Case 1:21-cv-00428-GLR Document 1 Filed 02/20/21 Page 1 of 64

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BALTIMORE DIVISION

SEDRIC CATCHINGS, CHARLES

*

COUSER, COLLIN DAVIS, ALLEN

LAMIN, SIRRON LITTLE, TAIWO

*

MOULTRIE, JOSEPH SPEED, and

HOWARD THOMAS, Individually and on *

behalf of a class of similarly situated persons,

Case No.:

*

Plaintiffs,

v.

*

CALVIN WILSON, In his official capacity *

as Warden, Chesapeake Detention Facility

Department of Corrections,

*

ROBERT L. GREEN, In his official capacity *

as Secretary of Public Safety and

Correctional Services (Maryland),

*

Department of Public Safety and

Correctional Services,

*

Defendants.

*

*

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE FIFTH / FOURTEENTH AND EIGHTH AMENDMENTS TO THE U.S. CONSTITUTION AND 42 U.S.C. § 1983, AND PETITION FOR WRITS OF HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2241

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INTRODUCTION 1. There is an uncontrolled outbreak of COVID1 at the Chesapeake Detention Facility (“CDF”). In less than one month, according to Defendants’ own statistics, one-third of current residents2 (156 of approximately 400 residents) and approximately one-third of staff members (78 of approximately 220 employees) have tested positive for COVID. Expert Declaration of Dr. Jaimie Meyer (February 18, 2021) (“Meyer Decl.”) ¶ 26 (relying on documentation from DPSCS, CDF, and communications concerning current conditions at CDF). 2. Defendants’ actions have fueled this outbreak, and they also have failed to take appropriate action in response. 3. CDF is a facility operated by the Maryland Department of Public Safety and Correctional Services (“DPSCS”) located at 401 East Madison Street, Baltimore, Maryland 21202. CDF was previously known as the Maryland Correctional Adjustment Center (“MCAC”). 4. CDF houses approximately 400 residents and has approximately 220 staff. CDF houses residents who are in pretrial federal criminal detention, as well as individuals who have been sentenced in federal criminal cases. Since 2010, CDF has been leased under an agreement with the Office of Federal Detention Trustee, United Stated Department of Justice, on behalf of the United States Marshals Service, for the primary purpose of housing federal detainees awaiting trial. Agreement Number ODT-10-0001 (DUNS Number 879016178, effective 9/1/2010). Under this contract between the United States Department of Justice and DPSCS, MCAC (now CDF), DPSCS is required to “provide for the safe, secure, and humane confinement for male and female

1

Severe acute respiratory syndrome coronavirus 2, or SARS-CoV-2, commonly called the “novel coronavirus”

or “coronavirus” is the highly contagious and transmissible virus underlying this cause of action and the event

described in this Complaint. The virus frequently results in a disease, COVID-19. Plaintiffs refer to both the virus and

disease as “COVID” or “COVID-19.”

2

The plaintiffs use the term “residents” to refer to individuals detained at CDF and other facilities.

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population” in accordance with federal standards outlined in the Contract, as well as “the U.S. Constitution; all applicable federal, state, and local laws and regulations; applicable Presidential Executive Orders (E.O.); all applicable case law; and Court Orders and Consent Decrees. Should a conflict exist between any of the aforementioned standards, the most stringent shall apply.” Agreement Number ODT-10-0001 at 3-4.
5. CDF was originally designed as a state facility, with single-person cells. CDF now operates at double its original capacity, with two-person cells. This has resulted in overcrowding in tight spaces.
6. As presently operated, CDF housing units are spread over three “towers” or “pods” connected by corridors, broken into six units, A to F. Each housing unit is divided into “quads” or “tiers” referred to by a housing unit letter (A to F) and a number (1 to 4). Each quad, in turn, comprises 12 cells. Each cell now holds two residents. Double-celling has increased CDF’s maximum capacity.
7. Some residents who tested positive for COVID were removed from CDF. They have been placed in a dormitory facility in the Jail Industries Building (“JI”), located at 531 East Madison Street, Baltimore, Maryland, 21202. That building has the appearance of a former warehouse, with broken windows and temperatures around 55 degrees Fahrenheit. Residents who have been quarantined there are often denied access to medication. Built in 1922 as an office building and retrofitted as a jail in the 1980s, JI was closed in 2017 due to what public safety officials called a “security nightmare.” Jayne, Miller, “I-Team looks inside closing jail facility in Baltimore,” WBALTV (Sept. 1, 2017), https://www.wbaltv.com/article/i-team-looks-insideclosing-jail-facility-in-baltimore/12139786 (containing a video tour of the then-closed facility).
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8. The residents housed at CDF are under a constant and substantial threat of contracting COVID.
9. Some residents who have contracted COVID receive grossly substandard medical treatment (if they receive treatment at all).
10. Because jails, prisons, and other detention and correctional facilities are particularly vulnerable to COVID, the U.S. Centers for Disease Control and Prevention (CDC) has recommended basic measures these facilities should take to control the spread of the virus and treat infected prisoners—for example, requiring the use of face masks, implementing social distancing practices, and providing sufficient quantities of cleaning materials including soap and hand sanitizer. Ex. JJ (“Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities,” Centers for Disease Control and Prevention, updated Jan. 19, 2021 (last visited on Feb. 20, 2021)), also available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.
11. Defendants3 have ignored these and other public health recommendations. 12. Residents lack the means to clean their cells. CDF staff does not clean—or arrange for the cleaning of—common areas in between recreation sessions, when up to 12 residents are out in the common areas at a time. 13. CDF does not require or enforce the wearing of masks for residents. CDF staff do not consistently wear their masks or wear them properly.

3

Since Defendants Wilson and Green are being sued in their official capacities, “Defendant Wilson,”

“Defendant Green,” and “CDF” are used interchangeably in this Complaint except where an individual defendant is

specifically named.

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14. Residents who have tested negative for COVID are forced into the cells formerly occupied by residents who have tested positive, without any cleaning of these cells.
15. CDF places some COVID-positive male residents in the “cadre,” a unit inside the facility. CDF also places new admissions to the facility inside the “cadre,” in cells next to the COVID-positive residents.
16. Confoundingly, CDF has recently placed two women who were recently admitted to CDF in the “cadre,” next to positive male residents who were actively exhibiting symptoms of COVID.
17. CDF ignores some sick calls altogether. CDF delays responding to many other sick calls. CDF also fails to respond to, or delays its response to, residents’ health complaints and to residents exhibiting of COVID-like symptoms.
18. CDF has exposed resident after resident to the virus. CDF has intermixed different groups of residents—COVID-positive residents, residents who should be quarantined because of potential exposure, newly admitted residents, and COVID-negative residents—and thereby dramatically increased the risk of exposure across the facility. CDF can have no excuse for these mistakes, particularly not after the nation has been living with this virus for nearly a year.
19. Unsurprisingly, some residents who were intermixed with COVID-positive residents went on to test positive for COVID themselves.
20. The nearly 400 residents now detained at CDF continue to be denied even the minimal precautions necessary to mitigate against the risks of COVID.
21. Among the health services being denied to CDF residents are access to vaccines against COVID. Under the Phased COVID Vaccine Distribution Plan of the State of Maryland and the Maryland Department of Health, “high-risk incarcerated individuals” were supposed to be
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offered access to COVID vaccines in Phase 1B of the plan. See “Maryland’s Phased COVID-19 Vaccine Distribution,” The Office of Governor Larry Hogan, updated Jan. 14, 2021 https://governor.maryland.gov/wp-content/uploads/2021/01/Phases-One-Pager-1.pdf. Although Maryland has reached Phase 1B (currently the state is in Phase 1C of the Plan, see Maryland Department of Health, Maryland moves into Phase 1C of its COVID-19 vaccine distribution plan, opens eligibility to all residents 65 and up (Jan. 25, 2021) https://health.maryland.gov/newsroom/Pages/Maryland-moves-into-Phase-1C-of-its-COVID-19vaccine-distribution-plan,-opens-eligibility-to-all-residents-65-and-up.aspx), there is no indication that “high-risk incarcerated individuals” at CDF are being offered vaccinations. The Maryland COVID Vaccination Plan does not specifically define the term “high risk individuals” but includes within that category: “Persons at highest risk of developing complications from COVID (ACIP high risk conditions), including persons 65 and older, staff and residents of nursing homes (SNFs), long-term care facilities (LTCFs), assisted care facilities, and clients of senior daycare facilities or similar.” https://phpa.health.maryland.gov/Documents/10.19.2020_Maryland_COVID19_Vaccination_Plan_CDCwm.pdf, at 13 (emphasis added). It is clear the Plan intends to include at least a portion of the detainees at CDF within Phase 1 because it goes on to estimate the population to be vaccinated in Maryland under the Plan in Phase 1 as including approximately 54,460 “People in Prisons, Jails, Detention Centers and Staff.” Id.
22. This outbreak is a tragedy. It was entirely foreseeable, given the failure of Defendants to act, and it was preventable. This outbreak will recur absent intervention from this Court.
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23. The nation has been living with the pandemic for nearly a year. There are wellestablished guidelines and procedures that prevent the type of disaster that has unfolded at CDF. CDF has failed to follow those guidelines and procedures.
24. By maintaining these conditions, the Defendants have needlessly exposed the people detained there to a highly infectious and potentially fatal disease. This violates Plaintiffs’ Fifth / Fourteenth and Eighth Amendment rights. (The Fifth Amendment protects federal pretrial detainees. See, e.g., Cunningham v. Wilson, 326 F. App’x 948, 949 (7th Cir. 2009). The Fourteenth Amendment protects state pretrial detainees. See, e.g., Hill v. Nicodemus, 979 F.2d 987, 990 (4th Cir. 1992). Because the pretrial detainees in this case are detained in federal cases at a state-run facility, Plaintiffs refer to these claims as “Fifth / Fourteenth Amendment” claims throughout.)
25. Plaintiffs seek class-wide relief requiring CDF to take the necessary steps to safeguard residents’ health and safety—on behalf of all CDF residents. A subset of Plaintiffs also requests a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for residents whose age or underlying medical conditions make them particularly vulnerable to severe illness and death from COVID (the “Medically Vulnerable Subclass”).
JURISDICTION AND VENUE 26. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and 2241(a). This Court has jurisdiction over the Medically Vulnerable Subclass’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 27. Venue is proper in this District under 28 U.S.C. § 1391(b) because the events giving rise to the claims asserted in this complaint occurred in this District.
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PARTIES
28. Plaintiff SEDRIC CATCHINGS is detained pretrial at CDF. Mr. Catchings has not yet tested positive for COVID. Mr. Catchings has a preexisting medical condition that makes him more vulnerable to COVID, and he has been unnecessarily exposed to positive or potentially positive residents of CDF on multiple occasions. Mr. Catchings’ recreation time is on a unit in which neither masks nor social distancing are encouraged, let alone enforced. It is only a matter of time before he contracts COVID, absent intervention.
29. Plaintiff CHARLES COUSER is detained pretrial at CDF. Mr. Couser recently tested positive for COVID for the second time in the last year. Mr. Couser was transferred to the JI building down the street from CDF after he tested positive in CDF in 2021. At the JI building, Mr. Couser suffered from severe symptoms of COVID. Since being transferred back to CDF, Mr. Couser has gone without cleaning supplies, and has observed individuals continue to walk around the facility without masks.
30. Plaintiff COLLIN DAVIS is detained pretrial at CDF. Mr. Davis has a preexisting medical condition that makes him more vulnerable to COVID. He has tested positive for COVID twice at CDF: first in September and again in January. Mr. Davis was unnecessarily exposed to positive residents in January after a negative test; he then tested positive again himself shortly after. Mr. Davis has been denied prescribed medications since testing positive again and was told to take another resident’s medications on multiple occasions—ones to treat diabetes and hypertension, neither of which Mr. Davis suffers from. Mr. Davis’ health has been put into jeopardy again and again.
31. Plaintiff ALLEN LAMIN is detained pretrial at CDF. Mr. Lamin has a preexisting medical condition. He recently tested positive for COVID. Mr. Lamin started exhibiting symptoms
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of COVID in January, prior to the facility locking down. Mr. Lamin was fatigued and couldn’t get out of bed. CDF transferred Mr. Lamin to JI, where there were only intermittent checks on his vital symptoms. Mr. Lamin was then transferred back to CDF, to a unit where neither masks nor social distancing are required or enforced.
32. Plaintiff SIRRON LITTLE is detained pretrial at CDF. Mr. Little has a preexisting medical condition that makes him more vulnerable to COVID. He has not yet tested positive for COVID. Mr. Little has a preexisting condition that makes him more vulnerable to COVID. Mr. Little has been locked in a cell with another resident for days, during which time his cellmate was suffering from obvious symptoms of COVID. His cellmate was later rushed to the hospital because of COVID symptoms—after days of being locked in a cell with Mr. Little. Mr. Little is not given cleaning supplies to sanitize his cell and must use ripped up towels to clean—towels that he uses for showering.
33. Plaintiff TAIWO MOULTRIE is detained pretrial at CDF. Mr. Moultrie has a preexisting medical condition that makes him more vulnerable to COVID. He recently tested positive for COVID after being unnecessarily exposed to two positive residents when CDF was moving Mr. Moultrie around the facility. Mr. Moultrie has preexisting conditions that make him more vulnerable to COVID. Mr. Moultrie then tested positive himself. As of February 11, Mr. Moultrie’s unit is on 23-hour per day lockdown. During the one hour when residents are out of their cells, residents intermingle and are not wearing masks.
34. Plaintiff JOSEPH SPEED is detained at CDF pending sentencing. Mr. Speed has a preexisting medical condition that makes him more vulnerable to COVID. He recently tested positive for COVID. Mr. Speed has preexisting medical conditions that make him more vulnerable to COVID. Prior to testing positive for COVID, Mr. Speed was given two inhalers to treat his
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preexisting condition. CDF transferred him to JI, but they did not bring his inhalers; instead, Mr. Speed went multiple days without them. Mr. Speed was subjected to indoor temperatures of 55 degrees or below while at JI.
35. Plaintiff HOWARD THOMAS is detained post-conviction at CDF. Mr. Thomas has a preexisting condition for which he requires medical care. CDF has delayed or denied Mr. Thomas care. Mr. Thomas has been unnecessarily exposed to COVID on multiple occasions and was moved into a unit in which positive residents were moving around the common areas and touching the same surfaces (including phones) as Mr. Thomas. When Mr. Thomas was moved into the unit and the positive residents moved out, nobody from CDF cleaned or sanitized the positive residents’ cells before new residents moved in. Mr. Thomas has also been subjected to multiple 23-hour a day lockdowns, without any explanation why these lockdowns were taking placing.
36. Defendant CALVIN WILSON is the Warden of CDF. He is sued in his official capacity.
37. Defendant ROBERT L. GREEN is the Secretary of DPSCS. He is sued in his official capacity.
FACTUAL ALLEGATIONS A. COVID Is Highly Infectious and Dangerous 38. Dr. Carlos Franco-Paredes and Dr. Meyer have detailed at length the ramifications of COVID on the circumstances of this case. See generally Expert Declaration of Carlos FrancoParedes, M.D., M.P.H. (February 15, 2021) (“Franco-Paredes Decl.”); Meyer Decl. Their opinions are grounded primarily in the guidelines of the Centers for Disease Control and Prevention for detention facilities, which were distributed at the beginning of the pandemic. See Ex. JJ. 39. Dr. Franco-Paredes is an Associate Professor of Medicine at the University of Colorado and Director of the Infectious Diseases Fellowship Program there. He served as a
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consultant with the World Health Organization, Geneva, Switzerland, where he participated in the development of a global action plan for the deployment of pandemic influenza vaccine. Curriculum Vitae of Carlos Franco-Paredes, M.D., M.P.H, appended to Franco-Paredes Decl.
40. Dr. Meyer is an Associate Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. She is board-certified in Internal Medicine, Infectious Diseases and Addiction Medicine. She has worked for over a decade on infectious diseases in the context of jails and prisons and has written and published extensively on the topics of infectious diseases among people involved in the criminal justice system. See Curriculum Vitae of Dr. Jaimie Meyer, appended to Meyer Decl.
41. As set out in the attached declaration by Dr. Carlos Franco-Paredes, the novel coronavirus, SARS-CoV-2, is the causal pathogen that causes COVID-19, which is an extremely infectious and potentially deadly virus. The United States has the largest number of cases and deaths in the world, with more than 27 million cases and close to 500,000 deaths as of midFebruary 2021. Franco-Paredes Decl. ¶ 7; see also COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), https://coronavirus.jhu.edu/map.html (containing an interactive map with data updated daily). COVID has created a global health crisis that has led to the adoption and implementation of unprecedented mitigation strategies around the world, including the canceling of public events, closing schools and businesses, and lockdowns across the world. Franco-Paredes Decl. ¶ 7. See also Meyer Decl. ¶¶ 8-12.
42. The catastrophic consequences of the current COVID pandemic is due to two major factors: (a) the transmissibility of the infection and (b) the severity of the disease in the human population. Franco-Paredes Decl. ¶ 8.
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43. The CDC has promulgated guidance on the individuals who are most likely to

become severely ill, meaning that they require hospitalization, intensive care, use of a ventilator

to help them breathe, and/or heightened risk of death. Coronavirus Disease 2019 (COVID-19),

People at Increased Risk and Other People Who Need to Take Extra Precautions, Centers for

Disease Control and Prevention, updated Jan. 4, 2021, https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/people-at-increased-risk.html (last visited Feb. 20, 2021). This

higher risk group includes old adults and people with underlying medical conditions (i.e.,

“medically vulnerable” individuals). Franco-Paredes Decl. ¶ 9. See Ex. JJ; see also Coronavirus

Disease 2019 (COVID-19), Older Adults at Greater Risk of Requiring Hospitalizations or Dying

if Diagnosed with COVID-19, Centers for Disease Control and Prevention, updated Feb. 19, 2021,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html

(last

visited Feb. 20, 2021); Coronavirus Disease 2019 (COVID-19), People with Certain Medical

Conditions, updated Feb. 3, 2021, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/people-with-medical-conditions.html (last visited Feb. 20, 2021).

44. People with the following underlying medical conditions are considered at

increased risk of severe illness and death should they be infected with SARS-CoV-2 (Franco-

Paredes Decl. ¶ 10):

a. Cancer; b. Chronic kidney disease; c. Chronic obstructive pulmonary disease (COPD); d. Immunocompromised from solid organ transplant; e. Obesity (with a body mass index (BMI) of 30+); f. Serious heart conditions, such as heart failure, coronary artery disease, or
cardiomyopathies; g. Sickle cell disease; h. Type II diabetes mellitus.

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45. People with the following underlying medical conditions may be at an increased
risk for severe illness from COVID-19 (Franco-Paredes Decl. ¶ 11):
a. Asthma (moderate to severe); b. Cerebrovascular disease (affecting blood vessels and blood supply to the brain); c. Cystic fibrosis; d. Hypertension; e. Immunocompromised from blood or bone marrow transplant, immune
deficiencies, HIV, use of corticosteroids, or other immune-suppressing medications; f. Neurologic conditions, such as dementia; g. Liver disease; h. Pregnancy; i. Pulmonary fibrosis (having damaged or scarred lung tissue); j. Smoking; k. Thalassemia; l. Type I diabetes mellitus.
46. The cumulative rate of COVID infection in the United States is 8,201 cases per
100,000 people with an overall case fatality rate of 142 per 100,000. See Franco-Paredes Decl. ¶
12; Coronavirus Disease 2019 (COVID-19), CDC COVID Data Tracker, Compare Trends in
COVID-19 Cases and Deaths in States in the US, Centers for Disease Control and Prevention,
https://covid.cdc.gov/covid-data-tracker/#compare-trends (as of February 12, 2021).
47. In the United States, the COVID-associated hospitalization rate among patients
identified through the Coronavirus Disease 2019 (COVID-19)-Associated Hospitalization
Surveillance Network (COVID-NET) has been as high as 4.6 per 100,000 population.
Hospitalization rates increase with age, with a rate of 0.3 in persons aged 0-4 years, 0.1 in those
aged 5-17 years, 2.5 in those aged 18-49 years, 7.4 in those aged 50-64 years, and 13.8 in those
aged ≥ 65 years. Rates were highest among persons aged 65 years or older, ranging from 12.2 in
those aged 65-74 years to 17.2 in those aged 85 years or older. More than half (54.4%) of
hospitalizations occurred among men; COVID-19-associated hospitalization rates were higher
among males than females (5.1 versus 4.1 per 100,000 population, respectively). See Franco-
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Paredes Decl. ¶ 13; Shikha Garg, Lindsay Kim, Michael Whitaker, et al., Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 — COVID-NET, 14 States, March 1-30, 2020. Morbidity and Mortality Weekly Report (MMWR) 2020, 69:458-464, http://dx.doi.org/10.15585/mmwr.mm6915e3.
48. Approximately 90% of hospital admissions due to COVID have occurred among individuals with underlying medical conditions. The most commonly reported underlying medical conditions of patients with COVID-19 were hypertension (49.7%), obesity (48.3%), chronic lung disease (34.6%), diabetes mellitus (28.3%), and cardiovascular disease (27.8%). Among patients aged 18-49 years, obesity was the most prevalent underlying condition, followed by chronic lung disease (primarily asthma) and diabetes mellitus. Among patients aged 50-64 years, obesity was most prevalent, followed by hypertension and diabetes mellitus; and among those aged 65 years or older, hypertension was most prevalent, followed by cardiovascular disease and diabetes mellitus. See Franco-Paredes Decl. ¶ 14; Marie Killerby, Ruth Link-Gelles, Sarah Haight, et al. Characteristics Associated with Hospitalization Among Patients with COVID-19 — Metropolitan Atlanta, Georgia, March–April 2020, Morbidity and Mortality Weekly Report (MMWR) 2020. 69:790-794, http://dx.doi.org/10.15585/mmwr.mm6925e1.
49. For people with risk factors, COVID can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause long-term respiratory dysfunction. There is preliminary evidence that persons with COVID, who are recovering from a severe version of the disease and who developed extensive pulmonary disease including Acute Respiratory Distress Syndrome (ARDS), may have long-term sequelae similar to other infectious pathogens evolving in a similar pattern including long-term cognitive impairment, psychological
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morbidities, neuromuscular weakness, pulmonary dysfunction, and reduced quality of life. See

Franco-Paredes Decl. ¶ 15.

50. Dr. Meyer points out that most people (80%) who become infected with COVID-

19 will develop a mild upper respiratory infection, but serious illness occurs in up to 16% of cases,

including death. See Meyer Decl. ¶ 9.

51. Dr. Franco-Paredes points out that, similar to influenza infection, acute lung injury

and ARDS are most likely caused by the respiratory epithelial membrane dysfunction leading to

ARDS. The resultant tissue hypoxia is responsible and potential concomitant bacterial sepsis

contribute to multi-organ dysfunction and death. If a patient with COVID-19 develops

myocarditis, cardiogenic shock caused by fulminant myocarditis may also contribute to the overall

occurrence of multiple organ failure. See Franco-Paredes Decl. ¶ 17. Death in COVID-19 infection

is usually due to pneumonia and sepsis. See id. ¶ 9.

52. The care of people who are infected with COVID-19 depends on how seriously

they are ill. See Meyer Decl. ¶ 10; Interim Clinical Guidance for Management of Patients with

Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (updated Feb. 16,

2021),

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

patients.html. People with mild symptoms may not require hospitalization but may continue to be

closely monitored at home. People with moderate symptoms may require hospitalization for

supportive care, including intravenous fluids and supplemental oxygen. People with severe

symptoms may require ventilation and intravenous antibiotics. While over 420 clinical trials of

treatments for COVID-19 have been conducted and reviewed by the FDA, just 8 have received

emergency use authorization approval and a single treatment (remdesivir) has received regular

FDA approval. See Meyer Decl. ¶ 10; Coronavirus Treatment Acceleration Program (CTAP), U.S.

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Food & Drug Administration (updated Jan. 31, 2021), https://www.fda.gov/drugs/coronavirus-

covid-19-drugs/coronavirus-treatment-acceleration-program-ctap#dashboard (last visited Feb. 20,

2021). Only a single medication (bamlinivimab) is an option for people prior to hospitalization

and this is given as an intravenous infusion. This means that, nearly one year into the global

pandemic, we still have relatively few treatment options available for people who become

seriously ill. See Meyer Decl. ¶ 10.

53. The rapid development of highly effective vaccines against SARS-CoV-2 promises

an end to the pandemic. To date, two mRNA vaccines (by Pfizer, BioNTech, and Moderna) have

received FDA approval. See Meyer Decl. ¶ 11; Carl Zimmer, Covid-19 Vaccine Tracker Updates:

The

Latest,

The

New

York

Times,

https://www.nytimes.com/interactive/2020/science/coronavirus-vaccine-tracker.html (containing

interactive map with data updated daily (last visited Feb. 20, 2021).

54. Until vaccination of the majority is achieved, required COVID-19 prevention

strategies include containment and mitigation. Containment includes intensive hand hygiene

practices, decontamination and cleaning of surfaces, identifying and isolating people who are ill

and quarantining people who have had contact with people who are ill, and the use of personal

protective equipment. Meyer Decl. ¶ 12.

55. As described below, jails and prisons are often under-resourced to meet the demand

for these strategies. As COVID-19 spreads in the community, public health demands mitigation

strategies, which involves social distancing to protect those most vulnerable to disease. Jails and

prisons, especially when conditions are crowded, are often unable to adequately provide social

distancing or meet mitigation recommendations. Meyer Decl. ¶ 12.

