am currently held in the punitive segregation unit because I was caught with a cigarette.
I have been here for 63 days. 8. I share an 8’ x 10’ cell with a cellmate. It is impossible to stay 6 feet apart from each other
at all times. We share a sink, toilet, one chair, and a desk. 9. There are approximately 50 men on the block and we share 5 phones and 4 showers. 10. Most of the people on the block are double-celled. 11. Before the lockdown began, about a month ago, we were able to clean our cell once every
week. For the past month we have not been able to clean our cells. I asked the officers for bleach and disinfectant and they refused to give any to me. 12. There is a significant staffing shortage. Due to this shortage, there are many days on which the officers have not let us out of our cells at all. I last showered 4 days ago. I last used the phone 2 or 3 days ago.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 35 of 36
13. When there are enough officers, we are allowed out 5 cells at a time but only for about an hour.
14. Phones are cleaned only once per day. They are not cleaned between each usage. When you use the phone, you are locked in a cage with the phone. You are about three feet away from the person next to you who is in his own cage with a phone. Every time you use the phone, you are within 6 feet of another inmate.
15. The showers are cleaned only once per day and not between each usage. 16. In order to have soap, I have to buy it from the commissary. Over the past two months, I
have run out of soap 2 to 3 times. When that happened, I asked officers for soap but they said they did not have any. I had to wait for my family to put money on my books before I could get soap. During those times, I had to use just water to clean myself. 17. The officers never provided me with hand sanitizer. 18. I received one cloth mask about three weeks ago. I have not received a replacement. I have washed the mask as best I can in the sink in my cell. 19. I have never been given gloves. 20. On April 16, 2020, the officers took 3 men off the block on stretchers and took 4 men off the block in wheelchairs. They all looked really sick. They were brought back onto the block after a few hours. I have no idea if they were tested for coronavirus and no one has told us anything about whether these men were tested. 21. Two men on the block said that they had been tested and tested positive for the coronavirus. They are still on my block and come out of their cells with others. 22. I hear men and officers on my block coughing and sneezing. 23. I have not received any information on how to stay safe from the coronavirus.

Case 2:20-cv-01959-BMS Document 1-6 Filed 04/20/20 Page 36 of 36

24. I am scared I am going to get the virus and die from it.

I, Susan Lin, certify that James Bethea relayed the above information to me over the phone on April 17, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Due to restrictions on communication between counsel and those incarcerated in the Philadelphia Department of Prisons, the finished declaration has not been reviewed with Mr. Bethea.

Dated: April 17, 2020

/s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 slin@krlawphila.com

 
 Case 2:20-cv-01959-BMS Document 2 Filed 04/20/20 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

:

Case No.
2:20-CV-1959
Filed Via ECF

PLAINTIFFS-PETITIONERS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs Thomas Remick, Nadiyah Walker, Jay Diaz, Michael Alejandro, Michael Dantzler, Robert Hinton, Joseph Weiss, Joseph Skinner, Saddam Abdullah, and James Bethea, by and through their undersigned counsel, respectfully move this Court pursuant to Federal Rule of Civil Procedure 23 to enter an order certifying the proposed class (the “Class”) and subclasses (the “Subclasses”) identified in their Complaint and further described below.
1. Because the current conditions of confinement within the Philadelphia Department of Prisons (“PDP”) facilities create an unreasonable risk of contracting COVID-19 that may result in substantial risk of severe illness or death, and because PDP is currently holding Plaintiffs in inhumane conditions of confinement, Plaintiffs seek to represent a Class for declaratory and injunctive relief of all people held in custody within PDP, including two Subclasses: (1) persons

Case 2:20-cv-01959-BMS Document 2 Filed 04/20/20 Page 2 of 9
who, by reason of age or medical condition, are particularly vulnerable to injury or death if they
were to contract COVID-19 (“Medically-Vulnerable Subclass”), and (2) persons who, by reason
of their disability, are particularly vulnerable to injury or death if they were to contract COVID-
19 (“Disability Subclass”).
2. All Plaintiffs represent the Medically-Vulnerable Subclass, which is defined as:
All current and future persons in the custody of the Philadelphia Department of Prisons who are 55 or older, as well as all current and future persons held of any age who have a medical condition that places them at increased risk of COVID-19 illness, injury, or death, including but not limited to: (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure, or coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.
3. All Plaintiffs represent the Disability Subclass, which is defined as:
All current and future persons in the custody of the Philadelphia Department of Prisons who have an impairment that substantially limits one or more of their major life activities and who are at increased risk of COVID-19 illness, injury, or death due to their disability or any medical treatment necessary to treat their disability, including but not limited to those who have: (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure, or coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders and/or (i) developmental disability.
2

Case 2:20-cv-01959-BMS Document 2 Filed 04/20/20 Page 3 of 9
4. This case satisfies all of the prerequisites for maintaining a class action under Rule 23, which include:
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)–(b). 5. First, joinder is impracticable because the Class and Subclasses are numerous; they include unidentifiable future members; and the members of the Class and Subclasses are incarcerated, rendering their ability to institute individual lawsuits limited. While there is “[n]o minimum number of plaintiffs [that] is required to maintain a suit as a class action[,] generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.” Stewart v. Abraham, 275 F.3d 220, 226–27 (3d Cir. 2001). The numerosity requirement is easily satisfied here. Currently there are approximately 3,900 individuals held in the custody of PDP. The information as to the exact size of the Class and Subclasses, and the identity of those individuals, are in the exclusive control of the Defendants. However, while the current class size of individuals who are 55 or over or who have certain medical conditions is not exactly known currently, prison populations tend to have high proportions of individuals with chronic medical conditions, and the number of individuals in the custody of PDP that would qualify for the proposed classes would exceed 40 individuals. Furthermore, joinder among this many individuals, as well as the attendant challenges in bringing joint cases among a transient population, would be impractical. Thus, Plaintiffs have satisfied the numerosity requirement of Rule 23(a)(1). See, e.g., Williams v. City of Philadelphia, 270 F.R.D. 208, 222 (E.D. Pa. 2010) (collecting cases showing that “Rule 23(b)(2) is an appropriate vehicle
3

Case 2:20-cv-01959-BMS Document 2 Filed 04/20/20 Page 4 of 9
in actions challenging prison conditions”); Death Row Prisoners of Pa. v. Ridge, 169 F.R.D. 618, 621 (E.D. Pa. 1996) (finding 185 detainees satisfied numerosity).
6. Second, common questions of law and fact exist as to all members of the proposed Class and Subclasses. Injunctive actions like this one, “by their very nature, often present common questions satisfying Rule 23(a)(2) . . . because they do not [] involve an individualized inquiry for the determination of damage awards.” Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994) (internal citation omitted). Here, the proposed Class members are all individuals held in custody at PDP facilities. They are all subject to the policies and practices promulgated by PDP and implemented within those facilities, and they all have the right to receive adequate COVID19 prevention, testing, and treatment, and to be held in humane conditions of confinement. Because of these circumstances, common questions of fact and law to the Class include, among other things, whether PDP’s facilities are properly equipped to house all Class members safely and quarantine all Class members who exhibit symptoms for COVID-19; whether denial of adequate testing, cleaning supplies, and the right to practice social distancing in accordance with CDC guidelines will cause injury to the Class members, including unnecessary pain and suffering, and even death; and whether PDP’s current practices and procedures violate the Fourteenth Amendment, the Eighth Amendment, and the Americans with Disabilities Act. Plaintiffs have satisfied the commonality requirement of Rule 23(a)(2). See, e.g., id. at 56 (“[B]ecause the [commonality] requirement may be satisfied by a single common issue, it is easily met[.]”).
7. Third, Plaintiffs’ claims are typical of the members of the Class and Subclasses. Courts have found typicality so long as the named plaintiffs’ “claim arises from the same event or practice or course of conduct that gives rise to claims of the class members, and if it is based on the same legal theory.” Clarke v. Lane, 267 F.R.D. 180, 197 (E.D. Pa. 2010) (quoting Beck v.
4

Case 2:20-cv-01959-BMS Document 2 Filed 04/20/20 Page 5 of 9
Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006)). Plaintiffs and all Class members here are injured by the same wrongful acts, omissions, policies, and practices of Defendants as described in the Complaint. For example, Plaintiffs allege that Defendants fail to provide sufficient access to cleaning supplies, soap, and hand sanitizer; that Defendants fail to enforce social distancing and Plaintiffs are commonly housed in a cell with another individual or in dorms, or use communal phones, that do not permit adequate social distancing; that Defendants do not adequately isolate or test individuals that have COVID-19 symptoms; that Defendants keep Plaintiffs in near-constant lockdown conditions that also prevent people from showering on a regular basis; that correctional officers employed by Defendants do not consistently wear masks when interacting with those who are incarcerated; among other things. Because Plaintiffs’ claims arise from PDP’s same practices and courses of conduct that give rise to the claims of all Class members, and because they are based on the same legal theories, Plaintiffs have satisfied the typicality requirement of Rule 23(a)(3). See, e.g., id. at 197 (finding typicality met when all putative class members suffered “constitutional violations under a uniform system”).
8. Fourth, Plaintiffs Remick, Walker, Diaz, Alejandro, Dantzler, Hinton, Weiss, Skinner, Abdullah, and Bethea have the requisite personal interest in the outcome of this action to satisfy Rule 23 and will fairly and adequately protect the interests of the Class. See New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007). Plaintiffs do not have interests that are adverse to the interests of the proposed Class. Rather, Plaintiffs’ interests directly coincide with those of Class members to seek declaratory and injunctive relief to require Defendants to comply with recommended safety and health measures to prevent the spread of the virus for those confined within PDP’s facilities, and to release certain individuals at heightened risk of severe illness or death from COVID-19.
5

Case 2:20-cv-01959-BMS Document 2 Filed 04/20/20 Page 6 of 9
9. In addition, Plaintiffs are also represented by public interest law organizations and law firms that have decades of experience of both civil rights and prison litigation experience, including litigation relating to the Philadelphia Prisons, as well as extensive class action litigation experience. These include the Pennsylvania Institutional Law Project, the ACLU of Pennsylvania, Kairys, Rudovsky, Messing, Feinberg & Lin LLP, and Dechert LLP. Counsel for Plaintiffs know of no conflicts among proposed Class members or between counsel and proposed Class members. Accordingly, Plaintiffs have satisfied the adequacy requirement of Rule 23(a)(4). See, e.g., Williams, 270 F.R.D. at 216 (finding that counsel for the class were qualified to prosecute the action and that named plaintiffs “fairly and adequately protect the interests of the class” because there were no “unique defenses that would consume a disproportionate amount of time and attention”).
10. Finally, Defendants have acted on grounds generally applicable to all proposed members of the Class and Subclasses, and this action seeks declaratory and injunctive relief. Plaintiffs therefore seek class certification under Rule 23(b)(2), which is especially appropriate for prisoners’ civil rights actions like this one because of the potential for common resolution through declaratory and injunctive relief. See id. at 222 (“Numerous courts have held that Rule 23(b)(2) is an appropriate vehicle in actions challenging prison conditions.”). Indeed, the Third Circuit has a long history of using Rule 23(b)(2) to adjudicate claims involving treatment of prisoners. See, e.g., id. (certifying Rule 23(b)(2) class of inmates); see also Death Row Prisoners of Pa., 169 F.R.D. at 623 (certifying Rule 23(b)(2) class of death-row detainees).
Therefore, because Defendants’ actions and policies apply generally to all members of the Class and Subclasses who seek declaratory and injunctive relief, Plaintiffs meet the requirements
6

Case 2:20-cv-01959-BMS Document 2 Filed 04/20/20 Page 7 of 9 of Rule 23(b)(2), and the Court should grant Plaintiffs’ Motion and certify the Class and Subclasses.
7

Case 2:20-cv-01959-BMS Document 2 Filed 04/20/20 Page 8 of 9

Respectfully submitted,
/s/ Su Ming Yeh Su Ming Yeh (PA 95111) /s/ Matthew A. Feldman Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 (215)-925-2966 smyeh@pailp.org mfeldman@pailp.org

/s/ David Rudovsky David Rudovsky (PA 15168) /s/ Jonathan H. Feinberg Jonathan H. Feinberg (PA 88227) /s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 drudovsky@krlawphila.com jfeinberg@krlawphila.com slin@krlawphila.com

/s/ Nyssa Taylor Nyssa Taylor (PA 200885)* /s/ Witold J. Walczak Witold J. Walczak (PA 62976) /s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) /s/ Ali Szemanski Ali Szemanski (PA 327769)* AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 ntaylor@aclupa.org vwalczak@aclupa.org HNelson-Major@aclupa.org aszemanski@aclupa.org

/s/ Will W. Sachse Will W. Sachse (PA 84097) /s/ Benjamin R. Barnett Benjamin R. Barnett (PA 90752) /s/ Mary H. Kim Mary H. Kim* /s/ Nicolas A. Novy Nicolas A. Novy (PA 319499) /s/ Theeya Musitief Theeya Musitief (PA 327295)* DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 (215) 994-2496 Will.Sachse@dechert.com Ben.Barnett@dechert.com Mary.Kim@dechert.com Nicolas.Novy@dechert.com Theeya.Musitief@dechert.com

* indicates counsel who will seek admission or pro hac vice admission

Attorneys for Petitioners/Plaintiffs

DATE: April 20, 2020

8

Case 2:20-cv-01959-BMS Document 2 Filed 04/20/20 Page 9 of 9

CERTIFICATE OF SERVICE I hereby certify that on April 20, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will automatically send e-mail notification of such filing to all attorneys of record.

Dated: April 20, 2020

s/ Nicolas A. Novy

Case 2:20-cv-01959-BMS Document 2-1 Filed 04/20/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

Case No. 2:20-cv-1959

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

:

[PROPOSED] ORDER GRANTING PLAINTIFFS-PETITIONERS’ MOTION FOR CLASS CERTIFICATION
WHEREAS, the Court having reviewed and considered Plaintiffs’ Motion for Class Certification and any supporting and opposing materials filed by counsel,
IT IS THIS _____ DAY OF _________ 2020 ORDERED that Plaintiffs’ Motion for Class Certification is GRANTED. Plaintiffs Thomas Remick, Nadiyah Walker, Jay Diaz, Michael Alejandro, Michael Dantzler, Robert Hinton, Joseph Weiss, Joseph Skinner, Saddam Abdullah, and James Bethea are hereby certified as class representatives for the Class and Subclasses as defined in Plaintiffs’ Motion.

DATED:____________, 2020

HON. _________________ UNITED STATES DISTRICT JUDGE

 
 Case 2:20-cv-01959-BMS Document 18 Filed 04/23/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

:

:

Plaintiffs-Petitioners,

:

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

: Defendants-Respondents.

Case No. 2:20-cv-1959
ELECTRONICALLY FILED IMMEDIATE RELIEF SOUGHT

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Pursuant to Federal Rule of Civil Procedure 65(a)-(b), Petitioners-Plaintiffs hereby move this Court to issue a temporary restraining order and preliminary injunction.
In support of this Motion, Petitioners-Plaintiffs rely upon the accompanying PlaintiffsPetitioners’ Brief In Support of Motion for Temporary Restraining Order and Preliminary Injunction and the Class Action Complaint for Declaratory and Injunctive Relief and Petition for Writs of Habeas Corpus.

Case 2:20-cv-01959-BMS Document 18 Filed 04/23/20 Page 2 of 2

Respectfully submitted,
/s/ Su Ming Yeh Su Ming Yeh (PA 95111) /s/ Matthew A. Feldman Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 (215)-925-2966 smyeh@pailp.org mfeldman@pailp.org

/s/ David Rudovsky David Rudovsky (PA 15168) /s/ Jonathan H. Feinberg Jonathan H. Feinberg (PA 88227) /s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 drudovsky@krlawphila.com jfeinberg@krlawphila.com slin@krlawphila.com

/s/ Nyssa Taylor Nyssa Taylor (PA 200885)* /s/ Witold J. Walczak Witold J. Walczak (PA 62976) /s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) /s/ Ali Szemanski Ali Szemanski (PA 327769)* AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 ntaylor@aclupa.org vwalczak@aclupa.org HNelson-Major@aclupa.org aszemanski@aclupa.org

/s/ Will W. Sachse Will W. Sachse (PA 84097) /s/ Benjamin R. Barnett Benjamin R. Barnett (PA 90752) /s/ Mary H. Kim Mary H. Kim* /s/ Nicolas A. Novy Nicolas A. Novy (PA 319499) /s/ Theeya Musitief Theeya Musitief (PA 327295)* DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 (215) 994-2496 Will.Sachse@dechert.com Ben.Barnett@dechert.com Mary.Kim@dechert.com Nicolas.Novy@dechert.com Theeya.Musitief@dechert.com

* indicates counsel who will seek admission or pro hac vice admission

Attorneys for Petitioners/Plaintiffs

DATE: April 23, 2020

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves

:

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

:

:

Defendants-Respondents.

:

No. 2:20-cv-01959-BMS
ELECTRONICALLY FILED IMMEDIATE RELIEF SOUGHT

PLAINTIFFS-PETITIONERS’ BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION I. PRELIMINARY STATEMENT
Plaintiffs-Petitioners seek immediate injunctive relief due to the urgent need to remedy the perilous conditions of confinement in the Philadelphia Department of Prisons, which expose all those incarcerated in Philadelphia’s jails to grave and unjustified risks of serious illness or death from COVID-19. The extraordinary challenges presented by COVID-19 are even more extraordinary in prisons and jails. Incarcerated persons and all those who work within these facilities are subject to environments that have become the unfortunate epicenters of the pandemic. In the face of immediate, severe risks to the health and safety of the people within these institutions, the courts must ensure that incarcerated people—many of whom are presumed innocent and awaiting trial or are serving short sentences for minor offenses, and are highly vulnerable to the

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 2 of 27
risk of serious complications or death from COVID-19 due to age and/or medical conditions—are not subjected to unconstitutional conditions of confinement.
As this Court is aware, in the United States, there have been hundreds of thousands of documented cases of COVID-19, and tens of thousands of deaths. Compl. Ex. A, Decl. of Dr. Joseph J. Amon (“Amon Decl.”) (ECF 1-4) ¶ 5. Not surprisingly, given the way the virus infects and endangers all people, jails like those in New York, Chicago, and Philadelphia have already become rife with COVID-19. Id. ¶¶ 38–39. As of the filing of Plaintiffs’ Complaint on April 20, 2020, the Philadelphia Department of Prisons (PDP) reported that more than 120 inmates had been infected with COVID-19. Compl. (ECF 1) ¶ 21. If additional preventive measures are not implemented, the exponential increase in infections will only continue.
Plaintiffs and the class they seek to represent have been subjected to conditions of confinement which prevent them from availing themselves of the basic social distancing and hygiene practices which are not only critical to their health and safety, but which have been mandated by Defendant City of Philadelphia for everyone else in our community. The putative class, consisting of all current and future persons held in custody within PDP, face ongoing untenable threats to their health and safety under the present conditions. Because these conditions of confinement pose an imminent threat of serious disease and death for incarcerated people held within PDP’s facilities (as well as correctional officers, health workers, and other staff at PDP),1

1 Those working within the jails have also raised concerns regarding conditions within PDP's

facilities. Three unions, representing thousands of workers at Philadelphia jails called for judges

to reduce the jail population as a "common-sense measure" to protect workers and the broader

community. Juliana Feliciano Reyes, Philly jail workers want judges to release more inmates

because

of

coronavirus,

The

Philadelphia

Inquirer,

https://www.inquirer.com/jobs/labor/coronavirus-philadelphia-prisons-reduce-jail-population-

unions-20200422.html (April 22,2020).

