U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:20-cv-11094-MAG-EAS

Russell et al v Wayne County, et al Assigned to: District Judge Mark A. Goldsmith Referred to: Magistrate Judge Elizabeth A. Stafford Cause: 28:1651 Petition for Writ of Habeas Corpus

Date Filed: 05/04/2020 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Charles Russell

represented by Akeeb D Animashaun Civil Rights Corps 25 Plaza Street West #4b Brooklyn, NY 11217 973-444-2967 Email: animashaun@pm.me ATTORNEY TO BE NOTICED

Allison L. Kriger La Rene & Kriger, P.L.C. 645 Griswold Suite 171 Detroit, MI 48221 313-967-0100 Fax: 313-967-0199 Email: allison.kriger@gmail.com ATTORNEY TO BE NOTICED

Amanda Alexander Detroit Justice Center 1420 Washington Blvd. Suite 301 Detroit, MI 48226 313-736-5957 Email: aalexander@detroitjustice.org ATTORNEY TO BE NOTICED

Ashley A Carter Advancement Project District of Columbia 1220 L Street NW Suite 850

Washington, DC 20005 757-952-5585 Email: aacarter9@gmail.com ATTORNEY TO BE NOTICED
Desiree M. Ferguson State Appellate Defender Office 645 Griswold Suite 3300 Detroit, MI 48226-4215 313-256-9833 Fax: 313-965-0372 Email: dferguson@detroitjustice.org ATTORNEY TO BE NOTICED
Erin Keith 1420 Washington Blvd Suite 220 Detorit, MI 48226 313-736-5957 Email: ekeith@detroitjustice.org ATTORNEY TO BE NOTICED
Mark J. Kriger LaRene & Kriger 645 Griswold Street Suite 1717 Detroit, MI 48226 313-967-0100 Email: mkriger@sbcglobal.net ATTORNEY TO BE NOTICED
Miriam R. Nemeth Advancement Project 1220 L Street NW Suite 850 Washington, DC 20005 202-728-9557 Fax: 202-728-9558 Email: mnemeth@advancementproject.org ATTORNEY TO BE NOTICED
Thomas Bradford Harvey Advancement Project 1220 L Street

Plaintiff Christopher Hubbard
Plaintiff

Suite 850 Washington, DC 20005 314-482-3342 Email: tharvey@advancementproject.org ATTORNEY TO BE NOTICED
represented by Akeeb D Animashaun (See above for address) ATTORNEY TO BE NOTICED
Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Amanda Alexander (See above for address) ATTORNEY TO BE NOTICED
Ashley A Carter (See above for address) ATTORNEY TO BE NOTICED
Desiree M. Ferguson (See above for address) ATTORNEY TO BE NOTICED
Erin Keith (See above for address) ATTORNEY TO BE NOTICED
Mark J. Kriger (See above for address) ATTORNEY TO BE NOTICED
Miriam R. Nemeth (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED

Harry White
Plaintiff Carl Smelley

represented by Akeeb D Animashaun (See above for address) ATTORNEY TO BE NOTICED
Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Amanda Alexander (See above for address) ATTORNEY TO BE NOTICED
Ashley A Carter (See above for address) ATTORNEY TO BE NOTICED
Desiree M. Ferguson (See above for address) ATTORNEY TO BE NOTICED
Erin Keith (See above for address) ATTORNEY TO BE NOTICED
Mark J. Kriger (See above for address) ATTORNEY TO BE NOTICED
Miriam R. Nemeth (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED
represented by Akeeb D Animashaun (See above for address) ATTORNEY TO BE NOTICED
Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Amanda Alexander

Plaintiff CalDerone Pearson

(See above for address) ATTORNEY TO BE NOTICED
Ashley A Carter (See above for address) ATTORNEY TO BE NOTICED
Desiree M. Ferguson (See above for address) ATTORNEY TO BE NOTICED
Erin Keith (See above for address) ATTORNEY TO BE NOTICED
Mark J. Kriger (See above for address) ATTORNEY TO BE NOTICED
Miriam R. Nemeth (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED
represented by Akeeb D Animashaun (See above for address) ATTORNEY TO BE NOTICED
Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Amanda Alexander (See above for address) ATTORNEY TO BE NOTICED
Ashley A Carter (See above for address) ATTORNEY TO BE NOTICED
Desiree M. Ferguson (See above for address)

Plaintiff Shane Carline

ATTORNEY TO BE NOTICED
Erin Keith (See above for address) ATTORNEY TO BE NOTICED
Mark J. Kriger (See above for address) ATTORNEY TO BE NOTICED
Miriam R. Nemeth (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED
represented by Akeeb D Animashaun (See above for address) ATTORNEY TO BE NOTICED
Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Amanda Alexander (See above for address) ATTORNEY TO BE NOTICED
Ashley A Carter (See above for address) ATTORNEY TO BE NOTICED
Desiree M. Ferguson (See above for address) ATTORNEY TO BE NOTICED
Erin Keith (See above for address) ATTORNEY TO BE NOTICED
Mark J. Kriger (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Courtney White

Miriam R. Nemeth (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED
represented by Akeeb D Animashaun (See above for address) ATTORNEY TO BE NOTICED
Allison L. Kriger (See above for address) ATTORNEY TO BE NOTICED
Amanda Alexander (See above for address) ATTORNEY TO BE NOTICED
Ashley A Carter (See above for address) ATTORNEY TO BE NOTICED
Desiree M. Ferguson (See above for address) ATTORNEY TO BE NOTICED
Erin Keith (See above for address) ATTORNEY TO BE NOTICED
Mark J. Kriger (See above for address) ATTORNEY TO BE NOTICED
Miriam R. Nemeth (See above for address) ATTORNEY TO BE NOTICED
Thomas Bradford Harvey (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Wayne County, Michigan

represented by Davidde A. Stella Wayne County Corporation Counsel 500 Griswold St. 30th Floor Detroit, MI 48226 313-224-5030 Email: dstella@waynecounty.com ATTORNEY TO BE NOTICED
Jonathan C. Lanesky Chapman Law Group 1441 West Long Lake Rd. Suite 310 Troy, MI 48098 248-644-6326 Fax: 248-644-6324 Email: jlanesky@chapmanlawgroup.com ATTORNEY TO BE NOTICED
Paul T. O'Neill Wayne County Corporation Counsel 500 Griswold St, 30th Fl Detroit, MI 48226 313.967.6402 Email: poneill@waynecounty.com ATTORNEY TO BE NOTICED
Ronald W. Chapman Chapman Law Group 1441 West Long Lake Road Suite 310 Troy, MI 48098 248-644-6326 Fax: 248-644-6324 Email: rchapman@chapmanlawgroup.com ATTORNEY TO BE NOTICED
Souriana T. Hammoud Wayne County Corporation Counsel Guardian Building

Defendant Benny Napoleon
Defendant Daniel Pfannes
Defendant Robert Dunlap

500 Griswold 30th Floor Detroit, MI 48226 313 224-6669 Fax: 313-967-3532 Email: Shammoud@co.wayne.mi.us ATTORNEY TO BE NOTICED
represented by Davidde A. Stella (See above for address) ATTORNEY TO BE NOTICED
Paul T. O'Neill (See above for address) ATTORNEY TO BE NOTICED
Souriana T. Hammoud (See above for address) ATTORNEY TO BE NOTICED
represented by Davidde A. Stella (See above for address) ATTORNEY TO BE NOTICED
Paul T. O'Neill (See above for address) ATTORNEY TO BE NOTICED
Souriana T. Hammoud (See above for address) ATTORNEY TO BE NOTICED
represented by Davidde A. Stella (See above for address) ATTORNEY TO BE NOTICED
Paul T. O'Neill (See above for address) ATTORNEY TO BE NOTICED
Souriana T. Hammoud

Defendant James E Davis

(See above for address) ATTORNEY TO BE NOTICED
represented by Davidde A. Stella (See above for address) ATTORNEY TO BE NOTICED
Paul T. O'Neill (See above for address) ATTORNEY TO BE NOTICED
Souriana T. Hammoud (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/04/2020
05/04/2020 05/04/2020

# Docket Text

PETITION for Writ of Habeas Corpus filed by All Defendants

1

against Wayne County, Michigan, Benny Napoleon, Daniel

Pfannes, Robert Dunlap, James E Davis, Receipt No: AMIEDC-

7781841 - Fee: $ 5. (Attachments: # 1 Index of Exhibits, # 2 Exhibit

Declaration of Dr. Marc Stern, # 3 Exhibit Declaration of Dr.

Jaimie Meyer, # 4 Exhibit Declaration of Elizabeth Y. Chiao,

# 5 Exhibit Declaration of Dr. Jonathan Golob, # 6 Exhibit

Declaration of Dr. Carlos Franco Parades, # 7 Exhibit Declaration

of Dr. Carlos Franco Parades, # 8 Exhibit CDC Interim Guidance

on Management of the Coronavirus, # 9 Exhibit JHU letter to

Governor Hogan, # 10 Exhibit Letter from NYC Council Member

Brad Landers, # 11 Exhibit Declaration of Dr. Ronat Mishori,

# 12 Exhibit Declaration of Robert B. Greifinger, # 13 Exhibit

Michigan Executive Order 2020-29, # 14 Exhibit March 31, 2020

ACLU letter, # 15 Exhibit Declaration of Dr. Adam Lauring,

# 16 Exhibit Order: Malam v. Adduci, # 17 Exhibit Declaration of

Dr. Amir Moheb Mohareb) (Kriger, Allison) (Entered: 05/04/2020)

2 Ex Parte MOTION for Leave to File Excess Pages for Emergency Motion for Temporary Restraining Order and Preliminary Injunction by All Plaintiffs. (Kriger, Allison) (Entered: 05/04/2020)

3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Declaration of Courtney White, # 3 Exhibit Declaration of Mark Matthews, # 4 Exhibit Declaration of Teri

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

Nickel, # 5 Exhibit Declaration of Dominick Kelly, # 6 Exhibit Declaration of Shane Carline, # 7 Exhibit Declaration of Carl Smelley, # 8 Exhibit Declaration of Marlon Blanks, # 9 Exhibit Declaration of CalDerone Pearson, # 10 Exhibit Declaration of Charles Russell, # 11 Exhibit Declaration of Christopher Hubbard, # 12 Exhibit Declaration of Mark Malec, # 13 Exhibit Declaration of Harry White, # 14 Exhibit Declaration of Davonte Valez, # 15 Exhibit District Court Decisions) (Kriger, Allison) (Entered: 05/04/2020)
4 Emergency MOTION to Expedite Emergency Motion for Temporary Restraining Order and Preliminary Injunction by All Plaintiffs. (Kriger, Allison) (Entered: 05/04/2020)
5 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Declaration of Shokelle McKay, # 3 Exhibit Declaration of Thomas B. Harvey, # 4 Exhibit Declaration of Allison Kriger, # 5 Exhibit Declaration of Alec Karakatsanis, # 6 Exhibit Declaration of Desiree M. Ferguson, # 7 Exhibit Declaration of Martin L. Saad) (Kriger, Allison) (Entered: 05/04/2020)
6 NOTICE of Appearance by Allison L. Kriger on behalf of All Plaintiffs. (Kriger, Allison) (Entered: 05/04/2020)
7 NOTICE of Appearance by Allison L. Kriger on behalf of All Plaintiffs. (Kriger, Allison) (Entered: 05/04/2020)
8 ATTORNEY APPEARANCE: Thomas Bradford Harvey appearing on behalf of All Plaintiffs (Harvey, Thomas) (Entered: 05/05/2020)
9 NOTICE of Appearance by Souriana T. Hammoud on behalf of All Defendants. (Hammoud, Souriana) (Entered: 05/05/2020)
10 RESPONSE to 4 Emergency MOTION to Expedite Emergency Motion for Temporary Restraining Order and Preliminary Injunction and Certificate of Service filed by All Defendants. (Hammoud, Souriana) (Entered: 05/05/2020)
11 NOTICE of Appearance by Davidde A. Stella on behalf of All Defendants. (Attachments: # 1 POS) (Stella, Davidde) (Entered: 05/05/2020)
12 NOTICE of Appearance by Miriam R. Nemeth on behalf of All Plaintiffs. (Nemeth, Miriam) (Entered: 05/05/2020)

05/05/2020 05/06/2020 05/06/2020
05/06/2020 05/06/2020
05/07/2020 05/07/2020
05/07/2020
05/07/2020 05/08/2020 05/11/2020 05/11/2020

13 NOTICE of Appearance by Paul T. O'Neill on behalf of All Defendants. (Attachments: # 1 Certificate of Service) (O'Neill, Paul) (Entered: 05/05/2020)
14 NOTICE of Appearance by Akeeb D Animashaun on behalf of All Plaintiffs. (Animashaun, Akeeb) (Entered: 05/06/2020)
15 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/7/2020 at 09:30 AM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 05/06/2020)
16 NOTICE of Appearance by Ashley Alexandra Carter on behalf of All Plaintiffs. (Carter, Ashley) (Entered: 05/06/2020)
17 REPLY to Response re 4 Emergency MOTION to Expedite Emergency Motion for Temporary Restraining Order and Preliminary Injunction filed by All Plaintiffs. (Animashaun, Akeeb) (Entered: 05/06/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 5/7/2020. (Sandusky, K) (Entered: 05/07/2020)
18 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/8/2020 12:00 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 05/07/2020)
Set Deadlines/Hearings: TELEPHONIC Status Conference RESET for 5/11/2020 at 01:00 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 05/07/2020)
19 ATTORNEY APPEARANCE: Amanda Alexander appearing on behalf of All Plaintiffs (Alexander, Amanda) (Entered: 05/07/2020)
20 ATTORNEY APPEARANCE: Erin Keith appearing on behalf of All Plaintiffs (Keith, Erin) (Entered: 05/08/2020)
21 ATTORNEY APPEARANCE: Ronald W. Chapman appearing on behalf of Wayne County, Michigan (Chapman, Ronald) (Entered: 05/11/2020)
22 ATTORNEY APPEARANCE: Jonathan C. Lanesky appearing on behalf of Wayne County, Michigan (Lanesky, Jonathan) (Entered: 05/11/2020)

05/11/2020

24 ATTORNEY APPEARANCE: Desiree M. Ferguson appearing on behalf of All Plaintiffs (Ferguson, Desiree) (Entered: 05/11/2020)

05/11/2020

Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 5/11/2020. (Sandusky, K) (Entered: 05/11/2020)

05/11/2020

25 ORDER Directing the Parties to Confer and Submit Status Report and Setting Status Conference ( Joint Report due by noon on 5/14/2020). TELEPHONIC Status Conference set for 5/14/2020 at 02:00 PM before District Judge Mark A. Goldsmith, Response due by 5/14/2020. The parties shall call into (877) 336-1274 and use access code 9602327. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/11/2020)

05/12/2020

26 MOTION to Remove ECF No. 23 from the Docket by All Plaintiffs. (Kriger, Allison) (Entered: 05/12/2020)

05/12/2020 27

ORDER Regarding Certification Requirements. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 05/12/2020)

05/14/2020

TEXT-ONLY NOTICE: Telephonic Status Conference on May 14, 2020 is Cancelled (Sandusky, K) (Entered: 05/14/2020)

05/15/2020

28 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/21/2020 at 02:00 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code 9602327. (Sandusky, K) (Entered: 05/15/2020)

05/21/2020

Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 5/21/2020. (Sandusky, K) (Entered: 05/21/2020)

06/04/2020

29 ORDER Setting Status Conference and Granting Joint Motion to Remove Plaintiffs' Status Report (Dkt. 26) ( TELEPHONIC Status Conference set for 6/4/2020 02:00 PM before District Judge Mark A. Goldsmith). The parties shall call into (877) 3361274 and use access code 9602327. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 06/04/2020)

06/04/2020 30

MOTION to Stay Proceedings by All Plaintiffs. (Kriger, Mark) (Entered: 06/04/2020)

06/04/2020

Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 6/4/2020. (Sandusky, K) (Entered: 06/04/2020)

06/05/2020 06/24/2020 10/09/2020 10/13/2020 10/19/2020 12/03/2020 12/14/2020 12/28/2020
12/28/2020

31 ORDER Setting Briefing Schedule on Plaintiff's Motion to Stay ( Response due by 6/25/2020, Reply due by 7/3/2020). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 06/05/2020)
32 RESPONSE to 30 MOTION to Stay Proceedings and Certificate of Service filed by All Defendants. (Attachments: # 1 Exhibit A) (Hammoud, Souriana) (Entered: 06/24/2020)
33 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 10/19/2020 01:00 PM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327 (Sandusky, K) (Entered: 10/09/2020)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 10/19/2020 10:00 AM before District Judge Mark A. Goldsmith (TIME CHANGE ONLY). The parties shall call into (877) 336-1274 and use access code: 9602327 (Sandusky, K) (Entered: 10/13/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 10/19/2020 (Court Reporter: None Present, Not on the Record). (Sandusky, K) (Entered: 10/19/2020)
34 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 12/14/2020 11:00 AM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 12/03/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 12/14/2020. (Court Reporter: None Present, Not on the Record) (Sandusky, K) (Entered: 12/14/2020)
35 ORDER Granting Plaintiffs' Motion to Stay (Dkt. 30 ), Dismissing Plaintiffs' Motion for Temporary Restraining Order (Dkt. 3 ), Dismissing Plaintiffs' Motion to Certify Class (Dkt. 5 ), Dismissing Plaintiffs Motion for Leave to File Excess Pages (Dkt. 2 ), and Dismissing Motion to Expedite Emergency Motion for Temporary Restraining Order (Dkt. 4 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 12/28/2020)
36 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 1/29/2021 01:00 PM before District Judge Mark A.

01/29/2021 02/02/2021

Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327. (Sandusky, K) (Entered: 12/28/2020)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Telephonic Status Conference held on 1/29/2021. (Court Reporter: None Present, Not on the Record) (EKar) (Entered: 01/29/2021)
37 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/4/2021 11:00 AM before District Judge Mark A. Goldsmith. The parties shall call into (877) 336-1274 and use access code: 9602327 (Sandusky, K) (Entered: 02/02/2021)

PACER Service Center Transaction Receipt

PACER Login:
Description:
Billable Pages:

02/18/2021 23:37:48

CRClearinghouse Client Code: mcevoy

Docket Report

Search Criteria:

2:20-cv-11094MAG-EAS

13

Cost:

1.30

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.617 Page 1 of 7

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

CHARLES RUSSELL; CHRISTOPHER HUBBARD; HARRY WHITE; CARL SMELLEY; SHANE CARLINE; and COURTNEY WHITE, individually and on behalf of all others similarly situated,

Case No. 20-cv-11094

Plaintiffs,

v.

WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as Sheriff of Oakland County; DANIEL PFANNES, in his official capacity as the Undersheriff for the Wayne County Sheriff’s Office; ROBERT DUNLAP, in his official capacity as Chief of Jails and Court Operations; JAMES E. DAVIS, in his official capacity as Deputy Chief of Jail Operations,

Defendants.

PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFFS’ EMERGENCY
MODTefIeOndNanFtOs.R EXPEDITED CONSIDERATION OF PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

1

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.618 Page 2 of 7
Despite “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic,” U.S. v. Stephens, __ F. Supp. 3d __, 15 Cr. 95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020), the recognition by courts and government that “[o]ur world has been altered with lightning speed,” see, e.g., Thakker v. Doll, __ F. Supp. __, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020), and the uniform understanding that “the choices we now make must reflect this new reality,” id., Defendants ask this Court to refrain from hearing an emergency motion that alleges federal constitutional violations and raises serious issues of law and fact. Instead, Defendants want to defer to an informal, ad-hoc process that appears to be tangential to a consent order entered as part of a jail overcrowding lawsuit that dates back to 1971. This informal process has proved insufficient in providing the relief Plaintiffs seek. Therefore, this Court should enter Plaintiffs’ proposed temporary restraining order immediately, or, in the alternative, hear argument on Plaintiffs’ motion as soon as possible.
Federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976) (emphasis added). The default rule is that “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Id. Abdication of the obligation to decide cases (especially those that present urgent federal constitutional questions) is
2

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.619 Page 3 of 7
justified only in “exceptional circumstances.” Id. at 813. Defendants have failed to demonstrate that such an “exceptional circumstance” is present here.
In asking this Court to take the extraordinary measure of abstaining from hearing an urgent federal constitutional question, Defendants fail to provide any evidence upon which this Court and Plaintiffs’ counsel could rely. Plaintiffs are unable to ascertain what measures Defendants claim to be taking, whether and how those measures are required by the state-court consent order, or why Defendants believe those measures fully cure the federal constitutional violations described in Plaintiffs’ Complaint and accompanying declarations. Further, Defendants have not disclosed critical information—in their opposition or to the public—about the specific criteria being used to decide who should be considered for administrative relief, nor have they articulated the specific legal or factual definitions it uses to decide who will be released.
Regardless, Defendants’ response to the COVID-19 crisis has been dangerously insufficient, and substantial harm remains to be remedied, as Plaintiffs’ Emergency Motion makes clear. Although Defendants have released some detainees, Doc. 10 at 2, medically vulnerable people who are at particularly grave risk of death or serious illness from COVID-19—including four of the named Plaintiffs—are still detained in the Jail. Doc. 1 ¶ 17 (Mr. Russell suffers stage 3 prostate cancer, diabetes, high blood pressure, and an umbilical hernia and
3

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.620 Page 4 of 7
remains incarcerated); id. ¶ 18 (Mr. Hubbard suffers from diabetes and asthma and remains incarcerated); id. ¶ 18 (Mr. Harry White suffers from a heart murmur and remains incarcerated); id. ¶ 20 (Mr. Smelley suffers from Sickle Cell Disease, hypertension, and diabetes and remains incarcerated); Id. ¶ 23 (Mr. Courtney White suffers from high blood pressure and high cholesterol).
Social distancing—the single most essential step in stopping the spread of COVID-19—cannot be accomplished in the Jail. See, e.g., id. ¶¶ 8, 11, 12, 37, 41, 69, 70, 126. Defendants’ claims that they have “taken numerous measures to ensure the safety and welfare of the inmates and its staff, in accordance with CDC guidelines,” Doc. 10 at 2, is nothing more than ipse dixit. Defendants offer no supporting documentary evidence to refute the 13 declarations offered in support of Plaintiff’s emergency motion and Complaint demonstrating that the precautions necessary to stop the spread of the virus are not being undertaken. See, e.g., Doc. 1 ¶ 67 (detainees are housed in units that feature two-person cells and four-person cubicles); id. ¶¶ 69–70 (detainees congregate in common areas where it is impossible to maintain a distance of six feet from their peers at the current population); id. ¶ 65 (detainees entering the Jail are quarantined for three days, in violation of CDC standards); id. ¶¶ 69, 73, 79, 87 (detainees have no access to hand sanitizer, and jail staff deny detainees’ requests to receive additional bars of soap or other cleaning supplies throughout the week); id. ¶ 78 (detainees have been
4

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.621 Page 5 of 7
forced to resort to creating their own cleaning solutions to supplement the inadequate Simple Green solution that Defendants provide); id. ¶ 80 (Defendants have not replaced the paper and cloth masks they provided to detainees nearly a month ago); id. (detainees never received gloves); id ¶¶ 66, 72, 81 (although more than 170 jail employees have tested positive for COVID-19, jail staff and trustees do not consistently wear personal protective equipment when interacting with detainees).
Because Plaintiffs and the class members they seek to represent remain at imminent risk of death or serious injury, this Court should grant Plaintiffs’ Motion Emergency Consideration. This Court should further issue a temporary restraining order and preliminary injunction ordering the relief requested in Plaintiffs’ Motion.
Respectfully submitted,

/s/Ashley A. Carter Ashley A. Carter (DC Bar No. 979793) Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (MI Bar No. P76789; DC Bar No. 1028529) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 Tel: (202) 728-9557 tharvey@advancementproject.org acarter@advancementproject.org mnemeth@advancementproject.org

/s/Martin L. Saad Martin L. Saad (DC Bar No. 462096)* Sheena R. Thomas (DC Bar No. 1020290)* Khary J. Anderson (DC Bar No. 1671197)* VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 Tel: (202) 344-4000 MLSaad@Venable.com SRThomas@Venable.com KJAnderson@Venable.com

5

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.622 Page 6 of 7

/s/Allison L. Kriger Allison L. Kriger (MI Bar No. P76364) LARENE & KRIGER, P.L.C. 645 Griswold Street, Suite 1717 Detroit, Michigan 48226 Tel: (313) 967-0100 allison.kriger@gmail.com
/s/Alec Karakatsanis Alec Karakatsanis (DC Bar No. 999294) A. Dami Animashaun (DC Bar No. 1614199) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 Tel: (202) 894-6126 alec@civilrightscorps.org dami@civilrightscorps.org

/s/Christopher N. Moran Christopher N. Moran (MD Bar No. 1512160132)* Emily J. Wilson (MD Bar No. 1801040016)* VENABLE LLP 750 E. Pratt Street, Ste. 900 Baltimore, MD 21202 Tel: (410) 244-7400 CNMoran@Venable.com EJWilson@Venable.com
/s/Desiree M. Ferguson Desiree M. Ferguson (MI Bar No. P34904) Amanda Alexander (MI Bar No. P77795)* DETROIT JUSTICE CENTER 1420 Washington Blvd., Suite 301 Detroit, MI 48226 Tel: (313) 736 -5957 dferguson@detroitjustice.org aalexander@detroitjustice.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

Dated: May 6, 2020

6

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.623 Page 7 of 7
CERTIFICATE OF SERVICE I affirm that the forgoing was filed through this Court’s electronic filing system.
/s/ A. Dami Animashaun
7

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 10 filed 05/05/20 PageID.604 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES RUSSEL, et.al.,
Plaintiffs, v.

Case No. 20-cv-11094 Honorable Mark A. Goldsmith Magistrate Judge Elizabeth A. Stafford

WAYNE COUNTY, et. al,

Defendants. __________________________________________________________________

DEFENDANTS’ RESPONSE IN OPPOSITION OF PLAINTIFFS’ MOTION FOR EXPEDITED CONSIDERATION OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiffs request for expedited consideration of a Temporary Restraining

Order is unwarranted.

The Plaintiffs, and any purported class of plaintiffs, are part of a class action

Consent Judgment entered in the matter of Wayne County Jail Inmates, et. al, v.

William Lucas, et, al, Case No. 71-173217 CZ, before the Honorable Chief Judge

Timothy Kenny in the Third Circuit Court for the County of Wayne. The plaintiffs’

class is represented by William Goodman and Deborah Choly. The issues raised in

Plaintiffs’ Motion for Temporary Restraining Order have been and are continually

being addressed as part of the Consent Order.

Specific as to the Jail’s response to the current COVID pandemic, Inmate

Class Counsel, in conjunction with the Wayne County Prosecutor, and the ACLU,

Case 2:20-cv-11094-MAG-EAS ECF No. 10 filed 05/05/20 PageID.605 Page 2 of 4
have participated in an on-going collaborative effort for administrative release of inmates, including those that are medically vulnerable. This process has been overseen by Chief Judge Kenny.
Inmates with pending cases have the opportunity to bring emergency bond motions in Third Circuit Court. Judge Kenny has further signed and Order assigning representation for all inmates who are not represented by counsel for purposes of bond issues.
As of this writing, 205 inmates have been administratively released from the Wayne County Jail since March 19, 2020.1
Moreover, conditions of confinement in the Jail are squarely within the purview of the aforementioned Consent Order. Since the onset of the COVID pandemic, the Wayne County Jail has taken numerous measures to ensure the safety and welfare of the inmates and its staff, in accordance with CDC guidelines. These measures include providing proper cleaning, masks, and sanitation supplies; established protocols to quarantine inmates upon entry into the jail, as well as COVID-19 positive inmates, and appropriate testing of inmates2. Inmate Class Counsel has participated in numerous meetings detailing the measures that have been and are being taken. These meetings have been presided upon by Judge
1 Current inmate population in the Jail is 820 inmates, nearly half of the average daily inmate population. 2 Beginning this week, all inmates in the custody of the Wayne County Jail will be tested for COVID-19. Previously, only symptomatic inmates were being tested.

Case 2:20-cv-11094-MAG-EAS ECF No. 10 filed 05/05/20 PageID.606 Page 3 of 4
Kenny and provide for an appropriate forum and remedy for any alleged inadequacies.
Conclusion and Relief Requested For the reasons provided herein, Defendants request this Honorable deny Plaintiffs’ request for expedited consideration and Temporary Restraining Order. Plaintiffs’ request is merely an attempt to circumvent the pending Consent Order and divest the Circuit Court and Judge Kenny of his jurisdiction. WHEREFORE, Defendants respectfully request that this Court deny Plaintiffs’ requested relief in its entirety.
Respectfully submitted, /s/ SUE HAMMOUD Wayne County Corporation Counsel Attorney for Defendant 500 Griswold, 30th Floor Detroit, MI 48226 (313) 224-6689 Shammoud@waynecounty.com Attorney Bar No. 64542
Dated: May 5, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 10 filed 05/05/20 PageID.607 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties of record on this date, May 5, 2020 using the electronic filing system with the Clerk of the Court. I declare that the statements above are true to the best of my information, knowledge, and belief.
/s/ Sue Hammoud Wayne County Corporation Counsel Attorney for Defendants 500 Griswold, 30th Floor Detroit, MI 48226 (313) 224-6669 Shammoud@waynecounty.com Attorney Bar No. 64542

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 4 filed 05/04/20 PageID.534 Page 1 of 9

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

CHARLES RUSSELL; CHRISTOPHER HUBBARD; HARRY WHITE; CARL SMELLEY; SHANE CARLINE; and COURTNEY WHITE, individually and on behalf of all others similarly situated,

Case No. 2:20-cv-11094-MAGEAS

Plaintiffs,

v.

WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as Sheriff of Oakland County; DANIEL PFANNES, in his official capacity as the Undersheriff for the Wayne County Sheriff’s Office; ROBERT DUNLAP, in his official capacity as Chief of Jails and Court Operations; JAMES E. DAVIS, in his official capacity as Deputy Chief of Jail Operations,

Defendants.

EMERGENCY MOTION FOR EXPEDITED CONSIDERATION OF PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

Due to overcrowding, mismanagement, and the onset of the COVID-19

pandemic, all three Divisions of the Wayne County Jail—two in Detroit and one in

Hamtramck, Michigan—are currently facing a dire public health emergency. See

Compl. ¶¶ 64-108.

Many people in the Jail, including six named 1

Case 2:20-cv-11094-MAG-EAS ECF No. 4 filed 05/04/20 PageID.535 Page 2 of 9
Petitioners/Plaintiffs, are medically vulnerable and their lives are at imminent risk. Absent immediate relief, the disease will spread rapidly inside the Jail, and, as a result, more people inside and outside the Jail will become infected and will likely die. This Court has the power and the opportunity to order immediate relief that will save lives.
On Monday, May 4, 2020, Petitioners/Plaintiffs filed their Complaint and Emergency Motion for Temporary Restraining Order requesting immediate relief, including the implementation of basic safeguards inside the jail and the immediate release of people who are over 50 years old or otherwise medically vulnerable. Petitioners/Plaintiffs now request the Court enter their proposed temporary restraining order (TRO) immediately and without a hearing because any delay would cause severe illness or death. In the alternative, Plaintiffs request that the Court conduct a hearing no later than Wednesday, May 6, 2020, to consider and rule upon the relief requested in Petitioners’/Plaintiff’s motion for TRO.
Expedited consideration would address the immediate need for relief given the imminent dangers posed by a COVID-19 outbreak in the jail. And expedited consideration would not prejudice any party. The Centers for Disease Control and Prevention (CDC) has already issued guidance regarding hygiene, social distancing, screening, and testing measures in jails and prisons.1 Weeks ago, the Governor
1 See Compl. Ex. 7, Interim Guidance on Management of Coronavirus Disease 2

Case 2:20-cv-11094-MAG-EAS ECF No. 4 filed 05/04/20 PageID.536 Page 3 of 9
issued an Executive Order setting forth risk-reduction protocols for jails and other detention facilities.2 At a minimum, it should not be difficult for the parties to litigate, and for the Court to decide, on an expedited basis, that Defendants should be ordered to comply with those guidelines and orders. Indeed, this aspect of the proposed TRO does little more than request Defendants’ compliance with the medical and legal standards established in the status quo. Under the circumstances, including the imminent risk of severe illness, injury, and death caused by the conditions in the Jail, expedited consideration is critical to avoid irreparable harm.
As to release of the Medically Vulnerable Subclass, every day these individuals spend behind bars literally puts their lives in jeopardy. If the Court enters the proposed TRO and orders a hearing on Wednesday, it would mean that the Court and counsel would have a list of all medically vulnerable individuals detained at the Jail for consideration of a release order at the proposed hearing. Adoption of Petitioners’/Plaintiffs’ proposed expedited timeline will, quite literally, save lives.
2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control & Prevention (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidancecorrectional-detention.html. 2 Michigan Executive Order No. 2020-29 Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody; temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers (Mar. 29, 2020), https://www.michigan.gov/whitmer/0,9309,7-38790499_90640-523423--,00.html
3

Case 2:20-cv-11094-MAG-EAS ECF No. 4 filed 05/04/20 PageID.537 Page 4 of 9
Local Rule 7.1(a) requires Plaintiffs to ascertain whether this motion will be opposed. Because this motion is being filed contemporaneously with the complaint, there is not yet an attorney of record for Defendants in this case. Plaintiffs’ counsel emailed and left a voicemail with the Wayne County Corporation Counsel’s office and the Wayne County Sheriff’s Office counsel to explain the nature of this motion and its legal basis. Plaintiffs’ counsel was unable to reach Wayne County Corporation Counsel. David Melton, on behalf of the Wayne County Sheriff’s Office, indicated that he does not concur in the motion.
Given the urgent nature of the issues raised in Petitioners’/Plaintiffs’ motion and the imminent risk of severe harm, it is Petitioners’/Plaintiffs’ position that the Court should decide the motion and enter a TRO immediately, even if a full merits determination has to be made at a later date.
Lessons can be learned from the staggering speed at which the virus has spread inside other carceral environments. Rikers, which has been described at a “public health disaster,” now has a rate of infection that is nearly five times higher than New York City, over 30 times higher than the rest of America, and far higher than the infection rates of the most infected regions of the world.3 Similarly, the
3 The Legal Aid Society, COVID-19 Infection Tracking in NYC Jails (updated May 1, 2020), https://legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ (last visited May 3, 2020).
4

Case 2:20-cv-11094-MAG-EAS ECF No. 4 filed 05/04/20 PageID.538 Page 5 of 9
Cook County Jail went from two confirmed COVID-19 cases on March 23 to more than 350 confirmed cases (238 detainees and 115 staff members) two weeks later;4
one month later, the confirmed cases have more than doubled, resulting in the deaths of six detainees.5
The Wayne County Jail has 29 confirmed positive cases amongst detainees and almost 200 amongst staff as of April 30, 2020.6 Based on the comparators from
other major jail systems, this number has likely already multiplied exponentially.
See, e.g., Compl. Ex. 1, Declaration of Dr. Adam Lauring ¶¶ 10-11. Dr. Lauring has
detailed why the conditions in the Wayne County Jail and the Jail’s deficient
response to this pandemic are likely to lead to tragic outcomes if left to fester for any
period of time. See id. ¶¶ 28-43, 45-46 (explaining how the specific conditions
described by detainees at the jail present an immediate danger to their health and the
public at large). Based on his professional medical opinion about the disease and
4 Timothy Williams & Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. Times (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jailchicago.html. 5 Andy Grimm, Cook County Jail director defends handling of COVID-19 outbreak, Chi. Sun Times (Apr. 23, 2020), https://chicago.suntimes.com/coronavirus/2020/4/23/21233570/cook-county-jailcovid-19-outbreak-tom-dart. 6 Ross Jones, Huge disparity among local jails testing for COVID-19, Channel 7 Detroit WXYZ (April 30, 2020), https://www.wxyz.com/news/localnews/investigations/huge-disparity-among-local-jails-testing-for-covid-19.
5

Case 2:20-cv-11094-MAG-EAS ECF No. 4 filed 05/04/20 PageID.539 Page 6 of 9
the Jail’s conditions, Dr. Lauring recommends the “urgent” release of medically vulnerable individuals and sufficient individuals to reduce the population size to permit effective social distancing practices, noting that “[t]he horizon of risk for COVID-19 in this facility is a matter of days, not weeks.” See id. ¶¶ 42-45. There cannot be any more urgent situation in which Petitioners’/Plaintiffs’ request for expedited consideration could be made.
Notably, in an analogous case seeking the same relief against the Oakland County Jail—where detainees are held in similarly problematic conditions as the Petitioners/Plaintiffs here—this court issued a temporary restraining order on the same day the case was filed.7 There is no reason that the same relief should not issue in Wayne County.
CONCLUSION AND RELIEF REQUESTED For the reasons set forth above and in their Complaint and Emergency Motion for Temporary Restraining Order, Petitioners/Plaintiffs request that this Honorable Court grant the request for expedited consideration and enter Petitioners’/Plaintiffs’ proposed Temporary Restraining Order immediately and without a hearing. In the alternative, Petitioners/Plaintiffs request that the Court conduct a hearing no later than Wednesday, May 6, 2020, to consider and rule upon the relief requested in
7 See Cameron v. Bouchard, No. 20-cv-10949, 2020 WL 1929876, at *2-3 (E.D. Mich. Apr. 17, 2020) (Parker, J.).
6

Case 2:20-cv-11094-MAG-EAS ECF No. 4 filed 05/04/20 PageID.540 Page 7 of 9

Petitioners’/Plaintiffs’ Emergency Motion for Temporary Restraining Order.

Respectfully submitted,

/s/Ashley A. Carter Ashley A. Carter (DC Bar No. 979793) Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (MI Bar No. P76789; DC Bar No. 1028529) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 Tel: (202) 728-9557 tharvey@advancementproject.org acarter@advancementproject.org mnemeth@advancementproject.org

/s/Martin L. Saad Martin L. Saad (DC Bar No. 462096)* Sheena R. Thomas (DC Bar No. 1020290)* Khary J. Anderson (DC Bar No. 1671197)* VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 Tel: (202) 344-4000 MLSaad@Venable.com SRThomas@Venable.com KJAnderson@Venable.com

/s/Allison L. Kriger Allison L. Kriger (MI Bar No. P76364) LARENE & KRIGER, P.L.C. 645 Griswold Street, Suite 1717 Detroit, Michigan 48226 Tel: (313) 967-0100 allison.kriger@gmail.com
/s/Alec Karakatsanis Alec Karakatsanis (DC Bar No. 999294)* A. Dami Animashaun (DC Bar No. 1614199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 Tel: (202) 894-6126 alec@civilrightscorps.org animashaun@pm.me

/s/Christopher N. Moran Christopher N. Moran (MD Bar No. 1512160132)* Emily J. Wilson (MD Bar No. 1801040016)* VENABLE LLP 750 E. Pratt Street, Ste. 900 Baltimore, MD 21202 Tel: (410) 244-7400 CNMoran@Venable.com EJWilson@Venable.com
/s/Desiree M. Ferguson Desiree M. Ferguson (MI Bar No. P34904) Amanda Alexander (MI Bar No. P77795)* DETROIT JUSTICE CENTER 1420 Washington Blvd., Suite 301 Detroit, MI 48226 Tel: (313) 736 -5957 dferguson@detroitjustice.org

7

Case 2:20-cv-11094-MAG-EAS ECF No. 4 filed 05/04/20 PageID.541 Page 8 of 9
aalexander@detroitjustice.org Attorneys for Plaintiffs/Petitioners
*Applications for admission forthcoming DATED: May 4, 2020
8

Case 2:20-cv-11094-MAG-EAS ECF No. 4 filed 05/04/20 PageID.542 Page 9 of 9
CERTIFICATE OF SERVICE I affirm that this Emergency Motion for Expedited Consideration and will be served concurrently with, and in all the same manners as, the service of the Summons and Complaint, the Emergency Motion for Temporary Restraining Order and Preliminary Injunction, and the Motion for Class Certification in this matter.
/s/Allison L. Kriger Allison L. Kriger
9

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.543 Page 1 of 37

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

CHARLES RUSSELL; CHRISTOPHER HUBBARD;; HARRY WHITE; CARL SMELLEY; SHANE CARLINE; and COURTNEY WHITE, individually and on behalf of all others similarly situated,

Case No. 2:20-cv-11094-MAGEAS

Plaintiffs,
v.
WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as Sheriff of Oakland County; DANIEL PFANNES, in his official capacity as the Undersheriff for the Wayne County Sheriff’s Office; ROBERT DUNLAP, in his official capacity as Chief of Jails and Court Operations; JAMES E. DAVIS, in his official capacity as Deputy Chief of Jail Operations,

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION For the reasons set forth in Plaintiffs’ Brief in Support of Motion for Class Certification, attached below, Plaintiffs request that this Court certify a class,

pursuant to Federal Rule of Civil Procedure 23(b)(2), as well as three subclasses. This class action seeks declaratory and injunctive relief to require Defendants to

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.544 Page 2 of 37
implement procedures that provide basic, reasonable protective measures and medical care for Plaintiffs to keep them reasonably healthy and safe from contracting the novel coronavirus and its resulting disease, COVID-19, while in custody. It also seeks a writ of habeas corpus ordering the immediate release of certain people with underlying medical conditions (constituting one of the subclasses) making them so vulnerable to COVID-19 that no procedures could be implemented fast or successfully enough to protect them.
Plaintiffs, therefore, seek to certify one class with three subclasses as follows:  The Class (“the Jail Class”) is defined as: “All current and future persons
detained at the Wayne County Jail during the course of the COVID-19 pandemic.”  The “Pre-trial Subclass” is defined as: “All members of the Jail Class who have not yet been convicted of the offense for which they are currently held in the Jail.”  The “Post-conviction Subclass” is defined as: “All members of the Jail Class who have been sentenced to serve time in the Jail or who are otherwise in the Jail as the result of an offense for which they have already been convicted.”  The “Medically Vulnerable Subclass” is defined as: “All members of the Jail Class who are also over the age of fifty, or who, regardless of age,
2

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.545 Page 3 of 37
experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19, including but not limited to (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure, and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.” Plaintiffs further request (1) that Charles Russell, Christopher Hubbard, Harry White, Carl Smelley, CalDerone Pearson, Shane Carline, and Courtney White are appointed as Class Representatives for the Jail Class; (2) that Christopher Hubbard and Shane Carline are appointed as Class Representatives for the Pre-trial Class; (3) that Harry White, CalDerone Pearson, and Courtney White are also appointed as Class Representatives for the Post-conviction Class; and (4)
3

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.546 Page 4 of 37
that Charles Russell, Christopher Hubbard, Harry White, Carl Smelley, and Courtney White are also appointed as Class Representatives for the Medically Vulnerable Class.
Plaintiffs further request that their undersigned attorneys be appointed as class counsel pursuant to Federal Rule of Civil Procedure 23(g).
Local Rule 7.1(a) requires Plaintiffs to ascertain whether this motion will be opposed. Because this motion is being filed contemporaneously with the complaint, there is not yet an attorney of record for Defendants in this case. Plaintiffs’ counsel emailed and left a voicemail with the Wayne County Corporation Counsel’s office and the Wayne County Sheriff’s Office counsel to explain the nature of this motion and its legal basis. Plaintiffs’ counsel was unable to reach Wayne County Corporation Counsel. David Melton, on behalf of the Wayne County Sheriff’s Office, indicated that he does not concur in the motion.

Dated: May 4, 2020

Respectfully Submitted,

4

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.547 Page 5 of 37

/s/Ashley A. Carter Ashley A. Carter (DC Bar No. 979793) Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (MI Bar No. P76789; DC Bar No. 1028529) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 Tel: (202) 728-9557 tharvey@advancementproject.org acarter@advancementproject.org mnemeth@advancementproject.org

/s/Martin L. Saad Martin L. Saad (DC Bar No. 462096)* Sheena R. Thomas (DC Bar No. 1020290)* Khary J. Anderson (DC Bar No. 1671197)* VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 Tel: (202) 344-4000 MLSaad@Venable.com SRThomas@Venable.com KJAnderson@Venable.com

/s/Allison L. Kriger Allison L. Kriger (MI Bar No. P76364) LARENE & KRIGER, P.L.C. 645 Griswold Street, Suite 1717 Detroit, Michigan 48226 Tel: (313) 967-0100 allison.kriger@gmail.com
/s/Alec Karakatsanis Alec Karakatsanis (DC Bar No. 999294)* A. Dami Animashaun (DC Bar No. 1614199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 Tel: (202) 894-6126 alec@civilrightscorps.org dami@civilrightscorps.org

/s/Christopher N. Moran Christopher N. Moran (MD Bar No. 1512160132)* Emily J. Wilson (MD Bar No. 1801040016)* VENABLE LLP 750 E. Pratt Street, Ste. 900 Baltimore, MD 21202 Tel: (410) 244-7400 CNMoran@Venable.com EJWilson@Venable.com
/s/Desiree M. Ferguson Desiree M. Ferguson (MI Bar No. P34904) Amanda Alexander (MI Bar No. P77795)* DETROIT JUSTICE CENTER 1420 Washington Blvd., Suite 301 Detroit, MI 48226 Tel: (313) 736 -5957 dferguson@detroitjustice.org aalexander@detroitjustice.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

5

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.548 Page 6 of 37

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

CHARLES RUSSELL; CHRISTOPHER HUBBARD;; HARRY WHITE; CARL SMELLEY; SHANE CARLINE; and COURTNEY WHITE, individually and on behalf of all others similarly situated,

Case No. X

Plaintiffs,

v.

WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as Sheriff of Oakland County; DANIEL PFANNES, in his official capacity as the Undersheriff for the Wayne County Sheriff’s Office; ROBERT DUNLAP, in his official capacity as Chief of Jails and Court Operations; JAMES E. DAVIS, in his official capacity as Deputy Chief of Jail Operations,

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.549 Page 7 of 37
TABLE OF CONTENTS INTRODUCTION .....................................................................................................1 BACKGROUND AND FACTS ................................................................................3
I. All Plaintiffs and Putative Class Members Are Being Detained in Extraordinarily Unsafe Conditions that Cannot Protect Them From this Global Pandemic....................................................3
II. Plaintiffs Seek Class-Wide Prospective Relief.............................................6 ARGUMENT .............................................................................................................7
I. The Proposed Class Is So Numerous That Joinder of All Proposed Class Members Is Impracticable...................................................8
II. Claims by The Proposed Class Raise Common Questions That Will Generate Common Answers.......................................................11
III. The Named Plaintiffs’ Claims Are Typical of the Claims of the Proposed Class. .....................................................................................15
IV. The Named Plaintiffs Are Competent and Dedicated Class Representatives. ..........................................................................................18
V. Certification of the Class for Prospective Relief is Appropriate Under Rule 23(b)(2). ..............................................................20
VI. Plaintiffs’ Counsel Should Be Appointed Class Counsel Under Rule 23(g). .......................................................................................23
CONCLUSION ........................................................................................................24
i

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.550 Page 8 of 37
TABLE OF AUTHORITIES
Page(s)
Cases
Afro Am. Patrolmen’s League v. Duck, 503 F.2d 294 (6th Cir. 1974) ................................................................................9
Allen v. Leis, 204 F.R.D. 401 (S.D. Ohio 2001).................................................................12, 21
In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) ..............................................................................18
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)............................................................................................20
Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455 (2013)..............................................................................................7
Beattie v. CenturyTel, Inc., 511 F.3d 554 (6th Cir. 2007) ........................................................................15, 19
Brown v. City of Detroit, No. 10–12162, 2012 WL 4470433 (E.D. Mich. Sept. 27, 2012) .................12, 16
Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, 192 F.R.D. 568 (W.D. Mich. 1999)..........................................................8, 11, 23
In re Consumers Power Co. Sec. Litig., 105 F.R.D. 583 (E.D. Mich. 1985) .......................................................................9
Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. 2006) ................................................................................8
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989)..............................................................................................6
Eddleman v. Jefferson Cty., 96 F.3d 1448, 1996 WL 495013 (6th Cir. 1996) (unpublished).........................16
Garner Properties & Mgmt., LLC v. City of Inkster, 333 F.R.D. 614 (E.D. Mich. 2020) .......................................................................9 ii

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.551 Page 9 of 37
Gasperoni v. Metabolife, Int’l Inc., No. 00-71255, 2000 WL 33365948 (E.D. Mich. Sept. 27, 2000) ......................18
Glover v. Johnson, 85 F.R.D. 1 (E.D. Mich. 1977) ...............................................................12, 16, 21
Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402 (6th Cir. 2012) ................................................................................8
Gorton v. Johnson, 100 F.R.D. 801 (E.D. Mich. 1984) ...............................................................12, 21
Hiatt v. Adams Cty., 155 F.R.D. 605 (S.D. Ohio 1994)................................................................passim
Hopper v. Phil Plummer, 887 F.3d 744 (6th Cir. 2018) ................................................................................2
Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981) ........................................................................8, 23
Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994) ...................................................................................21
Mays v. Dart, No. 20 C 2134, 2020 WL 1987007 (N.D. Ill. Apr. 27, 2020) ......................16, 17
Penland v. Warren Cty. Jail, 797 F.2d 332 (6th Cir. 1986) ................................................................................8
Rankin v. Rots, 220 F.R.D. 511 (E.D. Mich. 2004) .....................................................................15
Reese v. CNH Am., LLC, 227 F.R.D. 483 (E.D. Mich. 2005) .....................................................................15
Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015) ........................................................................11, 13
Savino v. Souza, No. 20-10617-WGY, 2020 U.S. Dist. LEXIS 61775 (D. Mass. Apr. 8, 2020) .......................................................................................................17
iii

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.552 Page 10 of 37
Smith v. Ohio Dep’t of Rehab. & Corr., No. 2:08–CV–15, 2012 WL 1440254 (S.D. Ohio April 26, 2012) ..12, 15, 18, 21
Tipton v. CSX Transp., Inc., No. 3:15-CV-311-TAV-CCS, 2017 WL 11493745 (E.D. Tenn. July 11, 2017)......................................................................................................19
Wal-Mart v. Dukes, 564 U.S. 338 (2011).....................................................................................passim
In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) ..........................................................................7, 11
Williams v. City of Phila., 270 F.R.D. 208 (E.D. Pa. 2010)..........................................................................21
Statutes Fed. R. Civ. P. 23 ...................................................................................................6, 7 Fed. R. Civ. P. 23(a)..........................................................................................passim Fed. R. Civ. P. 23(a)(1)....................................................................................8, 9, 10 Fed. R. Civ. P. 23(a)(2)......................................................................................11, 14 Fed. R. Civ. P. 23(a)(3)............................................................................................15 Fed. R. Civ. P. 23(a)(4)......................................................................................17, 20 Fed. R. Civ. P. 23(a)(g)............................................................................................24 Fed. R. Civ. P. 23(b)(2).....................................................................................passim Fed. R. Civ. P. 23(g) ......................................................................................1, 23, 24 Fed. R. Civ. P. 23(g)(1)............................................................................................23 Fed. R. Civ. P. 23(g)(1)(A) ......................................................................................23 Fed. R. Civ. P. 23(g)(1)(B) ......................................................................................23 U.S. Constitution, Eighth Amendment ........................................................1, 2, 6, 14 U.S. Constitution, Fourteenth Amendment .....................................................1, 2, 14
iv

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.553 Page 11 of 37
Other Authorities ABC7 WXYZ (Apr. 30, 2020), available at
https://www.wxyz.com/news/local-news/investigations/hugedisparity-among-local-jails-testing-for-covid-19 .................................................9 Franke W, DET04_08, Tableau Public (Apr. 23, 2020), https://public.tableau.com/profile/frankie.w7674#!/vizhome/DET0 408/Dashboard1 ..................................................................................................10 Michigan Joint Task Force on Jail and Pretrial Incarceration, Report and Recommendations, p. 7 (Jan. 10, 2020), available at https://courts.michigan.gov/NewsEvents/Documents/final/Jails%20Task%20Force%20Final%20Rep ort%20and%20Recommendations.pdf .................................................................9 Newberg on Class Actions (5th ed.)...............................................................9, 11, 20 Peter Wagner & Emily Widra, No Need to Wait for Pandemics: The Public Health Case for Criminal Justice Reform, Prison Policy Initiative (Mar. 6, 2020), www.prisonpolicy.org/blog/2020/03/06/pandemic/ ...........................................10 Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)...........................................................11 Simple Green, “Coronavirus Frequently Asked Questions,” https://simplegreen.com/news-and-media/coronavirus-faq/ (last visited May 1, 2020) .............................................................................................5
v

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.554 Page 12 of 37
INTRODUCTION This case is about Defendants’ failure to protect the people detained under their custody in the Wayne County Jail (“the Jail”) from the novel coronavirus and its resulting disease, COVID-19. Defendants have failed to respond adequately to the urgent threat posed to people confined in the Jail during this growing and lethal pandemic, making it impossible for the incarcerated class members to observe the precautionary steps necessary to keep themselves safe, such as social distancing, increased personal hygiene, sanitizing one’s environment, access to testing and other essential healthcare treatment, and wearing protective clothing. As a result of Defendants’ failure to protect the incarcerated class members and disregard of the known risks of illness and death, detainees in the Jail have been exposed to a highly fatal infectious disease in violation of their constitutional rights under the Eighth and Fourteenth Amendments. At least 13 inmates have already contracted the disease, and research suggests that this number will increase exponentially in the coming weeks. See Compl. ¶ 4, 11. Named Plaintiffs challenge these unconstitutional conditions and now move for class certification under Federal Rule of Civil Procedure 23(a) and (b)(2). Named Plaintiffs also move for appointment of the undersigned as class counsel pursuant to Rule 23(g). Class certification is warranted because Plaintiffs seek declaratory and injunctive relief to address the unconstitutional conditions that prevail throughout

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.555 Page 13 of 37
the Jail. These conditions pose similar health risks to Plaintiffs and all putative class members by exposing them all (as well as Jail staff and the public at large) to a serious risk of infection and, as a result, serious and potentially lasting bodily harm—up to and including death. Resolving Plaintiffs’ claims requires answering the same common questions of law and fact by finding that the conditions in the Jail violate the Eighth and Fourteenth Amendments to the U.S. Constitution. 1 A declaratory judgment and injunction for the entire class will address these issues for all class members. The size and nature of the Jail means that there are far too many class members, and the class and subclasses are too fluid, to efficiently resolve these questions individually.
The Named Plaintiffs and their counsel are dedicated to vindicating the constitutional rights of the proposed class members, even if the Named Plaintiffs’ cases are resolved through their release or otherwise. Counsel will provide quality representation for the interests of proposed class members—just as they have for other similar classes of incarcerated people in Michigan and around the nation.
1 As explained in more detail in Plaintiffs’ Complaint and Brief in Support of Emergency Motion for Temporary Restraining Order and Preliminary Injunction, the constitutional standard with respect to the Pre-trial Subclass is governed by the Fourteenth Amendment rather than the Eighth Amendment. Accordingly, that subclass need only prove that the medical need is objectively serious and the Jail’s response inadequate. See Hopper v. Phil Plummer, 887 F.3d 744, 754 (6th Cir. 2018).
2

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.556 Page 14 of 37
BACKGROUND AND FACTS I. All Plaintiffs and Putative Class Members Are Being Detained in
Extraordinarily Unsafe Conditions that Cannot Protect Them From this Global Pandemic. Comprising three buildings through which Plaintiffs and staff constantly traverse, the Jail is a ticking time bomb—the conditions inside the Jail create a breeding ground for a mass outbreak of the COVID-19 virus. Division I (the “New Jail”) and Division II (the “Old Jail”) house over 600 detainees, many of whom are members of the Pre-Trial Subclass. Members of this Subclass consistently travel back and forth between Division I, Division II, and the Wayne County Third Circuit Court for arraignment and other pre-trial proceedings. Division III (the “Dickerson Facility”) houses over 430 detainees, and many of these men are part of the Post-Trial Subclass. Some members of this Subclass are serving work release sentences, and they leave and return to the Jail each day and night. TRO Ex. #1 (C. White Decl.) ¶ 11. The laundry services for all three Divisions occurs in Division III. TRO Ex. #2 (Malec Decl.) ¶ 3. The Jail therefore presents numerous opportunities for the virus to spread exponentially amongst the incarcerated or detained class members and other individuals who work in or visit the Jail. Yet Defendants have failed to implement proper screening, testing, or quarantine processes for those detainees who travel between Divisions or visit from outside the Jail. See TRO Ex. #1 ¶ 1; TRO Ex. #4
3

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.557 Page 15 of 37
(Kelly Decl.) ¶¶ 4-7, 10, 17-18; TRO Ex. #5 (Carline Decl.) ¶ 14; TRO Ex. #6 (Smelley Decl.) ¶ 15.
Necessary social distancing is impossible inside the Jail. The jail cells contain bunk beds, forcing up to four class members to sleep less than three feet apart from each other in each cell. TRO Ex. #1 ¶ 3; TRO Ex. #2 (Mathews Decl.) ¶ 6; TRO Ex. #3 (Nickel Decl.) ¶ 5. Due to the limited number of benches in the common areas, class members eat and congregate just a few feet away from one another throughout the day. TRO Ex. #1 ¶¶ 3, 5; TRO Ex. #2 ¶ 8; TRO Ex. #6 ¶ 6; TRO Ex. #3 ¶ 6. Members of the Class and Subclasses—including, specifically, the Medically Vulnerable Subclass—therefore remain in close contact with other class members at all times during their confinement in the Jail. TRO Ex. #2 ¶ 3.
Toilets, sinks, showers, tablets, and phones are shared without disinfection between each use. TRO Ex. #1 ¶ 3; TRO Ex. #6 ¶¶ 6, 8-10; TRO Ex. #3 ¶ 6. Defendants provide Plaintiffs and the putative class members with only small, hotelsized bars of soap that are insufficient for the routine handwashing and cleaning necessary to mitigate the spread of COVID-19; they do not provide Jail detainees with any other hygiene or personal sanitation supplies free of charge. TRO Ex. #5 ¶ 11; TRO Ex. #6 ¶ 11; TRO Ex. #3 ¶ 10; TRO Ex. #10 (Hubbard Decl.) ¶¶ 4, 6, 8. Detainees must use the same bars of soap to wash their hands, bodies, and clothing. Id. To clean their spaces, Defendants provide Plaintiffs with Simple Green—which
4

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.558 Page 16 of 37
is ineffective against viruses such as COVID-192—and there is no other way for incarcerated people to keep their cells or the filthy shared toilets and showers clean and hygienic. TRO Ex. #4 ¶ 30; TRO Ex. #5 ¶ 9. Cloth masks are only occasionally provided to detainees and are not regularly replaced. TRO Ex. #1 ¶ 9. None of the Plaintiffs have been provided gloves. See, e.g., TRO Ex. #2 ¶ 11; TRO Ex. #10 ¶ 9.
Worse yet, Defendants have largely ignored the spread of COVID-19 within the Jail. Indeed, deputies and other Jail staff routinely ignore and dismiss sick inmates’ requests for medical attention and even discipline people who raise concerns about the disease. TRO Ex. #2 ¶ 11; TRO Ex. #3 ¶ 2, 4; TRO Ex. #5 ¶ 15; TRO Ex. #6 ¶¶ 3-4; TRO Ex. #10 ¶ 10; TRO Ex. #13 (Velez Decl.) ¶ 4. Even though two Jail deputies have died from COVID-19 and nearly 180 employees from the Wayne County Sheriff’s Office have tested positive, jail staff inconsistently wear personal protective equipment like gloves or masks when interacting with Plaintiffs. TRO Ex. #1 ¶ 9; TRO Ex. #4 ¶ 32; TRO Ex. #5 ¶ 11; TRO Ex. #6 ¶ 14.
Defendants do not promptly nor properly test or treat people exhibiting
2 See Simple Green, “Coronavirus Frequently Asked Questions,” https://simplegreen.com/news-and-media/coronavirus-faq/ (last visited May 1, 2020) (explaining that Simple Green “is not a disinfectant and will not kill bacteria or viruses”). The CDC has not identified Simple Green as one of the EPA-registered disinfectants effective against the virus in its Interim Guidance on Management of Coronavirus in Correctional and Detention Facilities. See Compl. Ex. #7 at 7, 9, 18.
5

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.559 Page 17 of 37
COVID-19 symptoms, and instead keep them in daily contact with others in general population. TRO Ex. #1 ¶ 10, 12-13; TRO Ex. #2 ¶¶ 4-5; TRO Ex. #3 ¶ 3; TRO Ex. #5 ¶ 17; TRO Ex. #6 ¶ 3.
II. Plaintiffs Seek Class-Wide Prospective Relief. The Jail’s policies and practices violate the rights of all class members to be
free from cruel and unusual punishment and the resulting rights, once detained, to be held in a facility that does not present an egregious medical hazard. See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989) (“[W]hen the State . . . restrains an individual’s liberty . . . [and] fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.”).
Plaintiffs seek class-wide declaratory and injunctive relief holding unconstitutional the conditions under which the entire class is detained and ordering that those conditions be immediately and drastically improved. In the case of the Medically Vulnerable Subclass, given the immediate and severe health risks posed by the Jail’s conditions—conditions that cannot be abated rapidly or starkly enough to protect these high-risk individuals—Plaintiffs seek subclass-wide relief in the form of immediate release.
6

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.560 Page 18 of 37
ARGUMENT Under Rule 23 of the Federal Rules of Civil Procedure, the party seeking class certification must show that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the named parties are typical of the claims or
defenses of the class; and (4) the named parties will fairly and adequately protect the interest of the class. Fed. R. Civ. P. 23(a). The class must also satisfy the requirements of Rule 23(b)(2), that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” See infra Section V.
Although the Court must perform a “rigorous analysis” to determine whether to certify a class, Wal-Mart v. Dukes, 564 U.S. 338, 351 (2011), the Court may not require Plaintiffs to prove their claims at the class certification stage. See Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455, 466 (2013) (“Merits questions may be considered . . . only to the extent . . . that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”). At the certification stage, Plaintiffs’ evidence need only demonstrate that Rule 23 itself is satisfied; certification is not a “dress rehearsal for the trial on the merits.” In
7

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.561 Page 19 of 37
re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851– 52 (6th Cir. 2013) (internal quotations and citation omitted). Moreover, “it is not always necessary . . . to probe behind the pleadings before coming to rest on the certification question, because sometimes there may be no disputed factual and legal issues that strongly influence the wisdom of class treatment.” Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 417 (6th Cir. 2012) (internal quotations and citation omitted).
Class certification is particularly favored when, as here, the Named Plaintiffs assert civil rights claims that are of a fleeting or transitory nature, such that mootness concerns would make it difficult or impossible for individuals to litigate the issues outside of the class context. See Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981) (“[W]e believe that the substantial risk of mootness presented by the facts of this dispute was sufficient to create a need for certification.”); see also Penland v. Warren Cty. Jail, 797 F.2d 332 (6th Cir. 1986) (citing Johnson with approval); Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, 192 F.R.D. 568, 575 (W.D. Mich. 1999). Indeed, given the “short term nature of incarceration in a county jail,” a class should be certified because it is the “only vehicle whereby the legality of [a jail’s] operation can be determined.” Hiatt v. Adams Cty., 155 F.R.D. 605, 608–09 (S.D. Ohio 1994).
I. The Proposed Class Is So Numerous That Joinder of All Proposed
8

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.562 Page 20 of 37
Class Members Is Impracticable. Plaintiffs’ proposed class is sufficiently numerous to make joinder impracticable. See Fed. R. Civ. P. 23(a)(1). Although there is no strict numerical test, “substantial” numbers usually satisfy the numerosity requirement. Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006). Courts generally find that “a class of 40 or more members is sufficient to satisfy the numerosity requirement.” Garner Properties & Mgmt., LLC v. City of Inkster, 333 F.R.D. 614, 622 (E.D. Mich. 2020); see also Afro Am. Patrolmen’s League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974) (affirming certification of class of 35 plaintiffs). Where plaintiffs can show that the number of potential class members is large, the numerosity requirement is met “even if plaintiffs do not know the exact figure.” In re Consumers Power Co. Sec. Litig., 105 F.R.D. 583, 601 (E.D. Mich. 1985). Courts should also consider “judicial economy arising from the avoidance of a multiplicity of actions.” Newberg on Class Actions § 3:12 (5th ed.); see Calloway, 287 F.R.D. at 406. The proposed class easily meets the Rule 23(a)(1) numerosity requirement. According to recent reporting, the Jail population currently stands at approximately 834 human beings. 3 And approximately 50% of all people incarcerated in
3 See Ross Jones, Huge Disparity Among Local Jails Testing for COVID-19, ABC7 WXYZ (Apr. 30, 2020), available at https://www.wxyz.com/news/localnews/investigations/huge-disparity-among-local-jails-testing-for-covid-19.
9

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.563 Page 21 of 37
Michigan’s jails are pre-trial detainees,4 meaning that the Pre-Trial Subclass and the
Post-Conviction Subclass each constitute approximately half of the class as whole.
As to the Medically Vulnerable Subclass, although its exact size cannot be
known in advance, demographic data of jail populations more generally confirms
that well over 30% of detained individuals typically suffer from conditions that render them medically vulnerable to the coronavirus. 5 Several of the Named
Plaintiffs, for example, fall within this category. See, e.g., TRO Ex. #1 ¶¶ 2, 5; TRO
Ex. #5 ¶ 18; TRO Ex. #9 ¶¶ 2-3. Based on these demographics alone, it is safe to
estimate that the Medically Vulnerable Subclass would number well over one
hundred individuals within this over 800 person population.
The Jail class—and thus each of the subclasses—will continue to grow as law
enforcement officers continue to arrest and detain individuals from the community
during this extended health pandemic. In April 2020 alone, Detroit police officers made over 2,500 arrests.6 The resulting class easily exceeds 1,000 people and the
4 See Michigan Joint Task Force on Jail and Pretrial Incarceration, Report and Recommendations, p. 7 (Jan. 10, 2020), available at https://courts.michigan.gov/NewsEvents/Documents/final/Jails%20Task%20Force%20Final%20Report%20and%20 Recommendations.pdf. 5 See Peter Wagner & Emily Widra, No Need to Wait for Pandemics: The Public Health Case for Criminal Justice Reform, Prison Policy Initiative (Mar. 6, 2020), www.prisonpolicy.org/blog/2020/03/06/pandemic/. 6 See Franke W, DET04_08, Tableau Public (Apr. 23, 2020), https://public.tableau.com/profile/frankie.w7674#!/vizhome/DET0408/Dashboard1
10

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.564 Page 22 of 37
subclasses number in the hundreds. Because the number of potential plaintiffs in the proposed class and subclasses vastly exceeds the number who could be joined practicably, Rule 23(a)(1) is satisfied here.
II. Claims by The Proposed Class Raise Common Questions That Will Generate Common Answers.
The claims asserted on behalf of the proposed class include common questions of law and fact that satisfy Rule 23(a)(2). Commonality requires that the class members’ claims “depend on a common contention” of fact or law such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. Courts must “start from the premise that there need be only one common question to certify a class.” Whirlpool, 722 F.3d at 853. Courts find common questions of both law and fact “at a high level of generality.” Newberg on Class Actions § 3:19 (5th ed.) (internal quotations and citation omitted).
Commonality also requires that these common questions “generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 349 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009) (emphasis in original)). These “common answers” must “relate[] to the actual theory of liability in the case.” Rikos v. Procter & Gamble
. 11

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.565 Page 23 of 37
Co., 799 F.3d 497, 505 (6th Cir. 2015); see also Cmtys. for Equity, 192 F.R.D. at 572; Newberg on Class Actions § 3:20 (5th ed.) (“When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.”).
Accordingly, courts in the Sixth Circuit have repeatedly certified class actions in which incarcerated people challenge the circumstances or conditions of their detention. See Brown v. City of Detroit, No. 10–12162, 2012 WL 4470433, at *13 (E.D. Mich. Sept. 27, 2012) (certifying class of detainees challenging their detention for more than 48 hours without probable cause); Smith v. Ohio Dep’t of Rehab. & Corr., No. 2:08–CV–15, 2012 WL 1440254, at *4 (S.D. Ohio April 26, 2012) (class of prisoners suffering exposure to high levels of asbestos); Hiatt, 155 F.R.D. at 609 (finding commonality satisfied where “[t]he conditions, policies and practices challenged” in the carceral setting impacted all detained people); Allen v. Leis, 204 F.R.D. 401 (S.D. Ohio 2001) (class of detainees challenging payments associated with their detention); Gorton v. Johnson, 100 F.R.D. 801 (E.D. Mich. 1984) (class of incarcerated people challenging mental health treatment provided to them); Glover v. Johnson, 85 F.R.D. 1, 5-6 (E.D. Mich. 1977) (class of female prisoners who challenged the Michigan Department of Corrections’ unconstitutional policies in providing women with inferior educational and vocational programs).
12

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.566 Page 24 of 37
At the core of this case is the common set of facts inflicting constitutional injury on each member of the proposed class: namely, the unsafe and unhygienic conditions prevailing in the Jail and the concomitant risks of contracting COVID-19 created by those conditions. All class members suffer the same injury, namely an unconstitutional risk of exposure to an extraordinarily dangerous disease that in some cases leads to actual contraction of and/or complications from the disease itself. And all members of the Medically Vulnerable Subclass share a greatly elevated risk of suffering death or permanent organ damage or failure should they contract the virus.
These injuries are “capable of classwide resolution,” Rikos, 799 F.3d at 505 (quoting Dukes, 564 U.S. at 350), because the Court can issue a single declaration finding that the conditions in the Jail are in violation of the Eigth and Fourteenth Amendments and ordering immediate remedies to address the conditions. And a single additional remedy mandating release of the Medically Vulnerable Subclass can address the increased risk to the subclass. Thus, this case goes far beyond the “single common question [that] will do.” Dukes, 564 U.S. at 359 (internal quotations and citation omitted). Indeed, most questions of fact and law that will arise in this suit are common across the class. Among the most central common questions of fact are:
 What measures Defendants implemented in the Jail in response to the COVID-19 crisis; 13

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.567 Page 25 of 37
 Whether the conditions in the Jail are sufficient to prevent an unreasonable risk of the spread of COVID-19;
 Whether Defendants’ practices during the COVID-19 pandemic expose detainees at the Jail to a substantial risk of serious harm;
 Whether Defendants knew of and disregarded a substantial risk of serious harm to the health and safety of the class and subclasses; and
 Whether COVID-19 presents a heightened risk of harm and potential death to the Medically Vulnerable Subclass.
Among the most important common questions of law are:
 As to the entire class: whether the conditions in which the class is confined are objectively unreasonable given the health risks to class members.7
 As to the Pre-Trial Subclass: whether Defendants are liable under the Fourteenth Amendment for the objectively unreasonable conditions of confinement that are very likely to cause serious illness and needless suffering.
 As to the Post-Conviction Subclass: whether Defendants are liable under the Eighth Amendment for their deliberate indifference to conditions of confinement that are very likely to cause serious illness and needless suffering.
 As to the Medically Vulnerable Subclass: whether the threat of death,
7 As explained in footnote 1, supra, and in the Memorandum in Support of Plaintiffs’ Emergency Motion for Temporary Restraining Order, the Eighth Amendment governs the constitutionality of the terms of confinement for people who have been convicted, whereas the Fourteenth Amendment governs the constitutionality of the terms of confinement for people still awaiting trial. To find an Eighth Amendment violation as to the Post-Conviction Subclass, this Court must find both that the conditions in the Jail are objectively unreasonable and that the Jail was subjectively aware of and disregarded the risks. To find a Fourteenth Amendment violation as to the Pre-Trial Subclass, the objective unreasonableness component of the inquiry is all that applies and is common to all subclasses. See Compl. ¶¶ 129-134; TRO Br. at 26-27.
14

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.568 Page 26 of 37
pain, or permanent severe injury to members of the subclass is so constitutionally impermissible and irredressable that the only adequate remedy is to release them from custody immediately. In short, common questions of fact and law pervade this case, satisfying the Rule 23(a)(2) commonality requirement. III. The Named Plaintiffs’ Claims Are Typical of the Claims of the Proposed Class. The Plaintiffs in this case have claims typical of all members of the class, i.e., of all the people incarcerated in the Jail. To meet the typicality requirement, the Named Plaintiffs’ claims must be “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The commonality and typicality requirements of Rule 23(a) tend to merge.” Dukes, 564 U.S. at 349 n.5. “Like the test for commonality, the test for typicality is not demanding and the interests and claims of the various plaintiffs need not be identical.” Reese v. CNH Am., LLC, 227 F.R.D. 483, 487 (E.D. Mich. 2005). “A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the] claims are based on the same legal theory.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007). So long as the class and its representatives have similar legal theories arising from the same practice or course of conduct, the requirement is met “even if substantial factual distinctions exist between the named and unnamed class members.” Rankin v. Rots, 220 F.R.D. 511, 518 (E.D. Mich. 2004).
15

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.569 Page 27 of 37
Courts in the Sixth Circuit have consistently found prisoners’ claims to be “typical” of the class they propose to represent where those claims arise from policies or conditions at an institution affecting all members of the proposed class. In Smith, 2012 WL 1440254, at *5, the court found that a prisoner’s claims regarding asbestos at the prison were typical of those of the class of prisoners he sought to represent because they arose “from the same events, practice or course of conduct.” In Glover, 85 F.R.D. at 5-6, the court held that plaintiffs’ claims regarding genderbased disparities in the Department of Corrections’ educational policies and programs for women inmates were typical of those of the class, regardless of whether each class member was “identically situated.” And in Brown, 2012 WL 4470433, at *12, the court held that the named plaintiff raised claims that were typical of those of the proposed class of pretrial detainees when he challenged the fact that he was detained for a substantial amount of time without bedding and for more than 48 hours without a probable cause hearing. See also Eddleman v. Jefferson Cty., 96 F.3d 1448, 1996 WL 495013, at *4 (6th Cir. 1996) (unpublished) (typicality requirement met where plaintiffs challenged county jail’s blanket strip search policy even though individual searches varied in scope).
In other COVID-19-related litigation, federal courts recently have found that both classes of detainees at large and medically vulnerable subclasses have satisfied Rule 23(a)’s typicality requirement. See, e.g., Mays v. Dart, No. 20 C 2134, 2020
16

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.570 Page 28 of 37
WL 1987007, at *18 (N.D. Ill. Apr. 27, 2020) (“Typicality is satisfied for subclass A because the named plaintiffs have alleged the same injurious conduct stemming from the Sheriff’s response to the coronavirus pandemic as the other members of the subclass and have advanced the same legal theory as the subclass at large.”); see also Savino v. Souza, No. 20-10617-WGY, 2020 U.S. Dist. LEXIS 61775, at *21 (D. Mass. Apr. 8, 2020) (“Crucial to the Court’s determination is the troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19.”).
All Named Plaintiffs, each class member, and each subclass member are similarly impacted by Defendants’ inadequate response to the coronavirus pandemic, such that “their conditions of confinement are unconstitutional.” Mays, 2020 WL 1987007, at *22. These conditions include detainees’ inability to practice social distancing in the Jail’s common areas, Jail staff’s inconsistent use of masks and gloves, detainees’ lack of adequate protective equipment or cleaning supplies, inadequate medical care and medical responses to COVID-19 cases, and Jail staff and work release inmates leaving and returning to the Jail each day. See TRO Ex. #2 ¶ 10; TRO Ex. #4 ¶¶ 22, 32; TRO Ex. #6 ¶ 8; TRO Ex. #7 (Blanks Decl.) ¶ 5-7; TRO Ex. #8 (Pearson Decl.) ¶ 6-7; TRO Ex. #12 (H. White Decl.) ¶ 3-5; Ex. A (McKay Decl.) ¶ 19.
In sum, the Named Plaintiffs’ experiences mirror those of all class members and demonstrate that the harms are widespread across all types of class members.
17

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.571 Page 29 of 37
IV. The Named Plaintiffs Are Competent and Dedicated Class Representatives.
The Named Plaintiffs also fulfill 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 Sixth Circuit has articulated two criteria for adequacy of representation: “1) the representative must have common interests with unnamed members of the class[;] and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996) (internal quotations and citation omitted). “The adequate representation requirement overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members.” Id.; see also Gasperoni v. Metabolife, Int’l Inc., No. 00-71255, 2000 WL 33365948, at *4 (E.D. Mich. Sept. 27, 2000) (finding that the named plaintiffs were adequate class representatives because their claims asserted the same legal issue as those of the class members).
Plaintiffs meet the first adequacy criterion for reasons set forth in the commonality and typicality discussions above. In addition, the Named Plaintiffs do not have interests that are in any way contrary to the rest of the class. They all share with the class the common goal of living in conditions that satisfy constitutional requirements. Cf. Smith v. Ohio Dep’t of Rehab. & Corr., No. 2:08-CV-15, 2012 WL 1440254, at *5 (S.D. Ohio Apr. 26, 2012) (“Mr. Perry shares with the Class the
18

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.572 Page 30 of 37
common interest in safely containing and removing asbestos from CCI.”). The relief they seek—declaratory and injunctive relief from unconstitutional policies and practices—would benefit the entire class equally. There are no conflicts between the Named Plaintiffs and the class.
The Named Plaintiffs are also ready and willing to take an active role in litigating this case, including by responding to discovery as needed. Cf. Tipton v. CSX Transp., Inc., No. 3:15-CV-311-TAV-CCS, 2017 WL 11493745, at *13 (E.D. Tenn. July 11, 2017) (finding Rule 23(a)’s adequacy requirement satisfied where named plaintiffs were “willing to vigorously prosecute the interests of the class” and had “actively participated in discovery.”). Each has met with counsel multiple times by phone (the only method of communication possible in light of the pandemic crisis), are aware of the duties and obligations that apply to representative plaintiffs in class litigation, and are committed to seeking relief on behalf of all class members.
Plaintiffs also satisfy the second adequacy criterion: adequacy of counsel. When making a determination regarding adequacy of cousel, the Sixth Circuit has explained that it “reviews the adequacy of class representation to determine whether class counsel are qualified, experienced and generally able to conduct the litigation, and to consider whether the class members have interests that are not antagonistic to one another.” Beattie, 511 F.3d at 562-63. Plaintiffs’ counsel include highly qualified and experienced civil rights, criminal defense, and civil litigation attorneys
19

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.573 Page 31 of 37
who are able and willing to conduct this litigation on behalf of the class. Plaintiffs’ counsel from the Advancement Project, LaRene & Kriger, PLC, Civil Rights Corps, Detroit Justice Center, and Venable LLP collectively have extensive experience litigating complex class action and civil rights cases, including cases concerning the constitutional rights of incarcerated people. Ex. B (Harvey Decl.) ¶¶ 3-5, 7-9; Ex. C (Kriger Decl.) ¶¶ 5-7; Ex. D (Karakatsanis Decl.) ¶¶ 4-8; Ex. E (Ferguson Decl.) ¶¶ 4-5; Ex. F (Saad Decl.) ¶¶ 2-4. As evidenced by the cited declarations and the fillings in the cases noted therein, counsel have a history of zealous advocacy on behalf of their clients. Accordingly, Plaintiffs and their counsel meet Rule 23(a)(4)’s adequacy requirement.
V. Certification of the Class for Prospective Relief is Appropriate Under Rule 23(b)(2).
Plaintiffs’ proposed class is ideal for certification under Rule 23(b)(2). To certify a class under Rule 23(b)(2), the party seeking class certification must show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “This is a simple inquiry in most cases.” Newberg on Class Actions § 4:28 (5th ed.). The requirement of a generally applicable set of actions “ensures that the class’s interests are related in a manner that makes aggregate litigation appropriate . . . and therefore efficient.” Id. Thus, “Rule 23(b)(2) applies . . . when a single injunction or
20

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.574 Page 32 of 37
declaratory judgment would provide relief to each member of the class.” Dukes, 564 U.S. at 360.
As the Supreme Court has recognized, civil rights cases are “prime examples” of Rule 23(b)(2) class actions. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); see also Dukes, 564 U.S. at 361; Newberg on Class Actions § 25:20 (4th ed. 2002) (“Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits.”). In actions primarily seeking injunctive relief, the (b)(2) requirement is “almost automatically satisfied.” Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994). “What is important is that the relief sought by the named plaintiffs should benefit the entire class.” Id. at 59.
“Numerous courts have held that Rule 23(b)(2) is an appropriate vehicle in actions challenging prison conditions.” Williams v. City of Phila., 270 F.R.D. 208, 222 (E.D. Pa. 2010). Within the Sixth Circuit, many courts have certified prisoner class actions under Rule 23(b)(2) where the claims challenge conditions affecting the larger population of incarcerated people. See, e.g., Glover v. Johnson, 85 F.R.D. 1, 7 (E.D. Mich. 1977) (granting class certification in an action regarding inequalities in the Michigan Department of Corrections’ inmate treatment and educational programs); Gorton v. Johnson, 100 F.R.D. 801, 803-04 (E.D. Mich. 1984) (granting class certification in action regarding denial of psychiatric treatment while incarcerated); Hiatt v. Adams Cty., 155 F.R.D. 605, 610 (S.D. Ohio 1994) (holding
21

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.575 Page 33 of 37
that requirements for class certification were met in action regarding the conditions of confinement as well as the policies and practices in the Adams County Jail); Allen v. Leis, 204 F.R.D. 401, 409 (S.D. Ohio 2001) (granting motion for class certification in action regarding pre-trial detainees whose funds were confiscated before conviction); Smith, 2012 WL 1440254 (certifying a class of plaintiffs consisting of incarnated individuals in areas of correctional institution identified as containing unabated asbestos).
The class proposed here is exactly the kind of class that Rule 23(b)(2) embraces. See id. The class’s interests are related in a manner that warrants aggregate litigation. Plaintiffs have “alleged that the policies and practices of the Defendants and the condition existing at the jail affect the class as a whole.” Hiatt, 155 F.R.D. at 610. Specifically, Plaintiffs allege that Defendants have permitted unsafe and effectively lethal conditions to persist within the Jail, notwithstanding their awareness of that danger. Injunctive and declaratory relief are appropriate precisely because the only adequate relief requires enjoining Defendants’ unconstitutional policies and practices across the board and declaring their unconstitutionality. “Indeed, the remedy sought, to be effective, must be system wide rather than individually oriented” in light of the highly contagious nature of the coronavirus. Id.
It is far more efficient for this Court to grant injunctive and declaratory relief
22

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.576 Page 34 of 37
protecting the entire class than to extend that relief piecemeal through individual suits. Class certification is further necessary because of the inherently transitory nature of the constitutional harms at issue here: any individual class member’s claim might become moot before it could be addressed on the merits, and new class members face the prospect of immediate harm through unconstitutional exposure to the conditions in the Jail the moment they are detained. See Johnson, 658 F.2d at 1070 (5th Cir. 1981); Cmtys. for Equity, 192 F.R.D. at 575; Hiatt, 155 F.R.D. at 608– 09. Accordingly, this Court should certify the class under Rule 23(b)(2).
VI. Plaintiffs’ 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). A court must consider factors including: (1) “the work counsel has done in identifying or investigating potential claims in this 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).
The undersigned counsel satisfy these requirements. First, Plaintiffs’ counsel have interviewed Plaintiffs and other class members, performed relevant legal
23

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.577 Page 35 of 37
research and drafting, and investigated the facts and legal claims raised in this case in detail, despite the significant practical obstacles posed by the nature of the current global health crisis. Ex. B ¶ 10; supra Section IV. Second, Plaintiffs’ counsel have significant experience litigating class and civil rights actions, including extensive and specific experiencing litigating cases involving the rights of incarcerated peoples and individuals at risk of COVID-19 inside detention facilities. Ex. B ¶¶ 2, 4-6; Ex. C ¶¶ 2, 4-5; Ex. D ¶ 4-6; Ex. C ¶¶ 2-5. Finally, Plaintiffs’ counsel are prepared to contribute significant resources to the representation of this class. Ex. B ¶ 6; Ex. C ¶ 8; Ex. D ¶ 9; Ex. E ¶ 3; Ex. F ¶ 6. Therefore, Plaintiffs’ counsel satisfies the four criteria in Rule 23(g), and they respectfully request appointment as class counsel.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court certify the class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs also request that undersigned counsel be appointed class counsel under Rules 23(a)(g). In the alternative, if Defendants contest material issues of fact necessary for class certification, Plaintiffs request the opportunity to conduct discovery related to class certification and a subsequent hearing.

Dated: May 4, 2020

Respectfully Submitted, 24

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.578 Page 36 of 37

/s/Ashley A. Carter Ashley A. Carter (DC Bar No. 979793) Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (MI Bar No. P76789; DC Bar No. 1028529) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 Tel: (202) 728-9557 tharvey@advancementproject.org acarter@advancementproject.org mnemeth@advancementproject.org

/s/Martin L. Saad Martin L. Saad (DC Bar No. 462096)* Sheena R. Thomas (DC Bar No. 1020290)* Khary J. Anderson (DC Bar No. 1671197)* VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 Tel: (202) 344-4000 MLSaad@Venable.com SRThomas@Venable.com KJAnderson@Venable.com

/s/Allison L. Kriger Allison L. Kriger (MI Bar No. P76364) LARENE & KRIGER, P.L.C. 645 Griswold Street, Suite 1717 Detroit, Michigan 48226 Tel: (313) 967-0100 allison.kriger@gmail.com
/s/Alec Karakatsanis Alec Karakatsanis (DC Bar No. 999294)* A. Dami Animashaun (DC Bar No. 1614199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 Tel: (202) 894-6126 alec@civilrightscorps.org dami@civilrightscorps.org

/s/Christopher N. Moran Christopher N. Moran (MD Bar No. 1512160132)* Emily J. Wilson (MD Bar No. 1801040016)* VENABLE LLP 750 E. Pratt Street, Ste. 900 Baltimore, MD 21202 Tel: (410) 244-7400 CNMoran@Venable.com EJWilson@Venable.com
/s/Desiree M. Ferguson Desiree M. Ferguson (MI Bar No. P34904) Amanda Alexander (MI Bar No. P77795)* DETROIT JUSTICE CENTER 1420 Washington Blvd., Suite 301 Detroit, MI 48226 Tel: (313) 736 -5957 dferguson@detroitjustice.org aalexander@detroitjustice.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

25

Case 2:20-cv-11094-MAG-EAS ECF No. 5 filed 05/04/20 PageID.579 Page 37 of 37
CERTIFICATE OF SERVICE I affirm that this Motion for Class Certification and supporting brief and exhibits will be served concurrently with, and in all the same manners as, the service of the Summons and Complaint, and the Emergency Motion for Temporary Restraining Order and Preliminary Injunction in this matter.
/s/Allison L. Kriger Allison L. Kriger
26

Case 2:20-cv-11094-MAG-EAS ECF No. 5-1 filed 05/04/20 PageID.580 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES RUSSELL, et al., individually and on behalf of all others similarly situated,
Plaintiffs,
v.
WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as the Sheriff of Wayne County, et al.,
Defendants.

Case No. Class Action

Index of Exhibits To Plaintiffs’ Motion For Class Certification

EXHIBIT A B C D E
F

DESCRIPTION Declaration of Shokelle McKay Declaration of Thomas B. Harvey (Advancement Project) Declaration of Allison Kriger (LaRene & Kriger, P.L.C.) Declaration of Alec Karakatsanis (Civil Rights Corps) Declaration of Desiree M. Ferguson (Detroit Justice Center) Declaration of Martin L. Saad (Venable LLP)
1

Case 2:20-cv-11094-MAG-EAS ECF No. 5-2 filed 05/04/20 PageID.581 Page 1 of 2
DECLARATION OF SHOKELLE MCKAY
I, Shokelle McKay, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746:
1. My name is Shokelle McKay. I am 26 years old. I am currently incarcerated in the Wayne County Jail, Division II. Before this I was in Division I.
2. I was in Division I, Unit 1409 when I first got to the jail. I was there from about March 10 – 17, 2020. We slept in bunks. It was an open setting with tables and bunks. Eleven people fit there. We did not have masks or gloves. Meals were brought to the unit and everyone waits in line to grab their own tray. We could either sit on our bunks and eat or eat together at a table.
3. There was one phone. There were 10 people using that phone.
4. I was in the jail about 4 or 5 days when I started feeling sick. I used the phone after someone coughing used it. I know that he was coughing bad. There weren’t supplies available to clean the phone. Usually people used their shirt or a sock to clean and cover the phone.
5. I started to feel funny and sick sick almost immediately after using the phone after the guy who was a sick. At first it was a scratchy throat and through the night it got progressively worse. My throat was hurting more and more. I had shortness of breath and a very serious mucus build-up. The nurse came through the unit two times per day. I asked for a kite and filled it out but nothing happened. I felt sick for at least 2 weeks. There was no real medical care and I was never tested for COVID-19.
6. I was sick in Division I for 3 days before I was moved to Division II.
7. After being moved to Division II I was there for two weeks when I started to feel better but I was still coughing really bad at night and there was still a lot of mucus. When I asked a nurse for help and for a kite to fill out I didn’t get one. It is really hard to get a medical kite. Mostly the nurses just pass out the medication.
8. They moved two people from the street into our unit. Shortly after they arrived people started getting sick. I had a fever. I started feeling hot so I asked the nurse to talk my temperature and it was 99 degrees. She said she was going to come back and take it again but she never did. After that, the next day I couldn’t taste or smell and I had shortness of breath. This lasted 4 or 5 days. There was no medical care.
9. I knew about the virus but I didn’t think it could affect the jail this much.
10. The jail is horrible. It’s real dirty. There is no system or place to do laundry. They are supposed to do a linen exchange. When you come into the jail they give you green pants and a green top. They don’t give out underwear. They are supposed to change the linens and clothes weekly and they don’t.