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B. Jails and Prisons Are Exceedingly Vulnerable to COVID Spread 56. The current outbreaks of the novel coronavirus SARS-CoV-2 inside of correctional
facilities across the United States highlight the ease of transmission of COVID-19 inside these facilities. See Franco-Paredes Decl. ¶ 20.
57. Detention and incarceration of any kind requires large groups of people to be confined together in a tight space. To contain the spread of the disease in such a setting, infection prevention protocols must be meticulously followed. See Franco-Paredes Decl. ¶ 21.
58. The number of private rooms in a typical jail or prison facility is insufficient to comply with the recommended airborne/droplet isolation guidelines. These infection prevention protocols include “social distancing” measures, where individuals maintain a distance of at least six feet from each other, mask wearing, and frequent hand-washing and other good hygiene practices. These protocols apply to both incarcerated and non-incarcerated individuals. In the carceral setting, these protocols would require, for example, that individuals sleep one person per cell, rather than in shared cells. These measures are necessary to prevent spread of COVID-19 among otherwise healthy people and are imperative for high-risk individuals. See Franco-Paredes Decl. ¶ 22.
59. Another consideration complicated by the carceral setting is the ability of the novel coronavirus to survive for extended periods of time on materials that are highly prevalent in prisons, such as metals and other non-porous surfaces. Current outbreak protocols require frequent disinfection and decontamination of all surfaces of the facility, which is exceedingly difficult given the large number of incarcerated individuals, frequent interactions between incarcerated persons and staff, and regularity with which staff move in and out of the facility. See Franco-Paredes Decl. ¶ 23.
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60. Responding to COVID-19 outbreaks in correctional facilities calls for highly trained staff to correctly and quickly institute and enforce isolation and quarantine procedures, and requires training on the appropriate utilization of personal protective equipment. It is essential that nursing and medical staff be trained in infection control prevention practices, implementing triage protocols, and the medical management of suspected, probable, and confirmed cases of coronavirus infection. This same personnel has to be prepared to initiate the management of patients with severe COVID-19 disease. See Franco-Paredes Decl. ¶ 24.
61. According to the COVID-19 Prison Project, there are 383,183 cases of COVID-19 in jails and prisons with 2,311 deaths. Staff in correctional facilities also has been significantly affected including 92,281 cases and 144 deaths. See Franco-Paredes Decl. ¶ 13; National COVID19 Statistics, The COVID Prison Project, https://covidprisonproject.com/data/national-overview/ https://covidprisonproject.com/data/national-overview/ (as of February 11, 2021). The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, in terms of risk of transmission, exposure, and harm to individuals who become infected. To date, more than 612,000 people who are incarcerated have been infected with COVID-19 and at least 2,700 people who reside and work inside facilities have died. See Meyer Decl. ¶ 13; Zimmer, Coronavirus in the U.S.: Latest Map and Case Count, The New York Times, supra. Prisons and jails represent some of the largest clusters of cases in the U.S.
62. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. See Meyer Decl. ¶ 14.
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63. Congregate settings such as jails and prisons enable rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share bathrooms, showers, and other common areas, the opportunities for transmission are even greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. For many in jail or prison, social distancing is a physical impossibility. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and contracting infectious diseases. See Meyer Decl. ¶ 15.
64. During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing (for at least 20 seconds) or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this often is not done in jails and prisons because of a lack of cleaning supplies and lack of people available and trained to perform necessary cleaning procedures. See Meyer Decl. ¶ 16.
65. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large
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outbreaks of infectious diseases because of space limitations. During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye protection (face shields or goggles). Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak. Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult. See Meyer Decl. ¶ 17.
66. People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community. See Meyer Decl. ¶ 19; Active case finding for communicable diseases in prisons, The Lancet , Vol. 391; 2186 (June 2, 2018), https://www.thelancet.com/journals/lancet/article/PIIS01406736(18)31251-0/fulltext. This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV that put them at risk of severe infection and death. See Meyer Decl. ¶ 19.
67. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications. See Meyer Decl. ¶ 20.
68. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the
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facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves. See Meyer Decl. ¶ 21.
69. As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public. Absenteeism also means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the routine care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited. See Meyer Decl. ¶ 22.
70. Prisons were designed to contain people, not diseases. When even the most sophisticated hospital systems in this country have been overwhelmed by the COVID-19 pandemic, it will be impossible for prison health systems to contain it. This is especially true when emergency preparedness plans are underdeveloped. These risks have all borne out during the current pandemic of COVID-19. See Meyer Decl. ¶ 23.
C. Lockdowns are an Inappropriate Response to COVID 71. Dr. Meyer and Dr. Craig Haney have detailed at length how and why lockdowns
and solitary confinement may harm, not protect, residents. See generally Meyer Decl.; Expert Declaration of Craig Haney, Ph.D. (February 18, 2021) (“Haney Decl.”).
72. Dr. Haney is Distinguished Professor of Psychology and UC Presidential Chair at the University of California, Santa Cruz, located in Santa Cruz, California, where he engages in research applying social psychological principles to legal settings including the assessment of the psychological effects of living and working in institutional environments, especially the
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psychological effects of incarceration. He has a Ph.D. in psychology and a J.D. degree, both awarded by Stanford University. He was a co-founder and co-director of the UC Criminal Justice & Health Consortium—a collaborative effort of researchers, experts and advocates from across the University of California system working to bring evidence-based health and healthcare solutions to criminal justice reform in California and nationwide. See Curriculum Vitae of Dr. Craig Haney, appended to Haney Decl.
73. Disciplinary segregation or solitary confinement is not an appropriate disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. In addition, if solitary confinement is a carceral facility’s response to COVID-19, people who are ill will be deterred from reporting their symptoms, resulting in their increased risk of severe disease and death and ongoing spread to others. See Meyer Decl. ¶ 18.
74. As Dr. Haney explains, “[p]rocedures that impose extended periods of isolation or restrict hygiene options (such as showers) are inappropriate, ill-conceived, and counter-productive for several reasons. In fact, they could very likely exacerbate rather than limit or alleviate the spread of COVID-19. For one, housing units essentially turn into onerous lockdown units, which greatly increase the psychological stress under which prisoners live, potentially leading to mental and physical deterioration, interpersonal conflicts, and self-harm and suicidality. The fact that prisoners may be double-celled during these lockdowns does not mitigate the negative effects of their essentially around-the-clock in-cell confinement. In fact, double-celling may exacerbate these effects because of the interpersonal tensions and stressors that such unavoidably close around-theclock contact generates.” Haney Decl. ¶ 18.
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75. Lockdown units are often used in ways that are essentially identical to the solitary confinement-type housing that has been shown to place prisoners at significant risk of grave harm (including damage that is permanent, even fatal). Thus, there is a substantial literature on the adverse psychological and physical effects of this kind of isolation. This literature establishes a range of damaging consequences that come about when prisoners and others are subjected to the kinds of conditions that now prevail throughout this facility. See Haney Decl. ¶ 19.
76. Although the adverse effects of isolated confinement are widespread, and jeopardize the physical and psychological well-being of everyone exposed to them, this is especially true for prisoners with pre-existing mental health conditions. They are particularly likely to decompensate, suffer worsening depression, and even engage in self-harming and suicidal behavior in response to social isolation. See Haney Decl. ¶ 21.
77. According to Dr. Haney, “[f]or these reasons, psychologically vulnerable prisoners should be excluded from all forms of prison isolation (i.e., lockdowns and solitary confinement). This is particularly true for prisoners with serious mental illness, including major affective disorders (like bipolar disorders and major depressive disorder), schizophrenia, and other psychotic disorders. If they cannot be, then they must be given access to enhanced psychological services. Yet, based on his many years of studying correctional systems and practices across the country, ameliorative measures such as increased treatment and out of cell time are often among the first things that are suspended as the prison system diverts staff to address emergencies (such as the pandemic).” Haney Decl. ¶ 22
78. According to Dr. Haney, “[i]nstead of preemptive lockdowns, jails and prisons should institute such lockdowns only where medically necessary to resolve discrete issues, such as sanitizing dorms or contact tracing of an infected prisoner. If such lockdowns are employed, for
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these limited purposes, they should be reasonably time-limited. Staff also should communicate that time-limit to the prisoners who are affected. Moreover, in extreme cases in which lockdowns are employed, the jail or prison should ensure that inmates are given enhanced access to resources to protect their mental health, such as reading material and adequate access to phones. In addition, the jail or prison staff should regularly communicate with and monitor the physical and mental health of prisoners who are on lockdown.” Haney Decl. ¶ 26.
D. Defendants Have Been Given Multiple Warnings of the Dangers of Not Responding Swiftly and Appropriately 79. The experiences of jails and prisons across the country have put Defendants on
notice of the dangers of COVID in detention facilities. 80. These experiences have also put Defendants on notice of the efficacy of vaccinating
residents of detention facilities, particularly vulnerable residents. 81. These Defendants also have actual knowledge from the multiple letters sent to them
about the dangers of COVID and the necessary steps required to mitigate the risk of COVID. 82. On March 19, 2020, a group of physicians and public health experts sent to local
corrections departments in Maryland a letter outlining the risks of COVID in detention facilities and methods to mitigate this risk. See Ex. AA; also available at https://www.aclumd.org/sites/default/files/field_documents/200319__public_health_experts_maryland_covid_jails_sign_on_letter.pdf.
83. On March 25, 2020, faculty members from John Hopkins sent a letter to Governor Hogan (with a carbon copy to Defendant Green) highlighting the risks of COVID in detention facilities, warning against solitary confinement, urging the development of plans for prevention and management, ensuring the supply of soap and hand sanitizer, and procedures to limit the spread of COVID. See Ex. BB; also available at https://www.jhsph.edu/research/centers-and-
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institutes/center-for-public-health-and-humanrights/_pdf/Faculty%20Letter%20COVID%2019.pdf
84. On May 6, 2020, the ACLU of Maryland sent to Governor Hogan and Defendant Green a letter emphasizing the risk of COVID in detention facilities, outlining necessary testing procedures to prevent an outbreak from spreading. See Ex. CC; also available at https://www.aclumd.org/sites/default/files/letter_to_gov_and_doc_secretary_re_testing_050620.pdf
85. On February 2, 2021, the Lawyers’ Committee for Civil Rights Under Law sent to Defendants Wilson and Green a letter outlining the current problems at CDF after the current outbreak, along with a concrete set of requests that CDF immediately implement. See Ex. DD; also available at https://lawyerscommittee.org/wp-content/uploads/2021/02/210202-CDF-COVIDLCCR-letter.pdf. The letter also noted that 22 clients of the Federal Public Defender for the District of Maryland appeared to be eligible for vaccination. The letter requested a response from Defendants. Neither Defendant responded.
86. Warden Wilson personally walks around the facility and has witnessed residents being moved and potentially intermixed with other cohorts. Resident Declaration J (February 8, 2021 Declaration of Sedric Catchings) (“Res. Decl. J”) ¶ 12 (“On Tuesday, February 2, they came to pack up the negative people to send back to the E unit, where I started quarantine when I got to CDF. The people who were negative were moved. The warden was there when they were moving us. I asked to use the phone to talk to my lawyer to talk about the situation. He told me no.”).
87. The CDC guidelines for detention facilities have also put Defendants on notice of the deficiencies at CDF.
88. Multiple residents have raised CDF’s abject failures with staff and have been ignored. A woman who was a new admission to CDF, for example, was placed in a unit with
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positive male residents who were symptomatic. Two symptomatic male residents were on each side of her cell. When she objected to her being placed in the unit and questioned why it made sense for an apparently negative woman to be placed with positive, symptomatic men, CDF told her “not to worry.” Resident Declaration M (February 18, 2021 Declaration of Juliet Cervellon) (“Res. Decl. M”) ¶ 19.
89. The resident was right to worry. CDF did not listen and in fact exposed another woman, newly arrested, to a unit full of COVID-positive men about a month later. Resident Declaration H (February 13, 2021 Declaration of Collin Davis) (“Res. Decl. H”) ¶¶ 20, 22, 28 (“On February 9, they came back and told me I was positive. . . They moved me to a unit they called the ‘cadre.’ . . . CDF moved a new person into the cadre last night, on February 12. She’s brand new to the facility. I know she’s brand new because I spoke to her.”)
E. DPSCS and CDF Have Wildly Mishandled the COVID Pandemic and Thereby Caused a COVID Disaster Within the Facility 90. The first case of COVID at the Chesapeake Detention Center (“CDF”) was reported
in the spring of 2020. 91. Across all DPSCS facilities, over 50,000 residents are currently positive. COVID-
19, Maryland Department of Health, available at https://news.maryland.gov/dpscs/covid-19/. a. CDF’s Failure to Plan for Introduction of Virus to the Facility
92. As explained by Dr. Meyer, CDC guidelines recommend that facilities plan for different outbreak scenarios and instruct facilities to “consider how the facility’s housing operations could be modified for multiple test result scenarios (e.g., if testing reveals that 10%, 30%, 50% or more of incarcerated or detained persons test positive for SARS-CoV-2).”). Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities, CDC, available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/testing.html.
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These different scenarios enable rapid responses to contain and control COVID and to cohort individuals with different infection statuses appropriately. See Meyer Decl. ¶ 27.
93. Although the pandemic has been ongoing since March 2020, and in spite of clear evidence that the risk posed by infectious diseases in jails and prisons is significantly higher than in the community, CDF has utterly failed to create a comprehensive approach—with plans for difference scenarios—to handle an increase in positive cases among the resident population. See Meyer Decl. ¶¶ 13, 25, 27.
94. As explained by Dr. Meyer, this lack of planning is evident in CDF’s rapidly changing response to the crisis from one day to the next. See Meyer Decl. ¶ 27(m); Ex. HH (Government’s Response to Judicial Order, United States v. Moore, Case No. 1:20-cr-00430-RDB (D. Md. Feb. 1, 2021)).
95. For instance, CDF had to abandon its plan to use one off-site facility (the “Health Monitoring Facility”) for COVID-positive residents when bed space quickly ran out. This failure to create a comprehensive approach is in clear contravention of public health and scientific guidance for the appropriate management of a pandemic in a detention facility.
96. This lack of planning has also resulted in intermixing between different groups of residents. As described by Dr. Meyer, and as recounted by multiple residents, COVID-negative residents have been forced into living quarters with COVID-positive residents. Meyer Decl. ¶ 27. COVID-negative residents have had to move into COVID-positive residents’ cells moments after the COVID-positive resident departed, without any ability to clean or sanitize the clean. E.g., Resident Declaration E (February 11, 2021 Supplemental Declaration of Taiwo Moultrie) (“Res. Decl. E”) ¶¶ 9, 11 (“One of those two guys said, ‘Be careful, I have COVID.’ I asked what cell he was in. He said he was from cell 32. . . . They put me into cell 32 right after those two guys left.
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Nobody cleaned it out before they put me in the cell. Nobody cleaned it or sprayed it or anything. I couldn’t believe they were trying to put me in this cell.”).
97. CDF’s complete lack of planning is also evident in the practices the facility engaged in during 2020, all of which have continued until today.
b. Mismanagement in 2020 98. In 2020, CDF housed COVID-positive residents in cells alongside COVIDnegative residents in the intake unit. Resident Declaration D (August 14, 2020 Declaration of Taiwo Moultrie) (“Res. Decl. D”) ¶¶ 3-6, 12. 99. Upon removal of the COVID-positive residents, CDF not only failed to quarantine or test the residents who had been exposed to the virus; for several days, the facility did not even bother to take the temperatures of residents who were exposed. Res. Decl. D ¶ 8. 100. Indeed, exposed intake residents were permitted to join regular recreation time without regard to the fact that they had been exposed to the deadly and highly contagious virus. Res. Decl. D ¶¶ 9-10, 18. 101. Likewise, intake residents who were exposed to COVID-positive residents were transferred back into the general population less than 14 days after being exposed to the virus. Res. Decl. D ¶ 10. 102. In 2020, two CDF residents in a unit within the facility who experienced symptoms were tested for COVID. After these individuals tested positive, they were permitted to use the shared telephones, during normal recreation time, while non-symptomatic residents who had not been tested for COVID were out of their cells, before being removed from the unit. CDF failed to clean or sanitize the telephones or other surfaces these COVID-positive residents touched after receiving positive test results. Res. Decl. D ¶¶ 15-16, 19.
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103. Residents left in this unit—who were exposed to these two COVID-positive residents—were not given COVID tests, even when they requested them. Res. Decl. D ¶¶ 20-21.
104. Staff at CDF never tried to find out if residents on the unit who were exposed to these two COVID-positive residents were experiencing symptoms, nor did staff take temperatures of the exposed residents or engage in any attempt at contact tracing. Id.
105. CDF staff likewise failed to provide soap to exposed residents, even when residents requested soap. Res. Decl. D ¶¶ 25-27.
106. CDF’s refusal to put into place protocols that were followed throughout the facility laid the groundwork for the disaster that overtook CDF in early 2021.
c. Moving into 2021: Intermixing Among Cohorts and Other Individuals 107. One of CDF’s biggest failings since this outbreak began is in its complete inability or unwillingness to separate residents into different groups and to reduce the risk of spreading COVID. This process is called “cohorting.” 108. As described by Dr. Meyer (Meyer Decl. ¶ 27(l)), effective cohorting involves separating people into four homogenous groups based on their known disease status: 1) Intake quarantine: People entering the facility from the community or other
facilities and without COVID symptoms comprise one cohort that needs to be actively monitored for symptoms (and ideally tested) for 14 days prior to joining the general population. 2) Medical isolation: People with confirmed COVID infection comprise a second cohort that needs to be medically isolated to receive medical attention. 3) Post-exposure quarantine: People at-risk for COVID disease because of a known exposure must be separately quarantined and actively monitored for symptoms (and ideally tested and re-tested) following exposure. 4) General population includes people not in quarantine for any reason or isolation, confirmed to be COVID-negative and/or has not had known recent exposure.
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109. But from 2020 and continuing to the present, CDF has—in direct contravention of best practices and scientific guidance—facilitated and encouraged the intermixing of cohorts.
110. For instance, one new intake joined the unit under post-exposure quarantine. See Res. Decl. D ¶¶ 15-19.
111. Residents who have not tested positive have been forced into the uncleaned cells of residents who tested positive and have even crossed paths with those positive residents in the hallway when moving cells. Resident Declaration C (February 12, 2021 Supplemental Declaration of Joseph Speed) (“Res. Decl. C”) ¶ 11.
112. One resident was forced to remain locked in his cell with his symptomatic cellmate, who “had basically every symptom of COVID.” His cellmate reported his symptoms to CDF, but CDF kept the two residents in the same cell. CDF indeed never took action to remove the symptomatic cellmate. Instead, CDF waited until things got so bad that the cellmate was eventually taken out of the unit and taken to the hospital. Resident Declaration L (February 17, 2021 Declaration of Sirron Little) (“Res. Decl. L”) ¶¶ 12-14, 17-18 (“A few days before January 16, 2021, my cellmate had symptoms. He started off with a sore throat. As the days went on, it got worse. He got a real bad cough and fever. He lost his appetite. He had basically every symptom of COVID. He told the guards that he had symptoms a few days before January 16. . . . I thought they would isolate him from me, but we both were kept in the same cell. . . . I was sleeping with my mask on. I tried to clean my cell. But I couldn’t really sanitize it. . . .He finally left January 17. He had a real bad fever. They had to take him to the hospital because of the fever. He’s still in the hospital, I think.”).
113. As another example, one resident was left in a cell with his cellmate for two full days after the cellmate had tested positive. This resident was then moved to another unit in the
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facility, where he crossed paths with another resident who warned he had also tested positive for COVID. The resident was placed in the cell previously occupied by that positive individual. The cell was not cleaned, nor was the resident given any materials to clean the cell himself. Res. Decl. E ¶¶ 4-8.
114. Another resident with a preexisting medical condition found himself sharing a cell with a cellmate who was experiencing COVID symptoms on February 1. Again, it took two full days to move that non-symptomatic resident with a preexisting medical condition: around February 3, the resident was moved to a different unit. When this resident arrived in his new unit, there were two COVID-positive individuals moving freely around the common areas—spending time in the common areas prior to leaving for their new unit. Once again, the COVID-positive individuals’ cell was not cleaned before the non-positive resident was moved in. This resident— who had been exposed to multiple COVID-positive residents at this point—was not tested for COVID until February 13. He had not received the results of his test as of the time of this filing. Resident Declaration G (February 16, 2021 Declaration of Antonio Johnson) (“Res. Decl. G”) ¶¶ 13-16, 24.
115. The problem recurs again and again. Around February 6, CDF tested residents in a different unit of CDF. Results came back on February 9, with two individuals testing positive. Despite their positive results, CDF did not move those two positive residents immediately. Instead, they were permitted to wander the common areas of the cramped unit and were not removed until the following day, February 10. Other residents—who were exposed to the two COVID-positive individuals—were not asked whether they were experiencing symptoms. Instead, the unit was locked down on February 10. Resident Declaration K (February 18, 2021 Supplemental Declaration of Sedric Catchings) (“Res. Decl. K”) ¶¶ 2-6.
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116. Another resident—who has a preexisting condition and had already tested positive for COVID one time while housed at the facility, in or around August 2020—was also tested on February 6. This resident left his cell with his cellmate to be tested. Two days later, he visited the medical area of the facility, before receiving his test results, to seek treatment for an unrelated wound to his finger. On February 9, the resident learned he had tested positive for a second time. That day, officers locked the positive resident in his cell and tried to force his cellmate, who had tested negative, to return to the same cell with him. Later that day, when a new officer shift started, the positive resident was released from his cell for recreation time. Officers on this shift did not know he had tested positive until other officers arrived later that night to move him to the “cadre,” an area of CDF that has been prone to intermixing itself, as explained below. Moreover, the positive resident was never instructed to stay away from non-positive residents, who were released for recreation time while he was out of his cell. Resident Declaration H (February 13, 2021 Declaration of Collin Davis) (“Res. Decl. H”) ¶¶ 4, 19-29.
117. Staff reports corroborate resident reports. According to a corrections officer, “It was mass movement [February 3]. People were just walking around regularly.” Ex. EE (Outbreak of COVID-19 at Baltimore federal jail prompts lockdown even as feds prepare to resume grand jury proceedings, Baltimore Sun, Feb. 3, 2020); also available at https://www.baltimoresun.com/news/crime/bs-md-ci-cr-federal-prison-coronavirus-20210203trvhsshvtzgdvhj52l7dc5yn2a-story.html.
118. CDF also failed to separate potentially positive staff from the rest of the facility. That same corrections officer indicated that although CDF knew he was exposed to COVID, management did not tell him about his exposure until forcing him to work a double shift. Id.
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119. The more recent failures at CDF are also the most striking. On February 12, 2021, CDF moved a female resident to the “cadre,” which housed only males at the time. The woman was brand new to the facility, and at least one resident in the “cadre” had tested positive for COVID. Res. Decl. H ¶ 28. Beyond her potential risk of exposure to COVID, her placement in a male unit is inappropriate for health and safety in a jail. Meyer Decl. ¶ 27(l).
120. This failure—placing a new admit around COVID-positive individuals—is not an isolated incident. CDF did the same exact thing in early 2021, placing a new admission, a woman, into the “cadre.” A few days later, CDF moved multiple positive male residents into the unit. These positive residents were clearly symptomatic, with one “coughing a lot.” Resident Declaration M (February 18, 2021 Declaration of Juliet Cervellon) (“Res. Decl. M”) ¶¶ 6-7.
121. As this woman recounted: “I asked the guards why a male was in my unit. That didn’t make sense to me. That made me feel anxious and very uncomfortable . . . . The guards said there was nothing they could do. I told them I could hear that he was sick. They told me not to worry. I could hear him talking to his family members and saying that the reason he was in the ‘cadre’ was because he was having symptoms of COVID and that he had to be in that unit for 14 days. His cell was right next to mine—there was just a wall in between us.” Res. Decl. M ¶¶ 4, 18-20.
122. But CDF did nothing in respond to the female resident’s pleas for human decency. It doesn’t take a medical expert to know that CDF was putting her life at risk. But CDF turned the other cheek and repeated its approach of placing a new admit among COVID-positive men about one month later. Res. Decl. H ¶ 28. See also United States v. Hodges, 8:20−cr−00148−PX−1 (D. Md. Feb. 17, 2021) (hearing clarifying that Ms. Hodges was the woman moved into the “cadre” in mid-February).
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123. The impacts of this intermixing—as well as CDF’s denials that it was making these types of errors—is described in further detail below.
124. It should as no surprise that CDF has failed to meaningfully separate cohorts from one another. By its own admission, CDF struggles to track and record the movement of various residents around the facility. CDF’s “‘Dash Board’ record[,] which contains daily statistical information for the facility[,] . . . has been historically unreliable . . . .” See Ex. KK (E-mail from Sean Wolcoff of the U.S. Marshals Service dated February 18, 2021, entitled “Today’s DPSCS Meeting Notes”).
125. In sum, cohorting is not being done effectively and poses the risk of ongoing exposure within the facility. Meyer Decl. ¶ 27(l).
d. Failure to Contact Trace 126. CDF has also failed to meaningfully contact trace, often neglecting to ask residents exposed to positive residents whether they experienced any symptoms—let alone quarantine them from other residents. Meyer Decl. ¶ 29(d); see also, e.g., Res. Decl. D ¶ 5 (“CDF did not make me quarantine or isolate after that man was removed from the unit. Nobody checked my temperature, or asked me if I had any symptoms.”).
e. Cleaning Deficiencies 127. According to Dr. Meyer, until vaccination of the majority is achieved, required COVID prevention strategies must include containment procedures. Meyer Decl. ¶ 12 128. Containment procedures include intensive hand hygiene practices and decontamination and cleaning of surfaces. Meyer Decl. ¶ 12. Indeed, current outbreak protocols require frequent disinfection and decontamination of all surfaces of the facility, since the COVID virus survives for extended periods of time on materials that are highly prevalent in prisons, such as metals and other non-porous surfaces. Franco-Paredes Decl. ¶ 23.
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129. According to the CDC, infection prevention for COVID therefore requires no-cost access to soap and water for handwashing, along with frequent cleaning and disinfecting of hightouch surfaces with products containing bleach or at least 60% isopropyl alcohol. Meyer Decl. ¶ 32.
130. CDF has failed in employing effective containment policies. 131. The facility has failed to provide essential personal hygiene products to residents, and has even restricted residents’ access to running water for handwashing. Resident Declaration B (February 8, 2021 Declaration of Joseph Speed) (“Res. Decl. B”) ¶ 33; Res. Decl. D; Resident Declaration F (February 17, 2021 Declaration of Allen Lamin) (“Res. Decl. F”) ¶ 13. One resident recounts that even when she wanted to wash her hands, she had no ability to do so: “From January 12 to February 2, I did not have running water in my cell. I couldn’t wash my hands in the cell. I told the guards. They didn’t do anything.” Res. Decl. M ¶ 35. 132. CDF has been so abysmal in its provision of cleaning supplies that staff report that even they have to bring in their own cleaning supplies. Ex. EE. 133. The facility has likewise failed to consistently provide soap to residents free of charge or on a regular basis. Res. Decl. B ¶ 43; Res. Decl. D ¶¶ 25-27; Res. Decl. F ¶ 26; Res. Decl. K ¶ 7. CDF has not provided hand sanitizer in place of soap, either. Res. Decl. D ¶ 33; Res. Decl. F ¶ 14; Res. Decl. H ¶ 14; Resident Declaration I (February 12, 2021 Declaration of Devin Dorsey) (“Res. Decl. I”) ¶ 23; Res. Decl. J ¶ 21. 134. Similarly, the facility has not only failed to clean cells after positive residents are relocated, CDF staff have outright denied residents—forced to move into those contaminated cells—access to cleaning supplies so that the residents can try to disinfect the space on their own. Res. Decl. C ¶ 11.
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135. Indeed, some residents who request cleaning supplies are either ignored or told no supplies are available. Resident Declaration A (February 18, 2021 Declaration of Charles Couser) (“Res. Decl. A”), ¶¶ 23-23; Res. Decl. B ¶ 36; Res. Decl. C ¶ 11.
136. Likewise, surfaces in common areas are not cleaned between recreation shifts. Res. Decl. A ¶ 21; Res. Decl. B ¶ 34; Res. Decl. H ¶ 12. As described above, each unit houses up to 24 residents. CDF’s approach to recreation during the pandemic—whereby half of a unit is permitted out of the cells for recreation for one shift, and the other half is permitted out for recreation in a second, separate shift, Res. Decl. D ¶ 28-29; Res. Decl. F ¶ 12; Res. Decl. H ¶ 12; Res. Decl. J ¶ 19—accomplishes virtually nothing in the way of disease prevention.
137. It is difficult for residents to stay more than six feet apart during recreation time because the common areas are so small. Res. Decl. F ¶ 12; Res. Decl. H ¶ 13; Res. Decl. J; 25. CDF has also made no effort to clean the shared surfaces, like tables, microwaves, and telephones, between uses by separate groups of residents, Res. Decl. B ¶ 34.
138. In the nightmarish environment of the “cadre”—where CDF mixes newly admitted female residents with COVID-positive, symptomatic male residents—CDF does nothing to clean down common areas after confirmed positive residents mill about and touch surfaces. Res. Decl. M ¶¶ 18-19, 22, 24-26, 28 (“On January 8, a male detainee came into the ‘cadre’ unit. He was coughing a lot. . . . The guards said there was nothing they could do. . . . Every time the guy used the phone, he didn’t wipe down the phone. . . . After those four days, another guy came into the ‘cadre.’ This other guy was put on the other side of me. So I had a male detainee on both sides of me. This new guy was sick too. I could hear him coughing too. Then they put another guy on G6, two cells away. They then put another guy on G5, three cells away. These other two guys had symptoms too. . . . CDF staff never cleaned or sanitized any of the common areas on the ‘cadre.’”).
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f. Failure to Provide Masks or Enforce Social Distancing 139. In community settings, the average infected person passes the virus on to 2-3 other people; and transmission—which can happen via respiratory droplets—occurs over a distance of 3-6 feet. In congregate settings, such as prisons and jails, the average infected person can transmit the virus to 7-8 others. Newer variants are rapidly emerging globally and throughout the US that are even more contagious. Meyer Decl. ¶ 8. 140. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. Meyer Decl. ¶ 15. 141. Social distancing, which has been a hallmark of the U.S.’s COVID mitigation efforts, requires heightened diligence in the carceral setting. Absent intentional intervention, incarcerated people share close living quarters and bunk beds, dining halls, bathrooms, showers, telephones, libraries, and other common areas, each presenting dangerous opportunities for transmission. Spaces within correctional facilities are poorly ventilated, further promoting the spread of the disease. Franco-Paredes Decl. ¶ 33. 142. Thus, according to public health experts, the COVID pandemic requires proactive social distancing measures in correctional facilities to reduce the risk of transmission and death due to COVID within facilities. Franco-Paredes Decl. ¶ 43. 143. CDF has not only failed to proactively adopt social distancing; the facility has neither required nor enforced any degree of social distancing among residents. 144. Indeed, putting two people into most cells at CDF means that residents are physically unable to maintain six feet of distance from one another while inside their cells. According to one resident, he and his cell mate sleep approximately two feet apart from each other. Res. Decl. D ¶ 13; see also Res. Decl. B ¶ 14 (“JI has a dorm layout. There are 40 or so total beds. Each bed is about two feet from the next.”); Res. Decl. J ¶ 26 (“I also have a cellmate. I can’t stay
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six feet away from him in the cell.”). The residents in the cells next door are between two and four feet from this resident, such that “[w]hen the person in the next cell coughs, it’s like he’s coughing right next to” the resident. Res. Decl. D ¶ 12. Moreover, there is no apparent ventilation circulating clean air to the cells, such that all of these closely clustered residents are breathing “the same air.” Id. In this setting, social distancing is impossible.
145. When residents are allowed out of their cells for recreation, overcrowding (perhaps because the facility designed for single cells is now at twice its original capacity) again makes social distancing difficult, but not impossible. Due to the small size of the recreation areas, and in particular, the layout of the phone area, see Res. Decl. D ¶¶ 28-30, residents cannot remain six feet apart from one another during recreation, see Res. Decl. H ¶¶ 12-13; Res. Decl. I ¶ 20; Res. Decl. J ¶¶ 9, 26.
146. CDF officers do not even attempt to encourage or enforce distancing among residents. See Res. Decl. A; Res. Decl. B; Res. Decl. D; Res. Decl. F; Res. Decl. J ¶¶ 25 (“CDF doesn’t tell us to stay six feet apart from each other. Nobody comes over the speaker to tell us to socially distance. They don’t tell us that on the speaker. COs don’t tell us to stay six feet apart from each other.”); Res. Decl. I ¶¶ 18-19. Indeed, in early February, despite the outbreak across the facility, CDF let out around 20 residents to watch the Super Bowl—a reckless decision given the positive numbers at CDF at the time. Id. (“During rec time at CDF, COs don’t enforce masks. Not everybody wore masks, either. On Super Bowl Sunday, they had all 20 or so guys out on the unit. We all were watching the game. COs weren’t enforcing masks during this time either.”).
147. According to Dr. Meyer, a key infection prevention strategy of this droplet-borne disease is the widespread use of masks. Masks should be regularly cleaned and sanitized to
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optimize their effectiveness. Masks only work to protect people from infection when used and when worn correctly. Meyer Decl. ¶ 30.
148. CDF’s mask policies have been abysmal. 149. Neither residents nor staff at CDF wear masks correctly and consistently. See Res. Decl. A ¶ 22 (“On rec time, not everyone is wearing masks. COs aren’t telling people to wear masks.”); Res. Decl. B ¶ 42 (“When I was at CDF in January, I saw COs not wearing their masks.”); Res. Decl. D ¶ 41 (“The COs don’t always wear their masks. I’ve seen COs come onto the unit without masks.”); Res. Decl. F ¶ 12 (“During rec, a lot of guys are not wearing masks. When we’re on rec, COs don’t tell people to wear masks” and “I’ve seen COs not wearing masks.”). 150. In fact, when the absence of a mask on a staff member is noted by a resident, CDF officers have told residents that they do not need to wear a mask because they are “not sick.” Res. Decl. D ¶ 41 (“I’ve asked COs where their mask is, and they tell me that they aren’t sick so they don’t have to wear a mask.”). Corrections officers also wear their masks incorrectly, leaving their noses exposed and touch residents without wearing gloves. See id. ¶ 41 (“When COs do wear their masks, they sometimes don’t cover their nose and mouth—they sometimes just cover their mouth[.]”); Res. Decl. B; Res. Decl. C; Res. Decl. D (“During rec time, some guys don’t wear masks. CDF staff doesn’t tell guys during that time that they should be wearing masks. If there is a policy, they don’t tell us about it and they don’t care to enforce it.”); Res. Decl. E ¶ 19 (“When we come out for our hour a day for rec, they don’t make us wear masks.”); Res. Decl. G ¶ 25 (“When they let us out for that hour a day, nobody’s telling us to wear masks.”); Res. Decl. I ¶¶ 18-19 (“During rec time at CDF, COs don’t enforce masks. Not everybody wore masks, either. On
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Super Bowl Sunday, they had all 20 or so guys out on the unit. We all were watching the game. COs weren’t enforcing masks during this time either.”).
151. When outside their cells, it is “optional” for residents to wear masks. Masks are only “mandatory” when residents leave their specific unit and move throughout the facility. Res. Decl. H ¶ 13 (“Not everyone wears masks during rec. It’s not mandatory then. It’s only mandatory when you move outside the unit.”). Residents worried for their personal health and safety must try to police the mask-wearing of their fellow residents. Res. Decl. J ¶ 27 (“When people are out in common areas, I see them not wearing masks or not wearing them the right way . . . . On Friday, February 5, when I was on the phone, I saw two people on the tier with their masks pulled up, not covering their nose or mouth. COs didn’t say anything to them. I called out to them to wear their masks right. I see people on the tier without their masks.”)
152. Likewise, residents are not given access to adequate personal protective equipment (“PPE”), even when they specifically request it. Res. Decl. A ¶¶ 28-30 (“I’ve had the same mask that I had at JI. They’re not issuing new masks. I’ve asked for a new mask. I’ve asked for gloves. They said no, they don’t have any.”); Res. Decl. B ¶ 27 (“When I was at CDF, I didn’t get a mask until the end of 2020 from CDF. I got an extra mask when I got my teeth cleaned at the end of November 2020.”).
153. Some residents have not been given a mask by CDF at all. Res. Decl. J ¶ 22 (“When I got to CDF, I had a mask from another jail. It was made of cloth. CDF didn’t give me a mask.”).
154. CDF gives residents zero instructions on how to sanitize their masks. See Res. Decl. A, B, D, J.
155. In any event, residents are also not able to clean the masks they do have. To clean their masks, residents would have send them out with laundry, which takes at least a day (leaving
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the mask owner without protection while its gone) and requires that the mask owner be willing to risk having no mask at all, as laundry is routinely lost. Res. Decl. B ¶¶ 28-29. The mask CDF gave me was a cloth mask. . . . I didn’t want to put my mask in the laundry. All of our laundry gets washed all together. Plus, I’ve lost stuff in the laundry before. They only pick up laundry once a week. Sometimes they skip a week. They’ve been skipping it a lot lately because someone who did the laundry had COVID. When they do pick up laundry, it would take a day or two to get laundry back.”); see also Meyer Decl. ¶ 30(b).
g. Inhumane Treatment of COVID-Positive Residents 156. As appalling as CDF’s inexplicable disregard for the risk of COVID exposure and spread is, the facility’s treatment of residents who test positive is even more unconscionable. In fact, CDF residents who test positive for COVID are held in conditions that would befit not even cattle. 157. According to Dr. Meyer, a majority (80%) of people with symptomatic COVID infection will develop mild symptoms, such as fever, nausea/vomiting/diarrhea, body aches, fatigue, cough, and headaches, and will be able to recover with supportive care (which involves rest, hydration, and acetaminophen as needed for fevers). Although these symptoms are not always life-threatening, they may still require medical care. Meyer Decl. ¶ 35. 158. According to Dr. Meyer, during the course of COVID infection, approximately 20% of people will require hospitalization, 5% will require intensive care, and 1-2% will die. Severe disease and complications are more likely in individuals with predisposing risk factors, including age, chronic lung disease, chronic liver disease, chronic kidney disease, pregnancy, and suppressed immune systems. Meyer Decl. ¶ 35. 159. According to Dr. Meyer, residents of detention facilities in general and those specifically at CDF are more likely than people in the general population to experience these
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conditions and are therefore more likely to experience severe disease and death from COVID. Progression of respiratory symptoms in COVID can be extremely rapid, within 24 hours, requiring hospitalization, so people in medical isolation need to be diligently monitored for clinical worsening. Meyer Decl. ¶ 35.
160. As described above, people with mild symptoms may not require hospitalization but should continue to be closely monitored. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Meyer Decl. ¶ 10.
161. CDF has made a series of wildly inappropriate and dangerous decisions in addressing how to handle residents who test positive for COVID.
162. Some COVID-positive CDF residents are removed from CDF and sent to the Jail Industries Building (“JI”), an affiliated facility down the street from CDF. See Jail Industries Building/Baltimore Pre-Release Unit, https://www.dpscs.state.md.us/locations/bpru.shtml. As described above, originally built in 1922 as an office building and retrofitted as a jail in the 1980s, JI was closed in 2017 due to what public safety officials called a “security nightmare.” I-Team looks inside closing jail facility in Baltimore, Sept. 1, 2017, available at https://www.wbaltv.com/article/i-team-looks-inside-closing-jail-facility-in-baltimore/12139786 (containing a video tour of the then-closed facility).
163. This facility, which is best described as a broken-down, pest-plagued warehouse, would be an inhumane detention space for healthy inmates. For individuals who have already tested positive for a potentially deadly virus, it is nothing short of horrifying.
164. For instance, one COVID-positive resident who was recently housed at JI recently saw a thermostat in the building showing that the temperature was 55 degrees. Res. Decl. B ¶ 11
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(“It’s really cold in JI. I can see the thermostat. It says 55. But it’s even colder than that. I have a blanket on me right now.”). This is unsurprising, given the number of broken or drafty windows at the facility and the fact that January and February are two of the coldest months in the year. Res. Decl. B ¶ 12 (“It looks like a warehouse in here. Some of the windows are busted out. I can feel cold air coming in.”).
165. Indeed, the dormitory-style housing, see Res. Decl. B ¶ 14 (“JI has a dorm layout. There are 40 or so total beds. Each bed is about two feet from the next.”), has the COVID-positive residents at JI sleeping underneath these broken or drafty windows, despite the dangerously low outdoor temperatures, see id. ¶ 15 (“Our beds at JI are against the wall with the broken windows”).
166. Residents also are not given appropriate clothing for the temperature. Res. Decl. A ¶ 20 (“We had to use blankets to stay warm. It was really cold there.”). According to two JI residents, upon their arrival at JI, they were forced to turn in their clothing in exchange for papermaterial hospital shorts, a t-shirt, and shower shoes. Id. ¶ 19 (“When we got to JI, they took the clothes we came with from CDF. They put us in shower shoes. They tried to give us used underwear. We had to tell them we wouldn’t put it on until they gave us new underwear and socks. They gave us paper shorts, like what paper masks are made of. They gave us a short sleeve shirt.”); Res. Decl. B ¶ 13 (“When they moved me, they took all my clothes. They gave all of us at JI hospital shorts. We got a T-shirt and a pair of boxers.”)
167. Worse, these residents cannot even look forward to a hot meal for warmth. According to a CDF resident who was temporarily housed at JI, officers “pick up meal trays from CDF and bring them [down the street] to JI. The dinners are cold. There’s no microwave at JI, either.” Res. Decl. B ¶ 19.
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168. Cleanliness, too, is unattainable for COVID-positive JI residents. Not only is the facility itself dirty and not subject to regular cleaning, but the shower facilities are infested with flies. Res. Decl. A ¶ 16 (“When I was at JI, I never saw anyone clean anything.”).
169. Moreover, the water in the showers is not even hot. If these residents—who are enduring a deadly virus in near-freezing temperatures without adequate clothing—want to stay clean, they must also subject themselves to cold, or at best lukewarm, showers. Res. Decl. B ¶ 22 (“The showers here are really cold. The hot water doesn’t work. It doesn’t get hotter than a pool.”)
170. COVID-positive JI residents barely get to communicate with the world outside. Res. Decl. B ¶ 26 (“They cut off my phone calls from JI at 15 minutes.”).
171. When they are allowed to use the phones at the facility, they must do so within six to eight inches of the other COVID-positive JI residents. Res. Decl. B ¶ 18 (“There’s no social distancing at JI at all. When we use the phone, the phones are 6 to 8 inches apart from each other.”).
172. COVID-positive JI residents have no access to a commissary and are stripped of all possessions when they leave CDF. Res. Decl. B ¶ 21 (“There’s no commissary here at JI. I wasn’t allowed to bring anything.”).
173. COVID-positive JI residents receive little medical care, despite the fact that they are only in JI because they have contracted a deadly virus. The entirety of the medical care provided at JI is the following: residents’ vital signs and temperatures are checked once every five hours. Res. Decl. A ¶ 13; Res. Decl. B ¶ 20.
174. Residents are not asked to report their symptoms. Res. Decl. B. ¶¶ 20-25. Nobody listens to the residents’ lungs to be sure they are breathing normally. Res. Decl. A ¶ 14 (“Nobody ever put a stethoscope to my chest. Nobody tried to listen to my lungs.”).
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175. According to Dr. Meyer, the primary manifestation of severe COVID disease is pneumonia, which produces distinct lung sounds that could herald severe disease and reflect people’s subjective reports of shortness of breath. Simply marking down a patient’s vital signs— even with oxygen readings—is not sufficient medical care for COVID disease. Meyer Decl. ¶ 35(b).
176. COVID-positive JI residents are not even always given aspirin to help them manage the physical symptoms of COVID. Res. Decl. A ¶ 12 (“My first day at JI, I had really bad symptoms. I had diarrhea. I was using the toilet all the time. I had really bad headaches. I had a sore throat. I couldn’t smell or taste. I asked for some aspirin. They said they didn’t have any.”).
177. Even residents with preexisting conditions that make COVID notably more dangerous have been denied access to previously approved medical care.
178. According to one of two COVID-positive residents who was recently housed at JI with a preexisting condition, he had to go multiple days without his inhaler to treat his condition, one that is exacerbated by COVID—because he was forced to leave it at CDF. Res. Decl. B ¶ 10 (“I went from Tuesday, February 2, to Saturday, February 6, without my inhalers at JI.”).
179. The treatment of COVID-positive residents is inhumane. There is no explanation for why CDF is shipping out its residents to a cold warehouse and then stripping them of the medical care and monitoring they so desperately need.
h. Other Serious Deficits with Medical Care, including the Failure to Offer Vaccinations to All Eligible Residents
180. CDF does not sufficiently monitor for COVID symptoms in residents. Res. Decl. A ¶25 (“[N]obody is coming around asking me whether I have any symptoms”); Res. Decl. D ¶ 5 (“CDF did not make me quarantine or isolate after that man was removed from the unit. Nobody checked my temperature, or asked me if I had any symptoms.”); Res. Decl. F ¶ 11 (“When I was
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at JI, they didn’t ask whether we had any symptoms. [But g]uys had symptoms [such as] coughing, [or they] couldn’t really breathe.”).
181. One resident was denied his prescribed medication and instead given medication for diabetes and hypertensions—conditions from which he does not suffer. Had he taken those two medications, he may have suffered serious illness or death. Resident Declaration H (February 13, 2021 Declaration of Collin Davis) (“Res. Decl. H”) ¶¶ 23, 25 (“[On February 9,] a nurse came by and told me to take my diabetes and hypertension medication. . . . I told the nurse I wouldn’t take that medication. . . . On February 10, the same thing happened--a nurse came by and gave me medication that she said was for hypertension and diabetes. I called out for the captain and explained the situation and showed him my paperwork [showing the medication that resident did take, which he was not being given].”)
182. CDF does not respond to some sick calls at all. CDF is declining to take some residents to sick calls. Some residents don’t even have the chance to file sick call requests. Res. Decl. B ¶ 44 (“CDF doesn’t respond to sick calls. I put in a sick call . . . in the middle of January. I never got a response.”); Res. Decl. E ¶ 20 (“CDF isn’t letting people go down for sick calls.”); Resident Declaration G (February 16, 2021 Declaration of Antonio Johnson) (“Res. Decl. G”) ¶¶ 11, 21 (“I put in a lot of sick calls that nobody responded to . . . . There’s not a sick call box on my [current] unit now. They don’t come around with a sick call box, either.”).
183. On or about October 16, 2020, the Maryland Department of Health (“MDH”) submitted to the CDC and released to the public its draft COVID-19 Vaccination Plan (the “Plan”). The Plan’s purpose is to “provide a plan for the distribution, administration, recording, and communication of COVID-19 vaccines administered in the state of Maryland.” Maryland Department of Health, COVID-19 Vaccination Plan, at 7, available at
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https://phpa.health.maryland.gov/Documents/10.19.2020_Maryland_COVID19_Vaccination_Plan_CDCwm.pdf.
184. Under the Plan’s three-phased approach to vaccine administration, Maryland’s “initial COVID-19 vaccination efforts will target those at highest risk of developing complications from COVID-19[.]” Id. at 13.
185. The Plan’s Phase 1 vaccination category identifies target populations in the following six subcategories: (1) high risk healthcare workers; (2) first responders; (3) older adults in congregate or overcrowded settings; (4) members of the judiciary; (5) “people in prisons, jails, detention centers and staff”; and (6) “people with comorbid and underlying conditions that put them at significantly higher risk.” Id. at 45-46, App. 3 (emphasis added).
186. The Phase 1 subcategory of “people in prisons, jails, detention centers and staff” expressly includes “incarcerated/detained individuals” and “correctional officers, jailers, support staff.” Id.
187. The Phase 1 subcategory of “people with comorbid and underlying conditions that put them at significantly higher risk” expressly includes individuals who have chronic kidney disease, COPD, organ transplant(s), obesity, serious heart conditions, diabetes type 2, or comorbidity with any of these conditions. Id. at 46, App. 3.
188. An informational bulletin published by Governor Hogan and MDH on January 14, 2021, specifies that “high-risk incarcerated individuals” are to be offered access to the COVID-19 vaccine in Phase 1B of the Plan, noting that the State “plans” to enter Phase 1B on January 18, 2021. Office of Governor Larry Hogan in partnership with the Maryland Department of Health, Maryland’s Phased COVID-19 Vaccine Distribution (Jan. 14, 2021), https://governor.maryland.gov/wp-content/uploads/2021/01/Phases-One-Pager-1.pdf. According
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to MDH’s public-facing “COVIDLink” website, the State did, in fact, enter Phase 1B on January 18, 2021. Maryland Department of Health “GoVAX,” Maryland’s Phased COVID-19 Vaccine Distribution, https://covidlink.maryland.gov/content/wp-content/uploads/2021/01/MDH01718201_VaccinePrioritizationGuidance_Flyer_HR.pdf
189. Although Maryland is reportedly moving on to vaccinate persons in the general population eligible under Phase 1C of the Plan, there is no indication that all “high-risk incarcerated individuals” at CDF are being offered vaccinations. Maryland Department of Health, Maryland moves into Phase 1C of its COVID-19 vaccine distribution plan, opens eligibility to all residents 65 and up (Jan. 25, 2021), https://health.maryland.gov/newsroom/Pages/Marylandmoves-into-Phase-1C-of-its-COVID-19-vaccine-distribution-plan,-opens-eligibility-to-allresidents-65-and-up.aspx. The Plan does not specifically define the term “high risk individuals” but includes within that category: “Persons at highest risk of developing complications from COVID-19 (ACIP high risk conditions), including persons 65 and older, staff and residents of nursing homes (SNFs), long-term care facilities (LTCFs), assisted care facilities, and clients of senior daycare facilities or similar.” https://phpa.health.maryland.gov/Documents/10.19.2020_Maryland_COVID19_Vaccination_Plan_CDCwm.pdf, at 13 (emphasis added). It is clear the Plan intends to include at least a portion of the detainees at CDF within Phase 1, because the Plan goes on to estimate the population to be vaccinated in Maryland under the Plan in Phase 1 as including approximately 54,460 “people in prisons, jails, detention centers and staff.” Id. at 13.
190. Despite the acknowledgement that incarcerated and detained individuals, including those held in detention centers like CDF, are at high risk of contracting COVID-19, Defendants
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have violated Plaintiffs’ rights by depriving them vaccines based on their incarceration or pretrial detention status.
i. Overuse of Solitary Confinement 191. As described above, disciplinary segregation or solitary confinement is not an appropriate disease containment strategy. Meyer Decl. ¶ 18. 192. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Meyer Decl. ¶ 18. 193. In addition, if solitary confinement is a carceral facility’s response to COVID, people who are ill will be deterred from reporting their symptoms, resulting in their increased risk of severe disease and death and ongoing spread to others. Id. 194. Despite these clear incentives not to use punitive-style confinement as an effective means to control COVID, CDF is doing precisely that. 195. During apparently COVID-related lockdowns, residents (negative and positive alike) were held in their cells for 24 hours a day and not even allowed out to shower for multiple days—a confounding restriction, given the necessity of sanitation and hygiene to stop the spread of this virus. Res. Decl. F ¶18 (“I was here at CDF when it locked down. It was at least a couple days. We couldn’t get out to shower. It was 24 hours a day at some points.”); Res. Decl. G. 196. One resident recounts that “they didn’t open our cell doors for 25 hours. During that time, I had no water to wash my hands or to drink.” Res. Decl. M ¶¶ 38-39. The same resident recounts that “We got locked down a second time, and couldn’t leave our cells. The guard brought me some ice [because my sink in my cell did not function]. He said he wouldn’t bring me water. He told me to wait for the ice to melt.” Id.
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197. Other residents have been held—without explanations or test results—in units where they are locked inside their cells for 23 hours a day. Res. Decl. E ¶ 13 (“On this unit, we have to stay in our cell 23 hours a day.”); Res. Decl. A ¶ 29 (“They don’t tell us why they lock down the units. That happened a few times this year. On a few of the times they locked down, I couldn’t get out of my cell for any reasons, even to shower.”); Res. Decl. L ¶ 19; (“They locked down CDF in late January. They didn’t tell us why. They didn’t tell us they locked down because of COVID.”).
198. When residents in these lockdown-type situations experience COVID symptoms, they are kept in their cells, with the only access to medical care being occasional visits to check the residents’ vital signs. Res. Decl. E ¶¶ 14-15 (“I started to have breathing problems and major cramps in my stomach. I couldn’t taste or smell anything. It felt like a bunch of needles were in my nose. I started having these symptoms two days after they moved me. Nobody asked me whether I had symptoms. They just take my vitals and leave.”)
199. For those not being held inside their cells for 23 or 24 hours every day, they are nonetheless confined to the cells for 20 hours every day. Res. Decl. J ¶ 19 (“As of February 8, they’re letting us out of our cells for four hours a day--two hours in the morning and two hours in the afternoon.”)
200. One resident was told a member of the U.S. Marshal Service that the “bad conditions” at CDF (including, apparently lockdown measures) were because of their attorneys trying to get them out of jail. Res. Decl. D ¶ 51; Meyer Decl. ¶ 33. As recounted by Dr. Meyer, one resident reports perceiving this as punishment. Meyer Decl. ¶ 33.
201. One resident recounts that CDF staff told residents that the unit was locking down because “there weren’t enough guards to take care of us”—another example of a failure to
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appropriately plan on CDF’s part. Res. Decl. M ¶ 37. See also id. ¶ 38 (“[T]hey didn’t open our
cell doors for 25 hours. During that time, I had no water to wash my hands or to drink.”).
202. Nor does CDF provide any process to residents to challenge their placement in
lockdown.
j. CDF’s Mismanagement has Caused a Massive Outbreak
203. CDF’s catastrophic failure to employ even the most basic tenets of virus
containment and mitigation strategies has predictably led to a massive COVID outbreak. As
recounted by Dr. Meyer, based on her review of documents tracking the outbreak (which are
attached as exhibits to this complaint):
a. By January 13, “several” residents had tested positive, according to a memorandum from the Warden.[4] The memorandum does not indicate that the source of these positive cases was ever identified. These residents were all in the “working men housing[.]” . . . They potentially unknowingly transmitted the virus to others while working throughout the facility.
b. As of January 21, 45 residents tested positive, according to the same memorandum. The decision was then made to put all remaining individuals in C and F pods on quarantine. The fact that individuals from multiple different housing units were testing positive suggests that transmission was already widespread throughout the facility by the time it was identified.
c. Between January 1 and January 25, 73 residents and 20 staff tested positive, according to a public court filing in United States v. Mohr.[5] At this point, individuals who tested positive were then isolated in place from the general population in C and F pods. (It appears that C and F pods quickly switched from quarantine to isolation units.)
d. Prior to January 25, “COVID-19 positive inmates were being isolated at a separate facility, the Health Monitoring Facility (HMF),” according to a public court filing, which was based on conversations with “senior administrative and medical officials of the Maryland Department of Public Safety and Correctional Services (“DPSCS”) and the Maryland Attorney General’s Office, including the Assistant Secretary of DPSCS, the Chief Medical Officer, and the warden
4 Ex. FF hereto (Memorandum from Defendant Calvin Wilson, Warden, CDF, dated January 21, 2021) (originally filed in United States v. Bivens, Case No. 1:19-cr-00233-RDB (D. Md. Jan. 22, 2021), ECF No. 48-1). 5 Ex. GG (Government’s Response to Judicial Order, United States v. Mohr, Case No. 1:21-mj-00146-TMD (D. Md. Jan. 26, 2021))
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of the Chesapeake Detention Facility.”[6] By January 25, apparently, it was no longer practical to house positive residents at the “Health Monitoring Facility,” despite the stated “preference to isolate COVID-19 detainees at HMF.” CDF apparently had not identified any cases outside of C and F as of January 25, according to the public court filing in United States v. Mohr.[7]
e. As of January 25, CDF had still not identified “how the first . . . inmates were exposed,” according to the same filing. This indicates deficits in the contact tracing process.
f. The outbreak in C and F pods prompted testing of the entire resident population and all medical staff on January 30. It is unclear whether custody staff were included in this surveillance effort. As of January 31, 81 residents had tested positive, according to a court filing in United States v. Moore.[8]
g. As of February 5, the number of positive residents had increased to 156, along with 77 staff, according to public DPSCS data.
h. Per an update on February 10 in United States v. Cobb, the number of positive residents had increased to 160, with 25 individuals remaining in quarantine and 134 test results still pending. Even if the current outbreak is found to be contained, future outbreaks are inevitable in the absence of fully implemented disease prevention and management strategies.[9]
i. At least two declarants report being re-infected with COVID-19 during this outbreak. One reported being diagnosed with COVID-19 in August 2020 and again in February 2021. Another reported being diagnosed with COVID-19 in May 2020 and again in January 2021. These re-infections speak to the high degree of exposure and risk to residents inside CDF during this period. . . .
j. This timeline of explosive growth of the virus, as well as CDF quickly abandoning plans to isolate or quarantine in particular areas, demonstrates a failure to plan.
k. The failure to plan is played out in residents’ accounts of dangerous intermixing across different cohorts. Multiple residents report being put into close contact with positive residents, apparently as the facility was moving to create quarantine or isolation units. One resident also reports being left in a cell with his positive cellmate for multiple days before they moved the first resident out.
6 Id. 7 Id. 8 Ex. HH (Government’s Response to Judicial Order, United States v. Moore, Case No. 1:20-cr-00430-RDB (D. Md. Feb. 1, 2021)). 9 Ex. II (Response in Opposition to Defendant’s Motion to Reopen Detention Hearing and Order Pretrial Release, United States v. Cobb, Case No. 1:20-cr-00376-RDB (D. Md. Feb. 10, 2021)).
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There is also a report that after a positive resident was moved out of a cell, CDF permitted him to return to retrieve his belongings. This type of intermixing poses high risk of disease transmission and undermines the whole purpose of cohorting. It takes planning to ensure that different groups are appropriately separated—which appears to be absent here. Meyer Decl. ¶ 27. 204. The grave missteps of CDF were detailed at length at a detention hearing in United States v. Hodges, 8:20−cr−00148−PX−1 (D. Md. Feb. 17, 2021). Ms. Hodges—who is almost 70 years old, takes three medications a day for hypertension, and suffers from anxiety—was detained after an initial hearing on February 2, 2021. At that initial hearing, the United States Attorney's Office for the District of Maryland (USAO-MD) informed the District Court that Ms. Hodges would not be sent to CDF (presumably based on assurances from CDF itself, in light of the ongoing outbreak in the facility). Despite these assurances, Ms. Hodges was nonetheless placed at CDF pending her hearing on February 17. She was placed into a male unit at CDF, with a least four other residents who had tested positive for COVID—a wildly dangerous placement that intermixed different cohorts. 205. Like many other residents, CDF also forced Ms. Hodges to go without medication for multiple days. Ms. Hodges’ experience—also reflected in the declaration of another resident, see Res. Decl. H—shows the degree to which CDF has refused to change its practices in light of COVID. 206. That CDF affirmatively told USAO-MD that Ms. Hodges would not be placed at the facility, and then soon after did so anyway, speaks to the facility’s blatant disregard for the health and safety of residents—both new admits and existing residents. 207. As described above, things have gotten worse since the outbreak, with units mixing men and women and positive residents and new intakes.
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208. All of the Exhibits cited in and attached to this Complaint are incorporated by reference.
CLASS ACTION ALLEGATIONS 209. Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, the individual named Plaintiffs seek to certify two classes, with one subclass as follows: ● The Pretrial Class is defined as “all people detained in the Chesapeake Detention Facility who are not detained pursuant to a judgment of conviction.”
o The Medically Vulnerable Subclass is defined as “all Pretrial Class members whose medical condition renders them especially vulnerable to the coronavirus as determined by guidelines promulgated by the Centers for Disease Control and Prevention.” See U.S. Centers for Disease Control and Prevention, People Who Are At Higher Risk (last reviewed Feb. 18, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html.
● The Post-Conviction Class is defined as “all people detained in the Chesapeake Detention Facility who are detained pursuant to a judgment of conviction.” 210. The class allegations and law are set forth in more detail in the accompanying
motion for class certification. 211. A class action is the only practicable means by which the individually named
Plaintiffs and the class members can challenge Defendants’ unconstitutional actions. Many members of the class are without the means to retain an attorney to represent them in a civil rights lawsuit.
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212. The classes and subclass are so numerous that joinder of all members is impractical. There are about 400 people in the classes. Demographic data regarding the health of correctional populations, which is set forth above, indicates that the Medically Vulnerable Subclass likely consists of at least 50 of people (and likely many more). A sizeable percentage of the jail population is likely medically vulnerable to COVID. According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.” Elizabeth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019). Another study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with diabetes, and 30% have hypertension. See Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
213. There are questions of law and fact common to all class members and the subclass, including, among many others:
a. Do CDF’s conditions create a substantial risk that the people in its custody will be infected with COVID?
b. Do CDF’s conditions create a substantial risk that the people in its custody who are infected with COVID will face serious illness, long-term physical damage, or death?
c. Did Defendants know, or should Defendants have known, of these risks? d. Are Defendants acting with deliberate indifference to these risks? e. For the subclass: Is the risk of harm posed by CDF’s conditions so severe and
so immediate that the only adequate remedy is release?
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214. The claims of the class representatives are typical of the claims of the classes and of the subclass. That typicality stems from their claim that Defendants have placed them at significant risk of serious harm by failing to take appropriate steps to address the risk of COVID in CDF. Every person at CDF faces a heightened risk of risk of contracting COVID and facing serious illness, physical injury, or death if Defendants do not adequately protect them.
215. The claims of the Medically Vulnerable Subclass representatives are typical of the subclass members as well, as each member is subject to increased risk of substantial harm or death due to their existing medical conditions.
216. The individually-named Plaintiffs will fairly and adequately represent the interests of the classes and subclass. The named Plaintiffs have no conflicts with the unnamed members of the proposed classes. In addition, their lawyers are experienced in federal court civil rights class actions, particularly those involving prisons and jails.
217. Defendants have failed to act in a manner that applies generally to the classes and subclass as a whole, rendering class-wide injunctive and declaratory relief appropriate.
COUNT I 42 U.S.C. § 1983 (on behalf of all Class members) Fifth / Fourteenth and Eighth Amendments: Jail Conditions
(against Defendants Wilson and Green) 218. Plaintiffs repeat and re-allege each of the preceding paragraphs as if fully set forth in this Count. 219. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendants of their rights under the Fifth / Fourteenth Amendments and Eighth Amendment to reasonably safe living conditions. Defendants Wilson and Green are aware of the substantial risk of harm that COVID poses to all individuals, and are further aware of the particular risks of severe illness and possible death that Plaintiffs face as a result of the conditions in CDF.
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Despite this knowledge, Defendants have failed to take reasonable measures to mitigate these dangers.
220. Defendants acted with deliberate indifference to the health concerns of the Plaintiffs.
221. As a result of Defendants’ actions and inactions, class members face a substantial risk of contracting COVID and sustaining a serious illness that could lead to death.
222. Defendants’ failure to take appropriate steps to curb the substantial threat posed by COVID to each person in his custody, as described more fully above, violates Plaintiffs’ rights to unreasonable risk of death and bodily harm.
223. Consequently, Defendants are in continuous violation of these Plaintiffs’ rights and the rights of the members of the class under the Fifth / Fourteenth and Eighth Amendments to the United States Constitution.
224. Plaintiffs seek injunctive and declaratory relief against Defendants Wilson and Green to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
COUNT II Petition for Writs of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(on behalf of Medically Vulnerable Subclass) (against Respondent Wilson)
225. Plaintiffs repeat and re-allege each of the preceding paragraphs as if fully set forth in this Count.
226. Petitioners are not in custody pursuant to a judgment of conviction of a court. They are all pretrial detainees, presumed innocent.
227. Respondent Wilson is holding members of the Medically Vulnerable Subclass in custody in violation of the Due Process Clause of the Fifth / Fourteenth Amendments to the Constitution of the United States.
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228. Respondent Wilson acted with deliberate indifference to the health concerns of the Plaintiffs/Petitioners.
229. Due Process forbids exposing Petitioners to a severe risk of death, pain, or permanent severe injury, and there are presently no options available to mitigate that risk quickly enough to protect this subclass other than immediate release from custody.
COUNT III 42 U.S.C. § 1983 (on behalf of all Class members) Fifth / Fourteenth and Eighth Amendments: Solitary Confinement
(against Defendants Wilson and Green) 230. Plaintiffs repeat and re-allege each of the preceding paragraphs as if fully set forth in this Count. 231. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendants of their rights under the Fifth / Fourteenth and Eighth Amendments to reasonably safe living conditions. 232. Defendants Wilson and Green are aware of the substantial risk of psychological and physiological harm that the Jail’s indefinite lockdown policy imposes on prisoners but repeatedly implemented. Moreover, Defendants have done so despite the availability of other, more effective means of enacting social distancing. 233. Defendants acted with deliberate indifference to the health concerns of the Plaintiffs. 234. As a result of Defendants’ actions and inactions, class members face a substantial risk of psychological and physiological harm. 235. Consequently, Defendants are in continuous violation of these Plaintiffs’ rights and the rights of the members of the classes under the Fifth / Fourteenth and Eighth Amendments to the United States Constitution.
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236. Plaintiffs seek injunctive and declaratory relief against Defendants Wilson and Green to prevent the continued violation of the rights of Plaintiffs and the classes they represent.
COUNT IV 42 U.S.C. § 1983 (on behalf of all Class members) Fifth / Fourteenth and Eighth Amendments: Due Process & Solitary Confinement
(against Defendants Wilson and Green) 237. Plaintiffs repeat and re-allege each of the preceding paragraphs as if fully set forth in this Count. 238. Plaintiffs and the classes they represent have been deprived and continue to be deprived by the Defendants of their state-created liberty interests under the Fifth / Fourteenth and Eighth Amendments without due process. 239. Residents have not given opportunities to challenge their placement in solitary confinement conditions. 240. These conditions constitute an atypical and significant hardship relative to the ordinary incidents of life at a detention facility. 241. CDF lacks any process for determining whether a particular resident must be placed in these conditions or when these conditions, as a general matter or in a particular housing unit, may end. 242. Defendants acted with deliberate indifference to the health concerns of the Plaintiffs. 243. Consequently, Defendants are in continuous violation of these Plaintiffs’ rights and the rights of the members of the classes under the Fifth / Fourteenth and Eighth Amendments to the United States Constitution.
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REQUEST FOR RELIEF WHEREFORE, Plaintiffs on behalf of themselves and the classes they seek to represent, request that this Court enter judgment in their favor and against Defendants and order the following relief, including issuance of a temporary restraining order, preliminary injunction, and final judgment for all Class members requiring Defendants to implement constitutionally sufficient procedures to protect their health and safety that are consistent with CDC guidelines and the expert judgment of correctional health specialists, including but not limited to: a) An inspection of CDF and its records (including medical records, movement records, and contact-tracing records) by an independent expert to be chosen by the Court with the parties’ input; b) An order to CDF requiring the facility, its staff, and contractors to effectively communicate to all residents sufficient information about COVID, measures to reduce the risk of transmission, and any other information necessary to reasonably ensure that these individuals are aware of what precautions they can take to prevent infection (including information about the benefits and drawbacks of vaccinations); c) An order that CDF ensure each resident receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day; (2) tissues; and (3) adequate access to a supply of cleaning and disinfectant products effective against COVID to allow for cleanings of frequently-touched surfaces several times per day; d) An order that CDF clean and disinfect frequently-touched surfaces in common areas several times per day, including phones;
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e) An order that CDF provide adequate medical care to residents, whether because of COVID symptoms, chronic health conditions, or any other medical issue;
f) An order that CDF create and enact social distancing policies that allow for adequate spacing of six feet or more between residents;
g) An order that CDF ensure that residents have adequate access to phones to contact counsel and/or family members such that residents need not congregate at the phones;
h) An order that CDF provide appropriate Personal Protective Equipment (PPE) to residents and staff according to the CDC’s recommendations, and receive appropriate instruction about how to wear and clean it;
i) An order that CDF end preemptive lockdown procedures and instead impose appropriate time-limited quarantines, with that time limit clearly communicated to residents, only when necessary due to a known or suspected case of COVID, as recommended by medical and public health professionals;
j) An order that CDF implement appropriate cohorting, including quarantining and medical isolation procedures, as recommended by CDC guidelines;
k) To the extent a resident must enter lockdown or isolation to effectuate an appropriate quarantine or medical isolation procedure, an order that CDF provide appropriate mental health services, and, if that resident has a mental health condition, provide enhanced psychological services in these circumstances;
l) An order that CDF offer appropriate mental health services to all residents; m) An order that CDF ensure that isolation, cohorted isolation, and quarantine cells are clean and sanitary, and that residents in them receive adequate medical monitoring, adequate
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hygiene products, reading material, reasonable access to phones, a daily change of clothes, and the opportunity to shower once daily;
n) An order that CDF immediately create and implement a plan that complies with CDC Guidance to minimize transmission to and provide adequate medical monitoring and care to residents who are medically vulnerable to COVID;
o) To the extent it is necessary to ensure constitutionally sufficient procedures or to protect certain residents’ constitutional rights, order the Warden to transfer residents to another appropriate facility;
p) An order that CDF provide a list of all medically vulnerable residents, as defined by plaintiffs’ expert declarations, to Plaintiffs’ counsel within 24 hours;
q) An order that CDF immediately offer vaccinations to all members of the Medically Vulnerable Subclass who qualify as “high risk,” as defined by Maryland guidance (Currently, Maryland’s vaccination phase includes “high risk” residents of jails and prisons. See https://coronavirus.maryland.gov/pages/vaccine);
r) An order that CDF immediately release, pursuant to a writ or writs of habeas corpus, members of the Medically Vulnerable Subclass;
s) If this Court does not immediately release the Medically Vulnerable Subclass, an order that CDF consider subclass members for release on non-monetary bond pending the outcome of their request for habeas relief;
t) Issue an order and judgment granting reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988 and 28 U.S.C § 2241; and
u) Grant such other relief as this Court deems just and proper.
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Dated: February 20, 2021