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Plaintiffs are entitled to preliminary relief. In short, judicial intervention is necessary to protect
their health and their lives.
Plaintiffs acknowledge that the virus presents difficult challenges in the jail setting, but we
are not asking the Court to hold the defendants to an impossible bar. The standards Plaintiffs
propose come from medical and correctional experts, including Dr. Robert L. Cohen and Dr. Joseph A. Amon, whose declarations have been provided to the Court.2 They in turn have consulted
and incorporated relevant guidance from the Centers for Disease Control and Prevention (CDC).
This guidance is recognized as the minimum standard for protecting incarcerated persons.
Plaintiffs’ request for preliminary relief to remedy Defendants’ constitutional and statutory
violations is fully consistent with the public health standards articulated by Drs. Cohen and Amon.
Importantly, the requests for specific measures are consistent with those recently ordered by federal courts in Washington, D.C., Chicago, and Michigan.3
2 Dr. Cohen has served as a prison and jail medical-conditions monitor for several courts, including for the Philadelphia Court of Common Pleas in the Jackson v. Hendrick class action lawsuit that concerned conditions of confinement in the PDP for the period 1971-2002. He was also the plaintiffs’ expert in Bowers v. City of Philadelphia, No. 06-cv-3229, 2007 WL 219651 (Jan. 25, 2007), and Williams v. City of Philadelphia, No. 08-cv-1979. He was the Medical Director at Rikers Island in New York City from 1981 to 1986. Compl., Ex. B, Decl. of Dr. Robert L. Cohen (“Cohen Decl.”) (ECF 1-5), ¶ 1. Dr. Amon is an infectious disease epidemiologist, Director of Global Health and Clinical Professor in the department of Community Health and Prevention at the Drexel Dornsife School of Public Health, and he has specifically studied infectious disease in detention centers. Amon Decl. ¶ 1. 3 See Banks v. Booth, 2020 WL 1914896, at *1 (D.D.C. Apr. 19, 2020) (ordering defendants to, among other measures, comply with proper social distancing and quarantine protocols, and recommending that defendants to retain a “registered sanitarian” to oversee hygiene and cleaning); Mays v. Darts, 2020 WL 1812381 (ND. Ill, April 9, 2020) (ordering defendants to, among other measures, provide adequate soap and/or hand sanitizer for frequent hand washing, and implement proper social distancing, including the discontinuance of “bullpens” during intake); Cameron v. Bouchard, No. 20-10949, 2020 WL 1929876, at *2 (E.D. Mich. Apr. 17, 2020) (ordering defendants to undertake certain measures including providing each detainee, free of charge, a sufficient supply of soap to allow regular hand washing each day and an adequate supply of disinfectant products for daily cleanings, and scheduling a hearing to address plaintiffs’ request for release).
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Plaintiffs’ first request for relief, as detailed below, is that the Court issue a temporary restraining order (TRO) and preliminary injunction under the Eighth and Fourteenth Amendments to the United States Constitution and the Americans with Disabilities Act (ADA). Plaintiffs ask this Court to order the Defendants to ensure that conditions of confinement at PDP comply with the health and safety standards necessary to protect the plaintiff class, and to provide humane conditions of confinement.
Second, if Defendants do not or cannot comply with such a directive, Plaintiffs request that the Court, pursuant to its jurisdiction under the federal habeas corpus statute, 28 U.S.C. § 2241, and/or its injunctive powers under 42 U.S.C. § 1983, order the release of a sufficient number of incarcerated persons to fully protect the rights of the plaintiff class to be free from unconstitutional conditions of confinement. II. FACTUAL BACKGROUND
A. Characteristics of COVID-19 The devastating effects of COVID-19 are well documented. Compl. ¶¶ 12–16. As of April 20, 2020, 695,353 cases have been confirmed in the United States. Amon Decl. ¶ 5. Over 32,427 Americans have died. Id. Philadelphia County has reported 8,764 of the Commonwealth’s 32,284 cases of COVID-19, and 240 of its 1,112 deaths. Compl. ¶ 12. In Philadelphia, the number of people infected with COVID-19 grows by 20% every day, on average. Amon Decl. ¶ 5. Indeed, on Wednesday April 22, Philadelphia reported 615 new COVID-19 cases bringing the total number of infections within the city to 10,643. 4 These numbers likely underestimate the virus’s impact, given the lack of testing.
4 See NBC 10 Staff, The Peak Might Be Higher: More than 135,000 Cases, 6,700 Deaths in Pa., NJ, and Del, https://www.nbcphiladelphia.com/news/coronavirus/where-coronavirus-cases-have-been-reported-inthe-philly-area/2318340/ (April 22, 2020).
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The rate of infection in the PDP far exceeds the infection rate overall in the City of Philadelphia. Over the past two months, it has been reported that 120 prisoners in the PDP have contracted the virus—more than double the rate of infection of the City as a whole. Cohen Decl. ¶ 7. Moreover, without adequate testing, it is impossible to know exactly how many individuals in PDP facilities are actually infected.
COVID-19 spreads through a population in close contact with each other through respiratory droplets produced when an infected person sneezes, coughs, or speaks. These droplets can travel up to six feet or more through the air to infect another person. Amon Decl. ¶ 21; Cohen Decl. ¶ 11. The virus is also contracted when people touch surfaces and objects contaminated by those same respiratory droplets and then touch their own mouth, nose, or eyes. Id. The virus has a potent life span and can survive on surfaces for hours or even days, depending on the material. Cohen Decl. ¶ 11. Symptomatic persons spread the disease, but so too can asymptomatic persons. Amon Decl. ¶ 22; Cohen Decl. ¶ 5. For this reason, the Pennsylvania Department of Health and the CDC have recommended persons wear masks any time they leave their homes and recently mandated that people wear masks when patronizing essential businesses.5
Symptoms of infection span a range of reactions, from no symptoms to respiratory failure and death. Amon Decl. ¶ 6. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause permanent and widespread damage to the lungs, heart, and other organs and bodily functions. Compl. ¶ 16.
5 Amon Decl. ¶ 24; see also Order of the Secretary of the Pennsylvania Department of Health Directing Public Health Safety Measures for Businesses Permitted to Maintain In-person Operations https://www.governor.pa.gov/wp-content/uploads/2020/04/20200415-SOH-worker-safety-order.pdf (April 19, 2020).
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For persons over the age of 55 or with certain preexisting medical conditions, COVID-19 infection presents a greater risk of serious symptoms and death. Cohen Decl. ¶ 43. Persons with lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, and developmental delay are all at a heightened risk of serious illness and death should they become infected with COVID-19. Cohen Decl. ¶ 43; Amon Decl. ¶ 8.
The most effective strategy for limiting the spread of the disease is social distancing— deliberately keeping at least six feet of space between persons to avoid spreading the illness— combined with a vigilant hygiene regimen, including washing hands frequently and thoroughly with soap and water, and disinfecting surfaces. Amon Decl. ¶¶ 23–25 ; Cohen Decl. ¶ 6. Following the recommendation of public health experts, government officials across the country have taken extraordinary measures to implement social distancing to minimize the spread of the disease, including shutting down schools, non-essential businesses, and courts. Id. The goal of these efforts is to “flatten the curve” by spreading the rate of infection across a longer period to avoid overwhelming the healthcare facilities that need to treat the most serious cases of COVID-19 infection. Amon Decl. ¶ 26.
B. COVID-19 in the PDP’s Facilities The CDC has issued guidance for limiting the spread of COVID-19 in correctional facilities and these standards reflect universally accepted medical and safety measures for jails and prisons.6 The guidelines recommend, at a minimum, (a) provide all incarcerated persons a six-foot radius or
6 See Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020) available at https://bit.ly/2UKYGES; see also Amon Decl. ¶¶ 30–33, 44–49, 58–59; Cohen Decl. ¶¶ 24(a), 40–41, 50 (discussing CDC guidance).
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more of distance from any other persons, including during meals, recreation, housing, group activities, medical treatments, and all other activities; (b) instituting a safety plan to prevent a COVID-19 outbreak in PDP’s facilities in accordance with CDC guidelines; (c) providing incarcerated persons no-cost access to liquid soap, paper towels, running water, tissues and consider providing alcohol-based sanitizer (with at least 60% alcohol) readily available; (d) ensuring that all common areas and frequently touched surfaces (including: doorknobs, light switches, sink handles, countertops, toilets, toilet handles, kiosks, and telephones) are cleaned and disinfected several times per day; (e) providing adequate and appropriate COVID-19 testing for incarcerated persons, jail staff, and visitors; (f) waiving all medical co-pays for those experiencing COVID-19 like symptoms; and (g) providing sufficient personal protective equipment, particularly masks, to all staff and incarcerated people. Id. As we detail below, courts have relied on these standards as well as other measures urged by medical and correctional experts in ordering jails and prisons to implement adequate health and safety measures for incarcerated people. The CDC guidance for detention facilities specifically contemplate the continuation of recreation for detained individuals and, in case of cancellation of group activities, notes the importance of identifying alternative forms of activity that support the mental health of detained individuals.7
This case is before this Court because the defendants have failed to implement these guidelines or the other measures necessary to protect the plaintiff class. As the Declarations of the Plaintiffs and Drs. Cohen and Amon demonstrate:
 Defendants fail to provide for and enforce social distancing protections. Compl. ¶ 28. In virtually all aspects of their daily lives, including when eating, sleeping, using the bathroom, or talking on the phones with their families, incarcerated persons in the
7 CDC Interim Guidance, at 12.
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PDP are unable to maintain a six-foot distance from others. Compl. ¶ 28; see also Compl. Ex. C, Decl. of Jay Diaz (“Diaz Decl.”) (ECF 1-6) ¶¶ 10–11; Compl. Ex. C, Decl. of Nadiyah Walker (“Walker Decl.”) (ECF 1-6) ¶ 10; Compl. Ex. C, Decl. of Michael Alejandro (“Alejandro Decl.”) (ECF 1-6) ¶¶ 5–10; Compl. Ex. C, Decl. of Robert Hinton (“Hinton Decl.”) (ECF 1-6) ¶ 5; Compl. Ex. C, Decl. of Joseph Weiss (“Weiss Decl”) (ECF 1-6) ¶ 6; Compl. Ex. C, Decl. of Joseph Skinner (“Skinner Decl.”) (ECF 1-6) ¶¶ 7, 10; Compl. Ex. C, Decl. of Saddam Abdullah (“Abdullah Decl.”) (ECF 1-6) ¶¶ 8, 16–17; Compl. Ex. C, Decl. of James Bethea (“Bethea Decl.”) (ECF 1-6) ¶¶ 8, 14. Almost all members of the plaintiff class are housed in 2-person cells (some in cells with up to 4 persons), see Diaz Decl. ¶ 6, Walker Decl. ¶ 6, Hinton Decl. ¶ 5, Weiss Decl. ¶ 6, Skinner Decl. ¶ 6, Abdullah Decl. ¶ 7, Bethea Decl. ¶¶ 8, 10, and some in dormitory areas, see Compl. Ex. C, Decl. of Thomas Remick (“Remick Decl.”) (ECF 1-6) ¶ 7, Alejandro Decl. ¶ 5.  Defendants fail to adequately, consistently, and freely provide necessary hygiene products to incarcerated people in PDP, leaving some without soap for days at a time. Compl. ¶ 29; Walker Decl. ¶ 13; Alejandro Decl. ¶ 12; Compl. Ex. C, Decl. of Michael Dantzler (“Dantzler Decl.”) (ECF 1-6) ¶ 8; Hinton Decl. ¶ 7; Weiss Decl. ¶ 13; Skinner Decl. ¶ 15; Abdullah Decl. ¶ 13; Bethea Decl. ¶ 16. Defendants have refused to provide alcohol-based hand sanitizer as recommended by the CDC and Drs. Cohen and Amon. Compl. ¶ 29; see also Remick Decl. ¶ 18; Walker Decl. ¶ 14; Alejandro Decl. ¶ 12; Skinner Decl. ¶ 16; Bethea Decl. ¶ 17.  Defendants fail to provide for adequate cleaning, sanitizing and disinfecting of shared common areas including toilets, sinks, showers, and phones. Compl. ¶ 30.
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Defendants fail to clean frequently touched surfaces and common areas and fail to provide incarcerated persons with sufficient sanitation solutions and equipment (bleach, disinfectant, paper towels, and mops) to clean their living spaces or surrounding areas. Id.; see also Remick Decl. ¶ 12; Dantzler Decl. ¶ 6; Hinton Decl. ¶ 8; Weiss Decl. ¶¶ 11, 13; Skinner Decl. ¶ 18 . Some plaintiffs have been unable to clean their shared cell for weeks at a time. Abdullah Decl. ¶ 15; Bethea Decl. ¶ 11.  Defendants fail to provide and mandate the use of adequate personal protective equipment. Prison staff inconsistently use masks and often interact with people, including those in “quarantine,” without wearing masks. Remick Decl. ¶ 15; Diaz Decl. ¶ 14; Dantzler Decl. ¶¶ 10–11; Hinton Decl. ¶ 12; Abdullah Decl. ¶¶ 19–20. These same staff members move between different areas of PDP’s facilities. While PDP has given each incarcerated person a single cloth face mask, incarcerated people are unable to clean or exchange these masks on an adequate basis. Plaintiffs have been required to wear the same mask for multiple days or weeks. Compl. ¶ 31; Alejandro Decl. ¶ 14; Dantzler Decl. ¶ 12; Hinton Decl. ¶ 10; Skinner Decl. ¶ 12; Abdullah Decl.¶ 14; Bethea Decl. ¶ 18.  Defendants fail to provide for adequate isolation or quarantine measures. Newly admitted inmates are not always quarantined for a full 14 days before transfer to general population. Remick Decl. ¶ 16; Skinner Decl. ¶ 19. Incarcerated people displaying symptoms of COVID-19 are frequently neither isolated nor tested for COVID-19. Diaz Decl. ¶ 15; Abdullah Decl. ¶¶ 4–6, 18; Bethea Decl. ¶ 20. Those who have tested positive for COVID-19 and temporarily isolated are often returned to general
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population without subsequent testing to ensure they are no longer contagious to others. Compl. ¶ 32; see also Abdullah Decl. ¶ 21; Bethea Decl. ¶ 21. Plaintiffs expect that Defendants will assert that the PDP has implemented the CDC guidelines, but as Drs. Cohen and Amon make clear, their findings and opinions are based both on: (1) the significant gaps between what the guidelines (and their own expert experience) demand in terms of protective measures and the policies adopted by the PDP,8 and (2) the significant gaps between what the policies state and the actual day-to-day implementation of these policies as evidenced by the consistent Declarations of the diverse set of Plaintiffs. In sum, neither the policies nor the practices of the PDP are constitutionally adequate. As a result of Defendants’ practices, the plaintiff class is without the health and safety protections necessary to protect them from infection. Further, Defendants have adopted an unconstitutional practice of prolonged lockdowns, with severely limited out-of-cell time. Compl. ¶ 33; Diaz Decl. ¶ 8; Walker Decl. ¶ 9; Alejandro Decl. ¶ 19; Hinton Decl. ¶ 6; Skinner Decl. ¶ 8; Dantzler Decl. ¶ 9; Skinner Decl. ¶ 8; Abdullah Decl. ¶ 10; Bethea Decl. ¶¶ 11–13. The lockdowns prevent adequate exercise and shower time. See id. For those in cells, these conditions constitute solitary confinement,9 widely known to cause and exacerbate mental illness and mental distress.
8 For instance, Dr. Amon has described PDP’s guidance on social distancing as “woefully inadequate,” as the written guidance only contemplates social distancing in the context of legal and official visits. Amon Decl. ¶ 54; see also Cohen Decl. ¶ 21 (noting that “[d]istancing is not optional”). The policies do not mention how social distancing amongst inmates is to be carried out. Id. Likewise, while PDP protocol accounts for the provision of masks, it does not address regular replacement and/or cleaning of masks, which is “not sufficient.” See Cohen Decl. ¶ 19. 9 Even for those with cellmates, these conditions still constitute solitary confinement. See Alison Shames, Jessa Wilcox, Ram Subramian, Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives, VERA INSTITUTE OF JUSTICE (May 2015), pp. 4-5, available at https://www.vera.org/downloads/publications/solitary-confinement-misconceptions-safe-alternativesreport_1.pdf (defining solitary confinement as “confinement in an isolated cell (alone or with a cellmate) for an average of 23 hours a day, with limited human interaction, little constructive activity, and in an environment that ensures maximum control over the individual”).
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See Cohen Decl. ¶ 52 (emphasizing need to mitigate “extreme stress” caused by “the prolonged solitary confinement status now operating at PDP facilities”). Lockdown conditions have also limited access to medical care for chronic conditions and acute illness. See Diaz Decl. ¶¶ 3–4; Walker Decl. ¶ 3; Abdullah Decl. ¶ 2; Bethea Decl. ¶ 5. III. ARGUMENT
A. Plaintiffs and Members of the Proposed Class Are Entitled to Equitable Relief to Prevent Infection, Illness or Death From COVID-19.
Plaintiffs request immediate equitable relief due to the extraordinary and urgent situation here, seeking both a temporary restraining order (“TRO”) and a preliminary injunction. Courts apply the same standard in assessing requests for interim injunctive relief, regardless of whether a petitioner requests a TRO or preliminary injunction. See Ellakkany v. Common Pleas Ct. of Montgomery Cnty., 658 F. App’x 25, 27 (3d Cir. 2016) (applying one standard to a motion for both a TRO and preliminary injunction). The plaintiffs “must establish that they are likely to succeed on the merits of their claims, they are likely to suffer irreparable harm without relief, the balance of harms favors them, and relief is in the public interest.” Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 131 (3d Cir. 2017). In lawsuits brought by incarcerated people challenging the conditions of their confinement, preliminary injunctive relief is permitted so long as it is “narrowly drawn, extend[s] no further than necessary to correct the harm . . . and [is] the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). Before entering a preliminary injunction, the Court must make "specific findings with respect to the[se] needs-narrowness-intrusiveness criteria.” Victory v. Berks Cty., 789 F. App'x 328, 334 (3d Cir. 2019). These findings, “at a minimum . . . must be ‘sufficient to allow a clear understanding of the ruling.’” Id. at 333-34 (quoting Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir. 2010)).
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Courts have broad power to fashion equitable remedies to address constitutional violations in prisons, Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), including orders “placing limits on a prison’s population, “[w]hen necessary to ensure compliance with a constitutional mandate.” Brown v. Plata, 563 U.S. 493, 511 (2011). Courts “must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners” and “may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Id. at 511 (internal citations and quotation marks omitted)).
1. Plaintiffs Are Likely to Succeed on The Merits. Plaintiffs are likely to prevail on their claims under the Eighth and Fourteenth Amendments and the Americans with Disabilities Act (ADA) that the conditions of confinement in PDP present a clear and present danger to their health and safety and that the defendants have failed to provide necessary health measures to protect them from immediate risks of infection, illness, and death.10
a. Plaintiffs and the class are likely to succeed on their constitutional claims. The United States Supreme Court and the United States Court of Appeals for the Third Circuit have made clear that inhumane conditions of confinement and/or the failure to implement recognized community standards of care for serious medical conditions establish claims under the Eighth Amendment for sentenced prisoners and under the Fourteenth Amendment for pretrial detainees. The Eighth Amendment protects incarcerated people serving criminal sentences from cruel and unusual punishment, and it requires jails and prison officials to protect people in their custody
10 Plaintiffs have filed a motion for class certification (ECF 2), and if this motion is contested by Defendants, it can be litigated in due course. However, this Court has “general equity powers allowing it to grant temporary or preliminary injunctive relief to a conditional class.” Mays v. Dart, 2020 WL 1812381, at *3 (N.D. Ill. April 9, 2020).
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from known risks of serious harm. Farmer v. Brennan, 511 U.S. 285, 834 (1994). To prevail on claim alleging that conditions of confinement violate the Eighth Amendment, plaintiffs must meet two requirements: (1) “the deprivation alleged must be, objectively, ‘sufficiently serious,’” and (2) “the ‘prison official must have a sufficiently culpable state of mind,’” such as “deliberate indifference to the inmate’s health or safety.” See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer, 511 U.S. at 834).
Leaving those in custody in the path of an infectious disease easily satisfies the first prong. The Supreme Court held in Helling v. McKinney, 509 U.S. 25 (1993), that the government violates the Eighth Amendment when it crowds prisoners into cells with others who have “infectious maladies” or otherwise exposes prisoners “to a serious, communicable disease.” 509 U.S. at 33 (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). Importantly, a high risk of harm—even without proof of a current and ongoing harm—is sufficient to establish the constitutional violation and justify court intervention. Id. (“[A] remedy for unsafe conditions need not await a tragic event.”).
Plaintiffs also satisfy the second prong because Defendants are undeniably aware of the serious risk that COVID-19 poses to Plaintiffs and other members of the proposed class. The PDP website, in a post written by Defendant Carney, reports the number of confirmed COVID-19 cases in PDP facilities, and outlines screening steps purportedly taken “to be proactive in safeguarding the welfare of everyone at the PDP.”11 The PDP deems it important to issue personal protective equipment “to staff,” id., but not those held in PDP facilities. The PDP claims to conduct assessment tracing of anyone within 6 feet of a staff member who tests positive, in accordance with “CDC guidelines,” id., but has not adopted other CDC social distancing, hygiene, and medical
11 See “How Philadelphia Department of Prisons is responding to COVID-19,” available at https://www.phila.gov/2020-03-30-how-philadelphia-department-of-prisons-is-responding-to-covid-19/.
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care guidelines critical to slow the spread of the virus. The “PDP Response to COVID-19”12 does not satisfy Defendants’ constitutional obligation to provide safe conditions. Rather, it underscores that Defendants: (1) knew of the grave risks of COVID-19 in PDP, and (2) nonetheless failed to take appropriate steps to create a response plan that complied with CDC guidelines. Amon Decl. ¶ 53. Worse, the evidence establishes that PDP is not even complying with its own inadequate response plan. Id. at ¶ 57. As a result, plaintiffs are not receiving adequate hygiene or cleaning supplies, id., and staff and inmates are not consistently getting or using personal protective equipment. Id. at ¶ 33, 53.
Conditions that violate the Eighth Amendment necessarily also violate pretrial detainees’ due process rights under the Fourteenth Amendment. See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (explaining that the “Fourteenth Amendment affords pretrial detainees protections ‘at least as great as the Eighth Amendment protections available to a convicted prisoner’”) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). Because Defendants’ conduct clearly violates the Eighth Amendment, the Court need not analyze plaintiffs’ claim separately under the Fourteenth Amendment.13
b. Plaintiffs and the Disability Subclass are likely to succeed on the ADA claims.
12 Available at https://www.phila.gov/media/20200413152258/PDP-Response-COVID-19.pdf 13 Plaintiffs note, however, that the Fourteenth Amendment also protects pretrial detainees from being held in conditions that amount to punishment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). When “a condition of confinement is [not] reasonably related to a legitimate governmental objective, [courts] 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)); see also Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (holding that defendants can be liable under the Due Process Clause even when they did not have subjective awareness that their acts or omissions subjected pretrial detainees to a substantial risk of harm) (citing Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)).
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The ADA provides additional and alternative grounds for injunctive relief. The ADA is “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society” and “must be broadly construed to effectuate its purposes.” Schorr v. Borough of Lemoyne, 243 F. Supp. 2d 232, 235 (M.D. Pa. 2003) (citing Tcherepnin v. Knight, 389 U.S. 332, 335 (1967)). To establish a claim for relief under Title II of the ADA, 42 U.S.C. § 12101 et seq., a plaintiff must establish “that he is a qualified individual with a disability, who was precluded from participating in a program, service, or activity, or otherwise was subject to discrimination, by reason of his disability.” Furgess v. Pa. Dep’t of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019)); see also Bowers v. NCAA, 475 F.3d 524, 553 n.32 (3d Cir. 2007). The ADA prohibits public entities, including county jails, from discriminating on the basis of disability. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209–10 (1998) (finding ADA protections apply to activities of correctional institutions); Chisolm v. McManimon, 275 F.3d 315, 325 (3d Cir. 2001) (“Title II of the ADA applies to services, programs and activities provided within correctional institutions.”). Discrimination includes failing to make reasonable accommodations that would allow a person with a disability to participate in a service, program or activity. 28 C.F.R. § 35.130(b)(7); Tennessee v. Lane, 541 U.S. 509, 531 (2004) (noting Congress recognized “that failure to accommodate persons with disabilities often have the same practical effect as outright exclusion” or discrimination).
The ADA defines disability as an impairment that substantially limits “major life activities.” 42 U.S.C. § 12102(2). “Major life activities” include “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Id. Each of the named plaintiffs has a physical impairment that constitutes a disability under the ADA. Compl. ¶¶ 36–45. The same is true of each member of the Disability Subclass,
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who is at increased risk of COVID-19 illness, injury, or death due to their disability or any medical treatment necessary to treat their disability.14
Plaintiffs and members of the Disability Subclass are precluded from safely participating in PDP’s services, programs, and activities. “Services, programs, and activities” under the ADA “encompass virtually everything that a public entity does.” Haberle v. Troxell, 885 F.3d 171, 180 (3d Cir. 2018) (internal quotations omitted); see also Furgess, 933 F.3d at 289 (“We have confirmed these terms’ broad meaning, calling them ‘all-encompassing.’”). Due to the unique nature of detention, in which facility staff control nearly all aspects of detained individuals’ daily lives, this includes “virtually all [] prison programs,” including those involving “mobility, hygiene, [and] medical care.” Furgess, 933 F.3d at 290 (citing United States v. Georgia, 546 U.S. 151, 157 (2006)). By virtue of their incarceration, members of the Disability Subclass qualify for the “services, programs, and activities” of PDP, including the safe care PDP has a duty to provide for those in its custody. Conditions in PDP’s facilities deny Plaintiffs and the members of the Disability Subclass that safety. Defendants have neglected their ADA obligations by failing to provide Plaintiffs and members of the Disability Subclass with adequate means to protect themselves against COVID-19 and its serious complications.
The conditions of confinement at PDP violate the constitutional and statutory rights of all members of the plaintiff class as they place them at a significant and unreasonable risk of
14 Members of the Disability Subclass have diagnoses including but not limited to the following: (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders and/or (i) developmental disability. Compl. ¶ 49.
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contracting COVID-19. Plaintiffs cannot get sufficient soap, hand sanitizer, cleaning and disinfecting products, or personal protective equipment. Amon Decl. ¶ 33, 59; Cohen Decl. ¶ 40, 41. Plaintiffs do not get adequate testing, and there is insufficient quarantine, separation, and medical care for those who enter the PDP, those who are symptomatic or test positive, or those who are medically vulnerable. Amon Decl. ¶ 53; Cohen Decl. ¶ 37. Moreover, PDP’s inadequate attempt to impose social distancing has led to additional violations, as plaintiffs have a significantly reduced ability to shower, exercise, or have necessary communications with their families or lawyers. Cohen Decl. ¶ 22, 52.
As the comprehensive declarations of Drs. Amon and Cohen establish, the PDP has failed to comply with the nationally recognized health and safety standards and as a result, at this time, the class members face a grave risk of illness and death. Courts considering similar conditions have found plaintiffs, like the plaintiffs in this case, to have established a likelihood of success on the merits of their constitutional and statutory claims, whether brought under the Eighth or Fourteenth Amendments. See, e.g., Banks v. Booth, No. CV 20-849(CKK), 2020 WL 1914896, at *11 (D.D.C. April 19, 2020) (granting TRO with respect to conditions in D.C. jails); Mays v. Darts, No. 20 C 2134, 2020 WL 1812381, at *8 (N.D. Ill, April 9, 2020) (issuance of TRO on claim of unconstitutional conditions of confinement in Cook County jail); cf. Thakker v. Doll, No. 2000480, 2020 WL 1671563, at *8 (M.D. Pa. Mar. 31, 2020) (finding “no rational relationship between a legitimate government objective” and keeping people “detained in unsanitary, tightlypacked environments”).
2. The Heightened Risk of Infection from COVID-19 with No Vaccine or Cure Establishes Irreparable Harm
Denying preliminary relief will cause irreparable harm. Plaintiffs and the class members face the immediate and serious risk of severe illness and possible death unless the Court intervenes.
17

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 18 of 27
See Mays v. Dart, 2020 WL 1812381, at *13 (finding irreparable harm in light of the “grave threat to [plaintiffs] health and possibly their lives” posed by COVID-19); Banks, 2020 WL 1914896 at * 11; Basank v. Decker, No. 20-2518, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020) (recognizing “the threat that COVID-19 poses to individuals held in jails and other facilities” and citing cases recognizing the same); U.S. v. Stephens, No. 15-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (explaining prison inmates face “a heightened risk of contracting COVID-19 should an outbreak develop”).
Plaintiffs need not establish that they have actually suffered injury in order to establish irreparable harm, but rather, it is sufficient to establish that a condition of confinement is sure or very likely to cause serious illness and needless suffering. See Helling, 509 U.S. at 33, 35 (noting that a prisoner “could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery” and holding that exposure to second-hand smoke in prison stated a constitutional claim); Padilla v. Immigration & Customs Enf’t, No. 19-35565, 2020 WL 1482393, at *9 (9th Cir. Mar. 27, 2020) (affirming grant of preliminary injunction, agreeing “Petitioners would suffer irreparable harm in the form of substandard physical conditions” and “low standards of medical care,” among other things); Thakker, 2020 WL 1671563, at *3–4 (finding petitioners’ claim “rooted in imminent, irreparable harm,” given they “face the inexorable progression of a global pandemic creeping across the nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions”); Jones v. Wolf, No. 20-361, 2020 WL 1643857, at *11, 13 (W.D.N.Y. Apr. 2, 2020); Coreas v. Bounds, No. 20-0780, Dkt. No. 56, at 30 (D. Md. Apr. 3, 2020) (“once COVID-19 is introduced into a detention facility, it spreads like wildfire,” creating “a high likelihood of irreparable health consequences” for detainees “that could not be alleviated without release”).
18

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 19 of 27
Recognizing such heightened risk of COVID-19 from the conditions of confinement in facilities around the country, several courts have already begun to grant preliminary injunctive relief and order defendants to undertake certain measures to comply with CDC guidelines. See, e.g., Wilson v. Williams, No. 4:20-cv-00794, slip op. at 15-19 (N.D. Ohio, Apr. 22, 2020) (granting preliminary injunctive relief in class action habeas petition for prisoners, ordering the Bureau of Prisons to identify individuals who are at heightened risk and transfer them to home confinement or a facility where social distancing is possible).15
Indeed, several courts have also ordered the immediate release of detainees facing the imminent threat of COVID-19. See, e.g., Bent v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850, at *6 (N.D. Cal. Apr. 9, 2020) (allowing for release of detainee who had “at least two high-risk conditions and ha[d] therefore established that he [was] at heightened risk because of COVID19”); Vazquez Barrera v. Wolf, No. 4:20-cv-1241, 2020 WL 1904497, at *8 (S.D. Tex. Apr. 17, 2020) (ordering immediate release of detainee finding, among other things, “that detention of [detainees], who are high risk of serious illness or death if they contract COVID-19 … where social distancing and proper hygiene are impossible, does not reasonably relate to a legitimate governmental purpose”); Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *14 (E.D. Mich.
15 See also Cameron v. Bouchard, No. 20-10949, 2020 WL 1929876, at *2 (E.D. Mich. Apr. 17, 2020) (ordering defendants to undertake certain measures in county jail including providing each detainee, free of charge, a sufficient supply of soap to allow regular hand washing each day and an adequate supply of disinfectant products for daily cleanings, and scheduling a hearing to address plaintiffs’ request for release); Swain v. Junior, No. 1:20-CV-21457-KMW, 2020 WL 1692668, at *2 (S.D. Fla. Apr. 7, 2020) (granting in part motion for temporary restraining order and requiring defendants to provide a list of detainees who meet certain health criteria that subjects them to heightened risk); Parsons v. Shinn, No. CV-12-00601PHX-ROS, 2020 WL 1640532, at *2 (D. Ariz. Apr. 2, 2020) (requiring defendants to provide plaintiffs, on a weekly basis, the names and identification numbers of detainees who are tested for COVID-19).
19

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 20 of 27
Apr. 5, 2020) (requiring detainee to be released on her own recognizance where she suffered from a number of health conditions).
3. The Balance of Equities Favors Granting Relief to the Proposed Class. The balance of equities weighs heavily in favor of granting the requested injunctive relief. The preliminary injunction Plaintiffs request will not substantially injure other interested parties. See Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 526 (3d Cir. 2018) (preliminary injunction warranted where relief “will not result in even greater harm to the nonmoving party”). Rather, given the nature of the COVID-19 pandemic in general, not issuing preliminary relief would cause significant injury to the parties and the public at large. Beyond the fact that “[t]he balance of the equities tips sharply” in favor of Plaintiffs and the proposed class, given the threat of “irreparable harm to their constitutional rights and health,” Castillo v. Barr, No. 20-00605, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020); see also Am. Freedom Def. Initiative v. Se. Pa. Transp. Auth., 92 F. Supp. 3d 314, (E.D. Pa. 2015) (same), the public interest favors granting preliminary relief as well. As outlined below, Plaintiffs have requested remedial measures that go no further than necessary to protect their basic constitutional and statutory rights to humane conditions of confinement by ensuring compliance with the views of medical and correctional experts in line with but not necessarily limited by CDC guidelines and standards. Under this remedial scheme, the Defendants continue to hold the keys to the PDP and are required only to do what the Constitution requires.
4. Injunctive Relief Promotes the Public Interest. There is a strong public interest in minimizing the spread of COVID-19 to staff in the PDP and, once carried out unknowingly by staff members, to the broader Philadelphia community. In
20

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 21 of 27
the first instance, uncontrolled spread of COVID-19 within the PDP’s facilities increases the risk of infection to PDP staff members who return to their communities at the end of each workday, and, therefore, poses a direct threat to the entire surrounding community. Further, a large-scale infection within PDP will tax supporting hospitals and increase in the number of sick individuals in the community needing prompt and critical medical care. The public interest is best served by taking all necessary steps to reduce infection, slow the spread of the virus, and provide all necessary and available support to protect against undue pressures on Philadelphia hospitals.
Courts have consistently found a weighty public interest favoring injunctive relief where prisoners face similarly serious threats to their health. At bottom, “[t]he public has a critical interest in preventing the further spread of the coronavirus.” Castillo v. Barr, No. 20-00605, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020); see also Thakker, 2020 WL 1671563, at *9 (finding “[e]fforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest”). Further escalation of the already substantial outbreak within PDP, like the detention center in Castillo, would “endanger all of us—detainees, employees, residents [of the surrounding community], residents of the State . . . , and our nation as a whole,” Castillo, 2020 WL 1502864, at *6; and would “quickly overwhelm the already strained health infrastructure within the facility . . . which would then place strain on the surrounding community hospitals.” Coronel, 2020 WL 1487274, at *7.
B. Requests for Injunctive Relief Plaintiffs request a TRO and a preliminary injunction for immediate relief for all incarcerated people held in the PDP, because with each day that passes, the risk of severe harm grows exponentially for each person. Plaintiffs seek relief on behalf of a class (“Class”) consisting of:
21

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 22 of 27
All current and future persons held in custody within the Philadelphia Department of Prisons. See Compl. ¶ 47; Pls.’ Mot. for Class Certification (ECF 2) ¶1.16
Plaintiffs seek injunctive and declaratory relief to bring the PDP into compliance with
nationally recognized health and safety standards. The necessary measures are alleged in the
Complaint, ¶¶ 26–34, detailed in the reports of Drs. Cohen and Amon, and outlined below.
Further, Plaintiffs request that Defendants be ordered to submit a plan to the Court within
five (5) days, to be overseen by a qualified public health expert pursuant to Fed. R. Evid. 706,
which outlines specific mitigation efforts.
More specifically, Plaintiffs request injunctive relief that addresses the following
requirements and standards:
1. Ensuring proper social distancing by: a. Allowing no less than six-feet of distance between incarcerated persons held in custody at the Philadelphia Department of Prisons when sleeping, eating, washing, recreating, using phones, and traveling between different areas of PDP facilities.
2. Ensuring enhanced personal hygiene by: a. Providing unrestricted free access to hand soap and disposable hand towels to facilitate handwashing.
b. Providing unrestricted free access to hand sanitizer that contains at least 60% alcohol.
c. Providing the opportunity to shower daily, without forcing incarcerated people to choose between showers and other activities.
3. Ensuring clean and hygienic living spaces by: a. Providing ready access to cleaning supplies, including bleach-based cleaning agents and CDC-recommended disinfectants in sufficient quantities to facilitate frequent cleaning and disinfecting of floors and all surfaces in cells and housing areas.
16 Plaintiffs also seek certification of two subclasses, in addition to the Class defined above. One subclass is the “Medically Vulnerable Subclass,” and the other subclass is the “Disability Subclass.” See Compl. ¶ 48; Mot. for Class Cert. ¶¶ 2-3.
22

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 23 of 27
b. Requiring and ensuring that all common areas and frequently touched surfaces , including common-use items such as but not limited to toilets, sinks, showers, televisions controls, books, door handles, light switches, and recreational equipment are cleaned at regular intervals repeatedly throughout the day. Phones should be cleaned after each use.
c. Increasing regular cleaning and disinfecting of all common areas and surfaces, including common-use items such as television controls, books, and gym and sports equipment.
d. Providing new gloves and masks daily to those who are cleaning or performing janitorial services.
e. Providing clean sheets and clothing twice per week.
4. Ensuring consistent usage of personal protective equipment (PPE) by: a. Providing all incarcerated people and prison staff members with masks that are laundered and/or exchanged on a daily basis; and
b. Mandating that prison staff wear masks at all times while working, and that incarcerated people wear masks at all times when leaving their cell (except if showering, eating, or for medical reasons).
5. Implementing testing and medical isolation by: a. Testing all incarcerated people in PDP, including those newly admitted, for COVID-19, prioritizing those in the medically vulnerable sub-class.
b. Ensuring that any incarcerated person who tests positive or displays symptoms consistent with COVID-19 is medically isolated and remains medically isolated until they test negative to prevent the infection of others. Individuals in isolation should have multiple daily temperature checks and monitoring of blood oxygen levels to ensure stability.
c. Testing all staff who enter PDP facilities, and for any staff that tests positive, requiring that they medically isolate themselves and test negative prior to reentering a PDP facility.
6. Alternatively, implementing screening, medical isolation, and quarantine if mass testing is not available by: a. Immediately medically isolating all those who display symptoms of COVID19. Individuals in isolation should have multiple daily temperature checks and monitoring of blood oxygen levels to ensure stability.
b. Quarantining all new admissions to PDP facilities for a full 14 days. Those in quarantine should be monitored daily for symptoms and temperature.
23

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 24 of 27
c. Quarantining all people who have been exposed to individuals who have tested positive for COVID-19 or displayed symptoms consistent with COVID-19 for a full 14 days. Those in quarantine should be monitored daily for symptoms and temperature.
d. Screening everyone entering PDP facilities daily for temperature and symptoms. Those who cannot pass the screen should be sent home.
7. Ensuring access to necessary services by: a. Providing at least four hours of daily out-of-cell time for showering, cleaning, recreation, and making phone calls. Two of these hours must be permitted for large-muscle recreation out of doors. Such out-of-cell time should be provided on a staggered basis to allow for social distancing.
b. Providing medical care for non-COVID-19-related medical and mental health needs.
c. Maintaining no-cost medical service and medication delivery and, if applicable, waiving co-pays.
d. Providing unlimited and free calls to families or loved ones.
e. Providing free, unrecorded, and confidential phone calls to legal counsel.
8. Ensuring education, transparency, and information dissemination by: a. Providing all incarcerated people with (i) general updates and information about the COVID-19 pandemic; (ii) information on how incarcerated people can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands.
a. Providing a daily public report on the current and cumulative numbers of: i. incarcerated people and correctional and health staff who have confirmed COVID-19; ii. those who have been tested;
iii. incarcerated people over the age of 55; iv. people in infirmary status; v. pregnant women in custody; vi. those in quarantine and medical isolation status; vii. incarcerated people awaiting test results; viii. COVID-19 positive persons in cohorted housing; ix. incarcerated people hospitalized (including daily hospital admissions,
discharges, and number of people on ventilators); x. deaths of incarcerated people.
24

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 25 of 27
C. Release of Plaintiffs and Members of the Class Is Necessary and Warranted if Defendants do not Provide Constitutional Conditions of Confinement
If Defendants do not provide these constitutionally and statutorily required minimum protections, this Court has the power to issue writs of habeas corpus releasing class members. 28 U.S.C. § 2241 provides relief for incarcerated people who allege violations of the Constitution that make the fact of their confinement illegal. See Preiser v. Rodriquez, 411 U.S. 475, 494 (1973) (habeas corpus permits prisoners to attack “the fact or length of confinement” and seek “immediate or more speedy release”); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242–44 (3d Cir. 2005) (Becker, J.) (habeas corpus permits prisoners to attack “execution” of their sentence, which includes manner and method of detention); Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002) (habeas corpus review available “where the deprivation of rights is such that it necessarily impacts the fact or length of detention”).
Writs of habeas corpus ordering release may be the only means to protect certain class members from constitutionally deficient conditions that place them at a severe risk of illness or death from COVID-19. If the PDP fails to adopt basic mitigation policies—such as social distancing, personal hygiene, and proper medical testing and care—class members and especially members of the Medically Vulnerable Subclass are entitled to judicial consideration for release. In adopting appropriate social distancing practices, however, PDP cannot substitute one unconstitutional practice for another and mandate facility-wide lockdowns. See Cohen Decl. ¶ 52 Diaz Decl. ¶¶ 3–4; Walker Decl. ¶ 3; Abdullah Decl. ¶ 2; Bethea Decl. ¶ 5.
In these circumstances, which are controlled, and therefore can be prevented by the Defendants, the Medically Vulnerable Subclass’ claims come “within the ‘core of habeas’ and require sooner release if resolved in [their] favor.” Leamer, 288 F.3d at 544; see also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005) (allowing sentenced prisoners to
25

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 26 of 27
challenge the execution of their confinement pursuant to Section 2241); Thakker v. Doll, No. 1:20cv-480, 2020 WL 1671563, at *6 (M.D. Pa. Mar. 31, 2020) (“we note that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas”); Robertson v. Allegheny Ct. of Com. Pleas, No. 12-1080, 2012 WL 4712034, at *2 (W.D. Pa. Aug. 22, 2012) (“Section 2241 authorizes a federal court to issue a writ of habeas corpus to a pretrial detainee who ‘is in custody in violation of the Constitution or laws or treaties of the United States.’” (quoting 28 U.S.C. § 2241(c)(3) and citing Moore v. DeYoung, 515 F.2d 437, 441–43 (3d Cir. 1975))); Holland v. Rosen, 277 F. Supp. 3d 707, 738 (D.N.J. 2017) (a “challenge to pretrial incarceration seeks a remedy available only in habeas” (quoting Wallace v. Fegan, 455 F. App’x 137, 140 (3d Cir. 2011))); Dodd v. Derose, No. 15-01088, 2015 WL 5029364, at *2 (M.D. Pa. Aug. 25, 2015) (same); Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978) (recognizing that sentenced state prisoners may challenge "conditions of confinement" under section 2241); Lopez v. Lowe, No. 3:20-CV-563, 2020 U.S. Dist. LEXIS 60796, at *11 (M.D. Pa. Apr. 7, 2020) ("When a petitioner seeks immediate release from custody, the "sole federal remedy" lies in habeas corpus.").17 IV. CONCLUSION
For the foregoing reasons, this Court should grant Plaintiffs-Petitioners’ Motion for a Temporary Restraining Order and Preliminary Injunction, and order that Defendants immediately enact policies implementing mitigation efforts within the PDP to prevent the spread of COVID-
17 Several courts have recently invoked § 2241 to order the immediate release of detainees facing the imminent threat of COVID-19. See, e.g., Avendano Hernandez v. Decker, No. 20-1589, 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020); Castillo v. Barr, No. 20-00605, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020); Coronel v. Thomas, No. 20-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker, No. 202518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020).
26

Case 2:20-cv-01959-BMS Document 18-1 Filed 04/23/20 Page 27 of 27

19, and, in the alternative issue writs of habeas corpus for the members of the Medically Vulnerable

Subclass.

Respectfully submitted,

/s/ Su Ming Yeh Su Ming Yeh (PA 95111) /s/ Matthew A. Feldman Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 (215)-925-2966 smyeh@pailp.org mfeldman@pailp.org

/s/ David Rudovsky David Rudovsky (PA 15168) /s/ Jonathan H. Feinberg Jonathan H. Feinberg (PA 88227) /s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 drudovsky@krlawphila.com jfeinberg@krlawphila.com slin@krlawphila.com

/s/ Nyssa Taylor Nyssa Taylor (PA 200885)* /s/ Witold J. Walczak Witold J. Walczak (PA 62976) /s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) /s/ Ali Szemanski Ali Szemanski (PA 327769)* AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 ntaylor@aclupa.org vwalczak@aclupa.org HNelson-Major@aclupa.org aszemanski@aclupa.org
Attorneys for Petitioners/Plaintiffs

/s/ Will W. Sachse Will W. Sachse (PA 84097) /s/ Benjamin R. Barnett Benjamin R. Barnett (PA 90752) /s/ Mary H. Kim Mary H. Kim* /s/ Nicolas A. Novy Nicolas A. Novy (PA 319499) /s/ Theeya Musitief Theeya Musitief (PA 327295)* DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 (215) 994-2496 Will.Sachse@dechert.com Ben.Barnett@dechert.com Mary.Kim@dechert.com Nicolas.Novy@dechert.com Theeya.Musitief@dechert.com

DATE: April 23, 2020

* indicates counsel who will seek admission or pro hac vice admission

27

Case 2:20-cv-01959-BMS Document 18-2 Filed 04/23/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

No. 2:20-cv-01959-BMS

ORDER

Now, on this

day of

, 2020, upon consideration of Plaintiffs-

Petitioners’ Motion for Temporary Restraining Order and Preliminary Injunction, Plaintiff’s

motion is HEREBY GRANTED.

IT IS FURTHER ORDERED that Defendants shall within the Philadelphia Department

of Prisons:

1. Ensure proper social distancing by: a. Allowing no less than six-feet of distance between incarcerated persons held in custody at the Philadelphia Department of Prisons when sleeping, eating, washing, recreating, using phones, and traveling between different areas of PDP facilities.

2. Ensure enhanced personal hygiene by: a. Providing unrestricted free access to hand soap and disposable hand towels to facilitate handwashing.

b. Providing unrestricted free access to hand sanitizer that contains at least 60% alcohol.