Case 2:20-cv-11094-MAG-EAS ECF No. 5-2 filed 05/04/20 PageID.582 Page 2 of 2
11. When I first got here they didn’t do the exchange for a month. I asked them to change it but no one really cares. They come when they come. We have to wash our underclothes in the sink. We have to drink out of the same sink when we want water. They give us three bars of hotel-sized soap and a roll of toilet paper every Tuesday in Division II. You have to use the soap to wash your body. If you also use it to wash clothes it won’t last. If you ask for more from the deputies they say no.
12. I only got information about coronavirus after I was sick. I got a COVID-19 information page. The nurse explained a little bit to us. Before I was sick they had given out masks that were supposed to be used for one day. We had to use them for 11 days.
13. On the unit I’m on now we each have a cell with a bed, desk, toilet and sink. There is one shower that 11 people share. Trustees come in and clean it every now and then. There is no set schedule for cleaning the shower. Towels are supposed to be changed every week but it’s been at least 2 or 3 weeks. We don’t have a washcloth, just a towel.
14. They have turned my unit into a sick ward. Everyone is covid-positive. Medical comes here every so often, mostly once in the morning and once at night. They check your heartrate, blood pressure, temperature if you want and give you Tylenol.
15. They bring our meals to the unit. The guards pass them out.
16. The deputies and trustees that come on our pod sometimes wear gloves and masks, and sometimes they don’t.
17. We all share a common area. It is about 3 feet by 20 feet. It is really narrow. There is one phone and one TV that we all share. If you have money you can use a tablet to watch other programs. There are 4 tablets.
18. The jail said that we would get free phone calls and tablet calls. We were supposed to get 2 free 5 minute calls on Tuesdays. But the day we were supposed to get the free video calls the tablets did not work.
19. We don’t have cleaning materials. There is a broom and a mop. Sometimes the mop bucket is filled with dirty water. They don’t change mop head. There is no toilet brush. There is a green solution that is stored in a closet. We don’t get it often, maybe once a week, if that. The deputies control the closet. It is outside of the unit. They don’t pass out paper towels. In order to clean you would have to tear your towel to create a cleaning rag.
20. There is no way to quarantine here.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Shokelle McKay on May 3, 2020.
/s/ Ashley Carter By: Ashley Carter Date: May 3, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 5-3 filed 05/04/20 PageID.583 Page 1 of 4
EXHIBIT 1: DECLARATION OF THOMAS B. HARVEY IN SUPPORT OF PLAINTIFFS’ MOTION
FOR CLASS CERTIFICATION

Case 2:20-cv-11094-MAG-EAS ECF No. 5-3 filed 05/04/20 PageID.584 Page 2 of 4
DECLARATION OF THOMAS B. HARVEY IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
I, Thomas B. Harvey, declare as follows: 1. I am the Program Director for the Justice Project at Advancement Project, and one of the plaintiffs’ attorneys in this case. I submit this declaration in support of Plaintiffs’ motion for class certification to demonstrate that Advancement Project’s attorneys, in conjunction with co-counsel, satisfy the requirements of Rule 23(a)(4) and Rule 23(g). 2. Advancement Project (“AP”) is a non-profit multi-racial civil rights organization based in Washington, D.C. Rooted in the great human rights struggles for equality and justice, AP exists to fulfill America’s promise of a caring, inclusive and just democracy. AP provides legal, organizing, and communications support to grassroots organizations across the country in its Power and Democracy Project, Justice Project, Opportunity to Learn Project, and the Immigrant Justice Project. Since 1999, AP has regularly filed federal litigation, including class action litigation, written reports in educating the public on issues such as voting rights, school discipline, restoration of civil rights for returning citizens, and criminalization of undocumented persons. AP staff have testified before state and federal legislative bodies on civil rights and racial justice. 3. Advancement Project has assigned two highly qualified attorneys to litigate this case: myself and Krithika Santhanam.
1

Case 2:20-cv-11094-MAG-EAS ECF No. 5-3 filed 05/04/20 PageID.585 Page 3 of 4
4. I have over 11 years of civil rights class action litigation experience. While at Advancement Project, I have been counsel for two federal civil rights class action lawsuits: Dixon v. City of St. Louis, 4:19-cv-00112 ( E.D. Mo. 2019) and Swain v. Junior 1:20-cv-21457 ( S.D. Fla. 2020). In Dixon, I conducted an investigation into the use of secured money bail to detain impoverished people in St. Louis. This investigation has included interviews with witnesses, experts, government employees, people jailed for their poverty and their families, local attorneys, community members, experts in the functioning of courts and jails, and national experts in post-arrest procedures and constitutional law. Swain v. Junior challenges jail conditions in Miami-Dade’s Metro West Detention Center during the Covid-19 pandemic.
5. I have been counsel in a number of recent constitutional civil rights class action lawsuits raising similar and related issues. A small sampling of these cases includes: Pierce et al. v. City of Velda City, 2015 WL 10013006 (E.D. Mo. 2015); See, e.g., Templeton v. Dotson, 4:14-cv-01019 (E.D. Mo 2014, settlement approved in 2014); Jenkins et al. v. City of Jennings, 15-cv-252-CEJ (E.D. Mo. 2015, settlement approved in 2016); Fant et al. v. City of Ferguson, 15-cv-253AGF (E.D. Mo. 2015); Thomas et al. v. St. Ann et al., 4:16-cv-1302 (E.D. Mo. 2016); Powell v. City of St. Ann 4:15-cv-840 (E.D. Mo. 2015, settlement approved in 2018 ); Pierce v. City of Velda City, 4:15-CV-570 (E.D. Mo. 2015, settlement
2

Case 2:20-cv-11094-MAG-EAS ECF No. 5-3 filed 05/04/20 PageID.586 Page 4 of 4
approved in 2015); White v. City of Pine Lawn, 14SL-CC04194 (St. Louis Co. Cir. Ct., Dec. 2014); Pruitt v. City of Wellston, 14SL-CC04192 (St. Louis Co. Cir. Ct., Dec. 2014); Lampkin v. City of Jennings, 14SL-CC04207 (St. Louis Co. Cir. Ct., Dec. 2014); Wann v. City of St. Louis, 1422-CC10272 (St. Louis City Cir. Ct., Dec. 2014, settlement approved in 2015); Reed v. City of Ferguson, 14SL-CC04195 (St. Louis Co. Cir. Ct., Dec. 2014, settlement approved in 2020); Eldridge v. City of St. John, 15SL-00456 (St. Louis Co. Cir. Ct., Feb. 2015, settlement approved in 2018); and Watkins v. City of Florissant, 16SL-CC00165 (St. Louis Co. Cir. Ct., Jan. 2016, Settlement approved in 2017), among others.
6. Ms. Santhanam is a staff attorney at the Justice Project and the Schoolhouse-to-Jailhouse track project at Advancement Project. Prior to joining Advancement Project, she was an associate at Arnold & Porter Kaye Scholer LLP working on complex commercial litigation matters. While at Arnold & Porter, she was exposed daily to federal litigation, including several class actions.
7. Advancement Project is prepared to contribute significant resources to litigating this case.
I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.

/s/ Thomas B. Harvey Thomas B. Harvey

4-15-2020 Date
3

Case 2:20-cv-11094-MAG-EAS ECF No. 5-4 filed 05/04/20 PageID.587 Page 1 of 3
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES RUSSELL, et al., individually and on behalf of all others similarly situated,
Plaintiffs, v.
WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as the Sheriff of Wayne County, et al.,
Defendants.
DECLARATION OF ALLISON L. KRIGER I, Allison L. Kriger, declare as follows:
1. I am in my seventh year as an Associate at LaRene & Kriger, P.L.C. and I am one of the Plaintiffs’ attorneys in this case. I submit this declaration in support of Plaintiffs’ Motion for Class Certification and the related requirements under Federal Rules of Civil Procedure 23(a)(4) and Rule 23(g).
2. LaRene & Kriger is a Detroit-based pre-eminent criminal defense and civil rights litigation firm with a long history of both complex trial and postconviction work in notable and challenging cases. I have represented and consulted with clients in pre-indictment investigations. My trial and post-conviction
1

Case 2:20-cv-11094-MAG-EAS ECF No. 5-4 filed 05/04/20 PageID.588 Page 2 of 3
experience includes capital and non-capital state and federal prosecutions for fraud and white-collar crimes, racketeering and conspiracy, public corruption, assault, robbery, homicide, drug trafficking or drug possession, theft and property crimes.
3. In September 2018, I was admitted to the Criminal Justice Act Panel Attorney Program.
4. I have argued before the Michigan Court of Appeals three times. 5. In addition to my criminal practice, I have civil litigation experience in federal and state actions relating to discrimination, police misconduct, wrongful prosecution, complex tort and public nuisance. 6. I also spent two years at Goodman & Hurwitz, PC, a Detroit-based litigation boutique representing victims of governmental misconduct arising under 42 U.S.C. § 1983. 7. N.C. Deday LaRene & Mark Kriger, the partners at my firm, are assisting our highly experienced co-counsel in litigating this case. Combined, Mr. LaRene and Mr. Kriger have 70 years of state and federal litigation and postconviction experience. They have handled cases in more than 20 states and United States District Courts in more than 25 districts and U.S. territories, and they have argued cases before seven of the twelve U.S. Circuit Courts of Appeals. 8. LaRene & Kriger is prepared to contribute significant attorney time supporting and assisting our co-counsel in litigating this case.
2

Case 2:20-cv-11094-MAG-EAS ECF No. 5-4 filed 05/04/20 PageID.589 Page 3 of 3
I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.

Dated: May 3, 2020

/s/ Allison L. Kriger Allison L. Kriger

3

Case 2:20-cv-11094-MAG-EAS ECF No. 5-5 filed 05/04/20 PageID.590 Page 1 of 3
DECLARATION OF ALEC KARAKATSANIS IN SUPPORT OF NAMED PETITIONERS/PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 1) My name is Alec Karakatsanis and, on behalf of Civil Rights Corps, I am one of the counsel for the named Petitioners/Plaintiff and the putative Class members in this case. I submit this Declaration in support of the motion for class action treatment. 2) I am the Founder and Executive Director of Civil Rights Corps, a non-profit civil rights organization based in Washington, D.C. 3) Prior to starting Civil Rights Corps, I was the Co-Founder of Equal Justice Under Law, a non-profit civil rights organization that was the inaugural organizational recipient of the Harvard Law School Public Service Venture Fund. Before that, I served as an attorney in the Special Litigation Division of the Public Defender Service for the District of Columbia, where I litigated constitutional civil rights claims and complex criminal law issues in federal and District of Columbia trial and appellate courts. Prior to that, I served as a law clerk for United States District Judge Myron Thompson in the United States District Court for the Middle District of Alabama and as an Assistant Federal Public Defender in the Middle District of Alabama. 4) Civil Rights Corps has conducted investigations and engaged in civil rights class action litigation challenging conditions of confinement in jails around the country during the COVID-19 pandemic. I have served as a lead counsel in the following related lawsuits: Mays v. Dart, No. 20 C 2134 (N.D. Ill. 2020) and Swain v. Junior, 1:20-cv-21457 (S.D. Fla. 2020). 5) This work is similar to, and an extension of, the work Civil Rights Corps have done over the past several years challenging unconstitutional pretrial detention practices around the country, as well as other unconstitutional aspects of state and local criminal legal systems.
1

Case 2:20-cv-11094-MAG-EAS ECF No. 5-5 filed 05/04/20 PageID.591 Page 2 of 3
6) I have been lead attorney in a number of constitutional civil rights class action lawsuits challenging municipal criminal policies and practices. A small sampling of these cases includes: ODonnell v. Harris County, 2017 WL 1542457 (Apr. 28, 2017); Jenkins et al. v. City of Jennings, 15-cv-252-CEJ (E.D. Mo. 2015); Fant et al. v. City of Ferguson, 15-cv-253-AGF (E.D. Mo. 2015); Jones on behalf of Varden v. City of Clanton, 2015 WL 5387219 (M.D. Ala. 2015); Pierce et al. v. City of Velda City, 2015 WL 10013006 (E.D. Mo. 2015); Walker v. City of Calhoun, --- F. Supp. 3d ---, 2016 WL 361612 (N.D. Ga. Jan. 28, 2016); Rodriguez v. Providence Community Corrections, Inc., --- F. Supp. 3d ---, 2015 WL 9239821 (M.D. Tenn. 2015); Cooper v. City of Dothan, 2015 WL 10013003 (M.D. Ala. 2015); Snow v. Lambert, 2015 WL 5071981 (M.D. La. 2015); Thompson v. City of Moss Point, 2015 WL 10322003 (S.D. Miss. 2015); Mitchell et al., v. City of Montgomery, 2014-cv-186 (M.D. Ala. 2014).
7) Those cases have resulted in consent decrees with numerous jurisdictions to change their policies and practices. Many other jurisdictions have worked with us and others to change their practices voluntarily in the wake of these cases. I have worked with legislators, judges, sheriffs, prosecutors, public defenders, Attorneys General, and community members to help identify problems with post-arrest systems and to design constitutional and effective solutions.
8) Civil Rights Corps has also assigned Akeeb Dami Animashaun to litigate this case. As an attorney with Civil Rights Corps and the American Civil Liberties Union, he has litigated (and served as lead counsel) on several civil rights class action lawsuits challenging unconstitutional policies and practices relating to state and local criminal legal systems. A sample of those cases includes: Briggs v. Montgomery, No. CV-18-2684-PHX-JAS (D. AZ. 2018); Daves v. Dallas County, No. 3:18-CV-0154-N (N.D. Tex 2018); Parga v. Board of County Commissioners of the County of Tulsa, No. 18-cv-298 (N.D. Okla. 2018).
2

Case 2:20-cv-11094-MAG-EAS ECF No. 5-5 filed 05/04/20 PageID.592 Page 3 of 3

9) Civil Rights Corps is prepared to contribute significant resources to litigating this case.
I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.

______________________________ Alec Karakatsanis

5-03-2019 Date

3

Case 2:20-cv-11094-MAG-EAS ECF No. 5-6 filed 05/04/20 PageID.593 Page 1 of 4
DECLARATION OF DESIREE M. FERGUSON IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
I, Desiree M. Ferguson, declare as follows: 1. I am the Legal Director / Senior Staff Attorney of the Detroit Justice Center,
and one of the Plaintiffs’ attorneys in this case. I submit this declaration in support of Plaintiffs’ Motion for Class Certification to demonstrate that the Detroit Justice Center’s attorneys, in conjunction with co-counsel, satisfy the requirements of Rule 23(a)(4) and Rule 23(g). 2. Detroit Justice Center (“DJC”) is a non-profit social justice law firm established in 2018 that works alongside communities to create economic opportunities, transform the justice system, and promote equitable and just cities. DJC’s Legal Services Practice (“LSP”) has grown rapidly to meet the needs of our growing client base. Our LSP attorneys provide free legal services to individuals at both ends of the legal system—from pre-trial to re-entry legal services—to prevent people from entering or returning to jail or prison. Our mission is to remove legal barriers that preclude people from remaining stable and productive members of society. Legal matters include: driver’s license restoration; warrants for low-level offenses; court fines and fees reduction; traffic tickets;

Case 2:20-cv-11094-MAG-EAS ECF No. 5-6 filed 05/04/20 PageID.594 Page 2 of 4
guardianship and custody matters; child support debt discharge; problems with identification or social security numbers, and more. In addition to serving over 750 individuals, DJC’s LSP has established more than a dozen referral partnerships with local community and grassroots activist organizations. The DJC team has become a leading source of expertise for how to transform Michigan’s criminal legal system. DJC has filed federal litigation, written comprehensive reports on the factors driving incarceration in Detroit, worked with elected officials to promote legislation and policy, and educated the public on issues related to incarceration and racial justice. 3. As Legal Director, Ms. Ferguson will lead DJC’s involvement with this case, and DJC is prepared to commit significant resources and assistance to this litigation, which may include conducting factual investigation; communicating with the Plaintiffs, fact witnesses and expert witnesses; educating the public; performing legal research; and working collaboratively with co-counsel to develop strategy.

Case 2:20-cv-11094-MAG-EAS ECF No. 5-6 filed 05/04/20 PageID.595 Page 3 of 4
4. Ms. Ferguson graduated from the University of Michigan Law School in 1982. During her tenures at Farmworker Legal Services, Wayne County Neighborhood Legal Services’ Law Reform Project, and Michigan Legal Services, Ms. Ferguson was part of legal teams that conducted major impact litigation, including class action litigation, in the areas of worker’s rights, immigration law, public benefits and housing. Prior to joining DJC in 2018, she worked for 27 years at the Michigan State Appellate Defender Office, where she litigated hundreds of criminal defense appeals for indigent people in all levels of state and federal courts. She also taught a Criminal Appellate Advocacy Clinic at University of Detroit Mercy School of Law, Wayne State University Law School and the University of Michigan Law School. She co-authored a Brief of Amicus Curiae on behalf of the National Conference of Black Lawyers in the Supreme Court of the United States in Gratz v Bollinger, supporting the University of Michigan’s affirmative action educational programs. Since joining DJC, Ms. Ferguson has worked on one major federal lawsuit.
5. Dr. Amanda Alexander is the founding Executive Director of DJC and a Senior Research Scholar at the University of Michigan Law School. Prior to founding DJC, Dr. Alexander directed the Prison & Family Justice Project at Michigan Law School as a Soros Justice Fellow. In

Case 2:20-cv-11094-MAG-EAS ECF No. 5-6 filed 05/04/20 PageID.596 Page 4 of 4
2019, she was appointed to the Michigan Joint Task Force on Jail and Pretrial Incarceration, a 21-member body tasked with making recommendations to safely reduce Michigan’s jail population. Dr. Alexander worked on DJC’s previous federal litigation and has also served as attorney for amici curiae in federal litigation.
I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge.
/s/ Desiree M. Ferguson Desiree M. Ferguson May 3, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 5-7 filed 05/04/20 PageID.597 Page 1 of 3
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES RUSSELL, et al., individually and on behalf of all others similarly situated,
Plaintiffs, v.
WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as the Sheriff of Wayne County, et al.,
Defendants.
DECLARATION OF MARTIN L. SAAD I, Martin L. Saad, declare as follows:
1. I am a Partner at Venable LLP and one of the Plaintiffs’ attorneys in this case. I submit this declaration in support of Plaintiffs’ Motion for Class Certification and the related requirements under Federal Rules of Civil Procedure 23(a)(4) and Rule 23(g).
2. Venable LLP is an American Lawyer Global 100 law firm headquartered in Washington, DC that serves as primary counsel to a worldwide clientele of large and mid-sized organizations, nonprofits, high-net-worth entrepreneurs, and other individuals. With more than 850 professionals across the
1

Case 2:20-cv-11094-MAG-EAS ECF No. 5-7 filed 05/04/20 PageID.598 Page 2 of 3
country, including California, Delaware, Maryland, New York, Virginia, and Washington, DC, the firm advances its clients’ objectives in the U.S. and around the globe. Venable advises clients on a broad range of business and regulatory law, legislative affairs, complex litigation, and the full range of intellectual property disciplines. For the past decade, Venable attorneys have collectively logged, on average, approximately 23,000 hours per year firm-wide representing a wide range of pro bono clients, including in civil rights matters.
3. Several Venable attorneys are assisting our highly experienced cocounsel in litigating this case thus far: myself, Emily Wilson, Khary Anderson, Christopher Moran, Sheena Thomas, and Belle Borovik. Venable paralegal Linda Lowry is also assisting on the matter.
4. I practice in Venable’s Washington, DC office and have over 20 years of civil litigation experience, primarily in federal court cases relating to intellectual property, but also including class action matters. Ms. Wilson is a third-year associate in Venable’s Baltimore office practicing commercial litigation. She has experience litigating class action matters and has criminal practice experience representing juveniles in D.C. Superior Court and adults in the U.S. District Court for the Eastern District of Virginia in partnership with the Federal Public Defender’s office. Mr. Anderson is a first-year commercial litigation associate in the Washington, DC office with experience on pro bono matters, including an
2

Case 2:20-cv-11094-MAG-EAS ECF No. 5-7 filed 05/04/20 PageID.599 Page 3 of 3
appeal he argued before a three-judge panel of the U.S. Court of Appeals for the Third Circuit during his third-year of law school. Mr. Moran is a fifth-year associate in the firm’s tax and wealth planning group with pro bono experience representing incarcerated individuals seeking to challenge the conditions of their confinement. Ms. Thomas is a fifth-year associate working in the firm’s ecommerce, privacy, and cybersecurity group. Ms. Borovik is a law clerk in the firm’s San Francisco office.
6. Venable is prepared to contribute significant attorney time, paralegal assistance, and other resources supporting and assisting our co-counsel in litigating this case.

I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.

Dated: May 3, 2020

/s/ Martin L. Saad Martin L. Saad

3

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.356 Page 1 of 53

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

CHARLES RUSSELL; CHRISTOPHER HUBBARD; HARRY WHITE; CARL SMELLEY; SHANE CARLINE; and COURTNEY WHITE, individually and on behalf of all others similarly situated,

Case No. 2:20-cv-11094-MEGEAS

Plaintiffs,

v.

WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as Sheriff of Oakland County; DANIEL PFANNES, in his official capacity as the Undersheriff for the Wayne County Sheriff’s Office; ROBERT DUNLAP, in his official capacity as Chief of Jails and Court Operations; JAMES E. DAVIS, in his official capacity as Deputy Chief of Jail Operations,

Defendants.

PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Plaintiffs hereby move this Court, pursuant to Federal Rule of Civil Procedure

65, for a temporary restraining order. The grounds for this motion are set forth in

the Brief in Support of Plaintiffs’ Motion for Temporary Restraining Order and

Preliminary Injunction, filed herewith, and the accompanying Declarations and 1

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.357 Page 2 of 53
Exhibits in support.
Because of the imminent and grave risk of serious illness and death from
continued confinement at the Wayne County Jail (“Jail”), Plaintiffs request that this
Court consider this motion on an emergency basis and that the Court grant a
temporary restraining order requiring the release of members of the Medically
Vulnerable Subclass pending briefing and argument.
Plaintiffs further request that the Court issue a temporary restraining order
requiring Defendants to immediately undertake the following minimum measures
to improve the hygiene and safety at the Wayne County Jail:
1) Effectively communicate to all people incarcerated, including low-literacy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
2) Provide adequate spacing of six feet or more between people incarcerated, so that social distancing can be accomplished;
3) Ensure that each incarcerated person 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, and (2) an adequate supply of disinfectant hand wipes or other products effective against the virus that causes COVID-19 for daily cleanings;
4) Ensure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol;
5) Provide an adequate stock of daily cleaning supplies, such as sponges, brushes, disinfectant hand wipes, and/or disinfectant products effective against the virus that causes COVID-19;
6) Provide sufficient disinfecting supplies, free of charge, so incarcerated people
2

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.358 Page 3 of 53
can clean high-touch areas or items (including, but not limited to, telephones, tablets, tables, bathrooms, seating, and door handles) between each use;
7) Provide daily access to clean showers and clean laundry, including clean personal towels and washrags for each shower;
8) Require that all Jail staff wear personal protective equipment, including masks and gloves, when interacting with any person or when touching surfaces in cells or common areas;
9) Require that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas;
10) Take each incarcerated person’s temperature daily (with a functioning, properly operated, and sanitized thermometer) to identify potential COVID-19 Infections.
11) Conduct immediate testing for anyone displaying known symptoms of COVID-19 and who has potentially been exposed to infection;
12) Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video calls with loved ones, communications with counsel, and personal property;
13) Respond to all emergency (as defined by the medical community) requests for medical attention within an hour;
14) Waive all medical co-pays for those experiencing COVID-19-related symptoms; and
15) Cease and desist retaliatory disciplinary action in response to (a) incarcerated persons’ requests for medical attention and basic, necessary protections, and/or (b) efforts by incarcerated persons to publicize unsafe and lifethreatening conditions inside the Jail.
In addition, Plaintiffs request that this Court immediately order Defendants to
provide Plaintiffs and the Court with the following lists in preparation for any
3

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.359 Page 4 of 53
hearing on Plaintiffs’ Motion for Temporary Restraining Order: 1) All individuals currently detained in the Jail, including their location, charge,
bond or sentence status, and any reported comorbidities that would place them within the Medically Vulnerable Subclass, as defined in paragraph 110(c) of Plaintiffs’ Complaint; and 2) Any individuals with reported comorbidities that would place them within the Medically Vulnerable Subclass whom Defendants object to releasing and the basis for that objection. Lastly, Plaintiffs request that the Court 1) set an evidentiary hearing to examine allegations in Plaintiffs’ emergency motion for a Temporary Restraining Order and Preliminary Injunction; 2) set a time and date for a hearing in which the Court will resolve any disputes about whether certain listed individuals are entitled to relief; 3) order an inspection of the Jail facilities by a medical expert in infectious disease who can report to the Court about the conditions at issue and answer critical questions at the hearing; and 4) grant leave to conduct limited expedited discovery, about which the parties can confer. Local Rule 7.1(a) requires Plaintiffs to ascertain whether this motion will be opposed. Because this motion is being filed contemporaneously with the complaint, there is not yet an attorney of record for Defendants in this case. Plaintiffs’ counsel emailed and left a voicemail with the Wayne County Corporation Counsel’s office
4

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.360 Page 5 of 53
and the Wayne County Sheriff’s Office counsel to explain the nature of this motion and its legal basis. Plaintiffs’ counsel was unable to reach Wayne County Corporation Counsel. David Melton, on behalf of the Wayne County Sheriff’s Office, indicated that he does not concur in the motion.
Plaintiffs’ counsel is prepared to appear by telephone immediately. Each day that passes risks Plaintiffs’ lives. This case cannot wait.

Dated: May 4, 2020

Respectfully submitted,

/s/Ashley A. Carter Ashley A. Carter (DC Bar No. 979793) Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (MI Bar No. P76789; DC Bar No. 1028529) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 Tel: (202) 728-9557 tharvey@advancementproject.org acarter@advancementproject.org mnemeth@advancementproject.org

/s/Martin L. Saad Martin L. Saad (DC Bar No. 462096)* Sheena R. Thomas (DC Bar No. 1020290)* Khary J. Anderson (DC Bar No. 1671197)* VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 Tel: (202) 344-4000 MLSaad@Venable.com SRThomas@Venable.com KJAnderson@Venable.com

/s/Allison L. Kriger Allison L. Kriger (MI Bar No. P76364) LARENE & KRIGER, P.L.C. 645 Griswold Street, Suite 1717 Detroit, Michigan 48226 Tel: (313) 967-0100 allison.kriger@gmail.com
/s/Alec Karakatsanis

/s/Christopher N. Moran Christopher N. Moran (MD Bar No. 1512160132)* Emily J. Wilson (MD Bar No. 1801040016)* VENABLE LLP 750 E. Pratt Street, Ste. 900 Baltimore, MD 21202 Tel: (410) 244-7400 CNMoran@Venable.com

5

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.361 Page 6 of 53

Alec Karakatsanis (DC Bar No. 999294)* A. Dami Animashaun (DC Bar No. 1614199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 Tel: (202) 894-6126 alec@civilrightscorps.org dami@civilrightscorps.org

EJWilson@Venable.com
/s/Desiree M. Ferguson Desiree M. Ferguson (MI Bar No. P34904) Amanda Alexander (MI Bar No. P77795)* DETROIT JUSTICE CENTER 1420 Washington Blvd., Suite 301 Detroit, MI 48226 Tel: (313) 736 -5957 dferguson@detroitjustice.org aalexander@detroitjustice.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

6

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.362 Page 7 of 53

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

CHARLES RUSSELL; CHRISTOPHER HUBBARD; HARRY WHITE; CARL SMELLEY; SHANE CARLINE; and COURTNEY WHITE, individually and on behalf of all others similarly situated,

Case No. X

Plaintiffs,

v.

WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as Sheriff of Oakland County; DANIEL PFANNES, in his official capacity as the Undersheriff for the Wayne County Sheriff’s Office; ROBERT DUNLAP, in his official capacity as Chief of Jails and Court Operations; JAMES E. DAVIS, in his official capacity as Deputy Chief of Jail Operations,

Defendants.

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

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.363 Page 8 of 53
TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
BACKGROUND AND FACTS ................................................................................2 A. The Three Divisions of the Jail House Numerous People Who Are Currently at Risk of Contracting COVID-19..............................6
B. Defendants maintain dangerous conditions at the Jail by failing to practice critical social distancing techniques or properly sanitize high-contact Jail facilities. ..........................................................7
C. Defendants do not provide basic personal hygiene supplies to detainees. ...................................................................................11
D. Jail staff do not consistently wear protective gear, putting detainees further at risk. ............................................................................12
E. Defendants are failing to properly treat and quarantine detainees who test positive. ..............................................................................13
F. Defendants are failing to provide adequate and timely medical care. 15
G. Defendants are failing to test detainees who are symptomatic or who have been in close proximity to individuals who have tested positive. .....................................................................................17
H. Defendants fail to provide information about COVID-19 and its spread, instead misleading detainees to believe they are safer within the Jail. ...........................................................................19
I. Defendants do not properly screen individuals entering the Jail, exacerbating the potential for viruses to infiltrate the Jail........20
ARGUMENT ...........................................................................................................22 A. Plaintiffs are objectively at a substantial risk of harm. .......................25
B. Defendants have acted and are continuing to act with subjective indifference towards Plaintiffs’ substantial risk of harm..........29
CONCLUSION ........................................................................................................41
ii

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.364 Page 9 of 53
TABLE OF AUTHORITIES
Cases ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438 (6th Cir. 2003) ........................37 Bell v. Wolfish, 441 U.S. 520 (1979) .......................................................................26 Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000).....................................................25 Brown v. Plata, 563 U.S. 493, 531-32 (2011) .........................................................26 Cameron v. Bouchard, No. 20-cv-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17,
2020). ....................................................................................................................38 Castillo v. Barr, __ F. Supp. 3d __, CV 20-00605 TJH (AFMx), 2020 WL
1502864 (C.D. Cal. Mar. 27, 2020)......................................................................38 City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750 (E.D. Mich. 2008)....23 City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983) ............................... 24, 26 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989) ...............26 Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016)...................................39 Estelle v. Gamble, 429 U.S. 97 (1976) ....................................................... 24, 25, 26 Farmer v. Brennan, 511 U.S. 825 (1994) ............................................. 24, 25, 27, 33 Flanory v. Bonn, 604 F.3d 249 (6th Cir. 2010) .......................................................27 G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th Cir.
1994) .....................................................................................................................39 Helling v. McKinney, 509 U.S. 25 (1993) .............................................. 27, 28, 30, 37 Hope v. Pelzer, 536 U.S. 730 (2002) .......................................................................30 Hopper v. Phil Plummer, 887 F.3d 744, 752 (6th Cir. 2018)..................................25 In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir. 1985).....................................23 Johnson v. Operation Get Down, Inc., No. 11-15487, 2014 WL 3752481 (E.D.
Mich. 2014) ..........................................................................................................27 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) .........................................................27 Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466 (2015) ..................... 25, 26 Lee v. Birkett, No. 09–cv–10723, 2010 WL 1131485 (E.D. Mich. Feb. 18, 2010) 28 Malam v. Adducci, __ F. Supp. 3d __, 2020 WL 1672662 (E.D. Mich. Apr. 6,
2020) .....................................................................................................................36 Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008) ..................23 Richko v. Wayne Cty., Mich., 819 F.3d 907 (6th Cir. 2016)............................. 24, 26 Richmond v. Huq, 885 F.3d 928 (6th Cir. 2018)......................................................30 Thakker v. Doll, __ F. Supp. 3d __, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020)33 United States v. Garlock, No. 18-Cr-00418, 2020 WL 1439980 (N.D. Cal. Mar. 25,
2020) .....................................................................................................................38 Wilson v. Gordon, 822 F.3d 934 (6th Cir. 2016) .....................................................38 Wilson v. Seiter, 501 U.S. 294 (1991) .............................................................. 26, 30

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.365 Page 10 of 53
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).................................23 Youngberg v. Romeo, 457 U.S. 307 (1982) .............................................................26 Zhang v. Barr, No. ED CV 20-00331-AB, 2020 WL 1502607 (C.D. Cal. Mar. 27,
2020) .....................................................................................................................38 Statutes 28 U.S.C. § 2241 ..................................................................................................2, 23 42 U.S.C. § 1983 ..................................................................................................2, 23
ii

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.366 Page 11 of 53
INTRODUCTION An outbreak of the novel coronavirus is occurring in the Wayne County Jail (“Jail”), where Defendants confine approximately 850 human beings in lifethreatening conditions. Plaintiffs sleep as close as one foot from each other, have limited or no access to hygiene products and cleaning supplies, are not properly quarantined when sick, and, upon information and belief, do not have access to medical care or equipment anywhere near sufficient in quality or volume to respond to a COVID-19 outbreak when—not if—it occurs. Many people confined at the Jail are medically vulnerable to the COVID-19 disease, and their lives are at risk. As of April 24, 2020, COVID-19 has taken the lives of 2 contracted Jail physicians and 2 deputies, and 177 Wayne County Sherriff’s Office employees and 13 detainees have contracted the disease. See Compl. ¶ 4. Because social distancing cannot be meaningfully implemented at the current population levels and the Jail has failed to implement additional basic mitigating measures, this number will multiply exponentially at a rapid pace. See Compl. Ex. 14, Declaration of Dr. Adam Lauring (“Lauring Decl.”) ¶¶10, 30-39, 45. As COVID-19 spreads inside and outside the Jail, time is running out to save Plaintiffs’ lives and to prevent the Jail from becoming an epicenter of community infection. Plaintiffs seek two forms of immediate relief. First, Plaintiffs seek class-wide relief requiring Defendants to take critical steps inside the Jail to
1

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.367 Page 12 of 53
safeguard people who, due to the nature of their confinement, are at serious risk of infection, illness, or death as the result of a global pandemic. Second, Plaintiffs seek immediate release from confinement for a subclass of people who, because of age or preexisting medical conditions, are at particularly grave risk of death from COVID-19—a risk that cannot be sufficiently mitigated by safeguards or preventive measures in the Jail. This relief is appropriate either through 28 U.S.C. § 2241 or, in the alternative, through 42 U.S.C. § 1983.
This extraordinary moment requires the Court’s immediate intervention. The “horizon of risk for COVID-19 in this facility is a matter of days, not weeks.” Lauring Decl. ¶ 45. Immediate relief is also in the public interest. A rapid outbreak within the Jail population would drain the Detroit metropolitan area of limited healthcare resources, including ventilators. For these reasons, and for the reasons explained further below, the Court should grant Plaintiffs’ motion for temporary restraining order.
BACKGROUND AND FACTS I. The COVID-19 Crisis is a Health Crisis Unmatched in Living Memory.
We are in the midst of an unprecedented public health emergency. See Compl. ¶ 29. The number of people infected by COVID-19 has grown exponentially in this country since the first case was identified in January. Id. ¶ 32. By March 11, 2020, the World Health Organization defined the outbreak as a global pandemic. Id. ¶ 29.
2

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.368 Page 13 of 53
As of May 3, over 1,122,000 people have been diagnosed with COVID-19 in the United States, with over 65,000 deaths confirmed.1 Without effective public health
interventions, the Centers for Disease Control and Prevention (“CDC”) project that as many as 2.2 million Americans will die. Id. ¶ 32. This number is sure to rise if conditions in this country’s jails and prisons are not addressed rapidly.2
COVID-19 is a highly contagious virus that can severely damage lung tissue, impede cardiac functions (causing heart failure), and permanently harm other organs. Id. ¶ 33. The experience of a severe case of COVID-19 has been compared to “drowning in [one’s] own blood.” Id. ¶ 34. Approximately 20% of people infected
experience life-threatening complications; between 1% and 3.4% die. Id. ¶ 36. The fatality rate is about ten times higher than a severe seasonal influenza, even in countries with highly effective health care systems. Id. Complications manifest at
an alarming pace, and the required levels of medical support—which include highly specialized equipment like ventilators as well as an entire team of care providers—
1 See Centers for Disease Control & Prevention, Coronavirus 2019: Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 4, 2020). 2 See Lisa Freeland, David Patton, & Jon Sands, We’ll see many more covid-19 deaths in prisons if Barr and Congress don’t act now, Wash. Post (Apr. 6, 2020), https://www.washingtonpost.com/opinions/2020/04/06/covid-19s-threat-prisonsargues-releasing-at-risk-offenders/; Udi Ofer & Lucia Tian, New Model Shows Reducing Jail Population will Lower COVID-19 Death Toll for All of Us, ACLU (Apr. 22, 2020), https://www.aclu.org/news/smart-justice/new-model-showsreducing-jail-population-will-lower-covid-19-death-toll-for-all-of-us/.
3

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.369 Page 14 of 53
have been rapidly overwhelming hospitals nationally and globally. Id. ¶ 35. Although everyone is at risk of contracting COVID-19, some populations are
at higher risk for severe health outcomes. Certain underlying medical conditions— including lung disease, asthma, chronic obstructive pulmonary disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, strokes, and pregnancy—increase the risk for individuals of any age. Id. ¶ 33. People over the age of fifty also face greater chances of serious illness or death. Id. The only known effective measure to mitigate these more extreme risks is to prevent infection in the first instance. Id. ¶ 37.
Accordingly, public health experts and officials urge “social distancing”— isolating oneself from other people at a minimum distance of six feet—as well as frequent hand-washing, use of hand sanitizer, and frequent cleaning and disinfecting of high touch surfaces and objects. Id. These measures are particularly important in jail, a congregate setting that can rapidly become a “public health disaster unfolding before our eyes.”3 II. A COVID-19 Jail Outbreak is an Extreme Threat to Public Health.
People incarcerated in jail are at heightened risk of infection and death from
3 Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times, Mar. 30, 2020, https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html.
4

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.370 Page 15 of 53
COVID-19. Compl. ¶ 43 (citing the CDC’s guidance for detention facilities). According to public health experts, “the risk posed by COVID-19 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.” Compl. ¶ 40; see also Compl. Ex. 2, Declaration of Dr. Jaimie Meyer (“Meyer Decl.”) ¶ 7; Lauring Decl. ¶ 41. This is due to a number of factors, including forced proximity of detained individuals, their inability to protect themselves through social distancing, lack of medical and hygiene supplies, heavy reliance on outside hospitals for serious medical care, forced labor of incarcerated people in cleaning the facilities with insufficient supplies, constant cycling of people through the jails, and inadequate medical care within the jail itself. Compl. ¶ 41.
The growing devastation in jails around the country is a harbinger for what awaits Wayne County. In New York City, less than a month from the detection of the first case at Rikers Island, more than 700 people—including more than 400 jail staff—have tested positive, and two jail officers have died. Id. ¶ 47. The COVID-19 infection rate in New York City’s jails is far higher than the rates for the most infected regions of the world. Id. Wayne County is only weeks away from a similar explosion.
An outbreak cannot be contained inside the Jail. What happens to the people
5

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.371 Page 16 of 53
trapped inside this “ticking time bomb”4 affects others who cycle through, including correctional and medical staff. Compl. ¶ 38; Compl. Ex. 1 (“Stern Decl.”) ¶11. The outbreak then spreads to staff’s families and the community. Stern Decl. ¶ 11. Jail outbreaks can quickly overwhelm regional hospitals, making resources unavailable to treat others suffering from COVID-19 or unrelated life-threatening conditions like heart attacks. Compl. ¶ 51; Stern Decl. ¶ 11. As courts have noted, “[t]he more people we crowd into [a] facility, the more we’re increasing the risk to the community.” United States v. Stephens, __ F. Supp. 3d __, No. 15-CR-95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (internal citation omitted). III. Defendants Are Not Taking Necessary Steps to Prevent A Widespread
Outbreak in the Jail. A. The Three Divisions of the Jail House Numerous People Who Are
Currently at Risk of Contracting COVID-19. Division I (the “New Jail”) and Division II (the “Old Jail”) house over 600 detainees, many of whom are members of the Pre-Trial Subclass. Members of this Subclass consistently travel back and forth between Division I, Division II, and the Wayne County Third Circuit Court for arraignment and other pre-trial proceedings. Division III (the “Dickerson Facility”) houses over 430 detainees, and many of these men are part of the Post-Trial Subclass. Some members of this Subclass are serving
4 St. Louis Univ., “Ticking Time Bomb,” Prisons Unprepared For Flu Pandemic, ScienceDaily (2006), https://www.sciencedaily.com/releases/2006/09/060915012301.htm.
6

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.372 Page 17 of 53
work release sentences, and they leave and return to the Jail each day and night. Ex. 1 (“C. White Decl.”) ¶ 11. The laundry services for all three Divisions occurs in Division III.
Aggressive measures are required to stop the spread of germs between and within Divisions, as an outbreak of COVID-19 in one part of one Division would all but guarantee a spread of the virus to other detainees and staff. This risk is not hypothetical given the number of Jail staff and detainees who have already contracted COVID-19 and those Jail employees that have already died. Defendants are thus well aware of COVID-19 and its grave risks, but they have failed to undertake the necessary measures to protect detainees from contracting the virus, instead directly placing detainees in harm’s way.
B. Defendants maintain dangerous conditions at the Jail by failing to practice critical social distancing techniques or properly sanitize high-contact Jail facilities.
Defendants are not taking basic measures to maintain safe, hygienic conditions at the Jail and are instead creating and perpetuating a dangerous, unsanitary environment that is putting detainees at risk. Within each Division at the Jail, social distancing is impossible. Detainees are confined in cells that are approximately 8 feet by 15 feet and are shared with up to four other people, so it is impossible for detainees to stay more than three feet away from each other. Ex. 2 (“Mathews Decl.”) ¶ 6; C. White Decl. ¶ 3; Ex. 3 (“Nickel Decl.”) ¶ 5. In the four
7

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.373 Page 18 of 53
person-cells, there is one bed on each wall so that each bed is only two to three feet from the others. Mathews Decl. ¶ 6. In other cells, detainees sleep in bunk beds where the top bunk is only a few feet higher than the bottom bunk. Nickel Decl. ¶ 5. Some of the cell walls in Division I, at least, are covered with urine, feces, and vomit. See Ex. 4 (“Kelly Decl.”) ¶ 15.
Detainees can eat only in common areas, and deputies often force detainees to sit together at tables that are less than six feet apart, with four to five men per table. C. White Decl. ¶¶ 3, 5. At mealtimes, detainees can be no more than a few feet from one another and must remove their masks to eat, if they have been provided masks at all. Ex. 5 (“Carline Decl.”) ¶ 7; Mathews Decl. ¶ 8; Ex. 6 (“Smelley Decl.”) ¶ 7; C. White Decl. ¶¶ 3, 5; Nickel Decl. ¶ 6; Ex. 7 (“Blanks Decl.”) ¶ 7; Ex. 8 (“Pearson Decl.”) ¶ 6. Most deputies serving food are not wearing masks. Blanks Decl. ¶ 7. Cutlery is handed out in a single bag that is passed between detainees, none of whom have gloves. Nickel Decl. ¶ 9. In addition, detainees must share tablets, phones, and benches when eating or watching TV. Smelley Decl. ¶ 6; C. White Decl. ¶ 3; Nickel Decl. ¶ 6.
The bathrooms and showers the detainees share are themselves unsanitary or often not even functioning. Some sink water is tainted with fecal matter because the sink water is connected to the toilet water. Blanks Decl. ¶ 4, Nickel Decl. ¶ 10. Some sink basins have mold, others are crawling with maggots and bugs, and others
8

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.374 Page 19 of 53
do not function at all. Blanks Decl. ¶ 5; Nickel Decl. ¶ 10. Some showers are unusable, requiring detainees to take “bird baths” instead. Carline Decl. ¶ 6; Ex. 9 (“Russell Decl.”) ¶ 9. The showers that do work are “filthy.” Nickel Decl. ¶ 10. Detainees must share showers, and the shower area is not large enough for detainees to have at least six feet of space between each other. Id. ¶ 11.
Detainees with serious underlying medical conditions and other concurrent illnesses, like pneumonia, are housed in general population units such as these where social distancing is impossible. Mathews Decl. ¶ 3; Russell Decl. ¶ 8. Charles Russell, who has stage three prostate cancer5 and diabetes, lives in a general population unit with 25 other detainees; they are all forced to share three working showers and four working toilets. Id. ¶ 8-9. Jail staff continue to bring new detainees into the pod that could put Mr. Russell at risk. Id. ¶ 8.
Further, Defendants’ efforts to mitigate the spread of COVID-19 infection by cleaning shared spaces and surfaces are woefully inadequate. Common surfaces that are touched frequently are not cleaned regularly; even when they are cleaned, disinfectant sufficient to kill coronavirus is often not used. Smelley Decl. ¶ 8-10.
5 Cancer patients have shown a higher risk of death or severe complications from COVID-19 compared with those without cancer. See Laurie McGinley, Patients with certain kinds of cancers are nearly three times as likely to die of covid-19, study says, Wash. Post (Apr. 28, 2020), https://www.washingtonpost.com/health/2020/04/28/coronavirus-cancerdeathrates/.
9

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.375 Page 20 of 53
Showers are cleaned only on a weekly basis, if at all. Smelley Decl. ¶ 10. Phones and tablets, shared by all detainees on a given floor to communicate with loved ones or attorneys, are cleaned once a day, at most. Smelley Decl. ¶ 10; C. White Decl. ¶ 6; Kelly Decl. ¶ 31. On some units, detainees attempt to clean the phones and tablets themselves using generic cleaning liquids, but detainees on other units have no way of doing so. Russell Decl. ¶ 10; Carline Decl. ¶ 10. Towels, clothes, and bedding are not laundered frequently, either; detainees sometimes wait weeks to receive clean uniforms or blankets. Carline Decl. ¶ 12.
Plaintiffs are prevented from adequately cleaning any of these surfaces and spaces more frequently themselves because the Jail controls access to basic cleaning supplies, like mops and buckets, and provides them to detainees, at most, only once every morning. Carline Decl. ¶ 9; Kelly Decl. ¶ 30; Blanks Decl. ¶ 11. Detainees also do not have any bleach to clean these shared surfaces, even though the Jail staff has such chemicals available for this purpose. Russell Decl. ¶ 14. Deputies keep bleach in a secluded area that only deputies can access. Id. Deputies use Lysol, PineSol, and other name-brand cleaning supplies to clean their own areas, but the detainees are forced to use a different cleaner, called “Simple Green,” which does not protect against coronavirus. Ex. 10 (“Hubbard Decl.”) ¶ 6, 8; Pearson Decl. ¶ 15, 18, 19. Indeed, Simple Green’s own website states: “Simple Green All-Purpose
10

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.376 Page 21 of 53
Cleaner is not a disinfectant and will not kill bacteria or viruses.”6 C. Defendants do not provide basic personal hygiene supplies to detainees. In addition to the deplorable conditions they maintain inside the Jail,
Defendants do not provide detainees with enough of the basic hygiene supplies that are critical to preventing the spread of COVID-19. Although the CDC advises that handwashing is one of the best ways to protect against COVID-19,7 the Jail does not supply enough soap for detainees to regularly wash their hands. Defendants provide Plaintiffs and their fellow detainees with only two or three hotel-sized bars of soap per week, which Plaintiffs must use to wash their clothes, hands, and bodies. Carline Decl. ¶ 11; Smelley Decl. ¶ 11. Defendants do not provide additional soap when a detainee runs out; the detainee’s only option is to ask another detainee for soap or purchase it from commissary, if they have funds in their account. Carline Decl. ¶ 11; Smelley Decl. ¶ 11. Defendants do not otherwise provide Plaintiffs or putative class members with supplies for hand sanitization. Carline Decl. ¶ 11.
6 See Simple Green, Coronavirus Frequently Asked Questions (Mar. 11, 2020), https://simplegreen.com/news-and-media/coronavirus-faq/. The CDC has not identified Simple Green as one of the EPA-registered disinfectants effective against the virus in its Interim Guidance on Management of Coronavirus in Correctional and Detention Facilities. See Compl. Ex. 7 at 7, 9, 18. 7 See Centers for Disease Control & Prevention, “When and How to Wash Your Hands,” https://www.cdc.gov/handwashing/when-how-handwashing.html (last visited Apr. 27, 2020).
11