Respectfully submitted,
/s/ Alec W. Farr Alec W. Farr (Federal Bar No. 12513) awfarr@bclplaw.com Daniel C. Schwartz (pro hac vice to be submitted) dcschwartz@bclplaw.com Adam L. Shaw (pro hac vice to be submitted) adam.shaw@bclplaw.com Joscelyn T. Solomon (Federal Bar No. 21555) joscelyn.solomon@bclplaw.com Brett R. Orren (pro hac vice to be submitted) brett.orren@bclplaw.com
BRYAN CAVE LEIGHTON PAISNER LLP 1155 F Street, NW Washington, DC 20004 (202) 508-6000 Phone (202) 508-6200 Facsimile
/s/ Tianna Mays Tianna Mays (Bar No. 21597) tmays@lawyerscommittee.org Jon Greenbaum (pro hac vice to be submitted) jgreenbaum@lawyerscommittee.org Arthur Ago (pro hac vice to be submitted) aago@lawyerscommittee.org John Fowler (pro hac vice to be submitted) jfowler@lawyerscommittee.org Rochelle F. Swartz (pro hac vice to be submitted) rswartz@lawyerscommittee.org
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1500 K Street NW Suite 900 Washington, DC 20005 Phone 202-662-8600 Fax 202-783-0857 Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I, Adam L. Shaw, an attorney, hereby certify that on February 20, 2021, I caused a copy of the foregoing to be filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on the Attorney General of the State of Maryland via email at the address below. Brian E. Frosh Maryland Attorney General 200 St Paul Pl. Baltimore, MD 21202 civil_service@oag.state.md.us
/s/ Adam L. Shaw Adam L. Shaw
64

 
 U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:21-cv-00428-TSE

CASREF

Catchings et al v. Wilson et al Assigned to: Judge T. S. Ellis Referred to: Magistrate Judge Michael S Nachmanoff Cause: 42:1983pr Prisoner Civil Rights

Date Filed: 02/20/2021 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Sedric Catchings

represented by Alec W Farr Bryan Cave Leighton Paisner LLP 1155 F St NW Ste 700 Washington, DC 20004 12025086053 Fax: 12025086200 Email: awfarr@bclplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam L Shaw Bryan Cave Leighton Paisner LLP 1155 F St. NW Washington, DC 20004 2025086078 Fax: 2022207378 Email: adam.shaw@bclplaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Arthur Ago Lawyers' Committee for Civil Rights Under Law 1500 K Street, Suite 900 Washington, DC 20005 2026628352 Fax: 2027830857 Email: aago@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel C Schwartz Bryan Cave Leighton Paisner LLP 1155 F St. NW Washington, DC 20004 2025086000 Fax: 2025086200 Email: dcschwartz@bclplaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
John Fowler Lawyers' Committee for Civil Rights Under Law 1500 K Street, Suite 900 Washington, DC 20005 2026628340 Fax: 2027830857 Email: jfowler@lawyerscommittee.org ATTORNEY TO BE NOTICED
Jon Marshall Greenbaum Lawyers Committee for Civil Rights Under Law 1500 K St. NW Ste. 900 Washington, DC 20005 2026628315 Fax: 2027830857 Email: jgreenbaum@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Joscelyn Solomon Bryan Cave Leighton Paisner LLP 1155 F St NW Washington, DC 20004 202-508-6171 Email: joscelyn.solomon@bclplaw.com ATTORNEY TO BE NOTICED
Rochelle F Swartz Lawyers' Committee for Civil Rights Under Law 1500 K Street, Suite 900

Plaintiff Charles Couser

Washington, DC 20005 2028642594 Fax: 2027830857 Email: rswartz@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Tianna Jade Mays Lawyers Committee for Civil Rights Under Law 1500 K Street, Suite 900 Washington, DC 20005 3012324649 Email: tianna.mays@gmail.com ATTORNEY TO BE NOTICED
represented by Alec W Farr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L Shaw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Arthur Ago (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel C Schwartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Fowler (See above for address) ATTORNEY TO BE NOTICED
Jon Marshall Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Collin Davis

Joscelyn Solomon (See above for address) ATTORNEY TO BE NOTICED
Rochelle F Swartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tianna Jade Mays (See above for address) ATTORNEY TO BE NOTICED
represented by Alec W Farr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L Shaw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Arthur Ago (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel C Schwartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Fowler (See above for address) ATTORNEY TO BE NOTICED
Jon Marshall Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joscelyn Solomon (See above for address)

Plaintiff Allen Lamin

ATTORNEY TO BE NOTICED
Rochelle F Swartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tianna Jade Mays (See above for address) ATTORNEY TO BE NOTICED
represented by Alec W Farr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L Shaw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Arthur Ago (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel C Schwartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Fowler (See above for address) ATTORNEY TO BE NOTICED
Jon Marshall Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joscelyn Solomon (See above for address) ATTORNEY TO BE NOTICED
Rochelle F Swartz

Plaintiff Sirron Little

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tianna Jade Mays (See above for address) ATTORNEY TO BE NOTICED
represented by Alec W Farr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L Shaw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Arthur Ago (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel C Schwartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Fowler (See above for address) ATTORNEY TO BE NOTICED
Jon Marshall Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joscelyn Solomon (See above for address) ATTORNEY TO BE NOTICED
Rochelle F Swartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Taiwo Moultrie

Tianna Jade Mays (See above for address) ATTORNEY TO BE NOTICED
represented by Alec W Farr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L Shaw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Arthur Ago (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel C Schwartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Fowler (See above for address) ATTORNEY TO BE NOTICED
Jon Marshall Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joscelyn Solomon (See above for address) ATTORNEY TO BE NOTICED
Rochelle F Swartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tianna Jade Mays

Plaintiff Joseph Speed

(See above for address) ATTORNEY TO BE NOTICED
represented by Alec W Farr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L Shaw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Arthur Ago (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel C Schwartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Fowler (See above for address) ATTORNEY TO BE NOTICED
Jon Marshall Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joscelyn Solomon (See above for address) ATTORNEY TO BE NOTICED
Rochelle F Swartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tianna Jade Mays (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Howard Thomas
V.

represented by Alec W Farr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam L Shaw (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Arthur Ago (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel C Schwartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Fowler (See above for address) ATTORNEY TO BE NOTICED
Jon Marshall Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joscelyn Solomon (See above for address) ATTORNEY TO BE NOTICED
Rochelle F Swartz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tianna Jade Mays (See above for address) ATTORNEY TO BE NOTICED

Defendant Calvin Wilson In his official capacity as Warden, Chesapeake Detention Facility Department of Corrections
Defendant Robert L. Green In his official capacity as Secretary of Public Safety and Correctional Services (Maryland), Department of Public Safety and Correctional Services

represented by Ariel S. Lichterman Office of the Attorney General of Maryland 300 E. Joppa Road, Suite 1000 Towson, MD 21286 410-339-7584 Fax: 410-764-5366 Email: ariel.lichterman@maryland.gov ATTORNEY TO BE NOTICED
Laura Mullally Maryland Office of the Attorney General 300 East Joppa Road Suite 1000 Towson, MD 21286 410-339-7339 Email: laura.mullally@maryland.gov ATTORNEY TO BE NOTICED
Matthew W Mellady Maryland Dept. of Public Safety and Correctional Services Police and Correctional Training Commissions 6852 4th Street Sykesville, MD 21784 4108753603 Fax: 4108753500 Email: matthew.mellady@maryland.gov ATTORNEY TO BE NOTICED
represented by Ariel S. Lichterman (See above for address) ATTORNEY TO BE NOTICED
Laura Mullally (See above for address) ATTORNEY TO BE NOTICED
Matthew W Mellady

(See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/20/2021
02/20/2021 02/20/2021 02/20/2021 02/20/2021

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against Robert L. Green, Calvin Wilson ( Filing fee $ 402 receipt number 0416-9120701.), filed by Taiwo Walter Moultrie, Collin Davis, Joseph Windsor Speed, Charles Couser, Howard Garrick Corneli Thomas, Sedric Tavon Catchings, Allen Lamin, Sirron Little. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit AA, # 17 Exhibit BB, # 18 Exhibit CC, # 19 Exhibit DD, # 20 Exhibit EE, # 21 Exhibit FF, # 22 Exhibit GG, # 23 Exhibit HH, # 24 Exhibit II, # 25 Exhibit JJ, # 26 Exhibit KK, # 27 Exhibit Meyer Expert Declaration with CV, # 28 Exhibit Franco-Paredes Expert Declaration with CV, # 29 Exhibit Haney Expert Declaration with CV, # 30 Summons to Defendant Wilson, # 31 Summons to Defendant Green)(Farr, Alec) (Entered: 02/20/2021)
2 -SEALED - NOTICE of Filing Under Seal Res. Decl. B to Complaint by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, (Attachments: # 1 Exhibit B Unredacted)(Farr, Alec) (Entered: 02/20/2021)
3 -SEALED - NOTICE of Filing Under Seal Res. Decl. C to Complaint by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, (Attachments: # 1 Exhibit C Unredacted)(Farr, Alec) (Entered: 02/20/2021)
4 -SEALED - NOTICE of Filing Under Seal Res. Decl. D to Complaint by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, (Attachments: # 1 Exhibit D Unredacted)(Farr, Alec) (Entered: 02/20/2021)
5 -SEALED - NOTICE of Filing Under Seal Res. Decl. F to Complaint by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, (Attachments: # 1 Exhibit F Unredacted)(Farr, Alec) (Entered: 02/20/2021)

02/20/2021

6 -SEALED - NOTICE of Filing Under Seal Res. Decl. G to Complaint by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, (Attachments: # 1 Exhibit G Unredacted)(Farr, Alec) (Entered: 02/20/2021)

02/20/2021

7 -SEALED - NOTICE of Filing Under Seal Res. Decl. H to Complaint by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, (Attachments: # 1 Exhibit H Unredacted)(Farr, Alec) (Entered: 02/20/2021)

02/20/2021

8 -SEALED - NOTICE of Filing Under Seal Res. Decl. J to Complaint by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, (Attachments: # 1 Exhibit J Unredacted)(Farr, Alec) (Entered: 02/20/2021)

02/20/2021

9 -SEALED - NOTICE of Filing Under Seal Res. Decl. L to Complaint by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, (Attachments: # 1 Exhibit L Unredacted)(Farr, Alec) (Entered: 02/20/2021)

02/20/2021

10 -SEALED - NOTICE of Filing Under Seal Res. Decl. N to Complaint by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, (Attachments: # 1 Exhibit N Unredacted)(Farr, Alec) (Entered: 02/20/2021)

02/20/2021

11 MOTION to Seal by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas (Attachments: # 1 Text of Proposed Order)(Farr, Alec) (Entered: 02/20/2021)

02/21/2021

12 NOTICE by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas re 1 Complaint,,,, for the Clerk to Issue Corrected Summonses (Attachments: # 1 Summons Corrected Proposed Summons to Defendant Wilson, # 2 Summons Corrected Proposed Summons to Defendant Green)(Farr, Alec) (Entered: 02/21/2021)

02/21/2021 13 MOTION to Appear Pro Hac Vice for Rochelle F. Swartz (Filing fee $100, receipt number 0416-9120781.) by Sedric Tavon Catchings(Mays, Tianna) (Entered: 02/21/2021)

02/21/2021 14 MOTION to Appear Pro Hac Vice for John Fowler (Filing fee $100, receipt number 0416-9120782.) by Sedric Tavon Catchings(Mays, Tianna) (Entered: 02/21/2021)

02/21/2021 15 MOTION to Appear Pro Hac Vice for Arthur Ago (Filing fee $100, receipt number 0416-9120783.) by Sedric Tavon Catchings(Mays, Tianna) (Entered: 02/21/2021)

02/21/2021

16 MOTION to Appear Pro Hac Vice for Jon Greenbaum (Filing fee $100, receipt number 0416-9120784.) by Sedric Tavon Catchings(Mays, Tianna) (Entered: 02/21/2021)

02/22/2021 17 ORDER regarding potential conflict which requires recusal. Signed by Judge George Levi Russell, III on 2/22/2021. (krs, Deputy Clerk) (Entered: 02/22/2021)

02/22/2021

Case reassigned to Judge Catherine C. Blake. Judge George Levi Russell, III no longer assigned to the case. (cags, Deputy Clerk) (Entered: 02/22/2021)

02/22/2021

Case reassigned to Judge T. S. Ellis. Judge Catherine C. Blake no longer assigned to the case. (cags, Deputy Clerk) (Entered: 02/22/2021)

02/22/2021

18 Emergency MOTION for Temporary Restraining Order and, MOTION for Preliminary Injunction by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas (Attachments: # 1 Memorandum in Support, # 2 Exhibit List, # 3 Text of Proposed Order)(Farr, Alec) (Entered: 02/22/2021)

02/22/2021

19 MOTION to Certify Class by Sedric Tavon Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Walter Moultrie, Joseph Windsor Speed, Howard Garrick Corneli Thomas (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit List, # 4 Text of Proposed Order)(Farr, Alec) (Entered: 02/22/2021)

02/23/2021 20 Summons Issued 21 days as to Robert L. Green, Calvin Wilson.(jb5, Deputy Clerk) (Entered: 02/23/2021)

02/23/2021

21 PAPERLESS ORDER granting 13 Motion to Appear Pro Hac Vice on behalf of Rochelle F Swartz. Directing attorney Rochelle F Swartz to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 2/23/2021. (srds, Deputy Clerk) (Entered: 02/23/2021)

02/23/2021 22 PAPERLESS ORDER granting 14 Motion to Appear Pro Hac Vice on behalf of John Fowler. Directing attorney John Fowler to register online

for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 2/23/2021. (srds, Deputy Clerk) (Entered: 02/23/2021)

02/23/2021

23 PAPERLESS ORDER granting 15 Motion to Appear Pro Hac Vice on behalf of Arthur Ago. Directing attorney Arthur Ago to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 2/23/2021. (srds, Deputy Clerk) (Entered: 02/23/2021)

02/23/2021

24 PAPERLESS ORDER granting 16 Motion to Appear Pro Hac Vice on behalf of Jon Marshall Greenbaum. Directing attorney Jon Marshall Greenbaum to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 2/23/2021. (srds, Deputy Clerk) (Entered: 02/23/2021)

02/24/2021

NOTICE of Hearing: Status Conference set for 2/26/2021 at 01:00 PM in Alexandria Courtroom 900 before District Judge T. S. Ellis. (tr2) (Entered: 02/24/2021)

02/24/2021 25 NOTICE of Appearance by Laura Mullally on behalf of Robert L. Green, Calvin Wilson (Mullally, Laura) (Entered: 02/24/2021)

02/24/2021

26 MOTION to Appear Pro Hac Vice for Daniel C. Schwartz (Filing fee $100, receipt number 0416-9127887.) by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas(Farr, Alec) (Entered: 02/24/2021)

02/24/2021

27 MOTION to Appear Pro Hac Vice for Adam L. Shaw (Filing fee $100, receipt number 0416-9127888.) by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas(Farr, Alec) (Entered: 02/24/2021)

02/24/2021

28 MOTION to Appear Pro Hac Vice for Brett R. Orren (Filing fee $100, receipt number 0416-9127889.) by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas(Farr, Alec) (Entered: 02/24/2021)

02/25/2021

29 PAPERLESS ORDER granting 26 Motion to Appear Pro Hac Vice on behalf of Daniel Schwartz. Directing attorney Daniel Schwartz to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 2/25/2021. (srds, Deputy Clerk) (Entered: 02/25/2021)

02/25/2021

30 Joint MOTION for Order Regarding Inspection Protocol by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas (Attachments: # 1 Text of Proposed Order Regarding Inspection Protocol, # 2 Exhibit Homer Venters CV)(Fowler, John) (Entered: 02/25/2021)

02/25/2021

31 PAPERLESS ORDER granting 27 Motion to Appear Pro Hac Vice on behalf of Adam L Shaw. Directing attorney Adam L Shaw to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-casefiling-registration. Signed by Clerk on 2/25/2021. (srds, Deputy Clerk) (Entered: 02/25/2021)

02/25/2021 32 NOTICE of Appearance by Ariel S. Lichterman on behalf of Robert L. Green, Calvin Wilson (Lichterman, Ariel) (Entered: 02/25/2021)

02/25/2021 33 NOTICE of Appearance by Matthew W Mellady on behalf of All Defendants (Mellady, Matthew) (Entered: 02/25/2021)

02/25/2021

34 Joint MOTION for Order Regarding Production of Certain Documents and Information and Adherence to Certain Policies by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas (Attachments: # 1 Text of Proposed Order Regarding Production of Certain Documents and Information and Adherence to Certain Policies)(Fowler, John) (Entered: 02/25/2021)

02/26/2021

35 PAPERLESS ORDER denying 28 Motion for Pro Hac Vice on the basis that the proposed admittee is a Maryland barred attorney. Under Local Rule 101.1.b.v, "[a]n attorney, who is an active member of the Maryland Bar or maintains any law office in Maryland, is ineligible for admission pro hac vice." Please visit https://www.mdd.uscourts.gov/admissioninformation for more information on full admission to the bar of this Court. Signed by Clerk on 2/26/2021. (srd, Deputy Clerk) (Entered: 02/26/2021)

02/26/2021 36 Status Conference held on 2/26/2021 before Judge T. S. Ellis.(Court Reporter: Patricia Kaneshira-Miller) (chs, Deputy Clerk) (Entered: 02/26/2021)