Case 2:20-cv-01959-BMS Document 18-2 Filed 04/23/20 Page 2 of 4
c. Providing the opportunity to shower daily, without forcing incarcerated people to choose between showers and other activities.
3. Ensure clean and hygienic living spaces by: a. Providing ready access to cleaning supplies, including bleach-based cleaning agents and CDC-recommended disinfectants in sufficient quantities to facilitate frequent cleaning and disinfecting of floors and all surfaces in cells and housing areas.
a. Requiring and ensuring that all common areas and frequently touched surfaces, including common-use items such as but not limited to toilets, sinks, showers, television controls, books, door handles, light switches, and recreational equipment are cleaned at regular intervals repeatedly throughout the day. Phones should be cleaned after each use.
b. Providing new gloves and masks daily to those who are cleaning or performing janitorial services.
c. Providing clean sheets and clothing twice per week.
4. Ensure consistent usage of personal protective equipment (PPE) by: a. Providing all incarcerated people and prison staff members with masks that are laundered and/or exchanged on a daily basis; and
b. Mandating that prison staff wear masks at all times while working, and that incarcerated people wear masks at all times when leaving their cell (except if showering, eating, or for medical reasons).
5. Implement testing and medical isolation by: a. Testing all incarcerated people in PDP, including those newly admitted, for COVID-19, prioritizing those in the medically vulnerable sub-class.
b. Ensuring that any incarcerated person who tests positive or displays symptoms consistent with COVID-19 is medically isolated and remains medically isolated until they test negative to prevent the infection of others. Individuals in isolation should have multiple daily temperature checks and monitoring of blood oxygen levels to ensure stability.
c. Testing all staff who entering PDP facilities, and for any staff that tests positive, requiring that they medically isolate themselves and test negative prior to re-entering a PDP facility.
6. Alternatively, implementing screening, medical isolation, and quarantine if mass testing is not available by:

Case 2:20-cv-01959-BMS Document 18-2 Filed 04/23/20 Page 3 of 4
a. Immediately medically isolating all those who display symptoms of COVID19. Individuals in isolation should have multiple daily temperature checks and monitoring of blood oxygen levels to ensure stability.
b. Quarantining all new admissions to PDP facilities for a full 14 days. Those in quarantine should be monitored daily for symptoms and temperature.
c. Quarantining all people who have been exposed to individuals who have tested positive for COVID-19 or those who displayed symptoms consistent with COVID-19 for a full 14 days. Those in quarantine should be monitored daily for symptoms and temperature.
d. Screening everyone entering PDP facilities daily for temperature and symptoms. Those who cannot pass the screen should be sent home.
7. Ensuring access to necessary services by: a. Providing at least four hours of daily out-of-cell time for showering, cleaning, recreation, and making phone calls. Two of these hours must be permitted for large-muscle recreation out of doors. Such out-of-cell time should be provided on a staggered basis to allow for social distancing.
b. Providing medical care for non-COVID-19-related medical and mental health needs.
c. Maintaining no-cost medical service and medication delivery and, if applicable, waiving co-pays.
d. Providing unlimited and free calls their families or loved ones.
e. Providing free, unrecorded, and confidential phone calls to legal counsel.
8. Ensuring education, transparency, and information dissemination by: a. Providing all incarcerated people with (i) general updates and information about the COVID-19 pandemic; (ii) information on how incarcerated people can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands.
a. Providing a daily public report on the current and cumulative numbers of: i. incarcerated people and correctional and health staff who have confirmed COVID-19; ii. those who have been tested;
iii. incarcerated people over the age of 55; iv. people in infirmary status; v. pregnant women in custody; vi. those in quarantine and medical isolation status; vii. incarcerated people awaiting test results;

Case 2:20-cv-01959-BMS Document 18-2 Filed 04/23/20 Page 4 of 4
viii. COVID-19 positive persons in cohorted housing; ix. incarcerated people hospitalized (including daily hospital admissions, discharges, and number of people on ventilators); x. deaths of incarcerated people.
BY THE COURT:
__________________________ BERLE M. SCHILLER, J.

 
 Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, et al.

:

Plaintiffs,

:

:

v.

:

:

CITY OF PHILADELPHIA, et al.,

:

Defendants.

:

:

Civil Action No. 20-1959

ORDER

AND NOW, this _________ day of __________________, 2020, upon consideration of Plaintiffs’ Motion for Class Certification, and Defendants’ response thereto, it is HEREBY ORDERED that the Motion is DENIED.

BY THE COURT:
____________________________ BERLE M. SCHILLER, J.

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 2 of 13

MARCEL PRATT Philadelphia City Solicitor CRAIG STRAW First Deputy City Solicitor DIANA CORTES Chair, Litigation Group ANNE TAYLOR Chief Deputy City Solicitor, Civil Rights Unit MEGHAN E. CLAIBORNE Deputy City Solicitor, Civil Rights Unit SHANNON ZABEL Assistant City Solicitor, Civil Rights Unit City of Philadelphia Law Department 1515 Arch Street Philadelphia, PA 19102

Attorneys for Defendants City of Philadelphia and Blanche Carney

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, et al.,

:

Plaintiffs,

:

:

Civil Action

v.

:

No. 20-1959

:

CITY OF PHILADELPHIA, et al.,

:

Defendants.

:

:

THE CITY OF PHILADELPHIA’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs, Thomas Remick, Nadiyah Walker, Jay Diaz, Michael Alejandro, Michael

Dantzler, Robert Hinton, Joseph Weiss, Joseph Skinner, Saddam Abdullah, and James Bethea

(“Plaintiffs”), commenced this action on April 20, 2020. Dkt. 1. That same day, Plaintiffs filed a

motion for class certification (“Motion”). Dkt. 2. In their Motion, Plaintiffs seek to have the Court

enter an order certifying their proposed class (“Class”), as well as two subclasses (the

“Subclasses”), including the Medically-Vulnerable Subclass.

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 3 of 13
For the following reasons, Defendants, the City of Philadelphia and Commissioner Blanch Carney (“Defendants”), oppose the certification of the Class and both the Medically-Vulnerable and Disability Subclasses. I. ARGUMENT
Defendants have filed an opposition to Plaintiffs’ motion for temporary restraining order. Dkt. 22 (“Opposition”). For the sake of brevity, the Defendants incorporate these facts by reference and rely upon them as if restated herein.
The requirements for class certification are outlined in Rule 23(a). Fed.R.Civ.P. 23; Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613–14 (1997). “Unless each requirement of Rule 23 is actually met, a class cannot be certified.” In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 596 (3d Cir.2009). “As a result, ‘[a]n overlap between a class certification requirement and the merits of a claim is no reason to decline to resolve relevant disputes when necessary to determine whether a class certification requirement is met.’” Id. (quoting Beck v. Maximus, 457 F.3d 291, 301 (3d Cir.2006)). The Court must therefore conduct a “rigorous analysis” to determine whether the prerequisites of Rule 23 have been satisfied, going beyond the pleadings if necessary. Id.; Williams v. City of Philadelphia, 270 F.R.D. 208, 213 (E.D. Pa. 2010).
Rule 23(a) requires that the movant demonstrate the following for certification: (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). Because Plaintiffs seek class certification pursuant to Rule 23(b)(2), they must also establish that “the party opposing the class has acted or refused to act on grounds that apply
3

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 4 of 13
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).
A “decision to certify a class calls for findings by the court, not merely a ‘threshold showing’ by a party, that each requirement of Rule 23 is met.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir. 2008). Rather, “[t]he party seeking certification bears the burden of establishing each element of Rule 23 by a preponderance of the evidence” and “actual, not presumed, conformance with Rule 23 requirements is essential.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012) (internal quotations omitted). “To determine whether there is actual conformance with Rule 23, a district court must conduct a ‘rigorous analysis’ of the evidence and arguments put forth.” Id.
Indeed, “[a] class certification decision requires a thorough examination of the factual and legal allegations” contained in the complaint, and “it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001) (citing Barnes v. Am. Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998); General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982)). In essence, “the task for plaintiffs at class certification is to demonstrate [by a preponderance of the evidence] that the elements of their claims are capable of proof at trial through evidence that is common to the class rather than individual to its members.” Stanford v. Foamex, 263 F.R.D. 156, 163 (E.D. Pa. 2009) (quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 317 (internal marks omitted)). The Third Circuit has made clear that Rule 23 gives no license to shy away from making factual findings that are necessary to determine whether the Rule’s requirements have been met.” Marcus, 687 F.3d at 591.
4

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 5 of 13
As to the Class, Defendants do not challenge that Plaintiffs have satisfied the elements of numerosity and typicality. However, Plaintiffs are unable to establish the elements of commonality and representation. Nor are Plaintiffs’ able to satisfy the elements of commonality or representation as to the Medically-Vulnerable or Disability Subclasses. Finally, denial of Plaintiffs’ Motion is warranted because Plaintiffs have failed to establish that Defendants acted or refused to act on grounds that apply generally to the Class.
A. Plaintiff Fails to Establish Elements Necessary to Certify the Class Plaintiffs cannot establish either the elements of commonality or representation as to the Class.
1. Plaintiffs’ Fail to Establish Commonality as to the Class Plaintiff asserts the following common questions of law and fact:
• whether PDP’s facilities are properly equipped to house all Class members safely and quarantine all Class members who exhibit symptoms for COVID-19;
• whether denial of adequate testing, cleaning supplies, and the right to practice social distancing in accordance with CDC guidelines will cause injury to the Class members, including unnecessary pain and suffering, and even death; and
• whether PDP’s current practices and procedures violate the Fourteenth Amendment, the Eighth Amendment, and the Americans with Disabilities Act.
Motion at ¶6. Because these issues require individualized analysis as to each purported class member, Plaintiffs cannot establish the element of commonality.
As an initial matter, Plaintiffs have sought relief for alleged Fourteenth and Eighth Amendments violations pursuant to 28 U.S.C. § 2241. However, Section 2241 is the appropriate mechanism by which a pre-trial detainee may challenge state custody. Paladino v. King, Civ. No. 07–370, 2008 WL 1820666, at *2 (E.D. Pa. Apr. 22, 2008) (Schiller, J., adopting Report and
5

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 6 of 13
Recommendation of Restrepo, M.J.). Title 28 U.S.C. § 2254 is actually the appropriate mechanism by which an individual “in custody pursuant to the judgment of a state court” may seek relief. Id. (internal citation omitted). Plaintiff fails to assert a claim under Section 2254, thus any putative Class members who have already been convicted, such as Plaintiffs Remick and Bethea, must seek relief under Section 2254, not Section 2241.
Further, Plaintiffs allege that that there is a common question of law or fact including whether PPD facilities are properly equipped to safely handle all class member who exhibit symptoms; whether the denial of testing, cleaning or social distancing; etc. amount to a constitutional violation. While Plaintiffs attempt to assert a blanket challenge under the Eighth Amendment concerning an unreasonable risk of contracting COVID-19, Plaintiffs’ claims do not actually concern a single, unified policy or issue. Rather, Plaintiffs have identified a plethora of policies and practices that they assert all touch on the issue of infection in some degree including, but not limited to, facility population, quarantine policies, social distancing policies, provision of soap and/or cleaning materials, and provision of personal protective equipment. Compare Stewart v. Winter, 669 F.2d 328, 338 (5th Cir. 1982) (declining to find a common question of fact or law as to eight (8) plaintiffs spread across different facilities); with, Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 62 (3d Cir. 1994) (allowing claims to proceed where conditions concerned unified system and statutory standards unlike individualized Eighth Amendment analysis); Williams, 270 F.R.D. at 215 (assessing whether single issue of overcrowding in facilities constituted violation). Additionally, there are significant variances within each of the four (4) PDP facilities at issue that preclude a blanket analysis of Plaintiffs’ claims: from layout (individual cells v. dorms; personal sinks or toilets; types of showers), to facility capacity and population, to security levels and inmate disciplinary issues.
6

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 7 of 13
As recognized by the very Center for Disease Control (“CDC”) guidelines Plaintiffs rely upon, specific practices “may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions.”1 Further, the CDC acknowledged that administrators and agencies “should adapt these guiding principles to the specific needs of their facilities.” Id. at p.3. Compliance with CDC guidelines or general best practices for a correctional facility is an inherently individualized and fact specific assessment.
As such, the issue here of whether an individual is being subject to conditions that violate the Eighth or Fourteenth Amendments is specific if not to each inmate, at a minimum to each facility. The Court is unable to make a determination as to the PDP in general, but must make a “separate inquiry into the ‘totality’ of conditions in each jail.” Stewart, 669 F.2d at 338.
2. Plaintiffs are Not Adequate Class Representatives Nor have Plaintiffs established that they are adequate class representatives. In a conditions of confinement case, a plaintiff who has been released from confinement within the subject facility is not an adequate class representative. Parsons v. Ryan, 289 F.R.D. 513, 524 (D. Ariz. 2013), aff'd, 754 F.3d 657 (9th Cir. 2014) (holding that plaintiff’s release “undermines his adequacy as a Class representative and he will be dismissed”). Plaintiffs have failed to make any showing as to the adequacy of the Plaintiffs as representative of the class. Defendants are aware that at least one Plaintiff, Michael Dantzler, has been released. See Criminal Docket, Inmate Locater Results, attached respectively as Exhibits A & B. Plaintiff Dantzler is therefore no longer an adequate Class representative. To the extent additional Plaintiffs have been released, they are
1Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities at p.1, 3 (emphasis not included), available athttps://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (last viewed Apr. 30, 2020).
7

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 8 of 13
similarly no longer adequate class representatives. Given that Plaintiffs have failed to make a
showing that the individual Plaintiffs are adequate class representatives, Plaintiffs’ Motion must
fail. See Stanford, 263 F.R.D. at 163.
B. Plaintiff Fails to Establish Elements Necessary to Certify the Subclasses
Plaintiff also seeks to certify two (2) Subclasses. The first subclass (the Medically-
Vulnerable Subclass) includes the following categories of individuals:
All current and future persons in the custody of the Philadelphia Department of Prisons who are 55 or older, as well as all current and future persons held of any age who have a medical condition that places them at increased risk of COVID-19 illness, injury, or death, including but not limited to: (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure, or coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.
Motion at ¶2.
The second subclass (the Disability Subclass) includes the following categories of individuals:
All current and future persons in the custody of the Philadelphia Department of Prisons who have an impairment that substantially limits one or more of their major life activities and who are at increased risk of COVID-19 illness, injury, or death due to their disability or any medical treatment necessary to treat their disability, including but not limited to those who have: (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure, or coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders and/or (i) developmental disability.
Motion at ¶3.
8

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 9 of 13
For the same reasons articulated above that Plaintiffs fail to satisfy commonality as to the Class, Plaintiffs also fail to satisfy commonality as to the Subclasses. Further, even if the Court were to certify subclasses for Plaintiff’s condition of confinement claim, the Court should deny certification of the Medically-Vulnerable Subclass to the extent Plaintiffs seek the relief of release as Plaintiffs cannot meet the commonality element of this subclass. Cmplt. at ¶67(d)(i). Further, Plaintiffs fail to establish that they are adequate representative as to either Subclass.
1. Plaintiffs Have Not Established Commonality as to the MedicallyVulnerable Subclass
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 (2011). While multiple questions might bear on the claims asserted by the individuals comprising the Medically-Vulnerable Subclass, the only question is whether the individual, by virtue of their medical issues, is entitled to release given the threat of infection. When an inmate is seeking release through injunctive relief “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 family, and the public at large.” Money v. Pritzker, No. 20-CV-2093, 2020 WL 1820660, at *14 (N.D. Ill. Apr. 10, 2020).
“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.” Id. at *15. For instance, multiple Plaintiffs are awaiting trial for or are serving sentences for a variety of violent crimes including, but not limited to, carjacking/robbery, aggravated assault, strangulation, and thirddegree murder. Releasing individuals accused of and even convicted of similar charges could
9

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 10 of 13
present a threat to the population at large. Id. at *20. Similarly, release of individuals who may have been exposed during incarceration would present a potential risk to the public. Id. at *19. Only an individual analysis of each class member could determine if release is warranted.
Further, because Plaintiffs seek relief under Section 2241, each member of the subclass would need to establish that they had met the exhaustion requirements of Section 2241. This Court has recognized “habeas corpus petitions brought under § 2241 are subject to the Rules Governing § 2254 cases in the United States District Courts pursuant to Rule 1(b) of the habeas rules.” O'Neal v. Levi, 551 F. Supp. 2d 379, 387 (E.D. Pa. 2008) (citations omitted). Therefore, all plaintiffs – regardless of whether a pre-trial or convicted – are subject to the state court exhaustion requirements of 28 U.S.C. § 2254(b)(1)(A). See Coady v. Vaughn, 251 F.3d 480, 488 (3d. Cir. 2001) (“While exhaustion is mandated by Section 2254, it ‘has developed through decisional law . . . as to claims brought under 20 U.S.C. § 2241.’”) (quoting Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986)); Moore v. DeYoung, 515 F.2d 437, 441-42 (3d Cir. 1975) (no distinction between § 2254 and § 2241 “insofar as the exhaustion requirement is concerned”); Ross v. McCafferty, No. CV 19-4663, 2019 WL 7756074, at *1 (E.D. Pa. Dec. 13, 2019), report and recommendation adopted sub nom. Ross v. McCaffery, No. CV 19-4663, 2020 WL 419467 (E.D. Pa. Jan. 24, 2020) (“The exhaustion requirement applies equally to petitions filed pursuant to 28 U.S.C. § 2241.”).
Moreover, any such mass release of prisoners based upon conditions of confinement – absent the employment of appropriate procedure, including, but not limited to, a three-judge panel – would be violative of the Prison Litigation Reform Act (“PLRA”). See generally, 18 U.S.C. § 3626. The PLRA incorporates the provisions of 18 U.S.C. § 3626. Pursuant to Section 3626, Plaintiffs would first have to seek an order for less intrusive relief and provide Defendants a
10

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 11 of 13
reasonable amount of time to comply such order. Even if Defendants failed to comply with this less intrusive order, only a three-judge panel could consider a prisoner release order, and Plaintiffs would have to prove 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); Brown v Plata, 563 US 493, 512 (2011).
2. Plaintiffs Are Not Adequate Medically-Vulnerable Subclass Representatives
For the same reasons, Plaintiffs have not established that they are adequate representatives for the Medically-Vulnerable Subclass to the extent they seek release. In addition to the fact that Plaintiffs Remick and Bethea cannot proceed under Rule 2241, Plaintiffs have further not alleged nor proffered evidence to support that they have exhausted their state court remedies and/or satisfied the requisites of the PLRA.
As such, Plaintiffs cannot establish commonality as to the Medically-Vulnerable Subclass in seeking release. Defendants note that the same arguments apply as to the proposed Disability Subclass to the extent that subclass also seeks release.
C. Plaintiffs Fail to Show that Defendants Have Refused to Act on Grounds Generally Applicable to the Alleged Class
Because they are seeking class certification pursuant to Rule 23(b)(2), Plaintiffs must establish 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). For the reasons asserted in Defendants’ Opposition, Plaintiffs’ have failed to meet this bar. As such, Plaintiffs’ Motion fails. Gordon v. Aetna Life Ins. Co., 467 F.2d 717, 720–21 (D.C. Cir. 1971) (affirming dismissal of portion of complaint seeking to commence a class action).
11

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 12 of 13
II. CONCLUSION For the foregoing reasons, Plaintiffs’ motion for class certification must be denied.

Date: May 4, 2020

Respectfully submitted,
/s/ Marcel Pratt____ MARCEL PRATT Philadelphia City Solicitor CRAIG STRAW First Deputy City Solicitor DIANA CORTES Chair, Litigation Group ANNE TAYLOR Chief Deputy City Solicitor, Civil Rights Unit MEGHAN E. CLAIBORNE Deputy City Solicitor, Civil Rights Unit SHANNON ZABEL Assistant City Solicitor, Civil Rights Unit City of Philadelphia Law Department 1515 Arch Street Philadelphia, PA 19102

12

Case 2:20-cv-01959-BMS Document 24 Filed 05/04/20 Page 13 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS REMICK, et al., Plaintiffs,
v. CITY OF PHILADELPHIA, et al.,
Defendants

: : : CIVIL ACTION : No. 20-1959 : : : : : : :

CERTIFICATE OF SERVICE

I hereby certify that on the date below the City of Philadelphia’s Opposition to Plaintiffs’

Motion to Certify Class Limit was filed via the Court’s electronic filing system and is available

for downloading.

Date: May 4, 2020

Respectfully submitted,
/s/ Meghan E. Claiborne Meghan E. Claiborne Deputy City Solicitor Pa. Attorney ID No. 315918 City of Philadelphia Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102 215-683-5447 (phone) 215-683-5397 (fax) meghan.claiborne@phila.gov

Case 2:20-cv-01959-BMS Document 24-1 Filed 05/04/20 Page 1 of 6
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
DOCKET Docket Number: CP-51-CR-0008900-2018
CRIMINAL DOCKET
Court Case

Commonwealth of Pennsylvania v.
Michael Dantzler CASE INFORMATION

Page 1 of 6

Judge Assigned: Coyle, Anne Marie B.

Date Filed: 12/19/2018

Initiation Date: 12/19/2018

OTN: U 138242-6

LOTN:

Originating Docket No: MC-51-CR-0024305-2018

Initial Issuing Authority: The Honorable Marissa Brumbach Arresting Agency: Philadelphia Pd Complaint/Incident #: 1807003623-0024305 Case Local Number Type(s)
Originating Docket Number

Final Issuing Authority: Arresting Officer: Duffy, Shaun P.
Case Local Number(s) MC-51-CR-0024305-2018

District Control Number

1807003623

Originating Document Number

1807003623-0024305

Case Status: Active

Status Date 02/07/2019 01/02/2019 12/21/2018 12/19/2018

STATUS INFORMATION Processing Status Awaiting Trial Awaiting Pre-Trial Conference Awaiting Formal Arraignment Awaiting Filing of Information

Arrest Date: 09/20/2018

Case Calendar Event Type Formal Arraignment
Pre-Trial Conference Scheduling Conference Motions Hearing Trial Trial Trial Trial Motions Hearing Trial Trial Trial Trial

Schedule Start Date 01/02/2019

Start Time 11:00 am

01/23/2019 9:00 am

02/07/2019 9:00 am

02/19/2019 04/10/2019 04/10/2019 06/10/2019 06/10/2019 06/12/2019 10/21/2019 10/22/2019 03/02/2020 09/14/2020

9:00 am 9:00 am 9:00 am 9:00 am 9:00 am 9:00 am 9:00 am 9:00 am 9:00 am 9:00 am

CALENDAR EVENTS

Room

Judge Name

1104 1005

Trial Commissioner Susan Carmody Judge Robert P. Coleman

1002

Judge Anne Marie B. Coyle

1002 1002 1002 1002 1002 1002 1002 1002 1002 1002

Judge Anne Marie B. Coyle Judge Anne Marie B. Coyle Judge Anne Marie B. Coyle Judge Anne Marie B. Coyle Judge Anne Marie B. Coyle Judge Anne Marie B. Coyle Judge Anne Marie B. Coyle Judge Anne Marie B. Coyle Judge Anne Marie B. Coyle Judge Anne Marie B. Coyle

Schedule Status Scheduled
Scheduled
Scheduled
Scheduled Continued Moved Continued Scheduled Scheduled Continued Continued Continued Scheduled

CPCMS 9082

Printed: 04/24/2020

Recent entries made in the court filing offices may not be immediately reflected on these docket sheets . Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record
Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183.

Case 2:20-cv-01959-BMS Document 24-1 Filed 05/04/20 Page 2 of 6
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
DOCKET Docket Number: CP-51-CR-0008900-2018
CRIMINAL DOCKET
Court Case

Date Of Birth:

01/02/1975

Commonwealth of Pennsylvania v.
Michael Dantzler DEFENDANT INFORMATION City/State/Zip: Philadelphia, PA 19140

Page 2 of 6

Alias Name Dantzler, Michael J. Dantzler, Mike

Participant Type Defendant
Dantzler, Michael Bail Action

Date

Name

CASE PARTICIPANTS

Dantzler, Michael

BAIL INFORMATION

Bail Type

Percentage

Nebbia Status: None

Amount Bail Posting Status

Posting Date

Set Change Bail Type

09/21/2018 04/20/2020

Monetary Unsecured

10.00%

$150,000.00 $150,000.00

Seq. 1

Orig Seq. Grade Statute

2

18 § 6105

CHARGES Statute Description Possession Of Firearm Prohibited

Offense Dt. 02/12/2018

OTN U 138242-6

2

3

18 § 6106

Firearms Not To Be Carried W/O License

02/12/2018 U 138242-6

3

5

35 § 780-113

Int Poss Contr Subst By Per Not Reg

02/12/2018 U 138242-6

4

6

18 § 6108

Carry Firearms Public In Phila

02/12/2018 U 138242-6

5

7

18 § 3928

Unauth Use Motor/Other Vehicles

02/12/2018 U 138242-6

99,999 1

18 § 3925

Receiving Stolen Property

02/12/2018 U 138242-6

99,999 4

18 § 3925

Receiving Stolen Property

02/12/2018 U 138242-6

Disposition Case Event Sequence/Description Sentencing Judge Sentence/Diversion Program Type Sentence Conditions

DISPOSITION SENTENCING/PENALTIES

Disposition Date

Final Disposition

Offense Disposition

Grade Section

Sentence Date

Credit For Time Served

Incarceration/Diversionary Period

Start Date

Lower Court Proceeding (generic) Preliminary Hearing 1 / Possession Of Firearm Prohibited 2 / Firearms Not To Be Carried W/O License 3 / Int Poss Contr Subst By Per Not Reg 4 / Carry Firearms Public In Phila

12/18/2018 Held for Court Held for Court Held for Court Held for Court

Not Final

18 § 6105 18 § 6106 35 § 780-113 18 § 6108

CPCMS 9082

Printed: 04/24/2020

Recent entries made in the court filing offices may not be immediately reflected on these docket sheets . Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record
Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183.

Case 2:20-cv-01959-BMS Document 24-1 Filed 05/04/20 Page 3 of 6
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
DOCKET Docket Number: CP-51-CR-0008900-2018
CRIMINAL DOCKET
Court Case

Disposition Case Event Sequence/Description Sentencing Judge Sentence/Diversion Program Type Sentence Conditions

Commonwealth of Pennsylvania v.
Michael Dantzler DISPOSITION SENTENCING/PENALTIES

Page 3 of 6

Disposition Date

Final Disposition

Offense Disposition

Grade Section

Sentence Date

Credit For Time Served

Incarceration/Diversionary Period

Start Date

5 / Unauth Use Motor/Other Vehicles 99,999 / Receiving Stolen Property

Held for Court Dismissed - LOE

18 § 3928 18 § 3925

Proceed to Court

Defendant Was Not Present

Information Filed

1 / Possession Of Firearm Prohibited

2 / Firearms Not To Be Carried W/O License

3 / Int Poss Contr Subst By Per Not Reg

4 / Carry Firearms Public In Phila

5 / Unauth Use Motor/Other Vehicles

99,999 / Receiving Stolen Property

COMMONWEALTH INFORMATION

Name:

Philadelphia County District Attorney's

Office

Prosecutor

Supreme Court No:

Phone Number(s):

215-686-8000

(Phone)

Address:

3 South Penn Square

Philadelphia, PA 19107

12/21/2018 Proceed to Court

Not Final

Proceed to Court

Proceed to Court

Proceed to Court

Proceed to Court

Disposed at Lower Court

ATTORNEY INFORMATION

Name:

Robert Patrick Link

Private

Supreme Court No:

094865

Rep. Status:

Active

Phone Number(s):

267-858-4774

(Phone)

267-625-6159

(Mobile)

Address:

Linklaw LLC

100 S Broad St Ste 1910

Philadelphia, PA 19110

18 § 6105 18 § 6106 35 § 780-113 18 § 6108 18 § 3928 18 § 3925

Representing: Dantzler, Michael

Sequence Number 1
Held for Court
1 Information Filed

CP Filed Date 12/19/2018
12/21/2018

ENTRIES Document Date

Filed By Court of Common Pleas Philadelphia County
Krasner, Larry

CPCMS 9082

Printed: 04/24/2020

Recent entries made in the court filing offices may not be immediately reflected on these docket sheets . Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record
Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183.

Case 2:20-cv-01959-BMS Document 24-1 Filed 05/04/20 Page 4 of 6
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
DOCKET Docket Number: CP-51-CR-0008900-2018
CRIMINAL DOCKET
Court Case

Sequence Number 3

CP Filed Date 01/02/2019

Commonwealth of Pennsylvania v.
Michael Dantzler ENTRIES
Document Date

Hearing Notice

6

01/23/2019

Order Granting Motion for Continuance

1

02/07/2019

Counsel Attached for Trial

4

02/07/2019

Hearing Notice

5

02/07/2019

Scheduling Conference Held

2

02/11/2019

Hearing Notice

3

02/15/2019

Hearing Notice

4

02/19/2019

Hearing Notice

5 Trial Date to Remain

02/19/2019

1

04/10/2019

Court Request For Continuance Defendant Not Brought Down From State Custody

2

04/10/2019

Omnibus Pre-Trial Motion

3

04/10/2019

Order Denying Motion to Suppress

Filed By Court of Common Pleas Philadelphia County
Coleman, Robert P.
Coyle, Anne Marie B.
Court of Common Pleas Philadelphia County
Coyle, Anne Marie B.
Court of Common Pleas Philadelphia County
Court of Common Pleas Philadelphia County
Court of Common Pleas Philadelphia County
Coyle, Anne Marie B.
Coyle, Anne Marie B.
Link, Robert Patrick
Coyle, Anne Marie B.

Page 4 of 6

CPCMS 9082

Printed: 04/24/2020

Recent entries made in the court filing offices may not be immediately reflected on these docket sheets . Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record
Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183.

Case 2:20-cv-01959-BMS Document 24-1 Filed 05/04/20 Page 5 of 6
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
DOCKET Docket Number: CP-51-CR-0008900-2018
CRIMINAL DOCKET
Court Case

Sequence Number 7

CP Filed Date 04/10/2019

Commonwealth of Pennsylvania v.
Michael Dantzler ENTRIES
Document Date

Hearing Notice

8

04/10/2019

Order Entering an Exhibit

9

04/10/2019

Defense Request For Continuance For Further Investigation

10

04/10/2019

Counsel Attached for Trial

1

06/10/2019

Defense Request For Continuance For Further Investigation

3 Motion in Limine

06/10/2019

4 Motion in Limine

06/10/2019

06/10/2019

1

06/12/2019

Order Granting Motion in Limine

1 Motion for Recusal

08/06/2019

1 Motion for Recusal

10/11/2019

1

10/16/2019

Motion to Dismiss Pursuant to Rule 600

2

10/16/2019

Motion for Modification of Bail

1

10/21/2019

Court Request For Continuance Court is on Trial

Page 5 of 6
Filed By Court of Common Pleas Philadelphia County Coyle, Anne Marie B. Coyle, Anne Marie B. Coyle, Anne Marie B. Coyle, Anne Marie B. Commonwealth of Pennsylvania Link, Robert Patrick Coyle, Anne Marie B. Dantzler, Michael Dantzler, Michael Dantzler, Michael Dantzler, Michael Coyle, Anne Marie B.

CPCMS 9082

Printed: 04/24/2020

Recent entries made in the court filing offices may not be immediately reflected on these docket sheets . Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record
Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183.

Case 2:20-cv-01959-BMS Document 24-1 Filed 05/04/20 Page 6 of 6
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
DOCKET Docket Number: CP-51-CR-0008900-2018
CRIMINAL DOCKET
Court Case

Sequence Number

CP Filed Date

1

10/22/2019

Counsel Attached for Trial

Commonwealth of Pennsylvania v.
Michael Dantzler ENTRIES
Document Date

Filed By Coyle, Anne Marie B.

Page 6 of 6

5

10/22/2019

Court Request For Continuance No Judges Available

Coyle, Anne Marie B.

1

03/02/2020

Defense Request For Continuance Defendant Unavailable/Attorney Accepts Service

Coyle, Anne Marie B.

1

04/13/2020

Motion to Remove Detainer

Link, Robert Patrick

1

04/14/2020

Order Granting Motion to Remove Detainer

Sawyer, Stephanie

1

04/15/2020

Motion for Modification of Bail

Link, Robert Patrick

1

04/20/2020

Bail Type Changed - Dantzler, Michael

Sawyer, Stephanie

Last Payment Date: 06/10/2019 Dantzler, Michael
Defendant Costs/Fees Filing Fee (Philadelphia) Motion Filing Fee (Philadelphia)

CASE FINANCIAL INFORMATION

Assessment

Payments

$15.00 $12.50

($15.00) ($12.50)

Total of Last Payment: -$12.50

Adjustments

Non Monetary Payments

Total

$0.00 $0.00

$0.00 $0.00

$0.00 $0.00

Costs/Fees Totals:

$27.50

($27.50)

$0.00

$0.00

$0.00

Grand Totals:

$27.50

($27.50)

$0.00

$0.00

$0.00

** - Indicates assessment is subrogated

CPCMS 9082

Printed: 04/24/2020

Recent entries made in the court filing offices may not be immediately reflected on these docket sheets . Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police. Moreover an employer who does not comply with the provisions of the Criminal History Record
Information Act may be subject to civil liability as set forth in 18 Pa.C.S. Section 9183.