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.377 Page 22 of 53
D. Jail staff do not consistently wear protective gear, putting detainees further at risk.
Jail staff fail to consistently wear appropriate protective gear while inside the Jail—a stunning fact given that two deputies and two physicians working in the Jail have already died from COVID-19, and nearly 180 employees from the Wayne County Sheriff’s Office have already tested positive. C. White Decl. ¶ 9; Kelly Decl. ¶ 32; Carline Decl. ¶ 11; Pearson Decl. ¶ 13. Commander Donafay Collins, an employee of the Sheriff’s Office and one of the staff fatalities, was present on units with detainees right before he died of COVID-19.8 Smelley Decl. ¶ 14. Even the deputies who have been diagnosed with COVID-19 still do not consistently wear masks or gloves. Id.
Compounding these egregious practices by the guards, Defendants have also denied detainees access to sufficient personal protective equipment. Though some detainees have been provided blue cloth masks, those masks are now weeks old. Mathews Decl. ¶ 11; C. White Decl. ¶ 9; Pearson Decl. ¶ 11; Ex. 11 (“Malec Decl.”) ¶ 7 (explaining that these masks are “like those you see at the dentist’s office.”). Other detainees were given paper masks that they were expected to wear for two weeks, even though the masks were so cheap that they tore once they were worn.
8 Wayne County Sheriff’s Commander Donafay Collins dies of COVID-19, WXYZ Detroit (Mar. 25, 2020), https://www.wxyz.com/news/coronavirus/wayne-countysheriffs-commander-donafay-collins-dies-of-covid-19.
12

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.378 Page 23 of 53
Ex. 12 (“H. White Decl.”) ¶ 4. Most of the detainees do not have gloves. Mathews Decl. ¶ 11; Hubbard Decl. ¶ 9.
E. Defendants are failing to properly treat and quarantine detainees who test positive.
Even though COVID-19 has already infiltrated the Jail, Defendants are not taking adequate measures to prevent the virus from spreading by quarantine and care for detainees who may be or are positive for COVID-19. Instead, Jail staff place these detainees in a makeshift and insufficient medical ward on another cell block without access to meaningful medical care. Examples of this careless practice are plentiful.
Detainee Mark Malec was housed in the same unit as Michael Meshinski, a former detainee who exhibited symptoms of COVID-19 in the facility and who died of the virus just two days after his release from the Jail in early April.9 Mr. Malec became seriously sick shortly after Mr. Meshinski’s release. Malec Decl. ¶ 9. He had a headache and a cold, was coughing up black phlegm, and was unable to taste anything for two weeks. Id. Despite his known proximity to Mr. Meshinski, serious symptoms, and numerous requests for medical attention, Mr. Malec was not tested for COVID-19 until April 20, 2020—over two weeks after Mr. Meshinski’s death.
9 See Charlie Leduff, Wayne County Jail Gave an Infected Inmate a Bus Pass Home. Now He’s Dead, Deadline Detroit (Apr. 7, 2020), https://www.deadlinedetroit.com/articles/24915/leduff_the_wayne_county_jail_ga ve_an_infected_inmate_a_bus_pass_home_now_he_s_dead.
13

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.379 Page 24 of 53
Id. ¶ 9. Mr. Malec tested positive for COVID-19, and he was placed into an 11-man
make-shift infirmary after receiving his test results. Id. Mr. Malec explained that,
in the unit:
[N]o one can come out of their cell, except for once a day. The Jail keeps bringing more sick people into the unit, so we keep getting exposed to the virus again, and I feel like I won’t ever get healthy. We are not in any kind of pressurized rooms. The air just passes freely from one cell to the other. The deputies hand out meals, which we eat in our cells. Some of them wear gloves and masks and some of them don’t. All of the detainees wear masks but not gloves, and we all share tablets, phones, and showers. They are cleaned with Simple Green after each use, but with disinfectant only once weekly.
Id. ¶ 9-10. Since being forced onto this “medical ward,” Mr. Malec has not seen a
doctor, and the Jail has provided him only Tylenol, Gatorade, and cough syrup.
Malec Decl. ¶ 11. Defendants’ conduct in this instance not only unreasonably
endangered Mr. Malec’s health, but it also put other detainees in direct danger of
exposure to the virus.
Davonte Velez began feeling ill on April 2, 2020. Ex. 13 (“Velez Decl.”) ¶ 3.
For five days, he consistently asked for medical treatment, all while experiencing
common symptoms of COVID-19, including coughing and shaking. Id. ¶ 4. After
five days, the Jail staff finally took Mr. Velez’s temperature, which was 103 degrees
Fahrenheit. Id. Mr. Velez, too, was taken to the Jail’s inadequate infirmary. Mr.
Velez describes his horrifying experience while recovering from COVID-19:
Being locked in a room for 23 hours per day without being able to talk to anyone is causing me and some of the other guys to have
14

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.380 Page 25 of 53
psychological problems. For 23 hours a day, I think about how I’m stuck in here with all of these sick people and I’m not getting better. When I try to ask the Jail staff about what’s going on, they don’t give me any answers. Id. ¶ 12. The Jail did not even inform Mr. Velez that he had tested positive for COVID-19 until two weeks later. Id. ¶ 10. Mr. Velez is still sick and has been sick for almost a month—since April 2, 2020, he has tested positive for the virus twice. Id. ¶¶ 10-11. F. Defendants are failing to provide adequate and timely medical care.
1. Defendants’ medical procedures are inadequate. In general, the process for obtaining medical attention—for COVID-19 symptoms or more routine medical care—is shockingly deficient. To request medical attention, detainees are required to fill out medical “kites”10 but may do so only once in the morning or once at night. Carline Decl. ¶ 17. The Jail takes anywhere from weeks to months to respond to a detainee’s kite, and sometimes, Jail staff never respond at all, or dismiss detainees’ request for medical care. Carline Decl. ¶ 17; Smelley Decl. ¶ 3; C. White Decl. ¶ 12-13; Nickel Decl. ¶ 3; H. White Decl. ¶ 9. Nurses distribute medication to detainees only twice a day, but they often bring detainees the wrong medication or fail to even bring any medication. Carline
10 A “kite” is a signed written request for medical attention that can be submitted once in the morning or once at night. Carline Decl. ¶ 17.
15

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.381 Page 26 of 53
Decl. ¶ 18. Nurses use and re-use the same cups to hand out medication to multiple detainees without any regard for which detainees may be exhibiting symptoms of COVID-19. Carline Decl. ¶ 18. And nurses admonish detainees for seeking medical care, sometimes even withholding kites from detainees so they cannot put in the request. Pearson Decl. ¶ 14. Individuals showing symptoms of COVID-19 are frequently given little more than Tylenol and sent back to their units. Pearson Decl. ¶ 17; Malec Decl. ¶ 7.
2. Defendants punish detainees who raise concerns about the lack of medical care or unsanitary conditions of confinement
Detainees who raise concerns about the lack of medical care or unsanitary conditions are punished. As a result, detainees are hesitant to even inform Jail staff that they may be feeling sick for fear that they will be disciplined. Smelley Decl. ¶ 4; Mathews Decl. ¶ 3.
Plaintiff Christopher Hubbard is diabetic and asthmatic, and he has had pneumonia at least four times. Hubbard Decl. ¶ 2. He is not receiving proper insulin or the right inhaler to treat his asthma, further exacerbating his already heightened risk for more serious complications from COVID-19—a risk that was even more concerning because Mr. Hubbard had been housed with Mr. Meshinski, the detainee who died from COVID-19 after his release. Id. ¶ 3. But after raising his concerns regarding his medical needs to an officer, Jail staff placed Mr. Hubbard in “the hole”—a solitary confinement wing of the Jail packed with detainees, many of
16

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.382 Page 27 of 53
whom are showing signs of COVID-19—for seven days. Id. ¶ 10-12. “The hole” is musty and damp, like a basement, and crawling with mice and roaches. Id. ¶ 13. Mr. Hubbard could hear other detainees coughing and was forced to share an infrequently cleaned shower with these coughing detainees. Id. ¶ 12.
Like Mr. Hubbard, Mr. Velez has severe asthma and requires an albuterol inhaler. Velez Decl. ¶ 2. Even though Mr. Velez still remains sick one month after first showing symptoms, and even though he has tested positive for COVID-19 twice, the Jail still refuses to provide him an inhaler. Id. Marlon Blanks also has severe asthma, and despite a prescription for an inhaler, the Jail has refused to provide him one either. Blanks Decl. ¶ 2. One deputy told Mr. Blanks to “fuck off” when he asked for an inhaler, while a nurse told him he didn’t know what he was talking about. Id.
Similarly, after CalDerone Pearson discovered that his cell was filled with bugs and unsuccessfully sought supplies to clean it, he asked to be moved to a different cell. Pearson Decl. ¶ 19. The sergeant on duty told him he was “disobeying an order” and moved him to solitary confinement, where Mr. Pearson was locked in his cell for 23 hours a day, unable to access commissary or the phone, and denied hot water for a shower. Id. ¶ 20.
G. Defendants are failing to test detainees who are symptomatic or who have been in close proximity to individuals who have tested positive.
Although widespread testing of both symptomatic and asymptomatic 17

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.383 Page 28 of 53
individuals is widely accepted as essential in combatting the spread of COVID-19,11 Defendants fail to do so. Even though COVID-19 has already infected staff and detainees at the Jail and even killed two contracted Jail physicians, Defendants have tested only 90 of the 834 detainees.12
Concerningly, Defendants are failing to identify and test detainees that are obviously symptomatic or who have been in close proximity to those who are. For example, it took Defendants over two weeks to test Mr. Malec, who had shared a unit with Mr. Meshinski, the former detainee who is now deceased. Courtney White is a trustee who worked closely alongside Mr. Meshinski in the laundry room. C. White Decl. ¶ 10; Compl. ¶ 93. When Mr. White and Mr. Meshinski worked together, none of the detainees had masks, and even though Mr. Meshinski exhibited visible symptoms of COVID-19, Jail staff kept him in the laundry room. C. White Decl. ¶ 10. Mr. White was not tested for COVID-19 even after Mr. Meshinski’s highly reported death—an obvious, proactive measure Defendants clearly should have taken. Id.
11 Umair Irfan, The case for ending the Covid-19 pandemic with mass testing, Vox (Apr. 13, 2020), https://www.vox.com/2020/4/13/21215133/ coronavirus-testingcovid-19-tests-screening. 12 Ross Jones, Huge disparity among local jails testing for COVID-19, WXYZ Detroit (Apr. 30, 2020), https://www.wxyz.com/news/localnews/investigations/huge-disparity-among-local-jails-testing-for-covid-19.
18

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.384 Page 29 of 53
H. Defendants fail to provide information about COVID-19 and its spread, instead misleading detainees to believe they are safer within the Jail.
Although Defendants are clearly aware of the COVID-19 crisis, see infra Section III.A, they have done little to educate the detainees in their care about the pandemic; detainees are instead forced to rely on the news or information from loved ones—when they can access it—for details about the virus and how to best protect themselves. Mathews Decl. ¶ 10; Smelley Decl. ¶ 13; Nickel Decl. ¶ 4; Pearson Decl. ¶ 16. Some Jail staff have unplugged the television to restrict detainees’ access to news about COVID-19. H. White Decl. ¶ 12. Defendants have not even explained to detainees basic preventative measures such as proper hand washing. C. White Decl. ¶ 14. Female detainees who express concerns over COVID-19 are dismissed by Jail staff as “being dramatic.” Nickel Decl. ¶ 2. Other detainees report that the deputies treat them as “less than human” and dismiss their coronavirus-related concerns. Blanks Decl. ¶ 16.
Defendants have gone beyond failing to provide detainees with the information they need to stay safe during the pandemic and instead have engaged in active misinformation. On at least one occasion in Division I, Jail staff turned up the heat and told detainees that the heat would kill the virus.13 Nickel Decl. ¶ 4.
13 Turning up the heat in the Jail will not kill the virus, at least not before it seriously harms the detainees and staff inside the Jail. A research team had to heat the virus up to 197 degrees Fahrenheit for 15 minutes to kill it. See Hannah Osborne,
19

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.385 Page 30 of 53
Other Jail staff have improperly suggested that the Jail is the “best place possible” to be during the pandemic.14 Nickel Decl. ¶ 4; C. White Decl. ¶ 14. Mr. Carline explains:
The Jail isn’t telling us anything about COVID. When I ask about COVID, they dismiss what we have to say. When detainees are scared or in fear of getting sick or dying, the deputies tell us we are in the best place possible. One deputy told us that he had been exposed to people with the virus but hadn’t caught it. Carline Decl. ¶ 15. I. Defendants do not properly screen individuals entering the Jail,
exacerbating the potential for viruses to infiltrate the Jail. Finally, Defendants do not effectively screen detainees entering the Jail or transferring between the various Divisions—a common-sense, proactive measure that would prevent the spread of COVID-19 from outside the Jail or from one Division to another. See, e.g., Smelley Decl. ¶ 15; C. White Decl. ¶ 11. For example, Dominick Kelly was transferred back into the Jail on March 31, 2020 from a program at the Detroit Reentry Center where individuals were sick.

Coronavirus can Survive High Temperatures for Long Periods, Study Finds, Newsweek (Apr. 15, 2020), https://www.newsweek.com/coronavirus-heat-killvirus-1498074.

14 Dr. Homer Venters, former chief medical officer of the New York City jail system,

cautions that persons held in jails are at a higher risk in the jail and are likely to face

serious, even grave, harm due to the outbreak of COVID-19. See Dr. Amanda

Klonsky, An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction

Continues,

N.Y.

Times,

Mar.

16,

2020,

https://www.nytimes.com/2020/03/16/opinion/coronavirus-in-jails.html.

20

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.386 Page 31 of 53
Kelly Decl. ¶ 1. Upon reentering the Jail, Mr. Kelly was placed in “quarantine,” which consisted of ten five-by-five cages lined up in a row in Division I and separated only by bars, not walls. Id. ¶ 3. Because of how easily air and objects passed between the cells in this area, it is impossible to suggest that individuals detained here were quarantined from other individuals.
Before placing him in this communal area, Jail staff never questioned Mr. Kelly about how he was feeling, never gave him gloves or a mask, and did not wear appropriate protective gear themselves. Id. ¶ 5-7. Mr. Kelly was forced to share a shower with five other detainees who were also in “quarantine,” but he never saw the shower being cleaned. Id. ¶ 10. The Jail staff gave him one hotel-sized bar of soap and refused his requests for more soap. Id. ¶ 11. After three days, Mr. Kelly was transferred to the mental health ward for a second phase of this “quarantine,” where he had a cellmate and shared a shower with thirty other detainees. Id. ¶ 17-18. He was transferred again to a different floor in Division I, then to Division II. Id. ¶ 24, 28. At no point was Mr. Kelly ever tested for COVID-19.
After the COVID-19 epidemic began, Plaintiff Shane Carline required unrelated medical attention in a local hospital. Carline Decl. ¶ 14. When Mr. Carline was transferred back into the Jail, he was sent to the mental health ward in Division I, where he was locked down for 24 hours a day. Id. He was then transferred back to general population in Division III without being tested or screened, even though
21

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.387 Page 32 of 53
he had been in a hospital, where he likely encountered patients and hospital workers infected by COVID-19. Id.
ARGUMENT Plaintiffs and the class members they seek to represent are at imminent risk of death or serious injury. If this litigation is decided in the ordinary course, many class members will become seriously ill and die before final judgment. Numerous others will suffer severe pain or organ damage. Plaintiffs seek two forms of immediate relief. First, on behalf of the class as a whole, Plaintiffs seek an order requiring Defendants to undertake and follow the basic preventative measures and procedures recommended by medical professionals for the management of COVID-19 in jails and correctional settings. These procedures ensure that those detained at the Jail: 1) have access to adequate and timely medical treatment to screen, test, and treat symptoms; 2) can practice social distancing; 3) can maintain necessary hygiene; and 4) are educated about COVID-19. Second, medically vulnerable Plaintiffs, on behalf of a subclass composed of similarly vulnerable detainees, seek immediate release from the unsanitary, infectious jail environment because there are no measures that Defendants can take within the facility to protect these detainees from an unconstitutionally high risk of death or serious bodily harm. Their lives depend on how quickly they are released.
22

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.388 Page 33 of 53
This relief is appropriate either through 28 U.S.C. § 2241 or, in the alternative, through 42 U.S.C. § 1983.
Plaintiffs easily meet the legal requirements for a temporary restraining order and preliminary injunction that would require Defendants to conform their practices at the Jail to medically accepted means of preventing and mitigating the spread of COVID-19 and to release members of the Medically Vulnerable Subclass. As explained below: (1) Plaintiffs are likely to succeed on the merits of their claims; (2) they are likely to suffer irreparable harm in the absence of relief; (3) the balance of equities weighs in their favor; and (4) an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). The court must balance each of the four factors and “no single factor is dispositive.” City of Dearborn v. Comcast of Mich., 558 F. Supp. 2d 750, 754 (E.D. Mich. 2008). Where, as here, plaintiffs demonstrate “irreparable harm which decidedly outweighs any potential harm to the defendant,” the “degree of likelihood of success required” is less, and a plaintiff need only show “serious questions going to the merits.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). I. Plaintiffs are likely to succeed on the merits because Defendants are
violating Plaintiffs’ Eighth and Fourteenth Amendment rights. Plaintiffs and class members are highly likely to succeed on their claims because Defendants are deliberately disregarding the risk that Plaintiffs will contract
23

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.389 Page 34 of 53
COVID-19 within the current conditions at the Jail, in violation of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. Defendants’ failure to implement the basic steps recommended by health experts, the CDC, and Governor Gretchen Whitmer15—including access to basic medical screening and treatment protocols for infectious disease, providing soap and water so that those detained can wash their hands after touching objects or other people, giving people sufficient space to stay at least six feet away from others at all times, the ability to clean and disinfect all surfaces touched by multiple people at least once per day, and access to information about COVID-19—when they are well aware of the extreme risks posed by this virus constitutes deliberate indifference.
The government has a constitutional duty to protect those it detains from “a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). This right arises under the Eighth Amendment post-conviction, see id.; Estelle v. Gamble, 429 U.S. 97, 104 (1976), and under the Fourteenth Amendment’s Due Process Clause pre-conviction, see City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Richko v. Wayne Cty., Mich., 819 F.3d 907, 915 (6th Cir. 2016).
15 See Compl. Ex. 12, Executive Order 2020-29 (Mar. 29, 2020); Compl. Ex. 7, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC.gov (March 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html.
24

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.390 Page 35 of 53
To demonstrate a violation of the Eighth Amendment, convicted persons must show both an objectively substantial risk of serious harm and that prison officials subjectively “acted with deliberate indifference” towards the hazardous condition in question. Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). Pursuant to the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2472–2473 (2015), pre-trial detainees need only satisfy the objective prong of the inquiry. Hopper v. Phil Plummer, 887 F.3d 744, 752 (6th Cir.), reh’g denied (May 1, 2018). Accordingly, the Pre-Trial Subclass can prove a Fourteenth Amendment claim by demonstrating solely that class members face a substantial risk of serious harm. Kingsley, 135 S. Ct. at 2472–73.
Both the Eighth and Fourteenth Amendment standards are satisfied here because Defendants violate Plaintiffs’ constitutional rights by incarcerating them in conditions that fail to adequately mitigate against the spread of a potentially fatal virus amid a growing pandemic and despite their knowledge and ability to do so.
A. Plaintiffs are objectively at a substantial risk of harm. All people held in the Jail, whether detained pretrial or incarcerated postconviction, are entitled to be protected from conditions of confinement that create a substantial risk of serious harm. See Farmer, 511 U.S. at 834 (correctional officer violated Eighth Amendment by failing to prevent “a substantial risk of serious harm”); Estelle, 429 U.S. at 104 (“deliberate indifference” to serious medical needs
25

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.391 Page 36 of 53
violates the Eighth Amendment). Corrections officials have a constitutional obligation to provide for detainees’
reasonable safety and to address their serious medical needs. See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989) (“[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.”); Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (the state has an “unquestioned duty” to provide adequate medical care for detained persons); Wilson v. Seiter, 501 U.S. 294, 300 (1991); Estelle, 429 U.S. at 104; Brown v. Plata, 563 U.S. 493, 531-32 (2011).
It is well established that, under the Fourteenth Amendment, pretrial detainees are entitled to at least the same level of protection as convicted detainees. See Richko, 819 F.3d at 915; see also City of Revere, 463 U.S. at 244 (“[T]he due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner”); Bell v. Wolfish, 441 U.S. 520, 535 (1979) (holding that the Fourteenth Amendment requires that pretrial detainees be protected from any form of “punishment”). Thus, pretrial detainees need show only that the conditions of their confinement are unreasonable. Kingsley, 135 S. Ct. at
26

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.392 Page 37 of 53
2473-74 (pretrial detainees need not show that prison officials subjectively “acted with ‘deliberate indifference” towards the hazardous condition in question).
Exposure to an infectious disease like COVID-19 without adequate preventive measures is objectively unreasonable under the Fourteenth Amendment and constitutes deliberate indifference to a serious risk to health and safety, in direct violation of the Eighth Amendment. 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,” is precisely the type of serious harm that the Constitution protects against. Helling v. McKinney, 509 U.S. 25, 33 (1993) (“Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease . . . .”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease.”); Johnson v. Operation Get Down, Inc., No. 11-15487, 2014 WL 3752481, at *5 (E.D. Mich. 2014) (finding that even a “short period” of exposures to an infectious antibiotic resistant staph infection could constitute deliberate indifference); see also Farmer, 511 U.S. at 833 (“[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”); Flanory v. Bonn, 604 F.3d 249, 255-56 (6th Cir. 2010) (recognizing that a complete
27

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.393 Page 38 of 53
denial of dental hygiene products can constitute deliberate indifference); Lee v. Birkett, No. 09–cv–10723, 2010 WL 1131485, at *5 (E.D. Mich. Feb. 18, 2010) (holding that allegations that prisoners were forced to use common razors and be exposed to other unsanitary conditions for two months could constitute deliberate indifference).
COVID-19 is the quintessential “serious” and “communicable disease” from which the Constitution requires incarcerated people be protected. Helling, 509 U.S. 25 at 33-34. This disease has no vaccine, effective treatment, or cure. It can cause severe pain, and in even mild and moderate cases, it can feel like “having glass in your lungs” or “drowning in [one’s] own blood,” leaving patients choking and struggling to breathe. Compl. ¶ 34. And it can cause permanent lung damage. Id. ¶ 33. In critical cases, patients may need to spend weeks attached to a ventilator and blood oxygenation machine. Id. ¶ 35. Finally, COVID-19 has a fatality rate ten times higher than influenza. Id. ¶ 36.
Plaintiffs confined at the Jail are at an extreme, and unreasonable, risk of contracting COVID-19. Lauring Decl. ¶¶ 28-29 (the “Jail’s intake, screening, and quarantine procedure is wholly inadequate and staggeringly ineffective against preventing the risk of infection”). Across the country, governments have issued “shelter in place” orders closing public schools and non-essential businesses, banning people from eating in restaurants or even congregating in small groups, and
28

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.394 Page 39 of 53
requiring individuals to stay in their homes unless it is absolutely necessary to leave. When people leave their homes, they are advised to stay at least six feet from others, wear masks, avoid touching their faces, and wash their hands immediately upon returning home. The message is clear and unprecedented: the risk of contracting COVID-19 is objectively unacceptable. This risk is thus also unacceptable for Plaintiffs who are detained, where the risk of contracting the virus is even higher. Lauring Decl. ¶ 41.
This risk is even more extreme and unreasonable for the Medically Vulnerable Subclass. The members of this subclass have conditions rendering them exceptionally vulnerable to death or serious harm if exposed to COVID-19. As a result, there is no practicable way to ensure that they can avoid infection and no practicable way to ensure that, if infected, they receive prompt and reasonable medical treatment within the Jail. Lauring Decl. ¶ 43. Serious illness is substantially likely, and older people and those with underlying medical conditions, such as lung disease, heart disease, or diabetes, are more likely to develop serious illnesses. Lauring Decl. ¶ 15. Therefore, their continued detention is a grave risk to their lives and violates the Constitution.
B. Defendants have acted and are continuing to act with subjective indifference towards Plaintiffs’ substantial risk of harm.
This Court need not consider the subjective prong of the deliberate indifference standard with respect to members of the Pre-Trial Subclass. Yet even under the
29

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.395 Page 40 of 53
Eighth Amendment’s more exacting standard, immediate injunctive relief is clearly appropriate for all Plaintiff classes. That is because Defendants have certainly known of and disregarded an excessive risk to detainee health or safety. Wilson, 501 U.S. at 303; Richmond v. Huq, 885 F.3d 928, 937 (6th Cir. 2018).
With respect to an impending infectious disease like COVID-19, deliberate indifference is satisfied when corrections officials “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33 (holding that a prisoner “states a cause of action . . . by alleging that [corrections officials] have, with deliberate indifference, exposed him to conditions that pose an unreasonable risk of serious damage to future health”); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002) (court “may infer the existence of [deliberate indifference] from the fact that the risk of harm is obvious” (citing Farmer, 511 U.S. at 842)).
This Court need not “await a tragic event” to find that Defendants are maintaining unconstitutional conditions of confinement amid a global pandemic. See Helling, 509 U.S. at 33. So long as the risk of serious harm is “likely,” as it is here, the Eighth Amendment is violated, even if “the complaining inmate shows no serious current symptoms,” it is “not alleged that the likely harm would occur immediately,” and “the possible infection might not affect all of those exposed.” Id.
30

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.396 Page 41 of 53
Here, amid this global pandemic, it cannot be seriously disputed that any
government officials, including Defendants, are subjectively aware of the risks posed
by the coronavirus.16 Through government orders,17 CDC guidance aimed at jails,18
and nationwide publications,19 Defendants have been made well aware of the risks to
incarcerated people. The Sheriff’s own communications and announcements
16 This is particularly true for Defendant Sheriff Benny Napoleon, who lost an employee, Donanfay Collins, to COVID-19 and whose brother, Hilton Napoleon, was hospitalized for several weeks due to this virus. See, e.g., We will remember: Tribute to a few of the metro Detroiters who died of coronavirus, Detroit Free Press (May 2, 2020), https://www.freep.com/indepth/news/local/michigan/detroit/2020/04/12/coronavirus-covid-19-metro-detroittributes/2966714001/ (“‘It was like someone put an anvil around my neck and just dropped it,’ Napoleon said, when learning of [Collins’s] passing. ‘And I’ve been feeling very heavy since all of this transpired because I know this is not the last of it.’”); Marlowe Alter, Highland Park Police Chief Hilton Napoleon hospitalized for 2 weeks with coronavirus, Detroit Free Press (Mar. 26, 2020), https://www.freep.com/story/news/local/michigan/wayne/2020/03/26/hiltonnapoleon-coronavirus-michigan/2916825001/ (noting that Defendant Napoleon has been practicing social distancing from his family members due to the virus and believes in the importance of these practices). 17 See Michigan Executive Order 2020-42, Michigan.gov (Apr. 9, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90640-525173--,00.html. 18 Compl. Ex. 7. 19 See David Mills & Emily Galvin-Almanza, As many as 100,000 incarcerated people in our prisons will die from the coronavirus, unless the US acts now, Bus. Insider (Apr. 2, 2020), https://www.businessinsider.com/failure-to-releaseprisoners-is-condemning-thousands-to-death-2020-4; Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (Mar. 31, 2020), https://nyti.ms/3aIBHjv; Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://nyti.ms/2Jmnf4z.
31

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.397 Page 42 of 53
emphasize this awareness.20 Similarly, the widespread public discussion regarding
the heightened risk to medically vulnerable people make clear that Defendants are
aware of the mortal peril that Jail conditions pose to such individuals. See, e.g., H.
White Decl. ¶ 12 (“I see Coronavirus on TV . . . When the guards hear something
bad coming from the TV, they unplug it.”).
In addition, the overwhelming medical and scientific consensus is that social
distancing of at least six feet is required to reasonably reduce the risk of transmission
of the novel coronavirus. The CDC,21 the American Medical Association,22 the
American Red Cross,23 and the Michigan Department of Health and Human
Services24 have all concluded that social distancing is essential to preventing
20 WCSO COVOID-19 [sic] Response, Wayne County Sherriff Connect (Apr. 11, 2020), http://www.sheriffconnect.com/home/item/280-wcso-covoid-19response.html. 21 Social Distancing, Quarantine, and Isolation, CDC.gov (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html; How to Protect Yourself & Others, CDC.gov (Apr. 13, 2020) (explaining the paramount importance of social distancing, even if one is already taking other precautions such as a mask). 22 AMA, AHA, ANA: #StayHome to confront COVID-19, Am. Medical Ass’n (Mar. 24, 2020), https://www.ama-assn.org/press-center/press-releases/ama-aha-anastayhome-confront-covid-19. 23 Coronavirus – What Social Distancing Means, Am. Red Cross (Apr. 14, 2020), https://www.redcross.org/about-us/news-and-events/news/2020/coronavirus-whatsocial-distancing-means.html. 24 MDHHS issues Emergency Order requiring compliance with Executive Orders under penalty of civil fines up to $1,000 and referral to licensing agencies for
32

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.398 Page 43 of 53
transmission of the deadly infection. The CDC itself describes social distancing as
“a cornerstone of reducing transmission of respiratory diseases such as COVID-19,”
as “[t]he best way to prevent illness,” and as “extra important” for vulnerable individuals.25 Defendant Napoleon concedes this point: “If you really love [your
family and the people around you], you will adhere to the governor’s directive” to stay and home and practice social distancing.26
In the face of this awareness, Defendants’ ongoing confinement of Plaintiffs
is deliberately indifferent to the risks caused by this virus and must be remedied.
“Failing to take reasonable measures to abate [risk]” demonstrates disregard of such
risk. Farmer, 511 U.S. at 847. Defendants demonstrate their disregard of the grave
risk posed by COVID-19 by failing to implement essential steps urged by health
experts, including the CDC, to stop the spread of the virus.
Here, the list of reasonable measures to prevent the spread of COVID-19 is
well delineated and publicized: “[s]ocial distancing and proper hygiene are the only
enforcement, Mich. Dep’t of Health & Human Servs. (Apr. 2, 2020), https://www.michigan.gov/coronavirus/0,9753,7-406-98163-524105--,00.html. 25 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC.gov (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf. 26 Marlowe Alter, Highland Park Police Chief Hilton Napoleon hospitalized for 2 weeks with coronavirus, Detroit Free Press (Mar. 26 2020), https://www.freep.com/story/news/local/michigan/wayne/2020/03/26/hiltonnapoleon-coronavirus-michigan/2916825001/.
33

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.399 Page 44 of 53
effective means by which we can stop the spread of COVID-19.” Thakker v. Doll, __ F. Supp. 3d __, 2020 WL 1671563 at *8 (M.D. Pa. Mar. 31, 2020). As noted above, the CDC has, pushed detention facilities to implement social distancing and “[p]rovide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing,” and advising that facilities must, “[s]everal times a day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas.” Compl. ¶ 43.
Despite these clear directives, Defendants have not provided Plaintiffs with protective measures—the space, antibacterial soap, sanitizer, and cleaning supplies—necessary to allow staff and detainees to remain safe. Nor have Defendants provided timely and adequate medical care to identify, medically isolate (not punitively detain), and treat infected people. As a result, the entire class has a substantial risk of contracting COVID-19, and the Medically Vulnerable Subclass faces a very realistic threat of death and/or permanent organ damage. Lauring Decl. ¶¶ 38, 43. Defendants’ failure to act puts them out of step with many other jails and prisons around the country who are implementing this life-saving medical guidance.27
27 Justin Carissimo, 1,700 inmates released from Los Angeles County in response to coronavirus outbreak, CBS News (Mar. 24, 2020), https://www.cbsnews.com/news/inmates-released-los-angeles-county-coronavirusresponse-2020-03-24/.
34

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.400 Page 45 of 53
Although courts give some latitude to jail and prison officials to decide what actions are “reasonable” to deal with safety within facilities, COVID-19 is a threat to detainees’ health and safety of a magnitude unseen in recent history. At this moment, there is only one way to minimize the risk of COVID-19: prevent its spread by social distancing.28 By failing to take the necessary steps to do so in the Jail, Defendants are knowingly exposing Plaintiffs, guards and staff, and the public at large to the serious risk of a painful and lethal disease. That risk is unacceptable and unconstitutional.
Officials’ indifference to the significant risk of permanent damage and death to the Medically Vulnerable Subclass is even more unacceptable. It is welldocumented that these individuals face a risk of death or permanent organ damage far in excess of the rest of the population. Stern Decl. ¶ 11; Lauring Decl. ¶¶ 38, 43. This risk is evident in the COVID-19 death toll to date—for instance, in New York state, almost 90% of reported COVID-19 deaths involved at least one comorbidity, according to the state’s department of health.29 Defendants’ refusal or inability to provide circumstances that would limit the subclass’s exposure to the virus
28 Compl. ¶ 8; Lauring Decl. ¶ 13; Dr. Francis Collins, To Beat COVID-19, Social Distancing is a Must, NIH Director’s Blog (March 19, 2020), https://directorsblog.nih.gov/2020/03/19/to-beat-covid-19-social-distancing-is-amust/. 29 NYSDOH COVID-19 Tracker, N.Y. State Dep’t of Health, https://covid19tracker.health.ny.gov/ (last visited May 4, 2020).
35

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.401 Page 46 of 53
constitutes deliberate indifference. At this point, only release will sufficiently protect the medically vulnerable from their very real risk of death. Malam v. Adducci, __ F. Supp. 3d __, 2020 WL 1672662, at *2, 9 (E.D. Mich. Apr. 6, 2020) (granting petitioner’s application for a temporary restraining order requiring her immediate release and stating that “[p]etitioner’s confinement at the Calhoun County Correctional Facility renders her substantially likely to contract COVID-19, and Petitioner’s severe health conditions render her substantially likely to suffer irreparable harm or death as a result”). Plaintiffs have shown that they are likely to succeed on the merits of their claims. II. Plaintiffs will suffer irreparable harm.
Plaintiffs allege injuries that are irreparable and, therefore, are not suitable for resolution in the ordinary course of litigation. There is no injury that is more irreparable than death, and Plaintiffs face a heightened risk of contracting a deadly virus due to Defendants’ actions. Nor can these injuries be redressed through monetary damages. This risk is not speculative: in one Louisiana prison where COVID-19 has been allowed to spread, five people have died in less than a week.30
According to Dr. Lauring, a virologist, specialist in infectious diseases, and
30 ACLU Sues Louisiana Prison After 5 COVID-19 Deaths Reported, Democracy Now (Apr. 7, 2020), https://www.democracynow.org/2020/4/7/headlines/aclu_sues_louisiana_prison_af ter_5_covid_19_deaths_reported.
36

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.402 Page 47 of 53
an Associate Professor at the University of Michigan, absent immediate intervention
from this Court, people will die because of Defendants’ deliberate indifference:
[I]t is my professional judgment that individuals placed in any division of the Jail are at a significantly higher risk of infection with COVID-19 as compared to the population in the community, given the housing conditions in the facility, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
Without a vaccine, reducing the Jail’s population to the point where social distancing can always be achieved is the only way to protect the health and safety of people detained in the facility and the public at large.
For the medically vulnerable . . . immediate release is the only option. The detainees’ inability to practice physical distancing at all times, coupled with the Jail’s failure to properly screen, identify, and quarantine infection, and their widespread neglect of medical needs creates a meaningfully higher risk of death for these individuals. Lauring Decl. ¶¶41-43. Moreover, Plaintiffs seek relief from violations of their constitutional rights.
“[W]hen reviewing a motion for a preliminary injunction, if it is found that a
constitutional right is being threatened or impaired, a finding of irreparable injury is
mandated.” ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438, 445 (6th Cir. 2003)
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). An injunction is appropriate to
prevent a substantial risk of deprivation of constitutional rights, as well as death or
permanent, debilitating injury. Being compelled to endure a substantially increased
risk of serious illness and death will always constitute irreparable injury. See, e.g.,
37

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.403 Page 48 of 53
Helling, 509 U.S. at 33 (“It would be odd to deny an injunction to detainees who
plainly proved an unsafe, life-threatening condition in their prison on the ground that
nothing yet had happened to them.”).
The risk of permanent harm to Plaintiffs applies with greater force to the
Medically Vulnerable Subclass, for whom continued detention is even more likely
to cause injury and death. See Wilson v. Gordon, 822 F.3d 934, 958 (6th Cir. 2016)
(upholding preliminary injunction “where the alleged irreparable harm involves
delay in or inability to obtain medical services”). With 13 confirmed COVID-19
cases in the Jail, the risk of death and physical devastation to subclass members is
an absolute certainty that cannot be ignored.
Courts across the country have recognized that risk of exposure to COVID-19
constitutes an irreparable harm; in turn, they have granted immediate release to
people exposed to COVID-19 and have otherwise required jails and prisons to take immediate measures to reduce the risk of exposure.31 This groundswell reflects an
31 See Ex. 14 (providing decisions from seven district courts); see also Zhang v. Barr, No. ED CV 20-00331-AB, 2020 WL 1502607, at *6 (C.D. Cal. Mar. 27, 2020) (granting an immediate bond hearing in light of the “global pandemic by which delay in determining Petitioner’s release exposes him to unnecessary risk”); United States v. Garlock, No. 18-Cr-00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Castillo v. Barr, __ F. Supp. 3d __, CV 20-00605 TJH (AFMx), 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27, 2020) (noting “the risk of infection in immigration detention facilities – and jails – is particularly high”). This Court
38

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.404 Page 49 of 53
emerging judicial consensus that people cannot be safely detained when they are exposed to a serious risk of contracting COVID-19.
COVID-19 is already in the Jail. Every possible step must be taken to ameliorate the risk to those detained. Plaintiffs have shown irreparable harm. III. The public interest and balance of equities weigh heavily in Plaintiffs’
favor. The substantial risk to Plaintiffs of contracting a deadly disease considerably outweighs any potential harm to Defendants. As discussed above, Plaintiffs will suffer significant harm if forced to endure the current conditions in the Jail. The only potential harm Defendants face if ordered to bring their Jail into compliance with CDC guidelines is economic: Jail staff may have to expend additional time, and the County may have to expend additional money, to provide the social distance, information, hygiene products, cleaning agents, and medical treatment necessary to kill and/or treat the virus. But the possibility that Defendants will have to spend money to reduce the substantial risk that Plaintiffs will be exposed to a deadly disease does not tip the balance in their favor because “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079
recently issued a temporary restraining order addressing similar issues in the Oakland County jail. See Cameron v. Bouchard, No. 20-cv-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020).
39

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.405 Page 50 of 53
(6th Cir. 1994); see also Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 222 (6th Cir. 2016) (protection of constitutional rights is “always in the public interest”).
Immediately implementing the requested hygiene, social distancing, screening, and testing measures for the whole Class is the only way to reduce the imminent and grave risk of serious illness or death. These measures will also promote Defendants’ interests in ensuring the safety of the staff at the Jail and the community at large. Accordingly, the public interest would be served by issuing a preliminary injunction that requires Defendants to implement constitutionally adequate measures to prevent the spread of COVID-19 in the Jail.
The balance of equities and the public interest also favor release of the Medically Vulnerable Subclass members who, as a practical matter, cannot be constitutionally held in the Jail at this time. Release of these individuals will save the Jail money and reduce the demands on Jail staff, including guards and nurses. Further, releasing medically vulnerable individuals is the only way to eliminate the unacceptable risk to their health and the concomitant demand on public health resources that will result when they become infected in jail.
A worsened outbreak at the Jail has the potential to create a “tinderbox” scenario that drains the Detroit metropolitan area of limited medical resources,
40

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.406 Page 51 of 53
including intensive care unit beds and ventilators.32 In Michigan, the COVID-19 outbreak has already resulted in unprecedented public health demands that have strained the local health care system.33
COVID-19 is, at this very moment, devastating Michigan’s carceral system. In one Michigan prison alone, 10% of all incarcerated people have tested positive for COVID-19, and 9 prisoners have already died statewide.34 Releasing vulnerable individuals is the only way to save lives and reduce the burden on the community and health infrastructure, and it is clearly in the public interest.
CONCLUSION For these reasons, Plaintiffs ask this Court to issue a temporary restraining order and preliminary injunction ordering the relief requested in their motion.

Respectfully submitted,

/s/Ashley A. Carter Ashley A. Carter (DC Bar No. 979793) Thomas B. Harvey (MBE #61734MO)

/s/Martin L. Saad Martin L. Saad (DC Bar No. 462096)* Sheena R. Thomas (DC Bar No. 1020290)*

32 New Model Shows COVID-19 Death Toll is 100,000 Higher Than Current Projections, ACLU.org (Apr. 22, 2020), https://www.aclu.org/press-releases/newmodel-shows-covid-19-death-toll-100000-higher-current-projections.
33 See Paul P. Murphy, Detroit hospital workers say people are dying in the ER hallways before help can arrive, CNN (April 9, 2020), https://www.cnn.com/2020/04/09/us/detroit-hospital-workers-sinai-gracecoronavirus/index.html.
34 See Compl. ¶ 49 (and source cited therein).
41

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.407 Page 52 of 53

Miriam R. Nemeth (MI Bar No. P76789; DC Bar No. 1028529) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 Tel: (202) 728-9557 tharvey@advancementproject.org acarter@advancementproject.org mnemeth@advancementproject.org

Khary J. Anderson (DC Bar No. 1671197)* VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 Tel: (202) 344-4000 MLSaad@Venable.com SRThomas@Venable.com KJAnderson@Venable.com

/s/Allison L. Kriger Allison L. Kriger (MI Bar No. P76364) LARENE & KRIGER, P.L.C. 645 Griswold Street, Suite 1717 Detroit, Michigan 48226 Tel: (313) 967-0100 allison.kriger@gmail.com

/s/Christopher N. Moran Christopher N. Moran (MD Bar No. 1512160132)* Emily J. Wilson (MD Bar No. 1801040016)* VENABLE LLP 750 E. Pratt Street, Ste. 900 Baltimore, MD 21202 Tel: (410) 244-7400 CNMoran@Venable.com EJWilson@Venable.com

/s/Alec Karakatsanis Alec Karakatsanis (DC Bar No. 999294)* A. Dami Animashaun (DC Bar No. 1614199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 Tel: (202) 894-6126 alec@civilrightscorps.org dami@civilrightscorps.org

/s/Desiree M. Ferguson Desiree M. Ferguson (MI Bar No. P34904) Amanda Alexander (MI Bar No. P77795)* DETROIT JUSTICE CENTER 1420 Washington Blvd., Suite 301 Detroit, MI 48226 Tel: (313) 736 -5957 dferguson@detroitjustice.org aalexander@detroitjustice.org

Attorneys for Plaintiffs/Petitioners *Applications for admission forthcoming
DATED: May 4, 2020 42

Case 2:20-cv-11094-MAG-EAS ECF No. 3 filed 05/04/20 PageID.408 Page 53 of 53
CERTIFICATE OF SERVICE I affirm that this Emergency Motion for Temporary Restraining Order and Preliminary Injunction and supporting brief and exhibits will be served concurrently with, and in all the same manners as, the service of the Summons and Complaint in this matter.
/s/Allison L. Kriger Allison L. Kriger
43

Case 2:20-cv-11094-MAG-EAS ECF No. 3-1 filed 05/04/20 PageID.409 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES RUSSELL, et al., individually and on behalf of all others similarly situated,
Plaintiffs,
v.
WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as the Sheriff of Wayne County, et al.,
Defendants.

Case No. Class Action

Index of Exhibits To Brief in Support of Plaintiffs’ Emergency Motion For Temporary
Restraining Order And Preliminary Injunction

EXHIBIT

DESCRIPTION

1

Declaration of Courtney White

2

Declaration of Mark Matthews

3

Declaration of Terri Nickel

4

Declaration of Dominick Kelly

5

Declaration of Shane Carline

1

Case 2:20-cv-11094-MAG-EAS ECF No. 3-1 filed 05/04/20 PageID.410 Page 2 of 2

6

Declaration of Carl Smelley

7

Declaration Marlon Blanks

8

Declaration of CalDerone Pearson

9

Declaration of Charles Russell

10

Declaration of Christopher Hubbard

11

Declaration of Mark Malec

12

Declaration of Harry White

13

Declaration of Davonte Velez

14

District court decisions

2

Case 2:20-cv-11094-MAG-EAS ECF No. 3-2 filed 05/04/20 PageID.411 Page 1 of 2
DECLARATION OF COURTNEY WHITE
I, Courtney White, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746:
1. My name is Courtney White. I am 54 years old. I have high blood pressure and high cholesterol.
2. I have been in custody at the Wayne County Jail – Division III (“Dickerson”) since December of 2019. I was house in Ward 509 on C-1, but on April 22, 2020 I was moved to E-3
3. When I was in 509, I slept in an 8 or 9 by 15 feet cubicle with three other men. There is one bunk on each wall. It is impossible to maintain a distance of six feet from another person inside of the cubicle. It has 31 bunks upstairs and 31 downstairs. There were probably about 40 guys total in the unit. There are eight showers, eight bathrooms, and eight tables for everyone to share. During meals, 4-5 men sit at each table. It is impossible to maintain a distance of six feet from another person. The tables are not even six feet away from each other. And, when we are watching tv, everyone is seated close together.
4. E-3, where I am now, is set up in a similar way. There are two floors. There are 30 rooms downstairs and 30 rooms upstairs. There are approximately 45 guys here, and we each have our own room. The rooms have doors and windows, but they are not air sealed. Vents push air in and out. They have been blowing cold air, and it has very cold.
5. The first floor has a common area with tables. There are six tables for all 45 guys. When we’re eating at the tables it is impossible to be six feet apart from another person. Some of the deputies have been letting us space out when we eat, but others don’t, and it is not possible to wear masks while we’re eating.
6. There are four sinks, four toilets, and eight showers for all of us to share. We do not have access to disinfectant of any kind, and no one cleans with disinfectant. We used to have access to disinfectant spray, but the jail took it away. Now we only have simple green, which is not a disinfectant, and we do not have any paper towel. We have to use c-fold napkins or rags from the laundry to wipe down common surfaces. The tables are sprayed down with Simple Green after every meal, but the phones, tablets, bathrooms and everything else is cleaned with Simple Green once daily at the most.
7. Lately, we have been getting as much soap as we want. They are little hotel-size bars that run out quickly. They dry our skin out really badly.
8. The inmates get one clean uniform and clean linens once weekly.
9. On or around April 11, the jail provided all of the inmates with masks, but we don’t wear them when we sleep or when we eat. The jail staff inconsistently wears masks. Some wear them and some don’t.
10. I am a trustee, and I work in the laundry room. I’m responsible for laundry for all three divisions plus juvenile. I worked in the laundry room with a man named Michael Meshinski. He was released from the jail at the beginning of April, and then died of COVID a couple of days later. Mr. Meshinski and I were not housed in the same unit. We only worked today. At the time we worked together, none of the inmates had masks, and he looked sick to me. He was coughing and blowing his nose. I would have to tell him to wash his hands after he coughed or sneezed.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-2 filed 05/04/20 PageID.412 Page 2 of 2

11. To this day, I have never been tested for COVID-19. I am really scared because there are several guys in my unit who are on work release. They leave the jail for several hours a day, and then they come back to the jail and sleep here at night. I don’t know where they’ve been or who they’ve been around. Every time they leave and come back, it puts us at risk.
12. There are a bunch of guys in here who are sick. We have been trying to get tested, but no one has gotten tested. It takes 3-4 days to a week to get a response when you ask for medical attention. Lately, if any of the inmates tell the jail staff they feel sick, all the jail does is give us Tylenol and, sometimes, they check our temperature.
13. Recently, I requested medical care because my left arm was numb. I still haven’t seen a doctor. They only thing the jail did was give me tylenol. They have since taken me off of the Tylenol, and my arm is still numb.
14. The jail hasn’t told us anything about coronavirus except that we should stay 6-10 ft apart. They know we can’t really do that, though. They also put up a bunch of posters that instruct us to cover our mouths. It seemed like they did it because people were coming in for a tour.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Courtney White on April 24, 2020.