02/26/2021

NOTICE of Hearing:Status Conference set for Friday March 12, 2021 2:00 p.m. in Courtroom 900, 401 Courthouse Square, Alexandria, VA 22314 before Judge T. S. Ellis. (chs, Deputy Clerk) (Entered: 02/26/2021)

03/01/2021 37 ORDER directing parties to appear for in-person status conference on 3/12/2021 at 2:00 p.m. Signed by Judge T. S. Ellis on 3/1/2021. (krs, Deputy Clerk) (Entered: 03/01/2021)

03/01/2021

38 ORDER Directing Defendants to invite to the March 12, 2021 status conference (1) the Secretary of the Maryland Department of Public Safety and Correctional Services, or his senior representative, and (2) the Director of the Federal Bureau of Prisons, or a senior representative from the Department of Justice. Signed by Judge T. S. Ellis on 3/1/2021 (cags, Deputy Clerk) (Entered: 03/01/2021)

03/05/2021

39 ORDER directing defendant to invite the U.S. Marshal for the District of Maryland, or his senior representative to the 3/12/2021 status conference and to file promptly, on or before 3/9/2021 at 5:00 p.m., the lease arrangements with the Office of Federal Detention Trustee, United States Department of Justice, on behalf of the U.S. Marshals. Signed by Judge T. S. Ellis on 3/4/2021. (krs, Deputy Clerk) (Entered: 03/05/2021)

03/05/2021

40 ORDER REFERRING CASE to Magistrate Judge Michael S Nachmanoff for all Discovery. Signed by Judge T. S. Ellis on 3/5/2021. (cags, Deputy Clerk) (Entered: 03/05/2021)

03/08/2021

41 [FILED IN ERROR - per counsel] RESPONSE re 39 Order, filed by Robert L. Green, Calvin Wilson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mullally, Laura) Modified on 3/9/2021 (krs, Deputy Clerk). (Entered: 03/08/2021)

03/09/2021

42 Joint MOTION for Extension of Time for Motions to be Considered at Status Conference of March 12, 2021, by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas (Attachments: # 1 Text of Proposed Order)(Fowler, John) (Entered: 03/09/2021)

03/09/2021

43 ORDER granting 42 Parties' Joint Motion to Extend Deadline for Motions to beConsidered at Status Conference of 3/12/2021. The deadline for such motions is extended to 5 p.m. on 3/10/2021. Signed by Judge T. S. Ellis on 3/9/2021. (krs, Deputy Clerk) (Entered: 03/09/2021)

03/09/2021

44 Consent MOTION for Extension of Time to File Response/Reply by Robert L. Green, Calvin Wilson. (Attachments: # 1 Text of Proposed Order)(Mullally, Laura) (Entered: 03/09/2021)

03/10/2021

45 Status Report Submitted in Advance of Status Conference of March 12, 2021, by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas (Fowler, John) (Entered: 03/10/2021)

03/10/2021

NOTICE of Hearing: Status Conference reset for 3/12/2021 at 01:00 PM in Courtroom 900, 401 Courthouse Square, Alexandria, VA 22314 before District Judge T. S. Ellis III. (tr2) (Entered: 03/10/2021)

03/11/2021 46 Status Report Submitted in response to status report of plaintiffs by Robert L. Green, Calvin Wilson (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mullally, Laura) (Entered: 03/11/2021)

03/11/2021 47 Correspondence re: in response to court's order to file lease agreement (Attachments: # 1 Exhibit A - redacted, # 2 Exhibit B redacted)(Mullally, Laura) (Entered: 03/11/2021)

03/12/2021

48 Status Conference held on 3/12/2021 before Judge T. S. Ellis.(Court Reporter: Patricia Kaneshiro-Miller) (chs, Deputy Clerk) (Entered: 03/12/2021)

03/12/2021

NOTICE of Hearing: Class Certification and Status Conference set for April 16, 2021 at 10:00 AM before Judge T. S. Ellis, in Courtroom 900, Alexandria, VA. (chs, Deputy Clerk) (Entered: 03/12/2021)

03/15/2021

49 ORDER denying as moot 18 Motion for Temporary Restraining Order and 44 Motion for Extension of Time to File Response to the Motion for Temporary Restraining Order. Signed by Judge T. S. Ellis on 3/15/2021. (krs, Deputy Clerk) (Entered: 03/15/2021)

03/16/2021

AMENDED NOTICE of Hearing (Time Change): Status Conference and Hearing on Motion set for April 16, 2021 1:00 PM in Courtroom 900, 401 Courthouse Square, Alexandria, VA 22314 before Judge T. S. Ellis. (chs, Deputy Clerk) (Entered: 03/16/2021)

03/16/2021

NOTICE of Hearing:Hearing on Merits and Preliminary Injunction set for Wednesday June 2, Thursday June 3, and Friday June 4, 2021 at 10:00 AM in Courtroom 900, 401 Courthouse Square, Alexandria, VA 22314 before Judge T. S. Ellis. (chs, Deputy Clerk) (Entered: 03/16/2021)

03/17/2021

50 Status Report Submitted with Agreement between Plaintiffs and Defendants by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas (Attachments: # 1 Attachment Agreement between Plaintiffs and Defendants)(Fowler, John) (Entered: 03/17/2021)

03/19/2021

51 MOTION for Summary Judgment or to dismiss by Robert L. Green, Calvin Wilson. (Attachments: # 1 Memorandum in Support, # 2 Appendix index of exhibits, # 3 Exhibit 1, # 4 Exhibit A to Exhibit 1, # 5 Exhibit B to Exhibit `, # 6 Exhibit C to Exhibit 1, # 7 Exhibit D to Exhibit 1, # 8 Exhibit E to Exhibit 1, # 9 Exhibit F to Exhibit 1, # 10 Exhibit G to Exhibit 1, # 11 Exhibit H to Exhibit 1, # 12 Exhibit I to Exhibit 1, # 13 Exhibit J to Exhibit 1, # 14 Exhibit K to Exhibit 1, # 15 Exhibit L to Exhibit 1, # 16 Exhibit M to Exhibit 1, # 17 Exhibit N to Exhibit 1, # 18 Exhibit O to Exhibit 1, # 19 Exhibit P to Exhibit 1,

# 20 Exhibit Q to Exhibit 1, # 21 Exhibit R to Exhibit 1, # 22 Exhibit S to Exhibit 1, # 23 Exhibit T to Exhibit 1, # 24 Exhibit U to Exhibit 1, # 25 Text of Proposed Order)(Mullally, Laura) (Entered: 03/19/2021)

03/19/2021

52 Status Report Submitted re Signed Agreement between Plaintiffs and Defendants by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas (Attachments: # 1 Attachment Signed Agreement between Plaintiffs and Defendants)(Fowler, John) (Entered: 03/19/2021)

03/19/2021

53 Status Report Submitted re Continuing Disagreements with Defendants by Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas (Attachments: # 1 Exhibit DPSCS Protocol on Contract Tracing)(Fowler, John) (Entered: 03/19/2021)

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HudsonErdman 1:21-cv00428-TSE
1.40

 
 Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

SEDRIC CATCHINGS et al., Individually *

and on behalf of a class of similarly situated

persons,

*

Plaintiffs, v.
CALVIN WILSON, In his official capacity as Warden, Chesapeake Detention Facility Department of Corrections, et al.,
Defendants.

* Case No.: 1:21-cv-00428-CCB
*
*
*
*

*

*

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 2 of 44
TABLE OF CONTENTS Page
INTRODUCTION ...........................................................................................................................1 STATEMENT OF FACTS ..............................................................................................................8
a. CDF’s Failure to Plan for Introduction of Virus to the Facility .............................................................................................9
b. CDF Mismanagement in 2020 .......................................................10 c. Moving into 2021: Intermixing Among Cohorts and Other
Individuals......................................................................................11 d. Failure to Contact Trace.................................................................13 e. Cleaning Deficiencies ....................................................................13 f. Failure to Provide Masks or Enforce Social Distancing................15 g. Inhumane Treatment of COVID-Positive Residents .....................16 h. Other Serious Deficits with Medical Care, including the
Failure to Offer Vaccinations to All Eligible Residents ................17 i. Overuse of Solitary Confinement ..................................................18 j. CDF’s Mismanagement has Caused a Massive Outbreak .............19 ARGUMENT .................................................................................................................................20 I. A Temporary Restraining Order Should Immediately Issue to Address CDF’s Unconstitutional Conditions, with a More Comprehensive Preliminary Injunction to Follow...........................................................................20
i

Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 3 of 44 II. This Court Should Order Release of the Medically Vulnerable Subclass of
Pretrial Detainees Under 28 U.S.C. § 2241 ...........................................................29 III. Additional Interim Remedies Are Available to This Court. ..................................31 CONCLUSION ..............................................................................................................................35
ii

Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 4 of 44
TABLE OF AUTHORITIES
Page(s)
Cases
Abdullah v. Bush, 945 F.Supp.2d 64 (D.D.C. 2013), aff’d sub nom. Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014) ........................................................................................................34
Alderson v. Concordia Parish Corr. Facility, 848 F.3d 415 (5th Cir. 2017) ...................................................................................................22
Avendano Hernandez v. Decker, 450 F. Supp. 3d 443 (S.D.N.Y. 2020)......................................................................................34
Banks v. Booth, 459 F. Supp. 3d 143 (D.D.C. 2020) .....................................................................................3, 27
Banks v. Booth, 468 F. Supp. 3d 101 (D.D.C. 2020), reconsideration denied sub nom. Banks, No. CV 20-849(CKK), 2021 WL 260112 (D.D.C. Jan. 26, 2021) ........................................ 3-4
Basank v. Decker, 449 F. Supp. 3d 205 (S.D.N.Y. Mar. 26, 2020) .......................................................................31
Bolante v. Keisler, 506 F.3d 618 (7th Cir. 2007) ...................................................................................................33
Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000) ...................................................................................................23
Brown v. N.C. Dep’t of Corr., 612 F.3d 720 (4th Cir. 2010) ...................................................................................................25
Carranza v. Reams, No. 20-CV-00977-PAB, 2020 WL 2320174 (D. Colo. May 11, 2020) ..............................4, 27
Castillo v. Barr, 449 F. Supp. 3d 915 (C.D. Cal. 2020) .....................................................................................29
Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc) .................................................................................22
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983).................................................................................................................21
iii

Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 5 of 44
Coreas v. Bounds, 451 F. Supp. 3d 407 (D. Md. 2020) ........................................................................5, 22, 23, 28
Coreas v. Bounds, 457 F. Supp. 3d 460 (D. Md. 2020) .....................................................................................5, 23
Coreas v. Bounds, 458 F. Supp. 3d 352 (D. Md. 2020) .....................................................................................5, 23
Criswell v. Boudreaux, No. 120CV01048DADSAB, 2020 WL 5235675 (E.D. Cal. Sept. 2, 2020)..............................4
Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017).................................................................................................22, 27
DeGidio v. Pung, 920 F.2d 525 (8th Cir. 1990) ...................................................................................................23
Doe v. Barr, No. 20-CV-02141-LB, 2020 WL 1820667 (N.D. Cal. Apr. 12, 2020)....................................24
Duff v. Potter, 665 F. App’x 242 (4th Cir. 2016) ............................................................................................22
Estelle v. Gamble, 429 U.S. 97 (1976)...................................................................................................................22
Farmer v. Brennan, 511 U.S. 825 (1994).................................................................................................................25
Gray v. Cty. of Riverside, No. 5:13-CV-0444-VAP-OPX, 2020 WL 4243484 (C.D. Cal. Apr. 14, 2020) ......................32
Helling v. McKinney, 509 U.S. 25 (1993).................................................................................................21, 22, 23, 24
Jimenez v. Wolf, No. CV 18-10225-MLW, 2019 WL 7169413 (D. Mass. Dec. 24, 2019) ................................35
Johnson v. Epps, 479 F. App’x 583 (5th Cir. 2012) ............................................................................................23
Johnson v. Harris, 479 F. Supp. 333 (S.D.N.Y. 1979) ..........................................................................................33
Johnston v. Marsh, 227 F.2d 528 (3d Cir. 1955).....................................................................................................34
iv

Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 6 of 44
Jones v. Wolf, 467 F. Supp. 3d 74 (W.D.N.Y. 2020) ......................................................................................23
Kingsley v. Hendrickson, 576 U.S. 389 (2015).................................................................................................................22
Landano v. Rafferty, 970 F.2d 1230 (3d Cir. 1992)...................................................................................................34
Makdessi v. Fields, 789 F.3d 126 (4th Cir. 2015) ...................................................................................................26
Malam v. Adducci, 452 F. Supp. 3d 643 (E.D. Mich. 2020)...................................................................................30
Maney v. Brown, No. 6:20-CV-00570-SB, 2021 WL 354384 (D. Or. Feb. 2, 2021) ............................................3
Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001).........................................................................................33, 34, 35
Martinez v. Reams, No. 20-CV-00977-PAB-SKC, 2020 WL 8474726 (D. Colo. Dec. 4, 2020) .............................4
Martinez-Brooks v. Easter, 459 F. Supp. 3d 411 (D. Conn. 2020) ......................................................................4, 27, 30, 31
McBride v. Deer, 240 F.3d 1287 (10th Cir. 2001) ...............................................................................................24
Miranda v. Cty. of Lake, 900 F.3d 335 (7th Cir. 2018) ...................................................................................................22
Nam Dang by and through Vina Dang v. Sheriff, Seminole Cty. Florida, 871 F.3d 1272 (11th Cir. 2017) ...............................................................................................22
Ortuno v. Jennings, No. 20-CV-02064-MMC, 2020 WL 1701724 (N.D. Cal. Apr. 8, 2020) .................................29
Plata v. Brown, 427 F. Supp. 3d 1211 (N.D. Cal. 2013) .............................................................................32, 33
Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019), as amended (May 6, 2019) ................................................24, 26
Raynor v. Pugh, 817 F.3d 123 (4th Cir. 2016) ...................................................................................................21
v

Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 7 of 44
Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195 (D. Mass. 2019), appeal filed (1st Cir. Nov 4, 2019).............................33
Robinson v. California, 370 U.S. 660 (1962).................................................................................................................21
Ross v. Meese, 818 F.2d 1132 (4th Cir. 1987) .................................................................................................28
Savino v. Souza, 459 F. Supp. 3d 317 (D. Mass. 2020) ......................................................................................34
Seth v. McDonough, 461 F. Supp. 3d 242 (D. Md. 2020) .....................................................................................4, 21
Shakka v. Smith, 71 F.3d 162 (4th Cir. 1995) .....................................................................................................22
Thakker v. Doll, 451 F. Supp. 3d 358 (M.D. Pa. 2020) ......................................................................................30
United States v. Perkins, 53 F. App’x 667 (4th Cir. 2002) ........................................................................................33, 34
United States v. Wallen, 177 F. Supp. 2d 455 (D. Md. 2001) .........................................................................................33
Weikert v. Elder, No. 1:20-CV-03646-RBJ, 2021 WL 27787 (D. Colo. Jan. 4, 2021) .........................................4
Whitney v. City of St. Louis, 887 F.3d 857 (8th Cir. 2018) ...................................................................................................22
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................20
In re Wright, 826 F.3d 774 (4th Cir. 2016) ...................................................................................................30
Zepeda Rivas v. Jennings, 445 F. Supp. 3d 36 (N.D. Cal. 2020) .........................................................................................5
Statutes
28 U.S.C. § 2241.................................................................................................................... passim
42 U.S.C. § 1983..........................................................................................................................3, 5
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INTRODUCTION There is an uncontrolled COVID1 outbreak at the Chesapeake Detention Facility (“CDF”). According to Defendants’ own statistics, one-third of current residents2 (156 of approximately 400 residents) and staff members (78 of approximately 220 employees) have tested positive for COVID. ECF No. 1-27 ¶ 26, Expert Declaration of Dr. Jaimie Meyer (February 18, 2021) (“ECF No. 1-27”); COVID-19 Updates, Maryland Department of Public Safety and Corrections Services, https://news.maryland.gov/dpscs/covid-19/) (last visited Feb. 21, 2021) (reflecting higher number since Dr. Meyer’s review). This outbreak, and CDF’s failure to plan for and respond to it, is unconscionable. The nation is now nearly a year into the COVID-19 pandemic. Since March 2020, the CDC has promulgated, and then periodically updated, science-based guidelines and procedures designed to prevent the very type of uncontrolled COVID outbreak within jails and prisons that is now endangering the lives of hundreds of CDF residents. Id. ¶ 7; see also ECF No. 1-25, (Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (updated Dec. 31, 2020)), available online at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html. CDF has failed to implement the most basic of measures to protect residents and staff alike from COVID. ECF No. 1-27 ¶¶ 24-40. Meanwhile, when residents test positive, meanwhile, some are sent to a warehouse setting—the Jail Industries, or “JI,” Building—down the street from CDF with broken-out or drafty windows and a temperature near 55 degrees. Res. Decl. A, B, F (see ECF Nos. 1-2, 1-3, 1-

1

Severe acute respiratory syndrome coronavirus 2, or SARS-CoV-2, commonly called the “novel

coronavirus” or “coronavirus,” is the highly contagious and transmissible virus underlying this cause of action and

the events described in the Complaint. The virus frequently results in a disease, COVID-19. Plaintiffs refer to both

the virus and disease as “COVID” or “COVID-19.”

2

Plaintiffs use the term “residents” to refer to individuals detained at CDF and other facilities.

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7).3 There, COVID-positive residents are stripped of their belongings and given paper shorts and a t-shirt to wear as they try to recover from their illness. ECF No. 1-2. To state the obvious, this is nothing close to the sort of environment suitable for recovery from COVID.
CDF’s failures are legion. CDF does not sanitize cells when moving a COVID-positive resident out. CDF does not ensure that COVID-positive residents are moved prior to other residents entering a unit. E.g., ECF No. 1-4. CDF violates CDC guideline upon guideline. Cleaning materials are in short supply, e.g., ECF No. 1-2; residents cannot sanitize masks, e.g., ECF No. 1-3; CDF does not enforce social distancing or masking, e.g., ECF Nos. 1-3, 1-4, 1-5, 1-6; and some residents lack running water in their cells in order to maintain even a semblance of personal hygiene, e.g., ECF No. 1-14. Staff reports confirm residents’ accounts. ECF No. 1-20 (Tim Prudente & Phillip Jackson, Outbreak of COVID-19 at Baltimore federal jail prompts lockdown even as feds prepare to resume grand jury proceedings, Baltimore Sun, Feb. 3, 2020).
Named Plaintiffs and putative class members are currently and constantly in grave danger. CDF has demonstrated its inability to protect against the spread of COVID and to properly treat COVID-positive residents. During this most recent outbreak in January and February, two of the Named Plaintiffs have contracted COVID for the second time. ECF Nos. 12, 1-9. Many Plaintiffs have preexisting conditions that make them especially vulnerable to severe illness and death. Named Plaintiffs—along with approximately 400 other prisoners—are trapped in a detention facility that endangers the sick. Absent this Court’s intervention, many will suffer; some will die.
Troublingly, CDF has indicated that it intends on again resuming new admissions to the facility by the middle of the week of February 21. ECF No. 1-26.
3 For ease of reference, exhibits filed with the Complaint are hereinafter referred to by ECF number. A complete list of exhibits has been filed together with this brief in accordance with LR 105(5).
2

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“[I]ndividuals placed at CDF are at a significantly higher risk of infection with COVID19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected.” ECF No. 1-27 ¶ 41. “Future outbreaks will happen at CDF without additional measures.” Id. ¶ 42.
These conditions violate the named Plaintiffs’ and putative class members’ rights under the Eighth and Fifth / Fourteenth Amendments to the U.S. Constitution. Plaintiffs thus seek emergency relief under 42 U.S.C. § 1983 to bring CDF’s conditions in line with basic public health standards. In addition, a putative subclass of medically vulnerable prisoners (the “Medically Vulnerable Subclass”) seeks release under 28 U.S.C. § 2241.
Federal courts across the country, including this Court, have granted temporary restraining orders and preliminary injunctions in situations similar to, or even less lifethreatening, than this. See, e.g., Maney v. Brown, No. 6:20-CV-00570-SB, 2021 WL 354384, at *13, *16 (D. Or. Feb. 2, 2021) (granting preliminary injunction requiring that defendants offer vaccines to all residents of detention facilities statewide, such that individuals living in detention facilities are given the same priority as persons working in congregate-care and correctional settings); Banks v. Booth, 459 F. Supp. 3d 143, 162 (D.D.C. 2020) (granting TRO requiring (1) appropriate tracking and monitoring of new admissions when moved to general population, (2) consultation with public health experts, (3) additional staff training on temperature checks, (4) immediate steps to provide legal and personal calls, showers, and clean clothing, (5) social distancing, (6) clear communication to staff about personal protective equipment (PPE), (7), training of staff to ensure they wear masks correctly, (8) recommended consultation with a “sanitarian,” and (9) provision of adequate cleaning supplies); Banks v. Booth, 468 F. Supp. 3d 101 (D.D.C. 2020) (granting preliminary injunction, including requirement that “conditions in
3

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isolation units are non-punitive”), reconsideration denied sub nom. Banks, No. CV 20849(CKK), 2021 WL 260112 (D.D.C. Jan. 26, 2021); Weikert v. Elder, No. 1:20-CV-03646RBJ, 2021 WL 27787 (D. Colo. Jan. 4, 2021) (stipulated preliminary injunction, including requirement to comply with guidelines that track CDC guidelines); Carranza v. Reams, No. 20CV-00977-PAB, 2020 WL 2320174, at *15 (D. Colo. May 11, 2020) (granting preliminary injunction relating to an outbreak in the Weld County jail, requiring (1) policy for social distancing, (2) procedure to protect medically vulnerable residents, (3) increased cleaning, (4) plan to increase mask distribution, and (5) policy to monitor medically vulnerable residents); Martinez v. Reams, No. 20-CV-00977-PAB-SKC, 2020 WL 8474726, at *2 (D. Colo. Dec. 4, 2020) (extending preliminary injunction entered in Carranza v. Reams); Criswell v. Boudreaux, No. 120CV01048DADSAB, 2020 WL 5235675, at *26 (E.D. Cal. Sept. 2, 2020) (granting TRO requiring (1) adoption of policy to reduce contacts between people in facility, (2) adoption of policy regarding masks, (3) memorialization in writing of policy regarding isolation, quarantine, and observation, (4) provide report to Court and plaintiffs’ counsel report detailing testing to date, including the criteria for why certain people were tested) (TRO not extended); MartinezBrooks v. Easter, 459 F. Supp. 3d 411, 454 (D. Conn. 2020) (granting TRO requiring that facility (1) provide list of medically vulnerable residents, (2) finalize process for expedited homeconfinement screening, (3) shorten timelines for compassionate-release requests, and (4) complete home-confinement review process for identified individuals, along with reasoning therefore); Seth v. McDonough, 461 F. Supp. 3d 242 (D. Md. 2020) (appointment of inspector prior to TRO; granting TRO requiring that facility (1) develop process to identify medically vulnerable individuals, (2) prepare and file plan documenting training of staff on identifying symptoms, giving medical care to residents, and regular temperature checks, (3) prepare and file
4

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plan for cohorting, (4) report back testing results, along with record of movement around facility, (5) prepare and file plan for provision of soap, social distancing measures, provision of masks, and other policies recommended in inspection report) (TRO not extended); Coreas v. Bounds, 451 F. Supp. 3d 407 (D. Md. 2020) (“Coreas I”) (stating that court would release medically vulnerable detainees if there were any cases of COVID-19 at the facilities holding them, even though the facilities gave detainees “soap, hand sanitizer, and cleaning supplies,” encouraged them to seek medical treatment for illness, and had implemented thorough screening measures; declining to grant relief absent any confirmed cases); Coreas v. Bounds, 457 F. Supp. 3d 460 (D. Md. 2020) (“Coreas II”) (granting renewed preliminary injunction and releasing detainee upon positive test of nurse); Coreas v. Bounds, 458 F. Supp. 3d 352, 354 (D. Md. 2020) (“Coreas III”) (releasing two other detainees); Zepeda Rivas v. Jennings, 445 F. Supp. 3d 36, 41 (N.D. Cal. 2020) (granting TRO ordering that (1) facility provide list of all detainees, along with medical vulnerabilities, to court and class counsel, and (2) court begin process of expediting bail hearings to consider habeas petitions).
Plaintiffs seek initial relief in the form of a temporary restraining order under Counts I (jail conditions, under Section 1983) and II (habeas petition) of the Complaint. Plaintiffs seek a temporary restraining order to require the following limited types of relief, several of which are directly set out in the CDC guidelines: a) An order that CDF immediately test all staff (including contractors) and residents of the
facility for COVID-19 and publish those results immediately on receipt, along with the total number of staff and residents; b) An order placing a temporary pause on new admissions to CDF; c) An order that CDF implement and document appropriate cohorting, including quarantining and medical isolation procedures, as recommended by CDC guidelines and in accordance with testing results, including for new admission (if CDF continues to take new admissions);
5

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d) An order that CDF clean and disinfect frequently-touched surfaces in common areas several times per day, including phones;
e) An order that CDF provide appropriate Personal Protective Equipment (PPE) to residents and CDF staff according to the CDC’s recommendations, and receive appropriate instruction about how to wear and clean it;
f) An order that CDF ensure each resident receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day; (2) tissues; and (3) adequate access to a supply of cleaning and disinfectant products effective against COVID to allow for cleanings of frequentlytouched surfaces several times per day;
g) An order that CDF create and enforce social distancing policies that allow for adequate spacing of six feet or more between residents, without creating the functional equivalent of solitary confinement;
h) To the extent a resident must enter lockdown or isolation to effectuate an appropriate quarantine or medical isolation procedure, an order that CDF provide appropriate mental health services, and, if that resident has a mental health condition, provide enhanced psychological services in these circumstances;
i) An order that CDF provide a list of all medically vulnerable residents (as defined by CDC Guidelines) as well as all residents eligible for vaccination (as defined by Maryland’s vaccine phases) to Plaintiffs’ counsel and the Court within 24 hours;
j) An order that CDF immediately create and implement a plan that complies with CDC Guidance to minimize transmission to and provide adequate medical monitoring and care to residents who are medically vulnerable to COVID;
k) An order that CDF ensure that isolation, cohorted isolation, and quarantine cells are clean and sanitary, and that residents in them receive adequate medical monitoring, adequate hygiene products, reading material, reasonable access to phones, a daily change of clothes, and the opportunity to shower once daily, along with production of records showing CDF’s efforts on these fronts to the Court;
l) An inspection of CDF and its records (including medical records, movement records, and contact-tracing records) by an independent expert to be chosen by the Court with the parties’ input;
m) Any other relief (including remedies from the list below) necessary to effectuate the relief outlined above pertaining to Counts I and II, as well as any other relief that the Court deems appropriate.
Plaintiffs seek further relief in the form of a preliminary injunction under all four
Counts of the Complaint, including Counts III (related to solitary confinement or its
6

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functional equivalent) and IV (the lack of due process when being placed into solitary
confinement).
Plaintiffs seek, pursuant to a preliminary injunction, the following limited types of
relief—again, several of which are directly set out in the CDC guidelines:
n) An order to CDF requiring the facility, its staff, and contractors to effectively communicate to all residents sufficient information about COVID, measures to reduce the risk of transmission, and any other information necessary to reasonably ensure that these individuals are aware of what precautions they can take to prevent infection (including information about the benefits and drawbacks of vaccinations);
o) An order that CDF ensure that residents have adequate access to phones to contact counsel and/or family members such that residents need not congregate at the phones;
p) An order that CDF end preemptive lockdown procedures and instead impose appropriate time-limited quarantines, with that time limit clearly communicated to residents, only when necessary due to a known or suspected case of COVID, as recommended by medical and public health professionals;
q) An order that CDF offer appropriate mental health services to all residents;
r) To the extent it is necessary to ensure constitutionally sufficient procedures or to protect certain residents’ constitutional rights, order CDF to transfer residents to another appropriate facility;
s) An order that Defendants immediately offer vaccinations to all members of the Medically Vulnerable Subclass who qualify as “high risk,” as defined by Maryland guidance;4
t) An order that CDF immediately release, pursuant to a writ or writs of habeas corpus, members of the Medically Vulnerable Subclass;
u) If this Court does not immediately release the Medically Vulnerable Subclass, a consideration of these subclass members for release on non-monetary bond pending the outcome of their request for habeas relief; and
v) Any other relief necessary to protect the constitutional rights of the residents of CDF and any other relief that the Court deems appropriate.

4

Currently, Maryland’s vaccination phase includes “high risk” residents of jails and prisons. See

https://coronavirus.maryland.gov/pages/vaccine.

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STATEMENT OF FACTS Plaintiffs Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, and Howard Thomas are all detained pretrial at CDF. ECF Nos. 1-2 to 1-9, ECF Nos. 1-11 to 1-13. Plaintiff Howard Thomas is detained CDF post-sentencing. ECF No. 1-15. Of these residents, Mr. Catchings, Mr. Davis, Mr. Little, Mr. Moultrie, Mr. Speed, and Mr. Thomas all have preexisting conditions that render them more vulnerable to COVID. See ECF Nos. 1-11, 1-12, 1-13, 1-3, 1-4, 1-5, 1-15. COVID Is Highly Infectious and Dangerous COVID is a highly infectious and dangerous disease. As recounted by Drs. Carlos Franco-Paredes and Dr. Jaimie Meyer, COVID can lead to catastrophic consequences, including lifelong medical problems or death. See ECF No. 1-28 ¶¶ 8-12, Expert Declaration of Carlos Franco-Paredes, M.D., M.P.H. (February 15, 2021) (“ECF No. 1-28”) ¶¶ 7-19. Jails and Prisons Are Exceedingly Vulnerable to COVID Spread Jails and prisons create a unique risk of spread and catastrophic consequences, requiring a concerted and deliberate effort to protect against COVID. ECF No. 1-28 ¶¶ 13-23; ECF No. 1-27 ¶¶ 20-27. By all medical and public health standards, however, CDF has failed miserably in implementing and executing the most basic of guidelines to protect against COVID, including those promulgated by the CDC. ECF No. 1-28 ¶¶ 13-23; ECF No. 1-27 ¶¶ 24-49. Lockdowns are an Inappropriate Response to COVID Dr. Meyer and Dr. Craig Haney have explained at length the inappropriateness of largescale lockdowns in response to infectious diseases. See ECF No. 1-27 ¶ 18; ECF No. 1-29 (February 18, 2021 Expert Declaration of Dr. Craig Haney) ¶¶ 14-29. As Dr. Haney explains, procedures that impose extended periods of isolation or restrict hygiene options (such as showers) are inappropriate, ill-conceived, and counter-productive. In fact, they could very likely
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exacerbate rather than limit or alleviate the spread of COVID-19. According to Dr. Haney, instead of preemptive lockdowns, jails and prisons should institute such lockdowns only where medically necessary to resolve discrete issues, such as sanitizing dorms or contact tracing of an infected prisoner. If such lockdowns are employed, for these limited purposes, they should be reasonably time-limited. Staff also should communicate that time-limit to the affected prisoners. Id. ¶ 26.5
Defendants Have Been Given Multiple Warnings of the Dangers of Not Responding Swiftly and Appropriately Defendants are well-aware of the dangers in not planning and responding to COVID appropriately. Defendants have themselves reported the consequences of these failures, in CDF’s dramatically high levels of infection. ECF No. 1-27 ¶¶ 26-27 (relying on publicly reported statistics from CDF). Defendants are also well-aware of CDC guidelines, but have chosen not to execute on those policies. See id. ¶ 26. The Warden himself is personally aware of the circumstances on the ground at CDF. ECF No. 1-11. (“On Tuesday, February 2, they came to pack up the negative people to send back to the E unit, where I started quarantine when I got to CDF. The people who were negative were moved. The warden was there when they were moving us. I asked to use the phone to talk to my lawyer to talk about the situation. He told me no.”). DPSCS and CDF Have Wildly Mishandled the COVID Pandemic and Thereby Caused a COVID Disaster Within the Facility
a. CDF’s Failure to Plan for Introduction of Virus to the Facility Although the pandemic has been ongoing since March 2020, and in spite of clear evidence that the risk posed by infectious diseases in jails and prisons is significantly higher than

5

For a more detailed discussion of the reasons that lockdown are inappropriate, see ECF No. 1 ¶¶ 71-78.