5/4/2020

Case 2:20-cv-01959-BMS DocumenItnm2a4te--L2ocatForiled 05/04/20 Page 1 of 1

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 Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves

:

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

: :

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

:

:

Defendants-Respondents.

:

No. 2:20-cv-01959-BMS IMMEDIATE RELIEF SOUGHT

PLAINTIFFS-PETITIONERS’ REPLY BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
The evidence before this Court makes clear that Plaintiffs-Petitioners continue to be exposed to grave and unjustified risks of serious illness or death from COVID-19. While Defendants deserve credit for taking some steps to address the COVID-19 health crises in PDP facilities, a number of those actions came after counsel for the Philadelphia Department of Prisons (“PDP”) was on notice that Plaintiffs would initiate this action. In any event, Defendants’ actions are far from sufficient to resolve the ongoing violations of Plaintiffs’ constitutional rights. Defendants’ arguments are based in large part on documents that are not fully reflective of the current conditions in PDP facilities. As Plaintiffs will show by additional and updated evidence, there is a large gap between PDP’s stated policies and PDP’s actual practices. Absent a negotiated

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 2 of 31
resolution or ruling on the record presently before the Court, Plaintiffs request that the Court schedule a hearing to resolve factual disputes and to order appropriate relief.
As multiple federal and state courts have recognized in recent rulings in similar cases seeking to safeguard prison populations facing the unprecedented risks of COVID-19, the health and lives of the plaintiff class and others hang in balance, and further action is required. I. PRELIMINARY STATEMENT
Plaintiffs filed a Motion for Temporary Restraining Order and for a Preliminary Injunction (“Motion”) on April 23, 2020. Defendants filed a Response (ECF 22), and Plaintiffs file this Reply to address the arguments submitted by Defendants.
In the April 24, 2020 Court conference call, Plaintiffs informed the Court that they had served Defendants with discovery requests that were targeted to the issues presented by the Motion, but had agreed to provide Defendants with a narrower request limited to priority items. Defendants agreed to produce the relevant documents and information during the week of April 27, 2020. As of this filing, Plaintiffs have received one production that did not nearly provide the necessary information, notwithstanding a follow-up request for the relevant documents. Ex. D, Email from Plaintiffs re: Discovery, May 1, 2020.1 In a follow up telephone conference between counsel on May 4, 2020, the parties agreed to advise the Court of discovery status in a conference call scheduled for May 7, 2020.
In the Motion, Plaintiffs sought injunctive relief to remedy perilous conditions of confinement in the PDP due to COVID-19. The Motion was supported by twelve declarations
1 Plaintiffs reference their three previous Exhibits by ECF Number and new exhibits beginning with Exhibit D. Plaintiffs have also attached an index of each Exhibit for the Court’s convenience. See Ex. AA.
2

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 3 of 31
appended to Plaintiffs’ Complaint, one from each of the ten Plaintiffs, and two from Plaintiffs’ experts in the fields of public health and correctional health care, Dr. Joseph J. Amon, and Dr. Robert L. Cohen. The Motion was further supported by a Memorandum of Law that addressed the legal claims in the Complaint and Plaintiffs’ entitlement to preliminary relief. Plaintiffs sought relief narrowly tailored to ensure constitutional conditions of confinement, with the claim for releases under either 28 U.S.C. § 2241 or 42 U.S.C. § 1983 to be considered only if Defendants did not comply with court orders regarding conditions of confinement.
In this Reply, Plaintiffs first address the current state of the factual record. Plaintiffs then address the legal claims to demonstrate why Plaintiffs continue to be entitled to relief. II. UPDATED FACTUAL BACKGROUND
In Plaintiffs’ Memorandum in Support of the Motion, Plaintiffs detailed the effects of COVID-19. As of May 4, 2020, 1,152,372 cases had been confirmed in the United States, and over 67,456 Americans had died.2 Philadelphia County has reported 13,316 of the Commonwealth of Pennsylvania’s 50,092 cases of COVID-19, and 424 of its 2,458 deaths, with the number of people infected with COVID-19 growing by 20% every day.3 As all experts have acknowledged, these numbers underestimate the impact of the virus, given the lack of testing. The rate of infection in the PDP far exceeds the infection rate overall in the City of Philadelphia. Over the past two months, 192 prisoners in the PDP have contracted the virus—more than five times the rate of infection in Philadelphia as a whole.4
2 Centers for Disease Control and Prevention (CDC), Cases in the US (last updated May 4, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 3 Pennsylvania Department of Health (PA DOH), COVID-19 Data for Pennsylvania (May 4, 2020), available at https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx. 4 The infection rate in the PDP is discussed below. See infra § II.A.
3

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 4 of 31
The most effective strategy for limiting the spread of the disease is social distancing— deliberately keeping at least six feet of space between persons to avoid spreading the illness— combined with a vigilant hygiene regimen, including washing hands frequently and thoroughly with soap and water, and disinfecting surfaces. Amon Dec., ECF 1-4, ¶¶ 23–25; Cohen Dec., ECF 1-5, ¶ 6. Following the recommendation of public health experts, government officials across the country have taken extraordinary measures to implement social distancing.
The CDC has issued guidance for limiting the spread of COVID-19 in correctional facilities which reflect safety measures for jails and prisons.5 At the heart of the Motion was the claim, supported by declarations, that Defendants had failed to adequately implement these guidelines, and had also had failed to take other measures necessary to protect the plaintiff class, including:
 Failing to provide for and enforce social distancing protections;  Failing to adequately, consistently, and freely provide necessary hygiene products
to incarcerated people in PDP, leaving some without soap for days at a time;  Failing to provide for adequate cleaning, sanitizing and disinfecting of shared
common areas including toilets, sinks, showers, and phones;  Failing to provide and mandate the use of adequate personal protective equipment,
with prison staff inconsistently using masks and often interacting with people, including those in “quarantine,” without wearing masks; and  Failing to provide for adequate isolation or quarantine measures.
5 See Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020) available at https://bit.ly/2UKYGES; see also Amon Dec., ECF 1-4, ¶¶ 30–33, 44–49, 58–59; Cohen Dec., ECF 1-5, ¶¶ 24(a), 40–41, 50 (discussing CDC guidance).
4

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 5 of 31
Defendants' Response takes issue with these factual allegations, claims that all necessary protective measures have been adopted and are being implemented at the PDP, and argues that, under the relevant law, their actions eliminate the necessity for injunctive and declaratory relief. Plaintiffs set forth their legal response below, but, at the outset, highlight four points that demonstrate how Defendants’ submissions do not rebut Plaintiffs’ claims.
First, the rate of infection at PDP facilities and the continued threat of COVID-19 transmission remains a critical issue, with constitutional implications. Second, even taking the protocols that have been adopted by Defendants at face value, there remain substantial gaps between the policies and what is needed in terms of protective measures. Third, and of great legal significance, most of the policies directed towards incarcerated people, which Defendants rely upon to claim adherence to CDC recommendations, were promulgated or implemented after Defendants received notice of Plaintiff’s intent to file this lawsuit. And fourth, Defendants’ contention that they have in fact successfully employed necessary protective measures on a system-wide basis is far from persuasive, as the evidence suggests that implementation has been, at best, uneven and inconsistent.
A. PDP’s Rate of Infection and the Continued Threat of COVID in PDP Facilities Defendants assert that their actions have resulted in reduced COVID-19 transmission rates within their facilities. Defs.’ Resp. at 5. The data belies this assertion. Despite testing approximately only 7 percent of the total population, a cumulative total of 192 people have tested positive for COVID-19; in other words, 75 percent of those tested were positive for the virus.6
6 Max Marin, Over 75% of people tested in Philly jails are positive for COVID-19, BillyPenn (May 4, 2020), https://billypenn.com/2020/05/04/over-75-of-people-tested-in-philly-jails-are-positivefor-covid-19/.
5

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 6 of 31
Thus, PDP’s infection rate is 5.47 times greater than the infection rate in Philadelphia, and 13.95 times greater than Pennsylvania’s infection rate as a whole. See Ex. E.
Even when compared with other Pennsylvania correctional facilities, PDP’s infection rate is troubling. The rate of infection within PDP facilities is 3.12 times greater than the rate in SCI Phoenix, the state correctional facility with the largest reported number of cases. When compared with the infection rate at all SCI facilities,7 the rate of infection in PDP facilities is 31.18 times greater. See id.8
Even if Defendants tested all symptomatic people within their facilities, a slight dip in new infections over two days does not mean the infection is under control. While PDP reported only one positive test on May 1, 2020 and zero positive tests the following day, this is, as shown in the following chart, consistent with an established pattern over the past month, with the number of positive test results rising and falling on a daily basis:
7 The Pennsylvania Department of Corrections, unlike PDP, publishes a daily log with the cumulative number of COVID19 test results for both inmates and employees. See https://www.cor.pa.gov/Pages/COVID-19.aspx (last accessed May 3, 2020). 8 As noted below, the reported infection rate in PDP likely dramatically undercounts the number of actual infections. See infra § II.B.
6

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 7 of 31
The absence of an established downward trend is confirmed by the City’s report on May 3, of four new positive results.9 Defendants’ reliance on a narrow snapshot of positive test results fails to accurately reflect what is actually occurring in PDP’s facilities: the continued spread of COVID-19 among the incarcerated population.
B. PDP’s Policies are Not Adequate to Prevent the Spread of COVID-19 Defendants contend that the protocols they have put in place demonstrate their effective satisfaction of their constitutional obligations. Putting aside serious questions about the implementation of these policies, see infra § II.D, there are significant deficiencies in PDP’s practices. See Cohen Supp. Dec., Ex. F. Those deficiencies fall into three categories.
9 City Provides Update on COVID-19 for Sunday, May 3, 2020, City of Philadelphia (May 3, 2020), https://www.phila.gov/2020-05-03-city-provides-update-on-covid-19-for-sunday-may-32020/ (last accessed May 5, 2020).
7

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 8 of 31
First, Defendants’ policies do not provide for sufficient COVID-19 testing. Current practice in the PDP calls for very limited testing, and only where an incarcerated person presents with a small set of symptoms. Herdman Dec., ECF 22-1, at 4-5, ¶¶ 34, 41. As Dr. Cohen states, these practices are “not sufficient to protect the staff and residents of PDP from the spread of COVID-19.” Cohen Supp. Dec., Ex. F, ¶ 2. In short, because asymptomatic people transmit COVID-19 to others, it is difficult, if not impossible, to develop an effective plan to limit the spread of COVID-19 without mass testing of incarcerated people and PDP staff. Id. ¶ 8. PDP’s protocols are resulting in significant gaps in protective measures with no testing of all new admissions and with no testing before removing people who had previously tested positive for COVID-19 from isolation. Id. ¶¶ 3-4.
Testing conducted to date in PDP facilities has almost certainly resulted in a severe undercount of the actual rate of infection. Id. ¶ 7. Experience in testing of entire jail populations in other jurisdictions indicates that mass testing can be expected to show infection rates far greater than what is shown without such testing. For example, testing of the entire population of incarcerated people at the Montgomery County Correctional Facility showed an infection rate 30 times greater than that identified before testing began. Id. Indeed, statistics just publicized on May 4 show an extremely high positive rate in PDP facilities, with 75% of those tested found (or presumed) positive.10
For this reason, an adequate prevention protocol requires testing of all people newly admitted to PDP’s facilities, and, ultimately, the entire population. Id. ¶¶ 3, 5. While such measures are time consuming, they can and should be done by prioritizing vulnerable populations,
10 Max Marin, Over 75% of people tested in Philly jails are positive for COVID-19, BillyPenn (May 4, 2020), https://billypenn.com/2020/05/04/over-75-of-people-tested-in-philly-jails-arepositive-for-covid-19/.
8

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 9 of 31
including all persons over the age of 50. Id. ¶¶ 5-6.11 Testing data—including data concerning correctional and medical staff—should be publicized so that the effectiveness of PDP’s measures can be assessed. Id. ¶ 9. And, critically, PDP must address a significant gap in its handling of those who have tested positive for COVID-19. Current practices merely require an assessment of symptoms before removing someone who has tested positive from isolation. Id. ¶ 4. This practice results in a substantial risk that people who are still infected and contagious are returned to areas of PDP’s facilities where they can infect other people. To counter this risk, PDP should be required to adopt a two negative COVID-19 test protocol before removal from isolation. Id.
Second, the parties are in full agreement that social distancing is the most important component of a prevention plan. See ECF 18-1 at ¶ 13; ECF 22 at 2. Yet Defendants do not mandate sufficient social distancing. In particular, Defendants have allowed numerous incarcerated people housed in PDP’s Detention Center facility to continue residing in dormitory settings where they sleep in close proximity to others. While Defendants have instituted “headto-toe” sleeping arrangements in those facilities, these practices are not sufficiently protective. Cohen Supp. Dec., Ex. F, ¶ 10. As Dr. Cohen states, there is “no scientific study which has shown that these arrangements prevent respiratory spread of disease.” Id. PDP also engages in double celling of incarcerated people.12 It is not possible to engage in required social distancing in such
11 Data from other jurisdictions, including New York City, demonstrate that the need for hospitalization increases dramatically with age. Cohen Supp. Dec., Ex. F ¶ 6. 12 See Williams Dec., ECF 22-6, at 2, ¶ 8 (reporting that most cells hold two people to identify any physical or mental health concerns); compare Vetter Dec., ECF No. 22-4, at 2, ¶ 11 (noting that double cells may be used to prevent self-harm and help address medical emergencies) with Doyle Dec., Ex. G, ¶ 3 (most men on B-unit at CFCF are double-celled), Skinner Dec., ECF 1-6, at 25, ¶ 6 (most people on block at CFCF are double-celled). It is also true at the women’s facility, RCF. Compare McCants Dec. ECF 22-7, ¶ 10 (single celling as much as possible) with Diaz Dec., ECF 1-6, at 6, ¶ 6, Walker Dec., ECF No. 1-6, at 10, ¶ 6 (reporting many people on the unit are double-celled).
9

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 10 of 31
arrangements. Id. ¶ 11. Cells in PDP facilities are simply too cramped to allow for social distancing when people are double-celled:13

Photo of cell at CFCF

Photo of cell at RCF

The failure to implement appropriate social distancing results in increased risk of infection and

undermines all other efforts to prevent the spread of infection. Id. ¶ 11.

Third, PDP’s stated efforts to streamline the availability of medical services to focus on

the prevention of COVID-19 transmission are likely to have the opposite effect. PDP’s protocols

note that, for medical complaints, “only urgent services should be conducted,” with the degree of

urgency to be determined at the discretion of a medical provider. COVID-19 Need to Know Intake

Procedure, Apr. 14, 2020, Ex. H. This stark limitation on medical services will result in medical

providers not responding to conditions and illnesses that, at first blush, might appear benign, such

as minor cold symptoms or skin infections. Cohen Supp. Dec., Ex. F, at ¶ 12. But, based on

emerging developments and understanding of COVID-19 symptoms, all medical complaints—

13 The photographs were taken as part of the discovery process pursuant to F.R.C.P. 34(a)(2) in Baur v. Laughinghouse, No. 16-cv-2281 (E.D. Pa.) (CFCF photo taken on September 13, 2017), and I.Z. v. Philadelphia, No. 17-cv-1517 (RCF photo taken on August 14, 2018).
10

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 11 of 31
fever, fatigue, sore throat, rash, loss of taste or smell, cough, shortness of breath—are potential symptoms of COVID-19 and must be treated as such. Id.14
C. PDP’s Current Policies and Practices are in Response to this Litigation PDP’s current policies and practices, in large part, have been adopted in response to this litigation. On April 14, 2020, Plaintiffs’ counsel sent Defendants’ counsel an email informing them that they had received and were investigating complaints from people incarcerated in PDP facilities about the unsafe conditions and health risks arising from the COVID-19 pandemic. Email from Plaintiffs’ Counsel, Apr. 14, 2020, Ex. I. On April 16, 2020, Plaintiffs’ counsel informed Defendants’ counsel of an intent to sue, and Plaintiffs’ Complaint was filed on April 20, 2020. The evidence submitted with Defendants’ Response to Plaintiffs’ Motion shows that many of PDP’s efforts to address the spread of COVID-19—increasing social distancing, enforcing and monitoring of previously adopted policies, and documenting cleaning and hygiene practices— occurred or were implemented after this date.15 First, Dr. Kristen Feemster of the Philadelphia Department of Public Health toured PDP facilities and recommended several policy revisions on April 24, 2020—four days after Plaintiffs filed their complaint. Dr. Feemster Email, Apr. 24, 2020, ECF 22-38, at 4. These recommendations included the “increase[d] presence of hand hygiene supplies” and “faster case identification through adoption of the point of care testing platform.” Id. Notably, Dr. Feemster also recommended PDP should limit “one inmate per bunk bed to increase social distancing.” Id.
14 Further, and self-evidently, PDP’s medical providers’ stated plans not to provide medical care in all situations except for those subjectively deemed urgent, will have the impact of limiting the adequacy of care for all incarcerated people and result in negative health (and mental health) outcomes for the incarcerated population. Cohen Supp. Dec. ¶ 12. 15 A chronological timeline of PDP’s practices and policies based on the limited document discovery produced by Defendants is attached hereto as Exhibit J.
11

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 12 of 31
Despite Dr. Feemster’s recommendation, as described above, supra § II.B, PDP has maintained its practice of, among other things, double-celling, making it impossible for Plaintiffs to maintain a distance of six feet from all other persons at all times.16 Moreover, it appears that Dr. Feemster’s conclusory comments regarding PDP policies were not informed by any discussions with any of those incarcerated at PDP, and it is not even clear if she had the ability to determine whether protocols and policies were being implemented throughout the PDP, as she appeared to tour only isolation and quarantine units.
Second, PDP began enforcing its own COVID-19 policies only after Plaintiffs’ Complaint was filed. For example, on April 28, 2020, a Detention Center correctional officer received a written warning for failing to hand out cleaning supplies. ECF 22-20. Based on the entirety of Defendants’ production, this was the first time PDP documented and enforced any of its COVID19 related policies.
Finally, Plaintiffs have not received documentation that PDP’s current practice of logging and documenting its compliance with its COVID-19 related policies was in place prior to receiving notice of impending litigation. To date, Defendants have produced one log from one unit—out of 64 total PDP units—that documented cleaning of any kind prior to April 14, 2020. See ECF 2217.17 Other produced logs recorded other activity, such as laundry service, but failed to document cleaning cells, telephones, tables, or any other surfaces frequently touched by Plaintiffs. See, e.g., ECF 22-25 (logs from April 9 and April 14 documenting laundry service).
16 Further, while Plaintiffs maintain that “head-to-toe” sleeping arrangements do not constitute appropriate social distancing, Cohen Supp. Dec., Ex. F ¶ 10, it is notable that this practice was not adopted before Plaintiffs initiated this action. Maj. McCants Announcement, Apr. 23, 2020, ECF 22-27. 17 Prior to that date, of course, Plaintiffs’ unrebutted evidence shows a near uniform lack of necessary cleaning. ECF 18-1 at 8-9.
12

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 13 of 31
D. PDP has Failed to Ensure System-Wide Implementation of its Stated Policies Defendants have submitted logs and records purporting to show a concerted effort to implement protocols to protect the incarcerated population. Those materials, however, provide only a superficial view of current conditions. Defendants have provided information and logs from just ten of PDP’s 64 housing units, less than 16 percent. Further, and more concerning, Defendants’ evidence, in tandem with evidence produced by Plaintiffs, shows that Defendants’ implementation is, at best, uneven—a situation that is deeply problematic, as it undermines the ability of a COVID-19 prevention program to succeed. Cohen Supp. Dec., Ex. F ¶ 13. Plaintiffs have conducted a comprehensive review of Defendants’ evidence, including the declarations of City employees and PDP administrators and the documentary support cited in those declarations, and have contrasted the assertions of Defendants’ witnesses with other evidence. Charts illustrating inconsistencies between the declarations of PDP’s deputy wardens and current conditions in PDP facilities are provided at Ex. K, and a chart illustrating inconsistences between the declarations of PDP’s medical supervisory staff and current conditions is provided at Ex. L. Below, Plaintiffs highlight a selection of the most significant and problematic disparities between stated practices and the reality in PDP facilities: The availability of soap. PDP reports that free bar soap is available to incarcerated persons upon request.18 However, multiple incarcerated people still do not have free access to soap.19 On April 30, 2020, an incarcerated person with no money in his prison account reported:
I asked CO’s for soap and they told me that only people who have no money on their books can get free soap. They told me I had to ask a sergeant or lieutenant for soap and that the sergeant or lieutenant would then check to see whether I had money on my 18 See Vetter Dec., ECF 22-4, at 5, ¶ 40; Lacombe Dec., ECF 22-5, at 5, ¶ 35; Williams Dec., ECF 22-6, at 5, ¶ 44; McCants Dec., ECF 22-7, at 5, ¶¶ 34-35. 19 See Doyle Dec., Ex. G, ¶ 5; Remick Dec., Ex. P, ¶ 3; Abdullah Dec., Ex. R, ¶ 4.
13

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 14 of 31
books. I asked a sergeant or lieutenant for soap and he told me he would check my books, but I never heard back from him. I still have no soap. Doyle Dec., Ex. G, ¶ 5. This person had been without soap for two days. Id. This observation is consistent with the observation of Dr. Feemster’s discussed above, supra § II.C, that PDP required the “increase[d] presence of hand hygiene supplies.”20 The cleaning of individual cells and common areas. PDP states that individuals are able to clean and disinfect their cells daily or routinely21 and that common areas are cleaned multiple times per day, with phones and showers cleaned between each usage.22 Yet, there are multiple reports of persons not being able to clean their cells on a regular basis, having requested and been denied cleaning supplies,23 and only daily cleanings of common areas.24 Indeed, the logs which PDP claims show thorough cleaning practices, also reflect violations of PDP policies. An April 21, 2020, cleaning log from the Prison Health Services Wing in the Detention Center that supposedly showed the cleaning of cells every shift actually showed that only “desk, keys, computer, [and] door knobs” (all areas used by staff) were cleaned and that no showers, phones, or cells (areas used by incarcerated people) were cleaned.25 Another log purporting to document the cleaning of “showers, phones, toilets, and sinks” in the Detention Center dormitories showed only the cleaning of bars, rails, floors, the correctional officers’ station, and the correctional
20 See Feemster email, Apr. 24, 2020, ECF 22-38, at 3-4. 21 See Vetter Dec., ECF 22-4, at 3, ¶ 20; Lacombe Dec., ECF 22-5, at 3, ¶ 16; Williams Dec., ECF 22-6, at 3, ¶ 24. 22 See Vetter Dec., ECF 22-4, at 3, ¶ 22; Williams Dec., ECF 22-6, at 3, ¶ 22; McCants Dec., ECF 22-7, at 3, ¶ 16; Lacombe Dec., ECF 22-5, at 3, ¶ 17. 23 See, e.g., Weiss Dec., Ex. M, ¶ 6; Skinner Dec., Ex. N, ¶ 5; Dantzler Dec., ECF 1-6, at 16, ¶ 6; Bethea Dec., Ex. O, ¶ 5. 24 See, e.g., Doyle Dec., Ex. D, ¶ 11-12; Bethea Dec., ECF 1-6, at 33, ¶¶ 14-15. 25 See Lacombe Dec., ECF 22-5, at 3, ¶ 18; PHSW Log, Apr. 21, 2020, ECF 22-18, at 1.
14