/s/ Allison L. Kriger By: Allison Kriger

Date: April 24, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 3-3 filed 05/04/20 PageID.413 Page 1 of 2
DECLARATION OF MARK MATHEWS
I, Mark Mathews, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746:
1. My name is Mark Mathews. I am 61 years old, and I have been at Division III (“Dickerson’) of the Wayne County Jail since March 6, 2020.
2. I was brought to the Wayne County Jail from the Oakland County Jail, where I had been locked up since February 20, 2020. When I arrived at the Wayne County Jail I was taken to the medical unit because I was sick, and I recently had surgery on my pancreas. The medical staff took an xray of my lungs, and they took my temperature, but I was not tested for COVID-19. The medical personnel told me I had something on my lungs that looked like double pneumonia, and I was given antibiotics.
3. After I was given the antibiotics, I was put in general population on C-1, 117. Ever since I have been placed here, I have been really scared. I feel like I am going to die if I get COVID-19 because, in addition to having pancreas surgery and being diagnosed with pneumonia, I have hypertension and diabetes. The jail put me on a unit with 40 men, and it is almost impossible to be six feet away from anyone at any given time. A lot of the guys in my unit have been sick, but they’re afraid to say something because they know they’ll get locked in a room by themselves.
4. There are also several men in my unit who are on work release. That means that they go to work outside of the jail, and then they come back here in the evening. I don’t know where they have been or who they have been around, and the jail hasn’t tested them for COVID-19. As far as I know, none of the inmates in my unit have been tested. New guys are coming in all the time, and they don’t get tested either. They get quarantined for 7 days, and they get their temp taken. That’s it.
5. I have also complained to the medical unit that my chest was hurting. If an inmate’s chest is hurting, he is sent to medical right away. When I went to medical, they kept telling me they couldn’t really do anything, and that I had to see a doctor. No doctor was available.
6. We sleep in four-person cubicles. There is one bed on each wall, and they are approximately 2 ½ - 3 ft away from each other. It is impossible to maintain a distance of six feet from another person when we are in our cubicles, and we do not sleep with masks on.
7. All 40 guys share eight sinks, eight toilets, and eight showers. They are cleaned twice daily, regardless of how often they are used. The inmates can clean those areas whenever

Case 2:20-cv-11094-MAG-EAS ECF No. 3-3 filed 05/04/20 PageID.414 Page 2 of 2

we want to with Simple Green, but Simple Green is not a disinfectant. those spaces ourselves because we do not have access to disinfectant spray. We only have Simple Green, which is not a disinfectant, and we have to reuse rags or old towels to wipe stuff down.
8. During meals, all 40 men share a few tables. It is impossible to be six feet away from anyone during meals, and none of the guys wear masks when they’re eating. The meals are served on trays by inmate trustees. They wear gloves and masks, but they touch a bunch of stuff before they touch our trays. We also use the tables to play games and hang out. The tables are wiped down after each meal, but not more than that.
9. We get new uniforms and towels once per week. We get as much soap as we want, but it’s really drying. We use the same soap to wash our hands, our bodies, and our clothes, and we have to use our towels or uniforms to dry our hands. We don’t have access to any hand-sanitizer.
10. The jail hasn’t told us anything about corona virus. Everything we know is from the news.
11. We got masks for the first time a couple of weeks ago. They are blue cloth. We haven’t received new masks since then. None of the inmates have gloves. The jail staff does not wear gloves, but some of them wear masks. They just started a week or so ago.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Mark Mathews on April 20, 2020.

/s/ Allison L. Kriger By: Allison Kriger

Date: April 20, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 3-4 filed 05/04/20 PageID.415 Page 1 of 3
DECLARATION OF TERI NICKEL
I, Teri Nickel, certify under penalty of perjury that the following statement is true and correct:
1. My name is Teri Nickel. I am 36 years old. I was incarcerated at Wayne County JailDivision One (also known as the “New Jail”) from February of 2020 to March 30, 2020.
2. While I was in custody, I was in fear for my life due to Covid-19 because I have asthma, a thyroid condition, recovering liver failure, and a damaged heart valve. Inmates were being transferred from one unit to another regularly, and no one was tested or otherwise evaluated for Covid-19 at any time. The general narrative from deputies was “you’re safer in here than you are out here,” in response to any girls who complained about feeling symptomatic. I never saw or heard of anyone who received medical attention in response to these complaints. Instead, they were told they were “being dramatic.” And, no one was ever quarantined from what I saw.
3. If an inmate feels sick, she has to fill out a medical kite. It takes anywhere from one week to 60 days to get a response.
4. I never received any information about Covid-19 from the jail staff until the last ten days that I was locked up. The jail turned the heat up really high one day, and one of the deputies told us that heat kills the virus. That was the only time jail staff told us about Covid directly. Otherwise, the only reason I knew about Covid-19 was from the news and telephone calls with family and friends and my attorney. The jail never gave us any guidelines or information, verbally or in writing, about how to stay safe, how the virus is spread, or what symptoms we should look for.
5. During the month of March, I was transferred from one unit to another a total of five times. I was never tested or evaluated for Covid-19. None of the inmates were tested or evaluated. The standard units are shared by either 10 woman or 20 women. There are two women to every cell, and each cell has bunk beds. The top bunk is only a couple of feet higher than the bottom bunk. So, it’s impossible to stay six feet away when we are sleeping. About one foot away from the bottom bunk is a toilet without a lid that is one foot from the beds. Then, there is a make-shift desk right by the beds. The person in the top bunk has to step on that to get up to the bed. There isn’t a ladder. I don’t know exactly how big the cells are, but there isn’t enough room to be six feet away from your cellmate. phone
6. Our cell doors are usually open all day. That was still true even in the last couple of weeks. Immediately outside of the cells is a common area that has metal picnic tables, a TV, tablets, and a phone, and there are showers nearby off to the side. I don’t know how big

Case 2:20-cv-11094-MAG-EAS ECF No. 3-4 filed 05/04/20 PageID.416 Page 2 of 3
the common area is, but there definitely isn’t enough room for everyone to be six feet apart. The unit with 10 women has three tables, and the 20-women unit has five tables. Everyone eats at those tables, and everyone uses the same tablets and telephone. I have only seen one deputy clean off the tablets and phone after each use, but otherwise, they are not cleaned.
7. The ventilation is very bad. There is usually a body odor or moldy water smell. The day that the jail turned the heat up really high and people were really uncomfortable, the deputies told us that the ventilation is really bad.
8. I never received any gloves or a mask, and neither did any of the other inmates, except the trustees when they were spraying disinfectant or serving food.
9. I have never seen how our food is prepared, nor have I ever assisted with food preparation. For breakfast, the trustees bring us carry-out containers at 5-6 am. They slip it under the bars. Then, at 10:30 am the trustees bring us food. They use gloves but no hair nets or masks. They give us plastic spoons that are all unpackaged in a flimsy plastic bag. We're told, "take one and pass it down." So, each girl grabs the bag, then reaches into the bag to pull out a single spoon. None of the girls wear gloves when they touch the bag or take a spoon. The process for the other meals we get during the day, is the same.
10. We also didn’t have any hand sanitizer. Although we could essentially get as much soap as we wanted, it was hard to wash our hands because most of the sinks were unusable. The sink water is tied to your toilet water and also the toilet and sink of the cell next to you. If you don’t flush your toilet for long enough, the excrete will flow to your neighboring cell’s toilet. It made everyone not want to use the sink water. People didn’t really wash their hands for that reason. And, many of the sinks aren’t completely in working condition – e.g. the hot or cold water won’t work, or they’ll be too dirty to use. Sometimes they have maggots, fruit flies, or other bugs. I shared my sink with my cellmate as well as inmates whose sinks didn’t work.
11. Generally, we were allowed to shower as much as we wanted, but all of us share only a few showers, and the area is not large enough to be six feet away from anyone else. The showers are filthy. They are sprayed down every other day, but if the inmates want them wiped down, we have to do it ourselves.
12. Each inmate got one roll of toilet paper twice per week. If there was a toilet paper shortage, they would not restock unless it was toilet paper day. And, we never got any paper towels. Once or twice a week, the deputies would slide a pile of c-fold napkins through a window into the common area. There was no established way to distribute them. Inmates could take as many as they wanted from the pile, so sometimes there weren’t enough for everyone.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-4 filed 05/04/20 PageID.417 Page 3 of 3

13. We don’t have disinfectant to clean the tables or any other surfaces, such as the toilets, sinks, or showers. Every few days, the trustee would spray all of the surfaces with a bleach cleaner. They sprayed every other day during the last ten days that I was at the jail. The trustees did not wipe the surfaces after they sprayed. And, most of the time they missed surfaces, and I would have to instruct them to spray a surface that they missed like a toilet, sink, or shower. After the trustees sprayed, we used toilet paper or c-fold napkins, when we had them, to wipe the surfaces clean. Because the trustees only sprayed every few days or every other day, we could not disinfect any surfaces after each use.
14. Aside from the bar soap, we have to purchase hygiene products. On average, I spent about $10-$20 on hygiene products and clothes.
15. The staff started wearing gloves and masks around March 20.
16. The jail is not taking this situation seriously, and people are going to get very sick and possibly die. The inmates are feeling desperate inside. We are literally helpless inside.

____________________________ TERI NICKEL

______________________ DATE

Case 2:20-cv-11094-MAG-EAS ECF No. 3-5 filed 05/04/20 PageID.418 Page 1 of 3
DECLARATION OF DOMINICK KELLY
I, Dominick Kelly, certify under penalty of perjury that the following statement is true and correct:
1. My name is Dominick Kelly. I am 21 years old, and I am currently incarcerated in Ward 509 at the Wayne County Jail-Division II (also known as the “old jail”). I have been in the Wayne County Jail since March 31, 2020. I first got locked up in the jail on September 28 then I went to Ryan Correctional for a program, but the program was cut short because of coronavirus. There were a couple of people sick at Ryan.
2. I have asthma for which I am prescribed an Albuterol inhaler. I am also allergic to tomatoes, and the jail keeps giving me food with tomatoes.
3. When I arrived back at the Wayne County Jail on March 31, I was held in quarantine in the “new jail” for three days. The unit in which I was quarantined at the new jail had about 10 different 5x5 rooms all lined up next to each other. I was in a cell by myself, but they were not sealed. They were like cages.
4. The staff took my temperature when I got there, but I was not asked about my health otherwise. I wasn’t asked any questions about how you were feeling, or whether you felt sick.
5. During the three days I was there, the Jail staff didn’t mention anything about coronavirus.
6. During those three days, I was physically touched or at a distance of less than six feet from approximately six officers. Some wore gloves and others wore nothing. But no one wore masks. I also did not have gloves or a mask.
7. During meal service, the trustees came and served us food. They were wearing gloves but no masks. The food is served in a foam carryout type container. A jail guard opens the top and looks inside before they hand it to us. They never wore gloves or masks when they did that, and the box was about two feet from their face when they did that.
8. When we’re done eating, the trustees come around to collect the trays.
9. My cell in quarantine had a single bed, and a toilet that doesn’t have a lid. It’s one foot from the bed. The toilet itself was clean, but if the toilet next to me is flushed then the excrement flows into the toilet in my cell. The sink looked clean.
10. During those three days, five inmates, including myself, shared one shower. The shower is not cleaned after each use. I didn’t see it get cleaned one time in three days.
11. I was given a clean uniform in quarantine. I only got one bar of soap for three days. It’s a hotel bar size. We use that to wash our hands and to shower. I would run out after one shower. In order to conserve, I broke the bar in half. I asked multiple times for soap, but the jail wouldn’t give it to me. Apparently, they did not have anymore soap to give me.
12. I got one clean towel in quarantine. I did not receive a new roll of toilet paper. I used the one that was already in the cell that look like it had been partially used. We had no paper towel, no kleenex, no c-fold napkins.
13. In quarantine we have no access to cleaning products, and I never saw anyone clean the showers or phone or any of the other common areas like the tables or round bench stools.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-5 filed 05/04/20 PageID.419 Page 2 of 3
14. During quarantine only one person is let out their cell at a time. We each have one hour. Nothing is cleaned between each person’s hour outside of their cell.
15. After the three days of quarantine I was put in handcuffs and taken to the fourth floor of the new jail, the mental health ward. I was there for a couple of days. We can only have towels during part of the day. I was provided with a dirty mat and slept in a dirty cell. The mental health ward is filthy. The walls are covered in feces, pee, and vomit. You can smell the toilets. They’re filthy. The sinks are filthy. The walls are filthy.
16. There is no hand sanitizer in mental health ward or in quarantine. We have access to soap in the mental health ward. I use the same towel to wipe off after I shower as I do to dry my hands. The only thing I have to dry my hands when I don’t have a towel is my clothes.
17. There are 4 mental health rocks, with anywhere from 6 people to 13 people. You have a dirty mat and they give you two covers. There is one room where there is one bed. Otherwise, there are two beds and two people in each a cell. The beds are stacked bunkbeds. There is about 2 ½ -3 ft between beds.
18. The cells are open, but you go back in your room every 30 minutes. Each rock has one shower that all of the inmates share. I’ve never seen anyone clean the shower. They aren’t cleaned unless the inmates clean them, but when I asked they wouldn’t give me disinfectant. I didn’t see anyone clean the phones off. This time when I asked for paper towel and spray they said they didn’t have it. There are tables set up like in the quarantine rock but a little bit bigger. On the small rock there are three tables. The tables are not cleaned. Nothing ever gets cleaned on the mental health ward. Sometimes if you’re lucky you get spray.
19. When I was on the mental health floor there were people coughing, throwing up, wheezing. Nobody was wearing masks or gloves. None of the inmates got masks anywhere in the jail that I saw until April 11. The mask is like a doctor’s mask.
20. The mental health ward stinks. There is no air flow. My cell was right next door to a person who was sick. The cells have regular bars.
21. The inmates talked about coronavirus. One of the inmates said they had Covid, but I didn’t know whether he was telling the truth.
22. Of the two days I was in the mental health ward, I saw more than five staff. Some were wearing protective wear. Others were not.
23. In the mental health ward, the trustees serve food. They serve it in the same way as they do in the quarantine rock. They had gloves but no masks. They slide the food under the bars.
24. Then I was moved to a rock on the new side. I was there for two days. There were 6 people all together, four of those five were people I had not previously been with. I was not tested for coronavirus.
25. I slept alone in a cell with a toilet and a sink. We have a limited amount of soap there. Everyone shares one shower. I’ve never seen it cleaned. I never saw any disinfectant, and never saw anyone wipe it down. We also share tables. In the two days I was there, the

Case 2:20-cv-11094-MAG-EAS ECF No. 3-5 filed 05/04/20 PageID.420 Page 3 of 3

tables were never cleaned. There is one telephone. It was not wiped down. None of the inmates had masks or gloves. Some staff wore masks and gloves and some didn’t.
26. About a day after I got on that rock, I still had the same blankets, but I was given a different mat. It was better than the mat in mental health but not clean.
27. Jail staff still didn’t talk about coronavirus.
28. A few days ago I got transferred to the old jail. I am in a single man cell with a sink and toilet. We are out of our cells from breakfast to 6 pm. The other inmates told me that someone on our rock got really sick before I came. He is not there anymore but his stuff is still in his cell. They took him to medical and never brought him back.
29. We haven’t been able to shower in a couple of days because the shower is flooded. We get a couple of bars of soap every week, but they’re the little hotel bars.
30. The tables are only cleaned if we clean them. They give us a bottled cleaning spray, rag, and a mop that they change once a week, but we only have access to the spray bottle once a day, in the morning.
31. There’s one telephone for everyone to share. We can only clean it once daily – in the morning when we have the spray. Nobody comes in to clean.
32. When I arrived on the rock, no one had masks. The deputies serve us food on the old side where I am now. They inconsistently wear masks and gloves. Sometimes one or the other, sometimes nothing, and sometimes both.
33. The cell bars are not cleaned, and I have black mold in my room on the top corner on my cell.
34. The nurses come around if they need to pass out meds.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Dominick Kelly on April 16, 2020.

/s/ Allison L. Kriger By: Allison Kriger

Date: April 16, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 3-6 filed 05/04/20 PageID.421 Page 1 of 2
DECLARATION OF SHANE CARLINE
I, Shane Carline, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746:
1. My name is Shane Carline. I am 33 years old, and I have been at the Wayne County Jail since January of 2020. I am currently being housed in Ward 509 at Division II (also known as the “old jail”).
2. I am in a one-man cell.
3. I have hepatitis C, and I have a high liver enzyme count. So, I am more suspectable to infection. I have not been given any medication.
4. There are three guys on the rock. We had a fourth, Davonte Velez, but he was taken out because he was sick. He was sick for four days before he was removed from the rock. We didn’t have any masks at that point.
5. Until April 17, Mr. Velez’s personal belongings was still in his cell. I complained to the jail that Mr. Velez’s stuff should be removed because it posed a health risk. In response, a deputy ordered me to clean it up. I was not given any gloves.
6. All of the inmates share one shower. On or about April 8 the shower flooded, and was unusable. We kept asking the jail to fix the shower, but no one came to fix it until April 15. No one was able to shower for those 7 days. While the showers were out people were taking bird baths.
7. Food is served at the only table on the rock. That’s where everyone eats. Although we have masks, we all take them off to eat, and we are only a couple of feet away from each other.
8. The deputies serve food. They wear masks and gloves, but they touch a number a number of surfaces with the gloves that they use to touch the food boxes that they hand to us. They use those gloves to touch the cart that they bring the food trays on, the juice they hand us from a milk crate.
9. We only have access to cleaning supplies once in the morning. We get a mop, a bucket with disinfectant, a broom, and a dustpan.
10. All of the inmates share one tablet and one telephone. We don’t have any way to clean the tablet or phone after each use. We can only clean them once daily.
11. We were given masks on April 10. They are cloth surgical masks. Some of the jail staff is wearing masks and gloves, but some are not.
We’re given three hotel bars of soap per week to wash clothes, hands, bodies. They are palm size, and it makes me break out with little bumps and what looks like psoriasis. If we run out, we have to ask another inmate. The jail won’t give us more soap, and we don’t have access to hand sanitizer.
12. We wash our clothes in the sink or shower. I use the same towel to dry my hands as I do to shower. We get a clean uniform once weekly, but sometimes it is every two weeks. Laundry has been inconsistent. This week, for example, we got new towels but no new blankets. We’ve had the same blankets for three weeks.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-6 filed 05/04/20 PageID.422 Page 2 of 2

13. No one has been tested for COVID. I know of only one person who was screen and that was done by taking his temperature.
14. A couple of weeks ago, I tried to commit suicide. I swallowed a bunch of meds. I woke up in the hospital. The deputy who escorted me wasn’t wearing any protective wear the entire time. When I got back to the jail, I went to the mental health ward where I was locked down for 24 hours to make sure I wasn’t suicidal. Then I was put back in general population without any testing or screening.
15. The Jail isn’t telling us anything about COVID. When I ask about COVID they dismiss what we have to say. When inmates say they are scared or in fear of getting sick or dying, the deputies tell us that we are in the best place possible. One deputy told us that he had been exposed to people with the virus but hadn’t caught it.
16. A week and a half ago, the jail hung signs on the bars saying “use a tissue for coughs” and “avoid touching your face.” We have no tissue, but we have toilet paper. However, we only one roll per week, and if we run out we are told that we cannot get anymore. We have to borrow extra from our neighbors.
17. To put in a request for med attention, you have to fill out a medial kite. You can do it once in the morning or once at night. Then, you have to wait for someone to respond. It took the jail two and a half weeks to respond to my request about my hepatitis condition.
18. Nurses come in the morning to distribute medication and at night. Sometimes they don’t bring medication at all. The medical staff is wearing gloves and masks, but when they distribute medication, they use and reuse the same cups for multiple inmates. At times, the medical staff does not pay attention and passes out incorrect medication.
19. In terms of staffing levels, I have noticed the deputies are coming around less. Usually they make rounds every 30 mins, but lately it’s been every two hours.
20. People are in fear for their lives. We hear all of this horrible stuff on the news, and we People feel like they’re not being protected.
21. The conditions in here are horrible. There is lead paint chipping off the ceiling. There’s black mold in the showers. All around the drain in the shower is broken.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Shane Carline on April 22, 2020.

/s/ Allison L. Kriger By: Allison Kriger

Date: April 22, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 3-7 filed 05/04/20 PageID.423 Page 1 of 2
DECLARATION OF CARL SMELLEY
I, Carl Smelley, certify under penalty of perjury that the following statement is true and correct:
1. My name is Carl Smelley. I am 38 years old. I am currently incarcerated at the Wayne County Jail-Division II (“Old Jail”) in Detroit, Michigan on cellblock 604. I have been in the jail since November of 2019.
2. I have hypertension, diabetes, sickle cell, and acid reflux. I’m scared of dying from COVID. Everyone around me is scared of dying and never getting to see our families again. Everyone in here knows that if they get sick, we’re not going to get the medical treatment we need. We’re the lowest people on the totem pole.
3. Regular requests for medical treatment take anywhere from two weeks to one month. And, that’s if we get any response at all. It’s not uncommon for the jail not to respond. There is a guy on my unit who is sick right now. He’s been sick in the bathroom a lot. He asked for medical treatment, but the deputies just dismiss requests for medical attention.
4. No one has been tested. You have to almost be dead before they’re going to consider testing or evaluating you. And, lately, the inmates have been scared to tell the jail staff that they feel sick because they have been responding with threats. The deputies tell us that if we complain about being sick they’ll “quarantine” us, but what that really means is that we will get disciplined. A couple of deputies came by the rock after two guys were disciplined for talking about jail conditions to someone using one of the tablets. The video was released to the news, and the deputies were laughing, saying, “they [the inmates] got what they wanted. Now they’re on 24 hour lockdown. They’re safe”
5. I am in a one-person cell with a single bunk, a sink, and a toilet. The toilet doesn’t have a lid, and it is approximately a couple of feet away from my bed.
6. Including me, there are five guys total on this cellblock. From 6:00 am to about 10:00 pm we are outside of our cells. We share one shower, one tablet, one phone, one bench for eating and the same bench for watching tv between all five guys. If we are all sitting at the bench, we’re body to body. We are sitting so close to one another that we can’t even put our elbows up.
7. The jail gave each of us one mask on April 11. It is a cloth surgical mask. We have not received a clean one since. When we are sitting on the bench for meals, no one is wearing their mask.
8. Meals are served on trays by the Deputies. Sometimes the deputies who serve food are not wearing masks and sometimes they are. They use gloves, but they are already wearing the gloves when they come into the unit. They use the same gloves to touch multiple surfaces before they touch our trays.
9. After we are finished eating, the tables are not sanitized. We don’t have any access to disinfectant of any kind, so we have to use water and an old ripped towel to wipe the tables down. That is also true with the shower, phone, and tablet.
10. Jail staff comes in to clean the shower once a week or every other week. I have never seen the phone or tablet cleaned.
11. The inmates each get three two-inch bars of bar soap per week. We use that soap for washing our body, hands, and clothes because they only change linens and clothing once per month. If we run out of soap, the jail will not give us any more soap, even if we ask for soap. The soap that they give us is the worst soap ever. It dries my skin out. If we want any extra soap, we have to buy it through commissary. One bar of soap is $1.65.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-7 filed 05/04/20 PageID.424 Page 2 of 2

12. We have no access to kleenex or paper towel. We only get one roll of toilet paper per week. We don’t get more if we run out. The deputies said they were told they are only allowed to pass out one roll per week.
13. The jail hasn’t given us any information about COVID or hung any posters. They only tell us that we are in the best position in here because we haven’t been outside. Otherwise, the only way I know about COVID is from the news.
14. Commander Collins was on my rock right before he died. I know of multiple deputies who were on our rock who have been diagnosed with COVID. Still, some of the deputies do not wear masks or gloves.
15. On April 13, I was arraigned by video. I was handcuffed by a deputy who was not wearing a mask. He took me to the new jail where I was placed next to about four other guys who I had never seen before. None of us were wearing masks or gloves. Then, after the arraignment, I was taken back to the old jail and placed back on 604. I was not tested or otherwise screened for COVID before or after the arraignment. They did not even take my temperature.
This declaration was orally sworn to by Carl Smelley on April 22, 2020. Because he is in custody, I am unable to obtain his signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Carl Smelley. on April 22, 2020.

/s/ Allison L. Kriger By: Allison Kriger

Date: April 22, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 3-8 filed 05/04/20 PageID.425 Page 1 of 2
DECLARATION OF MARLON BLANKS
I, Marlon Blanks, certify under penalty of perjury that the following statement is true and correct:
1. My name is Marlon Blanks. I am 26 years old, and I have been in custody at the Wayne County Jail since April 7, 2020.
2. I have COVID-19, and I am scared I am going to die because I have severe asthma. I have a prescription for an inhaler to control and treat my asthma, but the jail has refused to give it to me. I have repeatedly asked the deputies and medical staff for my inhaler but they dismiss my requests. One deputy told me to “fuck off” and a nurse responded that “I didn’t know what I was talking about.”
3. When I first arrived at the Jail, I was held in “quarantine” for four days on the 11th floor of Division I (the “New Jail”). There were 8-10 other men in the unit, and although we each had our own cell, air freely passed between cells. No one was tested, no one was wearing masks, and at least two new detainees were brought into the unit while I was there.
4. For whatever reason, after the first night, I was moved to a different cell within the unit, and after the second night, I was moved again, but I remained in the unit. The sink in the first cell was unusable because the sink and toilet water were connected, and the sink water appeared to be tainted with fecal matter. The sink water in the second cell was greenish in color, and the basin smelled moldy.
5. All the men in the unit shared two tables, a shower, and two phones. Even though one of the guys in the unit was ill, we had no access to cleaning products, and the jail staff did not clean any point.
6. During the first day, we were out of our cells for about six hours. The following three days, we were only out for about an hour. The Jail provided us with two two-inch bars of soap, but because we had so little time the last three days, I had to choose between showering and calling my family to check in.
7. The deputies were responsible for serving food. Only one in three wore masks and gloves. For the first two days, we all ate at the tables. It was impossible to maintain a distance of six feet from any other person. The last two days, we ate in our cells.
8. On or about April 11, I was transferred to Division I (the “Old Jail”). I received a new uniform, but I had to use the same towel and linens that I was provided in Division I.
9. I am now in the coronavirus wing on the 14th floor of the Old Jail. There are about ten guys in this unit. Everyone in the unit has tested positive for COVID-19, and the Jail is bringing new guys in all the time. They also have the virus. I’m not sure how we are supposed to get better if they keep doing that.
10. I am in a one-person cell, but we share one shower, a couple tablets, and a phone. There is a television in the unit, but there is no seating, so we all crowd around the television on the floor or standing up leaning against a railing. We all have masks, but some of the guys don’t wear them. None of us have gloves.
11. The unit has only been cleaned once in two weeks, and we don’t have access to disinfectant. Every morning, we get a mop bucket with the same water from the day before. I’m not sure whether the Jail puts any disinfectant in the water.
12. The Jail provides us with soap once weekly. Everyone always runs out, but the Jail won’t give us more, even if we ask. We do not have access to paper towel, so if we wash our hands, we use our towel or uniform to dry them. We only get no more than one roll of toilet paper weekly, and we do not have access to hand sanitizer.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-8 filed 05/04/20 PageID.426 Page 2 of 2

13. I have only gotten one new uniform since I was transferred to Division II, and I have not received a new towel or new linens.
14. Initially, the Jail staff didn’t tell anyone in the unit that we were infected with the coronavirus, and we didn’t think to ask until we noticed the deputies wearing hazmat suits and infrequently doing rounds. When we asked the Jail staff what was going on, they told us they turned our unit into the infirmary, but there is notable difference between our unit and any other. There’s no medical equipment, oxygen, ventilators, and we aren’t getting any medication.
15. The Jail hasn’t given us any additional information about COVID-19, but a nurse posted a sheet of paper up that lists COVID-19 symptoms.
16. We’re all very concerned. The Jail seems to be hiding what is going on. Most of the time, the deputies are just dismissive, and they treat us like we’re less than human. Some people have worse symptoms than others, but no one is getting any real medical care. We are all scared of dying.
This declaration was orally sworn to by Marlon Blanks on April 28, 2020. Because he is in custody, I am unable to obtain his signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Marlon Blanks on April 28, 2020.

/s/ Allison L. Kriger_______ ALLISON L. KRIGER

April 28, 2020 DATE

Case 2:20-cv-11094-MAG-EAS ECF No. 3-9 filed 05/04/20 PageID.427 Page 1 of 3
DECLARATION OF CALDERONE PEARSON
I, Calderone Pearson, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746:
1. My name is CalDerone Pearson. I am 30 years old. I am currently incarcerated in the Wayne County Jail Dickerson Facility.
2. Until April 27th, 2020 I was a trustee in the jail, I worked in the laundry room. I usually worked from 7:30AM to 2PM. During my shift there were 8 or 9 workers and 2 supervisors. They bring the laundry from all of the jail facilities to Dickerson to be cleaned, including from the facilities downtown.
3. Being in this jail gives me a lot of anxiety, I am always thinking about if I have the virus. Sometimes I feel like I am having a hot flash because I am so anxious.
4. No one in the facility has been tested.
5. There was one guy on my pod when I lived in E1 who was sick for at least two weeks and I’m pretty sure he was sick with the virus. He was coughing and vomiting every day. The nurse would come to our pod and give him Tylenol two or three times a day. He went to the medical unit at least twice and they kept sending him back to the pod. After lockdown each night you could hear him coughing throughout the pod. It was so loud it sounded like a dog barking. He was finally taken out and he died a few days ago.
6. On E1 there were about 30 men on my pod. We shared a common area that is about 20 x 20 feet. It is impossible to stay six feet away from other people in the common areas. We shared the same tables at meals, three to a table, and watch TV in the common area.
7. We all shared the same showers and the same toilets. There were 4 showers and 2 toilets on my floor.
8. Until April 27th, our food was prepared by other inmates. One day two of the cooks came out and said they haven’t been able to taste or smell. The cooks do not wear face masks while they are making our food. One of the civilian workers in the kitchen had coronoavirus. I think she had to take time off to recover.
9. On E1 there were 6 pod workers. Two pod workers serve the breakfast trays to the other inmates.
10. We were constantly asking for masks. Some of the guys have asthma and COPD. One guard tried before we finally got them but was told no because the masks have a small metal piece.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-9 filed 05/04/20 PageID.428 Page 2 of 3
11. When we finally got masks we were told we had to keep them for two weeks. After one day they were worn down and used. The masks they gave us are blue on the outside and white on the inside. They look like a surgical mask. I asked about getting N95 masks and the corporal said to me “if we don’t have those masks why would you?”
12. Some of the deputies don’t wear masks, but they tell us if we don’t wear the masks we will get locked down.
13. At least ten guys were sick when I was on E1 pod. One day they were fine, and the next day they were so weak they could hardly walk and looked like they were about to fall over. This lasts about 10 days and then they seem to start feeling better.
14. There was a nurse who came to our pod to bring people their medicine. Every time she told us not to talk to her unless we already receive medicine. She gave us a hard time if we tried to ask for help. Some of the inmates try to argue with her but she always says the same thing. In order to get a medical appointment we have to fill out a request form, called a kite, and she won’t give us the forms. She will tell us to get out of line.
15. The guards in my unit wear masks and gloves. One guard even had on a hazmat suit. When they come in to the pod they spray their computer and desk with Lysol. When we ask to use the Lysol to clean our own cells they tell us no.
16. We have not heard anything about COVID-19 from the jail staff. Everything I have learned about this disease has come from watching TV.
17. If anyone has any symptoms of the disease they are given a Tylenol and sent back to the pod.
18. I was moved to Unit G1, cell 115, where they put people during intake. The cell was disgusting so I asked for cleaning solution. There was dried urine in the toilet. The whole cell smelled like urine. The toilet bowl is white but has turned orange because of the dried waste. There was hair everywhere in the cell and the floor, and in the sink. There were many short pieces of hair. I asked for a mop and a toilet brush to clean the cell. The guard told me to use C-Folds, those are the paper towels. We have to ask every time we need to use them. He said I should use those to clean the toilet with my bare hands. After I asked for more supplies the guard got irritated and said here just take the bottle of the cleaning solution and gave me the simple green. I don’t think simple green works. If it did why don’t the guards use it to clean their stuff?
19. When I started sweeping I noticed small black bugs popping up off the floor in the cell. I went back and asked the guard to move me. Then I moved to cell 116. I then tried to clean this cell with the same broom and saw more bugs. I asked to be moved again and the guard said I couldn’t move. I asked to speak with the sergeant, he came and said I was disobeying an order and I was moved to segregation. In segregation there

Case 2:20-cv-11094-MAG-EAS ECF No. 3-9 filed 05/04/20 PageID.429 Page 3 of 3
was no hot water there to take a shower. I asked to get cleaning solution and all they gave me was simple green.
20. I was in segregation for three days. It is 23 hour lock down and you stay in your cell all day. There is no access to commissary and you can’t use the phone. They give you your meals through a slot in the door.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to CalDerone Pearson on April 30, 2020.
/s/ Ashley Carter By: Ashley Carter Date: April 30, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 3-10 filed 05/04/20 PageID.430 Page 1 of 2
DECLARATION OF CHARLES RUSSELL
I, Charles Russell, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746:
1. My name is Charles Russell. I am 59 years old. I have been in the Wayne County Jail Dickerson Facility since March 20th, 2020. I am currently living division E1. Before this I was on division G1 where they do intake.
2. I have stage 3 prostate cancer. I am diabetic, have high blood pressure and an umbilical hernia that is trying to come through my skin.
3. I have not been taken to radiation treatments since being in the jail. I am supposed to go 5 days a week. The only medicine I have been given is Flomax.
4. I am sure my doctors are wondering where I am. I was in treatment Monday through Friday at 9:45AM before coming to jail. I see a radiologist and a urologist.
5. I need my treatment really bad. If I don’t get it my cancer will probably spread. I was scheduled for a minimum of 50 treatment shots.
6. In the jail they say there is no doctor for me to see. They told me there is no one to take me to my treatments because so many deputies are out sick.
7. They tell us there are no doctors available and no doctors on staff in the jail. We just found out that two of the doctors that work for the jail have died from coronavirus.
8. I live on a pod. They just added 6 or 7 more people. There are 25 people now. They keep bringing new people into our pod from the outside. It makes me nervous because there is no way for them to know if these individuals have the coronavirus. They only thing they may do is take your temperature.
9. We all share the bathroom on my pod. There are 8 showers but only three work. There are 8 toilets and 8 sinks, 4 of the toilets are out of service. It’s pretty sad.
10. People are on the phones constantly trying to talk to family. There are 8 phones on the pod that we all share. I am in charge of cleaning them. This is a job that I took on myself for my own health and protection and the health of the other inmates. I clean them three times a day some sort of cleaning liquid. There is no label so I don’t know what it is. I have to ask the officers for gloves to clean with. One day we had no gloves. People were using garbage bags to cover their hands and serve our food.
11. Each day we get three meals. Until recently we got a cold breakfast and a hot lunch and dinner. Now we get a cold breakfast, a hot lunch and a cold dinner, 2 bologna sandwiches. I have a personal cup that I use that I bought from the commissary. I have had to make my

Case 2:20-cv-11094-MAG-EAS ECF No. 3-10 filed 05/04/20 PageID.431 Page 2 of 2
own disinfectant. I use shampoo, Irish spring soap that I brought from the commissary and a spray that I got. They give us soap but it’s nothing like what you would buy at a store.
12. I don’t know how much things cost exactly. I have a $45 dollar charge on my commissary account for an identification bracelet the jail requires us to buy. If anyone puts money on my account it will be taken to pay this fee so I ask other inmates to purchase my soap for me. I think it costs $1.65.
13. The only information we get is from the news. They haven’t given us anything or any information, there is nothing even posted on the pod, but the officers protect themselves.
14. The jail is not as clean as it should be. We should get bleach to clean. Right now only the deputies have it and they keep it in a secluded area that only they can access. They won’t allow us to clean our rooms with it, or even add it to the water that we mop with. They don’t use it in the dining area either. They use a diluted cleaning soap for that. We use the same stuff to clean the floors, the bathrooms, the tables.
15. It is very stressful. I am waiting to see a judge but they have been putting my case off for weeks. Now they don’t even know when I will go back to court. They only send a few people each day to court on video. It is like you have to wait for your name to be called.
16. I’ve had 4 dry runs to go to court. That is when there is a scheduled court date but I haven’t been able to actually have my appearance. They keep telling me to be patient. The guards in classification told me that because I’m accused of a probation violation I’m a low priority. There are at least three others on my pod like me waiting to see a judge.
17. It is hard to do social distancing because we are always in contact. I’m scared every night. A lot of us are scared. After two weeks of suffering they took this guy to the hospital and two days later he died. There are a couple individuals who are sick on my pod. The guards don’t believe people when they say they are sick.
18. Two weeks ago I had a bad headache, nausea, was feverish and stayed in bed all day. I spoke with the nurse and she said there was nothing she could do because there was no doctor. She didn’t give me anything.
19. They just opened up a pod for coronavirus victims and they have them on oxygen. They are bringing them from downtown. They moved people out of a pod to use it for that.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Charles Russell on April 28, 2020.
/s/ Ashley Carter By: Ashley Carter Date: April 28, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 3-11 filed 05/04/20 PageID.432 Page 1 of 2
DECLARATION OF CHRISTOPHER HUBBARD
I, Christopher Hubbard, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746:
1. My name is Christopher Hubbard. I am currently incarcerated in the Wayne County Jail Dickerson facility. I am 26 years old. I have been in the jail since February 24, 2020. I currently live in unit E1. Before this I spent 14 days in unit F1 and 5 days in unit H1.
2. I am diabetic and I have asthma. I had pneumonia last fall, around October 2019. I have had pneumonia at least three other times.
3. When I first got to this unit I was placed in the cell Michael Meshinski was in, the guy who died from coronavirus. Another inmate told me that it had been his cell. I checked with a deputy who looked in the system and it was true. I asked to be moved right away. I don’t think they even cleaned the room before I was moved there.
4. I got moved to another cell. I try to clean my own room. I use simply green and soap that I purchased from the commissary. The soap costs about $1.62.
5. On the pod we all share a bathroom. There are 8 toilets and 8 sinks. Some of the sinks are stopped up and all of the showers don’t have hot water.
6. The inmates clean the bathroom. They are called unit workers. They use a green chemical called Simple Green. Every two weeks a corrections officer uses bleach to spray the bathroom. They don’t use this bleach to clean the cells. The officers use Lysol to clean their own areas. We aren’t allowed to use it for ours.
7. The common area is cleaned at night with simple green. There are 2 tvs and 12 small couches that we all share. We eat meals together, 4 people to a table. The table is about 4 ½ feet by 3 feet.
8. I don’t think simple green works because if it did the officers wouldn’t bring their own supplies. They bring Lysol, I saw one bring pine sol, they have other name brand supplies. They don’t let us use it when we ask.
9. We got masks a few weeks ago but we don’t have gloves. Some unit workers have gloves but they don’t even have enough for all of them. A few days ago the guys serving food didn’t have gloves and they were using plastic bags to cover their hands.
10. I got into an argument with an officer about my insulin and he put me in the hole for 7 days. It was around lockdown time when we are all supposed to go to bed. I asked if he could call the medical workers and ask about my insulin and inhalers because my blood sugar has been super high. He said he would get to it. I went to get water from the sink in the common area which is the cleanest one and he told me to go to the bathroom to get the water. I told him that this was messed up and that I was being medically neglected. I didn’t

Case 2:20-cv-11094-MAG-EAS ECF No. 3-11 filed 05/04/20 PageID.433 Page 2 of 2
want to use the sink in the bathroom because it’s dirtier and people leave stuff in it. He said if I didn’t like it then I shouldn’t come to jail. I told him that just because we are here doesn’t mean that they can treat us poorly and deny our medical needs.
11. The hole is even more messed up than other parts of the jail because it’s where they have people who are showing symptoms of coronavirus.
12. There are individual cells and it is packed down there. You can hear people coughing. You can see officers really suited up, like covered from head to toe. There are showers but the water is so cold you can’t really use it. They are supposed to let us out for an hour each day but they usually don’t.
13. The hole does not smell good. It smells musty and in the cells it feels damp like a basement. There were probably 17 people down there when I left. Inside my room was a bed, toilet connected to a sink, a small mirror and a window that I could not see out of. I saw mice and roaches down there.
14. In the hole they don’t really change our sheets or do the laundry. They are supposed to do it once a week but they don’t.
15. They give us food through a slot in the door.
16. When I was in the hole I felt pissed, sad and mad. I was depressed and worried.
17. They are supposed to check my blood sugar at least one time per day. They’ve gone from testing once a day to once a week.
18. I spoke to a nurse who knows I’m supposed to get insulin. In here they give me a pill that is different than what I take outside of the jail. The nurse said that if it makes me feel funny I should stop taking it.
19. I need insulin coverage and the correct inhaler. I requested a steroid inhaler and they keep bringing an albuterol inhaler. If my blood sugar gets too high I could go into a diabetic coma.
20. Outside of the jail I usually go to the doctor once a month. I try to work out a lot and try eat healthy. The food they give us here has a lot of starch and causes my blood sugar to be raised.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Christopher Hubbard on April 27, 2020.
/s/ Ashley Carter By: Ashley Carter Date: April 26, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 3-12 filed 05/04/20 PageID.434 Page 1 of 2
DECLARATION OF MARK MALEC
I, MARK MALEC, certify under penalty of perjury that the following statement is true and correct:
1. My name is Mark Malec. I am 38 years old. I am currently incarcerated at the Wayne County Jail-Division III (“Dickerson”) in Hamtramck, Michigan. I have been in the Jail since January 12, 2020. From January 12 to April 20, I was in in cellblock E-1. On April 20, I was diagnosed with COVID-19, and was moved to a different unit.
2. I have asthma, low blood sugar, and kidney problems. I recently had surgery to remove kidney stones, and I have a fractured spine for which I am prescribed medication. On April 20, I was diagnosed with COVID-19.
3. The Jail hasn’t given us any information about COVID-19. At the beginning of April, they started making announcements every day at 4:00 pm. They told us to maintain social distancing, but then they would acknowledge that they knew that wasn’t possible. They also told us that we should wash our hands, but, when they first started telling us that, one of the deputies commented that he knew we were out of soap. It is common for us to run out of soap. Lately, however, the Jail has been keeping soap in stock.
4. After I learned about COVID-19 from the news and from my girlfriend more than a month ago, I was really scared. The Jail has done almost nothing to protect anyone. They still aren’t doing enough. That’s why I am not at all surprised that I got COVID-19.
5. In mid-March, Michael Meshinski, a guy in my unit who worked in the laundry department and was responsible for laundry for the entire Jail, started coughing constantly and all over the unit. This lasted for about three weeks. At that time, there were about 50 of us inmates living in E-1, and none of the inmates had masks or gloves. We all had our own cell to sleep in, but during the day were all packed together into a common space with bad ventilation that makes it almost impossible to get six feet away from anyone at any given time. All of us share showers, toilets, sinks, telephones, tablets, and tables. Those surfaces are cleaned by the inmates with a green spray only twice a day, once at 2:00 pm and once at 10:00 pm. The spray is Simple Green, which is not a disinfectant.
6. During the three weeks that Michael was coughing, he was taken to medical a few times, but he always came back to our unit that same day. On or about April 1, a deputy came in and looked at Michael, and seemed to notice how obviously sick he was. The deputy said something about Michael needing to go to medical. After that, he left our unit and never came back. A sergeant came to our unit, sprayed Michael’s room down, and took all of his stuff out. We asked the Sergeant, “did he have COVID?” and the Sergeant responded, “I can’t confirm that and I can’t deny that.”
7. After Michael Mishinski died, the Jail responded to the news coverage by saying that we all had masks. That was completely untrue. The first time we ever got masks was on April 9. They are cloth masks like you see at the dentist office. They told us we have to use these

Case 2:20-cv-11094-MAG-EAS ECF No. 3-12 filed 05/04/20 PageID.435 Page 2 of 2

for two weeks, and then after two weeks, we can get a clean one. The Jail also publicly said that nobody in here has any symptoms. That is also completely untrue, and they know it.
8. A lot of the guys have been sick throughout the past several weeks. I first started feeling sick in early April. I had head aches and I wasn’t able to taste anything for a couple of weeks. I’ve also had a cough and a cold and was coughing up black phlegm. When I first started feeling sick, I complained to the guards, and they told me to tell a nurse. I told the nurse that I thought I had the virus. She asked if I had a fever, but she didn’t take my temperature and didn’t test me. She gave me Tylenol. The medical staff gets hostile if the inmates complain about feeling sick, and their response is always that we should take Tylenol. One of the guys in my unit complained a few times, and never got any medical attention. And, there’s another guy in my unit with cancer who hasn’t had any treatment in over a month.
9. I kept telling the guards and nurses that I was sure I had COVID-19 because of my symptoms. They didn’t test me until April 20, and I tested positive for COVID-19. I have been in what the Jail calls “quarantine” since then. Really, it’s just a regular unit but no one can come out of their cell, except for once a day. The Jail keeps bringing more sick people into the unit, so we keep getting exposed to the virus again, and I feel like I won’t ever get healthy. We are not in any kind of pressurized rooms. The air just passes freely from one cell to the other.
10. The deputies hand out meals, which we eat in our cells. Some of them wear gloves and masks and some of them don’t. All of the detainees wear masks but not gloves, and we all share tablets, phones, and showers. They are cleaned with Simple Green after each use, but with disinfectant only once weekly.
11. The Jail has not provided any real medical treatment for COVID-19 patients. We have not seen doctors, and there is no special equipment. We are getting Tylenol, cough syrup, and Gatorade. We are all still scared to death.
12. I’m not even supposed to be locked up anymore. I completed my sentence to the jail plus program, and I don’t know why I’m not out yet.
This declaration was orally sworn to by Mark Malec on April 28, 2020 because he is in custody, I am unable to obtain his signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Mark Malec on April 28, 2020.