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in the community, CDF has utterly failed to create a comprehensive approach—with plans for different scenarios—to handle an increase in positive cases among the resident population. See ECF No. 1-27 ¶¶ 13, 25, 27. As Dr. Meyer recounts, “It is also my professional judgment that this outbreak was preventable. This outbreak reflects CDF did not appropriately prepare or plan for this situation. CDF has demonstrated that it is unable to handle the current situation. Problems in implementing basic disease prevention and management strategies have persisted even after the outbreak in mid-January 2021. . . . Future outbreaks will happen at CDF without additional measures.” Id. ¶ 42.
This lack of planning has resulted in intermixing between different groups of residents. As described by Dr. Meyer, and as recounted by multiple residents, COVID-negative residents have been forced into living quarters with COVID-positive residents. Id. ¶ 27; see e.g., ECF No. 1-6 (“One of those two guys said, ‘Be careful, I have COVID.’ I asked what cell he was in. He said he was from cell 32. . . . They put me into cell 32 right after those two guys left. Nobody cleaned it out before they put me in the cell. Nobody cleaned it or sprayed it or anything. I couldn’t believe they were trying to put me in this cell.”).
b. CDF Mismanagement in 2020 CDF’s reckless treatment of residents long predates the 2021 outbreak, and indeed dates back to the beginning of the pandemic. In 2020, CDF housed COVID-positive residents in cells alongside COVID-negative residents in the intake unit. ECF No. 1-5 (“[T]wo other new guys came into intake. These two guys were in the same cell together. After two days or so, COs took one of the guys out the intake unit. That guy was saying that he felt sick. I never saw that guy come back. CDF did not make me quarantine or isolate after that second man was removed from the intake unit. Nobody checked my temperature until five days after the second guy was taken out. Nobody asked me if I had any symptoms.”). Upon removal of the COVID-positive residents,
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CDF not only failed to quarantine or test the residents who had been exposed to the virus; for several days, the facility did not even bother to take the temperatures of residents who were exposed. Id. In 2020, two CDF residents in a unit within the facility who experienced symptoms were tested for COVID. After these individuals tested positive, they were permitted to use the shared telephones, during normal recreation time, while non-symptomatic residents who had not been tested for COVID were out of their cells, before being removed from the unit. Id.
CDF also failed to clean or sanitize the telephones or other surfaces these COVIDpositive residents touched after receiving positive test results. Id. DF staff likewise failed to provide soap to exposed residents, even when residents requested soap. Id.
c. Moving into 2021: Intermixing Among Cohorts and Other Individuals One of CDF’s biggest failings since this outbreak began is in its evident inability or unwillingness to separate residents into different groups and to reduce the risk of spreading COVID. This process is called “cohorting.” As described by Dr. Meyer, effective cohorting involves separating people into four homogenous groups based on their known disease status: (1) Intake quarantine, (2) Medical isolation, (3) Post-exposure quarantine, and (4) General population. ECF No. 1-27 ¶ 27(l). But from 2020 and continuing to the present, CDF has—in direct contravention of best practices and scientific guidance—facilitated and encouraged the intermixing of cohorts. Residents who have not tested positive have been forced into the uncleaned cells of residents who tested positive. E.g., ECF No. 1-4. One resident was forced to remain locked in his cell with his symptomatic cellmate, who “had basically every symptom of COVID.” ECF No. 113. Another resident was left in a cell with his cellmate for two full days after the cellmate had tested positive. ECF No. 1-6. This resident was then moved to another unit in the facility, where he crossed paths with another resident who warned he had also tested positive for COVID. The
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resident was placed in the positive individual’s cell immediately. The cell was not cleaned, nor was the resident given any materials to clean the cell himself. Id.
Staff reports corroborate resident reports. According to one corrections officer, “It was mass movement [February 3]. People were just walking around regularly.” ECF No. 1-20 at 4.
The more recent failures at CDF are also the most striking. On February 12, 2021, CDF moved a female resident to the “cadre,” which housed only males at the time. ECF No. 1-11. The woman was brand new to the facility, and at least one resident in the “cadre” had already tested positive for COVID. Beyond her potential risk of exposure to COVID, her placement in a male unit is inappropriate for health and safety protocols in a jail. ECF No. 1-27 ¶ 27(l).
This failure—placing a new admit around COVID-positive individuals—is not an isolated incident. CDF did the same exact thing in early 2021, placing a new admission, also a woman, into the “cadre.” ECF No. 1-14. A few days later, CDF moved multiple positive male residents into the unit. These positive residents were clearly symptomatic, with one “coughing a lot.” Id. As this woman recounted: “I asked the guards why a male was in my unit. That didn’t make sense to me. That made me feel anxious and very uncomfortable. The guards said there was nothing they could do. I told them I could hear that he was sick. They told me not to worry. I could hear him talking to his family members and saying that the reason he was in the ‘cadre’ was because he was having symptoms of COVID and that he had to be in that unit for 14 days. His cell was right next to mine—there was just a wall in between us.” Id.
CDF ignored her pleas for human decency and continued its approach into February 2021.
CDF has also conceded its failure to track and record the movement of various residents around the facility. CDF’s “‘Dash Board’ record[,] which contains daily statistical information
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for the facility[,] . . . has been historically unreliable . . . .” ECF No. 1-26 (e-mail from Sean Wolcoff of the U.S. Marshals Service dated February 18, 2021, entitled “Today’s DPSCS Meeting Notes”) (emphasis added).
Despite its failings, CDF has indicated that it intends on again resuming admissions by the middle of the week of February 21. ECF No. 1-26 (“CDF had originally planned to accept new prisoner intakes by Wednesday 2/24/21, but Warden Wilson is now dubious of that since yesterday’s Airlift was cancelled due to weather.”).
d. Failure to Contact Trace CDF has also failed to meaningfully contact trace, often neglecting to ask residents exposed to positive residents whether they experienced any symptoms—let alone quarantine them from other residents. ECF No. 1-27 ¶ 27(d); see also, e.g., ECF No. 1-5 (“CDF did not make me quarantine or isolate after that man was removed from the unit. Nobody checked my temperature, or asked me if I had any symptoms.”); ECF No. 1-6. These problems are presumably exacerbated by CDF’s failure to meaningfully track the movement of residents. See ECF No. 1-22. CDF also ignored symptomatic residents and trace individuals with whom those symptomatic residents had come into contact. ECF No. 1-3 (“At CDF, I heard guys coughing pretty frequently. That was happening in December. They didn’t get tested until 2021. I was around those guys who were coughing. COs didn’t come around and ask if we had symptoms. COs were treating us like we were all positive.”)
e. Cleaning Deficiencies According to Dr. Meyer, until vaccination of the majority is achieved, required COVID prevention strategies must include containment procedures, like cleaning. ECF No. 1-27 ¶ 12.
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But the facility has failed to provide essential personal hygiene products to residents, and has even restricted residents’ access to running water for handwashing. ECF Nos. 1-3, 1-5, 1-7. One resident recounts that even if she wanted to wash her hands in her cell—which CDF staff frequently do not permit residents to do during rec time—she had no ability to do so: “From January 12 to February 2, I did not have running water in my cell. I couldn’t wash my hands in the cell. I told the guards. They didn’t do anything.” ECF No. 1-14. CDF has been so abysmal in its provision of cleaning supplies that staff report that even they have to bring in their own cleaning supplies. ECF No. 1-20. The facility has likewise failed to consistently provide soap to residents free of charge or on a regular basis. ECF Nos. 1-3, 1-5, 1-7, 1-12. Worse, CDF has not provided hand sanitizer in place of soap. See ECF Nos. 1-5, 1-7, 1-9, 1-10, 1-11. Meanwhile, residents who request cleaning supplies are either ignored or told no supplies are available. ECF Nos. 1-2, 1-3, 1-4. Likewise, surfaces in common areas are not cleaned between recreation shifts. ECF Nos. 1-2, 1-3, 1-9.
In the nightmarish environment of the “cadre”—where CDF mixes newly admitted female residents with COVID-positive, symptomatic male residents—CDF does nothing to clean common areas after confirmed positive residents mill about and touch surfaces. As one female resident explained: “On January 8, a male detainee came into the ‘cadre’ unit. He was coughing a lot . . . . The guards said there was nothing they could do. . . . Every time the guy used the phone, he didn’t wipe down the phone. . . . After those four days, another guy came into the ‘cadre.’ This other guy was put on the other side of me. So I had a male detainee on both sides of me. This new guy was sick too. I could hear him coughing too. Then they put another guy on G6, two cells away. They then put another guy on G5, three cells away. These other two guys had
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symptoms too. . . . CDF staff never cleaned or sanitized any of the common areas on the ‘cadre.’” ECF No. 1-14.
Similarly, the facility has not only failed to clean cells after positive residents are relocated, CDF staff have outright denied residents—forced to move into those contaminated cells—access to cleaning supplies so that the residents can try to disinfect the space on their own. ECF No. 1-4.
f. Failure to Provide Masks or Enforce Social Distancing According to public health experts, the COVID pandemic requires proactive social distancing measures in correctional facilities to reduce the risk of transmission and death due to COVID within facilities. ECF No. 1-28 ¶ 43. CDF has not only failed to proactively adopt social distancing; the facility has neither required nor enforced any degree of social distancing among residents. CDF officers do not even attempt to encourage or enforce distancing among residents. ECF Nos. 1-2, 1-3, 1-5, 1-7, 1-11. Indeed, in early February, despite the outbreak across the facility, CDF let out around 20 residents to watch the Super Bowl without requiring anyone to wear a mask—a reckless decision given the positive numbers at CDF at the time. ECF No. 1-10. According to Dr. Meyer, a key infection prevention strategy of this droplet-borne disease is the widespread use of masks. Masks should be regularly cleaned and sanitized to optimize their effectiveness. Masks only work to protect people from infection when used and when worn correctly. ECF No. 1-27 ¶ 30. But CDF fails on this count too. Neither residents nor staff at CDF wear masks correctly and consistently. ECF Nos. 1-2, 1-3, 1-5, 1-7. When outside their cells, it is “optional” for residents to wear masks. ECF Nos. 1-3, 1-4, 1-5, 1-6, 1-8, 1-10. Residents worried for their personal health and safety must try to police the mask-wearing of their fellow residents. ECF No. 1-11. Further, residents are also not able to clean the masks they do have. Contrary to CDF’s claims, many residents have only one mask. E.g., ECF Nos. 1-3, 1-14. To clean these
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masks, residents would have to send them out with laundry, which takes at least a day (leaving the mask owner without protection while its gone) and requires that the mask owner be willing to risk having no mask at all (as laundry is routinely lost). ECF No. 1-3; see also ECF No. 1-27 ¶ 30(b).
g. Inhumane Treatment of COVID-Positive Residents As appalling as is CDF’s inexplicable disregard for the risk of COVID exposure and spread, the facility’s treatment of residents who test positive for COVID-19 is even more unconscionable. Some COVID-positive CDF residents are removed from CDF and sent to the Jail Industries Building (“JI”). Originally built in 1922 as an office building and retrofitted as a jail in the 1980s, JI was closed in 2017 due to what public safety officials called a “security nightmare.”6 One COVID-positive resident who was recently housed at JI saw a thermostat in the building showing that the temperature was 55 degrees. ECF No. 1-3. This is unsurprising, given the number of broken or drafty windows at the facility and the fact that January and February are two of the coldest months of the year. Id. Worse, Residents at JI are not given appropriate clothing to brave the cold. ECF No. 1-2. According to two JI residents, upon their arrival at JI, they were forced to turn in their clothing in exchange for paper-material hospital shorts, a t-shirt, and shower shoes. ECF No. 1-2 (“They gave us paper shorts, like what paper masks are made of. They gave us a short sleeve shirt.”); ECF No. 1-3 (“When they moved me, they took all my clothes. They gave all of us at JI hospital shorts. We got a T-shirt and a pair of boxers.”). Cleanliness, too, is unattainable for these COVID-positive JI residents. Not only is the facility itself dirty and not subject to regular cleaning, but the shower facilities are infested with flies. ECF No. 1-2.

6

https://www.wbaltv.com/article/i-team-looks-inside-closing-jail-facility-in-baltimore/12139786 (containing

a video tour of the closed facility).

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According to Dr. Meyer, the primary manifestation of severe COVID disease is pneumonia, which produces distinct lung sounds that could herald severe disease and reflect people’s subjective reports of shortness of breath. Simply marking down a patient’s vital signs— even with oxygen readings—is not sufficient medical care for COVID disease. ECF No. 1-27 ¶ 35(b). Yet COVID-positive JI residents receive little medical care, despite the fact that they are only in JI because they have contracted a deadly virus. The entirety of the medical care provided at JI is the following: residents’ vital signs and temperatures are checked once every five hours. ECF Nos. 1-2, 1-3. Residents are not asked to report their symptoms. ECF No. 1-2. Nobody listens to the residents’ lungs to be sure they are breathing normally. Id.
And those with preexisting conditions that make COVID notably more dangerous have even been denied access to previously approved medical care. According to one of two COVIDpositive residents who was housed at JI, he went multiple days without his inhaler to treat his preexisting condition (one that is exacerbated by COVID)—because he was forced to leave it at CDF. ECF No. 1-3 (“I went from Tuesday, February 2, to Saturday, February 6, without my inhalers at JI.”)
h. Other Serious Deficits with Medical Care, including the Failure to Offer Vaccinations to All Eligible Residents
CDF does not sufficiently monitor for COVID symptoms in residents. ECF No. 1-3. One resident was also given the medication for another resident at CDF—medication that could have seriously harmed him had he not resisted the staff’s instructions to take the prescription. ECF No. 1-9 (“That night [February 9], a nurse came by and told me to take my diabetes and hypertension medication. [I don’t have diabetes or hypertension.] I told the nurse I wouldn’t take that medication. The nurse came back at around midnight and brought me two Motrin. The nurse didn’t bring me the antibiotics or any wound care. On February 10, the same thing happened--a
17

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nurse came by and gave me medication that she said was for hypertension and diabetes. I called out for the captain and explained the situation and showed him my paperwork.”).
Likewise, CDF does not respond to some sick calls at all. The facility is declining to take some residents to sick calls, and some don’t even have the chance to file sick call requests. ECF Nos. 1-3, 1-6, 1-8.
Under Maryland’s Plan for distribution of COVID vaccine,7 vaccine is supposed to be available for all “high-risk incarcerated individuals” under “Phase 1B” of the Plan. Nonetheless, although Maryland is reportedly moving on to vaccinate persons in the general population eligible under the next phase (“Phase 1C”) of the Plan, there is no indication that all “high-risk incarcerated individuals” at CDF are being offered vaccinations.8
i. Overuse of Solitary Confinement During COVID-related lockdowns, residents (those who tested negative and positive alike) were held in their cells for 24 hours a day, even denied access to showers for multiple days—a confounding restriction, given the necessity of sanitation and hygiene to stop the spread of this virus. ECF No. 1-7. One resident recounts that “they didn’t open our cell doors for 25 hours. During that time, I had no water to wash my hands or to drink.” ECF No. 1-14. The same resident recounts that “We got locked down a second time, and couldn’t leave our cells. The

7

Maryland Department of Health, Maryland moves into Phase 1C of its COVID-19 vaccine distribution

plan, opens eligibility to all residents 65 and up (Jan. 25, 2021),

https://health.maryland.gov/newsroom/Pages/Maryland-moves-into-Phase-1C-of-its-COVID-19-vaccine-

distribution-plan,-opens-eligibility-to-all-residents-65-and-up.aspx.

8

The Plan does not specifically define the term “high risk individuals” but includes within that category:

“Persons at highest risk of developing complications from COVID-19 (ACIP high risk conditions), including

persons 65 and older, staff and residents of nursing homes (SNFs), long-term care facilities (LTCFs), assisted care

facilities,

and

clients

of

senior

daycare

facilities

or

similar.”

https://phpa.health.maryland.gov/Documents/10.19.2020_Maryland_COVID-19_Vaccination_Plan_CDCwm.pdf, at

13 (emphasis added). It is clear the Plan intends to include at least a portion of the detainees at CDF within Phase 1,

because the Plan goes on to estimate the population to be vaccinated in Maryland under the Plan in Phase 1 as

including approximately 54,460 “people in prisons, jails, detention centers and staff.” Id. at 13.

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guard brought me some ice [because my sink in my cell did not function]. He said he wouldn’t bring me water. He told me to wait for the ice to melt.” Id.
Other residents have been held—without explanations or test results—in units where they are locked inside their cells for 23 hours a day. ECF Nos. 1-6, 1-7, 1-12 (“(“They locked down CDF in late January. They didn’t tell us why. They didn’t tell us they locked down because of COVID.”). And even for those not being held inside their cells for 23 or 24 hours every day, they are nonetheless confined to the cells for 20 hours every day. E.g., ECF No. 1-11.
Explanations for the lockdowns have been absent at best and potentially misleading. One resident was told by a member of the U.S. Marshals Service that the “bad conditions” at CDF (perhaps lockdown measures) were because of their criminal defense attorneys trying to get them out of jail. ECF No. 1-5. Another recounts that CDF staff told residents that the unit was locking down because “there weren’t enough guards to take care of us”—another example of a failure to plan on CDF’s part. ECF No. 1-14.
j. CDF’s Mismanagement has Caused a Massive Outbreak CDF’s catastrophic failure to employ even the most basic tenets of virus containment and mitigation strategies has led, predictably, to a massive COVID outbreak. As Dr. Meyer recounts, “This timeline of explosive growth of the virus, as well as CDF quickly abandoning plans to isolate or quarantine in particular areas, demonstrates a failure to plan,” resulting in two residents testing positive for the second time. ECF No. 1-27 ¶ 27(i)-(j) (noting that “[r]e-infections with COVID-19 . . . have been reported to occur outside of those 90 days”). The grave missteps of CDF were detailed at length at a detention hearing in United States v. Hodges, 8:20-cr-00148-px-1 (D. Md. Feb. 17, 2021). Ms. Hodges—who is almost 70 years old, takes three medications a day for hypertension, and suffers from anxiety—was detained after an initial hearing on February 2, 2021. At that initial hearing, the United States Attorney’s Office
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for the District of Maryland informed the District Court that Ms. Hodges would not be sent to CDF (presumably based on assurances from CDF itself, in light of the ongoing outbreak in the facility). Despite these assurances, Ms. Hodges was nonetheless placed at CDF pending her hearing on February 17. She was placed into a male unit at CDF, with a least four other residents who had tested positive for COVID—a wildly dangerous placement that intermixed different cohorts. Like many other residents, CDF also forced Ms. Hodges to go without medication for multiple days. Ms. Hodges’ experience—also reflected in the declaration of another resident, see ECF No. 1-9—shows the degree to which CDF has refused to change its practices in light of COVID.
ARGUMENT Plaintiffs seek a temporary restraining order (TRO) and preliminary injunction to address unconstitutional conditions of confinement at CDF. To obtain a TRO or a preliminary injunction, Plaintiffs must show the following: (1) Plaintiffs are likely to succeed on the merits, (2) they are likely to suffer irreparable harm absent preliminary relief, (3) the balance of equities tips in Plaintiffs’ favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, (2008). Plaintiffs satisfy all four requirements. I. A Temporary Restraining Order Should Immediately Issue to Address CDF’s Unconstitutional Conditions, with a More Comprehensive Preliminary Injunction to Follow. Over the last year, federal district courts, including this Court, have granted temporary restraining orders or granted preliminary injunctions to remedy constitutionally inadequate conditions that increase the threat of COVID-19, ordering jails to comply with the CDC Guidance and take other necessary measures to protect prisoners from infection, serious illness, and death. See supra at 3-5 (recounting recent decisions). Appointment of an independent inspector is particularly common at the TRO stage in these cases, with an inspection occurring in
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at least one case (in this District) prior to any hearing on the TRO. E.g., Seth v. McDonough, 461 F. Supp. 3d 242 (D. Md. 2020) (appointment of inspector prior to TRO hearing). Because the conditions in CDF create a substantial risk of serious future harm to the prisoners’ health, this Court should grant the proposed temporary restraining order and preliminary injunction.
Plaintiffs Are Likely to Succeed on the Merits of Their Eighth And Fifth / Fourteenth Amendment Claims. The Eighth and Fifth / Fourteenth Amendments prohibit state actors from exposing incarcerated people to conditions of confinement that threaten their health and safety. Helling v. McKinney, 509 U.S. 25, 33 (1993); see Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (stating that prison officials must take “reasonable measures to guarantee the safety of the inmates”). This is sometimes referred to as a “substantial risk of harm.” While the Eighth Amendment secures the right of people convicted of a crime to be free from exposure to serious harm, Helling, 509 U.S. at 33, the Due Process Clauses of the Fifth and Fourteenth Amendments afford at least as much protection to pretrial detainees, City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). To establish a conditions-of-confinement violation under these amendments, plaintiff must also make a “state of mind” showing. Two different tests apply. Under the Eighth Amendment,9 an official is liable if the official displays “deliberate indifference” to “a condition of confinement that is sure or very likely to cause serious illness and needless suffering” to someone detained, which includes “exposure of inmates to a serious, communicable disease.” Helling, 509 U.S. at 33. The due process and Eighth Amendment analyses differ. Under the due process standard, a plaintiff can prevail in showing that the defendant “knew, or should have

9

The Eighth Amendment is applied against state actors under the Fourteenth Amendment. Robinson v.

California, 370 U.S. 660 (1962).

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known, that the [challenged] condition posed an excessive risk to health or safety.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). Under the Eighth Amendment standard, a plaintiff must show that the defendant was deliberately indifferent to the risk posed. Helling, 509 U.S. at 35. In other words, the Eighth Amendment calls for a subjective analysis of the defendant’s intent, while the due process analysis requires only an objective analysis of whether the defendant should have known of the risks of harm.10
Here, there is a substantial risk of harm and. In addition, both the Eighth Amendment and due process “state of mind” tests are met.
1. The Jail’s Conditions Create a Substantial Risk of Serious Harm. To meet the first part of the test, CDF residents must show that they face “a substantial risk of . . . harm resulting from the prisoner’s unwilling exposure to the challenged conditions.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).11 Plaintiffs easily clear that bar.

10

This different approach for pretrial detainees versus convicted prisoners logically follows from the

Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389, 394 (2015), in which the Court held that an

objective—not subjective—standard applied to a pretrial detainee raising an excessive-force claim. Many circuits

have applied this reasoning to conditions-of-confinement claims. Compare Castro v. Cty. of Los Angeles, 833 F.3d

1060, 1070 (9th Cir. 2016) (en banc) (adopting a new objective standard for deliberate indifference claims brought

by pretrial detainees); Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (same); Miranda v. Cty. of Lake, 900 F.3d

335, 351-52 (7th Cir. 2018) (same) with Alderson v. Concordia Parish Corr. Facility, 848 F.3d 415, 419 n. 4 (5th

Cir. 2017) (declining to reconsider its earlier precedent treating Eighth and Fourteenth Amendment claims alike);

Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018) (same); Nam Dang by and through Vina Dang v.

Sheriff, Seminole Cty. Florida, 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (same). The Fourth Circuit has yet to

grapple with Kinsley’s impact on conditions of confinement claims. E.g., Duff v. Potter, 665 F. App’x 242, 244-45

(4th Cir. 2016) (applying objective reasonableness standard to a detainee’s excessive-force claim but not his

medical-need claim, which it affirmed on forfeiture grounds). Whether or not the pretrial test continues to include a

subjective component, the claims in this case meet both standards, as described below.

11

Since Plaintiffs’ claims involve inadequate medical treatment, and since a subclass of them is medically

vulnerable due to preexisting conditions, Plaintiffs could also frame these claims in terms of “deliberate indifference

to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); see Coreas v. Bounds, 451 F. Supp. 3d 407

(D. Md. 2020) (assessing medically vulnerable detainees’ conditions claim through this lens). However, since

CDF’s dangerous conditions include both failures in medical care and other basic safety precautions and imperil

prisoners both with and without preexisting conditions, Plaintiffs’ claims are best characterized as a challenge to

conditions that create a substantial risk of “serious illness and needless suffering.” Helling, 509 U.S. at 33.

Regardless, “‘[w]hether one characterizes the treatment received by [the resident] as inhumane conditions of

confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the

‘deliberate indifference’ standard.’” Id. at 32 (quotations omitted).

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As detailed extensively by Dr. Franco-Paredes and Dr. Meyer, COVID-19 is highly communicable and itself creates a substantial risk of harm. The conditions at CDF only magnify this risk. As Dr. Meyer explains, “individuals placed at CDF are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness and even death.” ECF No. 1-27 ¶ 41.
These conditions satisfy the objective test. In Coreas v. Bounds, 451 F. Supp. 3d 407, 428 (D. Md. 2020), this Court found that detainees at two different ICE facilities had shown a substantial risk of serious harm before there were any confirmed cases of COVID-19 at those facilities. Id. (stating that it would release medically vulnerable detainees if there were any cases of COVID-19 at the facilities holding them, even though the facilities gave detainees “soap, hand sanitizer, and cleaning supplies,” encouraged them to seek medical treatment for illness, and had implemented thorough screening measures); Coreas v. Bounds, 457 F. Supp. 3d 460 (D. Md. 2020) (“Coreas II”) (granting renewed preliminary injunction and releasing detainee upon positive test of nurse); Coreas v. Bounds, 458 F. Supp. 3d 352, 354 (D. Md. 2020) (“Coreas III”) (releasing two other detainees); see also Jones v. Wolf, 467 F. Supp. 3d 74 (W.D.N.Y. 2020) (finding that the risk of COVID-19 in an immigration detention facility satisfied the objective factor even through there were no reported cases there).12 Here, of course, an outbreak at CDF is already in progress that has infected one-third of residents and staff.

12

In other factual contexts, courts have found that far more attenuated dangers than the immediate threats

here could satisfy the objective test. See, e.g., Helling, 509 U.S. at 35 (affirming circuit court’s holding that second-

hand smoke posed an unreasonable risk of serious harm to a prisoner’s future health); Johnson v. Epps, 479 F.

App’x 583, 590-91 (5th Cir. 2012) (finding that prison policy under which prisoners use unsterilized barbering

instruments, which could expose them to communicate diseases, posed an unreasonable risk of future harm), Brown

v. Bargery, 207 F.3d 863, 865, 867-68 (6th Cir. 2000) (finding that improperly installed prison bunks that created a

danger that inmates could slide off of them and onto the concrete floor, as well as protruding anchor bolts “which

could potentially cause an injury,” could constitute a risk to their future health under the objective prong); DeGidio

v. Pung, 920 F.2d 525, 527-29 (8th Cir. 1990) (affirming district court’s conclusion that a “serious risk to the

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In addressing the objective component, courts must also “assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36.
Society has deemed the risk posed by COVID-19 intolerable: there have been unprecedented changes to American life to avoid it. Drs. Franco-Paredes and Meyer describe at length the life-changing risks of COVID, including medical complications that may be lifelong, as well as the long list of CDC guidelines—including specific guidelines for detention facilities.
Meanwhile, CDF has aggravated the risks of COVID-19 by (for example) exposing residents to extreme psychological distress through the use of punitive lockdowns and isolation conditions. See Doe v. Barr, No. 20-CV-02141-LB, 2020 WL 1820667, at *9 (N.D. Cal. Apr. 12, 2020), at *16 (finding that “petitioner’s other diagnoses of chronic PTSD and depression compound his susceptibility” to a COVID-19 infection); see id. at *5-6 (detailing evidence that mental illness can depress the immune response and lead to an increased risk of infections). Further, although Plaintiffs’ claims address the risk of harm imposed by the sum total of CDF’s inadequate conditions, some of CDF’s conditions may independently create a substantial risk of serious harm. See, e.g., Porter v. Clarke, 923 F.3d 348, 357 (4th Cir. 2019) (finding that conditions wherein prisoners spent “between 23 and 24 hours a day ‘alone in a small . . . cell’ with ‘no access to congregate religious, educational, or social programming’—pose[d] a ‘substantial risk’ of serious psychological and emotional harm.”) (quotations omitted), as amended (May 6, 2019); McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001) (finding deliberate indifference where a prisoner was forced to live in a feces-covered cell for three days).
inmates’ health existed” where a prison had an inadequate response to a tuberculosis outbreak even though “[o]nly a few infected individuals develop active tuberculosis” and the rest are asymptomatic).
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2. Defendants Knew of, or Should Have Known of, and Disregarded the Excessive Risk to Prisoners’ Health and Safety Posed by COVID-19, Particularly Absent Appropriate Precautions.

(a) Eighth Amendment Test

To satisfy the subjective component of deliberate indifference, a plaintiff must show that

prison officials “kn[ew] of and disregard[ed] an excessive risk to [the plaintiff’s] health or

safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[T]he test is whether the [prison

officials] kn[ew] the plaintiff inmate faces a serious danger to his safety and they could avert the

danger easily yet they fail to do so.” Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 723 (4th Cir.

2010) (quotations omitted).

The CDC’s guidance for correctional and detention facilities was issued almost a year

ago, explicitly warning of the specific dangers COVID-19 imposes in these institutions. See

generally ECF No. 1-27 (describing specific dangers of COVID in detention facilities and

outlining CDC guidelines, which have been updated on multiple occasions). CDF was well

aware of the requirements needed to protect against an outbreak, and to ensure proper treatment

of residents. ECF No. 1-16 (referring to CDC guidelines); ECF No. 1-17 (same); ECF No. 1-18

(same); ECF No. 1-19 (same); ECF No. 1-24 at 13 (“DPSCS represents that it is committed to

providing all necessary precautionary measures and supportive therapies to avoid an outbreak of

COVID-19, including taking all of the preventative actions advised by the CDC[.]”). See also

Secretary’s

Directive,

DPSCS,

June

7,

2020,

https://itcd.dpscs.state.md.us/PIA/ShowFile.aspx?fileID=1531, at 2 (indicating that DPSCS will follow CDC guidelines for detention facilities).13

13

In response to a media inquiry regarding this lawsuit, Mark Vernarelli, a spokesman for DPSCS, said in a

statement that “the state’s 21 detention facilities follow Maryland Health Department guidelines for containing the

spread of the coronavirus inside congregate settings, including frequent testing, isolating those who are infected and

restricting movement among inmates.” Antonio Olivo, Coronavirus outbreak inside Maryland detention facility

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But CDF failed at every turn: on cohorting, on cleaning supplies, on face masks, on medical care for vulnerable patients. On top of a complete failure to plan for and implement these protocols, CDF then turned a blind eye when an outbreak overtook the facility, placing new admissions with symptomatic COVID-positives residents and shipping out other COVIDpositive residents to a wretched warehouse down the street. Defendants knew the dangers imposed by COVID-19. DPSCS (and CDF) publicly reported its COVID numbers throughout 2020 and into 2021, speaking to growing numbers at certain facilities and a rapidly growing number of positive staff members, too. See Makdessi v. Fields, 789 F.3d 126, 141 (4th Cir. 2015) (when danger has been “expressly noted by prison officials,” this can prove that official’s actual knowledge under the subjective test).
In many ways, the numbers alone demonstrate deliberate indifference on the part of Defendants: one third of residents and staff tested positive for COVID within a month. This is not a mere accident, nor mere negligence—not when the country is one year into dealing with a virus that has dramatically altered virtually every aspect of daily life.
The risks imposed by Defendants’ failures are obvious. It is not challenging to predict the grim results of intermixing cohorts, denying prisoners soap, neglecting to sanitize common surfaces, locking medically vulnerable prisoners in cells with for 23-hours per day, and failing to monitor and treat symptomatic prisoners during a pandemic. See Porter, 923 F.3d at 348, 361
sparks class-action lawsuit (Feb. 20, 2021), The Washington Post, https://www.washingtonpost.com/local/publicsafety/coronavirus-outbreak-inside-maryland-detention-facility-sparks-class-action-lawsuit/2021/02/21/3534ab4a73c2-11eb-85fa-e0ccb3660358_story.html.Vernarelli stated that “CDF follows strict health-department COVID guidelines and protocols and is subject to regular compliance audits.” Id. The Class Action Complaint (ECF No. 1), together with all exhibits, including those filed under seal (ECF Nos. 2 - 10), Plaintiffs’ Motion to Seal (ECF No. 11), and the proposed Summonses (ECF No. 12) were served on the Maryland Attorney General via email to civil_service@oag.state.md.us on February 20, 2021 in accordance with Maryland Rule 1-124(j) & (k) and the procedures established by the Office of the Attorney General.
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(“[A]n obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate.”) (quotations omitted); Makdessi, 789 F.3d at 141 (stating that subjective test can be satisfied where the risk of harm “was so obvious that it had to have been known”).
Even if CDF has created policies that tracked CDC guidance on paper, the result does not change, because it is what CDF actually has done that matters. Unquestionably, in practice, CDF has failed to follow proper protocol. See Banks v. Booth, 459 F. Supp. 3d 143, 158 (D.D.C. 2020) (granting TRO, based on declarations from residents rebutting that jail implemented its own written policies: “Based on the current record, Plaintiffs have provided evidence that Defendants are aware of the risk that COVID-19 poses to Plaintiffs’ health and have disregarded those risks by failing to take comprehensive, timely, and proper steps to stem the spread of the virus.”); Martinez-Brooks v. Easter, 459 F. Supp. 3d at 443 (finding that plaintiffs were likely to succeed on Eighth Amendment claim); Carranza v. Reams, 2020 WL 2320174, at *10 (same, despite some efforts on part of prison facility to mitigate against COVID). The predictable result of CDF’s conduct is a worsened outbreak in a facility that is failing to meet infected residents’ medical needs.
Plaintiffs have thus satisfied the subjective factor and shown deliberate indifference. (b) Fifth / Fourteenth Amendment test
The above analysis, meanwhile, applies only to the Eighth Amendment claims raised in this suit, for convicted individuals who have already been sentenced at CDF. For residents held pretrial at CDF, their burden is lower—to show that Defendants “knew, or should have known, that they need only show that the [challenged] condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. As discussed above, Plaintiffs and proposed class members
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have demonstrated that Defendants knew of the risk of COVID-19 and then recklessly disregarded that risk. By meeting their burden under the Eighth Amendment, Plaintiffs and proposed class members have, by definition, met their burden under the Fifth Amendment.
Plaintiffs Will Suffer Irreparable Harm Absent Immediate Relief Without this Court’s relief, Plaintiffs will suffer irreparable harm for two reasons. First, “the denial of a constitutional right . . . constitutes irreparable harm.” Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987). Second, CDF’s conditions subject Plaintiffs to an increased risk that they will contract COVID-19 (or contract it again) and that they will suffer serious illness, physical harm, and death if they do. This is irreparable harm, too. See, e.g., Coreas v. Bounds, 451 F. Supp. 3d at 428-29 (finding that, if there were any COVID-19 cases in the immigration facilities at issue, petitioners faced “a significant risk of death or serious illness,” and that this is irreparable harm). The Balance of Equities and the Public Interest Favor the Requested Relief The balance of equities favors Plaintiffs. Plaintiffs face infection and sickness in a jail that cannot protect them; they seek this injunction to avoid serious illness, long-term physical damage, and death. CDF need only comply with basic public health measures. The relief that Plaintiffs seek is also in the public interest. CDF is not an isolated environment. Uncontrolled infection within CDF risks the health and safety of every person connected directly or indirectly to the many correctional officers, healthcare workers and others who enter and leave the Jail environment every day. See ECF No. 1-27 ¶ 14 (“Prison health is public health.” (emphasis in original)); 49 (“Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting not only those individuals, but the health of the wider community.”).
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Therefore, any remedy that will protect the Plaintiffs benefits the wider community. Castillo v. Barr, 449 F. Supp. 3d 915, 923 (C.D. Cal. 2020) (“[T]he emergency injunctive relief sought, here, is absolutely in the public’s best interest. The public has a critical interest in preventing the further spread of the coronavirus. An outbreak at Adelanto would, further, endanger all of us.”); Ortuno v. Jennings, No. 20-CV-02064-MMC, 2020 WL 1701724, at *4 (N.D. Cal. Apr. 8, 2020) (“[T]he public interest in promoting public health is served by efforts to contain the further spread of COVID-19, particularly in detention centers, which typically are staffed by numerous individuals who reside in nearby communities.”). II. This Court Should Order Release of the Medically Vulnerable Subclass of Pretrial
Detainees Under 28 U.S.C. § 2241 As noted above, CDF is in the midst of an uncontrolled outbreak of COVID-19.14 The members of the Medically Vulnerable Subclass—all of whom are pretrial detainees not convicted of any crime—each have medical conditions that worsen the effects of COVID-19.15 For them, exposure to COVID-19 brings a meaningfully higher risk of permanent organ damage and death. CDF has not taken adequate steps to protect these residents. See, e.g., ECF Nos. 1-11, 112; 1-13; 1-3, 1-4; 1-5, 1-15. To the contrary, CDF deprived one resident who suffers from asthma his inhaler, after the resident tested positive for COVID. ECF Nos. 1-3. Like all residents at CDF, they are locked down with symptomatic cellmates, denied medical care (even when exhibiting COVID-19 symptoms), and, once infected, isolated in inhumane conditions where

14

ECF No. 1-27 ¶ 25 (“[I]t is my professional judgment that this facility is dangerously under-equipped and

ill-prepared to prevent and manage the spread of COVID-19, which is currently spreading throughout the jail. The

facility is also dangerously under-equipped and ill-prepared to provide adequate treatment for residents who are

infected with COVID-19.”).

15

See U.S. Centers for Diseases Control, “People Who Are At High Risk [for severe illness from COVID-

19],” https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last reviewed

Apr. 15, 2020).

29

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their symptoms are not meaningfully monitored. ECF Nos. 1-11, 1-12, 1-13, 1-3, 1-4, 1-5, 1-15. These conditions are dangerous for everyone; for medically vulnerable prisoners, even more so. ECF No. 1-27 ¶ 30 (These measures are more important still for individuals with preexisting conditions . . . or older age. They are in even greater danger in CDF, including a meaningfully higher risk of death.”). Medical experts are unequivocal: COVID-19 can escalate rapidly, ECF No. 1-27 ¶ 35 (“Progression of respiratory symptoms in COVID-19 can be extremely rapid, within 24 hours, requiring hospitalization, so people in medical isolation need to be diligently monitored for clinical worsening.”), and many vulnerable prisoners are already sick.
Defendants cannot remedy CDF’s many failures in time to protect these residents’ lives. Therefore, their continued detention is unconstitutional, and this Court should release them pursuant to a writ of habeas corpus under 28 U.S.C. § 2241.16 Over the last year, multiple federal courts have granted such relief where there was no other way to protect imprisoned people’s rights (and lives) from COVID-19. See, e.g., Martinez-Brooks, 459 F. Supp. at 411 (granting TRO habeas relief under Eighth Amendment to federal post-conviction prisoners at FCI Danbury); Malam v. Adducci, 452 F. Supp. 3d 643, 661 (E.D. Mich. 2020) (releasing immigration detainee under § 2241 because, given the “risk and severity of irreparable harm to the Petitioner and the weight of public health evidence,” release was “the only reasonable option”); Thakker v. Doll, 451 F. Supp. 3d 358 (M.D. Pa. 2020) (finding that conditions of confinement at an immigrant detention facilities created serious risks for medically vulnerable detainees where, as here, there were unsanitary conditions, prisoners were forced to buy their own soap and share cleaning supplies, the facilities did not provide information on COVID-19

16

Because the Medically Vulnerably Subclass members are pretrial detainees, they may bring this action

under § 2241. In re Wright, 826 F.3d 774, 782 (4th Cir. 2016) (explaining that “prisoners in . . . pre-conviction

custody . . . or other forms of custody that are possible without a conviction are able to take advantage of § 2241

relief”) (quotations omitted).

30

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prevention, and detainees shared cells with others who showed COVID-19symptoms); Basank v. Decker, 449 F. Supp. 3d 205 (S.D.N.Y. Mar. 26, 2020) (ordering release of ten immigration detainees with underlying medical conditions including diabetes, heart disease, obesity, and asthma because facility could not ensure social distancing and had not taken steps to protect medically vulnerable detainees, although, in contrast to this case, the ICE detention facility was providing soap and hand sanitizer and substantially increased cleaning).
If this Court is not inclined to release the Medically Vulnerable Subclass as a whole, it can, as other federal courts have, order Defendants to produce a list of the members of that subclass and any other information this Court requires to make appropriate determinations as to them—and to ensure that CDF take steps to treat these individuals appropriately while in custody. See Martinez-Brooks, 459 F. Supp. 3d at 411 (recounting order to FCI Danbury to review all medically vulnerable residents).17 III. Additional Interim Remedies Are Available to This Court.
Courts of equity operate with flexibility, especially in emergencies of great consequence. “It is my professional opinion that these steps are both necessary and urgent. The numbers at CDF are evidence of an outbreak. . . . The time to act is now, including for residents who have already tested positive for COVID-19.” ECF No. 1-27 ¶ 48 (“The numbers at CDF are evidence of an outbreak. . . . The time to act is now, including for residents who have already tested positive for COVID-19.”), 42 (“Future outbreaks will happen at CDF without additional measures”).
The urgency of these concerns is real; while the Court considers the issues raised by the Complaint in this case, the COVID virus moves at its own, deadly timetable. Therefore, this

17

In addition, as described below, this Court has and should exercise the authority to release members of the

Medically Vulnerable Subclass on non-monetary bond pending the outcome of their habeas petition. See infra.

31

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Court should institute interim remedies to protect prisoners from serious harm while it considers their constitutional claims. First, this Court can transfer prisoners to another appropriate facility if necessary to protect their rights under the Eighth and Fifth / Fourteenth Amendments. Second, this Court can release members of the Medically Vulnerable Subclass on non-monetary bond while it considers their habeas petition under § 2241.
This Court Has and Should Exercise the Authority to Transfer Prisoners to Another Appropriate Facility to Remedy the Constitutional Violations or Protect Prisoners From Additional Constitutional and Physical Harms. Plaintiffs ask this Court to order Defendants to immediately remedy the conditions at CDF so that they do not impose a substantial risk of serious harm on the people imprisoned there. However, as the CDC and other experts recognize, it may be impossible to protect certain vulnerable prisoners without the removal of at least some prisoners. Accordingly, Plaintiffs ask this Court to order that, to the extent Defendants cannot remedy the substantial risk of serious harm to certain prisoners, it should transfer them to home detention or another appropriate facility. Another federal court recently recognized this solution for protecting prisoners in a jail that cannot adequately address the risk of COVID-19. See Gray v. Cty. of Riverside, No. 5:13-CV-0444-VAP-OPX, 2020 WL 4243484, at *3 (C.D. Cal. Apr. 14, 2020) (“Should the County be unable to implement adequate social distancing within its existing jail facilities and take other necessary steps to decrease risk of infection, this Court has the authority to order the transfer of prisoners to different facilities.”) Indeed, courts have previously transferred jail and prison residents where necessary to protect their Eighth Amendment rights. For example, in Plata v. Brown, 427 F. Supp. 3d 1211 (N.D. Cal. 2013), the court addressed the presence of “cocci” infections at two California prisons. Cocci infections are asymptomatic for 60 percent of people, but it “can also result in serious illness and, in the most extreme cases, death.” Id. at 1214. The court found that the
32

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prisons’ measures to abate the threat of cocci were inadequate to avoid a substantial risk of serious harm to certain high-risk inmates, and, accordingly, failure to transfer these groups of prisoners would “result in deliberate indifference under the Eighth Amendment.” Id. at 1224. Other courts have also ordered transfers to remedy or avoid Eighth Amendment violations.18
If necessary to avoid a substantial risk of serious harm to some or all prisoners, this Court should do the same.
This Court Has and Should Exercise the Authority to Release Medically Vulnerable Subclass Members on Non-Monetary Bond Conditions Pending Review of Their Request for Habeas Relief Under § 2241. A federal court has the authority to grant bail to habeas petitioners who are properly before it. See United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002) (explaining the standard “[t]o prevail on a motion for release on bail in a habeas case”); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (describing “the authority of the federal courts to grant bail to habeas petitioners”); Bolante v. Keisler, 506 F.3d 618, 620 (7th Cir. 2007) (“Inherent judicial authority to grant bail to persons who have asked for relief in an application for habeas corpus is a natural incident of habeas corpus, the vehicle by which a person questions the government’s right to detain him.”). Pursuant to this authority, if this Court does not immediately release members of the Medically Vulnerable Subclass under § 2241, it should release some or all of them on nonmonetary bond.