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 15 of 31
officers’ bathroom.26 According to that log, the phones were cleaned on only one out of the five days documented.27
Using population reduction to increase physical distancing. PDP claims that it has taken advantage of a decrease in population to increase physical distancing between incarcerated people.28 In the first instance, while Defendants note that PDP population is at historically low levels, the Philadelphia Police Department has announced practices which are likely to reverse this downward trend.29 Further, defendants have not provided the Court with information about housing unit capacity and detailed population of all housing units, limiting the ability to evaluate the implementation of social distancing. In any event, Plaintiffs’ declarations establish that social distancing has not been fully implemented. They report sharing of cells with up to three other people, double-celling even when there are empty cells available for single-celling, consolidation of incarcerated people on a bottom tier to facilitate the closing of a top tier, transfer from a more sparsely populated dorm to a more densely populated dorm, and being housed in a unit that is at full capacity.30
Implementation of out-of-cell time. PDP states that it is attempting to increase social distancing by imposing “shelter-in-place” conditions that greatly limit everyone’s total out-of-cell
26 See Lacombe Dec., ECF 22-5, at 3, ¶ 17; Cleaning Log, Apr. 12-16, ECF 22-17, at 1. 27 Id. 28 See Vetter Dec., ECF 22-4, at 2, ¶¶ 9-11; Lacombe Dec., ECF 22-5, at 3, ¶ 21. 29 See Ellie Rushing & Robert Moran, Philly police resume pre-coronavirus arrest procedures for some non-violent crimes, Philadelphia Inquirer (May 1, 2020), available at https://www.inquirer.com/news/philadelphia/coronavirus-philadelphia-police-arrests-theftburglary-covid-19-20200501.html (stating that Philadelphia police will “immediately end” practice of scaled-back arrests put in place in response to the COVID-19 pandemic). 30 See Weiss Dec., Ex. J, ¶ 5; Diaz Dec., ECF 1-6, at 6, ¶ 6; Walker Dec., ECF 1-6, at 10, ¶ 6; Remick Dec., Ex. P, ¶ 4; Abdullah Dec., ECF 1-6, at 29, ¶ 7.
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time and by allowing only a few individuals out of their cells at any given time.31 Even with these lockdown conditions, under which many people receive significantly less than one hour of out-ofcell time per day,32 incarcerated people are standing within a few feet of each other in order to use phones to contact family and lawyers.33 Further, lockdown conditions have resulted in some units receiving no daily out-of-cell time.34
Treatment of those with COVID-19 symptoms and/or positive tests. PDP asserts that incarcerated people with COVID-19 symptoms are to be placed in quarantine or isolation and are tested,35 and that individuals who have tested positive are not to return to general population until the symptoms abate.36 However, those living within the PDP attest to a different picture, such as developing COVID-19 symptoms and not being isolated or tested for nine days,37 or developing symptoms and not being tested at all.38 One person who tested positive said she was returned to
31 See Vetter Dec., ECF 22-4, at 3, ¶ 20; Williams Dec., ECF 22-6, at 3, ¶ 21; Lacombe Dec., ECF 22-5, at 2, ¶ 13. 32 See, e.g., Diaz Dec., ECF 1-6, at 6, ¶ 8; Walker Dec., ECF 1-6, at 10, ¶ 9. 33 See, e.g., Matthews Dec., Ex. Q, ¶ 15 (even when only every other phone is used, people are still only two feet apart). 34 See Abdullah Dec, Ex. R, ¶ 3; Bethea Dec., Ex. O, ¶ 6; see also DC Log, ECF 22-15 (a log from A-block in DC showing no one was given out-of-cell time on 4/19, 4/20, and 4/21). 35 See Herdman Dec., ECF 22-01, at 6, ¶¶ 8, 34, 41. 36 See Herdman Dec., ECF 22-01, at 6, ¶ 44. 37 See Benn Dec., Ex. S, ¶¶ 4-7 (reporting symptoms starting March 25, 2020, putting in 5-6 sick call slips, but not being tested until April 3, 2020, and learning a few days later that she was positive). 38 See Abdullah Dec., ECF 1-6, at 29, ¶ 4 ; Remick Dec., Ex. P, ¶¶ 5-6; Diaz Dec., ECF 1-6, at 6, ¶ 15; see also Walker Dec., ECF 1-6, at 10, ¶ 16 (“I know that two women on my unit had fevers but the staff did not take them off the unit. Instead, they were just told to stay in their cells.”).
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general population without being quarantined for a full 14 days, still feeling ill, and without a new test to see if she was negative.39 III. ARGUMENT
A. Plaintiffs and Members of the Proposed Class Are Entitled to Equitable Relief to Prevent Infection, Illness or Death From COVID-19
Plaintiffs have previously set forth the standards for the issuance of a temporary restraining order or preliminary injunction, ECF 18-1 at 11, and Defendants do not dispute the standards discussed as established by the Supreme Court and Third Circuit. Courts have broad power to fashion equitable remedies to address constitutional violations in prisons. Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); Brown v. Plata, 563 U.S. 493, 511 (2011). The parties agree that the Eighth Amendment protects those serving criminal sentences from cruel and unusual punishment and requires jails and prison officials to protect people in their custody from known risks of serious harm. Farmer v. Brennan, 511 U.S. 285, 834 (1994).40
With respect to the governing standards under the Fourteenth Amendment for pretrial detainees, Plaintiffs take this opportunity to make clear that the Fourteenth Amendment affords these detainees even greater protection from dangerous conditions of confinement than the Eighth Amendment affords to sentenced prisoners. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 247374 (2015) (for pretrial detainees challenging their conditions of confinement, requiring “only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective” rather than “proof of intent (or motive) to punish”); see also Hubbard v.
39 See Benn Dec., Ex. S, ¶¶ 4-7, 9; see also Matthews Dec., Ex. Q, ¶ 12 (reporting that after he tested positive, he was removed from isolation without an additional test and while still coughing). 40 There is also no disagreement between the parties with respect to the standards under the ADA and for that reason Plaintiffs rest on their previous arguments. The parties disagree whether application of those standards mandate relief in this case.
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Taylor, 399 F.3d 150, 166-67 (3d Cir. 2005) (“Hubbard I”) (reversing and remanding because the district court wrongly analyzed pretrial detainees’ conditions-of-confinement claim under the Eighth Amendment deliberate indifference standard). In contrast to convicted prisoners, who only have a right not be subjected to cruel and unusual punishment, pretrial detainees are protected by the Fourteenth Amendment from being punished at all, including by being held in conditions that amount to punishment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). When “a condition of confinement is [not] reasonably related to a legitimate governmental objective, [courts] 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) (“Hubbard II”)).
Most significantly, the Supreme Court has ruled that there are substantive differences in the way the two Amendments operate in the jail and prison contexts. In Kingsley, the Supreme Court ruled that claims for excessive force made by pretrial inmates are to be judged by a purely objective standard and a plaintiff need not prove malicious intent or a similar subjective state of mind of the defendant official. Kingsley, 135 S. Ct. at 2473-74 (2015). The same is true for other claims of unconstitutional conditions of confinement, including those alleged here, which center on Defendants’ duty to protect the plaintiff class from the risk of a communicable disease. See Aruanno v. Corzine, 687 F. App’x 226, 230 (3d Cir. 2017) (citing Kingsley for the governing standard for a Fourteenth Amendment conditions-of-confinement claim); Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019) (“Kingsley’s objective inquiry applies to all Fourteenth Amendment conditions-of-confinement claims brought by pretrial detainees.”); Colbruno v. Kessler, 928 F.3d 1156, 1163 (10th Cir. 2019) (explaining that Kingsley’s objective standard applies to all Fourteenth Amendment conditions-of-confinement claims); Gordon v. County of
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Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (holding that Kingsley’s objective standard
applies to pretrial detainees’ claims for violations of the right to adequate medical care); Darnell
v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (holding that defendants can be liable under the Due
Process Clause even when they did not have subjective awareness that their acts or omissions
subjected pretrial detainees to a substantial risk of harm); Castro v. County of Los Angeles, 833
F.3d 1060, 1070 (9th Cir. 2016) (holding that Kingsley’s objective standard applies to pretrial
detainees’ failure-to-protect claims).
Just this past week, in Mays v. Dart, Case No. 620 C 2134, 2020 U.S. Dist. LEXIS 73230,
2020 WL 1987007 (N.D. Ill. April 27, 2020), where the plaintiffs have challenged conditions of
confinement in the Cook County Jail with claims mirroring those raised by Plaintiffs in this case,
the court ruled in an 87-page opinion that Kingsley mandated a test of “objective reasonableness”
in assessing the constitutionality of conditions.41 As the court stated:
[B]ecause 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. . . . 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. . . . 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.”
41 Defendants fail to cite to Kingsley, and while it cites to the earlier ruling in Mays v. Dart, 2020 WL 1812381, at *8 (N.D. Ill, April 9, 2020) (issuance of TRO on claim of unconstitutional conditions of confinement in Cook County jail), it does not cite or discuss this latest and far more comprehensive opinion.
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Mays, 2020 WL 1987007 at *25 (quoting McCann v. Ogle Cty., 909 F. 3d 881, 886 (7th Cir. 2018)). The court ruled that the failure of jail officials to provide sufficient protective measures of social distancing and testing, and their failure to eliminate unnecessary double celling and dormitory housing violated the Fourteenth Amendment. Id. at *27. The court also ordered a continuation of other policies put into effect as a result of the earlier TRO. Id. at *29. Other courts have applied similar standards in granting preliminary relief to persons in jails on COVID19 issues. See Banks v. Booth, No. CV 20-849 (CKK), 2020 WL 1914896, at *11 (D.D.C. April 19, 2020) (granting TRO with respect to conditions in D.C. jails); see also Gayle v. Meade, No. 20-21553-Civ, 2020 U.S. Dist. LEXIS 76040, at *18 (S.D. Fla. Apr. 30, 2020) (finding that conditions in three Florida immigration detention facilities violated detainees’ due process rights and granting injunctive relief).42
Applying the governing standards under the Fourteenth Amendment, Plaintiffs are entitled to preliminary relief.43 On the central issue of whether they are likely to prevail on the merits of these claims, the question is whether the policies and the practices of Defendants with respect to necessary protective measures at the PDP are “objectively reasonable.” The record on this Motion includes evidence that: (1) PDP’s official policies are insufficient to protect the rights of the plaintiff class as they fail to provide sufficient safeguards from the deadly consequences of
42 Defendants cite to the few cases denying preliminary relief, see Defs.’ Resp. at 10, 17-19, but all of them involved sentenced inmates and therefore were decided on the far more demanding standard of “cruel and unusual” punishment. See Plata v. Newsom, No. 01-CV-01351-JST, 2020 WL 1908776, at *6 (N.D. Cal. Apr. 17, 2020); Nellson v. Barnhart, No. 20-CV-00756-PAB, 2020 WL 1890670, at *6 (D. Colo. Apr. 16, 2020); Money v. Pritzker, No. 20-CV-2093, 2020 WL 1820660, at *18 (N.D. Ill. Apr. 10, 2020); Baxley v. Jividen, No. CV 3:18-1436, 2020 WL 1802935, at *6 (S.D.W. Va. Apr. 8, 2020). 43 As Plaintiffs argued in the Motion, the Eighth Amendment also protects the rights of those in the plaintiff class who are serving county prison sentences, but since relief under the Fourteenth Amendment for the large majority of pre-trial inmates at PDP would provide protections for the sentenced inmates as well, Plaintiffs rest on our earlier Eighth Amendment arguments.
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COVID-19; (2) to the extent that policies are currently sufficient, most of them were adopted—or at least implemented—in response to this lawsuit, and therefore this Court has the power to order Defendants to continue to enforce and implement these policies; and (3) in practice, several of these policies have not been properly implemented or enforced, thereby denying the plaintiff class the necessary protective measures they were intended to provide.
1. The Current Policies and Protocols Do Not Provide the Protections Necessary Under the Fourteenth Amendment
While Plaintiffs credit Defendants with responding to some of the claims set forth in the Complaint and Motion through its changes in protocols and policies, several are still deficient.44 Specifically, PDP’s policies fail to provide for adequate social distancing or to provide adequate testing of class members.
With respect to social distancing, Defendants still house people in dorms in numbers that prevent them from maintaining six feet of distance and Defendants still practice routine doublecelling. In Mays, the court was faced with a similar challenge and found that policies regarding social distancing did not adequately address housing configurations. Similar to what Defendants assert here, the prison officials in Mays argued that their policies were in line with CDC guidelines and thus passed constitutional muster. However, the court found that while the CDC guidelines are an important piece of evidence to consider in assessing defendants’ conduct, they are not
44 It is important to note that there are gaps in the record that are due to Defendants’ failure to provide documents and other information critical to the resolution of the Motion, as agreed to at the conference with the Court on April 24, 2020. At that time, Plaintiffs had served comprehensive discovery requests (Interrogatories, Requests for Admissions, and Requests for Production of Documents), but had agreed to narrow the request to “priority” information. Plaintiffs immediately provided Defendants with these requests, Ex. W, and Defendants agreed to provide the documents during the week of April 27, 2020. Yet, Defendants provided only one set of documents and notwithstanding a follow-up demand, Ex. D, and have not provided any additional documents or responses, though they did rely on documentation not provided earlier in its Response to the Motion for TRO. Defendants have stated that they will continue with production starting May 5.
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dispositive. 2020 U.S. Dist. LEXIS 73230 at *86. The court looked specifically at social distancing as a critical issue, finding that the current policies and practices relating to housing made social distancing “impossible or unduly difficult.” Id. at *87. Accordingly, the court ruled that “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.”45 Id. at *89 (emphasis added).
Finally, and of significant consequence, one change in policy, has the risk of increased harm to the plaintiff class. As Exhibit H shows, PDP has recently limited medical care for all illnesses and injuries to so-called “urgent” circumstances. That standard for access to medical care, whether COVID-19 related or for any other medical condition, fails to provide the care mandated by the Eighth and Fourteenth Amendments.46 The settled standard requires medical care for any illness or injury that has been diagnosed by a doctor or that a lay person would easily recognize as warranting medical attention. See Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). PDP policies have long adhered to this standard (though of course there has been litigation in cases where incarcerated people have claimed lack of care), and a new policy of proving only “urgent care” is a deviation from required standards of care necessitating injunctive relief.
In addition to social distancing, and as described above, supra § II.B, PDP’s protocols for COVID-19 testing have resulted in a situation where incarcerated people and staff remain at
45 Defendants argue that Plaintiffs “cannot have it both ways” in seeking both social distancing and out-of-cell time to enable access to necessary service. Defs.’ Resp. at 14 n.9. Defendants justify the lockdown solitary confinement conditions as the only way to implement social distancing, but there is no evidence that staggering of out of cell times is not possible; indeed, the PDP protocols permit just such movements. 46 This policy also is likely to have the opposite effect of its intentions, resulting in the failure to address potential COVID-19 symptoms. Cohen Supp. Dec., Ex. F, at ¶ 12.
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serious risk of infection. In light of current conditions in PDP, mass testing of the incarcerated
population is a necessary component of an infection prevention program. For exactly this reason,
prisons and jails across the country are engaging in large scale testing. The following is a non-
exhaustive list of locations where such mass testing has occurred or will take place:
 The Tennessee Department of Corrections announced that it would begin testing of all
incarcerated people and staff after 1,299 of 2,444 inmates tested positive at one prison in the state.47
 New Jersey Governor Phil Murphy has announced that the New Jersey Department of Corrections will being universal testing for all staff and incarcerated people.48
 The Ohio Department of Corrections tested, or plans to test, all staff and incarcerated people at three of its facilities.49 After testing all inmates at one facility, 73% of the population tested positive.50
 A federal facility in California tested all 1,055 incarcerated people in the facility and found 570 to be positive.51
47 John Matisse, 1,299 inmates test positive for virus at Tennessee prison, AP News (May 1, 2020), https://apnews.com/5d0dde8eaa0385c9fd97e1545a5857da (last visited May 5, 2020). 48 New Jersey Department of Corrections to Begin Universal COVID-19 Testing and Launches Non-Congegreate Housing Program for First Responders, Official Site of the State of New Jersey (May 1, 2020), https://www.nj.gov/governor/news/news/562020/approved/20200501a.shtml. 49 COVID-19 Inmate Testing, Ohio Department of Rehabilitation & Correction (Apr. 19, 2020); https://drc.ohio.gov/Portals/0/DRC%20COVID-19%20Information%2004-192020%20%201305.pdf. 50 Bill Chappell, 73% Of Inmates At An Ohio Prison Test Positive For Coronavirus, NPR (Apr. 20, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/04/20/838943211/73-ofinmates-at-an-ohio-prison-test-positive-for-coronavirus. 51 Miriam Hernandez, COVID-19 infects more than half of inmates at Terminal Island prison in San Pedro, ABC (Apr. 29, 2020), https://abc7.com/terminal-island-prison-coronavirus-covid19bureau-of-prisons/6138903/.
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 The Vermont Department of Corrections has completed at least two rounds of mass testing at one of its facilities. It embarked on its first round of mass testing after a single incarcerated person tested positive.52
 Individual facilities in Arkansas, North Carolina, and Michigan have also conducted mass testing.53
These examples, as well as the example of Montgomery County Correctional Facility, see supra § II.B (citing Cohen Supp. Dec., Ex. F, at ¶ 7), demonstrate that large scale testing is both feasible and highly informative. In most cases, testing shows larger infection rates than what prison officials previously anticipated and, therefore, provided key information to effectively isolate and quarantine individuals and prevent further spread. Without such testing, PDP will not be able to provide (as it claims it already has) safe conditions of confinement for the Plaintiff class.
2. The Policies Currently in Effect Were Adopted in Response to This Lawsuit and Therefore This Court has the Authority to Order Continued Application and Enforcement of the Policies
It has long been settled that a federal court has the power to grant injunctive relief even after the defendant ceases its unlawful conduct, where the defendant may otherwise reverse course. United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). “[I]t is well established that the voluntary cessation of a challenged practice will not automatically render a case moot.” United States v. Virgin Islands, 363 F.3d 276, 279 (3d Cir. 2004). The defendant bears the “heavy burden” of persuading the court that it is “absolutely clear that the [ ] wrongful behavior could
52 Department of Corrections COVID-19 Retesting in St. Albans Update, State of Vermont Department of Corrections (May 4, 2020); https://doc.vermont.gov/sites/correct/files/documents/ NWSCF%20Retesting%20Press%20Release%20FOR%20APPROVAL%205.4.20.pdf. 53 Radley Balko, Stopping covid-19 behind bars was an achievable moral imperative. We failed, Washington Post (May 1, 2020); https://www.washingtonpost.com/opinions/2020/05/01/ stopping-covid-19-behind-bars-was-an-achievable-moral-imperative-we-failed/.
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not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
Numerous courts have echoed these principles. See DeJohn v. Temple Univ., 537 F.3d 301, 309 (3d Cir. 2008) (“The burden for the party alleging mootness [i]s heavy, even formidable.”) (quotation marks and citation omitted); United Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 563 F.3d 257, 275 (7th Cir. 2009) (where the changes in policies or practices 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”); Burns v. Pa. Dep’t of Corr., 544 F.3d 279, 284 (3d Cir. 2008); Mays, 2020 U.S. Dist. LEXIS 73230, *9495; Inmates of the Northumberland Cty. Prison v. Reish, No. 08-cv-345, 2009 U.S. Dist. LEXIS 126479, at *48-51 (M.D. Pa. Mar. 17, 2009) (a lawsuit alleging violations of prisoners’ constitutional rights is “a quintessential instance where a court should employ the voluntary cessation exception”); Bowers v. City of Philadelphia, No. 06-CV-3229, 2007 U.S. Dist. LEXIS 5804, at *106-07 (E.D. Pa. Jan. 25, 2007) (finding that the timing of the defendant’s cessation decision—a week prior to a preliminary injunction hearing—“strongly suggests that the cessation was connected in large part to the instant litigation, a circumstance that does not favor a finding that the conduct is unlikely to recur” and that defendant’s continued defense of the challenged conditions “does not engender confidence that [it] will not revert to these conditions again”); Victory v. Berks Cty., No. 18-5170, 2020 U.S. Dist. LEXIS 6528, at *50-67 (E.D. Pa. Jan. 15, 2020) (entering a permanent injunction against a county jail despite prison policy changes after finding no assurances that the alleged violations would not recur).
Plaintiffs have detailed above, supra § II.C, the relevant chronology of events, including changes in protocols and practices (even in the absence of the necessary discovery requested by
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plaintiffs) that demonstrate beyond reasonable question, that the current policies were adopted in large part in response to notice of this litigation, the allegations in the Complaint, and the pending Motion. These include policies regarding quarantine, isolation, cleaning agents, and access to soap and other personal hygiene supplies. As in Mays, 2020 U.S. Dist. LEXIS 73230 at *94-95, where the court issued a preliminary injunction after finding that defendants’ compliance with the original TRO with respect to sanitation, soap and cleaning supplies, facemasks and virus testing was not “entirely voluntary,”54 this Court should similarly enter a TRO or preliminary injunction to protect the plaintiffs from suffering further harm.
3. Inconsistent Implementation of PDP Protocols Warrants Injunctive Relief Even if Defendants’ policies at this time are in compliance with constitutional standards (they are not), Plaintiffs would be entitled to injunctive relief if the practices “on the ground” demonstrate that the policies are not being adequately applied and enforced. See Mays v. Dart, 2020 U.S. Dist. LEXIS 73230 at *76, 88-89. Plaintiffs have summarized above, supra § II.D, and have provided detailed accounting in attached exhibits, Ex. K, Ex. L, that current conditions in PDP’s facilities depart significantly from what Defendants’ policies appear to require and, importantly, from what Defendants’ witnesses claim to have observed. In short, conditions “on the ground” demonstrate that Plaintiffs are exposed to a continued and ongoing threat of harm from COVID-19.
54 The Mays court also had no trouble in finding that in these circumstances the plaintiffs had satisfied the requirements of showing irreparable harm, no adequate remedy at law, and a promotion of the public interest in protecting the health and lives of the plaintiff class. 2020 U.S. Dist. LEXIS 73230 at *113-14. Plaintiffs need not establish that they have suffered injury, as opposed to likelihood of serious illness, to establish irreparable harm. See Helling, 509 U.S. at 33.
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At a minimum, there are substantial and material factual disputes which the Court may assess through a review of the documentary evidence or at a hearing before issuing injunctive relief.
4. The Balance of Equities and the Public Interest Favors Granting Relief to the Proposed Class
The balance of equities weighs heavily in favor of granting the requested injunctive relief. The preliminary injunction Plaintiffs request will not substantially injure other interested parties. See Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 526 (3d Cir. 2018) (preliminary injunction warranted where relief “will not result in even greater harm to the nonmoving party”). Given the nature of the COVID-19 pandemic, not issuing preliminary relief would cause significant injury to the parties and the public at large. There is also a strong public interest in minimizing the spread of COVID-19 and courts have consistently ordered injunctive relief where prisoners face serious threats to their health. See, e.g., Castillo v. Barr, No. 20-00605, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020).
5. Release of Plaintiffs and Members of the Class Is Necessary if Defendants do not Provide Constitutional Conditions of Confinement
As noted earlier, the issue of release of any incarcerated persons at the PDP is not before the Court at this juncture and therefore Plaintiffs do not address Defendants’ arguments regarding this Court’s powers to order release under 28 U.S.C. § 2241 or its equitable powers under 42 U.S.C. § 1983 and the PLRA. Plaintiffs rely on our previous submissions on these issues, and reserve the right to supplement those arguments at the appropriate time.
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B. Requests for Injunctive Relief
Plaintiffs request a TRO and a preliminary injunction for current and future persons held
in custody within the PDP, as follows:55
1. Ensuring proper social distancing by:
a. Implementing a program of six-foot separation of class members in their daily activities at PDP, including in their access to showers, phones, and recreation and in their interactions with correctional officers and other staff, except where such interactions necessitate closer proximity or physical contact, e.g., provision of health care services.
b. Limiting double-celling to situations in which having two persons sleeping in the same cell is required by the health or mental health needs of these persons or other safety reasons.
c. Limiting dormitory populations to ensure six-foot separation at all times, including sleeping hours.
2. Ensuring enhanced personal hygiene by:
a. Providing unrestricted, free access to soap and disposable hand towels to facilitate hand washing.
b. Providing the opportunity to shower daily, without forcing a choice between showers and other activities.
3. Ensuring clean and hygienic living spaces by:
a. Providing ready access to cleaning supplies, including bleach-based cleaning agents and CDC-recommended disinfectants in quantities sufficient to facilitate cleaning and disinfecting of floors and all surfaces in cells and housing areas as currently required by PDP protocols.
b. Requiring and ensuring that all common areas and frequently touched surfaces, including common-use items such as toilets, sinks, showers, phones television controls, books, door handles, light switches, and recreational equipment are cleaned at regular intervals throughout the day, as currently required by PDP protocols. Phones should be cleaned after each use.
55 The injunctive relief sought by Plaintiffs has been slightly modified, and therefore is listed here for clarification.
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c. Providing gloves and masks on a daily basis to those who are cleaning, cooking, or performing janitorial or other services.
d. Providing clean sheets and clothing twice per week.
4. Ensuring consistent usage of personal protective equipment (PPE) by:
a. Providing all class members and prison staff members with masks that are cleaned and/or exchanged on a daily basis.
b. Mandating that prison staff wear masks while working, and that class members wear masks outside of their cells (except when showering, eating, or for medical or other safety reasons).
5. Implementing testing and medical isolation by:56
a. Testing all class members, including those newly admitted, for COVID-19, prioritizing those who are medically vulnerable.
b. Ensuring that any incarcerated person who tests positive or displays symptoms consistent with COVID-19 is medically isolated and remains medically isolated until they test negative. Individuals in isolation should have multiple daily temperature checks and monitoring of blood oxygen levels to ensure stability in accord with current PDP protocols.
c. On a daily basis, testing of staff who enter PDP facilities, and requiring any staff member who tests positive to medically isolate themselves and to test negative prior to entering a PDP facility.
6. Ensuring access to necessary services by:
a. Providing four hours of out-of-cell time on a daily basis for showering, cleaning, recreation, and phone calls. Two of these hours should be permitted for large-muscle recreation. Out-of-cell time should be provided on a staggered basis to allow for social distancing.
b. Providing medical care for non-COVID-19-related medical and mental health needs based on prevailing community standards as provided by PDP protocols
56 The term “medical isolation” is defined in the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities Medical (March 23, 2020) (“CDC Guidance for Detention Facilities”). 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. 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.
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and directives in effect, pre COVID-19. Medical care shall not be limited to “urgent” situations. c. Providing free calls to families or loved ones. d. Providing free, unrecorded, and confidential phone calls to legal counsel. 7. Ensuring education, transparency, and information dissemination by: a. Providing all incarcerated people with (i) general updates and information about the COVID-19 pandemic; (ii) information on how incarcerated people can protect themselves from contracting COVID-19; and (iii) instructions on how to properly wash hands, in accordance with current PDP protocols or practices. b. Providing a daily public report on the current and cumulative numbers of:  class members and correctional and health staff who have confirmed
COVID-19;  those who have been tested;  those over the age of 55;  people in infirmary status;  pregnant women in custody;  those in quarantine and medical isolation status;  those awaiting test results;  COVID-19 positives in cohorted housing;  those hospitalized;  those who have died from COVID-19. IV. CONCLUSION This Court should grant Plaintiffs-Petitioners’ Motion for a Temporary Restraining Order and Preliminary Injunction, and order that Defendants immediately enact policies implementing mitigation efforts within the PDP to prevent the spread of COVID-19.
30

Case 2:20-cv-01959-BMS Document 26 Filed 05/05/20 Page 31 of 31

Respectfully submitted,

/s/ Su Ming Yeh Su Ming Yeh (PA 95111) /s/ Matthew A. Feldman Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 (215)-925-2966 smyeh@pailp.org mfeldman@pailp.org

/s/ David Rudovsky David Rudovsky (PA 15168) /s/ Jonathan H. Feinberg Jonathan H. Feinberg (PA 88227) /s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 drudovsky@krlawphila.com jfeinberg@krlawphila.com slin@krlawphila.com

/s/ Nyssa Taylor Nyssa Taylor (PA 200885)* /s/ Witold J. Walczak Witold J. Walczak (PA 62976) /s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) /s/ Ali Szemanski Ali Szemanski (PA 327769)* AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 (215) 592-1513 ntaylor@aclupa.org vwalczak@aclupa.org HNelson-Major@aclupa.org aszemanski@aclupa.org
Attorneys for Petitioners/Plaintiffs

/s/ Will W. Sachse Will W. Sachse (PA 84097) /s/ Benjamin R. Barnett Benjamin R. Barnett (PA 90752) /s/ Mary H. Kim Mary H. Kim* /s/ Nicolas A. Novy Nicolas A. Novy (PA 319499) /s/ Theeya Musitief Theeya Musitief (PA 327295)* DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 (215) 994-2496 Will.Sachse@dechert.com Ben.Barnett@dechert.com Mary.Kim@dechert.com Nicolas.Novy@dechert.com Theeya.Musitief@dechert.com

DATE: May 5, 2020

* indicates counsel who will seek admission or pro hac vice admission

31

Case 2:20-cv-01959-BMS Document 26-1 Filed 05/05/20 Page 1 of 3

Exhibits to Class Action Complaint for Declaratory and Injunctive Relief and Petition for Writs of Habeas Corpus

Description
Expert Declaration of Joseph J. Amon, Ph.D. MSPH, April 19, 2020 Expert Declaration of Robert L. Cohen, M.D., April 20, 2020 Declaration of Thomas Remick, April 16, 2020

Complaint ECF Exhibit Letter Number

Exhibit A

1-4

Exhibit B

1-5

Exhibit C

1-6 at 2

Declaration of Jay Diaz Remick, April 19, 2020

1-6 at 6

Declaration of Nadiyah Walker, April 19, 2020

1-6 at 10

Declaration of Michael Alejandro, April 15, 2020

1-6 at 13

Declaration of Michael Dantzler, April 16, 2020

1-6 at 16

Declaration of Robert Hinton, April 16, 2020

1-6 at 19

Declaration of Joseph Weiss, April 16, 2020

1-6 at 22

Declaration of Joseph Skinner, April 15, 2020

1-6 at 25

Declaration of Saddam Abdullah, April 19, 2020

1-6 at 29

Declaration of James Bethea, April 17, 2020

1-6 at 33

Case 2:20-cv-01959-BMS Document 26-1 Filed 05/05/20 Page 2 of 3

Exhibits to Plaintiffs-Petitioners’ Reply Brief in Support of Motion for Temporary Restraining Order and Preliminary Injunction

Description
Email from counsel for Plaintiffs to counsel for Defendants regarding discovery, May 1, 2020 Comparisons between the rate of infection within the PDP and the surrounding community, SCI Phoenix, and the Pennsylvania Department of Corrections overall
Supplemental Declaration of Robert L. Cohen, M.D, May 5, 2020

Brief Exhibit ECF

Letter

Number

Exhibit D

Exhibit E Exhibit F

Declaration of Don Doyle, April 30, 2020

Exhibit G

“Coronavirus (COVID-19) Need to Know,” Quarantine

Intake Procedure, (D0103-D0105), April 14, 2020

Exhibit H

Email from counsel for Plaintiffs to counsel for Defendants regarding investigation, April 14, 2020.

Exhibit I

Timeline of PDP’s practices and policies
Chart comparing the declarations of PDP’s deputy wardens and current conditions in PDP facilities Chart comparing the declarations of PDP’s medical supervisory staff and current conditions in PDP facilties

Exhibit J Exhibit K Exhibit L

Declaration of Joseph Weiss, April 30, 2020

Exhibit M

Declaration of Joseph Skinner, April 28, 2020

Exhibit N

Declaration of James Bethea, April 29, 2020

Exhibit O

Declaration of Thomas Remick, April 29, 2020

Exhibit P

Declaration of Jermaine Matthews, April 30, 2020

Exhibit Q

Case 2:20-cv-01959-BMS Document 26-1 Filed 05/05/20 Page 3 of 3

Declaration of Saddam Abdullah, May 1, 2020
Declaration of Yavette Benn, April 30, 2020
Declaration of Jay Diaz, April 30, 2020
Declaration of Nadiyah Walker, April 30, 2020
Declaration of Robert Hinton, April 30, 2020 Email from counsel for Plaintiffs to counsel for Defendants regarding discovery priorities, April 24, 2020

Exhibit R Exhibit S Exhibit T Exhibit U Exhibit V
Exhibit W

Case 2:20-cv-01959-BMS Document 26-2 Filed 05/05/20 Page 1 of 3

Remick v. City of Phila. - Discovery
1 message

Novy, Nicolas <Nicolas.Novy@dechert.com> To: "craig.straw@phila.gov" <craig.straw@phila.gov>, Anne Taylor <Anne.Taylor@phila.gov> Cc: "EXT drudovsky@krlawphila.com" <drudovsky@krlawphila.com>

Fri, May 1, 2020 at 6:57 PM

Craig and Anne,

We are writing with respect to the City’s initial document production on April 27, 2020. Unfortunately, the initial production was inadequate and we did not receive the supplemental production you promised us last evening. We agreed to informal discovery and to a submission of only priority documents to enable the parties to see if a settlement was possible. The most important discovery gaps which must be immediately addressed are outlined below:
· COVID Testing and Tracking: We received no COVID data or tracking information, including the number of tests administered at each facility, the results of these tests, or daily logs tracking suspected or confirmed COVID-cases.
· Quarantine and Isolation Units: We received no information on each facility’s designated quarantine and isolation space, including capacity, physical size, and population.
· Information Provided to Incarcerated Persons: We received no information, memos, handouts, or otherwise, regarding information that PDP provided to incarcerated persons.
· Guidelines and Policies: We received several policies and guidelines with no effective date, no time stamp, and no indication to whom they were distributed.
· Dr. Herdman Recommendations: We were not provided any communications between Dr. Herdman and specific PDP facilities related to his recommendations. We also have not received any other data or information on which PDP relied in creating its COVID policies.
· Facility Information: We received no information on the physical dimensions of housing areas in each facility, the number of double-celled occupancy at each facility, the rated capacity of each of the dorm rooms and the spacing between the bunk beds, and the number of bunk beds where both beds are occupied, all of which is necessary to assess social distancing protocols. To the extent our request was not sufficiently detailed on these housing issues, please provide the additional information.
· Vulnerable Population: We received no information on the number of incarcerated persons that are medically vulnerable and where those individuals are located within PDP.
Beyond these gaps in production, the documents reference other documents that are necessary at this phase of the case:
1. Bates 12 refers to protocols on handwashing and robust cleaning. If not in the produced documents, please provide.

2. Provide any additional protocols or directives relating to social distancing.

3. There were references to quarantine areas in some of the facilities but not for the D.C. Please update.

4. Bates 95-96. As we read these documents, inmates who test positive can be released from isolation without additional testing. Please confirm if this is true, and also provide the number of inmates who have been placed in isolation and how many have been released without new testing.

Case 2:20-cv-01959-BMS Document 26-2 Filed 05/05/20 Page 2 of 3
5. Bates 103-107 refers to health care services only for “urgent” conditions. State who authorized this limitation on health care and provide all documents that define or explain “urgent.” Please also provide the effective date of these policies.
6. Bates 108-109 reference cleaning procedures and state that for each shift in each housing area requires an entry in a Sanitation Book in “RED” documenting that the required cleaning has been completed. Please clarify the date of creation of each of the documents and which facilities each policy refers to. For each housing area in each facility provide the Sanitation Books for the following days: April 16, 19, 22, 25, 29.
7. Aside from the Sanitation Books we did not see any references to internal audits or monitoring of other protocols. Please state whether there are any and provide samples.
8. You provided a few emails in Bates 114-118. Please provide all emails from March 1, 2020 to present. 9. For each redacted document please provide the basis for the redaction. For documents withheld in whole or in part because of the attorney-client privilege, the Federal Rules of Civil Procedure require a privilege log sufficient to allow us to test the privilege claimed.
10. Document D-0027 links to a Google drive link that is no longer accessible; please provide the document referenced in the link.
We trust that that City will remedy these discovery deficiencies as soon as possible. Please let us know when you will do so and provide any supplemental document productions. If the City is unable to complete its production of documents responsive to the above categories, please provide an explanation as to why this information is not being provided. If no explanation is provided, we will assume that we currently possess all of Defendants’ responsive documents that exist for the specific categories set out in our discovery requests.
Thank you in advance for your immediate attention to these issues.
-Nick
Nicolas A. Novy Associate
Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 +1 215 994 2529 Direct +1 215 655 2222 Fax nicolas.novy@dechert.com
This e-mail is from Dechert LLP, a law firm, and may contain information that is confidential or privileged. If you are not the intended recipient, do not read, copy or distribute the e-mail or any attachments. Instead, please notify the sender and

Case 2:20-cv-01959-BMS Document 26-2 Filed 05/05/20 Page 3 of 3
delete the e-mail and any attachments. Thank you.

Case 2:20-cv-01959-BMS Document 26-3 Filed 05/05/20 Page 1 of 2
PDP Rate of Infection Compared with Surrounding Community Note: “Total cases” only includes incarcerated people, as PDP has only reported new positive cases in that population, excluding employees.
1. PDP v. Philadelphia PDP: Rate of infection =  𝑐𝑐 = 192 = .054 (as of 5/4/2020)
 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃 3,584
Philadelphia: Rate of infection =  𝑐𝑐 = 15,527 = .0097 (as of 5/2/2020)
 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃 1,600,000
 = .054 = 5.52 [The rate of infection in PDP is 5.52 times the rate in Philly.]
ℎ𝑖𝑖𝑖𝑖𝑖𝑖 .0097
2. PDP v. Pennsylvania PDP: Rate of infection =  𝑐𝑐 = 192 = .054 (as of 5/4/2020)
 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃 3,584
PA: Rate of infection =  𝑐𝑐 = 49,267 = .0038 (as of 5/3/2020)
 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃 12,800,000
 = .054 = 13.92 [The rate of infection in PDP is 13.92 times the rate in Pennsylvania.]
 .0038

Case 2:20-cv-01959-BMS Document 26-3 Filed 05/05/20 Page 2 of 2

PDP Rate of Infection Compared with SCI Phoenix and DOC Overall
Note: “Total cases” only includes incarcerated people, as PDP has only reported new positive cases in that population, excluding employees.

1. PDP v. SCI Phoenix (the SCI with the highest known rate of infection)

PDP: Rate of infection =  𝑐𝑐 = 192 = .054 (as of 5/4/2020)
 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃 3,584

SCI Phoenix: Rate of infection =  𝑐𝑐 = 𝑃𝑃𝑃𝑃 𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖+𝑑𝑑𝑑𝑑𝑑𝑑ℎ𝑠𝑠+𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟 = 29+3+20 =

 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃

 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑜𝑜𝑜𝑜

2,985

52 = .017 (as of 5/4/2020)

2,985

 = .054 = 3.08 [The rate of infection in PDP is 3.08 times the rate in SCI Phoenix.]
 ℎ𝑜𝑜𝑜𝑜𝑜𝑜𝑜𝑜 .017

2. PDP v. SCI Huntingdon (SCI with a significant outbreak of COVID-19)

PDP: Rate of infection =  𝑐𝑐 = 192 = .054 (as of 5/4/2020)
 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃 3,584

SCI Huntingdon: Rate of infection =  𝑐𝑐 = 𝑃𝑃𝑃𝑃 𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖+𝑑𝑑𝑑𝑑𝑑𝑑ℎ𝑠𝑠+𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟 = 51+0+0

 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃

 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃

1,981

= 51 = .026 (as of 5/4/2020)
1,981



= .054 = 2.08 [The rate of infection in PDP is 2.08 times the rate in SCI

 𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻 .026

Huntingdon.]

3. PDP v. DOC Overall

PDP: Rate of infection =  𝑐𝑐 = 192 = .054 (as of 5/4/2020)
 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃 3,584

DOC Overall: Rate of infection =  𝑐𝑐 = 𝑃𝑃𝑃𝑃 𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖+𝑑𝑑𝑑𝑑𝑑𝑑ℎ𝑠𝑠+𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟 = 84+3+20 =

 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃

 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃

43,186

107 = .0025 (as of 5/4/2020)

43,186

 = .054 = 21.62 [The rate of infection in PDP is 21.62 times the rate in DOC Overall.]
𝐷𝐷𝐷𝐷 𝑂𝑂𝑂𝑂𝑂𝑂𝑂𝑂𝑂𝑂𝑂𝑂𝑂𝑂 .0025

Case 2:20-cv-01959-BMS Document 26-4 Filed 05/05/20 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

JAY DIAZ, NADIYAH WALKER,

:

MICHAEL ALEJANDRO, MICAHEL

: Civil Action No. 20-1959

DANTZLER, THOMAS REMICK, ROBERT :

HINTON, JOSEPH WEISS, JOSEPH

: (Schiller, J.)

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

SUPPLEMENTAL DECLARATION OF ROBERT L. COHEN, M.D. ROBERT L. COHEN, M.D. declares that the following is true and correct to the best of his knowledge and belief: 1. My last declaration concerning my opinions and conclusions as an expert in correctional health was given on April 20, 2020 and was attached as Exhibit B to Plaintiffs’ Complaint. Since that time, I have reviewed materials provided by the Defendants to Plaintiffs’counsel in discovery and materials filed with the Defendants’ May 1, 2020, submission to the Court. I provide this supplemental declaration to offer opinions based on my review of these materials and also based on the national and local experience which has accumulated over the past several weeks related to COVID-19.