/s/ Allison L. Kriger_______ ALLISON L. KRIGER

April 28, 2020 DATE

Case 2:20-cv-11094-MAG-EAS ECF No. 3-13 filed 05/04/20 PageID.436 Page 1 of 2
DECLARATION OF HARRY WHITE I, Harry White, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746:
1. My name is Harry White. I am 36 years old. I have been in the jail since February 2020.
2. I have a bullet on my spine and a heart murmur. I suffer from paralysis where sometimes I lose feeling in my feet and hands. I can’t stand or walk for long.
3. I am currently on pod E3, one of the workers pods. Before this I lived on G3, another workers pod. This is where people in the work release program live. It’s pretty nasty. The floors and walls are dusty. About 5-7 men left every day to go to work and then they return back here. It was an open pod. There was an open area with 4 beds. We all shared the bathroom, about 45 of us. There were 4 bathrooms with showers on the upper level and 4 bathrooms with showers on the lower level. Before C1 I lived on G3.
4. They gave us a paper mask that only gets changed every two weeks. The mask tears easily, it’s the cheapest mask you could ever wear. Once you wear it it tears on the sides.
5. I bought my own soap. They have some soap that they give people but you have to ask the officers for it at their desk. We don’t have access to paper towel, we have to ask the guards for napkins and for toilet paper.
6. There is a guard on my pod who had coronavirus. He came back but he still seems sick and shows symptoms. You can hear him coughing all night long.
7. I’ve been kiting to the doctors but I haven’t seen one yet. I send a kite every day. I don’t think the nurse turns them in because there is no doctor.
8. When I had a tooth cracked I was sent to the dentist. She gave me an ibuprofen and said to let her know if I wanted it pulled.
9. I need medicine to help me for pain and also for my nerves because of the bullet on my spine. With the pain it is hard to move around. The pain feels like pins in my hands and feet. The only thing they give me is one ibuprofen and tell me to see a doctor but there isn’t one.
10. When I’m not in jail I go to the doctor frequently, like every week. I’m supposed to start physical therapy. After I was shot I had to learn to walk again. I was supposed to be placed on a medical floor but it never happened.
11. When I first got here I used to tell the deputies about my pain every day. They said if you aren’t dying you’re not going to see a doctor.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-13 filed 05/04/20 PageID.437 Page 2 of 2
12. I see coronavirus on TV and keep hearing someone in the kitchen died. When the guards hear something bad coming from the TV they unplug it.
13. No one has been tested for coronavirus.
14. I’m nervous and scared to be in the jail. If I catch any disease I don’t know if I’ll make it because of my heart murmur.
15. I can feel things getting worse. I was taking meds for my nerves, without it it’s hard for me to get out of bed. I’m supposed to take it three times per day. When I wake up my hands and feet are numb. When I try to walk it feels like my bones are cracking. I’ve noticed I’ve started to walk with a limp. All they’ve given me is ibuprofen.
16. Some days I miss breakfast or lunch because I can’t get out of bed. I had a surgery in my stomach to try and remove the bullet. The doctors told me I have to be careful because of where the bullet is on my spine.
17. If I get sick or catch corona I won’t last long in here. They are treating us worse than animals.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Harry White on April 28, 2020.
/s/ Ashley Carter By: Ashley Carter Date: April 28, 2020

Case 2:20-cv-11094-MAG-EAS ECF No. 3-14 filed 05/04/20 PageID.438 Page 1 of 2
DECLARATION OF DAVONTE VELEZ
I, Davonte Velez, certify under penalty of perjury that the following statement is true and correct:
1. My name is Davonte Velez. I am 26 years old, and I have been in custody at the Wayne County Jail since March 26, 2019.
2. I have asthma for which I was prescribed an albuterol inhaler before I was detained. And, in the past my asthma has been so bad that I have had to do a breathing treatment. I have not had an inhaler since I got locked up. I’ve asked the jail for it, and my family has called, but the Jail won’t give it to me because it’s not on my medical sheet. I am terrified because I tested positive for COVID-19 earlier this month and again a couple of weeks later.
3. I started to feel ill on April 2, 2020. I was in the “Old Jail” at the time, and no one had masks or gloves. I spoke to one of the deputies, Officer Peoples, and he told me that I should lie down.
4. I consistently asked for medical treatment for the next five days. In addition to telling the guards about how I didn’t feel well, I also filled out medical kite, and spoke to a nurse about how I felt. I said that I had shakes, that I was coughing, and that I didn’t have an appetite. In response, she gave me Tylenol, but she did not check my temperature, nor did she test me for COVID-19.
5. Finally, after five days, on April 7, I spoke to the deputy on duty. He took me in the hallway and called a nurse who took my temperature. It was 103.
6. I was taken to the medical unit at the “New Jail.” I waited in the waiting room for approximately two hours, after which I was transported to Dickerson.
7. I was initially placed in segregation. There were about three us there. Then, I was moved to CMU, the medical unit. There were about five other men in that unit, all of whom were sick. We all shared a shower, but we were essentially unable to use it because the hot water didn’t work.
8. Shortly after I arrived, CMU flooded with toilet water so we had to move to H-3.
9. There are approximately 11 men in H-3. We are locked in our rooms for 23 hours per day. They Jail lets us out for one hour per day. They stagger us so we are all out at different times. Outside of our rooms, there is a common area with tables, a shower, tablets, and phones. Everyone shares those things. The unit is cleaned before the next person comes out, but the Jail uses only Simple Green to clean, which is not a disinfectant. I have never seen anybody clean with bleach or lysol or anything like that.
10. The Jail doesn’t tell us anything about COVID-19. The Jail didn’t even tell me I had tested positive for the virus until two weeks after I was transferred to Dickerson. When I asked why they waited so long to tell me, the Jail said two doctors had died so they have to send all of the records to some doctors in Atlanta.
11. Recently, I was tested again, and I still tested positive for COVID-19. There is another guy in H-3 who has tested positive three times since April 6. I’m really scared because I know this virus can kill people with asthma, and I’m not getting better. The virus is supposed to go away after two weeks, but I’ve been sick for almost one month. The Jail keeps transferring new sick men into the unit, and everyone has different symptoms. Even though we all have masks, I told the Jail that it seems like no one will get better if we keep getting reexposed to the virus.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-14 filed 05/04/20 PageID.439 Page 2 of 2

12. Being locked in a room for 23 hours per day without being able to talk to anyone is causing me and some of the other guys to have psychological problems. For 23 hours per day I think about how I’m stuck in here with all of these sick people and I’m not getting better. When I try to ask the Jail staff about COVID-19 and what’s going on, they don’t give me any answers. It seems like no one knows what’s going on and they don’t have any system in place to deal with the pandemic.
This declaration was orally sworn to by Davonte Velez on April 29, 2020. Because he is in custody, I am unable to obtain his signature.
Under penalties of perjury, I declare that I have read the foregoing in its entirety to Davonte Velez on April 29, 2020.

/s/ Allison L. Kriger_______ ALLISON L. KRIGER

April 29, 2020 DATE

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.440 Page 1 of 94
Avendaño Hernandez v. Decker, Slip Copy (2020)

2020 WL 1547459 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Gaspar AVENDAÑO HERNANDEZ, Petitioner, v.
Thomas DECKER et al., Respondents.
20-CV-1589 (JPO) |
Signed April 1, 2020 |
Filed 03/31/2020
Attorneys and Law Firms
Alina Das, Washington Square Legal Services, Inc., New York, NY, Hannah McCrea, Brooklyn Defender Services, Paige Austin, Make the Road New York, Brooklyn, NY, for Petitioner.
Michael James Byars, U.S. Attorney’s Office, New York, NY, for Respondents.
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
*1 In this action, a petition for a writ of habeas corpus under 28 U.S.C. § 2241, Gaspar Avendaño Hernandez seeks relief from his detention by U.S. Immigration and Customs Enforcement. Avendaño Hernandez has filed a letter motion to compel Respondents to release him pursuant to Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). (Dkt. No. 9.) For the reasons that follow, the motion is granted.

Petitioner Gaspar Avendaño Hernandez is a resident of Brooklyn, New York. (Pet. ¶ 1.) On February 6, 2020, he was arrested by U.S. Immigration and Customs Enforcement, or ICE, and detained at the Hudson County Correction Facility. (Pet. ¶¶ 15, 45.) On February 24, 2020, Petitioner filed a habeas petition asserting four claims — including, most relevantly, a claim that he is being denied adequate medical care. (Dkt. No. 1 ¶ 110–15.) On March 30, 2020, Petitioner filed an amended habeas petition asserting the same claim in the renewed context of the COVID-19 epidemic. (See Pet. ¶¶ 119–26)
Petitioner suffers from several severe medical conditions. During Petitioner’s arrest, ICE officers tased Petitioner between fifteen and twenty times in the legs and back. (Pet. ¶¶ 18–19.) He subsequently received medical treatment at Maimonides Medical Center, at which he was diagnosed with a right bundle branch block, or “an interruption or alteration of the electrical conduction of the heart.” (Pet. ¶ 33.) He was also diagnosed with rhabdomyolysis, “a condition in which breakdown of muscle fiber release[s] protein into the blood,” potentially resulting in “damage to the kidneys, dangerous electrolyte abnormalities, [or] death.” (Pet. ¶ 34.) Petitioner was instructed to obtain “follow-up care with a cardiac specialist,” including “an echocardiogram and electrocardiogram.” (Pet. ¶ 121.) Petitioner has not yet received this follow-up care during his detention at Hudson County Correction Facility. (Pet. ¶ 122.)
On March 22, 2020, the first case of COVID-19 was reported at Hudson County Correction Facility. (Pet. ¶ 90.) Petitioner faces an increased risk of death from COVID-19 due to his underlying medical conditions. (Pet. ¶¶ 94, 97.) Hudson County Correction Facility has implemented some measures to slow the spread of COVID-19 in the facility (Dkt. No. 11 at 4); however, “[s]ocial distancing is impossible.” (Pet. ¶ 92.)
On March 23, 2020, Petitioner filed a motion seeking interim release pending disposition of the habeas petition under Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). The motion argues that Petitioner is “particularly vulnerable to COVID-19” and that the Hudson County Correction Facility cannot “respond adequately” to the health risks posed by the disease. (Dkt. No. 9 at 1–3.)

I. Background The following facts are taken from the petition for writ of habeas corpus, as amended, and are essentially undisputed for purposes of this motion. (See Dkt. No. 12 (“Pet.”).)

II. Legal Standard “[T]he federal courts have inherent authority to admit to

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

1

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.441 Page 2 of 94

Avendaño Hernandez v. Decker, Slip Copy (2020)

bail individuals properly within their jurisdiction.” Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). This power “is a limited one, to be exercised in special cases only.” Id. To obtain relief, “[t]he petitioner must demonstrate that the habeas petition raise[s] substantial claims and that extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective.” Id. (second alteration in original) (quoting Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990)).

or extreme pain.” Charles, 925 F.3d at 86 (quoting Hathaway, 99 F.3d at 553). But in the context of the COVID-19 epidemic, these conditions render Petitioner peculiarly at risk of serious injury or death in the event he contracts COVID-19. (Pet. ¶ 97; see also Dkt. No. 12-2 at 16 (enumerating “high-risk” categories for COVID-19).) Notably, Respondents do not appear to dispute that Petitioner’s medical conditions place him in a high-risk category for experiencing serious injury or death from COVID-19. (Dkt. No. 11 at 4.)

III. Discussion *2 To obtain interim release under Mapp v. Reno, Petitioner must demonstrate both that his petition raises “substantial” claims and that “extraordinary circumstances” exist. Each requirement is discussed in turn.

Furthermore, Petitioner’s medical need remains unmet. The record indicates that Respondents have not taken any action to address the particular risks that COVID-19 poses to high-risk individuals like Petitioner. Rather, Respondents cite only generalized “proactive measures to prevent detainees within its care from contracting and spreading the virus,” including

A. Substantial Claims Among other claims, the petition for a writ of habeas corpus asserts a claim of deliberate indifferent to Petitioner’s medical needs while in detention. (Pet. ¶¶ 119–26.) Civil detainees enjoy the right to be free from deliberate indifference to their serious medical needs. See Charles v. Orange County, 925 F.3d 73, 85–86 (2d Cir. 2019). For federal detainees, the relevant guarantee is the Fifth Amendment’s Due Process Clause. See id. That guarantee encompasses the rights of Petitioner, as the Due Process Clause applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Deliberate indifference requires a two-part showing. First, Petitioner must establish that he has a serious, unmet medical need. See Charles, 925 F.3d at 86. Second, Petitioner must establish that Respondents acted with deliberate indifference to that need.
Here, the first requirement is easily established. A serious medical need is one that “may produce death, degeneration, or extreme pain.” Id. (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). Petitioner’s rhabdomyolysis, if left untreated, “can lead to kidney damage and death.” (Pet. ¶ 121.) Relatedly, Petitioner was also diagnosed with an abnormality in his cardiac electrical conduction. (Id.) Standing alone, these conditions already present a risk of “death, degeneration,

modifying the intake process for all

incoming

detainees

and

pre-screening of all newly admitted

detainees prior to admission to the

facility ...; suspending all contact

and non-contact visits at the jail;

dramatically increasing sanitation

frequency in housing units at the

jail; and screening of all employees

and vendors who enter the jail.

(Dkt. No. 11 at 4.) These measures, however, are unresponsive to Petitioner’s specific medical need — the risk posed by COVID-19 to high-risk individuals in particular. See, e.g., Coronel v. Decker, No. 20-CV-2472, 2020 WL 1487274, at *5 (S.D.N.Y. Mar. 27, 2020) (“[The government] has not isolated these high-risk individuals. It has not created special safety or hygiene protocols for them or for staff interacting with them to follow.... And of course, it has not released [Petitioner], even though doing so is within the agency’s sound discretion.”). Thus, Petitioner has met the first requirement to state a claim for deliberate indifference.
*3 The second requirement is also met. To establish that Respondents acted with deliberate indifference, Petitioner “can allege either that [they] knew” or that they “should have known” that failing to provide the complained of medical treatment would pose a substantial risk to his health.” Charles, 925 F.3d at 87. As an initial matter, Petitioner has established that Respondents had actual knowledge of his serious, unmet medical condition. On

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

2

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.442 Page 3 of 94

Avendaño Hernandez v. Decker, Slip Copy (2020)

March 24, 2020, Petitioner submitted a letter to ICE detailing his medical needs and asserting, in particular, his heightened risk for serious harm or death from COVID-19 due to his underlying heart conditions. (Dkt. No. 12-2 at 59.) Respondents are therefore aware of Petitioner’s medical condition and the particularized risk posed to them by COVID-19.
Despite this knowledge, Respondents “can point to no specific action that [they have taken] in direct response to this serious, unmet medical need.” Coronel, 2020 WL 1487274, at *5. Respondents cite “proactive measures” like modification of the intake process and increasing sanitation frequency. (Dkt. No. 11 at 4.) But even if such measures sufficed to meet the medical needs of ordinary detainees, those measures “do nothing to alleviate the specific, serious, and unmet medical needs of ... high-risk [detainees].” Coronel, 2020 WL 1487274, at *5; see Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (holding that even if a policy were “generally justifiable ... the application of the policy in [a particular] case could ... amount[ ] to deliberate indifference”). Nor is it clear that these measures are “generally justifiable.” As courts in this Circuit have concluded, such measures are “patently insufficient” to protect any detainees from infection absent “enforcement of requisite social distancing.” Basank v. Decker, No. 20-CV-2518, 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020); see also Coronel, 2020 WL 1487274, at *5 (noting that “[n]one of these steps are adequate to mitigate the transmission of the virus when there’s already documented community-based transmission, and spread of coronavirus from staff, vendors, or contractors” (alteration in original)).
In short, Respondents had actual knowledge of Petitioner’s serious, unmet medical need and did nothing in response. The Court concludes that such facts state a substantial claim for deliberate indifference. See Coronel, 2020 WL 1487274, at *6 (concluding petitioners were likely to succeed on deliberate-indifference claim because the government failed to “introduce[ ] any evidence of actions it took in response to the particular risk COVID-19 poses to high-risk individuals like the Petitioners”); Basank, 2020 WL 1481503, at *5 (concluding petitioners were likely to succeed on deliberate-indifference-claim because the government “could [not] provide the Court with any information about steps taken to protect high-risk detainees like
End of Document

Petitioners”).
B. Extraordinary Circumstances Release under Mapp is appropriate only if “extraordinary circumstances ... make [immediately release] necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 230 (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)). “Severe health issues” are “the prototypical ... case of extraordinary circumstances that justify release pending adjudication of habeas.” Coronel, 2020 WL 1487274, at *9. Such is the case here. Petitioner argues that he is being subject to unconstitutional conditions of confinement — specifically, continued risk of exposure to COVID-19 — and he seeks release so that he can avoid infection. “If Petitioner[ ] were to remain detained, [he] would face a significant risk that [he] would contract COVID-19 — the very outcome [he] seek[s] to avoid.” Id. Accordingly, immediate release is necessary to “make the habeas remedy effective.” Mapp, 241 F.3d at 230 (quoting Iuteri, 662 F.2d at 161).
IV. Conclusion *4 For the foregoing reasons, Petitioner’s motion to compel immediate release pending resolution of his habeas petition is GRANTED. The Court hereby orders Respondents to immediately release Petitioner on reasonable conditions. The parties are ordered to meet and confer and to propose reasonable bond conditions no later than April 1, 2020, at 1:00 p.m.
The Clerk of Court is directed to close the motion at Docket Number 9.
SO ORDERED.
All Citations
Slip Copy, 2020 WL 1547459
© 2020 Thomson Reuters. No claim to original U.S. Government Works.

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

3

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.443 Page 4 of 94

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.444 Page 5 of 94
as Director of the New York Field Office of ICE, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO at 1, ECF No. 6.
For the reasons stated below, the TRO is GRANTED, and (1) Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities, are ORDERED to immediately release Petitioners today on their own recognizance, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.
BACKGROUND Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. They are housed in New Jersey county jails where either detainees or staff have tested positive for COVID-19. TRO at 3–4. Specifically, Basank, Benitez Pineda, and Mazariegos are detained at the Hudson County Correctional Facility (“Hudson County Jail”). Petition ¶¶ 5, 7, 11. Barrera Carrerro, Hernandez Balbuena, Legall, Martinez, and Menendez are detained at the Bergen County Correctional Facility (“Bergen County Jail”). Id. ¶¶ 6, 8, 9, 10, 12. Pena and Picazo Nicolas are detained at the Essex County Correctional Facility (“Essex County Jail”). Id. ¶¶ 13–14.1 Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of death or serious injury in immigration detention if exposed to COVID-19. Basank is 54 years old and has a lengthy history of smoking. Id. ¶ 5. Barrera Carrerro, age 39, has underlying
1 During oral argument, Respondents represented to the Court that five Petitioners—Hernandez Balbuena, Legall, Menendez, Basank, and Benitez Pineda—are expected to be released today. However, because Petitioners are not yet released, and because counsel for Petitioners indicated, and Respondents did not dispute, that ICE may take as long as a day to complete the release process, the Court enters the TRO as to all Petitioners directing their immediate release today without fail.
2

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.445 Page 6 of 94
health conditions, including obesity, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding. Id. ¶ 6. Benitez Pineda is 44, with pulmonary issues and a history of hospitalization for severe pneumonia. Id. ¶ 7. Hernandez Balbuena suffers from diabetes and diabetes-related complications. Id. ¶ 8. Legall is 33 years old, and suffers from respiratory problems, including asthma. Id. ¶ 9. Martinez, age 56, suffers from severe heart disease, and has a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery. Id. ¶ 10. Mazariegos is 44, and suffers from high blood pressure and pre-diabetes. Id. ¶ 11. Menendez is 31 years old and suffers from chronic asthma. Id. ¶ 12. At 36, Pena is asthmatic and has chronic obstructive pulmonary disease (“COPD”), which require inhalers and other medical treatment. Id. ¶ 13. Picazo Nicolas, age 40, suffers from Type II diabetes and morbid obesity. Id. ¶ 14.
On March 16, 2020, Hannah McCrea, an attorney with Brooklyn Defender Services, emailed Assistant United States Attorney Michael Byars, requesting that ICE release particularly vulnerable individuals, including Basank, Legall, Martinez, and Picazo Nicolas. Harper Decl. ¶ 2, ECF No. 6-1. On March 18, 2020, AUSA Byars responded that he did “not have a timeframe for ICE’s response.” Id. ¶ 3. On March 24, 2020, Alexandra Lampert, also a lawyer with Brooklyn Defender Services, emailed Byars to request the release of additional individuals identified as particularly vulnerable, including Barrera Carrerro, Benitez Pineda, Hernandez Balbuena, Mazariegos, Menendez, and Pena. Id. ¶ 4. On March 25, 2020, Lampert again emailed Byars and informed him of Petitioners’ intent to seek a temporary restraining order in the Southern District of New York, with the amended petition attached, thus putting Respondents on notice of Petitioners’ serious medical conditions and their request for injunctive relief. Id. ¶¶ 5, 7.
3

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.446 Page 7 of 94
At 12:30 p.m. today, the Court held a telephonic hearing on Petitioners’ request for a TRO.
DISCUSSION I. Legal Standard
“A plaintiff seeking a temporary restraining order must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Natera, Inc. v. Bio-Reference Labs., Inc., No. 16 Civ. 9514, 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (internal quotation marks, citation, and alteration omitted).
“It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). “The showing of irreparable harm is perhaps the single most important prerequisite for a preliminary injunction.” CF 135 Flat LLC v. Triadou SPY N.A., No. 15 Civ. 5345, 2016 WL 2349111, at *1 (S.D.N.Y. May 3, 2016) (internal quotation marks, citation, and alteration omitted). Under this prong, the movant “must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.” NAACP v. Town of E. Haven, 70 F.3d 219, 224 (2d Cir. 1995). To satisfy this requirement, a movant must demonstrate “that he would suffer irreparable harm if the TRO does not issue.” Andino, 555 F. Supp. 2d at 419. “The district court has wide discretion in determining whether to grant a preliminary injunction.” Almontaser v. N.Y.C. Dep’t of Educ., 519 F.3d 505, 508 (2d Cir. 2008) (internal quotation marks and citation omitted) (per curiam).
4

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.447 Page 8 of 94
II. Analysis A. Irreparable Harm
In the Second Circuit, a “showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citations omitted). That harm must be “actual and imminent” rather than speculative. Id.
Petitioners have shown irreparable injury by establishing the risk of harm to their health and to their constitutional rights.
1. Risk of Death On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. Petition ¶ 26. At that time, there were more than 118,000 cases in 114 countries, and 4,291 people had died. Id. ¶ 27. Merely two weeks later, there have been at least 458,927 cases identified in 172 countries and at least 20,807 people have died. Id. New York and its surrounding areas have become one of the global epicenters of the outbreak. Id. ¶ 35. Petitioners are held at detention facilities located in northern New Jersey. See id. ¶¶ 5–14. As of March 26, 2020, New Jersey has 4,407 confirmed cases of COVID-19—the second highest number of reported cases by any state after New York. Niko Kommenda and Pablo Gutierrez, Coronavirus map of the US: latest cases state by state, The Guardian (Mar. 26, 2020), https://www.theguardian.com/world/ng-interactive/2020/mar/26/coronavirus-map-of-the-uslatest-cases-state-by-state. New Jersey also has the fourth most COVID-19 related deaths in the country. Id. The three counties where the jails are located—Bergen, Essex, and Hudson counties—comprise one-third of the confirmed cases of COVID-19 in New Jersey, with Bergen County reporting 819 positive results, Essex reporting 381 positives, and Hudson 260. Petition
5

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.448 Page 9 of 94
¶ 36. The jails are no exceptions. Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19. Id. ¶ 41. This includes two detainees and one correctional officer in the Hudson County Jail; one detainee at the Bergen County Jail; and a “superior officer” at the Essex County Jail. Id.
The nature of detention facilities makes exposure and spread of the virus particularly harmful. Jaimie Meyer, M.D., M.S., who has worked extensively on infectious disease treatment and prevention in the context of jails and prisons, recently submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers, including the Hudson, Bergen, and Essex County Jails, “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.
Moreover, medical doctors, including two medical experts for the Department of Homeland Security, have warned of a “tinderbox scenario” as COVID-19 spreads to immigration detention centers and the resulting “imminent risk to the health and safety of immigrant detainees” and the public. Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/ doctors-ice-detention-coronavirus/index.html. “It will be nearly impossible to prevent widespread infections inside the Hudson, Bergen, and Essex County jails now that the virus is in the facilities because detainees live, sleep, and use the bathroom in close proximity with others, and because ‘[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’” Petition ¶ 47 (internal quotation marks and citation omitted).
Petitioners face serious risks to their health in their confinement. Each has underlying illnesses, including asthma, diabetes, heart disease, hypertension, obesity, and respiratory
6

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.449 Page 10 of 94
problems including COPD. Id. ¶¶ 5–14. The Court takes judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality. People at Risk for Serious Illness from COVID-19, Centers for Disease Control (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019ncov/specific-groups/high-risk-complications.html (“Older people and people of all ages with severe underlying health conditions—like heart disease, lung disease and diabetes, for example—seem to be at higher risk of developing serious COVID-19 illness.”); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, Centers for Disease Control (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html (listing, among other medical diagnoses, “moderate to severe asthma,” “heart disease,” “obesity,” and “diabetes” as conditions that trigger higher risk of severe illness from COVID-19); see Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”); Brickey v. Superintendent, Franklin Corr. Facility, No. 10 Civ. 085, 2011 WL 868148, at *2 n.3 (N.D.N.Y. Feb. 17, 2011) (taking judicial notice of the meaning and symptoms of the condition sciatica), report and recommendation adopted, 2011 WL 868087 (N.D.N.Y. Mar. 10, 2011); Lin v. Metro. Life Ins. Co., No. 07 Civ. 03218, 2010 WL 668817, at *1 (S.D.N.Y. Feb. 25, 2010) (“In its decision, the Court took judicial notice of certain medical background information about Hepatitis B.”).
A number of courts in this district and elsewhere have recognized the threat that COVID19 poses to individuals held in jails and other detention facilities. See United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a
7

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.450 Page 11 of 94
heightened risk of contracting COVID-19 should an outbreak develop.”) (collecting authorities); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)); see also Letter from Mike McGrath, Chief Justice, Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), https://courts.mt.gov/Portals/ 189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID-19%20032020.pdf?ver=2020-0320-115517-333 (“Because of the high risk of transmittal of COVID-19, not only to prisoners within correctional facilities but staff and defense attorneys as well, we ask that you review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for nonviolent offenses. . . . Due to the confines of [correctional] facilities, it will be virtually impossible to contain the spread of the virus.”). Indeed, at least one court has ordered the release on bail of a non-citizen in immigration detention on the ground that detention conditions have been rendered unsafe by COVID-19. Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507. Addressing the situation in New Jersey specifically, the New Jersey Supreme Court has held that “reduction of county jail populations, under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19” in light of “the profound risk posed to people in correctional facilities arising from the spread of COVID-19,” and has ordered the release of many individuals serving sentences in New Jersey
8

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.451 Page 12 of 94
county jails. In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020).
Courts have also recognized this health risk to be particularly acute—and of constitutional significance—for inmates who are elderly or have underlying illnesses. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk to his health the pandemic poses. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelter-in-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO. See Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (upholding finding of irreparable injury “premised . . . upon [the district court’s] finding that [plaintiff] was subject to risk of injury,
9

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.452 Page 13 of 94
infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services . . . certainly constitutes irreparable harm.”).
2. Constitutional Violations Second, Petitioners have also shown irreparable injury because, as discussed below, they face a violation of their constitutional rights. In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm. See, e.g., Connecticut Dep’t of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citations omitted)); Statharos v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that immigration detainee established irreparable injury by alleging that prolonged immigration detention violated his constitutional due process rights). The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the TRO.
B. Likelihood of Success on the Merits The Court concludes that Petitioners have met their burden of showing a likelihood of success on the merits. Petitioners argue that their continued confinement in ICE detention centers where COVID-19 is present and without adequate protection for their health violates their due process rights. TRO at 8. The Court agrees.
10

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.453 Page 14 of 94
The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate’s “transfer while seriously ill” where that transfer posed a risk of fatal heart failure).
Immigration detainees can establish a due process violation for unconstitutional conditions of confinement by showing that a government official “knew, or should have known” of a condition that “posed an excessive risk to health,” and failed to take appropriate action. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (“Deliberate indifference . . . can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety.” (internal quotation marks, citation, and alterations omitted)). The risk of contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious.2 It can no longer be denied that Petitioners, who
2 Other courts have recognized the heightened risk to detainees of contracting COVID-19. See, e.g., XochihuaJaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020) (unpublished) (“In light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that [p]etitioner be immediately released from detention . . . .”); Stephens, 2020 WL 1295155, at *2 (ordering “conditions of 24-hour home incarceration and electronic location monitoring”); Chris Villani, Releasing ICE Detainee, Judge Says Jail No Safer Than Court, Law360, March 25, 2020 (“We are living in the midst of a coronavirus pandemic, some infected people die, not all, but some infected people die,” U.S. District
11

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.454 Page 15 of 94
suffer from underlying illnesses, are caught in the midst of a rapidly-unfolding public health crisis. The Supreme Court has recognized that government authorities may be deemed “deliberately indifferent to an inmate’s current health problems” where authorities “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Petitioners need not demonstrate that “they actually suffered from serious injuries” to show a due process violation. Darnell, 849 F.3d at 31; see Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to their future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted).
Respondents have exhibited, and continue to exhibit, deliberate indifference to Petitioners’ medical needs. The spread of COVID-19 is measured in a matter of a single day—not weeks, months, or years—and Respondents appear to ignore this condition of confinement that will likely cause imminent, life-threatening illness. At oral argument, Respondents represented that ICE and the detention facilities in which Petitioners are housed are taking certain measures to prevent the spread of the virus: screening detainees upon intake for risk factors, isolating detainees who report symptoms, conducting video court appearances with only one detainee in the room at a time, providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities.
These measures are patently insufficient to protect Petitioners. At today’s hearing, Respondents could not represent that the detention facilities were in a position to allow inmates
Judge Wolf said. “Being in a jail enhances risk. Social distancing is difficult or impossible, washing hands repeatedly may be difficult. There is a genuine risk this will spread throughout the jail.”).
12

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.455 Page 16 of 94
to remain six feet apart from one another, as recommended by the Centers for Disease Control and Prevention (“CDC”). See How to Protect Yourself, Centers for Disease Control (Mar. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html. Nor could Respondents provide the Court with any information about steps taken to protect high-risk detainees like Petitioners. And though Respondents represented that the detention facilities are below their full capacity, the appropriate capacity of a jail during a pandemic obviously differs enormously from its appropriate capacity under ordinary circumstances. Confining vulnerable individuals such as Petitioners without enforcement of requisite social distancing and without specific measures to protect their delicate health “pose[s] an unreasonable risk of serious damage to [their] future health,” Phelps, 308 F.3d at 185 (internal quotation marks and citation omitted), and demonstrates deliberate indifference.
The Court holds, therefore, that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners’ conditions of confinement pose excessive risks to their health.3
C. Balance of Equities and Public Interest The equities and public interest weigh heavily in Petitioners’ favor. First, Petitioners face irreparable injury—to their constitutional rights and to their health. Second, the potential harm to Respondents is limited. At today’s hearing, Respondents were unable to identify a single specific reason for Petitioners’ continued detention. And the Court finds that there is none. Petitioners’ counsel committed to ensuring the continued appearance of Petitioners at immigration hearings. And, of course, Petitioners’ failure to appear at those hearings would carry grave consequences for their respective cases. The Court finds that
3 The Court does not reach Petitioners’ additional argument that they are likely to succeed on the merits of the claim that their due process rights were violated because their current conditions of confinement are punitive. TRO at 8–9.
13

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.456 Page 17 of 94
those incentives are sufficient to safeguard Respondents’ interest in Petitioners’ in-person participation in future immigration court proceedings.
At oral argument, Respondents raised the fact that Petitioners Martinez and Pena are currently mandatorily detained pursuant to 18 U.S.C. § 1226(c).4 However, courts have the authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). Thus, Respondents have failed to justify Petitioners’ continued detention in unsafe conditions.
Finally, the public interest favors Petitioners’ release. Petitioners are confined for civil violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19 crisis, the continued detention of aging or ill civil detainees does not serve the public’s interest. See Declaration of Dr. Homer Venters ¶ 12, Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID19”); Declaration of Dr. Carlos Franco-Paredes, id. at ECF No. 81-12 at 1 (“Immigration detention centers in the U.S. are tinderboxes for the transmission of highly transmissible infectious pathogens including the SARS-CoV-2, which causes COVID-19. Given the large population density of immigration detention centers and the ease of transmission of this viral pathogen, the attack rate inside these centers will take exponential proportions, consuming significant medical and financial resources.”); Urgent action needed to prevent COVID-19 “rampaging through places of detention” – Bachelet, UNHCR (Mar. 25, 2020), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25745&LangID=e (United Nations High Commissioner for Human Rights urging that detention of people in jails
4 As represented by Petitioners’ counsel, Martinez’s § 1226(c) detention was triggered by his conviction for controlled substances trafficking in 2014, an offense for which he served no term of imprisonment. Pena’s § 1226(c) detention was triggered by misdemeanor marijuana convictions from 2002.
14

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.457 Page 18 of 94
“should be a measure of last resort, particularly during this crisis”). To the contrary, public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions. See, e.g., Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”).
CONCLUSION For the reasons stated above, the TRO is GRANTED. Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities are ORDERED to immediately release Petitioners today on their own recognizance without fail. Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. The TRO will expire on April 9, 2020, at 6:30 p.m. No later than April 2, 2020, at 12:00 p.m., Respondents must show cause why the TRO should not be converted to a preliminary injunction. Petitioners may file a response no later than April 7, 2020, at 12:00 p.m. SO ORDERED. Dated: March 26, 2020, at 6:30 p.m. New York, New York
15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.458 Page 19 of 94

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.459 Page 20 of 94

1 [“BICE”] on May 23, 2019, and, then placed into removal proceedings, with the

2 service of a Notice to Appear at the time of his arrest. Hernandez’s removal

3 proceedings are pursuant to the Immigration and Nationality Act [“INA”] §

4 212(a)(6)(A)(i)(I), for being an alien present in the United States without being admitted

5 or paroled.

6

Adelanto is a private, for-profit immigration detention facility operated by Geo

7 Group, Inc. Adelanto has the capacity to hold, under normal situations, well over

8 1,000 detainees through a contract with BICE. Over the years, and as recently as 2018,

9 DHS’s Office of the Inspector General had, repeatedly, found that significant and

10 various health and safety risks existed at Adelanto.

11

Hernandez, a citizen of Mexico, has, apparently, resided in the United States for

12 almost thirty years. His life partner is Maria Victoria de Ortiz, a lawful permanent

13 resident of the United States who resides in Altadena, California. Together, they have

14 a 12-year-old daughter, who is a United States citizen.

15

Hernandez has a history of various criminal charges and convictions. Of

16 significant note is that all of Hernandez’s convictions were for infractions or

17 misdemeanors. He has never been convicted of a felony. Hernandez has been

18 convicted of the following:

19

20

Date

Offense

Sentence

21

1997 Hit and Run with Property Damage, Cal. 40 days in jail and 36

22

Veh. Code § 20002(a)

23

2014 Theft, Cal. Penal Code § 484(a)

months probation 1 day in jail and 36

24

months probation

25

2016 Driving Without a Valid License, Cal. Fine

26

Veh. Code § 12500(a)

27

2017 Possession of a Controlled Substance, Probation extension

28

Cal. Health and Safety Code § 11377

Order – Page 2 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.460 Page 21 of 94

1

2017 Petty Theft, Cal. Penal Code § 490.2 60 days in jail and 36

2

months probation

3

2017 Trespassing, Cal. Penal Code § 602(m) 4 days in jail and 36

4

months probation

5

2018 Possession of a Controlled Substance, 30 days in jail and 36

6

Cal. Health and Safety Code § 11377 months probation

7

2019 Possession of Burglary Tools, Cal. Penal 36 months probation

8

Code § 466; Shoplifting, Cal. Penal Code

9

§ 602(m)459.5; and Driving Without a

10

License, Cal. Veh. Code § 12500(a)

11

In response to Hernandez’s May 15, 2019, convictions in Glendale, California,

12 BICE officers arrested him on May 23, 2019. Around June 12, 2019, Hernandez had

13 his first bond hearing, where bond was denied after an immigration judge found that he

14 was a flight risk due to his “multiple failures to appear in the Superior Court of

15 California and his lack of ties to the community. The immigration judge, also, found

16 that Hernandez was a mandatory detainee under INA § 236(c), which is codified as 8

17 U.S.C. § 1226(c).

18

In reviewing Hernandez’s rap sheet, provided by the Government, this Court

19 noted that Hernandez was, indeed, charged on four separate occasions – in 1997, 2003,

20 2006 and 2017 – with failing to appear in violation of Cal. Veh. Code § 40508(A).

21 But, the Court, also, noted that each of those four charges were, indeed, dismissed,

22 with one dismissed, specifically, in the furtherance of justice. So, it is noteworthy that

23 immigration judges considered dismissed charges as a basis for the conclusion that

24 Hernandez was a flight risk. It is, also, noteworthy that an immigration judge

25 concluded that Hernandez had a lack of ties to the community even though his life

26 partner and daughter reside in Altadena, California. But, those issues are not directly

27 before this Court.

28

Regardless, on November 27, 2019, an immigration judge denied Hernandez’s

Order – Page 3 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.461 Page 22 of 94

1 applications for asylum, withholding of removal and protection under the Convention

2 against Torture. On December 2, 2019, Hernandez had a Rodriguez bond hearing, at

3 which bond was denied because the immigration judge lacked jurisdiction. On

4 December 20, 2019, Hernandez filed an appeal with the Board of Immigration Appeals

5 [“BIA”]. On January 14, 2020, an immigration judge denied Hernandez’s request for

6 a change in custody, finding that he was a flight risk who had a removal order, and,

7 also, finding that Hernandez had multiple failures to appear. Hernandez’s appeal with

8 the BIA remains pending.

9

On March 4, 2020, the State of California declared a state of emergency in

10 response to the coronavirus and the resulting COVID-19 disease, which attacks the

11 respiratory system, thereby making Hernandez particularly vulnerable given his history

12 of asthma. On March 10, 2020, San Bernardino County followed suit and declared a

13 state of emergency. On March 11, 2020, the World Health Organization [“WHO”]

14 declared COVID-19 to be a global pandemic. On March 13, 2020, President Donald

15 J. Trump formally acknowledged and declared a national emergency in response to

16 WHO’s pandemic declaration.

17

On March 18, 2020, BICE announced that "[t]o ensure the welfare and safety of

18 the general public as well as officers and agents in light of the ongoing COVID-19

19 pandemic response, [it] will temporarily adjust its enforcement posture beginning today

20 ... [and that its] highest priorities are to promote life-saving and public safety

21 activities." Further, BICE stated that it would focus enforcement "on public safety risks

22 and individuals subject to mandatory detention based on criminal grounds [, and for

23 those people who do not fall into those categories, agents] will exercise discretion to

24 delay enforcement actions until after the crisis or utilize alternatives to detention, as

25 appropriate."

26

According to the United States Centers for Disease Control and Prevention, the

27 coronavirus is spread mainly through person-to-person contact. More specifically, the

28 coronavirus is spread between people who are in close contact – within about 6 feet –

Order – Page 4 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.462 Page 23 of 94

1 with one another through respiratory droplets produced when an infected person coughs

2 or sneezes. The droplets can land in the mouths or noses, or can be inhaled into the

3 lungs, of people who are within about 6 feet of the infected person. Moreover, studies

4 have established that the coronavirus can survive up to three days on various surfaces.

5

COVID-19 is highly contagious and has a mortality rate ten times greater than

6 influenza. Most troublesome is the fact that people infected with the coronavirus can

7 be asymptomatic during the two to fourteen day COVID-19 incubation period. During

8 that asymptomatic incubation period, infected people are, unknowingly, capable of

9 spreading the coronavirus. Despite early reports, no age group is safe from COVID-

10 19. While older people with pre-existing conditions are the most vulnerable to COVID-

11 19-related mortality, young people without preexisting conditions have, also,

12 succumbed to COVID-19. There is no specific treatment, vaccine or cure for COVID-

13 19.

14

Because of the highly contagious nature of the coronavirus and the, relatively

15 high, mortality rate of COVID-19, the disease can spread uncontrollably with

16 devastating results in a crowded, closed facility, such as an immigration detention

17 center.

18

The Court will take judicial notice of the following facts, as set forth in the

19 temporary retraining order issued by this Court on March 27, 2020, in Castillo v. Barr,

20 CV 20-00605 TJH. At Adelanto, a holding area can contain 60 to 70 detainees, with

21 a large common area and dormitory-type sleeping rooms housing four or six detainees

22 with shared sinks, toilets and showers. Guards regularly rotate through the various

23 holding areas several times a day. At meal times – three times a day – the 60 to 70

24 detainees in each holding area line up together, sometimes only inches apart, in the

25 cafeteria. The guards, detainees and cafeteria workers do not regularly wear gloves or

26 masks to prevent the spread of the coronavirus. While detainees have access to gloves,

27 there is no requirement that they wear them. Detainees do not have access to masks

28 or hand sanitizer – though thorough hand washing could be more effective than hand

Order – Page 5 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.463 Page 24 of 94

1 sanitizers at preventing the spread of the coronavirus.

2

Last week, the first BICE detainee was confirmed to have been infected with

3 COVID-19 in New Jersey at the Bergin County Jail, a BICE detention facility. The

4 week before last, a correctional officer at the Bergin County Jail was, also, confirmed

5 to have been infected. As of the date of this order, two additional ICE detainees at the

6 Bergin County Jail were confirmed to have been infected.

7

On March 26, 2020, Judge Analisa Torres of the United States District Court for

8 the Southern District of New York issued an order releasing certain immigration

9 detainees, stating the following:

10

The nature of detention facilities makes exposure and spread of the

11

virus particularly harmful. Jaimie Meyer M.D., M.S., who has worked

12

extensively on infectious diseases treatment and prevention in the context

13

of jails and prisons, recently submitted a declaration in this district noting

14

that the risk of COVID-19 to people held in New York-area detention

15

centers, including the Hudson, Bergen County, and Essex County jails, “is

16

significantly higher than in the community, both in terms of risk of

17

transmission, exposure, and harm to individuals who become infected.”

18

Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28,

19

2020), ECF No. 42.

20

Moreover, medical doctors, including two medical experts for the

21

Department of Homeland Security, have warned of a “tinderbox scenario”

22

as COVID-19 spreads to immigration detention centers and the resulting

23

“imminent risk to the health and safety of immigrant detainees” and the

24

public. Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if

25

Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020),

26

https://www.cnn.com/2020/03/20/health/doctors-ice-detention-

27

coronavirus/index.html. “It will be nearly impossible to prevent

28

widespread infections inside the Hudson, Bergen, and Essex County jails

Order – Page 6 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.464 Page 25 of 94

1

now that the virus is in the facilities because detainees live, sleep, and use

2

the bathroom in close proximity with others, and because ‘[b]ehind bars,

3

some of the most basic disease prevention measures are against the rules

4

or simply impossible.’” Petition ¶ 47 (internal quotation marks and citation

5

omitted).

6 Basank, et al., v. Decker, et al., 20 Civ. 2518 (S.D.N.Y., Feb. 28, 2020), ECF No.

7 11.

8

On March 23, 2020, the Ninth Circuit ordered, sua sponte and without further

9 explanation, the release of an immigration detainee “[i]n light of the rapidly escalating

10 public health crisis, which public health authorities predict will especially impact

11 immigration detention centers.” Xochihua-Jaimes v. Barr, 2020 WL 1429877, No. 18-

12 71460 (9th Cir. Mar. 23, 2020).

13

On March 23, 2020, Hernandez filed a petition for a writ of habeas corpus,

14 pursuant to 28 U.S.C. § 2241. Hernandez’s petition sets forth one claim – in light of

15 the recent COVID-19 pandemic, the conditions of his confinement are, now,

16 unconstitutional.

17

Hernandez’s habeas petition and the relief it seeks from this Court are not barred

18 by the fact that he might be subject to mandatory detention pursuant to INA § 236(c).

19 See Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011). While the INA does restrict

20 jurisdiction in federal courts for certain claims, it does not restrict habeas jurisdiction

21 for petitions that raise constitutional claims. See Singh, 638 F.3d at 1202.