18

See, e.g., Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195, 200, 210 (D. Mass. 2019) (concluding that transfer

a quadriplegic state prisoner convicted of first degree murder to a non-Department of Corrections facility where he

could receive adequate care was the appropriate remedy for his Eighth Amendment claims challenging his

inadequate medical care), appeal filed, (1st Cir. Nov 4, 2019); United States v. Wallen, 177 F. Supp. 2d 455, 458,

459 (D. Md. 2001) (ordering transfer of a pretrial detainee because of the Court’s “grave[] concern[s] that [his] Fifth

Amendment rights [against deliberate indifference to his serious medical needs] may have been violated and, more

importantly, that those rights may be at continued risk if he [were] returned to [the jail]”); Johnson v. Harris, 479 F.

Supp. 333, 338 (S.D.N.Y. 1979) (ordering the transfer of a severely diabetic prison to a facility that could meet his

medical needs as a remedy for Eighth Amendment violations).

33

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Release on bond pending habeas is appropriate where the petitioner can “show that his petition presents a substantial constitutional claim upon which he has a high probability of success, and that extraordinary circumstances warrant his release.” Perkins, 53 F. App’x at 669. Circuit courts have defined “extraordinary circumstances” to mean that “the grant of bail [is] necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226 (quotations omitted). See Abdullah v. Bush, 945 F.Supp.2d 64, 67 (D.D.C. 2013), aff’d sub nom. Abdullah v. Obama, 753 F.3d 193 (D.C. Cir. 2014) (same); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (same).
Extraordinary circumstances exist here. The Medically Vulnerable Subclass seeks habeas relief because if they do not receive it, there is an unacceptable risk that they will become seriously ill and die. Rapid removal from CDF is necessary “to make the habeas remedy effective” because, with further delay, medically vulnerable prisoners may suffer the severe illness, physical damage, and death they seek habeas to avoid. Mapp, 241 F.3d at 226.19
Based on these considerations, a federal court for the District of Massachusetts released immigration detainees on non-monetary bond conditions while their class action habeas petition based on a detention center’s failure to protect them from the spread of COVID-19 is pending. See also Savino v. Souza, 459 F. Supp. 3d 317, 320 (D. Mass. 2020) (“Before addressing the merits of the petition, the Court relied on its inherent authority expeditiously to review bail applications for all of the detainees in the class, one by one, and released almost a third of them

19

Cf. Johnston v. Marsh, 227 F.2d 528, 529-32 (3d Cir. 1955) (finding that a district court had the power to

grant of bail pending habeas where the petitioner, “an advanced diabetic, was, under conditions of confinement,

rapidly progressing toward total blindness,” comparing this authority to a judge’s power to issue a “stay of

execution” while a petition is pending).

34

Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 42 of 44
to house arrest under strict conditions.). Other courts have also found that the risks imposed by COVID-19 warranted release on bond while a habeas action was pending.20
Given the severe and unavoidable risks to the Medically Vulnerable Class, this Court can
and should act quickly to do the same.
CONCLUSION
As Dr. Meyer recounts:
It is [] my professional judgment that this outbreak was preventable. This outbreak reflects CDF did not appropriately prepare or plan for this situation. CDF has demonstrated that it is unable to handle the current situation. Problems in implementing basic disease prevention and management strategies have persisted even after the outbreak in mid-January 2021. . . . Future outbreaks will happen at CDF without additional measures. As such, from a public health perspective, it is my opinion that CDF should act immediately to comply with the CDC Guidelines on the management of COVID19 in correctional facilities. This requires not just developing (or adhering to) well written protocols, but actually ensuring that the protocols are implemented to the fullest extent. ECF No. 1-27 ¶¶ 42-43.
Accordingly, for these reasons, Plaintiffs ask that the Court grant the relief described in
this pleading, both the limited relief of the proposed temporary restraining order and the more
expansive relief of the proposed preliminary injunction.
Respectfully submitted,
(Signatures follow on next page.)

20

See Avendano Hernandez v. Decker, 450 F. Supp. 3d 443, 449 (S.D.N.Y. 2020) (releasing § 2241 habeas

petitioner challenging unconstitutional conditions of confinement—”specifically, continued risk of exposure to

COVID-19”—because his continued detention would expose him to the infection he seeks habeas relief to avoid

and, thus, “immediate[] release [wa]s necessary to ‘make the habeas remedy effective’”) (quoting Mapp, 241 F.3d at

230); Jimenez v. Wolf, No. CV 18-10225-MLW, 2019 WL 7169413, at *1 (D. Mass. Dec. 24, 2019) (releasing

immigration detainee who raised habeas clam: “The Motion is, in essence, a request for a temporary restraining

order mandating Kim’s temporary release. . . . For the reasons explained below, the court is: issuing the requested

temporary restraining order . . . .”).

35

Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 43 of 44

Dated: February 22, 2021

/s/ Alec W. Farr Alec W. Farr (Federal Bar No. 12513) awfarr@bclplaw.com Daniel C. Schwartz (pro hac vice to be submitted) dcschwartz@bclplaw.com Adam L. Shaw (pro hac vice to be submitted) adam.shaw@bclplaw.com Joscelyn T. Solomon (Federal Bar No. 21555) joscelyn.solomon@bclplaw.com Brett R. Orren (pro hac vice to be submitted) brett.orren@bclplaw.com
BRYAN CAVE LEIGHTON PAISNER LLP 1155 F Street, NW Washington, DC 20004 (202) 508-6000 Phone (202) 508-6200 Facsimile
/s/ Tianna Mays Tianna Mays (Bar No. 21597) tmays@lawyerscommittee.org Jon Greenbaum (pro hac vice admission pending) jgreenbaum@lawyerscommittee.org Arthur Ago (pro hac vice admission pending) aago@lawyerscommittee.org John Fowler (pro hac vice admission pending) jfowler@lawyerscommittee.org Rochelle F. Swartz (pro hac vice admission pending) rswartz@lawyerscommittee.org
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1500 K Street NW Suite 900 Washington, DC 20005 Phone 202-662-8600 Fax 202-783-0857 Attorneys for Plaintiffs

36

Case 1:21-cv-00428-TSE Document 18-1 Filed 02/22/21 Page 44 of 44 CERTIFICATE OF SERVICE
I, Adam L. Shaw, an attorney, hereby certify that on February 22, 2021, the foregoing was filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on the Attorney General of the State of Maryland via email at the address below.
Brian E. Frosh Maryland Attorney General 200 St. Paul Place Baltimore, MD 21202 civil_service@oag.state.md.us
/s/ Adam L. Shaw Adam L. Shaw
37

 
 Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

SEDRIC CATCHINGS et al., Individually *

and on behalf of a class of similarly situated

persons,

*

Plaintiffs, v.
CALVIN WILSON, In his official capacity as Warden, Chesapeake Detention Facility Department of Corrections, et al.,
Defendants.

* Case No.: 1:21-cv-00428-TSE
*
*
*
*

MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 2 of 29
TABLE OF CONTENTS Page
INTRODUCTION .......................................................................................................................... 1 CLASS DEFINITION .................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3 SUMMARY OF ARGUMENT ...................................................................................................... 4 ARGUMENT .................................................................................................................................. 7
I. Plaintiffs Satisfy Rule 23(a): They Are Numerous and Raise Common Questions, and the Named Plaintiffs Are Adequate Representatives with Typical Claims ..... 9 A. Numerosity is Satisfied: The Class and Subclasses Each Include Hundreds of Members. ................................................................................................ 9 B. Commonality is Satisfied: The Legality of Defendant’s Response to the Pandemic Involves Numerous Common Questions of Fact and Law. ..... 10 C. Typicality is Satisfied: The Named Plaintiffs’ Claims Are Representative of Those of the Classes and Subclass at Large. ........................................ 14 D. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Classes and Subclass. .......................................................................... 15
II. Certification of the Classes and Subclass for Prospective Relief is Appropriate Under Fed. R. Civ. P. 23(b)(2).............................................................................. 17
III. Undersigned Counsel Should Be Appointed Class Counsel Under Rule 23(g). .. 18 CONCLUSION............................................................................................................................. 19
i

Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 3 of 29
TABLE OF AUTHORITIES
Page(s)
Cases
Abadia-Peixoto v. United States Dep’t of Homeland Sec., 277 F.R.D. 572 (N.D. Cal. 2011).............................................................................................12
Adderly v. Wainwright, 58 F.R.D. 389 (M.D. Fla. 1972).................................................................................................4
In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) ...................................................................................................16
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52 (2d Cir. 2000).......................................................................................................15
Banks v. Booth, 468 F. Supp. 3d 101 (D.D.C. 2020), reconsideration denied sub nom. Banks, No. CV 20-849(CKK), 2021 WL 260112 (D.D.C. Jan. 26, 2021) (appeal pending) .....................................................................................................................................6
Berry v. Schulman, 807 F.3d 600 (4th Cir. 2015) .....................................................................................................7
Bijeol v. Benson, 513 F.2d 965 (7th Cir. 1975) .....................................................................................................4
Bradley v. Harrelson, 151 F.R.D. 422 (M.D. Ala. 1993) ............................................................................................18
Brady v. Thurston Motor Lines, 726 F.2d 136 (4th Cir. 1984) .....................................................................................................9
Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998) ...................................................................................................14
Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009) ...................................................................................................14
Brown v. Plata, 563 U.S. 493 (2011).................................................................................................................18
Bumgarner v. NCDOC, 276 F.R.D. 452 (E.D.N.C. 2011) .............................................................................................17
ii

Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 4 of 29
Butler v. Suffolk Cnty., 289 F.R.D. 80 (E.D.N.Y. 2013) ...............................................................................................12
Carranza v. Reams, __ F. Supp. 3d __, 2020 WL 2320174 (D. Colo. May 11, 2020) ..............................................6
Cent. Wesleyan Coll. v. W.R. Grace & Co., 143 F.R.D. 628 (D.S.C. 1992), aff’d, 6 F.3d 177 (4th Cir. 1993)............................................11
Coreas v. Bounds, 458 F. Supp. 3d 352 (D. Md. 2020) ...........................................................................................6
Coreas v. Bounds, No. 20-CV-0780, 2020 WL 5593338 (D. Md. Sept. 18, 2020) ...........................................6, 12
Cox v. McCarthy, 829 F.2d 800 (9th Cir.1987) ......................................................................................................4
Criswell v. Boudreaux, No. 20-CV-01048-DAD-SAB, 2020 WL 5235675 (E.D. Cal. Sept. 2, 2020) ..........................6
Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n., 375 F.2d 648 (4th Cir. 1967) .....................................................................................................9
Deiter v. Microsoft Corp., 436 F.3d 461 (4th Cir. 2006) ...................................................................................................15
Diaz v. Hott, 297 F. Supp. 3d 618 (E.D. Va. 2018), aff’d sub nom. Guzman Chavez v. Hott, 940 F.3d 867 (4th Cir. 2019) .................................................................................................4, 5
Epps v. Levine, 457 F. Supp. 561 (D. Md. 1978) ..............................................................................................12
Fraihat v. U.S. Immigration & Customs Enf’t, 445 F. Supp. 3d 709 (C.D. Cal. 2020) .......................................................................................6
Gen. Tel. Co. of Southwest. v. Falcon, 457 U.S. 147 (1982).................................................................................................................14
Gomes v. Acting Sec’y, U.S. Dep’t of Homeland Sec., No. 20-CV-453-LM, 2020 WL 2113642 (D.N.H. May 4, 2020) ..............................................6
Gratz v. Bollinger, 539 U.S. 244 (2003)...................................................................................................................7
Hiatt v. Cty. of Adams, Ohio, 155 F.R.D. 605 (S.D. Ohio 1994) ..............................................................................................8
iii

Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 5 of 29
Hughes v. Judd, 2013 WL 1821077 (M.D. Fla. Mar. 27, 2013) ........................................................................12
Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971).........................................................................................................4
Int’l Woodworkers of Am. AFL-CIO, CLC v. Chesapeake Bay Plywood Corp., 659 F.2d 1259 (4th Cir. 1981) .................................................................................................11
Johnson v. Jessup, 381 F. Supp. 3d 619 (M.D.N.C. 2019) ....................................................................................12
Jones ‘El v. Berge, 374 F.3d 541 (7th Cir. 2004) ...................................................................................................18
Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975) .................................................................................................18
Jones v. Guzman, 296 F.R.D. 416 (E.D. La. 2013)...............................................................................................12
Kirkpatrick J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987) .........................................................................................19
Baby Neal ex. rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994).............................................................................................11, 14, 18
Lienhart v. Dryvit Sys., Inc., 255 F.3d 138 (4th Cir. 2001) ...................................................................................................14
Longo v. Trojan Horse Ltd., 208 F. Supp.3d 700 (E.D.N.C. 2016).......................................................................................16
M.D. v. Perry, 294 F.R.D. 7 (S.D. Tex. 2013).................................................................................................12
Marcera v. Chinlund, 595 F.2d 1231 (2d Cir. 1979), vacated on other grounds, Lombard v. Marcera, 442 U.S. 915 (1979).................................................................................................17
Martinez-Brooks v. Easter, 459 F. Supp. 3d 411 (D. Conn. 2020) ........................................................................................6
Middendorf v. Henry, 425 U.S. 25 (1976).....................................................................................................................4
Olson v. Brown, 284 F.R.D. 398.........................................................................................................................12
iv

Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 6 of 29
Olvera-Morales v. Int’l Labor Mgmt. Corp. Inc, 246 F.R.D. 250 (M.D.N.C. 2007) ............................................................................................16
Parsons v. Ryan, 289 F.R.D. 513 (D. Ariz. 2013) ...............................................................................................12
Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015). Civil .........................................................................................11
Rodger v. Elec. Data Sys. Corp., 160 F.R.D. 532 (E.D.N.C. 1995) ...............................................................................................9
Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ...................................................................................................4
Rosario v. Livaditis, 963 F.2d 1013 (7th Cir. 1992) ...................................................................................................7
Rosas v. Baca, 2012 WL 2061694 ...................................................................................................................12
Ross v. Gossett, 2020 WL 1472072 ...................................................................................................................12
Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367 (1992).................................................................................................................18
Savino v. Souza, 453 F. Supp. 3d 441 (D. Mass. 2020) ........................................................................................6
Schall v. Martin, 467 U.S. 253 (1984)...................................................................................................................4
Scott v. Clarke, 61 F. Supp. 3d 569 (W.D. Va. 2014) .................................................................................14, 18
Shipes v. Trinity Industries, 987 F.2d 311 (5th Cir. 1993) ...................................................................................................14
Thorn v. Jefferson–Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) ...................................................................................................13
United States v. Goforth, Case No. 1:20-cr-00319-CCB-1 (D. Md. Feb. 19, 2021), ECF No. 33 .....................................8
Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338 (2011)........................................................................................................... 11-13
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Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 7 of 29
Whitted v. Easter, No. 20-CV-00569-MPS, 2020 WL 4605224 (D. Conn. Aug. 11, 2020).................................12
Williams v. Richardson, 481 F.2d 358 (8th Cir. 1973) .....................................................................................................4
Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) ...................................................................................................12
Zepeda Rivas v. Jennings, 445 F. Supp. 3d 36 (N.D. Cal. 2020) .........................................................................................7
Zimmerman v. Bell, 800 F.2d 386 (4th Cir. 1986) ...................................................................................................17
Statutes 28 U.S.C. § 2241..............................................................................................................................2 Other Authorities Elizabeth M. Viglianti et al., Medical Problems of State and Federal Prisoners
and Jail Inmates, 2011-12, U.S. Dept. of Justice, 3 (2014).......................................................5 Fourteenth Amendment .................................................................................................................13 Fed. R. Civ. P. 13(a)-(b) ..................................................................................................................7 Fed. R. Civ. P. 13(c)(5)....................................................................................................................7 Fed. R. Civ. P. 23(a)(1)....................................................................................................................9 Fed. R. Civ. P. 23(a)(4)..................................................................................................................16 Fed. R. Civ. P. 23(g)(1)..................................................................................................................18 Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv) .................................................................................................19 Fed. R. Civ. P. 23(g)(1)(B) ............................................................................................................18 Federal Rule of Civil Procedure 23(b)(2) .............................................................................. passim Federal Rules of Civil Procedure Rule 23 .............................................................................4, 7, 11 Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84
N.Y.U. L. Rev. 97, 132 (2009) ................................................................................................11 Richard A. Nagareda, The Preexistence Principle and the Structure of the Class
Action, 103 Colum. L.Rev. 149, 176, n. 110 (2003).......................................................... 12-13
vi

Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 8 of 29 Rule 23(a)............................................................................................................................... passim Rule 23(a)(2) ......................................................................................................................10, 11, 12 Rule 23(a)(3) ..................................................................................................................................14 Rule 23(a)(4)’s ...............................................................................................................................17 Rule 23(a) and Rule 23(b)................................................................................................................7 Rule 23(b) ........................................................................................................................................7 Rule 23(c)(5) ....................................................................................................................................7 Rule 23(g) ......................................................................................................................................18
vii

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Plaintiffs, on behalf of themselves and the classes they seek to represent, hereby respectfully request that this Court grant their motion for class certification, appoint them as named plaintiffs in this litigation, and appoint their undersigned attorneys as class counsel.
INTRODUCTION The spread of COVID-19 has created an unprecedented health crisis. Public health officials throughout the country have implored the general public to take protective measures to curb the virus’s spread. But the people in Defendants’ care and custody cannot protect themselves; only Defendants can ensure that they have the basic means to protect themselves, including masks, hygiene products, healthcare services (including vaccination), cleaning materials, and a means to distance themselves from people who may be infected. Defendants Wilson and Green, in their official capacities in operating and overseeing the Chesapeake Detention Facility (“CDF”), have failed to take reasonable measures to protect from COVID-19 infection the residents of CDF in their custody and under their control. There is already an outbreak of COVID-19 at CDF, with one-third of residents and staff testing positive in a month’s time. Moreover, CDF’s inadequate care for those with symptoms or confirmed cases increases the likelihood that those infected will suffer serious illness, permanent physical damage, and death. Every single person at CDF faces a risk of death or serious harm as a result.
CLASS DEFINITION This federal class action seeks to require Defendants to implement procedures that keep Plaintiffs reasonably safe from contracting communicable disease while in custody and provide reasonable medical care for those who do contract the virus. Moreover, due to age or pre-existing medical conditions, some people are so vulnerable to COVID-19 that no adequate policies and

Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 10 of 29
procedures could be implemented quickly enough to protect them. These people, as a subclass (the “Medically Vulnerable Subclass”), seek a writ of habeas corpus under 28 U.S.C. § 2241.
Plaintiffs, therefore, seek to certify two classes with one subclass, as follows:  The Pretrial Class is defined as “all people detained in the Chesapeake Detention Facility
who are not detained pursuant to a judgment of conviction.”1 o The Medically Vulnerable Subclass is defined as “all Pretrial Class members whose medical condition renders them especially vulnerable to the coronavirus as determined by guidelines promulgated by the Centers for Disease Control and Prevention.”2, 3
 The Post-Conviction Class is defined as “all people detained in the Chesapeake Detention Facility who are detained pursuant to a judgment of conviction.”4 Named Plaintiffs Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron
Little, Taiwo Moultrie, and Joseph Speed represent the Pretrial Class.5 ECF No. 1 ¶¶ 28-33.6 Named Plaintiffs Sedric Catchings, Collin Davis, Sirron Little, Taiwo Moultrie, and Joseph Speed represent the Medically Vulnerable Subclass. Id. ¶¶ 28, 30, 32-34. Named Plaintiff Howard Thomas represents the Post-Conviction Class. Id. ¶ 35.7

1

This definition is intended to include individuals who will be detained in the future as well.

2

See, e.g., U.S. Centers for Disease Control and Prevention, People Who Are At Higher Risk and Other

People Who Need to Take Extra Precautions (last reviewed Feb. 21, 2021), https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/people-at-higher-risk.html.

3

See supra n.1.

4

See supra n.1.

5

For ease of reference, exhibits filed with the complaint are hereinafter referred to by ECF number.

6

For ease of reference, exhibits filed with the Complaint are hereinafter referred to by ECF number. A

complete list of exhibits has been filed together with this brief in accordance with LR 105(5).

7

Named Plaintiff Joseph Speed is detained pending sentencing. ECF No. 1 ¶ 34. When sentenced, he will

move into the proposed Post-Conviction Class.

2

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BACKGROUND Plaintiffs’ suit for declaratory and injunctive relief under the Eighth and Fifth / Fourteenth Amendments, as well as the Medically Vulnerable Subclass’s petition for habeas corpus, arise from Defendants’ failure to protect them from the severe risk of death or serious physical harm and their deliberate indifference to those threats to their health and safety. The facts of this case are described at length in Plaintiffs’ Complaint and briefing in support of the Motion for Temporary Restraining Order and Preliminary Injunction. Simply put, there is an uncontrolled COVID-198 outbreak at CDF, where, according to Defendants’ own statistics, one-third of current residents and approximately one-third of staff members have tested positive for COVID-19 in the last month.9 The issues being faced by the proposed Classes and Subclass are unacceptable. CDF does not sanitize cells when moving a COVID-positive resident out. CDF does not ensure that COVID-positive residents are moved prior to other residents entering a unit. CDF violates U.S. Centers for Disease Control and Prevention (“CDC”) guideline after guideline. Cleaning materials are in short supply; residents cannot meaningfully sanitize masks; CDF does not enforce social distancing or masking; some residents do not even have running water in their cells.10 Named Plaintiffs and putative class members are already in danger. During this most recent outbreak in January and February, two of the Named Plaintiffs have contracted COVID for the second time. Many Plaintiffs have preexisting conditions that make them especially

8

Severe acute respiratory syndrome coronavirus 2, or SARS-CoV-2, commonly called the “novel

coronavirus” or “coronavirus,” is the highly contagious and transmissible virus underlying this cause of action and

the events described in the Complaint. The virus frequently results in a disease, COVID-19. Plaintiffs refer to both

the virus and disease as “COVID” or “COVID-19.”

9

ECF No. 1-27 (Expert Declaration of Dr. Jaimie Meyer (February 18, 2021) (“Meyer Decl.”) ¶ 26 (relying

on publicly reported statistics from CDF)); COVID-19 Case Count, Maryland Department of Public Safety and

Corrections Services, https://news.maryland.gov/dpscs/covid-19/ (last visited on Feb. 15, 2021) (showing 169

positive residents, out of approximately 400, and 80 positive staff, out of approximately 220).

10

ECF Nos. 1-2 through 1-15 (Resident Declarations).

3

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vulnerable to severe illness and death.11 CDF has shown an inability to protect against the spread of COVID and inability to properly treat COVID-positive residents and an intentional difference to their health and safety. Named Plaintiffs—along with approximately 400 other prisoners—are trapped in a detention facility that endangers the sick. Absent this Court’s intervention to protect the Classes and Subclass, many will suffer; some will die.
SUMMARY OF ARGUMENT The claims of the Classes and Subclass are suited to proceed as a class action under Federal Rule of Civil Procedure 23(b)(2).12 In the Fourth Circuit, the procedure and analysis for certifying class action habeas petitions is the same as any other class action. See Diaz v. Hott, 297 F. Supp. 3d 618, 628 (E.D. Va. 2018) (certifying class action habeas petition), aff’d sub nom. Guzman Chavez v. Hott, 940 F.3d 867 (4th Cir. 2019).13 Thus, to certify a class, each of the requirements of Rule 23 must be met. Plaintiffs here satisfy Rule 23 because: (a) every member of the Classes and Subclass have the same legal theory as to why their federal rights are being violated; (b) CDF’s failure to

11

ECF Nos. 1-2 through 1-15 (Resident Declarations).

12Although the Supreme Court has not squarely decided whether Rule 23 of the Federal Rules of Civil Procedure “is

applicable to petitions for habeas corpus relief,” on several occasions the Court has decided class action habeas

petitions. Schall v. Martin, 467 U.S. 253, 261 n.10 (1984) (declining to address the issue and accepting district

court’s certification of the class; reversing lower courts’ holding that preventive detention of juveniles was

unconstitutional); but see Middendorf v. Henry, 425 U.S. 25, 30 (1976) (declining to decide whether class action

habeas petitions are cognizable; refusing to grant relief).

13 Some other circuits have adopted “a representative procedure analogous to the class action provided for in Rule

23.” Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975) (holding that such a procedure “may be appropriate in a

habeas corpus action under some circumstances.”). The Fourth Circuit, in keeping with the practices of the Second,

Eighth, and Ninth Circuits, simply applies the procedure of Rule 23. See also Rodriguez v. Hayes, 591 F.3d 1105,

1117 (9th Cir. 2010) (“the Ninth Circuit has recognized that class actions may be brought pursuant to habeas

corpus.”) (citing Cox v. McCarthy, 829 F.2d 800, 804 (9th Cir.1987)); Williams v. Richardson, 481 F.2d 358, 361

(8th Cir. 1973) (“[U]nder certain circumstances a class action provides an appropriate procedure to resolve the

claims of a group of petitioners and avoid unnecessary duplication of judicial efforts in considering multiple

petitions, holding multiple hearings, and writing multiple opinions.”); Inmates of Attica Corr. Facility v. Rockefeller,

453 F.2d 12, 24 (2d Cir. 1971) (finding a class action habeas “properly maintainable” when the Rule 23 factors are

met); Adderly v. Wainwright, 58 F.R.D. 389, 400 (M.D. Fla. 1972) (holding that a petition for a writ of habeas

corpus can be brought as a class action). See also discussion infra at pp. 6-7 (listing federal courts that have granted

class-wide relief in habeas cases related to COVID).

4

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take reasonable measures to protect them violates the rights of every Class and Subclass member; (c) every Class and Subclass member will use similar or overlapping evidence in support of his or her cause of action; and (d) every Class and Subclass member seeks a uniform injunction or writ of habeas corpus requiring Defendants to take immediate action to protect them from a grave risk of death or harm. In other words, each representative shares all legal claims with the Class or Subclass the representative seeks to represent, each Class or Subclass’s evidence will be identical in support of those claims, and the representatives seek the same relief as the Class or Subclass they seek to represent.
In addition to commonality, the Classes and Subclass satisfy the other requirements of Rule 23(a), as well as the requirements of Rule 23(b)(2). Joinder is impracticable because the number of people in the CDF’s custody exceeds hundreds of people on any given day, and the Subclass also likely contains tens, if not hundreds, of people.14 The claims of the named Plaintiffs are typical of those of the class as a whole. That typicality stems from their claim that CDF has placed them at significant risk of harm by failing to take appropriate steps to address the risk of COVID-19. Named Plaintiffs have no conflicts with the unnamed members of the proposed classes. Their lawyers are experienced in federal-court civil-rights class actions, particularly those involving prisons and jails. Thus, named Plaintiffs and their counsel will adequately represent the interests of the proposed Classes and Subclass. Finally, Defendants have refused to act to address the COVID-19 health crisis at CDF in a manner that applies generally to

14

See ECF No. 1 ¶ 212 (“A sizeable percentage of the jail population is likely medically vulnerable to

COVID.”). According to one study, “asthma prevalence is 30%-60% higher among individuals with a history of

incarceration as compared with the general population.” Elizabeth M. Viglianti et al., Mass Incarceration and

Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 410 (2018). Another study estimates

that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that

requires medical care, 10% live with diabetes, and 30% have hypertension. See Laura Maruschak, et al., Medical

Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice, 3 (2014). See also infra

(detailing same information)

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the class as a whole, rendering class-wide injunctive relief appropriate under Federal Rule of Civil Procedure 23(b)(2), and a class-wide writ of habeas corpus appropriate under Diaz v. Hott.
Federal courts around the country, including this Court, have granted class relief in similar or identical circumstances. See, e.g., Coreas v. Bounds, 458 F. Supp. 3d 352, 362 (D. Md. 2020) (granting federal habeas relief to class of federal immigration detainees at Maryland state facility); Coreas v. Bounds, No. 20-CV-0780, 2020 WL 5593338, at *7 (D. Md. Sept. 18, 2020) (granting certification of class and subclasses, noting that “numerous federal courts across the nation have certified, provisionally or otherwise, class actions brought by immigration detainees through habeas petitions during the ongoing COVID-19 pandemic”) (collecting cases); Banks v. Booth, 468 F. Supp. 3d 101, 125-26 (D.D.C. 2020) (granting in part preliminary injunction with class-wide relief, including ordering compliance with certain CDC guidelines, after granting a TRO), reconsideration denied sub nom. Banks, No. CV 20-849(CKK), 2021 WL 260112 (D.D.C. Jan. 26, 2021) (appeal pending); Criswell v. Boudreaux, No. 20-CV-01048-DAD-SAB, 2020 WL 5235675, at *26 (E.D. Cal. Sept. 2, 2020) (granting motion for provisional class certification and injunctive relief in part); Carranza v. Reams, __ F. Supp. 3d __, 2020 WL 2320174, at *15 (D. Colo. May 11, 2020) (granting class-wide relief prior to resolving motion for class certification); Gomes v. Acting Sec’y, U.S. Dep’t of Homeland Sec., No. 20-CV-453LM, 2020 WL 2113642, at *2-4 (provisionally certifying class of immigration detainees for purpose of granting habeas relief) (D.N.H. May 4, 2020). See also Fraihat v. U.S. Immigration & Customs Enf’t, 445 F. Supp. 3d 709, 750 (C.D. Cal. 2020) (granting class certification and preliminary injunction for immigration detainees); Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 451 (D. Conn. 2020) (granting multi-party habeas relief to federal post-conviction prisoners at Danbury Federal Correctional Institution (“FCI Danbury”)); Savino v. Souza, 453 F. Supp. 3d
6

Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 15 of 29
441, 454 (D. Mass. 2020) (certifying class and granting habeas relief for immigration detainees); Zepeda Rivas v. Jennings, 445 F. Supp. 3d 36, 38-42 (N.D. Cal. 2020) (granting provisional class certification and temporary restraining order for immigration detainees).
ARGUMENT For a district court to certify a class action, the proposed class must satisfy the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a) and at least one requirement of Rule 23(b). Fed. R. Civ. P. 13(a)-(b); Berry v. Schulman, 807 F.3d 600, 608 (4th Cir. 2015); Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). Because the proposed Classes and Subclass meet all four Rule 23(a) requirements and the requirements of Rule 23(b)(2), this Court should certify Plaintiffs’ proposed Classes. Rule 23(c)(5) further allows for a class to be divided into subclasses, where the subclasses are treated as a class under Rule 23. Fed. R. Civ. P. 13(c)(5). As demonstrated below, each subclass additionally meets all requirements of Rule 23(a) and Rule 23(b) and this Court should similarly certify Plaintiffs’ proposed subclass. Class certification is particularly favored when, as here, the named plaintiffs assert civil rights claims that are transitory in nature, such that mootness concerns would make it difficult or impossible for individuals to litigate the issues outside of the class context. See Gratz v. Bollinger, 539 U.S. 244, 268 (2003) (noting that class-action treatment was “particularly important” in a case where the claims of the individual plaintiffs ran “the risk of becoming moot” because “[t]he class action vehicle . . . provides a mechanism for ensuring that a justiciable claim is before the Court”) (quotation marks and citation omitted)). Indeed, class-action treatment is favorable here given the varying, but, for many, relatively brief period of detention in facilities
7

Case 1:21-cv-00428-TSE Document 19-1 Filed 02/22/21 Page 16 of 29
that primarily house individuals who are pretrial in their criminal cases.15 See, e.g., Hiatt v. Cty.
of Adams, Ohio, 155 F.R.D. 605, 608-09 (S.D. Ohio 1994) (explaining that given the “short term
nature of incarceration in a county jail,” a class should be certified when it is the “only vehicle
whereby the legality of [a jail’s] operation . . . can be reviewed”).
Indeed, on February 19, 2021, in declining to address some of the alleged constitutional
violations outlined in this lawsuit, this Court held that arguments about the conditions of CDF
were more properly raised in a class-action civil-rights or habeas suit instead of a bond-review
motion, for many of the reasons described in this memorandum:
Many of the arguments [about CDF’s conditions] raised by Defendant . . . assert potential constitutional violations relating more broadly to conditions of confinement that presumably are common to all detainees at CDF . . . . [S]uch arguments are better suited to a civil rights lawsuit or perhaps a habeas petition rather than a detention hearing for several reasons. Most fundamentally, the presence of such violations would prompt the Court to consider class-wide remedies short of release . . . , yet the parties who could potentially provide such remedies—the officials who run the facilities—are not before the Court. . . .
In sum, remedying facility-wide constitutional grievances common to many detainees as alleged cannot be optimally addressed in the context of a . . . detention hearing.
Memorandum and Order, United States v. Goforth, Case No. 1:20-cr-00319-CCB-1 (D. Md. Feb.
19, 2021), ECF No. 33.

15

The relative brevity of some individual class members’ detention supports class certification but is

irrelevant to the ongoing danger and irreparable injury Defendants’ conduct is causing Plaintiffs and the class. Class

members can be exposed to and contract COVID even after brief exposure to the appalling conditions at CDF. See

generally ECF No. 1 (Compl.).