Case 2:20-cv-01959-BMS Document 26-4 Filed 05/05/20 Page 2 of 9
COVID-19 Testing 2. It appears that PDP is only conducting limited testing for COVID-19 based upon
evaluation of a small set of symptoms and self-reporting of recent contact with a person who has tested positive for COVID-19. This practice is not sufficient to protect the staff and residents of PDP from the spread of COVID-19. 3. All persons newly admitted to the PDP’s jails should be tested for the presence of COVID-19. Persons performing the swab tests should have PPE training, including N-95 fit test, and be provided with a face screen, surgical mask over N-95 mask, gown, gloves, and booties. Gloves should be replaced between each test. All patients should still be quarantined for 14 days except those found positive, who should be isolated according to current procedures. I understand that the Philadelphia Police Department has announced that it is retracting the practice it put into place to reduce arrests due to the pandemic.1 If this change in practice results in increased admissions to PDP facilities, it will be even more important to conduct comprehensive testing on newly admitted people. 4. For those individuals already admitted to PDP facilities who have tested positive for COVID-19 infection and are placed in isolation, the PDP employs a symptom-based strategy, as opposed to a test-based strategy, to end isolation for these individuals. The CDC has expressed a clear preference for test-based strategies as “Practical application of a symptom-based strategy cannot prevent all infection.” 2 While a symptom-based
1 Ellie Rushing & Robert Moran, Philly police resume pre-coronavirus arrest procedures for some non-violent crimes, Philadelphia Inquirer (May 1, 2020), https://www.inquirer.com/news/philadelphia/coronavirus-philadelphia-police-arrests-theftburglary-covid-19-20200501.html 2 https://www.cdc.gov/coronavirus/2019-ncov/community/strategy-discontinue-isolation.html (last visited May 3, 2020).
2

Case 2:20-cv-01959-BMS Document 26-4 Filed 05/05/20 Page 3 of 9
strategy for ending isolation may be appropriate for many recovered persons who are not incarcerated, a test-based strategy should be employed for those who may transmit infections to high-risk individuals, those who are immunocompromised, and those who reside in congregate living facilities, including correctional/detention facilities.3 The PDP should not release incarcerated individuals from isolation without two negative COVID-19 tests for viral shedding. 5. Beyond testing at the time of intake and for people who have previously tested positve, testing should be expanded to include all persons in the PDP’s facilities. This is of course a time-consuming process, but a schedule of testing should be established and presented. Medically vulnerable persons, including all persons over 50 should be prioritized, along with persons in quarantine status who have been exposed to someone with COVID-19. 6. The testing of all persons over 50 is essential due to the fact that vulnerability to hospitalization and death increases dramatically with age. CDC data from 12 states published on April 17, 2020 showed the rate of hospitalization for persons age 50-64 was three times the rate of those 18-49.4
3 Id. 4 https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm
3

Case 2:20-cv-01959-BMS Document 26-4 Filed 05/05/20 Page 4 of 9
More striking is New York City Department of Health data published May 1, 2020, which shows that between March 3, 2020 and May 5, 2020, the rate of hospitalization for persons aged 45-64 was 726 per 100,000, four times the rate of hospitalization for those 18-44. Critically, the death rate for the population 45-64 was 150 per 100,000, nine times higher than the death rate of 16 per 100,000 for those under 45.5 Based on New York City data, age greater than 50 is a substantial risk factor for hospitalization and death from COVID-19 infection:
5 https://www1.nyc.gov/site/doh/covid/covid-19-data.page accessed 5/5/2020 4

Case 2:20-cv-01959-BMS Document 26-4 Filed 05/05/20 Page 5 of 9
7. A number of jails and prisons across the country have conducted testing of all incarcerated persons in their facilities, including in Arkansas, North Carolina, Ohio and Virginia,6 and, locally, at the Montgomery County Correctional Facility.7 These tests have shown that current estimates of COVID-19 prevalence and incidence are undercounted. Testing in Montgomery County showed that of the 948 incarcerated people tested, 177 (18%) tested positive, resulting in an infection rate 30 times greater than that identified before testing was begun. These high positivity rates are themselves
6 Linda So & Grant Smith, In four U.S. state prisons, nearly 3,300 inmates test positive for coronavirus -- 96% without symptoms, Reuters (April 25, 2020), https://www.reuters.com/article/us-health-coronavirus-prisons-testing-in/in-four-u-s-stateprisons-nearly-3300-inmates-test-positive-for-coronavirus-96-without-symptomsidUSKCN2270RX . 7 Jeremy Roebuck & Allison Steele, Montgomery County’s jail tested every inmate for COVID19 — and found 30 times more cases than previously known, The Philadelphia Inquirer (April 28, 2020), https://www.inquirer.com/news/coronavirus-testing-montgomery-county-jailasymptomatic-philadelphia-prisons-20200428.html
5

Case 2:20-cv-01959-BMS Document 26-4 Filed 05/05/20 Page 6 of 9
undercounts, because, as recent reports have shown, the current COVID-19 nasopharyngeal testing may have significant number of false negative tests.8 9 8. Because of the fact that asymptomatic people transmit COVID-19 to others, it is difficult, if not impossible, for a jail to develop an effective plan to protect incarcerated people and staff members from the spread of COVID-19 without mass testing as there is no way to ensure proper quarantine and isolation practices. Mass testing will allow facilities to isolate individuals who are COVID-19 positive and asymptomatic until they are ready to be discharged or readmitted to the general population, and to quarantine people exposed to them. CDC guidance specifically recognizes the special case of jails, and recommends, with regard to discharging persons from COVID-19 isolation status, “more stringent” criteria for “people normally residing in congregate living facilities (e.g., correctional/detention facilities, retirement communities, ships) where there might be increased risk of rapid spread and morbidity or mortality if spread were to occur.”10 The CDC in this instance recognizes that the likelihood of viral spread in a jail is extremely high, and the need for isolating infectious persons is critical. CDC states specifically in an FAQ answering the the question of an incarcerated person “Do I have a greater chance of getting COVID-10?” by stating: “People in correctional and detention facilities are at greater risk for some illnesses, such as COVID-19, because of close living arrangements
8 https://www.npr.org/sections/health-shots/2020/04/21/838794281/study-raises-questions-aboutfalse-negatives-from-quick-covid-19-test 9 West CP, Montori VM, Sampathkumar P. COVID-19 testing: the threat of false-negative results [published online ahead of print April 9, 2020]. Mayo Clin Proc., https//doi.org/10.1016/j.mayocp.2020.04.004 10 https://www.cdc.gov/coronavirus/2019-ncov/community/strategy-discontinue-isolation.html
6

Case 2:20-cv-01959-BMS Document 26-4 Filed 05/05/20 Page 7 of 9
with other people.”11 Given these obvious risks, testing of all persons in jail facilities is necessary to avert preventable morbidity and mortality. 9. For the testing that it has conducted, PDP has not provided sufficient information to the public. For instance, the PDP has not explained the breakdown of positive tests by facility. Further, the PDP has continued to decline any public reporting on positive tests among correctional staff and jail health workers—a practice inconsistent with many jail facilities around the country.12 Without reports on this important data, it is not possible to assess whether the spread of COVID-19 infection has been effectively addressed. Social Distancing 10. I have reviewed documents provided by the defendants describing “head-to-toe” sleeping arrangements in dormitory facilities. Although these practices are referenced in CDC Guidance materials, they are deeply problematic. Such sleeping arrangements do not provide the physical distancing required to prevent respiratory transmission of coronavirus. Training models mention head-to-toe positioning to maximize separation between patients’ heads, but this recommendation is made when physical distancing of six feet is “not possible.” Such practices condemn incarcerated persons to high risk of exposure by allowing facilities to ignore the critical element of physical distancing in the prevention of COVID-19 infection. I know of no scientific study which has shown that these arrangements prevent respiratory transfer, and indeed, common sense predicts the opposite give movement during sleep and at the time of waking. These recommendations, in line with the general tone of the CDC guidance, assume that the 11 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/faq.html 12 The Federal Bureau of Prisons reports all staff infections on its website. See https://www.bop.gov/coronavirus/. The Pennsylvania Department of Corrections does the same. See https://www.cor.pa.gov/Pages/COVID-19.aspx
7

Case 2:20-cv-01959-BMS Document 26-4 Filed 05/05/20 Page 8 of 9
actual conditions within jails will not allow adequate physical distancing, including separation of beds, and suggests unproven alternatives. Head to toe sleeping is “better than nothing,” but that cannot be the standard when we know that physical distancing does prevent contagion with this virus. PDP should eliminate the need for head-to-toe sleeping in all cases. 11. It is my understanding based on review of PDP’s materials that PDP is continuing to house incarcerated people in double cells. As I have explained before, it is not possible to engage in mandatory social distancing in such housing arrangements. This is of special concern in situations, explained in some of the declarations I have reviewed, where a single person has had numerous cellmates rotated in and out of the cell. Such practices are counterproductive to social distancing efforts. Implementation of PDP’s Stated Policies 12. Based upon the declarations of incarcerated persons at PDP, I have great concern that Corizon medical staff are not responding to complaints which are consistent with symptoms of COVID-19 illness because they have declared that “only urgent services should be conducted” at the provider’s discretion. During this pandemic, all complaints of fever, fatigue, sore throat, rash, loss of taste/smell, cough, shortness of breath must be discussed urgently with a health professional and vital signs and appropriate physical examination, including pulse oximetry, must be obtained. Hospitals are routinely reporting serious infection without the presence of fever, and severe pneumonia with respiratory failure without complaints of shortness of breath.13 14 Further, given the
13 https://jamanetwork.com/journals/jama/fullarticle/2765184?guestAccessKey=906e474e-0b944e0e-8eaa606ddf0224f5&utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links &utm_content=tfl&utm_term=042220;
8

Case 2:20-cv-01959-BMS Document 26-4 Filed 05/05/20 Page 9 of 9
responsibility of jail medical professionals to provide adequate health care to all incarcerated people, there is significant risk that limiting access to medical care will result in negative health (including mental health) outcomes for the incarcerated population. 13. I understand that PDP has stated that it has made comprehensive efforts to address the spread of COVID-19 through ensuring that incarcerated people have access to, among other things, soap, cleaning supplies, and cloth masks. I have, however, observed from the declarations provided by people incarcerated in PDP that there are very serious gaps in the implementation of these practices. Such uneven application of COVID-19 prevention measures prevents a serious problem as any prevention program can only be successful if its proper implementation is ensured. I declare under penalty of perjury that the foregoing is true and correct.
Executed this 5th day of May, 2020 in New York, New York.
14https://www.google.com/search?q=hypoxia+covid&rlz=1C1CHBF_enUS867US867&oq=hypo xia+covid&aqs=chrome..69i57j69i60.5894j0j7&sourceidf=chrome&ie=UTF-8
9

Case 2:20-cv-01959-BMS Document 26-5 Filed 05/05/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF DON DOYLE OF APRIL 30, 2020 DON DOYLE hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am fifty-seven years old and have been incarcerated at the Curran-Fromhold Correctional Facility (“CFCF”) for approximately six months.
2. I am being held as a pretrial detainee because I cannot afford to pay my bail. 3. I am currently housed on Unit B-1-1, along with approximately 57 other men. Most of
the men on my unit are in cells with one other person. I had a cellmate until a few days ago, when my cellmate was released. There are a couple empty cells on the unit. 4. Staff are telling people with cellmates to sleep on their bunk beds in the opposite direction of their cellmates. 5. I have had no soap since April 28, 2020.

Case 2:20-cv-01959-BMS Document 26-5 Filed 05/05/20 Page 2 of 3
6. I have no money on my books, so I cannot purchase soap from commissary. 7. I asked CO’s for soap and they told me that only people who have no money on their
books can get free soap. They told me I had to ask a sergeant or a lieutenant for soap and that the sergeant or lieutenant would then check to see whether I had money on my books. I asked a sergeant or lieutenant for soap and he told me he would check my books, but I never heard back from him. I still have no soap. 8. There is a sink in the dayroom, but there is no soap at that sink. 9. We generally get out of our cells once a day, for 15-30 minutes. Fifteen people are released from their cells at a time. 10. There are 7 phones, all right next to each other, and we are permitted to use all of them at the same time. The phones are so close that you have to stand sideways to avoid touching the person using the phone next to you. 11. Inmates wipe the phones down with bleach between each group being released from their cells but not between each use. 12. The showers are not bleached or disinfected between uses. 13. I was given a mask approximately 3 weeks ago, and I received a second mask on or around April 23, 2020. 14. We were told to wear our masks when we are out of our cells, but once we are out, staff do not enforce mask-wearing. Men sit on chairs right next to each other without masks on, playing cards or watching television. 15. Staff are generally wearing masks or bandanas on their faces. 16. On Wednesdays and Saturdays, we are given a spray bottle and a mop to clean our cells with. We all use the same mop, with the same handle, and we do not have gloves.

Case 2:20-cv-01959-BMS Document 26-5 Filed 05/05/20 Page 3 of 3
17. Staff come to do temperature checks once a week, but they do not check everyone’s temperature. The last time they checked temperatures was April 26, 2020, but they only checked people on the bottom tier. The last time my temperature was taken was about a month ago.

I, Matthew A. Feldman, certify that Don Doyle relayed the above information to me over the phone on April 30, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Because Mr. Doyle is incarcerated, the finished declaration has not been reviewed with Mr. Doyle.

Dated: April 30, 2020

/s/ Matthew A. Feldman
Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 T: 215-925-2966 mfeldman@pailp.org

Case 2:20-cv-01959-BMS Document 26-6 Filed 05/05/20 Page 1 of 3
CORONAVIRUS (COVID-19) NEED to KNOW
Quarantine Intake Process:
 All inmates entering the facility will be screened for COVID-19 o Security will ask at the front door prior to accepting into the facility o Medical will ask at the time of the intake screening
 All intake staff members should be wearing appropriate PPE (mask, eye protection, outwear protection, gloves) during these encounters o You will be given one mask to keep on your person o You may wear until visibly soiled o CDC recommends placing mask in warm, dry, location when not worn o Be sure to keep your mask on person at all times within the facility  Supply is limited and will be tightly managed
 If an inmate comes through medical intake and is an emergency referral, then admitted to PHSW, the inmate will quarantined there for 14 days o The inmate and staff must wear appropriate PPE during transport (eg. mask for inmate and mask and gloves for staff) o Each day of quarantine, the inmate will have daily symptom and temperature check rounds
 If the inmate answers yes to a combination of questions on the screening tool, please follow the directions noted. Speak to the provider for direction if inmate reports exposure, respiratory symptoms and fever 100.0 or greater, then o Call the Regional Infection Control Coordinator o If off hours, call your site Administrator o The provider will reach out to the CFCF SMD in order to discuss case and determine disposition for the inmate
 If the inmate states that they have had previous exposure, please get the following information: o Name of person exposed to o Address of inmate o Case number, if known o Date of known exposure  The above information has been updated as mandatory fields on the screening smart form  This is the information that will be shared with the Philadelphia Department of Public Health (PDPH)
 All inmates, who do not screen positive at intake will then be placed on B building quarantine if at CFCF and D Building at RCF o Inmates will remain here for 14 days in order to monitor for symptoms
D0103

Case 2:20-cv-01959-BMS Document 26-6 Filed 05/05/20 Page 2 of 3
o Only essential services will be conducted eg. Medications, emergency services, withdrawal assessments, twice daily symptom and temperature checks
o Essential services should be done cell side and in the unit management/dispensary areas if necessary
o Inmates in quarantine must not be escorted down to medical unless absolutely necessary, and must don a surgical mask upon transport
 Each day of quarantine, the inmate will have twice daily symptom and temperature check rounds o The symptom info (respiratory symptoms and fever 100.0 or above) noted during rounds should be documented on the segregation flow sheet o Documenting “COVID-19 assessment-no concerns noted” in the notes section should occur o You will need to document each individual temperature on the flowsheet o While conducting the assessment, appropriate PPE should be donned eg. Mask, eye protection, outerwear protection and gloves
Isolation: Designated area at each facility
 If an inmate is suspected of having COVID-19 after assessment by a provider and discussion with the CFCF SMD, clear direction on what to do will be given o All male inmates who fall into this category will be placed on isolation at their respective facilities until deemed cleared and all appropriate PPE must be donned eg. Respirator (surgical mask if none available), eye protection, outwear protection, and gloves o There are specific Nasopharyngeal test kits that will be used to test for the virus and sent to the lab o More frequent rounds will be conducted noting any respiratory symptoms and temperature result. This information should be documented on the segregation flow sheet. The SMD of the facility will determine  Appropriate NET should be used when applicable o Isolation Discharge criteria:
 For those who have COVID positive results, being in quarantine for 14 days since the first onset of symptoms, no fever for 3 days, and have improving respiratory symptoms
 For those who have COVID negative results, being in quarantine for 7 days since first onset of symptoms, no fever for 3 days and have improving respiratory symptoms
 Once the inmate is released from isolation, he/she will then be transitioned into general population where social distancing will still be enforced
D0104

Case 2:20-cv-01959-BMS Document 26-6 Filed 05/05/20 Page 3 of 3
General Population:
 If a general population inmate presents with COVID-19 like symptoms o Complete the COVID-19 screening tool, inform the provider on call and follow the directions on the bottom of the smart form
 At discharge, those inmates who are entering into a community program or are a payoff should also be screened for symptoms prior to release o The screening questions have been added as mandatory fields to the structured data section on the final plan of the discharge summary
 If there is a trending suspicion of COVID on any one block or dorm, a decision may be made to place that area on quarantine. If so, the above intake quarantine procedures will be put in place
 Only urgent services should be conducted. Providers have the discretion what needs to be completed. If an appointment can be deferred at this time, it should be. Documentation must be noted in the health record under disposition
 Areas and surface cleaning should occur at least three times per shift
COVID 19 Containment:
 SOCIAL DISTANCING at all times in quarantine and general population is expected o No groups greater than 10 o Keep at least 6 feet apart from any individual unless providing inmate care o No hugging, shaking hands, sharing personal items
 HAND HYGIENE is essential o Washing hands for at least 20 seconds or using an alcohol based hand sanitizer is expected
 Health Alert document should be given to all those who are being discharged that are under quarantine or COVID + o Those under quarantine or COVID + will not remain in custody if they are to be released from the jail o The RICC will inform the Philadelphia Department of Public Health

Updated 4/14/20 LAM

D0105

5/4/2020

Case 2:20-cv-01959-BKMairySs, RuDdoovcskuy,mMesnsting2&6-F7einbFergileLLdP 0M5ai/l 0- (5no/2s0ubjecPt)age 1 of 1
Susan Lin <slin@krlawphila.com>

(no subject)

David Rudovsky <drudovsky@krlawphila.com>

Tue, Apr 14, 2020 at 9:12 PM

To: "Craig.Straw@phila.gov" <craig.straw@phila.gov>, craig.verato@prisons.phila.gov, Susan Lin <slin@krlawphila.com>,

Jon Feinberg <jfeinberg@krlawphila.com>

Dear Craig and Greg,

For the past two weeks, we, along with our colleagues at the ACLU of Pennsylvania and the Institutional Law Project have been investigating complaints about conditions in the Philadelphia Department of Prisons in relation to the spread of COVID-19. As part of those efforts, we have attempted to schedule legal phone calls with a number of prisoners. These attempts, however, have been frustrated by a mixture of unresponsiveness and advisories that it is not possible for prison staff to arrange confidential attorney-client calls. We write to request your assistance in ensuring that people incarcerated in the City’s prisons are provided with appropriate access to counsel.

Over the past several days attorneys from each of our organizations have sent prison administrative staff multiple emails in attempts to schedule phone calls. We have been told that the calls will not be confidential in that social workers will be monitoring the calls and will be able to hear either one or both sides of the conversation. Out of the approximately 15 calls that we have requested so far, none has been scheduled.

While we understand that the prisons are technically “open” for legal visits, it is unreasonable to expect that attorneyclient communications take place in person when doing so would violate CDC guidance and state and local stay-at-home orders. Additionally, while we understand that the administration requires some notice in order to set up phone calls, our first attempts to schedule calls were made last week and we still have not had confidential calls with the individuals requested.

The recent death of a female prisoner from RCF has increased the urgency of our efforts. Additionally, the fact that only 88 inmates have been tested and over 60 of those tested have been positive indicates that the number of inmates with the virus is likely far greater than have tested positive.

Accordingly, we ask that you assist us in scheduling phone calls within the next 24 hours. Should you indicate your ability to assist on this issue, we will provide you with a list of individuals, their PP numbers, and their institutions.

Thank you for your assistance.

David, Jon and Susan

https://mail.google.com/mail/u/0?ik=feae26178a&view=pt&search=all&permmsgid=msg-f%3A1663999062508322711&simpl=msg-f%3A16639990625… 1/1

Case 2:20-cv-01959-BMS Document 26-8 Filed 05/05/20 Page 1 of 4

Bates/Exhibit # D0101-D0102 D0008-D0009
D0010-D0012 D0013-D0017 D0018 D0019-D0021 D0022-D0026 D0027 D0028
D0029
D0030-D0056 D0057
D0058-D0060
D0061-D0064 D0065-D0067 D0114-D0115

Exhibit J: Timeline of PDP’s Practices and Policies

Date

From

Content

1/30/2020

Unclear

Coronavirus screening document.

3/3/2020

(PDP) Jennifer Brennan on behalf Guidelines on reducing the transmission of COVID-19

of Health Department

for staff.

3/6/2020

Governor declares the existence of a disaster emergency.

3/9/2020

(PDP) Jennifer Brennan on behalf Poster on handwashing best practices.

of Shawn Hayes (Spokesperson for

PDP)

3/11/2020

(PDP) Jennifer Brennan on behalf Policy Statement for all Philadelphia workers exhibiting

of Commissioner Carney

symptoms of COVID-19.

3/12/2020

(PDP) Jennifer Brennan on behalf Note to staff members that PDP leadership is monitoring

of Commissioner Carney

the situation and have instituted protocols at PDP

facilities.

3/16/2020

(PDP) Devin Jackson

Request to PDP staff members to update their personal

and emergency contact information.

3/18/2020

(PDP) Jennifer Brennan on behalf New policy statement from the Philadelphia Chief of

of Mayor's Chief of Staff

Staff that relates to COVID-19 guidelines for all

Philadelphia workers.

3/19/2020

(PDP) Devin Jackson

Link to a Google Drive document titled “Coronavirus

PSA” (inaccessible).

3/19/2020

(PDP) Jennifer Brennan on behalf Email informing staff that all roll calls will be conducted

of Deputy Commissioner Clark in facility gymnasiums to allow for social distancing.

3/23/2020 3/24/2020 3/26/2020 3/26/2020 3/27/2020
4/1/2020 4/1/2020 4/2/2020 4/3/2020 4/3/2020

Governor orders Philadelphia,

among other counties, to stay at

home.

(PDP) Jennifer Brennan on behalf Email informing staff that the Cannery workout facility

of Deputy Commissioner Beaufort is closed until further notice.

First confirmed PDP inmate case of

COVID-19.

(PDP) Jennifer Brennan on behalf Information and tips for PDP staff on how to manage

of Deputy Commissioner Beaufort stress and anxiety during the COVID-19 crisis.

(PDP) Jennifer Brennan on behalf Announcement that as a result of one PDP staff member

of Commissioner Carney

testing positive, that tracing had begun in accordance

with CDC guidelines for both staff and inmates and that

staff or inmates that were within 6 feet of the positive

staff member for more than 10 minutes will self-

quarantine for 14 days.

(PDP) Jennifer Brennan on behalf Announcement that all PDP events had been canceled.

of Commissioner Carney

Governor enacts the stay-at-home

order statewide.

(PDP) Jennifer Brennan on behalf Poster on the Families First Coronavirus Response Act.

of Deputy Commissioner Beaufort

(PDP) Chacko Abraham on behalf Email providing HR and Safety department contact

of Human Resources

numbers for staff members with questions on COVID-19

guidelines.

(Corizon) Lalitha Trivikram

Email outlining outstanding recommendations made by

doctors Feemster, Alles, and Lewis after they had toured

the PICC facility. The remaining recommendations

included, among other things, that all inmates and staff

inside of facilities wear PPE and recommendations for

sanitation protocols when oral thermometers are used.

Case 2:20-cv-01959-BMS Document 26-8 Filed 05/05/20 Page 2 of 4

Bates/Exhibit # D0068 D0069-D0075 D0001-D0007 D0076-D0079 D0103-D0105
D0080-D0081
Remick - 22-25 Ex. 18 D0082-D0094 D0108 Remick - 22-19 Ex. 12
Remick - 22-15 Ex. 8 Remick - 22-17 Ex. 10

Exhibit J: Timeline of PDP’s Practices and Policies

Date

From

Content

4/7/2020

(PDP) Jennifer Brennan on behalf Email informing staff members that they cannot wear

of Deputy Commissioner Beaufort masks that have been altered with drawings or other

colors other than white, blue, teal green, or yellow. N95

masks are only permissible in those colors.

4/8/2020

(PDP) Jennifer Brennan on behalf Respiratory protection guidance for employees.

of Human Resources

4/9/2020

PDP

Draft COVID Protocols which include guidelines on

social distancing practices, intake guidelines,

quarantining and isolation guidelines for inmates and

PPE guidelines for staff and inmates.

4/9/2020

(PDP) Jennifer Brennan on behalf Executive order regarding the issuance of N95 masks to

of Commissioner Carney

staff members assigned to areas with potential exposure.

4/14/2020

PDP

Guidelines for the quarantine intake process for inmates, isolation procedures, and policies and procedures for the general inmate population and COVID-19 containment.

4/14/2020
4/14/2020 4/15/2020

Plaintiffs' counsel emails Crag

Straw regarding investigating

complaints from PDP-incarcerated

people about COVID-19-related

conditions.

First PDP inmate dies from COVID-

19

(PDP) Jennifer Brennan on behalf Email from Jennifer Brennan on behalf of Commissioner

of Commissioner Carney

Carney to staff members regarding the first confirmed

inmate death from COVID-19 and instructing staff

members to practice universal caution by wearing PPE,

washing hands frequently and not touching their faces.

4/15/2020

PDP

Log from unnamed facility recording activities related to COVID-19 including laundry service.

4/17/2020 4/17/2020
4/17/2020

(PDP) Jennifer Brennan on behalf of Human Resources PDP
PDP

HR update on emergency sick leave under the Families First Coronavirus Response Act. Protocols for sanitizing the detention center inmate housing. The guidelines require all inmate housing areas, cells on the block and all dormitories to undergo cleaning twice daily. Detention Center Chronology for April 17-18, 2020 which includes the dissemination of memo information regarding COVID-19. Unclear if this was read to staff only.

4/18/2020

PDP

Log from unnamed facility showing the staggered release of inmates from cells for unnamed activities and tracking when areas/items are sanitized.

4/20/2020
4/20/2020 4/20/2020

PDP
Governor extends stay-at-home order until May 8. Remick lawsuit filed.

Log from unnamed facility showing the staggered release of inmates from cells for unnamed activities and tracking when areas/items are sanitized.

Case 2:20-cv-01959-BMS Document 26-8 Filed 05/05/20 Page 3 of 4

Bates/Exhibit # Remick - 22-18 Ex. 11 Remick - 22-27 Ex. 20
D0116-D0118
Remick - 22-23 Ex. 16 Remick - 22-13 Ex. 6 Remick - 22-12 Ex. 5 Remick - 22-24 Ex. 17 Remick - 22-24 Ex. 17
Remick - 22-20 Ex. 13 D0110-D0113 Remick - 22-22 Ex. 15 D0095-D0098 D0099-D0100 D0106-D0107 Remick - 22-08 Ex. 1

Exhibit J: Timeline of PDP’s Practices and Policies

Date

From

Content

4/21/2020

Log from PHSW showing the staggered release of

inmates from cells for unnamed activities and tracking

when areas/items are sanitized.

4/23/2020

(PDP) Major McCants

Undated Memo from Major McCants informing PDP

staff to announce to inmates that they should sleep head

opposite of cell mates and that the announcement should

be documented in the Center Log & Chronological

Report.

4/24/2020

(City) Dr. Kristen Feemster

Draft COVID Protocols which include guidelines on

social distancing practices, intake guidelines,

quarantining and isolation guidelines for inmates and

PPE guidelines for staff and inmates.

● Promoting hand hygiene for inmates `` ● Limiting one inmate per bunkbed in dorms

● Continuing to encourage frequent distancing and handwashing in dorm settings

● Exploring options to increase ventilation in units

4/24/2020

PDP

● Faster case identification through the adoption of the point of care testing platform Log from unnamed facility recording the social distancing of inmates and tracking when areas/items are sanitized.

4/26/2020

PDP

Quarantine intake log from unnamed facility.

4/27/2020

PDP

4/27/2020

PDP

Hand written log with redactions from unnamed facility tracking what sanitization items are provided to inmates and when and cell phone usage and when phones wiped down. PICC Daily Chronology

4/27/2020

PDP

PICC Daily Chronology

4/28/2020

PDP

Log from unnamed facility recording the social distancing of inmates and tracking when areas/items are sanitized. Employee warning record for a employee that failed to hand out cleaning supplies during roll call on April 12, 2020 to E-dorm during the 0700-1500 shift.

4/29/2020

PDP

4/29/2020

PDP

Inmate population charts. Log from unnamed facility recording the social distancing of inmates and tracking when areas/items are sanitized.

Undated Undated Undated
Undated

Unclear CDC Unclear
PDP

COVID-19 quarantine and isolation protocols. CDC guidelines for donning PPE. Testing technique, storage and transport directions for COVID-19. Housing Availability Matrix for FCF, including capacity cells by unit.

Case 2:20-cv-01959-BMS Document 26-8 Filed 05/05/20 Page 4 of 4

Bates/Exhibit # Remick - 22-10 Ex. 3 Remick - 22-11 Ex. 4
Remick - 22-14 Ex. 7 Remick - 22-21 Ex. 14 Remick - 22-26 Ex. 19
Remick - 22-33 Ex. 26 Remick - 22-34 Ex. 27 Remick - 22-35 Ex. 28 Remick - 22-39 Ex. 32 Remick - 22-40 Ex. 33

Exhibit J: Timeline of PDP’s Practices and Policies

Date

From

Content

Undated

PDP

Image of Thermo-Monitoring Station

Undated

PDP

Undated Memo from Deputy Warden Vetter informing PDP staff to announce to inmates that they should sleep head opposite of cell mates and that their masks will be laundered no less than twice a week.

Undated

PDP

Undated

PDP

Undated

PDP

Images of posted signs regarding COVID-19 throughout the Detention Center. Images of posted signs regarding COVID-19 throughout PICC. Images of posted signs regarding COVID-19 throughout unnamed facility.

Undated

PDP

COVID-19 staff screening questionnaire.

Undated
Undated Undated
Undated

PDP
PDP (City) Department of Health
(City) Department of Health

Attachment to inmate questionnaire containing COVID19 questions. A COVID-19 screening questionnaire. Department of Public Health Form of Order to Compel Isolation for COVID patients. Department of Public Health Home Care Instructions for COVID-19.

Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 1 of 15

Declaration of Curran Fromhold Correctional Facility Deputy Warden of Operations William Vetter

Factual Assertion

Response

All inmates at are currently housed in single or On B-Unit, most of the men are double-celled.

double cells. (Vetter Decl. ¶ 11).

(Doyle Decl. ¶ 3, Apr. 30, 2020).

After 17 days in quarantine, I was moved into a room with 3 other men. After 4 or 5 days there, I was moved to a cell with a cellmate. (Weiss Decl. ¶ 5, Apr. 30, 2020).

Most people on my block are double-celled (Skinner Decl. ¶ 6, Apr. 16, 2020).

I have had 5 new cellmates since this outbreak started. (Skinner Decl. ¶ 8, Apr. 28, 2020).

In March, markings were placed on the floor 6 There is no way to maintain a distance of 6 feet feet apart throughout the facility in an effort to apart from your cellmate at all times. (Skinner enforce social distancing. (Vetter Decl. ¶ 17). Decl. ¶ 7, Apr. 16, 2020).

A “minimum of three cells” are allowed out at a time in order to practice social distancing. Inmates are able to shower, make phone calls, and clean their cells when out. This continues until all cells on the unit have been let out. (Vetter Decl. ¶ 20).

15 people are released from their cells at a time. (Doyle Decl. ¶ 9, Apr. 30, 2020).
We have been in lockdown for the past month. We were told that we would be let out twice a day for 15 minutes at a time, this has rarely happened because of staffing shortages. (Skinner Decl. Decl. ¶ 8).

Inmates are able to clean their cells. (Vetter Decl. ¶ 20).

Staff let more than 3 cells out at a time on multiple occasions. (Respondents’ Exs. 5-6, CFCF Logs).
On Wednesday and Saturdays, we are given a spray bottle and a mop to clean our cells with. We all use the same mop, with the same handle and do not have gloves. (Doyle Decl. ¶ 16, Apr. 30, 2020).

Every couple days, the guards pass out spray bottles so we can clean our cells. (Hinton Decl. ¶ 6, Apr. 30, 2020).

1

Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 2 of 15

We have not received any supplies to clean our cell. (Weiss Decl. ¶ 6, Apr. 30, 2020).

I am still not able to clean my cell. Last time I cleaned my cell was in March. (Skinner Decl. ¶ 5, Apr. 28, 2020)

Sanitation/recreation log indicates that during the 3 to 11 shift on April 27, 2020, neither the phones, showers or common areas were cleaned, nor were inmates provided with cleaning materials. (Respondents’ Ex. 5, CFCF Log).

Officers keep paper logs to document cleaning of the housing units, as well as inmate out of cell rotations. (Vetter Decl. ¶ 21 citing Respondents’ Ex. 5, General Population Log for Apr. 27, 2020 and Ex. 6, Intake/Quarantine Log for Apr. 26, 2020).

The only logs provided for 3 days, April 26, 27, and 28th for 2 units of CFCF. These logs indicate regular cleaning did not occur on April 27, 2020. (Respondents’ Ex. 5, CFCF Log).

Inmate workers on each block are given bleach solution and rags and consistently sanitize hard surfaces in the area (tables, door handles, phones, etc). Cleaning is completed no less than 3 times during a shift. (Vetter Decl. ¶ 22)

Common areas are cleaned once a day. (Hinton Decl. ¶ 5, Apr. 30, 2020).
Block workers clean the block 2 to 4 times per day. (Skinner Decl. ¶ 11, Apr. 16, 2020).