22

Hernandez, now, moves for a temporary restraining order for his immediate

23 release from Adelanto.

24

Hernandez is entitled to a temporary restraining order if he shows: (1) A

25 likelihood of success on the merits; (2) That he is likely to suffer irreparable harm in

26 the absence of relief; (3) The balance of equities tip in his favor; and (4) An injunction

27 is in the public’s interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20

28 (2008). Under the Ninth Circuit’s sliding scale approach, a stronger showing of one

Order – Page 7 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.465 Page 26 of 94

1 element may offset a weaker showing of another. See Pimentel v. Dreyfus, 670 F.3d

2 1096, 1105 (9th Cir. 2012). Accordingly, Hernandez is entitled to a temporary

3 restraining order if “serious questions going to the merits [are] raised and the balance

4 of hardships tips sharply in [his] favor.” All. for the Wild Rockies v. Cottrell, 632 F.3d

5 1127, 1131 (9th Cir. 2011).

6

When the Government detains a person for the violation of an immigration law,

7 the person is a civil detainee, even if he has a prior criminal conviction. See Zadvydas

8 v. Davis, 533 U.S. 678, 690 (2001). As a civil detainee, Hernandez is entitled to more

9 considerate treatment than criminal detainees, whose conditions of confinement are

10 designed to punish. See Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982).

11 Moreover, under the Fifth Amendment’s Due Process Clause, a civil detainee cannot

12 be subjected to conditions that amount to punishment. See King v. Cty. of L.A., 885

13 F.3d 548, 556-557 (9th Cir. 2018).

14

When the Government takes a person into custody and detains him against his

15 will, the Constitution imposes upon the Government a duty to assume responsibility for

16 that detainee’s safety and general well being. See Helling v. McKinney, 509 U.S. 25,

17 32 (1993). Under the Eighth Amendment, the Government must provide criminal

18 detainees with basic human needs, including reasonable safety. Helling, 509 U.S. at

19 32. The Government violates the Eighth Amendment if it confines a criminal detainee

20 in unsafe conditions. See Helling, 509 U.S. at 33. Moreover, the Government may not

21 “ignore a condition of confinement that is sure or very likely to cause serious illness.”

22 See Helling, 509 U.S. at 32.

23

A civil detainee’s constitutional rights are violated if a condition of his

24 confinement places him at substantial risk of suffering serious harm, such as the harm

25 caused by a pandemic. See Smith v, Wash., 781 F. App’x. 595, 588 (9th Cir. 2019).

26 At a minimum, here, the Government owes a duty to Hernandez, as a civil immigration

27 detainee, to reasonably abate known risks. See Castro v. Cty. of Los Angeles, 833 F.3d

28 1060, 1071 (9th Cir. 2016). Inadequate health and safety measures at a detention center

Order – Page 8 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.466 Page 27 of 94

1 cause cognizable harm to every detainee at that center. See Parsons v. Ryan, 754 F.3d

2 657, 679 (9th Cir. 2014).

3

Here, Hernandez argued that the conditions at Adelanto expose him to a

4 substantial risk of suffering serious harm – increasing his exposure to or contracting

5 COVID-19. When the Government detains a person, thereby taking custody of that

6 person, it creates a special relationship wherein the Government assumes responsibility

7 for that detainee’s safety and well-being. See, e.g., Henry A. v. Willden, 678 F.3d 991,

8 998 (9th Cir. 2012). If the Government fails to provide for a detainee’s basic human

9 needs, including medical care and reasonable safety, the Due Process Clause is violated.

10 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). Indeed,

11 the Due Process Clause mandates that civil immigration detainees are entitled to more

12 than minimal human necessities. See Jones v. Blanas, 393 F.3d 918, 931 (9th Cir.

13 2004). At a minimum, here, the Government owes a duty to Hernandez, as a civil

14 immigration detainee, to reasonably abate known risks. See Castro v. Cty. of Los

15 Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). Inadequate health and safety measures

16 at a detention center cause cognizable harm to every detainee at that center. See

17 Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014).

18

In its opposition brief, the Government set forth the United States Attorney

19 General’s discretionary right to detain an alien in removal proceedings prior to a final

20 order of removal. See 8 U.S.C. § 1226. Indeed, the Attorney General has the

21 discretion to either: (1) Detain the person without bond or (2) Release the person on a

22 bond of at least $1,500.00 or on conditional parole. 8 U.S.C. § 1226(a). In making

23 the initial bond determination, a BICE officer must assesses whether the person has

24 “demonstrate[d]” that “release would not pose a danger to property or persons, and that

25 the alien is likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8). If the

26 BICE officer determines that release, with or without bond, is not appropriate, then the

27 person may appeal to an Immigration Judge. 8 C.F.R. §§ 236.1(d)(1), 1003.19,

28 1236.1(d)(1). The Immigration Judge’s decision, then, would be appealable to the

Order – Page 9 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.467 Page 28 of 94

1 Board of Immigration Appeals. 8 C.F.R. §§ 1003.1(b)(7), 1003.19(f), 1003.38.

2

However, because Hernandez, here, has asserted a claim for violations of his

3 Fifth Amendment substantive due process rights, and those claims exceed the

4 jurisdictional limits of the Immigration Court and the Board of Immigration Appeals,

5 he need not first exhaust his administrative remedies. Garcia-Ramirez v. Gonzales, 423

6 F.3d 935, 938 (9th Cir. 2005).

7

The Government argued that Hernandez lacks standing because he cannot

8 establish that he would suffer a concrete, non-hypothetical injury absent a temporary

9 restraining order in that his likelihood of contracting COVID-19 is speculative. See

10 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

11

However, it is clear that “[a] remedy for unsafe conditions need not await a tragic

12 event.” Helling, 509 U.S. at 33. The Government cannot be “deliberately indifferent

13 to the exposure of [prisoners] to a serious, communicable disease on the ground that the

14 complaining [prisoner] shows no serious current symptoms.” Helling, 509 U.S. at 33.

15 “That the Eighth Amendment protects against future harm to inmates is not a novel

16 proposition.” Helling, 509 U.S. at 33. The Supreme Court clearly stated that “... the

17 Eighth Amendment protects [prisoners] against sufficiently imminent dangers as well

18 as current unnecessary and wanton infliction of pain and suffering...” Helling, 509

19 U.S. at 33. Indeed, the Court concluded that where prisoners in punitive isolation were

20 crowded into cells and some of them had infectious maladies, “... the Eighth

21 Amendment required a remedy, even though it was not alleged that the likely harm

22 would occur immediately and even though the possible infection might not affect all of

23 those exposed.” Helling, 509 U.S. at 33. Civil detainees are entitled to greater liberty

24 protections than individuals detained under criminal processes. See Jones, 393 F.3d at

25 932.

26

In its amicus brief filed in Helling, the Government stated that it “... recognizes

27 that there may be situations in which exposure to toxic or similar substances would

28 present a risk of sufficient likelihood or magnitude – and in which there is a sufficiently

Order – Page 10 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.468 Page 29 of 94

1 broad consensus that exposure of anyone to the substance should therefore be prevented

2 – that the [Eighth] [A]mendment’s protection would be available even though the effects

3 of exposure might not be manifested for some time.” Helling, 509 U.S. at 34. The

4 Government, here, cannot say, with any degree of certainty, that no one – staff or

5 detainee – at Adelanto has not been, or will not be, infected with the coronavirus. The

6 science is well established – infected, asymptomatic carriers of the coronavirus are

7 highly contagious. Moreover, Hernandez, presently, is suffering from a condition of

8 confinement that takes away, inter alia, his ability to socially distance. The

9 Government cannot be deliberately indifferent to Hernandez’s potential exposure to a

10 serious, communicable disease on the ground that he is not, now, infected or showing

11 current symptoms. See Helling, 509 U.S. at 32.

12

It is “cruel and unusual punishment to hold convicted criminals in unsafe

13 conditions.” Helling, 509 U.S. at 33. The Eighth Amendment is violated when a

14 condition of a criminal detainee’s confinement puts him at substantial risk of suffering

15 serious harm and that the condition causes suffering inconsistent with contemporary

16 standards of human decency. See Smith v. Wash., 781 F. App’x. 595, 597-598 (9th

17 Cir. 2019). However, a civil detainee seeking to establish that the conditions of his

18 confinement are unconstitutional need only show that his conditions of confinement

19 “put [him] at substantial risk of suffering serious harm.” See Smith, 781 F. App’x.

20 597-598. Here, BICE cannot be deliberately indifferent to the potential exposure of

21 civil detainees to a serious, communicable disease on the ground that the complaining

22 detainee shows no serious current symptoms, or ignore a condition of confinement that

23 is more than very likely to cause a serious illness. See Helling, 509 U.S. at 32.

24

Under the Due Process Clause, a civil detainee cannot be subject to the current

25 conditions of confinement at Adelanto. The Supreme Court has acknowledged that it

26 has “... great difficulty agreeing that prison authorities may not be deliberately

27 indifferent to an inmate’s current health problems but may ignore a condition of

28 confinement that is sure or very likely to cause serious illness and needless suffering the

Order – Page 11 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.469 Page 30 of 94

1 next week or month or year.” Helling, 509 U.S. at 33

2

The Government, here, argued that Hernandez may not challenge the conditions

3 of his confinement through a habeas petition. Rather, according to the Government,

4 he may proceed only by way of a civil claim under 42 U.S.C. § 1983, and that the only

5 appropriate remedies under § 1983 are a judicially mandated change to the conditions

6 of confinement and money damages. The Government’s argument is misplaced.

7

In discussing the relationship between a habeas petition and a § 1983 claim, the

8 Supreme Court explained that a habeas petition is the appropriate avenue for a detainee

9 to attack the validity of the fact, or length, of confinement, with a potential remedy of

10 immediate release; whereas, a § 1983 claim is the appropriate avenue for a detainee to

11 attack something other than the fact, or length, of confinement, with a potential remedy

12 of a policy change and/or money damages. See Prieser v. Rodriguez, 441 U.S. 475,

13 494 (1973). Typically, conditions of confinement claims are raised by criminal

14 detainees while serving their criminal sentences. Consequently, immediate release

15 based on the conditions of confinement would not be appropriate, as that would

16 circumvent their criminal sentences. But, Hernandez is a civil detainee. Thus, it is

17 appropriate for him to proceed by way of a habeas petition because he challenges the

18 validity of his confinement and seeks his immediate release.

19

As the Court writes this order, the number of confirmed COVID-19 cases in the

20 United States has already exceeded the number of confirmed cases in every other

21 country on this planet. Indeed, all of the experts and political leaders agree that the

22 number of confirmed cases in the United States will only increase in the days and weeks

23 ahead. The number of cases in the United States has yet to peak. In San Bernardino

24 County, the number of confirmed cases, there, has more than tripled over the past

25 week.

26

The risk that Hernandez will flee is minimal given the current global pandemic,

27 his ties to the community, and his pending appeal before the BIA. Further, Hernandez

28 should be aware that if he is ordered released and, then, flees or violates any federal,

Order – Page 12 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.470 Page 31 of 94

1 state or local criminal law, it will have a dire impact on his pending BIA appeal and all

2 further proceedings in this case.

3

Civil detainees must be protected by the Government. Hernandez has not been

4 protected. He is not kept at least 6 feet apart from others at all times. He has been put

5 into a situation where he has been forced to touch surfaces touched by other detainees,

6 such as with common sinks, toilets and showers. Moreover, the Government cannot

7 deny the fact that the risk of infection in immigration detention facilities – and jails –

8 is particularly high if an asymptomatic guard, or other employee, enters a facility.

9 While social visits have been discontinued at Adelanto, the rotation of guards and other

10 staff continues.

11

Accordingly, Hernandez has established that there is more than a mere likelihood

12 of his success on the merits for his first claim, which is based on his Due Process

13 rights. See Winter, 555 U.S. at 20.

14

Hernandez has established that he is likely to suffer irreparable harm in the

15 absence of relief. See Winter, 555 U.S. at 20. It is well established that the deprivation

16 of constitutional rights unquestionably constitutes irreparable injury. See Hernanez v.

17 Session, 872 F.3d 976, 994 (9th Cir. 2017).

18

The balance of the equities tip sharply in his favor. Hernandez faces irreparable

19 harm to his constitutional rights and health. Indeed, there is no harm to the

20 Government when a court prevents the Government from engaging in unlawful

21 practices. See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013).

22

Finally, the emergency injunctive relief sought, here, is absolutely in the public’s

23 est interest. The public has a critical interest in preventing the further spread of the

24 coronavirus. An outbreak at Adelanto would, further, endanger all of us – Adelanto

25 detainees, Adelanto employees, residents of San Bernardino County, residents of the

26 State of California, and our nation as a whole.

27

This is an unprecedented time in our nation’s history, filled with uncertainty,

28 fear, and anxiety. But in the time of a crisis, our response to those at particularly high

Order – Page 13 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.471 Page 32 of 94

1 risk must be with compassion and not apathy. The Government cannot act with a

2 callous disregard for the safety of our fellow human beings.

3

4

Accordingly,

5

6

It is Ordered that the application for a temporary restraining order be, and

7 hereby is, Granted.

8

9

It is further Ordered that Respondents shall, by 5:00 p.m. on April 2, 2020,

10 release Petitioner Enrique Francisco Hernandez from custody pending further order of

11 this Court, and subject to the following conditions of release:

12

1. Petitioner shall reside, and shelter in place, at the residence of Maria

13

Victoria de Ortiz, 2765 Bula Court, Altadena, California 91001 [“the

14

Residence”];

15

2. Petitioner shall be transported from the Adelanto Detention Center directly

16

to the Residence by Maria Victoria de Ortiz;

17

3. Petitioner shall not leave the Residence, pending further order of the

18

Court, except to obtain medical care;

19

4. Petitioner shall not violate any federal, state or local laws;

20

5. Petitioner shall not use or posses illegal drugs; and

21

6. At the discretion of DHS and/or BICE, to enforce the above restrictions,

22

Petitioner’s whereabouts may be monitored by telephonic and/or electronic

23

and/or GPS monitoring and/or a location verification system and/or an

24

automated identification system. If necessary to comply with the permitted

25

monitoring, Petitioner shall ensure the presence of a residential telephone

26

line without devices and/or services which may interrupt operation of any

27

monitoring equipment.

28

Order – Page 14 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.472 Page 33 of 94

1

It is further Ordered that Respondents shall show cause, if they have any, as

2 to why the Court should not issue a preliminary injunction in this case. Respondents’

3 response, if any, to this order to show cause shall be filed by Noon on April 6, 2020.

4 Hernandez’s reply, if any, to Respondents’ response shall be filed by Noon on April 9,

5 2020. The matter will then stand submitted.

6
7 Date: April 1, 2020
8 9 10

__________________________________ Terry J. Hatter, Jr.
Senior United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Order – Page 15 of 15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.473 Page 34 of 94

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

AARON HOPE,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-562 Hon. John E. Jones III

MEMORANDUM AND ORDER

April 7, 2020

Pending before the Court is the Motion for Temporary Restraining Order

and/or Preliminary Injunction filed by Petitioners-Plaintiffs Aaron Hope, Iwan

Rahardja, Jesus De La Pena, Rakibu Adam, Duc Viet Lam, Yelena Mukhina,

Nashom Gebretinsae, Ismail Muhammed, Glenn Weithers, Konstantin Bugarenko,

Brisio Balderas-Dominguez, Viviana Ceballos, Wilders Paul, Marcos Javier Ortiz

Matos, Alexander Alvarenga, Armando Avecilla, Coswin Ricardo Murray, Edwin

Luis Crisostomo Rodriguez, Eldon Bernard Briette, Dembo Sannoh, Jesus Angel

Juarez Pantoja and Alger Fracois, (collectively “Petitioners”). (Doc. 5).

For the reasons that follow, the temporary restraining order shall be granted

and the Respondents shall be directed to immediately release Petitioners today on

their own recognizance.

1

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.474 Page 35 of 94
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioners are a diverse group of individuals from around the world who are
being held in civil detention by Immigration and Customs Enforcement, (“ICE”), at York County Prison and Pike County Correctional facility, (“the Facilities”), while they await final disposition of their immigration cases.
Each Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19. Hope is 32 years old and has serious respiratory problems that have led to his hospitalization for pneumonia. He also has sleep apnea and high blood pressure. (Doc. 1, ¶ 3). Rahardja is 51 years old and suffers from diabetes and hypertension. (Doc. 1, ¶ 4). De La Pena is 37 years old and suffers from severe asthma and hypertension and is over-weight. (Doc. 1, ¶ 5). Adam, 34 years old, suffers from asthma and high blood pressure. (Doc. 1, ¶ 6). Viet Lam is 50 years old and suffers from diabetes and high blood pressure. Id. at ¶ 7. Mukhina is 35 years old and suffers from asthma, a heart murmur, and hepatitis C, and has a history of blood clots and seizures. (Doc.1, ¶ 8). Gebretnisae is 28 years old and suffers from Cn’s arthritis and nerve pain, requiring many medications. (Doc. 1, ¶ 9).
Muhammed is 69 years old and suffers from asthma, is pre-diabetic, and has recently lost a significant amount of weight. (Doc. 1, ¶ 10). Weithers is 59 years old and suffers from emphysema and chronic obstructive pulmonary
2

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.475 Page 36 of 94
disease. (Doc. 1, ¶ 11). Bugarenko, age 49, suffers from pre-diabetes, high blood pressure, and diverticulitis, as well as debilitating pain that inhibits his ability to walk. (Doc. 1,¶ 12). Baldarez-Domingez is 47 years old and suffers from diabetes, atrial fibrillation, and high blood pressure. (Doc. 1, ¶ 13). Ceballos, 56 years old, suffers from high blood pressure. (Doc. 1, ¶ 14). Paul is 32 years old and suffers from traumatic brain injury, seizures, and headaches. (Doc. 1, ¶ 15).
Matos is 32 years old and suffers from diabetes. (Doc. 1, ¶ 16). Alvargena, age 46, suffers from diabetes, high blood pressure, atrial fibrillation, high cholesterol, and partial physical disability from a prior accident. (Doc. 1, ¶ 17). Avecilla is 53 years old and suffers from diabetes. (Doc 1, ¶ 18). Murray is 45 years old and suffers from asthma but has been unable to obtain an inhaler. (Doc. 1, ¶ 19). Rodriguez is 31 years old and suffers from asthma. (Doc. 1, ¶ 20). Briette is 46 years old and suffers from diabetes, high blood pressure, high cholesterol, depression, and anxiety. (Doc. 1, ¶ 21). Sannoh, 41 years old, suffers from diabetes requiring daily medication. (Doc. 1, ¶ 22). Pantoja is 36 years old and suffers from asthma, sleep apnea, and high blood pressure. (Doc.
3

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.476 Page 37 of 94

1, ¶ 23). Francois is 45 years old and suffers from hypertension, pain when he urinates, and swollen feet. (Doc. 1, ¶ 24). 1
Named as Respondents are: Clair Doll, Warden of York County Prison; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona FloresLund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION We had occasion to consider the substantially same set of circumstances less
than a week ago in our opinion Thakker v. Doll. No. 1:20-CV00480 (M.D. Pa. Mar. 31, 2020) (Jones, J.) (discussing in-depth the potential severity of COVID-19, its prevalence across the globe, and its impact upon ICE detention facilities in particular). We now begin our analysis of Petitioners’ claims guided by our previous findings.
i. Legal Standard Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of

1

We have previously held that ICE detainees have the requisite standing to bring claims

based upon imminent contraction of COVID-19, and that a habeas petition is the proper vehicle

to do so. Thakker v. Doll, No. 1:20-CV00480, at 5-6 (M.D. Pa. Mar. 31, 2020).

4

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.477 Page 38 of 94
Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
5

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.478 Page 39 of 94
ii. Irreparable Harm COVID-19 is a novel coronavirus that causes “serious, potentially permanent, damage to lung tissue, and can require extensive use of a ventilator. [20-cv-562, Doc. 3, Ex. 2]. The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.).” Thakker at 10. Because of these potentially catastrophic complications, COVID-19 has radically transformed our everyday lives in ways previously inconceivable. Most of the county can no longer leave their homes unless absolutely necessary.2 “Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home.” Thakker. at 4. Indeed, the World Health Organization (“WHO”) has declared a global pandemic3 in light of the

2

Sarah Mervosh, Denise Lu, and Vanessa Swales, “See Which States and Cities have Told

Residents to Stay at Home,” NEW YORK TIMES,

https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html (last

accessed April 7, 2020).

3

The World Health Organization (“WHO”) officially declared COVID-19 as global

pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media

briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-

briefing-on-covid-19---11-march-2020.

6

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.479 Page 40 of 94

stark realities we now face: over one million people worldwide have contracted COVID-19. Well over sixty thousand have perished as a result.4
Less than one week ago, we found that the threat of a COVID-19 outbreak in the Facilities constituted irreparable harm to substantially similar Petitioners, despite the fact that there were, at that time, no confirmed cases of COVID-19 in the Facilities. Thakker, at 7-19.5 In so doing, we noted that “it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein.” Id. at 8 (emphasis in original).
We have, unfortunately, been proven correct in this regard. As of the time of this writing, the Pike County Correctional Facility has officially reported that four ICE detainees housed therein have tested positive for COVID-19.6 Four Pike County Correctional employees have also tested positive. (Doc. 6, Ex. 3). An additional detainee at York County Prison has also tested positive. See ICE Latest Statement. And we can only assume that these numbers may well be much higher

4

See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed April 7, 2020).

5

In Thakker, we considered the potential harm faced by ICE detainees in county prisons

located in York, Pike, and Clinton Counties, finding that there was a high likelihood that

Petitioners would face severe complications, and even death, should they contract COVID-19 in

the Facilities—which we found to be a likely outcome of their continued detention. Thakker 7-

19. Here, we again consider the likelihood of irreparable harm in two of those same facilities:

those in York and Pike Counties.

6

ICE Latest Statement, ICE GUIDANCE ON COVID-19,

https://www.ice.gov/coronavirus#wcm-survey-target-id (last accessed April 7, 2020).

7

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.480 Page 41 of 94
than reported—we have allegations before us that requests by detainees for COVID-19 tests have not been granted, despite explicit knowledge that the virus has entered the Facilities. (Doc. 6, Ex. 7).
We also have further declarations that no effective containment measures have been put into place to protect Petitioners.7 Officers and medical staff, who regularly leave the confines of the Facilities and have ample opportunities to contract the virus elsewhere, do not reliably wear gloves and masks when interacting with inmates. (Doc. 3, Ex. 17; Doc. 3, Ex. 16, Doc. 3, Ex. 4; Doc. 3, Ex. 8; Doc. 3. Ex. 23). Temperature checks are infrequently conducted, even among detainees who had close contact with others who have since tested positive. (Doc. 3, Ex. 23). The cell blocks which housed those who test positive are not thoroughly evacuated and cleaned to prevent the spread. (Doc. 3, Ex. 4). We even have reports that detainees exhibiting COVID-like symptoms are remaining in general housing for days, and that once they are quarantined, no testing is being provided to those who remain. (Doc. 3, Ex. 8).
We have previously discussed in great detail how the incursion of COVID19 into ICE detention facilities could result in catastrophic outcomes, particularly in light of the grim conditions present in these specific Facilities. See Thakker at

7

We have previously discussed the overcrowding and unsanitary conditions present at

these Facilities. See Thakker at 14-15.

8

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.481 Page 42 of 94
14-15. It now seems that our worst fears have been realized—COVID-19 is spreading, and not nearly enough is being done to combat it. We cannot allow the Petitioners before us, all at heightened risk for severe complications from COVID19, to bear the consequences of ICE’s inaction. We therefore find that irreparable harm faces the Petitioners before us should they contract COVID-19.8
iii. Likelihood of Success on the Merits Petitioners argue that they are “likely to establish a due process violation through conditions of confinement that expose them to the serious risks associated with COVID-19.” (Doc. 6 at 13). For the reasons that follow, we agree. As we previously stated in Thakker, Petitioners must show that their conditions of confinement “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d

8

Many of our sister courts across the nation have agreed with our conclusion. See Thakker

at 16-19.

9

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.482 Page 43 of 94

229, 232 (3d Cir. 2008)). We therefore ask whether the conditions imposed are rationally related to a legitimate government purpose. They are not.
We previously held, considering the present living conditions present at the same detention Facilities now at issue here, that, “we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would constitute a punishment to Petitioners.” Thakker at 20-21. There is no indication that there has been an improvement in conditions at the Facilities. Indeed, all indications point towards the contrary. There are now individuals who have tested positive at both Facilities,9 and we have further accusations that those situations are not being properly contained.10 “Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.” Thakker at 21.
We further note that Respondents previously proffered legitimate government objective holds no greater sway here than it did in Thakker. The Respondents had

9

ICE Latest Statement, ICE GUIDANCE ON COVID-19,

https://www.ice.gov/coronavirus#wcm-survey-target-id (last accessed April 7, 2020).

10

See Doc. 3, Ex. 17; Doc. 3, Ex. 16, Doc. 3, Ex. 4; Doc. 3, Ex. 8; Doc. 3. Ex. 23 (alleging

that proper medical protective equipment is not being used by Facility staff, that temperature

checks and COVID-19 testing are not being performed on detainees in close contact with the

virus, and that proper cleaning of housing blocks is not taking place).

10

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.483 Page 44 of 94
maintained that “preventing detained aliens from absconding and ensuring that they
appear for removal proceedings is a legitimate governmental objective.” (Thakker,
20-cv-480, Doc. 35 at 38). However, “we note that ICE has a plethora of means
other than physical detention at their disposal by which they may monitor civil
detainees and ensure that they are present at removal proceedings, including remote
monitoring and routine check-ins. Physical detention itself will place a burden on
community healthcare systems and will needlessly endanger Petitioners, prison
employees, and the greater community. We cannot see the rational basis of such a
risk.” Thakker at 21-22. We therefore find that Petitioners are likely to succeed on
the merits of their due process “conditions of confinement” claim. 11
11 As previously discussed in Thakker, we also think it likely Petitioners will prevail under the more exacting Eighth Amendment standards as well. To succeed on an Eighth Amendment conditions of confinement claim, the Petitioners must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively ‘sufficiently serious.’” Thakker at n.15. Furthermore, we note that authorities can be “deliberately indifferent to an inmate’s current health problems” when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. “The current measures undertaken by ICE, including ‘cohorting’ detainees, are patently ineffective in preventing the spread of COVID-19,” as is now evidenced by multiple positive COVID-19 tests in both Facilities. Thakker at n.15.
11

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.484 Page 45 of 94
iv. Balancing of the Equities and Public Interest The equities at issue and public interest “weigh heavily in Petitioners’ favor.” Thakker at 23. We have already noted that Petitioners face a very real risk of serious COVID-19 complications. We also find that Respondents face very little potential harm from Petitioner’s immediate release. While we “agree that preventing Petitioners from absconding. . .is important, we note that Petitioners’ failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic.” Id. Finally, the public interest strongly encourages Petitioners’ release. “As mentioned, Petitioners are being detained for civil violations of this country’s immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, ‘the continued detention of aging or ill civil detainees does not serve the public’s interest.’” Thakker at 23 (citing Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020)). Releasing these high-risk Petitioners, and therefore providing more space for effective social
12

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.485 Page 46 of 94
distancing within the Facilities, will clearly benefit the surrounding areas. Rural hospitals will be less overwhelmed by potential detainee COVID-19 cases and there will be less of a risk that Facilities staff will carry the virus into their homes and communities. “Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and the release of these fragile Petitioners from confinement is one step further in a positive direction.” Thakker at 23-24.
III. CONCLUSION “In times such as these, we must acknowledge that the status quo of a mere
few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.” Thakker at 24.
We have before us clear evidence that the protective measures in place in the York and Pike County prisons are not working. We can only expect the number of positive COVID-19 cases to increase in the coming days and weeks, and we cannot leave the most fragile among us to face that growing danger unprotected.
We are mindful that judicial decisions such as these are both controversial and difficult for the public to absorb. It is all too easy for some to embrace the notion that individuals such as Petitioners should be denied relief simply because they lack citizenship in this country. However, Article III Courts do not operate according to
13

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.486 Page 47 of 94
polls or the popular will, but rather to do justice and to rule according to the facts and the law.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison and Pike County Correctional Facility shall be ordered to immediately release the Petitioners today on their own recognizance without fail.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. The Petitioners’ Motion for Temporary Restraining Order, (Doc. 5), is GRANTED. 2. Respondents, and the York County Prison and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance. 3. Petitioners will SELF-QUARANTINE in their respective homes for FOURTEEN (14) DAYS from the date of release. 4. This TRO will expire on April 20, 2020 at 5:00 p.m. 5. No later than noon on April 13, 2020, the Respondents shall SHOW CAUSE why the TRO should not be converted into a preliminary injunction. 6. The Petitioners may file a response before the opening of business on April 16, 2020.
14

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.487 Page 48 of 94
s/ John E. Jones III John E. Jones III United States District Judge
15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.488 Page 49 of 94

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.489 Page 50 of 94

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.490 Page 51 of 94

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.491 Page 52 of 94

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

____________________________________

:

RAFAEL L.O., et al.,

:

:

Petitioner,

:

:

v.

:

:

JOHN TSOUKARIS, et al.,

:

:

Respondent.

:

____________________________________:

Civil Action No. 20-3481 (JMV) OPINION

VAZQUEZ, District Judge:

This matter originated with a Verified Petition for Writ of Habeas Corpus and Complaint.

D.E. 1. Presently pending before the Court is the motion of Petitioners’ Rafael L.O.,1 Adrian E.

G.G., and Javier S.M., (“Petitioners”) for a temporary restraining order (“TRO”), immediate

release, and/or order to show cause. D.E. No. 5. For the reasons detailed below, the Court will

grant the TRO and order Petitioners’ release subject to specific conditions. The filing initially

included two additional Petitioners, Victor M.L. and Michaell A.G., who have since been released

by the Department of Homeland Security, Immigration and Customs Enforcement (“DHS/ICE”).

Because those two Petitioners have been released, their motion is dismissed without prejudice.

1 Petitioners are identified herein only by their first name and the first initials of their surnames in order to address certain privacy concerns associated with § 2241 immigration cases. This manner of identification comports with recommendations made by the Judicial Conference of the United States’ Committee on Court Administration and Case Management.

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.492 Page 53 of 94

I. Background Petitioners are immigration detainees being held by ICE at the Essex County Correctional Facility (“ECCF”) in Newark, New Jersey. The instant motion was filed in the wake of the ongoing COVID-19 pandemic,2 that has been reported to have been contracted by both ECCF personnel and inmates.3 Each Petitioner submits that he is living with a medical condition that puts him in danger of severe illness or death should he contract COVID-19. Rafael L.O., who is twenty-seven years old, submits that he has asthma and bi-polar disorder. D.E. No. 1 at 23. Adrian E. G.G., who is forty-six years old, submits that he lives with schizophrenia, diabetes, high cholesterol, and high blood pressure. Id. at 25. Finally, Javier S.M., who is fifty-one years old, indicates that he has high blood pressure, high cholesterol, signs of early congestive heart failure, untreated obstructive sleep apnea, and pre-diabetes. Id. at 29. Respondents do not contest Petitioners’ medical conditions. Instead, Respondents argue that ECCF has taken reasonable precautions and that Petitioners’ criminal histories and/or pending criminal charges countenance against release. D.E. 17 at 7-10. Respondents indicate that Rafael L.O. has a 2019 conviction for felony drug offenses and possession of weapon (an air pistol) as

2 Covid-19 is an abbreviation of the coronavirus disease 2019, a respiratory illness that can spread

from person to person, that was declared a pandemic by the World Health Organization

(“W.H.O.”) on March 11, 2020. See Centers for Disease Control and Prevention Coronavirus

Disease 2019 Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-

ncov/faq.html#covid19-basics (last visited Apr. 7, 2020); see also William Wan, WHO declares a

pandemic

of

coronavirus

disease

covid-19,

Washington

Post,

https://www.washingtonpost.com/health/2020/03/11/who-declares-pandemic-coronavirus-

disease-covid-19/ (last visited April 7, 2020).

3 Monsy Alvarado, Second ICE detainee in New Jersey tests positive for coronavirus, Northjersey.com, https://www.northjersey.com/story/news/new-jersey/2020/03/26/coronavirusnj-second-ice-detainee-tests-positive-covid-19/2916525001/ (last visited April 7, 2020).

2

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.493 Page 54 of 94
well as pending felony drug charges from 2018. Id. at 7. Javier S.M., Respondents note, has
pending state felony charges for criminal sexual contact and endangering/sexual contact. Id. at 8.
It appears that Javier S.M. was released on his own recognizance by the state criminal court,
although Respondents indicate that the state judge may have known that Javier S.M. was to be
taken into ICE custody. Adrien E. G.G. has the longest criminal history. Respondents point to
numerous convictions between 2013 and 2017 for illegal re-entry into the United States. Id. at 9-
10. Adrien E. G.G. also has two convictions for drug possession and a 2008 conviction for
assault. Id.
A. COVID-19
The COVID-19 pandemic is at the heart of this case. Judge John E. Jones III, in a
thoughtful opinion, described the situation as follows:
In a matter of weeks, the novel coronavirus COVID-19 has rampaged across the globe, altering the landscape of everyday American life in ways previously unimaginable. Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home. Indeed, we now live our lives by terms we had never heard of a month ago—we are “social distancing” and “flattening the curve” to combat a global pandemic that has, as of the date of this writing, infected 719,700 people worldwide and killed more than 33,673. Each day these statistics move exponentially higher.
Thakker v. Doll, Civ. Docket No. 20-cv-480, 2020 WL 1671563, *2, __ F. Supp. 3d __ (M.D. Pa.
March 31, 2020) (footnotes omitted). Judge Jones accurately pointed to the swift growth of cases.
From the date of his opinion (March 31, 2020) to April 7, 2020, the number of worldwide cases
and deaths had risen from 719,700 and 33,673 to 1,282,931 and 72,774.4
4 Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION, https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited April 7, 2020).
3

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.494 Page 55 of 94

New Jersey has been particularly hard hit, with the northern part of the state bearing the

initial brunt. As of April 7, 2020, New Jersey had 44,416 cases and 1,232 deaths. COVID-19

Information Hub, STATE OF NEW JERSEY, https://covid19.nj.gov/ (last visited April 7, 2020).

The total number of cases and deaths for Bergen County, Essex County, and Hudson County,

respectively, were 7,533/263, 5,078/232, and 4,949/95 deaths. Id. New Jersey has taken

numerous steps, such as the Governor’s stay-at-home order on March 21, 2020, to combat the

virus. In addition, New Jersey has closed schools indefinitely and closed beaches, state parks,

and county parks.5

COVID-19 is a type of highly contagious novel coronavirus that is thought to be “spreading

easily and sustainably between people.” How Coronavirus Spreads, CENTERS FOR DISEASE

CONTROL

AND

PREVENTION,

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

ncov/prepare/transmission.html (“How Coronavirus Spreads”) (last visited April 8, 2020). The

National Institutes of Health reports that the virus “is stable for several hours to days in aerosols

and on surfaces[.]”6 COVID-19 is “spread mainly from person-to-person.” How Coronavirus

Spreads. This person-to-person spread can occur (1) between persons who are in close contact,

meaning within six feet, and (2) by respiratory droplets when an infected person sneezes, coughs,

or talks. Id. The virus can also be spread by infected persons who are not showing symptoms.

Id.

5 New Jersey closes state parks, state forests and county parks as more than 200 new COVID-19 deaths reported, 6abc, https://6abc.com/covid19-cases-us-coronavirus-symptoms/6083512/ (last visited April 7, 2020).
6 New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH, https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-surfaces (last visited April 8, 2020)
4

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.495 Page 56 of 94
Symptoms of COVID-19 can be mild. However, the effects of COVID-19 can be drastically more severe in older individuals or those with certain medical conditions, including persons with asthma, lung disease, heart diseases, diabetes, chronic kidney disease, liver disease or those who are immunocompromised.7 Besides death, COVID-19 can cause serious, potentially permanent, damage to lung tissue, and can require extensive use of a ventilator. Early evidence suggests that the virus “can damage lung tissue causing a 20 to 30 percent decrease in lung function[.]” D.E. 1 at ¶ 29 (citation omitted). In addition, complications from the virus can manifest rapidly. Id. (citation omitted). There is currently no vaccine for COVID-19, nor are there known, clinically-tested therapeutic treatments. Id. at ¶ 30. To combat the virus, health officials have emphasized education, social distancing (i.e. staying at least 6 feet apart), and improved hygiene. Id. (citation omitted).
B. ECCF County jails were not designed with pandemics in mind. To the contrary, they were made
to house persons in relatively close contact. In a densely populated area, like Essex County, New Jersey, jails are constructed to handle more persons, whether they be detainees or inmates. The CDC has warned that the risk of exposure may increase in crowded, closed-in settings with little air circulation if the crowd contains persons who are infected. D.E. 1 at ¶ 32 (citation omitted). COVID-19 represents a threat to detainees, inmates, officers, officials, staff, and all others who enter the jail, such as vendors.
Petitioners cite extensively to a March 19, 2020, letter from two qualified physicians to
7 People Who Are at Higher Risk of Severe Illness, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html (last accessed April 8, 2020).
5

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.496 Page 57 of 94
members of Congress. D.E. 1-14. Both physicians had “expertise in medical care in detention settings,” and both served as medical subject matter experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties.” Id. at 1-2. The letter addressed the “imminent risk to the health and safety of immigrant detainees[.]” Id. at 3. The physicians stated that “social distancing is essential to slow the spread of the coronavirus to minimize the risk of infection.” Id. at 4. The doctors stressed that doing so critically reduces the risk of overwhelming treatment facilities.8 Id. As an example, the physicians pointed out that local hospitals have limited ventilators, and as the hospitals treat more COVID-19 patients, they run the real risk of running short of the life-saving equipment – not only for other virus patients but also for patients with other critical illnesses, such as heart attacks. Id. The physicians indicated that three areas of actions were needed: (1) procedures for screening, testing, isolation, and quarantine; (2) limiting the transport and transfer of immigration detainees; and (3) using alternatives to detention to enable as much social distancing as possible. Id. at 5. To this end, the doctors emphasized that “it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.” Id. (emphasis in original). At a minimum, the doctors added, ICE should consider releasing all detainees in high risk medical groups. Id. at 5-6.
In response to the pandemic, ICE has taken affirmative steps to lessen the risk of exposure. ICE Guidance on COVID-19, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, https://www.ice.gov/coronavirus (last visited on April 8, 2020). For example, ICE temporarily suspended all social visitation at detention facilities. Id. ICE also released approximately 160
8 Petitioners point out that New Jersey officials have projected a potential shortage of 123,000 hospital beds in the coming weeks. D.E. 1 at ¶ 27 (citation omitted).
6

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.497 Page 58 of 94
individuals who were over the age of 60 or pregnant. Id. ICE further instituted screening guidance for new detainees and indicates that it is testing detainees for COVID-19 as per CDC guidance. Id.
As of the filing of Petitioner’s case, four employees and one ICE detainee had contracted COVID-19. D.E. 1 at ¶ 2. Given the incubation period, Petitioners indicate that it is likely that the ICE detainee contracted the virus while at the ECCF. Id. at ¶ 38. Prior to the current pandemic, Petitioners noted that DHS’s Office of Inspector General (“OIG”) “identified serious issues relating safety, security, and environmental health” at ECCF. Id. at 41 (citation omitted). The OIG concluded that based on the conditions observed, “ICE cannot ensure detainee health at the [ECCF].” Id. at 41.
Petitioners also provide their view of current conditions at the ECCF, relying on a declaration of Rosa Santana, a Program Director at First Friends of New Jersey and New York. D.E. 1-9. Santana indicates, based on her personal experience, that in the “dorms” area of ECCF, “approximately 70 detainees sleep, eat, and spend the vast majority of their time . . . in one room together[.] . . . They all share one bathroom with just a few toilets, sinks and showers.” Id. at ¶ 7. In the “pods” area of ECCF, two detainees share a room to sleep, but “approximately 125 detainees share a single common space” where they eat and socialize. Id. at ¶ 8. Santana adds that these detainees share a bathroom with four showers, but often one or two of the showers are not working. Id. Santana and her organization hear constant complaints about the “lack of access to medical care and the quality of care that is received,” that medical treatment is denied, or that detainees wait an inordinate amount of time in response to medical requests. Id. at ¶¶ 9, 12. Santana is also aware of “unsanitary and unhygienic conditions at the ECCF,” such as maggots in the sink or broken boilers. Id. at ¶ 10. Detainees also report that they lack sufficient soap, hand sanitizer,
7

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.498 Page 59 of 94
and cleaning supplies; if they run out of money, the detainees cannot buy new soap from the commissary. Id. at ¶ 13. As for a detainee who tested positive for COVID-19, Santana knows that the detainee was in a setting with approximately 40-50 other detainees. Id. at ¶ 17. Santana has also been receiving recent calls from detainees who are worried that others housed with them are infected as they have sore throats, coughs, and fevers. Id. at 20.
Respondents submitted a declaration from Alfaro Ortiz, the Director of the ECCF. D.E. 17-1. On the date of Ortiz’s declaration, April 6, 2020, two ICE detainees had tested positive for COVID-19 as had seven inmates in a different building, ten members of the ECCF correctional staff, and one nurse. Id. at ¶ 22. Ortiz details the efforts of ECCF to deal with the virus. Ortiz reports that ECCF is currently at seventy-five percent of its capacity and that dorms that were designed to hold sixty detainees now house a maximum of forty-eight. Id. at ¶¶ 4-5. He states that ECCF has provide informational hand-outs as to COVID-19 and that detainees have space to “sit at least six feet apart.” Id. at ¶ 6. Health care at ECCF is administered by CFG Health Systems, with a physician on-site for sixteen hours a day (and available twenty-four hours) as well as nurse practitioner and two RNs and LPNs at all times. Id. at 9-10. New detainees are “screened for disabilities upon admission and their temperatures are checked.” Id. at ¶ 8. ECCF is able to re-circulate air within the facility every four hours. Id. at ¶ 13. Among other measures instituted in response to COVID-19, ECCF educates detainees as to the “importance of hand washing and best practices to prevent the spread of COVID-19” and provides detainees daily access to sick call. Id. at ¶ 15. ECCF also sanitizes its kitchen hourly, hired additional cleaning staff, and implemented health screening for officers. Id. New detainees are quarantined for 14 days. Id. If a detainee exhibits COVID-19 symptoms, he or she is medically evaluated and provided a surgical mask. Id. at ¶ 17. Detainees with moderate to severe symptoms are
8

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.499 Page 60 of 94
immediately taken to University Hospital, while those with mild symptoms are quarantined. Id. at ¶ 18. As of April 6, ECCF had 85 inmates and detainees in quarantine. Id. at 19. Detainees who have had a known exposure to COVID-19 but who are asymptomatic are “cohorted,” meaning that they are placed with other similar individuals for fourteen days. Id. at ¶ 20.
Petitioners assert numerous counts. D.E. 1. As pertinent here, Petitioners assert a violation of substantive due process for failure to reasonable provide safety and protect from harm. Id. at 38.
II. LEGAL STANDARD The standard for granting a temporary restraining order is the same as that for a preliminary injunction. Injunctions and restraining orders are governed by Federal Rule of Civil Procedure 65 and Local Civil Rule 65.1. Injunctive relief may only be granted when a party demonstrates that he has a reasonable probability of success on the merits, he will suffer immediate and irreparable harm if the injunction does not issue, the grant of preliminary relief will not result in greater harm to the nonmoving party, and the injunctive relief is in the public interest. New Jersey Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 385-86 (3d Cir. 2012) (citing Crissman v. Dower Down Entm’t Inc., 239 F. 3d 357, 364 (3d Cir. 2001). As to the Court’s authority to grant release on a writ of habeas corpus, Petitioner’s rely extensively on the Third Circuit’s decision in Lucas v. Hadden, 790 F.2d 365 (3d Cir. 1986). Lucas concerned a state prisoner’s petition pursuant to 28 U.S.C. § 2254 rather than a civil immigration detainee matter. Id. at 365-66. The court in Lucas determined that the “extraordinary circumstances” standard controlled in determining whether “bail may be granted to a habeas petitioner prior to a ruling on the merits of the petition.” Id. at 367. As an example of such circumstances, the Lucas court pointed to Johnston v. Marsh, 227 F.2d 528 (3d Cir. 1955),
9

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.500 Page 61 of 94
in which the district judge had ordered a state inmate released to enter a hospital because the inmate was extremely ill. Id. at 366-67. Yet, the court in Lucas court continued, it was not suggesting that a petitioner’s poor health would be the only situation that would meet the extraordinary circumstances standard. Id. at 367.
Like injunctive relief in general, granting bail to a habeas petitioner is an extraordinary remedy. See Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (indicating that a court may only grant release pending a disposition of federal habeas claims when the petitioner has raised “substantial constitutional claims upon which he has a high probability of success, and ... when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective”) (citation omitted)); see also In re Souels, 688 Fed. App’x 134, 135-36 (3d Cir. 2017).
III. DISCUSSION The Court finds that Petitioners have established a reasonable likelihood of success on the merits and similarly met the extraordinary circumstances standard. This determination also addresses Respondents’ threshold argument that Petitioners lack standing. D.E. 17 at 24. Respondents argue that “Petitioners do not allege that they have contracted COVID-19, have been exposed to anyone with COVID-19 or that they have suffered any adverse outcomes from the spread of COVID-19.” Id. “Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Lance v. Coffman, 549 U.S. 437, 439 (2007). Standing to sue is a “[c]omponent of the case-or-controversy” requirement. Id. Thus, a court must dismiss a case for lack of subject matter jurisdiction if a plaintiff lacks Article III standing. Finkelman v. Nat'l Football League, 810 F.3d 187, 195 (3d Cir. 2016). To establish Article III standing, a plaintiff
10