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I. Plaintiffs Satisfy Rule 23(a): They Are Numerous and Raise Common Questions, and the Named Plaintiffs Are Adequate Representatives with Typical Claims A. Numerosity is Satisfied: The Class and Subclasses Each Include Hundreds of Members. First, the proposed Classes and Subclass are sufficiently numerous to make joinder
impracticable. Fed. R. Civ. P. 23(a)(1). In determining whether the numerosity requirement is met, “[n]o specified number is needed to maintain a class action.” Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984) (citation and quotation omitted). In fact, 18 people can be sufficient. See Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n., 375 F.2d 648, 653 (4th Cir. 1967); see also Rodger v. Elec. Data Sys. Corp., 160 F.R.D. 532, 535 (E.D.N.C. 1995) (“[A] class of as few as twenty-five to thirty members raises a presumption that joinder would be impracticable.”) (citation omitted).
Numerosity is easily satisfied here. Nearly 400 residents are detained at CDF. The vast majority are presumptively innocent and held pretrial; the remainder are convicted individuals. The threat posed by COVID-19 is such that every person in CDF’s custody faces the risk of significant harm. Everyone is at risk of infection. And everyone who is infected is at risk of receiving inadequate medical care that increases the risk of serious illness, long-term permanent physical damage, and death. COVID-19 is therefore potentially lethal for any person in the jail.
The proposed Subclass also meets the numerosity threshold. The Medically Vulnerable Subclass is comprised of people who are particularly vulnerable to COVID because of underlying medical conditions or age. The CDC has promulgated guidance on the individuals who are most likely to become severely ill, meaning that they require hospitalization, intensive care, use of a ventilator to help them breathe, and/or heightened risk of death. This higher-risk
9

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group includes adults over the age of 65 and people with underlying medical conditions (i.e., “medically vulnerable” individuals), including 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), severe obesity, and asthma. All such people are at elevated risk higher risk for developing more serious complications from COVID-19 illness.16
A sizeable percentage of the jail population is likely medically vulnerable to COVID-19. According to one study, “[a]sthma prevalence is 30%-60% higher among individuals with a history of incarceration as compared with the general population.”17 Another study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with diabetes, and 30% have hypertension.18 Based on these estimates and assuming some overlap in these diagnoses, a fair estimate of the number of people who live with one or more of these medical vulnerabilities exceeds several hundred people.
The classes and subclass are too numerous for joinder to be considered practicable. B. Commonality is Satisfied: The Legality of Defendant’s Response to the Pandemic Involves Numerous Common Questions of Fact and Law.
Rule 23(a)(2) requires that “there [be] questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality requires that class members’ claims “depend upon a common contention” of facts or law, such that “determination of its truth or falsity will resolve an issue
16 See ECF No. 1-29 (Declaration of Dr. Franco-Paredes) (“Franco-Paredes Decl.”) ¶¶ 9-10. 17 Viglianti et al., supra n. 12 at 410. 18 Maruschack, et al., supra n. 12 at 3..
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that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 350 (2011).
In other words, the commonality requirement of Rule 23(a)(2) “does not require that all, or even most issues be common, nor that common issues predominate, but only that common issues exist.” Cent. Wesleyan Coll. v. W.R. Grace & Co., 143 F.R.D. 628, 636 (D.S.C. 1992) (citation omitted), aff’d, 6 F.3d 177 (4th Cir. 1993); see also Wal-Mart, 564 U.S. at 369 (“[E]ven a single [common] question will do.”) (citation omitted). For this reason, factual differences among the claims of putative class members do not defeat certification. Indeed, “Rule 23 does not require precise, mirror-image identity respecting the injuries caused by a single practice or policy at a single facility.” Int’l Woodworkers of Am. AFL-CIO, CLC v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1270 (4th Cir. 1981).
Rather, commonality requires Plaintiffs to demonstrate that there is “some glue” holding the claims together; that a common question or questions “generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 352, 349-50 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)) (emphasis in original). These “common answer[s]” must “relate[] to the actual theory of liability in the case.” Rikos v. Procter & Gamble Co., 799 F.3d 497, 505 (6th Cir. 2015). Civil rights cases often easily demonstrate commonality because the defendant’s actions are “central to the claims of all class members[,] irrespective of their individual circumstances and the disparate effects of the conduct.” Baby Neal ex. rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994) (citing 7A Charles A. Wright, et al., Fed. Prac. & Proc. § 1763 at 219 (1986)).
Accordingly, courts in the Fourth Circuit have certified class actions in such cases where a class of people in pretrial detention sought to challenge the state’s practice of transferring
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pretrial detainees from local jails to state institutions, see Epps v. Levine, 457 F. Supp. 561, 563 (D. Md. 1978); where a class of people unable to afford the traffic offense-related fines and court costs sought to challenge the state’s practice of revoking their driver’s licenses as a consequence of their inability to pay, see Johnson v. Jessup, 381 F. Supp. 3d 619, 637 (M.D.N.C. 2019); and in a recent case where a class of immigration detainees sought to challenge the conditions in immigration detention, see Coreas, 2020 WL 5593338, at *7 (D. Md. Sept. 18, 2020) (granting certification of class and subclasses in immigration-detention challenge, noting that “numerous federal courts across the nation have certified, provisionally or otherwise, class actions brought by immigration detainees through habeas petitions during the ongoing COVID-19 pandemic” (citing cases)). See also, e.g., Wilson v. Williams, 961 F.3d 829, 832 (6th Cir. 2020) (class-action habeas lawsuit regarding conditions of confinement during COVID-19); Whitted v. Easter, No. 20-CV-00569-MPS, 2020 WL 4605224, at *3 (D. Conn. Aug. 11, 2020) (certifying class of residents of FCI Danbury in challenge to conditions). Additionally, many district courts have found that systemic constitutional challenges to prison and jail conditions provide the “glue” necessary to hold a class together.19
As the Supreme Court explained in Wal-Mart, “for purposes of Rule 23(a)(2) ‘[e]ven a single [common] question’ will do.” 564 U.S. at 359 (quoting Richard A. Nagareda, The
19 See, e.g., Olson v. Brown, 284 F.R.D. 398, 410-11 (N.D. Ind. 2012 (jail policies and conditions); Ross v. Gossett, 2020 WL 1472072, at *3-4 (S.D. Ill. Mar. 26, 2020 (unconstitutional practices regarding shakedowns); Rosas v. Baca, 2012 WL 2061694, at *3 (C.D. Cal. June 7, 2012 (jail violence case); Jones v. Guzman, 296 F.R.D. 416, 465-
66 (E.D. La. 2013) (jail violence case); Hughes v. Judd, 2013 WL 1821077, at *23 (M.D. Fla. Mar. 27, 2013)
(unconstitutional conditions for juvenile detainees); M.D. v. Perry, 294 F.R.D. 7, 24-25 (S.D. Tex. 2013) (foster children facing abuse); Parsons v. Ryan, 289 F.R.D. 513, 515-16 (D. Ariz. 2013) (inadequate medical and mental
health care in state prisons); Butler v. Suffolk Cnty., 289 F.R.D. 80, 96-97 (E.D.N.Y. 2013) (jail sanitation case); Abadia-Peixoto v. United States Dep’t of Homeland Sec., 277 F.R.D. 572, 576 (N.D. Cal. 2011) (shackling of detainees during judicial proceedings).
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Preexistence Principle and the Structure of the Class Action, 103 Colum. L.Rev. 149, 176, n. 110 (2003)). Here, Plaintiffs allege that all members of the proposed Class are at significant risk of contracting a fatal illness due to CDF’s systemic failure to implement policies and practices necessary to protect them. The core questions of law and fact common to the classes and subclass include the following:
a. Do CDF’s conditions create a substantial risk that the people in its custody will be infected with COVID-19?
b. Do CDF’s conditions create a substantial risk that the people in its custody who are infected with COVID-19 will face serious illness, long-term physical damage, or death?
c. Did Defendants know, or should Defendants have known, of these risks? d. Are Defendants acting with deliberate indifference to these risks? e. For the subclass: Is the risk of harm posed by CDF’s conditions so severe and so
immediate that the only adequate remedy is release? Resolving these questions will yield exactly the kind of “common answers” to Plaintiffs’ Eighth and Fifth / Fourteenth Amendment claims that the Supreme Court requires.20 See Wal-Mart, 564 U.S. at 351.
An injunctive challenge to a systemic failure to protect class members from significant harm is a textbook example of a case that satisfies the commonality requirement and warrants class certification. Indeed, “this is precisely the type of case for which class certification pursuant

20

To answer these core questions, the Court will need to consider specific fact questions common to the

classes, including: what measures Defendants are taking in response to the spread of COVID-19; whether conditions

at CDF comply with CDC guidelines; whether Defendant Wilson knew of and disregarded the risk of COVID-19.

Ultimately, the Court will determine the legal question of whether Defendants’ conduct rises to the requisite level of

deliberate indifference for a constitutional violation. The answers to these questions will be common to all members

of the putative classes at issue.

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to Rule 23(b)(2) was intended.” Scott v. Clarke, 61 F. Supp. 3d 569, 590-91 (W.D. Va. 2014); see Thorn v. Jefferson–Pilot Life Ins. Co., 445 F.3d 311, 330 (4th Cir. 2006). Plaintiffs here challenge Defendant’s systemic failure to respond reasonably to the deadly threat of COVID-19. The commonality requirement is therefore easily met. See Scott, 61 F. Supp. 3d at 590 (W.D. Va. 2014) (certifying a 23(b)(2) class where “Plaintiffs’ amended pleadings allege that the Defendants have provided deficient medical care, or failed to provide medical care under circumstances in which it is plainly warranted and needed, on a systemic basis that jeopardizes the continuing health and well-being of Plaintiffs and all other prisoners residing or who will reside at [the prison]”).
C. Typicality is Satisfied: The Named Plaintiffs’ Claims Are Representative of Those of the Classes and Subclass at Large.
Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The threshold requirements of . . . typicality are not high.” Brown v. Nucor Corp., 576 F.3d 149, 153 (4th Cir. 2009) (quoting Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir. 1993)). Class representatives must “be part of the class and possess the same interest and suffer the same injury as the class members.” Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001) (quoting Gen. Tel. Co. of Southwest. v. Falcon, 457 U.S. 147, 156 (1982)).
Under the typicality requirement, the Court does not require “members of the class [to] have identical factual and legal claims in all respects.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. 1998). In this respect, “factual differences will not render a claim atypical,” so long as the class representative’s claim “arises from the same event or practice or course of conduct that gives rise to the claims of the class members” and is “based on the same legal theory.” Casey, 43 F.3d at 58 (citations omitted). In other words, “[t]he
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essence of the typicality requirement is captured by the notion that ‘as goes the claim of the named plaintiff, so go the claims of the class.’” Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006) (citations omitted).
In this case, the claims of the Plaintiffs are typical of the Classes and Subclass that they represent. Every member of the class faces a substantial risk of contracting COVID-19 if immediate measures are not implemented. Some people, like the medically vulnerable plaintiffs, are at imminent risk of death or severe harm if they are not transferred to a safer environment. The overarching nature of the threat of COVID-19 to every person confined in CDF is sufficient to satisfy typicality for the two Classes. For the Medically Vulnerable Subclass, each person claims that the person must be released because his health is at imminent and immediate risk from the same virus and same policy failures as each other person in the subclass. The claims of the representatives are therefore typical of the claims of those they seek to represent.
D. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Classes and Subclass.
Finally, the Named Plaintiffs also meet the final requirement under Rule 23(a): they “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequate representation requirement is met where: “1) plaintiff’s interests are [not] antagonistic to the interest of other members of the class[,] and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Longo v. Trojan Horse Ltd., 208 F. Supp.3d 700, 711 (E.D.N.C. 2016) (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000)); see also Olvera-Morales v. Int’l Labor Mgmt. Corp. Inc, 246 F.R.D. 250, 258 (M.D.N.C. 2007) (“To establish adequacy, ‘the representative must have common interests with unnamed members of the class’ and ‘it must appear that the representatives will vigorously
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prosecute the interests of the class through qualified counsel.’”) (quoting In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996)).
In this case, the Named Plaintiffs do not have interests that conflict with those of the rest of the class. To the contrary, as laid out above in the commonality and typicality discussions, the Named Plaintiffs here pursue claims common to the Classes and Subclass as a whole in an effort to advance a common interest in ensuring they receive adequate protection from COVID-19. The injunctive relief they seek would benefit the entire class equally. The Named Plaintiffs and their fellow Class and Subclass members thus share a common interest and are not conflict with each other.
The Named Plaintiffs also meet the requirement that they will “vigorously prosecute the interests of the class through qualified counsel.” Olvera-Morales, 246 F.R.D at 258. They are represented here by highly qualified and experienced civil rights attorneys who are able and willing to conduct this litigation on behalf of the class. Plaintiffs’ counsel from the Lawyers’ Committee for Civil Rights Under Law have extensive experience litigating complex class action cases and civil rights cases, including cases concerning unconstitutional pretrial systems. Ex. 1 hereto, Declaration of Jon Greenbaum in Support of Plaintiffs’ Motion for Class Certification (“Greenbaum Decl.”) ¶¶ 4-9. Further, pro bono counsel from the law firm Bryan Cave Leighton Paisner LLP have extensive experience litigating complex class action cases. Id. ¶ 10. As discussed in further detail below, infra Part III, Plaintiffs’ counsel are qualified and experienced counsel with a history of zealous advocacy on behalf of their clients. Thus, Rule 23(a)(4)’s adequacy requirement is met.
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II. Certification of the Classes and Subclass for Prospective Relief is Appropriate Under Fed. R. Civ. P. 23(b)(2) In addition to satisfying Rule 23(a), the proposed class in this case satisfies Rule
23(b)(2). A court may certify a class under Rule 23(b)(2) if “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); see also Zimmerman v. Bell, 800 F.2d 386, 389-90 (4th Cir. 1986) (“[S]ubsection (b)(2) [is] limited to claims where the relief sought [is] primarily injunctive or declaratory.”); Bumgarner v. NCDOC, 276 F.R.D. 452, 457-58 (E.D.N.C. 2011) (“The essential consideration is whether the complaint alleges that the plaintiffs have been injured by defendants’ conduct which is based on policies and practices applicable to the entire class.”) (citation omitted).
Courts have repeatedly held that civil-rights class actions are the paradigmatic Rule 23(b)(2) suits, “for they seek classwide structural relief that would clearly redound equally to the benefit of each class member.” Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979), vacated on other grounds, Lombard v. Marcera, 442 U.S. 915 (1979). As stated in the leading treatise on class actions:
Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits. Most class actions in the constitutional and civil rights areas seek primarily declaratory and injunctive relief on behalf of the class and therefore readily satisfy Rule 23(b)(2) class action criteria. A. Conte & H. Newberg, Newberg on Class Actions § 25.20 (4th ed. 2002). Injunctive challenges to prison and jail conditions routinely proceed as class actions. See, e.g., Brown v. Plata, 563 U.S. 493, 506-08 (2011); Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 374 (1992); Jones ‘El v. Berge, 374 F.3d 541, 543 (7th Cir. 2004); Jones v. Diamond, 519 F.2d 1090, 1097 (5th Cir. 1975) (“Realistically, class actions are the only practicable judicial mechanism for the cleansing reformation and purification of these penal institutions.”); Casey,
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43 F.3d at 58 (noting that subsection (b)(2) “is almost automatically satisfied in actions primarily seeking injunctive relief”); Scott v. Clarke, 61 F. Supp. at 591; Bradley v. Harrelson, 151 F.R.D. 422, 427 (M.D. Ala. 1993) (stating that subsection (b)(2) “is particularly applicable to suits such as the one sub judice which involve conditions of confinement in a correctional institution”). Here, high-level officials failing to take reasonable measures to abate the deadly threat posed by COVID-19 places all class members at risk of serious illness or death. Rule 23(b)(2) is satisfied. III. Undersigned Counsel Should Be Appointed Class Counsel Under Rule 23(g).
Federal Rule of Civil Procedure 23(g) requires that the court appoint class counsel for any class that is certified. Fed. R. Civ. P. 23(g)(1). Class counsel must “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). In determining whether this requirement is met, courts must consider: (1) “the work counsel has done in identifying or investigating potential claims in the action;” (2) “counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;” (3) “counsel’s knowledge of the applicable law;” and (4) “the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv).
Undersigned Counsel satisfy these four requirements. The Plaintiffs and proposed Classes are represented by attorneys from the Lawyers’ Committee for Civil Rights Under Law as well as pro bono counsel from the large international law firm of Bryan Cave Leighton Paisner LLP. Counsel has extensive experience litigating complex civil rights matters and class action lawsuits in federal court and extensive knowledge of both the conditions in the jail and the relevant constitutional law. Class counsel have conducted an extensive investigation into the conditions in CDF and the sanitation and social distancing requirements that are necessary to prevent or mitigate an outbreak of COVID-19. In addition, Class counsel have sufficient
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financial and human resources to litigate this matter. In sum, Plaintiffs’ attorneys are experienced

advocates; possess sufficient “vigor” along with sufficient resources, to adequately represent the

Classes and Subclass and to prosecute this action; and are appropriate counsel for the matter. See

Kirkpatrick J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987) (citations omitted).

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court certify the Classes

and Subclass as defined in this Motion and appoint the undersigned as class counsel.

Dated: February 22, 2021

Respectfully submitted,

(Signatures follow on next page.)

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/s/ Alec W. Farr Alec W. Farr (Federal Bar No. 12513) awfarr@bclplaw.com Daniel C. Schwartz (pro hac vice to be submitted) dcschwartz@bclplaw.com Adam L. Shaw (pro hac vice to be submitted) adam.shaw@bclplaw.com Joscelyn T. Solomon (Federal Bar No. 21555) joscelyn.solomon@bclplaw.com Brett R. Orren (pro hac vice to be submitted) brett.orren@bclplaw.com
BRYAN CAVE LEIGHTON PAISNER LLP 1155 F Street, NW Washington, DC 20004 (202) 508-6000 Phone (202) 508-6200 Facsimile
/s/ Tianna Mays Tianna Mays (Bar No. 21597) tmays@lawyerscommittee.org Jon Greenbaum (pro hac vice admission pending) jgreenbaum@lawyerscommittee.org Arthur Ago (pro hac vice admission pending) aago@lawyerscommittee.org John Fowler (pro hac vice admission pending) jfowler@lawyerscommittee.org Rochelle F. Swartz (pro hac vice admission pending) rswartz@lawyerscommittee.org
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1500 K Street NW Suite 900 Washington, DC 20005 Phone 202-662-8600 Fax 202-783-0857 Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I, Adam L. Shaw, an attorney, hereby certify that on February 22, 2021, the foregoing was filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on the Attorney General of the State of Maryland via email at the address below. Brian E. Frosh Maryland Attorney General 200 St. Paul Place Baltimore, MD 21202 civil_service@oag.state.md.us
/s/ Adam L. Shaw Adam L. Shaw
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BALTIMORE DIVISION

SEDRIC CATCHINGS et al., Plaintiffs,
v.
CALVIN WILSON et al., Defendants.

*
* Case No.: 1:21-cv-00428-TSE
*
*

PLAINTIFFS’ STATUS REPORT TO THE COURT REGARDING DISGREEMENTS WITH DEFENDANTS On March 17, 2021, as the Court ordered, the parties filed their agreement regarding the implementation of a number of conditions at the Chesapeake Detention Center (“CDF”). See Dkt. 50-1. On March 19, 2021, the parties filed the agreement with the signatures of both Defendants (“the Agreement”). Dkt. 52-1. Defendants also agreed to comply with certain of Plaintiffs’ discovery requests, as reflected in the Agreement. Meanwhile, the crisis continues in Defendants’ facilities. Per the Defendants’ own reports, as of March 15, 2021, 11 residents and staff members at the Chesapeake Detention Facility (CDF) were suffering from an “active infection.” Decl. of Warden Wilson, Dkt. 51-3, ¶ 13. Despite the continued spread of the virus, Defendants will not agree to comply with certain other conditions at CDF that are critical to immediate compliance with minimum COVID-related health standards as set forth by scientifically-established protocols for isolation and quarantine. These measures are needed to bring Defendants’ facilities into compliance with the Constitution and to stop the increase of positives at CDF. As ordered by the Court, Plaintiffs now set out those conditions on which there is disagreement, in the order of their significance to creating a constitutionally safe environment for
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the residents and staff at CDF.1 Underneath each condition is the corresponding provision of proposed relief in the Complaint.
Unless directed by the Court to do otherwise, Plaintiffs will bring these issues, as well as outstanding discovery issues, before Magistrate Judge Nachmanoff as soon as possible.
POINTS OF DISAGREEMENT REGARDING THE CONDITIONS AT CDF (1) An order that Defendants implement appropriate cohorting, including
quarantining and medical isolation procedures, as recommended by CDC guidelines. Compl., Dkt. 1, Relief Requested “j” at p. 61. Point of disagreement 1: Defendants will not agree to quarantine all residents who shared recreation time with residents who test positive for COVID-19. Instead, Defendants will agree to quarantine only the cellmates of COVID-positive residents. Defendants’ own records for five recent COVID-positive residents from February, for example, make clear that Defendants define “close contacts” as applying only to the COVID-positive resident’s cellmate. Defendants have not identified any other way that Defendants contract trace or otherwise identify “close contacts.” Point of disagreement 2: Defendants will not agree to conduct contact tracing to identify other “close contacts” of COVID-positive residents beyond a cellmate. Impact on health and safety: By failing to conduct proper contract tracing by identifying “close contacts,” Defendants nearly guarantee the continued spread of the virus, which in turn guarantees a constitutional violation. Given CDF’s recreation schedule and the size of common areas in housing units, every resident who shares recreation time with a positive resident (up to 11 other residents) almost certainly qualifies as a “close contact.” By not identifying every resident who shares recreation time as a “close contact” and then quarantining that person, Defendants

1

Counsel for the Defendants have reviewed these points of disagreement (though not the

detailed argument about the impact of these issues on health and safety). Counsel for the

Defendants concur that the parties have reached an impasse on these issues, at least at the present.

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dramatically increase the likelihood of an exposed resident remaining on a housing unit, free to infect the other remaining residents. Relatedly, Defendants appear to be in violation of their own policies on contact tracing and “close contacts.” Protocol for the Department of Public Safety and Corrections Services, of which Defendant Green is the Secretary, defines “close contacts” in its detention facilities as residents who were less than six feet away from a positive individual for at least two minutes in a bounded timeframe. DPSCS, Covid-19 Contact Tracing Protocol for Inmates and Contractor Staff (April 13, 2020), Ex. 1, at 1 (“Identify close contacts who were 6 feet or less from the case for a duration of 2 minutes or longer during the 7-day period preceding the onset of symptoms (if not known, then use testing date[)]”). This practice is also in violation of CDC guidance. See CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Interim Guidance”), ECF 1-25,2 Definitions of Commonly Used Terms, Close Contact of Someone with COVID-19. In turn, DPSCS’ own protocol requires these identified “close contacts” to be quarantined. Ex. 1, at 2 (“Inmates that met criteria for quarantine (close contact determined but asymptomatic) shall have a quarantine order.”). The failure to comply with internal policies and CDC guidance nearly guarantees the continued spread of the virus.
Point of disagreement 3: Defendants will not agree to immediately test all residents in quarantine (because of exposure to COVID), and are not willing to agree to test such residents until the next regularly scheduled facility-wide test, which at present occur weekly.
2 This Guidance was filed as an attachment to the Complaint. It is also available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.
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Impact on health and safety: Defendants are placing residents who have been exposed to the virus together in a living area, some of whom may have contracted the virus and some of whom may not. By not immediately testing to determine whether any of the exposed residents are in fact positive, Defendants create unnecessary risk of positive residents infecting negative residents. Defendants should be promptly moving any positive residents to medical isolation to prevent them from spreading the virus. But at present, Defendants are testing residents in quarantine only on regularly scheduled testing days for the facilities—which means that Defendants may be exposing negative residents to positive residents for more than seven days (as results take a few days to come back). This is contrary to CDC guidance. See CDC Interim Guidance, Testing Close Contracts.
Point of disagreement 4: Defendants will not agree not to stop adding residents to a quarantine cohort after the cohort is formed. Defendants also rejected Plaintiffs’ proposed interim compromise by which Defendants would agree to “avoid” adding residents to a quarantine cohort after the cohort is formed.
Impact on health and safety: Residents who are quarantined from one housing unit have to undergo 14 days of quarantine to ensure they do not exhibit symptoms. By mixing in residents from a different housing unit with the first group after the group is formed, Defendants insert new residents who themselves may have the virus from a different source, i.e., introducing a new source of infection. This is an unnecessary risk. Cf. CDC Interim Guidance, Cohorted Quarantine for Multiple Close Contacts (who test negative) (“Do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started. Doing so would complicate the calculation of the cohort’s quarantine period, and potentially introduce new sources of infection.”).
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Point of disagreement 5: Defendants will not agree to house each resident in quarantine in a single cell, separated from others. Instead, Defendants have agreed only to prioritize such residents for single-cell housing, noting that “they would need ‘if possible’ language added based on other institutional circumstances.”3
Impact on health and safety: Residents in quarantine can infect one another, as described above. The CDC recommends creating as much as space as possible across quarantined residents. CDC Interim Guidance, Definitions of Commonly Used Terms, Cohorting (“While cohorting those with confirmed COVID-19 is acceptable, cohorting individuals with suspected COVID-19 is not recommended due to high risk of transmission from infected to uninfected individuals.”).
Point of disagreement 6: Defendants will not agree to immediately test any staff member exposed to a COVID-positive resident or colleague, or to prohibit exposed employees from returning to work without a confirmed negative test.
Impact on health and safety: If Defendants decline to immediately test their staff members after exposure, they cannot ascertain when it is safe for the staff member to return to work. And if Defendants do not require a negative test or particular timeframe in which a staff member quarantines at home, Defendants are inviting risk into their facilities.
(2) An order that Defendants immediately create and implement a plan that complies with CDC Guidance to minimize transmission to and provide adequate medical monitoring and care to residents who are medically vulnerable to COVID. Dkt. 1, Relief Requested “n” at p. 62.
Point of disagreement 1: Defendants will not agree to house all high-risk residents (whether in quarantine, isolation, or general population) in single-occupancy cells, instead only agreeing to

3

This language comes from edits made by counsel for the Defendants to an overview

document of the points of disagreement. See fn. 1.

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prioritize such residents for this placement. Defendants again indicate that “they would need ‘if possible’ language added based on other institutional circumstances.”4
Impact on health and safety: High-risk residents are at greater risk of severe illness if they were to contract COVID. Placing these residents in single cells provides correspondingly increased protection.
Point of disagreement 2: Defendants will not agree to house “high risk” residents in quarantine in a single cell. Instead, Defendants have agreed only to prioritize such residents for single-cell housing, noting again that “they would need ‘if possible’ language added based on other institutional circumstances.”5
Impact on health and safety: “High risk” residents are the ones most at risk of a catastrophic outcome if they contract COVID. Defendants report that CDF is well under its maximum capacity for residents as of March 17, 2021. Dkt. 51-3 ¶ 1. Even if Defendants decline to house highresidents in general population in single cells, they should absolutely be doing so for high risk residents in quarantine. CDC Interim Guidance, Cohorted Quarantine for Multiple Close Contacts (who test negative) (“If cohorting close contacts is absolutely necessary, be especially mindful of those who are at increased risk for severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure for the individuals with increased risk of severe illness.”).
Point of disagreement 3: Defendants will not agree to heightened monitoring of high-risk residents in its facilities, including temperature and symptom checks at least three times daily.

4

See fn. 3.

5

See fn. 3.

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Impact on health and safety: High-risk individuals, by definition, are at an increased risk of severe illness if they were to contract COVID. Heightened monitoring of such residents would ensure that health officials will become aware of health issues and those issues can be treated. Indeed, the condition Plaintiffs proposes is less stringent than what the CDC recommends, which is monitoring of almost all residents in a facility when the facility has a positive test among residents or staff. See CDC Interim Guidance, Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms (“If individuals with COVID-19 have been identified among staff or incarcerated/detained persons anywhere in a facility, consider implementing regular symptom screening and temperature checks in housing units that have not yet identified infections, until no additional infections have been identified in the facility for 14 days.”). And as noted above, as of March 17, 2021, 11 residents and staff members currently have an “active infection.”
(3) An order that Defendants create and enact CDC-recommended social distancing policies that allow for adequate spacing of six feet or more between residents, as well as a pause on new admissions to CDF pending control of the outbreak. Dkt. 1, Relief Requested “f” at p. 61; Dkt. 18-1, Relief Requested “b” at p. 5.
Point of disagreement 1: Defendants will not agree to implementing social distancing policies (such as spacing out residents across cells in housing units), arguing that the facility does not allow for creating six feet of space between individuals with its present population. Instead of implementing such policies or spreading residents out over the facility, Defendants have agreed only to encourage social distancing of residents during recreation.
Impact on health and safety: Meaningful social distancing policies (particularly for housing residents) are critical to slowing and stopping the spread of the virus. CDC Interim Guidance, Definitions of Commonly Used Terms (“Social distancing is vital for the prevention of respiratory diseases such as COVID-19, especially because people who have been infected with SARS-CoV2 but do not have symptoms can still spread the infection.”). Small, simple measures—such as
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single-celling (described supra) or leaving a cell open between occupied cells—can combat the spread of highly infectious viruses like COVID-19. Id., Cohorted Quarantine for Multiple Close Contacts (who test negative) (“Employ social distancing strategies related to housing . . . to maintain at least 6 feet of space between individuals.” (emphasis added)). As noted supra, Defendants report that they are well under the maximum capacity of the resident population at CDF. To the extent that space limitations nonetheless create restraints, they ignore an obvious solution: restricting the resident population size.
Point of disagreement 2: Related to this point, Defendants will not commit to decline to accept new admissions until 14 days after there are no new positive tests of residents or staff pursuant to facility-wide testing. Defendants indicate, however, that as of March 17, 2021, they are currently not accepting new detainees from the U.S. Marshals Service. Dkt. 51-3 ¶ 4.
Impact on health and safety: Pausing admissions (while the facility straightens out its policies and practices) is critical to ensure that another outbreak will not happen. CDF admitted two women within the last three months who were housed in units next to COVID-positive men— during the height of the outbreak. See, e.g., Res. Decl. (Dkt. 1-14) (woman who was new admission placed next to COVID-positive men in January); Res. Decl. H (Dkt. 7-1) ¶ 28 (COVID-positive male resident placed next to a different new admission, also a woman, in February). This placement is reflected in Defendants’ own housing records, too. Defendants have not implemented the types of policies necessary to protect residents and staff alike. Defendants have other facilities in which to house residents; Defendants have also indicated that the U.S. Marshals Service has other facilities that it uses to house pretrial detainees for the District of Maryland.
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(4) To the extent it is necessary to ensure constitutionally sufficient procedures or to protect certain residents’ constitutional rights, order the Warden to transfer residents to another appropriate facility. Dkt 1, Relief Requested “o” at p. 61.
Point of disagreement 1: Defendants will not agree to transfer residents to other facilities that are not experiencing the problems at CDF, despite Defendants’ expressed concern that the resident population size may limit their ability to comply with CDC guidance.
Impact on health and safety: Although transferring residents would presumably eliminate the space constraints that Defendants claim prohibit adequate social distancing and single-cell housing, Defendants do not explain why they decline to transfer residents to a different facility (and instead indicate that a court order would be necessary to begin transfer). Meanwhile, Defendants are already using their transfer authority to move residents for medical isolation to the Jail Industries Building (JIB), sometimes referred to as the Health Monitoring Facility (HMF).
Point of disagreement 2: Defendants will not agree to stop transferring COVID-positive residents from CDF to the Jail Industries Building.6
Impact on health and safety: As described in the Complaint, JIB is an inappropriate facility for individuals who are recovering from a dangerous virus. Dkt. 1 ¶¶ 162-179 (describing residents wearing paper clothing despite broken windows and low temperatures, absence of cleaning procedures, and deprivation of necessary medications to individuals with preexisting conditions,
6 Plaintiffs’ request is that Defendants stop transferring residents at CDF to JIB, not that Defendants close JIB altogether. Defendants have misunderstood Plaintiffs’ requests. See Dkt. 511 at 10 (“The plaintiffs have asked this Court to order that the HMF be closed . . . “). Per Defendants’ own explanations, JIB houses detainees and inmates from other of Defendants’ facilities, not just from CDF. Dkt. 51-3 ¶ 6(k) (explaining that JIB is used for “inmates and detainees in the Central Region”). Per Defendants’ report, JIB houses five “inmates and detainees” at present. Id. Plaintiffs’ request is limited: that Defendants stop transferring CDF residents to JIB.
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among other things). Medical isolation should be a safe, clean, and medically appropriate environment, not one in which residents are deprived of basic necessities.
(5) An order that CDF provide adequate medical care to residents, whether because of COVID symptoms, chronic health conditions, or any other medical issue. Dkt. 1, Relief Requested “e” at p. 61.
Point of disagreement: Defendants will not agree to immediately provide all residents in isolation or quarantine with all required and / or prescribed medications and treatments that they were given prior to being moved to isolation or quarantine. Instead, Defendants have agreed to provide “clean and safe living conditions for residents in quarantine or isolation”7 and to provide medication to residents in isolation or quarantine within 48 hours of their transfer.
Impact on health and safety: Residents in isolation or quarantine are most in need of their medications and treatments—not within two days of their being transferred, but on their normal medication schedule. An asthmatic resident in isolation, for example, is most at risk of a catastrophic outcome resulting from a lack of access to an inhaler. This problem is not hypothetical; at least one resident who was sent to isolation at the Jail Industries Building in early February was denied access to his inhaler. Res. Decl. B (Dkt. 2-1) ¶ 10 (“I went from Tuesday, February 2, to Saturday, February 6, without my inhalers at JI.”). See also, e.g., Res. Decl. H (Dkt. 7-1) ¶¶ 19-25, 30 (describing how a resident transferred to JI was denied prescribed antibiotics for a wound for at least two days).
(6) An order that CDF immediately offer vaccinations to all members of the Medically Vulnerable Subclass who qualify as “high risk,” as defined by Maryland guidance. Dkt. 1, Relief Requested “q” at p. 62).
Point of disagreement: Defendants will not agree to immediately offer vaccinations to all

7

Agreement, Dkt. 52-1, p. 3, ¶ 15.

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high-risk residents, instead agreeing to offer these vaccinations when available and to take reasonable steps to secure supplies. Despite Maryland having entered Phase 1B in mid-January, which makes “high-risk incarcerated individuals” eligible for vaccination, see Compl., Dkt. 1 ¶ 21, Defendants have declined to offer vaccinations to all “high-risk” residents. See Dkt. 51-3 ¶ 10 (Warden Wilson mistakenly indicating that “detainees below the age of 65 who are at increased risk of severe covid-19 [illness] are grouped in Phase Two,” and noting that “[v]accinations have not yet begun for Phases 2 and 3”).
Impact on health and safety: Vaccinating as many vulnerable residents as possible will ameliorate some of the risk to this population and lessen the burden on the facility going forward. In addition, vaccinating as many residents and staff as possible moves the facility closer to herd immunity. Vaccinations also reduce the need for single-cell placement for high-risk residents. In misunderstanding Maryland’s own prioritization for vaccinations, Defendants have put residents and staff alike at grave risk, particularly those who are most vulnerable to severe illness. This misunderstanding also violates CDC guidance. See CDC, COVID-19 Vaccine FAQs in Correctional and Detention Centers, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/vaccine-faqs.html (“Jurisdictions are encouraged to vaccinate staff and incarcerated/detained persons of correctional or detention facilities at the same time because of their shared increased risk of disease. Outbreaks in correctional and detention facilities are often difficult to control given the inability to physically distance, limited space for isolation or quarantine, and limited testing and personal protective equipment resources. Incarcerated or detained persons living in correctional and detention facilities may also be older or have high-risk medical conditions that place them at higher risk of experiencing severe COVID-
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19. COVID-19 outbreaks in correctional and detention facilities may also lead to community transmission.” (emphasis added)).
(7) An order that CDF ensure each resident receives, free of charge: (1) an individual supply of liquid hand soap and paper towels sufficient to allow frequent hand washing and drying each day; (2) tissues; and (3) adequate access to a supply of cleaning and disinfectant products effective against COVID to allow for cleanings of frequently-touched surfaces several times per day. Dkt. 1, Relief Requested “c” at p. 60.
Point of disagreement: Defendants will not agree to a periodic schedule of soap distribution, including Plaintiff’s request that Defendants provide a bar of soap to each resident every two weeks and to provide a bar of soap if a resident requests one prior to the expiration of the two weeks. Instead, Defendants will agree only to provide a bar of soap to each resident and provide additional bars of soap on request if a resident runs out of soap.
Impact on health and safety: Defendants’ proposed non-specific, non-periodic commitment is inadequate because residents report that CDF does not provide soap when requested by Residents. Res. Decl. B (ECF 2-1), ¶ 43 (“When I was first at CDF, they gave out soap at least once a month. But CDF hasn’t given out bars of soap in two or three months.”); Res. Decl. D. (ECF 4-1) ¶ 26 (“I have asked for more soap from CDF staff. They say that they are working on it, but I never hear back, and they have never given me any.”); Res. Decl. F (ECF 51) ¶ 16 (“I buy all my hygiene items, like soap, from commissary. . . . I’ve requested those things before from CDF, and COs didn’t get that stuff.”). Some residents have had to buy soap from commissary as a result. Res. Decl. D. (ECF 4-1) ¶ 27 (“Because of that, I have had to buy soap with my own money from the commissary, even during this pandemic.”); Res. Decl. K (ECF 112) ¶ 7 (“I had to purchase some soap from commissary this week because CDF didn’t give me any soap.”) Agreeing to a particular timeframe on soap distribution avoids unnecessary disputes about Defendants’ agents’ responses to requests for an essential hygiene item.
12

Case 1:21-cv-00428-TSE Document 53 Filed 03/19/21 Page 13 of 17
(8) An order that CDF end preemptive lockdown procedures and instead impose appropriate time-limited lockdown-like procedures, with that time limit clearly communicated to residents, only when necessary due to a known or suspected case of COVID, as recommended by medical and public health professionals. Dkt. 1, Relief Requested “i” at p. 61.
Point of disagreement 1: Defendants will not agree to limit the duration of lockdown procedures for COVID-related reasons (that is, to move residents to different cohorts, to sanitize areas, or to conduct contact tracing) to a particular timeframe, including Plaintiffs’ suggestion of 24 hours. Defendants indicated that they need to retain discretion on how long these processes may take to resolve.
Impact on health and safety: Limitless lockdown—which has been shown to cause psychological harm to residents—is frowned upon by the Fourth Circuit. Porter v. Clarke, 923 F.3d 348, 357 (4th Cir. 2019) (finding that conditions wherein death-row inmates spent “between 23 and 24 hours a day alone in a small . . . cell with no access to congregate religious, educational, or social programming—pose[d] a substantial risk of serious psychological and emotional harm.”) (quotations omitted), as amended (May 6, 2019). Defendants can and should limit the duration of these procedures. See, e.g. Dr. Haney Decl. (ECF 29-1) ¶ 26 (“[J]ails and prisons should institute such lockdowns only where medically necessary to resolve discrete issues, such as sanitizing dorms or contact tracing of an infected prisoner. If such lockdowns are employed, for these limited purposes, they should be reasonably time-limited.”).
Point of disagreement 2: Defendants will not agree to provide substantially the same privileges to residents in isolation or quarantine (or to provide substitutes for the decreased recreation time or other privileges) as those in the general population.
Impact on health and safety: Maintaining substantially the same privileges, or providing substitutes, incentivizes residents to come forward to report symptoms of COVID, and are
13

Case 1:21-cv-00428-TSE Document 53 Filed 03/19/21 Page 14 of 17

therefore essential. Dr. Meyer Decl. (ECF 1-27) ¶ 29(c) (“People may be deterred from reporting symptoms out of fear of perceived punitive isolation.”); Dr. Haney Decl. (ECF 29-1) ¶ 26 (“Moreover, in extreme cases in which lockdowns are employed, the jail or prison should ensure that inmates are given enhanced access to resources to protect their mental health, such as reading material and adequate access to phones. In addition, the jail or prison staff should regularly communicate with and monitor the physical and mental health of prisoners who are on lockdown.” (emphasis added).
(9) To the extent a resident must enter lockdown or isolation to effectuate an appropriate quarantine or medical isolation procedure, an order that CDF provide appropriate mental health services, and, if that resident has a mental health condition, provide enhanced psychological services in these circumstances. Dkt. 1, Relief Requested “k” at p. 61.
Point of disagreement: Defendants will not agree to enhanced psychological services, instead agreeing to “provide appropriate mental health services by” maintaining current mentalhealth services.8
Impact on health and safety: This is a problem because enhanced psychological services are required to protected against deterioration and decompensation. Dr. Haney Decl. (ECF 29-1) ¶ 21-22 (“Although the adverse effects of isolated confinement are widespread, and jeopardize the physical and psychological well-being of everyone exposed to them, this is especially true for prisoners with pre-existing mental health conditions. They are particularly likely to decompensate, suffer worsening depression, and even engage in self-harming and suicidal behavior in response to social isolation. . . . If they cannot be [excluded from lockdown-like procedures altogether], then they must be given access to enhanced psychological services.”)