Showers and phones are cleaned after each use Phones and showers are not bleached or

and logged. (Vetter Decl. ¶ 23)

disinfected between uses. (Doyle Decl. ¶¶ 11-

12, Apr. 30, 2020).

Phones are cleaned once a day, not between uses. (Hinton Decl. ¶ 5, Apr. 30, 2020).

Showers are not cleaned with disinfectant. (Hinton Decl. ¶ 6, Apr. 16, 2020)

8 showers are shared by 70 people. The showers are cleaned once per week, not after each use. (Skinner Decl. ¶ 17, Apr. 28, 2020)

Logs confirm that showers and phones are not routinely cleaned after use. (Respondents’ Exs. 5-6).

2

Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 3 of 15

To maintain social distancing, only the first and last phones are used. (Vetter Decl. ¶ 24).

There are 7 phones right next to each other, we are permitted to use all of them at the same time. We have to stand sideways to avoid touching the person using the phone next to us. (Doyle Decl. ¶ 10, Apr. 30, 2020).

Everyone uses the phones at the same time, standing right next to each other. (Hinton Decl. ¶ 4, Apr. 30, 2020).

Officers also reinforce these messages [about hygiene and social distancing] to inmates during their shifts. (Vetter Decl. ¶ 29).

Sometimes all 6 phones are in use and that means 6 people are standing right next to each other. (Weiss Decl. ¶ 8, Apr. 30, 2020).
No one talked to me about maintaining distance from other people. (Weiss Decl. ¶ 5, Apr. 30, 2020).

Logs do not indicate that officers reinforce these messages during their shifts. (Respondents’ Exs. 5-6, CFCF Logs).

Inmates are only permitted to leave their cell if wearing masks. (Vetter Decl. ¶ 37).

We are told to wear masks out of our cells, but staff do not enforce this. When out of their cells, men play cards and watch television without masks. (Doyle Decl. ¶ 14, Apr. 30, 2020).

Inmates must put their masks in their mesh laundry bags to be washed. Laundry is collected twice a week from inmates, and is done at high heat with bleach to disinfect laundered materials. (Vetter Decl. ¶ 39).

I have not received clean laundry since March. I have to clean my own clothes and bedsheets by hand. (Skinner Decl. ¶ 4, Apr. 28, 2020).

CFCF has a large supply of antibacterial bar soap that is issued to inmates free of charge when requested. (Vetter Decl. ¶ 40).

I have not had soap since April 28, 2020 and I do not have money to purchase soap from the commissary. When I asked a guard for soap, they told me to ask a sergeant or a lieutenant so they could “check my books.” (Doyle Decl. ¶ 5, Apr. 30, 2020).

I receive one small bar of soap per week, it does not last a week. (Hinton Decl. ¶ 7, Apr. 30, 2020).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 4 of 15

To get soap to wash my hands and body, I have to purchase it from commissary. (Skinner Decl. ¶ 15, Apr. 16, 2020).

Last week, my cellmate got a free bar of soap, before that he could not get free soap. (Skinner Decl. ¶ 2, Apr. 28, 2020).

Members of the medical staff round on the units daily, as medical services are being provided at cell-side. This provides the inmates an opportunity to be seen routinely by medical providers. (Vetter Decl. ¶ 41)

I put in three sick calls about severe pain in my abdomen. I did not get a response. I also reported it to the nurse who passes out medications daily, no one followed up. (Hinton Decl. ¶¶ 8-9, Apr. 30, 2020)

I put in medical slips asking for a new nebulizer, despite being told I would receive one. I have not received a new nebulizer and the current one is almost empty. (Skinner Decl. ¶ 7, Apr. 28, 2020).

The medical professionals decide the process by which quarantine is implemented. Medical staff identify which individuals and/or units are placed in quarantine and when those individuals and/or units are taken off of quarantine. (Vetter Decl. ¶ 44)

Staff check temperatures once a week, and do not check everyone on the unit. The last time I had my temperature checked was a month ago. (Doyle Decl. ¶ 17, Apr. 30, 2020).
I was not seen by a doctor or medically evaluated before being released from quarantine. (Hinton Decl. ¶ 2, Apr. 30, 2020)

CFCF has a capacity of 2976. The current population is 1787. (Vetter Decl. ¶ 5-6). B-1 is the intake area for newly admitted inmates. Each unit within B-1 is able to hold 108 inmates. CFCF has 32 housing units - each of which has 32 cells and 3 multi-purpose rooms. (Vetter Decl. ¶ 9-11)

The exhibits to Respondents’ brief do not demonstrate how inmates are housed within each unit. People appear more closely housed in C and D pod - where between 50 and 80 people are listed as being in each pod. (See Respondents’ Ex. 23).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 5 of 15

Declaration of Detention Center Deputy Warden of Operations and Acting Warden Pierre Lacombe

Factual Assertion

Response

On A, B, and C block, one cell of two inmates is allowed out at a time to shower and make phone calls. This is done to allow for social distancing. Inmates sign a logbook to document this. (Lacombe Decl. ¶ 13 citing Respondents’ Ex. 8, A-Block Logbook).

People were not allowed out of their cell at all on April 19, 20, and 21, 2020. (Respondents’ Ex. 8).
3 to 4 inmates were allowed out at the same time. (Respondents’ Ex. 8)

Inmates are routinely provided disinfectant to No one has cleaned his cell since he has been

clean their cells. (Lacombe Decl. ¶ 16)

there. No access to cleaning products.

(Dantzler Decl. ¶ 6, Apr. 16, 2020)

In the dormitories, dayrooms and annexes, disinfectant spray bottles are given to each section at the beginning of each shift to disinfect the section, including showers, phones, bathroom toilet, and sinks. This is documented in the Sanitation Book. (Lacombe Decl. ¶ 17 citing Respondents’ Ex. 9, DC General Inspection Cleaning Protocol, Apr. 17, 2020; Ex. 10, Sanitation Book Sample)

Showers and toilets are only cleaned once in the morning. Phones are not cleaned between each usage. (Alejandro Decl. ¶¶ 9, 10, Apr. 15, 2020)
My dorm is cleaned once in the morning. Phones are cleaned one or two times per day. No access to cleaning supplies because he is not a block worker. (Remick Decl. ¶ 7, Apr. 29, 2020).

DC cleaning protocol implemented 4/17 -after we asked to talk to 30 plus people. (Respondents’ Ex. 9)

Logs reveal that inmate showers, toilets, and phones were not cleaned on April 12, 13, and 14, 2020. (Respondents’ Ex. 10).

On the blocks and first and second floors of the Health Services Wing, at the beginning of each shift, spray bottles are given to each cell to be disinfected. Ten cells at a time are provided with spray bottles and each cell has approximately 30 minutes to clean their cells. This is documented in the Sanitation Book. (Lacombe Decl. ¶ 18 citing Ex. 9, DC General Inspection Cleaning Protocol, Apr. 17, 2020; Ex. 11, PHSW Cleaning Log Sample).

No one has cleaned his cell since he has been there. No access to cleaning products. (Dantzler Decl. ¶ 6, Apr. 16, 2020).
Nothing documented regarding provision of cleaning products to inmates on April 22, 2020. (Respondents’ Ex. 11).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 6 of 15

Social distancing within DC has been considerably assisted by the decrease in population. (Lacombe Decl. ¶ 21).

Even at only half of capacity, the beds in Qdorm are still within three feet of each other and it is impossible for us to stay 6 feet apart from each other. (Remick Decl. ¶ 7, Apr. 16, 2020). Everyone in Q-dorm was recently moved to I-dorm, making social distancing even more difficult. (Remick Decl. ¶ 4, Apr. 29, 2020).

I am currently housed with 31 other inmates and it is still not possible to stay 6 feet apart. (Alejandro Decl. ¶ 5, Apr. 15, 2020).

A laundry officer makes rounds weekly. The There has not been laundry for the past week

officer collects all masks for laundering and in and a half. (Remick Decl. ¶ 8, Apr. 29, 2020).

exchange provides a clean mask to each

inmate. (Lacombe Decl. ¶ 34).

The Philadelphia Department of Health

recommends that masks be laundered every

day. (Discovery D0075).

DC has a large supply of antibacterial bar soap that is issued to inmates free of charge when requested. (Lacombe Decl. ¶ 35).

Officers have never given me soap; I have to buy it myself. (Dantzler Decl. ¶ 8, Apr. 16, 2020).

Soap handed out only once per week and if it does not last. (Remick Decl. ¶ 17, Apr. 16, 2020). More soap has been handed out recently but it is still inconsistent. I heard guards denying someone’s request for soap. (Remick Decl. ¶ 3, Apr. 29, 2020)

On March 31, 2020, cloth masks were first distributed to DC staff. On April 2, 2020, a second mask was distributed to DC staff. (Lacombe Decl. ¶ 37).

Everyone is supposed to get soap on Monday, but it doesn’t actually happen. I asked for soap once and was told that I couldn’t get it. (Alejandro Decl. ¶ 12, Apr. 15, 2020).
A doctor comes to my cell every week but does not always wear a mask. Officers do not always wear masks. (Dantzler Decl. ¶¶ 10, 11, Apr. 16, 2020).

Officers sometimes remove their masks when they are on the dorm. (Remick Decl. ¶ 15, Apr. 16, 2020).
Medical staff at DC decide how quarantine is People who had been housed with sick people implemented. Medical staff identify which are moved between dorms without quarantine

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 7 of 15

individuals and/or units are placed in quarantine and when those individuals and/or units are taken off of quarantine. (Lacombe Decl. ¶ 38).

of the entire dorm. A newly admitted person was brought to my unit after only 7-10 days in quarantine. (Remick Decl. ¶¶ 9-11, 16, Apr. 16, 2020).

I have had symptoms of coronavirus but was told that I would not be tested because I did not have a fever. I have heard that other sick people are not being tested. (Remick Decl. ¶¶ 5-6, Apr. 29, 2020).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 8 of 15

Declaration of Philadelphia Industrial Correctional Center Deputy Warden of Operations Norman Williams

Factual Assertion

Response

Most of the cells in PICC hold two people. People are double celled for physical or mental health reasons. (Williams Decl. ¶ 10).

I am currently on H-1 unit with approximately 100 other people on the unit. The unit is mostly full and generally, we are all doublecelled. (Abdullah Decl. ¶ 7, Apr. 16, 2020).

Tape was placed on the floor in the housing areas to help with social distancing. (Williams Decl. ¶ 14).

Most of the people on the block are doublecelled. (Bethea Decl. ¶ 10, Apr. 17, 2020).
I have not received any information on how to stay safe from the coronavirus. (Bethea Decl. ¶ 23, Apr. 17, 2020).

When we are out of our cells, there is no enforcement of social distancing. (Abdullah Decl. ¶ 16, Apr. 16, 2020).

The phones are very close together, close enough that when I am standing in front of one phone, I can touch the phone next to it. Whenever I use the phone, I am within 2 feet of another person. (Abdullah Decl. ¶ 17, Apr. 16, 2020).

When you use the phone, you are locked in a cage with the phone. You are about 3 feet away from the person next to you who is in his own cage with a phone. Every time you use the phone, you are within 6 feet of another inmate. (Bethea Decl. ¶ 14, Apr. 17, 2020).

When we use the phones, we are required to leave an empty phone between us, but we are still only about 2 feet apart from each other. (Matthews Decl. ¶ 15).

When we are out of our cells, there is no enforcement of social distancing. (Abdullah Decl. ¶ 16, Apr. 16, 2020).

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In order to ensure that inmates remain physically distant from each other, four cells are released at a time for phone calls and showers. This is designed to permit fifteen minutes for each activity, and it is logged at the unit level. (Williams Decl. ¶ 21).

We are only allowed out of our cells for 15-20 minutes once every 3-4 days. (Abdullah Decl. ¶ 10, Apr. 16, 2020).
Due to a staffing shortage, there are many days that the officers have not let us out of our cells at all. I last showered 4 days ago. I last used the phone 2 or 3 days ago. (Bethea Decl. ¶ 12, Apr. 17, 2020).

When there are enough officers, we are allowed out 5 cells at a time. (Bethea Decl. ¶ 13, Apr. 17, 2020).

We are now getting out of our cells almost every day, generally for about 30 minutes. The last day I did not get out of my cell was one day last week. (Abdullah Decl. ¶ 3, May 1, 2020).

Inmates who work as cleaners are directed to clean the showers and phones after each use. (Williams Decl. ¶ 22).

As of the date of my release [April 28, 2020], the people on my block were getting out-ofcell time for only 20 minutes per day and that did not occur every day due to staffing shortages (so we were told). We had to choose between using the shower and using the phone. (Bethea Decl. ¶ 6, Apr. 29, 2020).
Phones are cleaned only once per day. They are not cleaned between each usage. (Bethea Decl. ¶ 14, Apr. 17, 2020).

The showers are cleaned only once per day and not between each usage. (Bethea Decl. ¶ 15, Apr. 17, 2020).

The phones are sometimes, but not always, wiped down between each use. (Abdullah Decl. ¶ 8, May 1, 2020).

Staff clean the cells with disinfectant or assign inmates to do so. To the best of my knowledge, this is done daily. (Williams Decl. ¶ 24 citing Ex. 16, PICC FGH1 AUX 3 Cleaning Log for Apr. 27, 2020)

I have not been able to clean my cell for the entire time I have been on lockdown. I have not received any cleaning supplies for my cell. (Abdullah Decl. ¶ 15, Apr. 16, 2020).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 10 of 15

Before the lockdown began, we were able to clean our cell once every week. For the past month, we have not been able to clean our cells. I asked the officers for bleach and disinfectant and they refused to give any to me. (Bethea Decl. ¶ 11, Apr. 17, 2020).

My cell on K-Block was filthy, and the walls were very dirty. I was given a small amount of disinfectant spray and some paper towels to clean it with. I asked staff for additional materials to clean my cell with but was not given anything else. (Matthews Decl. ¶ 13, Apr. 30, 2020).

As of the date of my release [April 28, 2020], I had not cleaned my cell in approximately two months. I asked if I could have cleaning supplies and clean my cell, but was told that I could not because there were not enough guards. (Bethea Decl. ¶ 5, Apr. 29, 2020).

Staff “are adamant about wearing their masks.” (Williams Decl. ¶ 32).

Staff sometimes, but not always, wear masks. Some staff approach and talk to inmates without masks on. (Abdullah Decl. ¶ 19, Apr. 16, 2020).

On April 15, while I was on the phone, a Major approached me without a mask on. He got right in my face, close enough to touch me, and told me to get off the phone. (Abdullah Decl. ¶ 20, Apr. 16, 2020).

Most staff members are wearing masks, but some of them pull them down when they talk to inmates. (Abdullah Decl. ¶ 9, May 1, 2020).

Inmates are reminded about safety measures like proper handwashing, wearing masks and maintaining social distance. PSAs are played on the PDP channel from 8:30-10:00am every day. Announcements are also broadcast every two hours over the PA system. (Williams Decl. ¶¶ 33-35).

I have not received any information on how to stay safe from the coronavirus. (Bethea Decl. ¶ 23, Apr. 17, 2020).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 11 of 15

Inmates received their first mask on April 3, 2020, and a second mask is being distributed at this time. Inmate laundry is done once a week. Inmates place their articles into mesh bags that are washed, dried and returned to them. (Williams Decl. ¶¶ 37-38 citing Ex. 18, PICC Laundry Exchange Log).

I received one cloth mask made out of bedsheet material. I received that mask on March 23. I received no instructions on how to clean this mask. (Abdullah Decl. ¶ 14, Apr. 16, 2020).
I received one cloth mask about three weeks ago. I have not received a replacement. I have washed the mask as best I can in the sink in my cell. (Bethea Decl. ¶ 18, Apr. 17, 2020).

A few days after I gave my declaration of April 17, I was given a second face mask. After I got the second mask, I was able to wear one mask while washing the other mask. I was only able to wash my mask in the sink in my cell using the same bar soap that I used to shower and clean myself. (Bethea Decl. ¶ 3, Apr. 29, 2020).

Medical care and meals are both provided on the unit. (Williams Decl. ¶ 43).

As of the date of my release [April 28, 2020], I had been using the same towel and sleeping on the same sheets for roughly two months. There had been no laundry for roughly that time period. I even had to wash my underwear in the sink in my cell using the same bar soap that I bought from commissary. (Bethea Decl. ¶ 4, Apr. 29, 2020).
I have asthma, and had four asthma attacks during the week of April 6, 2020 alone. My inhaler is not working. After one of my asthma attacks, medical staff came and checked me but refused to give me a breathing treatment. They told me the droplets from the breathing treatment could spread the virus. (Abdullah Decl. ¶ 2, Apr. 16, 2020).

Last week, I had chills. I could not taste or smell and had difficulty breathing. I put in a sick call request detailing my symptoms. Medical staff came and checked my temperature, but told me I did not have a fever. (Abdullah Decl. ¶ 4, Apr. 16, 2020).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 12 of 15

Inmates have free access to bar soap. Any inmate can request a bar of soap and be provided with one. (Williams Decl. ¶ 44).

I have asked to go to medical, but those requests have been denied. I understand that the medical staff have stopped taking all sick calls. (Bethea Decl. ¶ 5, Apr. 17, 2020).
I have one bar of soap that I purchased from commissary but no hand soap. The officers are supposed to give out soap every week but they do not do so. (Abdullah Decl. ¶ 13, Apr. 16, 2020).
I have to buy soap from the commissary. Over the past 2 months, I have run out of soap 2 to 3 times. When that happened, I asked officers for soap but they said they did not have any. I had to wait for my family to put money on my books before I could get soap. During those times, I had to use just water to clean myself. (Bethea Decl. ¶ 16, Apr. 17, 2020).
On April 23, 2020, everyone on my unit got 2 bars of soap. We did not receive any soap this week. (Abdullah Decl. ¶ 4, May 1, 2020).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 13 of 15

Declaration of Riverside Correctional Facility Deputy Warden of Operations James McCants

Factual Assertion

Response

RCF is single celling inmates as much as possible. Double-occupancy cells are necessary at times for mental and physical health issues. (McCants Decl. ¶ 10).

E Unit has about 60 other people. While the unit is less than half-full, the staff has moved us all into the bottom tier of the unit, leaving the top tier empty. Many people on the unit are double-celled. (Diaz Decl. ¶ 6, Apr. 16, 2020; Walker Decl. ¶ 6, Apr. 16, 2020).

In March, markings were placed on the floor 6 feet apart to ensure social distancing. These floor markings are in administrative and visiting lobbies, the area outside of our elevators, housing areas and social services. (McCants Decl. ¶ 13).

Some staff try to enforce social distancing but others do not. There are distance markers on the floor but no instructions on how to use them. (Diaz Decl. ¶ 10, Apr. 16, 2020).

Inmates are allowed out of their cells in small groups so there is safe social distancing. (McCants Decl. ¶ 15)

While most of us try to abide by social distancing, it is impossible do so when using the phones as they are less than 2 feet apart. When we use the phones we must stand elbow to elbow. (Diaz Decl. ¶ 11, Apr. 16, 2020). Cannot social distance when using the phones. Phones are less than 2 feet apart. (Walker Decl. ¶ 10, Apr. 16, 2020).

10 to 15 inmates are out of their cells at a time so we can ensure everyone has the opportunity to get out, shower, make phone calls and clean up. This is reflected in logs kept by correctional officers. (McCants Decl. ¶ 15 citing Respondents’ Ex. 21, RCF Logbook Example, Apr. 27, 2020).

Generally, we are let out of cells for about 1520 minutes. It has been weeks since we were let into the yard. (Diaz Decl. ¶ 8, Apr. 16, 2020; Walker Decl. ¶ 9, Apr. 16, 2020).

“Areas and surfaces” are cleaned “at least twice during a shift.” (McCants Decl. ¶ 16 citing Respondents’ Ex. 22, RCF Cleaning Book Examples, Apr. 26-27, 2020).

We generally try to clean the phones after every use with disinfectant that staff gives us. The staff do not require that we clean the phones, nor does the staff clean the phones for us, but we do it on our own initiative. (Diaz Decl. ¶ 11, Apr. 16, 2020).

Showers are shared. Showers are cleaned twice a day, but not after every use. (Diaz Decl. ¶ 12, Apr. 16, 2020; Walker Decl. ¶ 11, Apr. 16, 2020).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 14 of 15

Logs indicate failure to clean showers and phones on several days. (Respondents’ Ex. 22).

If an inmate would like to clean their cell, they Spray bottles are passed out every few days to are provided with cleaning supplies. (McCants clean cells. (Benn Decl. ¶10, Apr. 30, 2020). Decl. ¶ 17).

Free soap is available to any inmate that requests it. In response to complaints about a lack of soap, the Warden directed that every inmate be provided a bar of soap without a request. (McCants Decl. ¶¶ 34-5).

I had to buy soap from commissary because the soap provided is not enough. (Walker Decl. ¶ 13, Apr. 16, 2020).

On March 31, 2020, cloth masks were distributed to RCF staff. On April 6, 2020, staff received a second distribution of cloth masks. Staff are instructed to launder their masks themselves between uses. (McCants Decl. ¶ 36).

Some staff wear masks and others do not. Multiple sergeants have visited our unit without masks. (Diaz Decl. ¶ 14, Apr. 23, 2020).
There are 2 sergeants who consistently do not wear a mask when they enter the unit. (Walker Decl. ¶¶ 5-6, Apr. 30, 2020).

Some COs are still not wearing masks. The week 4/30/20, I saw sergeants and lieutenants not wearing masks. (Diaz Decl. ¶ 7, Apr. 30, 2020).

Cloth masks were distributed to RCF inmates on a rolling basis. By April 15, 2020, every inmate had a mask, and by April 22, 2020, every inmate had two masks. (McCants Decl. ¶¶ 37-38).

We received masks but no instructions on how to clean them. (Diaz Decl. ¶ 13, Apr. 23, 2020).

As of April 29, 2020, there are not any quarantined units at RCF. The medical professionals decide the process by which quarantine and/or isolation are implemented. Medical staff identify which individuals and/or units are placed in quarantine and/or isolation and when those individuals and/or units are taken off. (McCants Decl. ¶ 41).

“At least four people on my unit have had symptoms of COVID-19, including loss of sense of taste, burning nostrils, and waking up in sweats. None of those people have been medically isolated or tested.” (Diaz Decl. ¶ 15, Apr. 23, 2020).
“I know that two women on my unit had fevers but the staff did not take them off the unit. Instead, they were just told to stay in their cells.” (Walker Decl. ¶ 16, Apr. 16, 2020).

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Case 2:20-cv-01959-BMS Document 26-9 Filed 05/05/20 Page 15 of 15 I started to feel sick on March 25, 2020, starting with a dry cough and trouble breathing. I put in 5-6 sick call slips but was not taken seriously. Nine days later, on April 3, 2020, someone took her temperature. I was tested and a few days later learned that I had tested positive. (Benn Decl. ¶¶ 4-7, Apr. 30, 2020). I was brought back to general population after 13 days in medical quarantine, but did not feel completely healthy and still have bad headaches. (Benn Decl. ¶ 9, Apr. 30, 2020).
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Declarations of PDP Chief of Medical Operations, Bruce W. Herdman and Site Medical Director for Curran-Fromhold Correctional Facility, Dr. Lalitha
Trivikram

Factual Assertion
All PDP staff must wear masks inside facility. (Herdman Decl. ¶ 17).

Response
Prior to Filing of Litigation Staff sometimes, but not always, wear masks. Some staff approach and talk to inmates without masks on. (Abdullah Decl. ¶ 19, Apr. 16, 2020). On April 15, while I was on the phone, a Major approached me without a mask on. He got right in my face, close enough to touch me, and told me to get off the phone. (Abdullah Decl. ¶ 20, Apr. 16, 2020).

Doctor performing weekly visits “does not always wear a mask” and staff staff “do not always” wear their masks. (Danztler Decl. ¶¶ 10-11, Apr. 16, 2020).

“The officers wear masks most of the time but there have been occasions when I have seen them interacting with incarcerated people while not wearing masks.” (Hinton Decl. ¶ 12, Apr. 16, 2020).

“Some staff wear masks and others do not. Multiple sergeants have visited our unit without masks.” (Diaz Decl. ¶ 14 Apr. 16, 2020).

“While I see officers with masks on when they are coming into or leaving our dorm, officers will sometimes remove their masks once they are on our dorm and are staying for a shift.” (Remick Decl. ¶ 15, Apr. 16, 2020).

Updated Declarations Most staff members are wearing masks, but some of them pull them down when they talk to inmates. (Abdullah Decl. ¶ 9, May 1, 2020).
Some staff members were still not wearing masks, and Diaz reported seeing “sergeants and lieutenants on my unit with no masks on” the week of April 30, 2020 (Diaz Decl. ¶ 7, Apr. 30, 2020).

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“There are two sergeants who almost never wear masks when they come on our unit. Some correctional officers also do not wear face masks. Right now, as I give this declaration, there is a correctional officer talking to the social worker with no mask on.” (Walker Decl. ¶¶ 5-6, Apr. 30, 2020).

Staff in isolation areas must wear a respirator, gown, eye protection, and gloves. (Herdman Decl. ¶ 20).

“On the isolation unit, the medical staff wore fullbody protective gear and had their faces fully covered with masks, but some of the non-medical staff had only cloth masks and no other personal protective equipment.” (Matthews Decl. ¶ 9, Apr. 30, 2020).

All incarcerated people must wear a “Some inmates are not wearing their masks when

mask outside of cell. (Herdman Decl. ¶ they’re out of their cells.” (Walker Decl. ¶ 4, Apr.

23).

30, 2020).

All new admits are quarantined for 14 days in designated housing units. (Herdman Decl. ¶ 38).

“We were told to wear our masks when we are out of our cells, but once we’re out staff do not enforce mask-wearing. Men sit on chairs right next to each other without masks on, playing cards or watching television.” (Doyle Decl. ¶ 14, Apr. 30, 2020).
“Someone came onto our block from the quarantine unit and told us he had been there for between 7 and 10 days. I thought people were supposed to be quarantined for 14 days when they arrived at the prison.” (Remick Decl. ¶ 16, Apr. 16, 2020).

“The officers continually bring newly admitted people onto my block. I have heard that the jail would keep people in the quarantine unit for 14 days after they were admitted to the jail, but the officers brought 8 new people onto my block after only 7 days of being quarantined.” (Skinner Decl. ¶ 19, Apr. 15, 2020).

Assertions Regarding Onset of Symptoms If someone in quarantine becomes symptomatic, they are placed in isolation and tested for COVID. If test positive, all others in their ‘cohort’

Declarant observed that inmates were sick and people were moving between dorms with ill people without full isolation or quarantine of the entire dorm. (Remick Decl. ¶¶ 9–11, 16, Apr. 16, 2020).
People in housing unit were getting sick and not being teste, nor were they being isolated or

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Case 2:20-cv-01959-BMS Document 26-10 Filed 05/05/20 Page 3 of 4

must restart the 14-day quarantine period. (Herdman Decl. ¶ 41).
The unit/cohort is released from quarantine after the last patient to test positive from the unit/cohort completes his/her fourteen day isolation.” (Trivikram Decl. ¶ 29).
“Patients are placed in isolation when they present with either fever or symptoms consistent with possible COVID infection. A nasopharyngeal swab is obtained to test for COVID infection.” (Trivikram Decl. ¶ 9) (emphasis added).

quarantined from others on the unit. (Remick Decl. ¶¶ 5–6, Apr. 29, 2020). “Last week, I had chills. I could not taste or smell and had difficulty breathing. I put in a sick call request detailing my symptoms. Medical staff came and checked my temperature, but told me I did not have a fever. The staff offered me Tylenol and Robitussin, but I declined.” (Abdullah Decl. ¶ 4, Apr. 16, 2020). Declarant was neither tested for COVID-19 nor medically isolated (Abdullah Decl. ¶ 6, Apr. 16, 2020).
“At least four people on my unit have had symptoms of COVID-19, including loss of sense of taste, burning nostrils, and waking up in sweats. None of those people have been medically isolated or tested.” (Diaz Decl. ¶ 15, Apr. 23, 2020).

“I know that two women on my unit had fevers but the staff did not take them off the unit. Instead, they were just told to stay in their cells.” (Walker Decl. ¶ 16, Apr. 16, 2020).

Yavette Benn started to feel sick on March 25, 2020, starting with a dry cough and trouble breathing. She put in 5-6 sick call slips but was not taken seriously. Nine days later, on April 3, 2020, someone took her temperature. She and several other women, running temperatures, were taken off the block. She was tested and a few days later learned that she tested positive. (Benn Decl. ¶¶ 4-7, Apr. 30, 2020).

“On April 16, 2020, the officers took 3 men off the block on stretches and took 4 men off the block in wheelchairs. They all looked really sick. They were brought back onto the block after a few hours. I have no idea if they were tested for coronavirus.” (Bethea Decl. ¶ 20, Apr. 17, 2020).

“I hear a lot of coughing in my unit and think at least 3 people may be sick. I have not seen or heard anything about the medical department evaluating them.” Also reports no testing on unit. (Alejandro Decl. ¶¶ 17-18, Apr. 16, 2020).

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After moving into I-Dorm, Remick was told that “at least three people there were feeling sick and losing their sense of smell and taste.” (Remick Decl. ¶ 5, Apr. 29, 2020). The person who told Remick this was later sent to medical, but was never tested because he did not have a fever. (Remick Decl. ¶ 5, Apr. 29, 2020).

Asymptomatic individuals can be released from quarantine if no symptoms developed during 14 day period. (Herdman Decl. ¶ 44).

Hinton reports being released from quarantine without seeing a doctor or or being medically evaluated before being released from quarantine. (Hinton Decl. ¶ 2, Apr. 30, 2020)

Confirmed positive cases may be removed from quarantine after 14 days if their symptoms abate and they are afebrile for at least 3 days. (Herdman Decl. ¶ 44).

Benn was brought back to general population after 13 days in medical quarantine, at which time she did not feel completely healthy and still has bad headaches. (Benn Decl. ¶ 9, Apr. 30, 2020).

Those who test positive are placed in isolation for 14 days and must be afebrile for 3 days and have improving respiratory symptoms to be discharged from isolation. (Herdman Decl. ¶ 50).
“In all instances, medical staff determines whether the inmate can be discharged from isolation.” Trivikram Decl. ¶ 16.

“On April 28, 2020, after 14 days on the insolation unit, I was transferred back to K-Block. At this time, I was still coughing and experiencing some body soreness. I was not re-tested for coronavirus before being transferred out of the isolation unit.” (Matthews Decl. ¶ 12, Apr. 30, 2020).
“Two men on the block said they they had been tested and tested positive for the coronavirus. They are still on my block and come out of their cells with others.” (Bethea Decl. ¶ 21, Apr. 17, 2020).

“I know one inmate who was transferred to our unit after being quarantined in the COVID trailers for only 14 days. He had tested positive for coronavirus and staff moved him to our unit without a second test to confirm that he was virus-free.” (Abdullah Decl. ¶ 20, Apr. 16, 2020).

“As of the date of my release, there were approximately 20 people on my unit who said they had tested positive for COVID-19. They received out-of-cell time with other people who had not tested positive.” (Bethea Decl. ¶ 7, Apr. 29, 2020).

4

Case 2:20-cv-01959-BMS Document 26-11 Filed 05/05/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF JOSEPH WEISS OF APRIL 30, 2020 JOSEPH WEISS, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. My last declaration was given on April 16, 2020, from the Curran-Fromhold Correctional Facility. I give this declaration as an update to my earlier declaration.
2. I spent seventeen days in quarantine. The first several days of quarantine, I was in a multipurpose room with two other men. After one of the other men ran a fever, I was transferred to a cell by myself.
3. After seventeen days, I was moved into general population. I was initially housed in a multipurpose room on a top tier with three other men. The other men had been in that multipurpose room for about week before I got there.

Case 2:20-cv-01959-BMS Document 26-11 Filed 05/05/20 Page 2 of 2
4. I complained about being on the top tier because of my injured leg and mobility issues. After about four or five days, I was moved to a cell on the bottom tier. I have one cellmate.
5. No one has talked to me about maintaining distance from other people. I spend most of my time on my bunk because of my leg. My cellmate spends most of the day sitting at the desk. The desk is about three feet away from my bunk.
6. We have not been given any supplies for cleaning our cell. 7. We are let out of our cells most days. We are usually let out for about fifteen minutes but
today we were let out for almost twenty-five minutes. 8. They generally let out six people at a time. There are six phones and they are about a foot
apart. Everyone rushes to use the phones to make sure that they have enough time to call their families. Sometimes all six phones are in use and that means that six people are standing right next to each other.
I, Hayden Nelson-Major, certify that Joseph Weiss relayed the above information to me over the phone on April 30, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Because Mr. Weiss is incarcerated, the finished declaration has not been reviewed with Mr. Weiss.
/s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 HNelson-Major@aclupa.org Dated: April 30, 2020

Case 2:20-cv-01959-BMS Document 26-12 Filed 05/05/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF JOSEPH SKINNER OF APRIL 28, 2020 JOSEPH SKINNER, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. My last declaration was given on April 15, 2020, from the Curran-Fromhold Correctional Facility (“CFCF”). I give this update as an update to that declaration.
2. Last week my cellmate was able to get a bar of free soap. Before that he could not get free soap.
3. Last week I was given a second face mask so I now have two cloth face masks. I was washing my mask by hand in my cell sink using the bar soap that I buy from commissary. This is the same soap I use to clean myself.