8

See fn. 3.

14

Case 1:21-cv-00428-TSE Document 53 Filed 03/19/21 Page 15 of 17
CONCLUSION9
Unless directed by the Court to do otherwise, Plaintiffs will bring these issues, as well as
outstanding discovery issues, before Magistrate Judge Nachmanoff as soon as possible.
.
Respectfully submitted on March 19, 2021,
/s/ John Fowler
Alec W. Farr (Federal Bar No. 12513) awfarr@bclplaw.com Daniel C. Schwartz (pro hac vice) dcschwartz@bclplaw.com Adam L. Shaw (pro hac vice) adam.shaw@bclplaw.com Joscelyn T. Solomon (Federal Bar No. 21555) joscelyn.solomon@bclplaw.com Brett R. Orren (D. Md. application pending) brett.orren@bclplaw.com
BRYAN CAVE LEIGHTON PAISNER LLP 1155 F Street, NW Washington, DC 20004 (202) 508-6000 Phone (202) 508-6200 Facsimile
Tianna Mays (Bar No. 21597) tmays@lawyerscommittee.org Jon Greenbaum (pro hac vice) jgreenbaum@lawyerscommittee.org Arthur Ago (pro hac vice) aago@lawyerscommittee.org John Fowler (pro hac vice) jfowler@lawyerscommittee.org Rochelle F. Swartz (pro hac vice) rswartz@lawyerscommittee.org

9

Plaintiffs continue to seek habeas-related relief, which may only be granted by a judicial

actor. Habeas-related relief has therefore not been negotiated by the parties.

15

Case 1:21-cv-00428-TSE Document 53 Filed 03/19/21 Page 16 of 17 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1500 K Street NW Suite 900 Washington, DC 20005 Phone 202-662-8600 Fax 202-783-0857 Attorneys for Plaintiffs
16

Case 1:21-cv-00428-TSE Document 53 Filed 03/19/21 Page 17 of 17 CERTIFICATE OF SERVICE
I, John Fowler, an attorney, hereby certify that on March 19, 2021, the foregoing was filed using the Court’s CM/ECF system. I further certify that I, or another one of Plaintiffs’ attorneys, will promptly serve a copy of the same on the Attorney General of the State of Maryland or his representative via email.
/s/ John Fowler John Fowler
17

 
 Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BALTIMORE DIVISION

SEDRIC CATCHINGS et al., Plaintiffs,
v.
CALVIN WILSON et al., Defendants.

*
* Case No.: 1:21-cv-00428-TSE
*
*

SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release is entered into by and between plaintiffs Sedric Catchings, Charles Couser, Collin Davis, Allen Lamin, Sirron Little, Taiwo Moultrie, Joseph Speed, Howard Thomas, individually and on behalf of the members of the proposed Settlement Class defined herein at ¶ A (“Plaintiffs”), on the one hand, and defendants Calvin Wilson, in his official capacity as Warden of the Chesapeake Detention Facility (“CDF”), and Robert L. Green, in his official capacity as Secretary of Public Safety and Correctional Services (hereinafter “Defendants”), on the other hand (collectively the “Parties”).
RECITALS
WHEREAS, a dispute arose between Plaintiffs and Defendants concerning the State of Maryland’s response at CDF and the Health Monitoring Facility at the Jail Industries Building (“HMF”) to the COVID-19 pandemic; and
WHEREAS, on February 20, 2021, Plaintiffs filed suit against Defendants in the United States District Court for the District of Maryland, Sedric Catchings, et al. v. Calvin Wilson, et al., Civil Action No. 1:21-cv-00428-TSE (the “Lawsuit”); and
WHEREAS, Defendants deny any and all liability for the claims asserted by Plaintiffs; and
WHEREAS, to avoid the uncertainty and expense of further litigation, Plaintiffs and Defendants desire to resolve fully and finally all issues and disputes between them involving the matters alleged in the Lawsuit, without any admission of liability;
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration as is more fully described below, Plaintiffs and Defendants agree as follows:

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 2 of 11
AGREEMENT
A. This Agreement is entered into on behalf of Plaintiffs and all members of the proposed Settlement Class. The proposed Settlement Class is defined as follows: “All current and future detainees/residents at the Chesapeake Detention Facility and all current and future detainees/residents transferred from CDF to the Health Monitoring Facility at the Jail Industries Building, from the Effective Date of the Settlement Agreement to the Termination Date of the Settlement Agreement.”
B. The parties to this Settlement Agreement and Release (“Settlement Agreement”) are the Plaintiffs and Defendants. Except for the parties released by this Settlement Agreement and for the members of the proposed Settlement Class, no other person or entity shall be deemed a third-party beneficiary of this Settlement Agreement.
C. This Settlement Agreement applies to, is binding upon, and inures to the benefit of the Plaintiffs (and Plaintiffs’ successors and assigns) and the Defendants (and their successors, assigns, and designees).
D. This Settlement Agreement shall not constitute an admission or evidence of any fact, wrongdoing, misconduct, or liability on the part of any the Defendants, the State of Maryland, its employees or agents, or any other person affiliated with the State of Maryland or any of the Defendants.
E. Each of the Parties represents that each has read this Settlement Agreement and acknowledges that each has been represented or had the opportunity to be represented by legal counsel of the Party’s own choice throughout all the negotiations which preceded the execution of this Settlement Agreement and that each Party has executed this Settlement Agreement with the consent and on the advice of such legal counsel. Each of the Parties further acknowledges that each Party’s counsel have had adequate opportunity to make whatever investigation or inquiry they may deem necessary or desirable in connection with the subject matter of this Settlement Agreement prior to the execution hereof and the delivery and acceptance of the considerations specified herein. Neither this Settlement Agreement itself, nor any rights provided or obligations imposed thereunder, may be assigned by either Party to any third party without the other Party’s express written consent.
F. Each undersigned representative of the Parties to this Settlement Agreement certifies that he or she is fully authorized by the Party to enter into and execute the terms and conditions of this Settlement Agreement and to legally bind such Party to this Settlement Agreement.
G. This Settlement Agreement is the entire agreement between the Plaintiffs and the Defendants in this case. This Settlement Agreement constitutes the complete, final, and entire understanding of the Parties hereto, and they shall not be bound by any terms, conditions, covenants, or representations not expressly herein contained. Except as provided in Paragraph J of this Settlement Agreement, to the extent this Settlement Agreement references other documents, those documents are referenced for informational purposes only and are not thereby incorporated by reference into, and do not constitute a part of, this Settlement Agreement. All
2

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 3 of 11
prior conversations, meetings, discussions, drafts, and writings of any kind are specifically superseded by this Settlement Agreement.
H. This Settlement Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing the agreement to be drafted.
I. This Settlement Agreement may be executed in any number of counterpart originals, each of which shall be deemed to constitute an original agreement, and all of which shall constitute one agreement. The execution of one counterpart by any Party shall have the same force and effect as if that Party had signed all other counterparts. Electronic and digitial signatures shall be deemed as effective as original signatures.
J. Defendants’ substantive obligations under this Settlement Agreement are set forth in the Terms Sheet, which has been signed by the Parties, and is incorporated into this Settlement Agreement as if fully set forth herein.
K. The Effective Date of this Settlement Agreement shall be the date that it is signed by all parties.
L. Plaintiffs acknowledge that no representation of fact or opinion has been made by Defendants to induce this compromise with respect to the extent or nature of any injuries or damages or as to the likelihood of future complications, or recovery therefrom, and that the consideration set forth herein is solely by way of compromise of the disputed claims, and to foreclose all possibility of any future claims based upon acts, errors or omissions which occurred prior to the date of this Settlement Agreement, whether known or unknown, and that in determining said consideration, there has been taken into consideration the fact that unexpected consequences may result, known or unknown, and it is therefore, specifically agreed that this Settlement Agreement shall be a complete bar to all claims or suits for declaratory or injunctive relief or attorneys’ fees or costs (except as provided by ¶ T.1) relating to the matters that occurred prior to the date of this Settlement Agreement that were alleged, or that could have been alleged, in the Lawsuit, or that relate to the incident or incidents that occurred prior to the date of this Settlement Agreement giving rise to the Lawsuit
M. This Agreement is governed by, and interpreted according to, the laws of the State of Maryland without regard to conflict of laws principles.
N. This Settlement Agreement may not be modified or changed orally, but only by an agreement in writing signed by all parties.
O. The Parties represent that prior to signing this Settlement Agreement, each has read it, understood its terms and conditions, consulted with counsel, and voluntarily signed it.
P. Defendants will withdraw their opposition to Plaintiffs’ motion for class certification within three days of the Effective Date. Plaintiffs shall file a consent motion for certification of the Settlement Class, for settlement purposes only, within three business days of the withdrawal. The parties consent to a Magistrate Judge presiding over any proceedings related
3

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 4 of 11
to class certification and class settlement. This Settlement Agreement is contingent on certification of the proposed Settlement Class.
Q. Within three business days of receipt of the later of the certification of the class and any other approval of class issues deemed necessary by the Court, Plaintiffs shall take all steps necessary to effectuate a dismissal of the Lawsuit. The dismissal shall be with prejudice, except as contemplated at ¶¶ R – T herein.
DURATION AND ENFORCEMENT
R. This Settlement Agreement is not, and may not be construed as, a consent decree. To the contrary, this is a settlement agreement which the parties agree is a fair, reasonable and adequate resolution of this case.
S. This Agreement expires 180 days after the COVID-19 State of Emergency ends in the State of Maryland. The parties may negotiate earlier termination or extension of the Settlement Agreement, dependent upon such factors as the parties shall agree are relevant, such as the number of COVID-19 positive cases among staff, contracted staff, and detainees/residents pursuant to weekly facility-wide testing; the number of vaccinated staff, contracted staff, and detainees/residents; Defendants’ history of compliance with this Agreement; research endorsed by the Centers for Disease and Prevention Control (CDC) on the duration of vaccines’ efficacy and the efficacy of vaccines against strains or variants of COVID-19; and the emergence of other strains or variants or COVID-19.
T. The District Court for the Eastern District of Virginia, sitting as the District Court for the District of Maryland, shall retain jurisdiction over this action for purposes of enforcing this Agreement. The parties stipulate that this Agreement and Sections A.1-13 of the Terms Sheet satisfies 18 U.S.C. § 3626(a)(1)(A). The parties acknowledge that sections B.1 and B.2 of the Terms Sheet are intended solely to enable verification of Defendants’ compliance, and may be enforced by the Court under this paragraph.
1. The right to seek enforcement under this paragraph shall expire 180 days after the COVID-19 State of Emergency ends in the State of Maryland. In any action to enforce the Settlement Agreement under this paragraph, Plaintiffs shall not be entitled to any damages, attorneys’ fees, or costs that exceed that permitted under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(d).
2. Failure by any Party to enforce or seek to enforce this Settlement Agreement or any provision thereof or any other obligation to be performed hereunder shall not be construed as a waiver of that Party’s right to enforce or seek to enforce other obligations of this Settlement Agreement as permitted by law.
3. Prior to taking any action to enforce the terms of this Settlement Agreement, counsel for Plaintiffs shall notify counsel for Defendants of the alleged noncompliance in writing and give Defendants 3 days to investigate and cure the alleged breach.
4

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 5 of 11
RELEASE U. Claims to be settled are the following: All claims and liabilities of any kind which Plaintiffs or Defendants had, have, or may have for declaratory or injunctive relief or for attorneys’ fees and costs (except for those related to enforcement as this Agreement, as described above at ¶ T.1), that arise from or relate to a factual predicate of the Lawsuit including any complaint or pleading therein (hereinafter “Settled Claims”); provided, however, that Settled Claims shall not include claims relating to the enforcement of this Agreement.
V. Upon approval of the Settlement Agreement, in full and final settlement of the Plaintiffs’ claims, the Parties agree that the following release of claims shall become effective:
Each of the Plaintiffs, being of lawful age, for himself or herself and any claiming through him or her, his or her heirs, executors, administrators and assigns, do hereby release, acquit and forever discharge the Defendants and the State of Maryland, as well as their respective successors and assigns, departments, divisions, units, current and former officials, current and former officers, current and former agents, current and former servants, current and former representatives, current and former employees and current and former independent contractors and any and all other persons, associations, corporations and government entities, whether or not named herein or referenced, who together with the Defendants may be jointly or severally liable to the Plaintiffs (the “Releasees”), from all claims, demands, actions, causes of action, suits, losses, attorneys’ fees and expenses of each and every kind, type or nature whatsoever related to declaratory or injunctive relief or for attorneys’ fees and costs (except for those related to enforcement as this Agreement, as described above at ¶ T.1), whether known or unknown, raised in the Lawsuit regarding matters that occurred prior to the date of the Settlement Agreement, which could have been raised in the Lawsuit regarding matters that occurred prior to the date of the Settlement Agreement, or which relate in any way to the matters alleged that occurred prior to the date of this Settlement Agreement in the Lawsuit.
IN WITNESS WHEREOF, the Parties hereto knowingly, voluntarily and with full authority, execute this Settlement Agreement as of the date(s) set forth below.
5

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 6 of 11 ON BEHALF OF PLAINTIFFS (1 of 2):

________________________________ Alec Farr Brett Orren Daniel Schwartz Adam Shaw Joscelyn Solomon
BRYAN CAVE LEIGHTON PAISNER

_A__p_r_il_1_5_,_2_0_2_1________ Date

6

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 7 of 11 ON BEHALF OF PLAINTIFFS (2 of 2):

________________________________ Arthur Ago John Fowler Tianna Mays Rochelle Swartz

_A__p_ri_l_1_5_,_2_0_2_1________ Date

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW

7

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 8 of 11

FOR DEFENDANTS (1 of 2):

________________________________ Robert L. Green Secretary of Public Safety and Correctional Services

__4_/_1_5_/2_1_____________ Date

8

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 9 of 11

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 10 of 11 Approved for legal sufficiency: ______________________________ Stuart M. Nathan Principal Counsel and Assistant Attorney General Attorney for Defendants
10

Case 1:21-cv-00428-TSE Document 70-1 Filed 04/15/21 Page 11 of 11 Approved by Chief of Litigation: ______________________________ Julia Doyle Bernhardt Assistant Attorney General Chief of Litigation Office of the Attorney General of Maryland
11

Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BALTIMORE DIVISION

SEDRIC CATCHINGS et al., Plaintiffs,
v.
CALVIN WILSON et al., Defendants.

*
* Case No.: 1:21-cv-00428-TSE
*
*

TERMS SHEET

A. Practices at CDF and HMF. Defendants shall continue or implement the following

practices and procedures arising from the COVID-191 outbreak at CDF to ensure the

health and safety of detainees/residents2 of CDF and HMF, in accordance with the

parties’ agreement and CDC recommendations. Terms that are based upon, or reflect,

current CDC recommendations and/or guidelines will adopt and incorporate any

changes to the CDC’s recommendations.

1. Treatment of “high risk” residents:

i. Defendants shall identify “high risk” residents upon admission to the

facility.

1. “High risk” residents are defined as residents with certain

medical conditions and older residents.

a. Residents with certain medical conditions are those

individuals identified by the Centers for Disease Control

and Prevention who are, or might be, at increased risk of

severe illness from COVID-19, lists of which are

available at https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/people-with-medical-

conditions.html.

b. Older residents are residents over the age of 65, whom

Maryland has classified as being eligible for vaccines in

Phase

1C,

see

https://covidlink.maryland.gov/content/vaccine/.

1 Severe acute respiratory syndrome coronavirus 2, or SARS-CoV-2, commonly called the “novel coronavirus” or “coronavirus” is a highly contagious and transmissible virus. The virus frequently results in a disease, COVID-19. The Terms Sheet and Settlement Agreement refer to both the virus and the disease as “COVID” or “COVID-19.”
2 The Terms Sheet and Settlement Agreement refer to all individuals in custody at CDF and HMF as “detainees,” “residents,” and “detainees/residents.” These terms all refer to the same individuals and are not intended to have any different meaning.
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Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 2 of 18
2. “High risk” residents shall include residents on the “chronic care list,” which is defined by Defendants’ medical provider.
3. Medical staff shall ensure that these residents on the “chronic care” list are given, at a minimum, twice daily checks of these residents’ vital signs and symptoms, while in quarantine or isolation.
ii. “High risk” residents shall be prioritized for housing in single occupancy cells, whether they are on general population, quarantine, or isolation.
2. Isolation and quarantine i. When Defendants remove a resident from a housing unit for placement in isolation or quarantine, Defendants shall wait a specified period of time, then sanitize the cell of the removed resident after waiting that period of time, per the guidelines of the American Correctional Association and the CDC guidelines. 1. Defendants shall not move a resident into the cell of the removed resident prior to the passage of at least four hours and sanitization of the cell in full compliance with CDC guidelines. Sanitization shall happen after the passage of four hours. 2. Defendants shall sanitize, in full compliance with CDC guidelines, all common areas in the housing unit of the removed resident prior to residents using common areas. 3. Defendants shall maintain records of the above, if Defendants previously maintained such records. ii. When a resident’s COVID test returns as positive, Defendants shall immediately remove the positive resident from the resident’s housing unit for isolation. Defendants shall ensure that the positive resident is not present in any common areas of the housing unit from which the resident is being removed except for movement out of the housing unit.
iii. Defendants shall provide clean and safe living conditions for residents in quarantine or isolation. 1. Defendants shall provide clean and sanitized fabric clothing to residents in quarantine or isolation. 2. Defendants shall provide a living environment with a temperature at or above 65 degrees for residents in quarantine or isolation. 3. Defendants shall provide a living environment with hot water for residents in quarantine or isolation. 4. Defendants shall ensure that residents on isolation or quarantine are given all required and / or prescribed medications and treatments that they were given prior to being moved to isolation or quarantine. Defendants shall ensure that that this happens no later than 48 hours after the residents are moved.
2

Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 3 of 18
5. Defendants shall provide a pest-free living environment to residents in quarantine or isolation.
6. Defendants shall evaluate residents at intake for mental health issues, schedule residents for follow-up when needed, and provide sick call slips to residents to request mental health services when on quarantine or isolation.
iv. Defendants shall quarantine the cellmates of residents who test positive. 3. Weekly testing, close contacts, contact tracing, and quarantine.
i. Defendants shall ensure that all detainees/residents, staff, and contracted staff are administered a polymerase chain reaction (PCR) COVID test on a weekly basis, with the exception of individuals who have tested positive for COVID in the 90 days preceding the test administration. Individuals who test positive for COVID shall be exempt from weekly tests until 90 days have passed after their most recent positive test, at which point weekly testing for them will resume.
ii. Defendants shall identify “close contacts” of COVID-positive individuals. The parties agree to define “close contacts” as including any detainee/resident living in the same pod with a positive detainee/resident, both upper and lower tiers. This may include up to 23 other detainees/residents. Other close contacts will be defined in accordance with “COVID-19 Contact Tracing Protocol for Inmates and Contractor Staff,” attached to OOS IB #2020-08.
iii. Upon learning of a positive test result pursuant to testing at Defendants’ facilities, Defendants shall remove the positive-tested detainee/resident from the pod and place that individual in medical isolation and then quarantine detainees/residents who are “close contacts” within their existing pod.
iv. Defendants shall also inquire of the positive detainee/resident and review his or her medical records to determine when he or she first began experiencing symptoms, if any, to determine the appropriate exposure window and to identify other close contacts. For example, if another detainee/resident was living on the pod shortly before the positive-tested detainee/resident began experiencing symptoms, but was moved out of the pod prior to the positive test, the exposed detainee/resident shall also be considered a “close contact” and quarantined, in accordance with “COVID-19 Contact Tracing Protocol for Inmates and Contractor Staff,” attached to OOS IB #2020-08.
v. Detainees/residents who are determined to be “close contacts” shall be quarantined for 14 days.
vi. Defendants shall immediately send home any staff members who are within approximately six feet of positive residents for more than 15 minutes without donning personal protective equipment.
vii. Defendants shall move “high risk” detainees/residents in quarantine into single cells, unless an acute mental health or other documented medical condition necessitates double-celling. If every “high risk” detainee/resident cannot be moved into a single cell, Defendants shall
3

Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 4 of 18
use the ranked tier list provided by its medical contractor of all “high risk detainees/residents,” which is defined as detainees/residents on the “chronic care” list. Defendants shall ensure that detainees/residents in the highest tier of risk shall be moved into single cells. viii. Defendants shall provide enhanced monitoring of detainees/residents on isolation or quarantine diagnosed with mental-health conditions. This enhanced monitoring shall include (1) increased monitoring of the detainee/resident with medical staff for indicators of self-harm; (2) heightened protections to ensure continuity of mental-health medications; and (3) at least one 5-minute conversation per day with medical staff, if the detainee/resident agrees to such a conversation. 4. Testing of close contacts. i. Defendants shall administer a PCR test to “close contacts” as soon as possible after Defendants learn of the positive result. ii. Defendants shall administer a PCR test to “close contacts” at least twice in the 7 days following the identification of the individual as a “close contact”: once as soon as possible after Defendants learn of the positive result, and once during regularly scheduled, weekly facility-wide PCR testing. iii. Upon learning of a positive result, Defendants shall immediately remove any detainee/resident who tests positive from quarantine and place that detainee/resident in medical isolation. 5. Maintaining quarantine cohorts. i. Defendants shall house the following cohorts in housing units separate from one another:
1. Quarantine for newly admitted residents, 2. Quarantine for “close contacts” of COVID-positive individuals, 3. Isolation for confirmed positive residents, and 4. General population. ii. Defendants shall not add any detainees/residents to a housing unit being used for quarantine or any other quarantine cohort prior to the expiration of the 14-day quarantine period. iii. Defendants shall not mix together detainees/residents in quarantine from different housing units or different cohorts. 6. Spreading out detainees/residents and single-cell placement. i. Defendants shall use the space in its facilities not under construction to spread out detainees/residents as much as possible. For example, if a pod has 12 two-person cells and only 20 detainees/residents, four detainees/residents will be placed into single cells. Defendants shall offer but not require single-cell placements to residents. ii. Defendants will offer and, if accepted, provide single-cell placements for those most vulnerable to COVID, as determined by a forced ranking of detainees/residents on the “chronic care” list that Defendants or their contractor will produce and provide to Plaintiffs’ counsel. 7. Provision of soap. Defendants shall provide one bar of soap to residents/detainees at least every two weeks. Defendants shall provide a bar of
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Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 5 of 18
soap upon request to residents/detainees if they run out of soap prior to the biweekly distribution. 8. Vaccinations.
i. Defendants shall ensure that all high-risk detainees/residents are offered vaccinations by April 16, 2021.
ii. Defendants shall ensure that all detainees/residents are offered vaccination by May 1, 2021.
iii. Defendants shall ensure that all new detainees/residents are offered vaccination at intake by May 1, 2021.
iv. Defendants shall provide educational materials to all detainees/residents prior to offering the vaccinations. These materials shall include the materials developed by AMEND at the University of California at San Francisco, including “Frequently Asked Questions about the COVID19 Vaccines: Information for Residents of Correctional Facilities,” available at https://amend.us/covid/, as well as any updated versions of the same materials.
v. Defendants shall reoffer vaccinations to any detainees/residents who declined vaccination before Defendants started distributing educational materials. For these detainees/residents, Defendants shall provide educational materials prior to reoffering vaccinations.
vi. Defendants shall ensure that vaccinations are offered to all staff members and contracted staff members, along with education about the vaccine, by May 1, 2021.
9. Limitations on procedures in which residents are given two hours or less of out-of-cell time: i. Defendants shall communicate to residents clearly the purpose and expected duration of any period in which residents are limited to two hours or less of out-of-cell time per day, as well as of isolation and quarantine. 1. Defendants’ agents shall maintain records of the above, if Defendants previously maintained such records. ii. Defendants shall not preemptively limit out-of-cell time to two hours or less per day as a response to COVID. Defendants shall limit out-of-cell time to two hours or less per day only when moving residents to different cohorts, sanitizing areas, conducting contact tracing, or when using a “lockdown” response for administrative or management purposes. iii. Whenever Defendants limit out-of-cell time to two hours or less per day, Defendants shall ensure that residents have access to running water and soap to wash their hands, clean water to drink, cleaning supplies (of the type described in ¶ A.12), and phones. iv. Whenever Defendants limit out-of-cell time to two hours or less per day, Defendants shall continue to provide psychological services to residents with diagnosed mental-health conditions for which they received services prior to out-of-cell time being limited.
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10. Enhanced screening of residents who work in the facility: i. Defendants shall inquire on a daily basis of residents who work in the facility about whether they are experiencing any symptoms of COVID. Defendants shall maintain records reflecting that this inquiry was conducted for each day in which residents were on a work shift, as well as the residents’ responses. Defendants shall provide “sick call” slips to residents and shall respond to any reports of residents experiencing any symptoms of COVID or any other medical issues.
11. Education materials: i. Defendants shall provide to all residents and staff up-to-date information on COVID, including symptoms, reminders to report symptoms to staff, and reminders to wear masks and socially distance. 1. This information shall be provided in a manner that can be understood by low-literacy residents, residents with disabilities, and non-English speaking residents. 2. Defendants shall maintain records reflecting that this information was provided to all new admissions.
12. Cleaning: i. Consistent with the recommendation of the American Correction Association (which cross-references the CDC guidelines, at http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Healthcare_Prof essional_Interest_Section/Copy_of_Coronavirus_COVID.aspx?New_ ContentCollectionOrganizerCommon=4), Defendants shall make available on a daily basis EPA-registered disinfectants effective against COVID in an amount sufficient for all residents to clean their cells and common areas. If EPA-approved disinfectants are not available, Defendants shall make available on a daily basis diluted bleach (in concentrations detailed in CDC guidelines) or alcohol solutions (in concentrations detailed in CDC guidelines) in an amount sufficient for all residents to clean their cells and common areas. 1. Defendants shall also offer on a daily basis paper towels sufficient for all residents to clean their cells and common areas. 2. Defendants shall maintain records reflecting that sufficient cleaning supplies were distributed, if Defendants previously maintained such records. ii. Defendants shall sanitize, or assign residents who are appropriately trained to sanitize, common areas of each unit in between recreation sessions, including but not limited to the time between when a top tier comes out for recreation and when a bottom tier comes out for recreation. 1. Defendants’ agents shall maintain records of the above, if Defendants previously maintained such records.
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iii. Defendants shall make available hand sanitizer in a concentration detailed in CDC guidelines, free of charge, in the common areas of the housing units. 1. Defendants shall maintain records of the above, if Defendants previously maintained such records.
13. Mask-wearing and social distancing: i. Defendants shall provide at least two reusable / washable masks to residents on admission unless a resident arrives with one or more reusable / washable masks. 1. Defendants shall maintain records reflecting that reusable / washable masks were distributed to every new resident who did not arrive with any reusable / washable masks. 2. If a resident loses or misplaces a reusable / washable mask, or if the mask is otherwise damaged, Defendants shall replace the mask free of charge. 3. When staff become aware of any resident who has fewer than two reusable / washable masks, staff will provide masks as soon as practicable to restore the resident to two reusable / washable masks. ii. Defendants shall require proper mask-wearing (i.e., both nose and mouth covered) among staff. Defendants shall verbally remind residents to properly wear masks during recreation time and when residents are moved through the Facilities. Defendants shall maintain records of the same.
iii. Defendants shall communicate to any staff members who have failed to properly wear a mask the importance of wearing a mask within 24 hours of learning of the non-compliance.
iv. Defendants shall verbally remind residents to socially distance during recreation time.
B. Monitoring. 1. Records. i. Defendants shall produce to Plaintiffs’ counsel or person(s) designated by Plaintiffs’ counsel specific records on a biweekly basis showing compliance with agreed-upon conditions, including: the number of tests administered and the number of positive tests for staff, contracted staff, and detainees/residents; the current size of detainee/resident, staff, and contracted staff populations; records of contact-tracing for these positive individuals; records showing the list of detainees/residents in quarantine or isolation; records showing distribution of cleaning supplies, paper towels, and hand sanitizer to detainees/residents; records of Defendants’ requests for vaccines for detainees/residents; records of Defendants’ list of detainees/residents eligible for vaccines; records of vaccinations (broken up by number of doses and manufacturer) provided to Defendants, as well as vaccinations allocated to CDF and
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HMF detainees/residents; number of vaccinations offered and given to contracted staff, and detainees/residents; the ranked list of high-risk residents (including from the “chronic care” list) into tiers for prioritization for vaccinations, single-cell placement, and other treatment; and records reflecting that detainees/residents with diagnosed mental-health conditions were provided enhanced monitoring while in quarantine or isolation. ii. Defendants shall produce to Plaintiff’s counsel or person(s) designated by Plaintiffs’ counsel on a bimonthly basis the number of known CDF staff vaccinations, based on staff self-reporting. iii. Defendants shall produce the records described in B.1.i-ii—as well as those described below—for the time period spanning February 2, 2021, to February 9, 2021:
1. Medical records of Plaintiffs, including Medication Administration Records and other records of who prescribed and distributed certain medications to Plaintiffs and when (with these individuals’ HIPAA-compliant consent in writing);
2. Medication Administration Records for any resident in G unit (sometimes called the “cadre”) who was prescribed medication related to hypertension or diabetes for residents in G unit (with these individuals’ HIPAA-compliant consent in writing);
3. Testing results of residents, including the housing units and cells of residents who tested positive;
4. Housing and transfer (“traffic”) records of residents who have tested positive, subject to an appropriate protective order;
5. Traffic records of cellmates of residents who have tested positive, subject to an appropriate protective order;;
6. Traffic records of other residents who shared recreation time with residents who have tested positive, as well as any “close contacts” of such residents, subject to an appropriate protective order;
7. The date and time that auto notification e-mails (including from “smartsheet tracking”) were sent regarding all residents who tested positive;
8. Testing results of staff, subject to an appropriate protective order;
9. Post assignment worksheets for staff who tested positive; 10. Contact tracing within Defendants’ Facilities for staff who were
“close contacts” of positive staff members or residents, subject to an appropriate protective order; 11. Plans for quarantine and isolation;
a. including for CDF and the Health Monitoring Facility (HMF) / Jail Industries Building (JIB); and
b. including policies or procedures for how to create groups or cohorts of residents, how to prioritize residents for quarantine, how to move residents for quarantine and
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isolation, how long to wait before moving new residents into a cell from which a positive resident was removed, and which areas of the Facilities would be used for different purposes and when (including the cadre and its different uses over time); 12. Temperature checks of the Facilities, including at HMF / JIB; 13. Records of the clothing distributed to residents of HMF/ JIB, including the type of clothing (if such records are kept); 14. Policies and procedures governing COVID for these Facilities, including for contact tracing and the definition of “close contacts” of staff members and residents; 15. A list of medically vulnerable residents of CDF; 16. The number of residents to whom CDF has offered vaccinations and the number of residents who agreed to vaccination; 17. Plans of CDF to vaccinate remaining residents, including medically vulnerable residents and those eligible under Maryland guidelines, and including a ranked prioritization of residents; 18. Documentation on vaccination of staff, including: a. The number of CDF staff to whom CDF has offered vaccinations and those staff members’ decisions; b. Plans of CDF to vaccinate remaining staff; 19. Documentation of the physical layouts of Facilities, including: a. Layouts and plans of the Facilities, subject to an appropriate protective order; b. Photographs of the Facilities (including of the televisions, microwaves, phones, and other commonly touched items in common areas), subject to an appropriate protective order; 20. Audit reports, performance reviews, and related documents (if these records exist and are in the possession, custody, or control of Defendants), including: a. Reports and results of any inspections and tests of the Facilities by the federal government; b. Reports and results from all performance reviews by the federal government; c. Records prepared for or furnished to the federal government related to the inspection system created for the federal government; d. Records documenting any reduction in the price of the agreement and contract with the federal government; e. Records of any steps demanded by the federal government to come into compliance with the agreement and contract and any steps taken to comply with the agreement contract;
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f. Written reports or records of any other audit or inspection of the Facilities;
21. Records requested by Dr. Venters: a. Other records requested by Dr. Venters through Plaintiffs’ counsel’s e-mail titled “RE: Answers to Dr. Venters’ questions,” dated March 12, 2021;
iv. Defendants shall produce to Plaintiffs’ counsel or person(s) designated by Plaintiffs’ counsel on a biweekly basis video clips no longer than 10 minutes from one housing pod selected by Plaintiffs’ counsel during (a) recreation time and (b) the time between the upper tier and lower tier coming out for recreation during a single recreation session (i.e., morning or afternoon session).
v. Defendants shall make available at a mutually agreed-upon time on-site additional video for review by Plaintiffs’ counsel or person(s) designated by Plaintiffs’ counsel, including video from housing units in which a detainee/resident tested positive. Defendants will prepare video from particular housing units, dates, and times upon Plaintiffs’ request and will have this video available on-site and ready to play upon the arrival or Plaintiffs’ counsel or person(s) designated by Plaintiffs’ counsel. Defendants shall produce this video within a reasonable timeframe upon request. Defendants shall not make it necessary for Plaintiffs’ counsel or person(s) designated by Plaintiffs’ counsel to wait an unreasonable amount of time to enter the facility or to review video.
vi. Defendants shall facilitate phone or video visits between Plaintiffs’ counsel (or person(s) designated by Plaintiffs’ counsel) and detainees/residents of CDF or HMF at mutually agreed-upon times.
vii. Defendants shall produce other documentary records or video requested by Plaintiffs’ counsel or by the expert conducting the inspections after a reasonable period of time from his request.
2. Physical inspection. i. One or more experts designated by Plaintiffs’ counsel shall be permitted to inspect Defendants’ facilities, at least every 30 days. Once in the facilities, the expert shall be permitted to inspect lobbies, including public and inmate; vehicle sally ports; intake including holding cells; infirmary or medical units; medical clinic; HVAC systems (including observation of ventilation in all areas discussed in this paragraph, and movement of air in high traffic areas); negative pressure isolation rooms, if available; main control center and housing control center; pods and housing (including general population, special management units, housing units of all Plaintiffs, any special COVID housing, isolation unit, quarantine unit, showers and toilets, common areas); common areas of units; kitchens; laundry facilities; storage location for personal protective equipment, masks, and cleaning equipment and supplies; and program areas (including law library and inside and outside recreation areas). ii. Those inspections shall be unannounced.
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iii. Defendants shall not make it necessary for the inspector to wait an unreasonable period of time after the inspector arrives to conduct his or her inspection.
iv. Defendants shall not in any way prepare for the expert’s inspection in advance of the expert’s arrival at the facility or inform staff that the expert will be conducting an inspection, except as provided in subsection vi, below.
v. The expert may bring laptops or other similar equipment, cameras, cell phones, writing implements, and any other equipment required to conduct and record the inspection. These items will all be subject to routine inspection by the facility. If the expert wants to take photographs or video, Defendants (or their staff) shall take those photographs or video for the expert at the expert’s instruction. Photographs or video of residents or staff shall be subject to a confidentiality agreement. The expert will not be permitted to access the Internet while in the facilities.
vi. Defendants will inform such senior staff as are necessary via e-mail or paper memorandum that an expert may be visiting to conduct an inspection and that such senior staff may speak with the expert about the operations of CDF and HMF. This memorandum shall not be linked in time to an inspection. Rather, this memorandum shall be sent well in advance of any inspection. To avoid any unnecessary delay or confusion, senior staff may inform staff working the front entrance post that the expert is an authorized visitor. Counsel for the parties shall agree to the language to be used in the e-mail or paper memorandum prior to the distribution of the memorandum.
vii. Defendants shall make all facilities managers and staff available for interviews, including telephonic interviews conducted by the expert. The expert shall make reasonable accommodations for these interviews, both for the interviewees’ convenience and for minimal intrusion on their work.
viii. The expert shall be permitted to have private conversations with staff, contracted staff, and detainees/residents of the experts’ choosing outside of the presence of supervisors and other staff and contracted staff. Defendants shall not retaliate against any staff member, contracted staff member, or detainee/resident who speaks with the inspector.
ix. The expert shall be provided by the facilities with a sufficient supply of full personal protective equipment (PPE) to safely enable the inspection at the time of those inspection. In the alternative, the expert shall bring PPE which the expert may wear in lieu of facilities-provided equipment, if approved by the facilities.
x. Defendants may require that the expert submit to a rapid COVID-19 test before conducting the inspection.
xi. One attorney from Plaintiffs’ counsel’s team may join the expert on these inspections. This attorney must submit to the same PPE and testing requirements as the expert.
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Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 12 of 18 IN WITNESS WHEREOF, the Parties hereto knowingly, voluntarily and with full authority, execute this Term Sheet as of the date(s) set forth below.
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Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 13 of 18 ON BEHALF OF PLAINTIFFS (1 of 2):

________________________________ Alec Farr Brett Orren Daniel Schwartz Adam Shaw Joscelyn Solomon
BRYAN CAVE LEIGHTON PAISNER

_A__p_r_il_1_5_,_2_0_2_1________ Date

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Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 14 of 18 ON BEHALF OF PLAINTIFFS (2 of 2):

________________________________ Arthur Ago John Fowler Tianna Mays Rochelle Swartz

_A__p_ri_l_1_5_,_2_0_2_1________ Date

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW

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FOR DEFENDANTS (1 of 2):

________________________________ Robert L. Green Secretary of Public Safety and Correctional Services

___4_/_1_5_/2_1____________ Date

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Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 17 of 18 Approved for legal sufficiency: ______________________________ Stuart M. Nathan Principal Counsel and Assistant Attorney General Office of the Attorney General of Maryland Attorney for Defendants
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Case 1:21-cv-00428-TSE Document 70-2 Filed 04/15/21 Page 18 of 18 Approved by Chief of Litigation: ______________________________ Julia Doyle Bernhardt Assistant Attorney General Chief of Litigation Office of the Attorney General of Maryland
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