Case 2:20-cv-01959-BMS Document 26-12 Filed 05/05/20 Page 2 of 2
4. I have to clean my clothes and bedsheets by hand. We haven’t had any clean laundry since March.
5. I still have not been able to clean my cell. I was last able to clean my cell in March. 6. We are getting out once or twice a day for 15 minutes only. 7. I have been trying to use my rescue inhaler sparingly because I’m worried about not being
able to get another one. I’ve put in medical slips to ask for a new inhaler and I was told that I would receive one. However, I still have not and my current inhaler is almost empty. 8. I have had five new cellmates since this outbreak started.
I, Susan Lin, certify that Joseph Skinner relayed the above information to me over the phone on April 28, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Because Mr. Skinner is incarcerated, the finished declaration has not been reviewed with Mr. Skinner.

Dated: April 28, 2020

/s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 slin@krlawphila.com

Case 2:20-cv-01959-BMS Document 26-13 Filed 05/05/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF JAMES BETHEA OF APRIL 29, 2020 JAMES BETHEA, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. My last declaration was given on April 17, 2020, from the Philadelphia Industrial Correctional Center (PICC).
2. On the evening of April 28, 2020, I was released from custody. I give this declaration as an update to my last declaration.
3. A few days after I gave my declaration of April 17th, I was given a second face mask. After I got the second mask, I was able to wear one mask while washing the other mask. I was only able to wash my face mask in the sink in my cell using the same bar soap that I used to shower and clean myself. It was the same bar soap that I bought from commissary.

Case 2:20-cv-01959-BMS Document 26-13 Filed 05/05/20 Page 2 of 2

4. As of the date of my release, I had been using the same towel and sleeping on the same sheets for roughly two months. There had been no laundry for roughly that time period. I even had to wash my underwear in the sink in my cell using the same bar soap that I bought from commissary.
5. As of the date of my release, I had not cleaned my cell in approximately two months. I asked if I could have cleaning supplies and clean my cell, but was told that I could not because there were not enough guards.
6. As of the date of my release, the people on my block were getting out-of-cell time for only 20 minutes per day and that did not occur every day due to staffing shortages (so we were told). We had to choose between using the shower and using the phone.
7. As of the date of my release, there were approximately 20 people on my unit who said they had tested positive for COVID-19. They received out-of-cell time with other people who had not tested positive.
I, Susan Lin, certify that James Bethea relayed the above information to me over the phone on April 24, 2020 and April 29, 2020 and he gave me permission sign this declaration on his behalf.

Dated: April 29, 2020

/s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 slin@krlawphila.com

Case 2:20-cv-01959-BMS Document 26-14 Filed 05/05/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF THOMAS REMICK OF APRIL 29, 2020 THOMAS REMICK, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. My last declaration was given on April 16, 2020, from the Detention Center (“DC”). I give this declaration as an update to that declaration.
2. Shortly after giving my declaration of April 16, 2020, I received a second face mask. 3. The week of April 16, 2020, staff handed out free soap on two separate days. The following
week, the week of April 20, 2020, staff handed out free soap once. On the Friday of that week, I heard another person ask a staff member for more free soap and the staff member refused. This week, the staff have not given out free soap yet.

Case 2:20-cv-01959-BMS Document 26-14 Filed 05/05/20 Page 2 of 3
4. On Friday, April 24th, everyone in my dorm, Q-dorm, was moved to a different dorm, Idorm. While there were approximately 18 people in Q-dorm, there are approximately 40 people in I-dorm. I-dorm normally holds approximately 60 people. I am unable to stay six feet away from everyone else in I-dorm.
5. I was told by an inmate in I-dorm that at least three people there were feeling sick and losing their sense of smell and taste. This inmate went to medical but he was not tested because he did not have a fever. This inmate went home recently.
6. This past Saturday I started coughing and experiencing chills, headache and fatigue. I could not get out of bed on Sunday. I was told that I could not get tested because I do not have a fever. At least two other people in my dorm are suffering from chills.
7. I-dorm, including the toilets and showers, is only cleaned once in the morning. I have asked the staff for bleach and disinfectant, but I was told that I could not have it because I am not an I-dorm block worker. The phones are only cleaned one or two times per day.
8. We are supposed to be able to get clean laundry (including clean sheets) once a week. I do not always change my sheets because the fresh sheets are still dirty. We have not gotten clean laundry for the past week and a half.
I, Susan Lin, certify that Thomas Remick relayed the above information to me over the phone on April 29, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Because Mr. Remick is incarcerated, the finished declaration has not been reviewed with Mr. Remick.

Case 2:20-cv-01959-BMS Document 26-14 Filed 05/05/20 Page 3 of 3

Dated: April 29, 2020

/s/ Susan M. Lin Susan Lin (PA 94184) KAIRYS, RUDOVSKY, MESSING, FEINBERG, & LIN, LLP 718 Arch Street, Suite 501S Philadelphia, PA 19106 (215) 925-4400 slin@krlawphila.com

Case 2:20-cv-01959-BMS Document 26-15 Filed 05/05/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

:

Plaintiffs-Petitioners,

:

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

Defendants-Respondents.

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF JERMAINE MATTHEWS OF APRIL 30, 2020 JERMAINE MATTHEWS hereby declares that the following is true and correct to the best of his knowledge and belief:

1. I am thirty years old and am currently incarcerated at the Philadelphia Industrial Correctional Center (“PICC”). I have asthma.
2. I am being held as a pretrial detainee because I cannot afford to pay my bail. 3. I am currently housed on K-Block, which is a mental health unit. 4. I have diagnoses of Post-Traumatic Stress Disorder, Major Depressive Disorder, and
Anxiety Disorder. 5. I contracted coronavirus (COVID-19) at PICC. 6. In mid-April, I began experiencing symptoms including body aches, coughing, and fever.

Case 2:20-cv-01959-BMS Document 26-15 Filed 05/05/20 Page 2 of 3
7. After my body temperature was measured at approximately 102 degrees, I was moved from K-Block to another housing unit, which was being used as an isolation unit.
8. I was tested for coronavirus later that day or the next day. 9. On the isolation unit, the medical staff wore full-body protective gear and had their faces
fully covered with masks, but some of the non-medical staff had only cloth masks and no other personal protective equipment. 10. I continued to have a fever for the first few days I was in isolation. 11. I did not receive any medicine while I was on the isolation unit. 12. On April 28, 2020, after 14 days on the isolation unit, I was transferred back to K-Block. At this time, I was still coughing and experiencing some body soreness. I was not retested for coronavirus before being transferred out of the isolation unit. 13. The cell I was transferred into on K-Block was filthy, and the walls were very dirty. I was given a small amount of disinfectant spray and some paper towels to clean it with. I asked staff members for additional materials to clean my cell with but was not given anything else. 14. Prior to going to isolation and since returning from isolation, we are generally let out of our cells for 20-30 minutes twice a day, but sometimes we are only let out once a day. Six people are let out of their cells at a time. 15. When we use the phones, we are required to leave an empty phone between us, but we are still only about 2 feet apart from each other. 16. We are supposed to wear masks when we leave our cells. I received a second mask on April 29, 2020. 17. There is a sink in the dayroom, but there is no soap at this sink.

Case 2:20-cv-01959-BMS Document 26-15 Filed 05/05/20 Page 3 of 3
18. I have enough soap for my own use because I purchase it from commissary. 19. I have a cellmate and staff have instructed us to sleep on our bunk bed in opposite
directions from each other, as a means of social distancing. 20. Being locked in my cell for more than 23 hours a day is making things much worse for
me. I feel depressed, and I feel like I am jumping out of my skin. 21. I am very concerned about my physical health and my mental health if I remain at PICC.

I, Matthew A. Feldman, certify that Jermaine Matthews relayed the above information to me over the phone on April 30, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Because Mr. Matthews is incarcerated, the finished declaration has not been reviewed with Mr. Matthews.

Dated: April 30, 2020

/s/ Matthew A. Feldman
Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 T: 215-925-2966 mfeldman@pailp.org

Case 2:20-cv-01959-BMS Document 26-16 Filed 05/05/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

:

Plaintiffs-Petitioners,

:

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

Defendants-Respondents.

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF SADDAM ABDULLAH OF MAY 1, 2020 SADDAM ABDULLAH, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. My last declaration was given on April 15 and April 16, 2020 from the Philadelphia Industrial Correctional Center (“PICC”). I give this declaration as an update to my earlier declaration.
2. I have received no response to the emergency grievance I filed. 3. We are now getting out of our cells almost every day, generally for about 30 minutes.
The last day I did not get out of my cell was one day last week. 4. On April 23, 2020, everyone on my unit got 2 bars of soap. We did not receive any soap
this week.

Case 2:20-cv-01959-BMS Document 26-16 Filed 05/05/20 Page 2 of 2
5. I got a second mask around the time that the Complaint in this lawsuit was filed, and I got a third mask this week.
6. If people ask to clean their cells, staff give them a spray bottle, and they can wipe down their cells with a paper towel. We are not given brooms or mops.
7. There are seven phones on the unit and, generally, we can only use four of them at a time. Some guards allow all seven to be used at once. Many men are not wearing their masks when they use the phones.
8. The phones sometimes, but not always, get wiped down between each use. 9. Most staff members are wearing masks, but some of them pull their masks down when
they talk to inmates. 10. Staff are taking the temperature of everyone on my unit twice a day.

I, Matthew A. Feldman, certify that Saddam Abdullah relayed the above information to me over the phone on May 1, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Because Mr. Abdullah is incarcerated, the finished declaration has not been reviewed with Mr. Abdullah.

Dated: May 1, 2020

/s/ Matthew A. Feldman
Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 T: 215-925-2966 mfeldman@pailp.org

Case 2:20-cv-01959-BMS Document 26-17 Filed 05/05/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF YAVETTE BENN OF APRIL 30, 2020 YAVETTE BENN hereby declares that the following is true and correct to the best of her knowledge and belief:

1. I am fifty years old and have been held at Riverside Correctional Facility (“RCF”) since January of this year.
2. I am being held as a pretrial detainee charged with robbery. My bail on these charges is set at 10% of $4,000. I am also being held on a probation detainer, as my new charges would constitute a violation of probation if I am found guilty of them.
3. I contracted coronavirus at RCF.

Case 2:20-cv-01959-BMS Document 26-17 Filed 05/05/20 Page 2 of 3
4. I started to feel sick on March 25, 2020. It started with a dry cough. Then I started having trouble breathing. I was very sick and scared. I put in five or six sick call requests but no one took me seriously.
5. On April 3, 2020, someone finally came and took my temperature. They moved me and several other women off the block to a different unit because we were all running temperatures. A nurse swabbed my nose for the coronavirus that day.
6. I was placed in a cell by myself. I was not allowed out of the cell for four days. It was terrible.
7. Several days later, I was told that the test came back positive. 8. The guards took one of the other women out of her cell in the middle of the night because
she was so sick. We later found out that she died. 9. After thirteen days, I was brought back into general population. I did not feel completely
healthy. I am still having bad headaches. 10. Every couple of days they pass out spray bottles so that we can clean our cells. 11. The other day, one of the nurses told me that he tested positive for coronavirus in early
April.
I, Hayden Nelson-Major, certify that Yavette Benn relayed the above information to me over the phone on April 30, 2020 and that she gave me permission to relay this information in a declaration signed on her behalf. Because Ms. Benn is incarcerated, the finished declaration has not been reviewed with Ms. Benn.
/s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102

Case 2:20-cv-01959-BMS Document 26-17 Filed 05/05/20 Page 3 of 3
T: 215-592-1513 HNelson-Major@aclupa.org
Dated: April 30, 2020

Case 2:20-cv-01959-BMS Document 26-18 Filed 05/05/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

:

Plaintiffs-Petitioners,

:

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

Defendants-Respondents.

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF JAY DIAZ OF APRIL 30, 2020 JAY DIAZ, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:

1. My last declaration was given on April 16, 2020 from the Riverside Correctional Facility (“RCF”). I give this declaration as an update and correction to my earlier declaration.
2. The diagnosis I received in December 2018 was for “pre-cancer stage 3” on my cervix and ovaries, not “stage 3 cervical and ovarian cancer.” A LEEP procedure was performed to remove abnormal cells from my cervix.
3. A few days ago, I began experiencing extreme pain in my lower back and thighs, pain and hardness around my bladder, and blood in my stool. I was alarmed and told multiple

Case 2:20-cv-01959-BMS Document 26-18 Filed 05/05/20 Page 2 of 2
staff members about these symptoms. A correctional officer told a nurse, and the nurse told me, “There’s nothing we can do for you.” 4. Finally, today, in the afternoon, I was seen by a doctor. I was tested for a bladder infection and a urinary tract infection and was told I did not have either. Despite still experiencing pain, I was not given any treatment. 5. I am still in a cell by myself, but almost everyone else on my unit has a cellmate. They are being told to sleep in opposite directions on their bunk beds. 6. Within the last week or two, I was given a second mask. 7. Some staff members are still not wearing masks. This week, I have seen sergeants and lieutenants on my unit with no masks on.

I, Matthew A. Feldman, certify that Jay Diaz relayed the above information to me over the phone on April 30, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Because Mr. Diaz is incarcerated, the finished declaration has not been reviewed with Mr. Diaz.

Dated: April 30, 2020

/s/ Matthew A. Feldman
Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 T: 215-925-2966 mfeldman@pailp.org

Case 2:20-cv-01959-BMS Document 26-19 Filed 05/05/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

:

Plaintiffs-Petitioners,

:

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

Defendants-Respondents.

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF NADIYAH WALKER OF APRIL 30, 2020 NADIYAH WALKER, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of her knowledge and belief:

1. My last declaration was given on April 16, 2020 from the Riverside Correctional Facility (“RCF”). I give this declaration as an update to my earlier declaration.
2. Less than a week ago, I was given an asthma pump and started getting Dilantin for epilepsy. I was not receiving either of these medications at the time I gave my previous declaration.
3. I received a second face mask on or around April 22, 2020. 4. Some inmates are not wearing their masks when they are out of their cells. 5. There are two sergeants who almost never wear masks when they come on our unit.

Case 2:20-cv-01959-BMS Document 26-19 Filed 05/05/20 Page 2 of 2
6. Some correctional officers also do not wear face masks. Right now, as I give this declaration, there is a correctional officer talking to the social worker with no mask on.
7. My temperature has not been taken at all since the coronavirus lockdown began.

I, Matthew A. Feldman, certify that Nadiyah Walker relayed the above information to me over the phone on April 30, 2020 and that she gave me permission to relay this information in a declaration signed on her behalf. Because Ms. Walker is incarcerated, the finished declaration has not been reviewed with Ms. Walker.

Dated: April 30, 2020

/s/ Matthew A. Feldman
Matthew A. Feldman (PA 326273) PENNSYLVANIA INSTITUTIONAL LAW PROJECT 718 Arch St., Suite 304S Philadelphia, PA 19106 T: 215-925-2966 mfeldman@pailp.org

Case 2:20-cv-01959-BMS Document 26-20 Filed 05/05/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICAHEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves :

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

Civil Action No. 20-1959 (Schiller, J.)
Filed Via ECF

DECLARATION OF ROBERT HINTON OF APRIL 30, 2020
ROBERT HINTON, one of the Plaintiffs herein, hereby declares that the following is true and correct to the best of his knowledge and belief:
1. My last declaration was given on April 16, 2020 from the Curran-Fromhold Correctional Facility (“CFCF”). I give this declaration as an update to my earlier declaration.
2. I was released from quarantine about five days ago. I was not seen by a doctor or medically evaluated before being transferred out of quarantine.
3. I am currently housed on the C-2 unit. The unit is full and there are two people to every cell.
4. I am let out of my cell for fifteen to thirty minutes most days. They are letting six or seven people out at a time. Everybody wants to use the phones as soon as they are let out

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to make sure they have time to make a call. We have to stand right next to each other when we make calls. 5. Common areas and phones are cleaned once a day. The phones are not cleaned between uses. 6. Every couple of days, the guards pass out spray bottles so that we can clean our cells. 7. We are given one bar of soap a week. It is a small bar and it does not last a week. 8. I am still having a lot of pain on the side of my abdomen. I have put in three sick call requests. I stopped putting in slips because I did not get a response. 9. A nurse comes by every day to pass out medications. When the nurse comes around, I tell the nurse about the pain and they say someone will come see me. No one has come to see me about the pain. 10. If I were released, I would live with my sister at her house. She lives alone.
I, Hayden Nelson-Major, certify that Robert Hinton relayed the above information to me over the phone on April 30, 2020 and that he gave me permission to relay this information in a declaration signed on his behalf. Because Mr. Hinton is incarcerated, the finished declaration has not been reviewed with Mr. Hinton.
/s/ Hayden Nelson-Major Hayden Nelson-Major (PA 320024) AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 60173 Philadelphia, PA 19102 T: 215-592-1513 HNelson-Major@aclupa.org
Dated: April 30, 2020

Case 2:20-cv-01959-BMS Document 26-21 Filed 05/05/20 Page 1 of 2
From: David Rudovsky <drudovsky@krlawphila.com> Sent: Friday, April 24, 2020 5:57 PM To: Craig.Straw@phila.gov; Anne Taylor <anne.taylor@phila.gov>; Su Ming Yeh <smyeh@pailp.org>; Barnett, Ben <Ben.Barnett@dechert.com>; Nyssa Taylor <ntaylor@aclupa.org>; David Rudovsky <drudovsk@law.upenn.edu> Subject: remick
Craig and Anne:
To follow up on our call this afternoon, I list below the steps which I believe the City agreed to take in this phase of the negotiations:
1. We requested the City to review the protective measures we proposed in the Settlement Proposal and inform us (a) which of the general measures listed the City agrees in principle should be in force at PDP; (b) which of these measures have been adopted by the City as official policy (and as noted below, send copies of policies), and (c) which have not been adopted, the reasons and what substitute measures have been implemented, if any. This will allow us to consult with our experts on this issue.
2. Discovery Issues. The City agreed to preserve all electronically stored data and communications.
Plaintiffs’ priorities for discovery: All written policies and protocols related to COVID-19, all implementation memorandum and emails to staff, and all audits or reviews of implementation (RFP 2, 3)
Housing unit population for the 4 jails (dorm or cells; double or single cell occupancy) (Rog 5)
Quarantine and Isolation Units: where, capacity, current population (Rog 6, 7)
List of vulnerable population, with PP number
Dr. Herdman’s and the City's Health Commissioner's recommendations on COVID-19 (RFP 14). This relates to a larger and very important issue that we discussed briefly: decisionmaking regarding placements in quarantine or isolation, who decides and on what criteria when people are released from quarantine and isolation, who decides on testing and under what criteria, and related health measures. You mentioned that Corizon controls or has input on a number of these matters, and that breakdown of responsibility should be provided. Presumably, all of these health related protocols are in policy form, or in protocols adopted by PDP and/or Corizon and therefore covered by our request as to all protocols and policies.
Given the short time frame that the Court ordered in terms of reporting back on our progress and the need to provide health and safety measures, we will need the above described discovery as soon as possible, and no later than Tuesday of next week. Let us know if that is not possible.
Discovery scope: The City should inform us by early next week which of the other discovery requests the City will not agree to provide and, for those requests that will be provided, a time frame for later disclosure.
We further discussed the need for effective means of ensuring and evaluating implementation of policies and compliance and we will provide suggestions for the monitoring process by early next week.

Case 2:20-cv-01959-BMS Document 26-21 Filed 05/05/20 Page 2 of 2 We also discussed your request for no press contacts during this settlement negotiation process and we agree and will not contact the media and, if asked about the case, we will refer them to what has been filed in court.
Thanks for your cooperation and let me know if you have questions about any of the above issues.
David

 
 Case 2:20-cv-01959-BMS Document 35 Filed 06/03/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

THOMAS REMICK, NADIYAH WALKER, :

JAY DIAZ, MICHAEL ALEJANDRO,

:

MICHAEL DANTZLER, ROBERT

:

HINTON, JOSEPH WEISS, JOSEPH

:

SKINNER, SADDAM ABDULLAH, and

:

JAMES BETHEA, on behalf of themselves

:

and all others similarly situated,

:

:

Plaintiffs-Petitioners,

:

:

v.

:

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

:

Defendants-Respondents.

:

:

No. 2:20-cv-01959-BMS

CONSENT ORDER ON PARTIAL SETTLEMENT AGREEMENT
Whereas, on April 20, 2020, Plaintiffs filed this putative class action under 42 U.S.C. § 1983 on behalf of themselves and all other proposed class members confined at the Philadelphia Department of Prisons (“PDP”), alleging violations of rights under the Eighth and Fourteenth Amendments of the United States Constitution and under the Americans with Disabilities Act; and
Whereas, on April 27, 2020, Plaintiffs filed a Motion for a Temporary Restraining Order and a Preliminary Injunction seeking immediate relief from alleged unconstitutional and otherwise illegal conditions of confinement; and
Whereas, on May 1, 2020, Defendants filed a comprehensive Response in Opposition, presenting evidence of the actions being taken to reduce the introduction and transmission of Covid-19 in the PDP and arguing no restraints should be imposed; and
Whereas the parties have engaged in good-faith negotiations; and

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Whereas, the parties have reached a partial settlement agreement on the issues presently before the Court, as set forth below; and
Whereas, on careful review and consideration of the proposed partial settlement agreement, the Court finds it to be a fair, adequate, and reasonable resolution of the issues addressed in the partial settlement agreement, and finds them to be sufficient to protect the legal interests of proposed class members; and
Whereas, the terms and provisions of the partial settlement agreement reflect the current protocols at the PDP that have been adopted to reduce the introduction and transmission of COVID-19 in its facilities, the PDP’s commitment to continue these practices, as well as recommendations for COVID-19 mitigation made by Plaintiffs’ counsel; and
Whereas, the parties anticipate further agreements regarding COVID-19 related social distancing and cohorting based on the COVID-19 testing of all persons confined at PDP by the City of Philadelphia (“City”); and
Whereas, the following Order is based on a negotiated settlement between the parties and is not to be construed as an admission of liability of any party;
IT IS ORDERED, this 3rd day of June, 2020, that the following Partial Settlement Agreement is approved and effective as of this date, and this Order will remain in full force and effect until and unless modified by agreement between the parties, or modified or terminated by the Court, upon a showing of good cause to do so by either party.
I. Substantive Provisions
A. Provisions Relating to Personal Hygiene, Personal Protective Equipment (“PPE”), Cleaning and Disinfection Protocols, and Education
1. Continuing to ensure enhanced personal hygiene by:
a. Providing each person housed in the PDP with one free bar of soap and a cloth hand towel on a weekly basis. Providing additional soap on request, subject to reasonable restrictions where that person has sufficient soap supplies.
b. Providing the opportunity to shower daily.
2. Continuing to ensure clean and hygienic living spaces by:
a. Having work groups of incarcerated people clean each housing unit twice per shift on the 7 a.m-3 p.m. and 3 p.m.-11 p.m. shifts at the PDP and having staff regularly clean staff work areas. The cleaning of the housing units will include common areas and frequently touched surfaces such as toilets, sinks,
2

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showers, phones, television controls, books, door handles, light switches, and recreational equipment.
b. Cleaning phones after each use.
c. Providing cleaning agents and equipment for use by those housed in the PDP to clean their cells and sleeping areas, in addition to regular twice-weekly cleaning of cells. Upon request, staff will provide additional cleaning agents and equipment for cell cleaning.
d. Providing laundering, including masks, towels, and undergarment clothing, twice per week. Linens and uniforms are to be exchanged and laundered once per week.
3. Continuing to ensure consistent usage of personal protective equipment (“PPE”) by:
a. Providing all persons housed in the PDP with cloth masks produced by the PDP, with a minimum of two masks provided per person. Further, upon increased PDP production of masks, all persons will be provided with four masks. Masks will be exchanged when they are torn or otherwise damaged, subject to restrictions on replacements in situations where multiple requests for replacements are unreasonable. To effectuate this agreement, the City will advise Plaintiffs and the Court no later than June 3, 2020, of the status of the mask production process, with projected dates for increasing mask distribution to three and then to four per person.
b. Requiring staff and all individuals who work at the PDP to wear masks while in any PDP facility, and requiring all persons housed in the PDP to wear masks while outside of their cells and while in dormitory areas (except when showering, eating, or for medical or other safety reasons).
c. Providing masks and gloves to all persons engaged in PDP cooking, cleaning, and general janitorial or maintenance work.
4. Continuing to ensure access to necessary services by:
a. Working to increase daily out-of-cell time for showering, cleaning, recreation, and phone calls, with a near-term goal of allotting 45 minutes per inmate by June 10, 2020. PDP will provide Plaintiffs with information as to out-of-cell time for housing units at each facility as of May 26, 2020. Depending on the results of the COVID-19 testing, PDP will seek to increase cohort sizes, to the extent that it is medically practicable, to further increase out-of-cell time. Out-of-cell time will continue to be provided on a staggered basis to allow for adequate social distancing to reduce transmission of the airborne virus. No later than June 10, 2020, based on the results of the COVID-19 testing and
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other considerations, the City will advise Plaintiffs and the Court of its plans for out-of-cell time. The parties will then further negotiate this issue and, if there is no agreement, Plaintiffs reserve the right to seek relief from the Court.
b. Providing medically-necessary medical care for non-COVID-19-related medical and mental health needs based on protocols and directives in effect pre-COVID-19, with discretion to provide medical and mental health care services in the housing units. If medical and mental health care services are provided on the unit, the PDP and medical personal shall protect the privacy interests of patients.
c. Providing fifteen minutes of free calls each day while visits are suspended.
d. Providing free, unrecorded, and confidential phone calls to legal counsel. PDP further agrees to: (1) explore confidential videoconferences for legal counsel, in addition to the current video-links with the FJD video system; (2) provide information to Plaintiffs regarding the requisition process; (3) expand the time for FJD videoconferencing to weekend dates to the extent the FJD facilities are available; and (4) subject to COVID-19 test results, to reopen its law libraries by June 15, 2020 to allow for a system of scheduled calls with legal counsel. No later than June 10, 2020, based on the results of the COVID-19 testing and the PDP’s consideration of videoconferencing and alternative means of access to counsel, the City will advise Plaintiffs and the Court of its plans to provide confidential access to counsel. The parties will then further negotiate the issue of access to legal counsel and, if there is no agreement, Plaintiffs reserve the right to seek relief from the Court.
5. Continuing to ensure education, transparency, and information dissemination by:
a. Providing information to all persons housed or working in PDP facilities on how to protect themselves from contracting COVID-19, including instructions on how to properly wash hands, clean living areas, wearing of masks and other PPE practices, and social distancing. This information will be provided in English and Spanish, and the PDP will consider other languages as well based on population data.
II. Monitoring, Reporting, and Enforcement:
A. Monitoring
1. Monitoring and enforcement will include: (1) weekly reviews by the parties of reports generated by the Covid-services tracking tool and the Lock and Track system, to be implemented no later than June 9, 2020, and (2) notice to all incarcerated persons and staff who work in the PDP of the terms of the Partial Settlement Agreement, and the right of incarcerated persons to contact counsel for
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Plaintiffs regarding compliance issues. Specific measures regarding contacts with counsel, including by phone and by PDP block representatives, will be discussed and implemented by the parties. B. Enforcement 1. The terms and conditions of this Partial Settlement Agreement are intended to provide for the current control of COVID-19 at the PDP. 2. If Plaintiffs have reason to believe that there has not been substantial compliance with these terms and conditions, they will notify the City with details of the alleged non-compliance and the parties will then confer on resolution of the issue(s). 3. If the parties cannot agree on a resolution, Plaintiffs may file a motion with the Court for enforcement of the Partial Settlement Agreement, but no enforcement order may be imposed without a hearing and determination by the Court that there has been substantial non-compliance and that no exigencies justified the noncompliance by PDP. 4. If the Court issues an order of enforcement and the PDP does not comply, Plaintiffs may file a motion for sanctions, and the Court after hearing, may impose appropriate sanctions.
III. Protocols Regarding Social Distancing and Cohorting of Incarcerated Persons A. The parties will discuss and negotiate the issues of social distancing and cohorting of incarcerated persons upon the completion of COVID-19 testing at PDP and upon their consultation with their respective medical advisors and experts. The parties anticipate a separate settlement agreement on those issues to be submitted to the Court, but in the absence of an agreement on those issues, Plaintiffs reserve the right to seek relief from the Court.
BY THE COURT: /s/ Berle M. Schiller
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 Case 2:20-cv-01959-BMS Document 55 Filed 12/18/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS REMICK, et al., on behalf of

:

themselves and all others similarly situated, :

:

Plaintiffs-Petitioners,

:

:

v.

:

CITY OF PHILADELPHIA; and BLANCHE :

CARNEY, in her official capacity as

:

Commissioner of Prisons,

:

:

Defendants-Respondents.

:

No. 2:20-cv-01959-BMS

ORDER AND NOW, this 17th day of December, 2020, the Consent Order on Partial Settlement of June 3, 2020 (Document No. 35), remains in full effect unless modified by the terms of this Order. Further, on application of the Plaintiffs, and after full consideration of the positions of the parties, IT IS HEREBY ORDERED: 1. Staff Testing The Philadelphia Department of Prisons (“PDP”) is directed to perform one-time COVID19 testing of all staff, including correctional officers and supervisors. PDP is also directed to perform one-time COVID-19 testing of all contractors who have routine access to the PDP facilities. PDP is permitted to schedule this testing in a manner that is consistent with safety and security operational needs, but the one-time testing shall be completed by January 15, 2021. The PDP shall report the results of staff testing to the Court and parties immediately upon its receipt of the results. The results of staff testing shall remain sealed until January 25, 2021, after which the results shall be unsealed. The parties may agree to release the results of the staff testing prior to January 25, 2021. To the extent any party seeks to publicize the results, they shall first advise the opposing party of their intention and any objection to publication shall be raised with the Court.

Case 2:20-cv-01959-BMS Document 55 Filed 12/18/20 Page 2 of 4
Based on the results of these tests, and other relevant conditions at the PDP relating to COVID19, and after considering further submissions by the parties, the Court may consider the issue of further testing of staff on a periodic basis. 2. Access to Counsel:
PDP shall provide means for lawyers to access their clients by electronic communications on a system that allows the attorney to share documents for the client’s review through March 31, 2021, at which time the parties and the Court may review access to counsel issues and consider extending or modifying this provision. 3. Universal testing of all incarcerated people for COVID-19.
PDP shall immediately begin testing all incarcerated persons at PDP facilities for COVID19 with the goal of completing that testing no later than January 15, 2021, and shall thereafter report to Plaintiffs’ counsel and the Court the results of these tests by the housing areas in all facilities of the PDP, including, for each housing unit, the total number of people tested and the numbers of positive and negative results. Based on the results of these tests, and other relevant conditions at the PDP relating to COVID-19, and after considering any further submissions by the parties, the Court may consider the issue of further testing of incarcerated persons on a periodic basis. 4. Ensuring adequate out-of-cell time for all incarcerated people:
a. While PDP facilities remain in “shelter-in-place”, and pending the results of universal testing required under ¶¶ 1 and 3, the PDP shall ensure that all incarcerated persons are permitted a daily minimum of forty-five (45) minutes of time out of their cells for showering, phone calls, and exercise, subject to further court order increasing out-of-cell time at the point when shelter-in-place is no longer in effect.

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b. PDP shall, no later than December 28, 2020, submit to Plaintiffs’ counsel and the

Court an operational plan for each facility and housing area demonstrating the necessary staffing

and other logistical support to ensure compliance with this Order and the Court’s Consent Order

of June 3, 2020 (ECF No. 35).

5. Written certification from Deputy Wardens to ensure compliance:

a. Beginning no later than the week of December 28, 2020, on a weekly basis, the

PDP shall provide to Plaintiffs’ counsel signed certifications by a Deputy Warden for each facility

within the PDP, certifying that:

i.

All unit managers in their respective facilities have directly informed the

Deputy Warden of the time, place, and manner of compliance with all relevant sections of this

Order and the Court’s Consent Order of June 3, 2020 (ECF No. 35), regarding delivery of soap,

masks, and cleaning agents, and provision of out-of-cell time to all incarcerated persons in their

housing units;

ii.

All unit managers have been informed that this protocol is required by a

federal court Order, and that any false reporting is subject to potential sanctions by the Court; and

iii.

The Deputy Warden has visited at least one housing area, chosen on a

random basis each week, and discussed directly with incarcerated persons housed on that area

compliance with this Order and the Court’s June 3, 2020 Order.

b. The parties shall report to the Court one month after the provisions of this paragraph

have been implemented on whether this certification process has been successful in improving

compliance with Court-ordered measures. If, after implementation of the certification process, the

Court again receives conflicting and unverifiable reports of compliance levels from the parties, the

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Court may consider whether to appoint an Independent Monitor to ensure substantial compliance with the Court’s Orders.
BY THE COURT: /s/ Berle M. Schiller Berle M. Schiller, J.