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.501 Page 62 of 94
“must demonstrate ‘(1) an injury-in-fact, (2) a sufficient causal connection between the injury and
the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable
decision.”’ Id. at 193 (quoting Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 358–59 (3d
Cir. 2015) (internal quotation marks omitted and punctuation modified)). The first element, an
injury-in-fact, requires that a plaintiff show “ ‘the invasion of a concrete and particularized legally
protected interest’ resulting in harm ‘that is actual or imminent, not conjectural or hypothetical.’ ”
Id. (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014)). Moreover, a
plaintiff “must clearly and specifically set forth facts sufficient to satisfy . . .standing” as “a federal
court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of
standing.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).
The Court finds that Petitioners have standing in light of the Supreme Court’s decision in
Helling v. McKinney, 509 U.S. 25 (1993). In Helling, a prisoner alleged that his Eighth
Amendment rights had been violated because he had been exposed to environmental tobacco
smoke in prison. Id. at 28. The Supreme Court ruled as follows:
We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In Hutto v. Finney, 437 U.S. 678, 682, we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.
11

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.502 Page 63 of 94
That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is “reasonable safety.” DeShaney[ v. Winnebago County
Dept. of Social Services, 489 U.S. 189, 200 (1989)]. It is “cruel and
unusual punishment to hold convicted criminals in unsafe conditions.” Youngberg v. Romeo, 457 U.S. 307, 315–316 (1982). It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in Rhodes v. Chapman, 452 U.S. 337, 352, n. 17 (1981). Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates. Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980), stated that a prisoner need not wait until he is actually assaulted before obtaining relief. . . . We thus reject petitioners' central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment.
Id. at 33-34 (emphases added). Although decided in the context of an Eighth Amendment claim,
the quoted language applies with equal force here. Petitioners do not need to actually show that
they have COVID-19 to establish standing.
To succeed on a Fifth Amendment due process claim, Petitioners must show that their
conditions of confinement “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520,
535 (1979). The Third Circuit has articulated the following relevant standards:
To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer “that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.”
12

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.503 Page 64 of 94
E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). As a result, the Court must ascertain whether the confinement conditions serve a legitimate purpose and whether the conditions are rationally related to that legitimate purpose. Hubbard 538 F.3d at 232.
District Courts have reached different conclusions when conducting this inquiry in the context of the current pandemic. In Dawson v. Asher, Case No. C20-0409, 2020 WL 1304557 (W.D. Wash. March 19, 2020), Judge James L. Robart found that the immigration detainees did not face improper punishment. Id. at *2. Judge Robart explained that the petitioner’s detention was reasonably related to a legitimate governmental objective because there was no evidence that the respondents intended to punish the petitioners, respondents had a legitimate governmental objective in preventing detained aliens from absconding and ensuring their appearance at removal proceedings, and the petitioners’ confinement did not appear excessive in relation to the legitimate objective. Id.
Judge Jones in Thakker reached a different conclusion. Thakker, 2020 WL 1671563, *8. Judge Jones noted that an express intent to punish was not necessary and then found that the detention in question did not bear a rational relationship to a legitimate government objective. Id. Judge Jones reasoned that housing immigration detainees in close proximity and in unsanitary conditions, in light of the pandemic, did not meet a legitimate governmental objective. Id. Judge Jones indicated that preventing aliens from absconding would constitute a legitimate governmental aim but this objective was deeply weakened in light of COVID-19, particularly when ICE had many other options to monitor civil detainees. Id.
The Court agrees with the analysis in Thakker. The Court does not find that Respondents have an express intent to punish Petitioners, but also finds that such intent is not a necessary
13

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.504 Page 65 of 94
prerequisite. In addition, the Court would – in normal circumstances – agree with the legitimate governmental objective analysis espoused in Dawson. But these are not normal times, and context (or factual reality) is important. To use an extreme hypothetical, consider if civil detainees were being housed in a facility that was in the direct path of a hurricane and that the facility was unlikely to withstand the force of the storm. The government would still have a legitimate governmental interest in ensuring that the detainees appeared for immigration court – but the government would not have a legitimate interest in housing the detainees in that particular facility during the hurricane. COVID-19, and its associated risks, is the difference maker – it changes the equation in evaluating the government’s legitimate objectives. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”).
Petitioners’ medical maladies put them in a vulnerable population as to COVID-19. If they do become infected, not only will they be in greater physical jeopardy but they also would put greater pressure on limited medical resources. If the Court credits Rosa Santana’s declaration, ECCF is clearly an unsafe environment. But even viewing Director Ortiz’s statements, obvious gaps exist. ICE detainees are still housed together, up to forty-eight in a room. While Director Ortiz indicates that ECCF has increased its cleaning capability, notably absent from his declaration are critical areas. Detainees may be advised of the risks of COVID-19, but what are they provided to prevent infection? Director Ortiz does not speak to actual personal hygiene items – such as soap – that are provided to detainees and how often detainees can actually wash. In this regard,
14

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.505 Page 66 of 94
Santana’s comments about lack of soap and basic hygiene items, along with mass use of limited bathroom and shower facilities, goes unchallenged. While cleaning may be increased, how often are the surfaces, to which the detainees are regularly exposed, properly disinfected?
The Court is not criticizing ECCF or ICE. Both have taken affirmative steps to address the pandemic for which they should be commended. However, there are certain realities that neither ECCF or ICE can overcome. As noted, jails were not designed to fight pandemics, and, unfortunately, such facilities can become perfect vessels for virus transmission. When this case was filed, on April 1, 2020, Petitioners were aware of five cases of COVID-19 in ECCF. Five days later, when Director Ortiz signed his declaration, that number had grown to twenty persons. Petitioners have shown a reasonable likelihood of success on the merits.
Next, the Court assesses whether the irreparable harm necessary for the grant of the injunction exists. “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C. F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989) (internal citations omitted). When analyzing whether irreparable harm exists, “[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” See id., quoting Sampson v. Murray, 415 U.S. 61, 90 (1964).
15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.506 Page 67 of 94
The Court has already explained the seriousness of the Covid-19 pandemic and its rapid proliferation in this nation. Nonetheless, the Court will provide these sobering nationwide and county-wide confirmed case and death rates as a reminder. As of April 8, 2020, the United States has 425,000 confirmed cases and more than 14,000 deaths.9 And in what is New Jersey’s secondmost afflicted county, Essex, there are 5,078 confirmed cases and 232 deaths. 10 Even more concerning, the state’s projected peak is likely still weeks away.11
As noted earlier in this opinion, in addition to the volume of ECCF detainees confined to inherently limited living and sleeping quarters, they also appear to have limited access to hygiene products and must share bathroom facilities with a large number of persons. Moreover, given the timing of the first confirmed case at ECCF, it appears the detainee contracted the virus while in ECCF’s jurisdiction.
The previously described conditions of confinement raise serious concerns about the ability to stop transmission of the virus. With the conditions as currently described, at-risk detainees – including Petitioners -- cannot practically adhere to social distancing guidelines or the adequate level of personal hygiene, that have been touted as the most effective means to thwart the spread of the virus. Against this backdrop, Petitioners have demonstrated irreparable harm should they remain in confinement. See Thakker, 2020 WL 1671563 at *7 (“[C]atastrophic results may ensue,
9 US coronavirus predictions are shifting. Here’s why, CNN, https://www.cnn.com/2020/04/08/politics/what-matters-april-8/index.html (last accessed Apr. 8, 2020, 11:57 p.m.). 10 New Jersey coronavirus death toll now at 1,232. Total cases rise to 44, 416 with 3K new positive tests, NJ.com, https://www.nj.com/coronavirus/2020/04/new-jersey-coronavirus-tollnow-at-1232-total-cases-rise-to-44416-with-3k-new-positive-tests.html (last accessed Apr. 9, 2020, 12:15 a.m.). 11 Id.
16

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.507 Page 68 of 94
both to Petitioners and to the communities surrounding the Facilities.”); see also Hope v. Doll, Civ. No. 1:20-562 J.E.J. (M.D. Pa. Apr. 7, 2020) (“We cannot allow the Petitioners before us, all at heightened risk for severe complications from COVID-19, to bear the consequences of ICE’s inaction.”) The Court therefore finds that Petitioners have demonstrated irreparable harm should they remain in ECCF.
The Court is also satisfied that the balance of harms would weigh in favor of Petitioners given their underlying health conditions. “Before granting an injunction, a district court must balance the relative harm to the parties, i.e., the potential injury to the plaintiff if an injunction does not issue versus the potential injury to the defendant if the injunction is issued.” Novartis Consumer Health, Inc. v. Johnson & Johnson-Merch Consumer Pharm. Co., 290 F.3d 578, 596 (3d Cir. 2002) (internal citation omitted). Here, the potential injury to the Petitioners is grave in light of their health conditions. This Court has already provided a glimpse of the rate at which the virus has spread thus far, even throughout the segment of the state’s population that is at libertythe living conditions of those detained creates a more untenable situation. Yet, ICE undoubtedly has a legitimate interest in ensuring that the petitioners do not flee and in protecting the public. However, the Court believes that it can address those very important interests in fashioning appropriate conditions of release for each Petitioner.
When considering whether the specific action taken by the court serves the public interest, the guiding principle is assessing whether “not that justice be done, but that specific acts presumptively benefitting the public not be halted until the merits could be reached and a determination made as to what justice required.” Continental Group, Inc., v. Amoco Chemicals Corp., 614 F.2d 351, 358 (3d Cir. 1980). Clearly the public has an interest in preventing the further spread of COVID-19. Prevention, among other things, preserves critical medical
17

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.508 Page 69 of 94
resources necessary to combat the pandemic. Here, the possibility of a widespread outbreak within ECCF would only increase the onus on the state and country’s already-overburdened healthcare system. Indeed, as of April 6, 2020, ECCF already had twenty-reported cases. The public has an interest that limited health care resources are available as necessary – which means preventing as many COVID-19 cases as possible – but particularly those necessary for vulnerable persons.
At the same time, the public also has an interest in ensuring that Petitioners do not commit any offenses while on release. Both Rafael L.O. and Adrian E. G.G. have felony convictions, although neither have convictions for offenses of which violence is an element, save Adrian E. G.G.’s conviction twelve years ago. Javier S.M. does not have any felony conviction, but he is facing serious charges in New Jersey. Yet, this Court must acknowledge that the state court released Javier S.M. on his own recognizance. To this end, the Court considers the government’s requests completely reasonable, with certain modifications. D.E. 22. Petitioners argue that these limitations are too severe. Yet, the Court notes that the critical argument on which Petitioners rely is that they are unusually vulnerable to COVID-19. In line with that argument, the Court’s conditions of release not only protect the public but also protect the Petitioners.
IV. Conclusion For the foregoing reasons, the Court will grants Petitioner’s motion for a TRO (D.E. No. 5), and order Petitioners’ released subject to the conditions as ordered. An appropriate Order accompanies this Opinion. Dated: 4/9/2020
JOHN MICHAEL VAZQUEZ United States District Judge 18

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.509 Page 70 of 94

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

BHARATKUMAR G. THAKKER,

:

et al.,

:

Petitioners-Plaintiffs,

:

:

v.

:

:

CLAIR DOLL, in his official capacity

:

as Warden of York County Prison,

:

et al.,

:

Respondents-Defendants.

:

1:20-cv-480 Hon. John E. Jones III

MEMORANDUM AND ORDER March 31, 2020
Pending before the Court is the Motion for Temporary Restraining Order and/or Preliminary Injunction filed by Petitioners-Plaintiffs Bharatkumar G. Thakker, Abedodun Adebomi Idowu, Courtney Stubbs, Rigoberto Gomez Hernandez, Rodolfo Augustin Juarez Juarez, Meiling Lin, Henry Pratt, Jean HErdy Christy Augustin, Mayowa Abayomi Oyediran, Agus Prajoga, Mansyur, Catalino Domingo Gomez Lopez and Dexter Anthony Hillocks (collectively “Petitioners”).1 (Doc. 7). The Motion has been briefed by the parties. (Docs. 12; 35; 46). The Court has received an amicus brief from a group of public health officials and human

1 Petitioners’ counsel advised that Mayansur and Agus Prajoga were released from immigration detention on March 27, 2020. (Doc. 33). Accordingly, their request for release from custody is moot.
1

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.510 Page 71 of 94
rights experts, (Doc. 36), as well as a factual update and supplemental authority filed by Petitioners. (Docs. 33 and 34). Thus, this matter is ripe for our review.
For the reasons that follow, the temporary restraining order shall be granted and the Respondents shall be directed to immediately release Petitioners today on their own recognizance.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Petitioners are a diverse group of individuals from around the world who are
being held in civil detention by Immigration and Customs Enforcement (ICE) at York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility, (“the Facilities”), while they await final disposition of their immigration cases.
Each Petitioner suffers from chronic medical conditions and faces an imminent risk of death or serious injury if exposed to COVID-19. Thakker is 65 years old and suffers from high blood pressure and cholesterol and has kidney failure. Further, he is currently suffering from symptoms similar to those of COVID-19. (Doc. 2, Ex. 3). Idowu, 57, had type II diabetes as well as high blood pressure and cholesterol. He is also currently sick. (Doc. 2, Ex. 4). Stubbs is 52 years old and is immunocompromised due to a kidney transplant he received 6 years ago. He has a heart stent and also suffers from type II diabetes and blood clots. (Doc. 2, Ex. 5). Hernandez, 52, suffers from diabetes, dental problems and an
2

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.511 Page 72 of 94
ulcer. (Doc. 2, Ex. 7). Juarez, 21, suffers from diabetes and is currently sick with COVID-19 type symptoms, including trouble breathing. (Doc. 2, Ex. 8). Lin is 45 years old and suffers from chronic pain due to a forced sterilization, as well as chronic hepatitis B and liver disease. (Doc. 2, Ex. 9). Pratt, age 50, suffers from diabetes and high blood pressure. (Doc. 2, Ex. 10). Augustin, 34 years old, suffers from multiple conditions including diabetes, high blood pressure, nerve pain, limited mobility and pain from a prior bladder and intestine reconstruction, anemia, PTSD and depression. (Doc. 2, Ex. 11). Oyediran is a 40-year-old asthmatic suffering from high blood pressure and cholesterol. (Doc. 2, Ex. 12). Lopez, age 51, has contracted the flu four times while in ICE custody since November of 2018 and is concerned that he is especially susceptible to contracting COVID-19. (Doc. 2, Ex. 15). Finally, Hillocks, age 54, has been diagnosed with leukemia. He also suffers from diabetes, anemia, high blood pressure and cholesterol. (Doc. 2, Ex. 16).
Several Petitioners have reported symptoms similar to those of COVID-19. None have been quarantined, isolated, or treated. (Doc. 2 Exs. 3; 4; 8).
Named as Respondents are: Clair Doll, Warden of York County Prison; Angela Hoover, Warden of Clinton County Correctional Facility; Craig A. Lowe, Warden of Pike County Correctional Facility; Simona Flores-Lund, Field Office Director, ICE Enforcement and Removal Operations; Matthew Albence, Acting
3

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.512 Page 73 of 94
Director of ICE; and Chad Wolf, Acting Secretary of the Department of Homeland Security.
II. DISCUSSION In a matter of weeks, the novel coronavirus COVID-19 has rampaged across
the globe, altering the landscape of everyday American life in ways previously unimaginable. Large portions of our economy have come to a standstill. Children have been forced to attend school remotely. Workers deemed ‘non-essential’ to our national infrastructure have been told to stay home. Indeed, we now live our lives by terms we had never heard of a month ago—we are “social distancing” and “flattening the curve” to combat a global pandemic2 that has, as of the date of this writing, infected 719,700 people worldwide and killed more than 33,673.3 Each day these statistics move exponentially higher. It is against this increasingly grim backdrop that we now consider the Petitioners’ claims for habeas relief.

2

The World Health Organization (“WHO”) officially declared COVID-19 as global

pandemic on March 11, 2020. See WHO Director-General's opening remarks at the media

briefing on COVID-19 - 11 March 2020, WORLD HEALTH ORGANIZATION, (March 11, 2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-

briefing-on-covid-19---11-march-2020.

3

See Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,

https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last accessed March 31,

2020).

4

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.513 Page 74 of 94
A. Threshold Questions: Standing and the Propriety of a Habeas Petition
Respondents raise two threshold challenges to the Petitioners’ Motion. First, Respondents contend that Petitioners lack standing because they have not alleged an injury in fact. Next, Respondents submit that Petitioners cannot challenge their conditions of confinement through a habeas petition. Taking the latter challenge first, we note that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas. See Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014); see also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005); see also Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978). Accordingly, we find that Petitioners have appropriately invoked this court’s jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus.
Respondents’ standing challenge can also be easily resolved. Respondents essentially contend that because the Petitioners themselves do not have COVID-19 and their likelihood of contracting the illness is speculative, Petitioners cannot establish that they would suffer a concrete, non-hypothetical injury absent a temporary restraining order. However, as the Supreme Court observed in Helling v. McKinney, 509 U.S. 25, 33 (1993), “it would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” The COVID-19 pandemic is moving rapidly and expansively throughout Pennsylvania. Vast regions of the
5

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.514 Page 75 of 94
Commonwealth are now under stay-at-home orders, and social distancing the norm to prevent the spread of this deadly virus. And yet, Respondents would have us offer no substantial relief to Petitioners until the pandemic erupts in our prisons. We reject this notion. Since “[a] remedy for unsafe conditions need not await a tragic event,” it is evident that the Petitioners have standing in this matter. Id.
B. Temporary Restraining Order i. Legal Standard
Courts apply one standard when considering whether to issue interim injunctive relief, regardless of whether a petitioner requests a temporary restraining order (“TRO”) or preliminary injunction. See Ellakkany v. Common Pleas Court of Montgomery Cnty., 658 Fed.Appx. 25, 27 (3d Cir. July 27, 2016) (applying one standard to a motion for both a TRO and preliminary injunction). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir. 2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365 (2008)).
The Supreme Court has emphasized that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the
6

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.515 Page 76 of 94
movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin., 508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly.”). “Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).
ii. Irreparable Harm To succeed on their Motion, Petitioners “must demonstrate. . .the probability of irreparable harm if relief is not granted.” Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (internal quotations omitted). “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial”. . .the temporary restraining order. . .“must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). The moving party must demonstrate that it is likely to suffer “actual or imminent harm which cannot otherwise be compensated by money damages,” or it “fail[s] to sustain its substantial burden of showing irreparable harm.” Frank’s GMC, 847 F.2d at 103. The mere risk of injury is insufficient. The moving party must establish that the harm is imminent and
7

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.516 Page 77 of 94
probable. Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). Additionally, “a showing of irreparable harm is insufficient if the harm will occur only in the indefinite future. Rather, the moving party must make a clear showing of immediate irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992).
The Petitioners’ claim is rooted in imminent, irreparable harm. Petitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein. It is not unlikely that COVID-19 is already present in some county prisons—we have before us declarations that portions of the Facilities have been put under ineffective quarantines due to the presence of symptoms similar to COVID-19 among the inmate population.4 Indeed, we also have reports that a correctional officer at Pike has already tested positive for COVID-19. (Doc. 33 at 1).
Public health officials now acknowledge that there is little that can be done to stop the spread of COVID-19 absent effective quarantines and social distancing procedures. But Petitioners are unable to keep socially distant while detained by

4

We also have allegations that prison guards have shown symptoms while interacting with

inmates.

8

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.517 Page 78 of 94

ICE and cannot keep the detention facilities sufficiently clean to combat the spread of the virus. Based upon the nature of the virus, the allegations of current conditions in the prisons, and Petitioners’ specific medical concerns, detailed below, we therefore find that Petitioners face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.
a. Seriousness of the virus COVID-19 is a type of highly contagious novel coronavirus that is thought to be “spreading easily and sustainably in the community.” 5 Experts believe that it can live on some surfaces for up to 72 hours after contact with an infected person.6 A simple sneeze or brush of the face without washing your hands is now known to easily spread the virus, which generally causes fever, cough, and shortness of breath. (How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL; Doc. 12 at 15). In most people, these symptoms are relatively mild. (Doc. 12 at 15). However, the effects of COVID-19 can be drastically more severe in older individuals or those with medical conditions. (Doc.2, Ex. 2). In some cases, COVID-19 can cause serious, potentially permanent, damage to lung tissue, and

5

How Coronavirus Spreads, CENTERS FOR DISEASE CONTROL AND PREVENTION,

https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last accessed March 31,

2020).

6

New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH (March

17, 2020), https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-

surfaces.

9

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.518 Page 79 of 94
can require extensive use of a ventilator. (Id.). The virus can also place greater strain on the heart muscle and can cause damage to the immune system and kidneys. (Id.). These long-term consequences and the likelihood of fatality increase in those of advanced age and those with other medical conditions, like the Petitioners here. (Id.). For those in high-risk categories, the fatality rate is thought to be approximately fifteen percent. (Id.).
There is currently no vaccine for COVID-19, nor are there known, clinically-tested therapeutic treatments. (Id.). As a result, public health officials have touted the importance of maintaining physical separation of at least six feet between individuals, now commonly known as “social distancing.” (Id.). Experts have also emphasized that proper hand hygiene with soap and water is vital to stop the spread. (Id.). Beyond these measures, health professionals can do little to combat this highly infectious disease. (Id.).
b. Prevalence of the virus The United States now records more confirmed cases of COVID-19 than any other country in the world.7 As of the date of this writing, there were in excess of

7

Nicole Chavez, Holly Yan, and Madeline Holcombe, US has more Known Cases of

Coronavirus than any Other Country, CNN,

https://www.cnn.com/2020/03/26/health/coronavirus-thousand-deaths-thursday/index.html (last

accessed March 31, 2020).

10

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.519 Page 80 of 94
164,458 cases of the virus in America, with 3,167 fatalities.8 This represented an increase of 2,651 cases in only twenty-four hours. (Id).
Indeed, Pennsylvania currently reports 4,087 confirmed cases of COVID-19, with 48 fatalities.9 Troublingly, that number represents nearly double the confirmed cases reported a mere four days ago—on March 27, 2020, Pennsylvania reported a total of 2,218 cases, with 22 deaths. Id. The three counties which house the Facilities are located in York County, Pike County, and Clinton County. They currently report a total of 93 cases: 54 in York County and 39 in Pike County.10 Clinton County has not yet reported any confirmed cases of COVID-19. Id. As of March 27, 2020, the Governor of Pennsylvania placed both York County and Pike County under a stay-at-home order in an attempt to slow the spread of the virus.11

8

Niko Kommenda, Pablo Gutiérrez, and Juweek Adolphe, Coronavirus Map of the US:

Latest Cases State by State, THE GUARDIAN, https://www.theguardian.com/world/ng-

interactive/2020/mar/27/coronavirus-map-of-the-us-latest-cases-state-by-state (last accessed

March 31, 2020).

9

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

10

Coronavirus (COVID-19): Pennsylvania Overview, PENNSYLVANIA DEPARTMENT OF

HEALTH, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed

March 31, 2020).

11 Governor Wolf and Health Secretary Expand ‘Stay at Home’ Order to Nine More Counties to Mitigate Spread of COVID-19, Counties Now Total 19, WEBSITE OF THE GOVERNOR OF PENNSYLVANIA, https://www.governor.pa.gov/newsroom/governor-wolf-and-healthsecretary-expand-stay-at-home-order-to-nine-more-counties-to-mitigate-spread-of-covid-19counties-now-total-19/ (last accessed March 31, 2020).

11

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.520 Page 81 of 94
Average Pennsylvanians in these counties can no longer leave their homes for anything but essential trips to gather supplies, medications, or to perform work essential to our national infrastructure—COVID-19 spreads so easily and rapidly that public health officials have determined that social isolation is necessary to keep our hospital systems from becoming overwhelmed. Id. The same rationale applies, perhaps even more so, to immigration detention facilities housing highrisk populations.
c. Unique nature of detention facilities Various public health officials have warned that the nature of ICE detention facilities makes them uniquely vulnerable to the rapid spread of highly contagious diseases like COVID-19. COVID-19 is transmitted primarily through “close contact via respiratory droplets produced when an infected person coughs or sneezes.” (Doc. 12 at 18; Doc. 2, Ex. 1). Immigration detention facilities are particularly at risk for such close contact because they are considered “congregate settings, or places where people live or sleep in close proximity.” (Doc. 2, Ex. 1). Such conditions provide “ideal incubation conditions” for COVID-19. (Id.). Within the past few weeks, two medical experts for the Department of Homeland Security authored a letter to Congress warning of the unique dangers COVID-19 poses to ICE detention facilities. Specifically, they described the current ICE detention environment as a “tinderbox” in which:
12

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.521 Page 82 of 94
[a]s local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community. . .To be more explicit, a detention center with a rapid outbreak could result in multiple detainees — five, ten or more — being sent to the local community hospital where there may only be six or eight ventilators over a very short period. . .As [hospitals] fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc).12
The experts contrasted this scenario with a situation in which ICE detainees were
released from “high risk congregate settings,” allowing the “volume of patients sent
to community hospitals to level out,” which they believed would provide much more
favorable outcomes, both for the detainees and the surrounding communities. Id. “At
a minimum,” these health experts urged, the government “should consider releasing
all detainees in high risk medical groups such as older people and those with chronic
diseases.” Id. ICE detention facilities, they warned, are so poorly equipped to allow
safe social distancing practices and are unlikely to have the ability to provide
adequate medical care in the case of a COVID-19 outbreak. Id. The consequences,
they maintain, could be disastrous. Id.
12 Catherine E. Shoichet, Doctors warn of 'tinderbox scenario' if coronavirus spreads in ICE detention, CNN, https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/ (last accessed March 28, 2020).
13

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.522 Page 83 of 94
Indeed, we have before us declarations stating that such high-risk conditions are present in the detention facilities at issue in this case. Both Petitioners and lawyers familiar with the ICE facilities at issue here have attested to overcrowding that makes social distancing impossible at all three facilities. At the York facility, for example, inmates are housed in dormitory-style conditions, in which 60 people reside in each housing block. (Doc. 2, Ex. 18). That space is used for both eating and sleeping. (Id.). Petitioners report that not even the medical staff wear gloves when in contact with inmates. (Doc. 2, Ex. 11). Detainees must eat their meals four-to-atable, with approximately three feet of space between individuals. (Id.).
At Clinton, inmate bunks are often less than two feet apart, and inmate declarations show that it is difficult to keep more than a two feet distance between inmates, let alone the recommended six feet. (Doc. 2, Ex. 10). The laundry facilities at Clinton are also reported to be chronically broken, preventing detainees from keeping their clothes and bedding clean. (Id.). Indeed, for a total of 72 men, Clinton provides only four sets of sinks and showers. (Id.). The Facility is also reported to have bugs mice, and rats, which add to the unsanitary conditions experienced by detainees. (Id.).
At Pike, detainees share eight-by-ten or twelve foot cells with two other men. (Doc. 2, Ex. 13). Those cells also contain a sink and a shower. (Id). Some men at Pike report being forced to share cells with other individuals currently exhibiting
14

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.523 Page 84 of 94
COVID-19 symptoms or report exhibiting symptoms themselves while housed with other inmates. (Doc. 2, Exs. 3; 4; 8). Inmates at Pike are also usually forced to remain within two feet of other individuals, even while in the common areas of the facility. (Doc. 2, Ex. 4). They are also required to buy their own soap, are not given hand sanitizer, and are forced to share cleaning supplies with an entire block of cells. (Doc. 2, Exs. 3; 13).
ICE guidance states that these types of risks are mitigated by quarantining detainees with symptoms and by housing those with a higher risk of exposure separately from the rest of the detainee population. (Doc. 2, Ex. 1). The Respondents further proffer that the Facilities are practicing “cohorting,” an “infection prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic.” (Doc. 35 at 12). This practice is meant to last for fourteen days, the duration of the virus’s incubation period. The Petitioner’s declarations, however, show that these practices are not being followed. At least two Petitioners aver that they are experiencing symptoms and have not been isolated from other individuals. (Doc. 2, Exs. 3; 4; 8). Furthermore, all Petitioners have a higher risk of exposure, and none have been moved to separate housing. Indeed, it does not even seem that ICE is providing detainees with proper information on how they can combat the virus on their own. (Doc. 2, Ex. 3). Troublingly, some facilities seem to have shut off detainee access to news outlets,
15

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.524 Page 85 of 94

thereby preventing the detention facility’s population from informing themselves on best practices to prevent transmission. (Doc. 2, Ex. 5).
d. Petitioners are at uniquely high risk for contracting COVID-19
Not only are the Facilities themselves uniquely suited to rapidly spread COVID-19, but also Petitioners themselves are members of high-risk groups that are likely to feel the effects of the virus more keenly than the average individual.13 Each of the Petitioners before us has an underlying medical condition that heightens their risk of serious COVID-19 effects, among them asthma, diabetes, heart conditions, hepatitis, and immunocompromising conditions such as leukemia and organ transplants.
e. The threat to high-risk individuals posed by COVID-19 constitutes irreparable injury
Various courts across the nation have found that COVID-19, coupled with the lack of hygiene and overcrowding present in detention facilities, will pose a greatly heightened risk to inmates. See Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir.

13

People at Risk for Serious Illness from COVID-19, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-

groups/high-risk-complications.html (“Older people and people of all ages with severe

underlying health conditions—like heart disease, lung disease and diabetes, for example—seem

to be at higher risk of developing serious COVID-19 illness”); Information for Healthcare

Professionals: COVID-19 and Underlying Conditions, CENTERS FOR DISEASE CONTROL AND

PREVENTION, (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-

conditions.html (stating that “moderate to severe asthma,” “heart disease,” “obesity,” and

“diabetes” are conditions that trigger higher risk of severe illness from COVID-19).

16

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.525 Page 86 of 94
Mar. 23, 2020) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”); United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large— created by large prison populations. Notably, the chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)).
Courts have also acknowledged the particular risks facing older inmates and those with underlying medical conditions. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial
17

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.526 Page 87 of 94
detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk the pandemic poses to his health. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelterin-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
Indeed, courts have even specifically held that COVID-19 constitutes an irreparable harm that supports the grant of a TRO. See Vasif “Vincent” Basank, et al v. Decker, 2020 WL 1481503 at *4-5 (S.D.N.Y. March 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO”); Castillo v.
18

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.527 Page 88 of 94
Barr, CV-20-00605-TJH (C.D. Cal. 2020) (granting a TRO to immigration detainees due to the COVID-19 pandemic); see also Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (finding irreparable harm “premised ... upon [the district court’s] finding that [Petitioner] was subject to risk of injury, infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services. . .certainly constitutes irreparable harm.”).
The painful new reality is that we are constantly at risk of contracting a deadly virus and are experiencing previously unimagined safety measures to stop its spread. This virus spares no demographic or race and is ruthless in its assault. The precautions being adopted to stop it should apply equally, if not more so, to the most vulnerable among us. Petitioners have shown that adequate measures are not in place and cannot be taken to protect them from COVID-19 in the detention facilities, and that catastrophic results may ensue, both to Petitioners and to the communities surrounding the Facilities. We therefore find that the likely irreparable injury to Petitioners, as high-risk individuals, satisfies the first element of our TRO analysis.
iii. Likelihood of Success on the Merits Petitioners argue that their continued incarceration in ICE detention facilities exposes them to serious risks associated with COVID-19 which violate their due
19

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.528 Page 89 of 94
process rights. (Doc. 2 at 27). We find that Petitioners are likely to succeed on the merits of their claim.14
To bring a Fifth Amendment due process claim, Petitioners must show that their conditions of confinement “amount[ed] to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To determine whether challenged conditions of confinement amount to punishment, this Court determines whether a condition of confinement is reasonably related to a legitimate governmental objective; if it is not, we may infer ‘that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.’” E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). In other words, we must ascertain whether the conditions serve a legitimate purpose and whether the conditions are rationally related to that legitimate purpose. Hubbard 538 F.3d at 232.
Considering the Facility conditions previously discussed, we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments—doing so would
14 The Respondents argue that Petitioners do not have a legitimate due process claim because they have no “liberty or property interest” in a purely “discretionary grant of humanitarian parole.” (Doc. 35 at 28). We disagree. “Unsanitary, unsafe, or otherwise inadequate conditions” are sufficient to state a Due Process Claim and we shall thus proceed with our analysis. Petty v. Nutter, No. 15-3430, 2016 WL 7018538, at *2 (E.D. Pa. Nov. 30, 2016); Grohs v. Lanigan, No. 16-7083, 2019 WL 1500621, at *11 (D.N.J. Apr. 5, 2019) (“extreme heat combined with lack of potable water, as well as generally unsanitary conditions” are sufficient to state a conditions-of-confinement claim).
20

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.529 Page 90 of 94
constitute a punishment to Petitioners. Despite the Respondents’ protests to the contrary, we need not find that the Facilities had the “express intent” to punish Petitioners with the conditions alleged. (Doc. 35 at 37). Instead we ask whether the conditions are rationally related to a legitimate government objective. Hubbard 538 F.3d at 232. Here, they are not.
The Respondents maintain that “preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective.” (Doc. 35 at 38). They cite a great deal of authority supporting this point, and we do not disagree. (Id.). However, we cannot find that unsanitary conditions, which include overcrowding and a high risk of COVID-19 transmission, are rationally related to that legitimate government objective.
Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19. Petitioners have shown that, despite their best efforts, they cannot practice these effective preventative measures in the Facilities. Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.
The global COVID-19 pandemic and the ensuing public health crisis now faced by American society have forced us all to find new ways of operating that prevent virus transmission to the greatest extent possible. We expect no less of ICE.
21

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.530 Page 91 of 94
We note that ICE has a plethora of means other than physical detention at their
disposal by which they may monitor civil detainees and ensure that they are present
at removal proceedings, including remote monitoring and routine check-ins.
Physical detention itself will place a burden on community healthcare systems and
will needlessly endanger Petitioners, prison employees, and the greater community.
We cannot see the rational basis of such a risk.15
We therefore find that Petitioners are likely to succeed on the merits of their
due process claim that their conditions of confinement expose them “to serious risks
associated with COVID-19.” (Doc. 2 at 35).
15 Moreover, not only have Petitioners established a likelihood of success on the merits on their Fifth Amendment claim, but, in fact, they have also demonstrated that their claim is likely to be successful under the more exacting Eighth Amendment standards as well. To succeed in proving that conditions of confinement violate the Eighth Amendment, a plaintiff must show: (1) the deprivation alleged must objectively be “sufficiently serious,” and (2) the “prison official must have a sufficiently culpable state of mind,” such as deliberate indifference to the prisoner’s health or safety. See Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). COVID-19 has been shown to spread in the matter of a single day and would well prove deadly for Petitioners. Such a risk is objectively “sufficiently serious.” Furthermore, the Supreme Court has recognized authorities can be “deliberately indifferent to an inmate’s current health problems” where they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). There is no requirement that Petitioners show that “they actually suffered from serious injuries” to succeed on this claim. See Helling, 509 U.S. at 33. Instead, if Petitioners can show that the conditions “pose an unreasonable risk of serious damage to their future health,” they may succeed on their claim. Helling, 509 U.S.at 35) (alteration omitted). The current measures undertaken by ICE, including “cohorting” detainees, are patently ineffective in preventing the spread of COVID-19. Indeed, we now have reports of a positive test amongst the employees at Pike County prison, thereby greatly increasing the likelihood that COVID-19 is present in the prison population.
22

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.531 Page 92 of 94
iv. Balancing of the Equities and Public Interest The equities at issue and public interest weigh heavily in Petitioners’ favor. First, and as described, Petitioners face irreparable harm to both their constitutional rights and their health. Second, we find that the potential harm to the Respondents is limited. While we understand and agree that preventing Petitioners from absconding and ensuring their presence at immigration proceedings is important, we note that Petitioners’ failure to appear at future immigration proceedings would carry grave consequences of which Petitioners are surely aware. Further, it is our view that the risk of absconding is low, given the current restricted state of travel in the United States and the world during the COVID-19 pandemic. Finally, the public interest favors Petitioners’ release. As mentioned, Petitioners are being detained for civil violations of this country’s immigration laws. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of aging or ill civil detainees does not serve the public’s interest.” Basank, 2020 WL 1481503, *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and
23

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.532 Page 93 of 94
the release of these fragile Petitioners from confinement is one step further in a positive direction.
III. CONCLUSION In times such as these, we must acknowledge that the status quo of a mere
few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.
Respondents’ Facilities are plainly not equipped to protect Petitioners from a potentially fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious, should we fail to afford relief to Petitioners we will be a party to an unconscionable and possibly barbaric result. Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue. This is true even for those who have lost a measure of their freedom. If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize Petitioners’ plight. And so we will act.
Based on the foregoing, we shall grant the requested temporary restraining order. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility shall be ordered to immediately
24

Case 2:20-cv-11094-MAG-EAS ECF No. 3-15 filed 05/04/20 PageID.533 Page 94 of 94
release the Petitioners today on their own recognizance without fail. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Petitioners’ Motion for Temporary Restraining Order, (Doc. 7), is GRANTED.
2. Respondents, and the York County Prison, Clinton County Correctional Facility and Pike County Correctional Facility SHALL IMMEDIATELY RELEASE the Petitioners TODAY on their own recognizance.
3. This TRO will expire on April 13, 2020 at 5:00 p.m. 4. No later than noon on April 7, 2020, the Respondents shall SHOW
CAUSE why the TRO should not be converted into a preliminary injunction. 5. The Petitioners may file a response before the opening of business on April 10, 2020.
s/ John E. Jones III John E. Jones III United States District Judge
25

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.1 Page 1 of 71

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

CHARLES RUSSELL, CHRISTOPHER HUBBARD, HARRY WHITE, CARL SMELLEY, CALDERONE PEARSON, SHANE CARLINE, and COURTNEY WHITE, individually and on behalf of all others similarly situated,
Plaintiffs
v.
WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as Sheriff of Wayne County; DANIEL PFANNES, in his official capacity as the Undersheriff for the Wayne County Sheriff’s Office; ROBERT DUNLAP, in his official capacity as Chief of Jails and Court Operations; JAMES E. DAVIS, in his official capacity as Deputy Chief of Jail Operations,

Case No.
Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief
Class Action
IMMEDIATE RELIEF SOUGHT

Defendants.

CLASS ACTION COMPLAINT 1. Jails and prisons are rapidly becoming the epicenter of this country’s fight against the novel Coronavirus Disease 2019 (“COVID-19”). The rate at which this disease is ravaging the globe is unprecedented in modern society, and its impact is being acutely felt by incarcerated populations. With approximately 47,000
1

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.2 Page 2 of 71
confirmed cases and 4000 deaths,1 Michigan is ranked third in the country for
coronavirus-related deaths.2 Of those confirmed cases and deaths from COVID-19,
Wayne County, including the City of Detroit, accounts for almost half.3 Data
suggests that COVID-19 could further uniquely burden the city of Detroit where
three of ten residents live in poverty, and, where residents have a high rate of
asthma,4 type 2 diabetes,5 hypertension,6 and other chronic diseases.7
2. As of April 20th, Black people accounted for 40% of all deaths in
Michigan from COVID-19, even though they represent only 13.6% of Michigan’s
1 Roberto Acosta, Michigan reports 29 new coronavirus deaths; 547 new cases, MLive (May 4, 2020), https://www.mlive.com/coronavirus/2020/05/michiganreports-29-new-coronavirus-deaths-547-new-cases.html. 2 Michigan Has Highest U.S. Death Rate Among Confirmed Covid Cases, Deadline Detroit (May 4, 2020), https://www.deadlinedetroit.com/articles/25152/michigan_has_nation_s_highest_d eath_rate_among_confirmed_covid_cases. 3 Kristen Jordan Shamus, Kristi Tanner, & Niraj Warikoo, Wayne County, Detroit account for 47% of state’s coronavirus cases, Detroit Free Press (May 4, 2020) https://www.freep.com/story/news/health/2020/04/03/coronavirus-covid-19-caseswayne-county-detroit-michigan/5116620002/. 4Mary M. Chapman, Julie Bosman, & John Eligon, Coronavirus Sweeps Through Detroit, a City That Has Seen Crisis Before, N.Y. Times (Apr. 28, 2020), https://www.nytimes.com/2020/03/30/us/coronavirus-detroit.html. 5 Erika Edwards, Coronavirus comes for Detroit: Why certain Michigan residents are at higher risk, NBC News (May 4, 2020), https://www.nbcnews.com/health/health-news/coronavirus-comes-detroit-whycertain-michigan-residents-are-higher-risk-n1172096. 6 Id. 7 Id.
2

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.3 Page 3 of 71
population.8 1622 of the 3407 deaths from COVID-19 have come from Wayne
County.9 On average, 70% of the incarcerated individuals in the Wayne County Jail
are Black, compared to only 39.7% of the general population of Wayne County.10
Sixty-two percent of the people inside the jail are being held there pre-trial and
presumptively innocent.11
3. Hundreds of individuals caged inside the Wayne County Jail
facilities—overwhelmingly Black, poor, and medically vulnerable—are prohibited
from meaningfully protecting themselves against this global pandemic. As COVID-
19 continues to gain a powerful foothold in the Wayne County Jail, incarcerated
people are at significant risk of becoming infected and ultimately dying. Because of
8 Kristin Jordan Shamus, Michigan coronavirus task force on racial disparities dedicates work to Detroit girl, 5, who died, Detroit Free Press (May 4, 2020), https://www.freep.com/story/news/health/2020/04/20/michigan-coronavirus-taskforce-racial-disparities/5166777002/. 9 M. Roy Wilson, Lessons from Detroit on racial disparity and St. Louis coronavirus deaths, St. Louis Post-Dispatch (May 4, 2020), https://www.stltoday.com/opinion/columnists/m-roy-wilson-lessons-from-detroiton-racial-disparity-and-st-louis-coronavirus-deaths/article_61d3da39-8469-5719b7d2-341a96cb73b5.html. 10 The New Wayne County Jail Fact Sheet, (Apr. 28, 2020), https://static1.squarespace.com/static/5a413ae949fc2b12a2cb973f/t/5b439e7703ce 64ad9899038e/1531158136066/Fact+Sheet+6.29+%281%29+%281%29.pdf; Vera Institute of Justice, “Wayne County, MI,” Incarceration Trends (May 3, 2020), http://trends.vera.org/rates/wayne-countymi?incarceration=count&incarcerationData=all. 11 Id.
3

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.4 Page 4 of 71
the actions and inactions of Wayne County’s correctional facilities and the officials responsible for detainees’ health and safety, individuals locked inside this jail are engaged in a fight for recognition of their humanity and for their very survival during this perilous and extraordinary time.
4. COVID-19 has already reached the Wayne County Jail. The disease has killed 2 contracted Jail physicians12 and 2 deputies.13 As of April 24, 2020, 177 employees and 13 detainees at the Wayne County Sheriff’s Office have contracted the disease.14 The outbreak within the jail poses a grave risk of harm and death that is ongoing.
5. A mass outbreak of COVID-19 in any of Michigan’s Jails and prisons, including the Wayne County Jail, would further strain the state’s struggling healthcare system. Michigan has constructed make-shift field hospitals, in an attempt

12 Rudy Harper, COVID-19 Claiming the Lives of Doctors who Treat Inmates, WXYZ Detroit (Apr. 16, 2020), https://www.wxyz.com/news/coronavirus/covid19-claiming-the-lives-of-doctors-who-treat-inmates.

13 Meredith Spelbring, 2nd Wayne County Sheriff's Office deputy dies of

coronavirus,

Detroit

Free

Press

(Apr.

4,

2020),

https://www.freep.com/story/news/local/michigan/wayne/2020/04/04/wayne-

county-sheriff-deputy-dies-coronavirus-dean-savard/2947731001/.

14 Ariana Taylor, 13 Inmates in the Wayne County Jail Have Contracted COVID-19,

The

Detroit

News

(Apr.

24,

2020),

https://www.detroitnews.com/story/news/local/wayne-county/2020/04/22/13-

inmates-wayne-county-jail-have-contracted-covid-19/3005465001/.

4

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.5 Page 5 of 71
to ease the collective burden on Southeastern Michigan hospitals.15 Detroit-area hospitals are suffering significant staffing, supplies, and equipment shortages.16 At Detroit’s Sinai-Grace Hospital, the patient volume is so overwhelming that patients are lining the hallways, and some have died waiting for medical attention.17 The state’s chief medical officer, Dr. Joneigh Khaldun, declared that state hospitals are overwhelmed, and there are no signs that the rate of infection is slowing down.18
6. Accordingly, medical experts have stressed that urgent action to reduce jail populations is an essential public health priority to avoid further straining regional hospitals and health centers—which would bear the brunt of having to treat all infected people. As a result, regional hospitals and health centers would have fewer resources available to treat individuals seeking care, which will prove

15 See TCF Center makeshift hospital in Detroit ready to accept first patients,

WXYZ

Detroit,

Channel

7

(Apr.

9,

2020)

https://www.wxyz.com/news/coronavirus/4-local-health-systems-will-help-staff-

tcf-center-temporary-hospitals-first-patients-arriving-friday.

16 See Paul P. Murphy, Detroit hospital workers say people are dying in the ER hallways before help can arrive (Apr. 9, 2020), https://www.cnn.com/2020/04/09/us/detroit-hospital-workers-sinai-gracecoronavirus/index.html.

17 Id.

18 Courtney Vinopal, WATCH: Michigan Gov. Gretchen Whitmer gives coronavirus update, PBS (Apr. 6, 2020), https://www.pbs.org/newshour/health/watchlivemichigan-gov-gretchen-whitmer-gives-coronavirus-update.

5

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.6 Page 6 of 71
disastrous when medical needs overwhelm the institutions’ resources.19
7. Recognizing the immediate need to slow the spread of this virus and
protect public health, medical experts have urged people to practice sweeping
precautionary measures in their everyday lives. Yet the very steps required for all of
those living outside of a jail—regular handwashing, adequately cleaning their
surroundings, access to testing, prompt medical attention, and wearing protective
gear—have been made impossible for those confined in the Jail by the very officials
responsible for their well-being.
8. Social distancing, the practice of maintaining at least six feet between
any two people, is the single most important precaution anyone can take to prevent
the spread of COVID-19. Governors, mayors, and local city and county officials
have all urged the public to practice social distancing.20 Forty-six states and the
19 Ex. 1, Declaration of Marc Stern (“Stern Decl.”) ¶ 11; see also Ex. 2, Expert Declaration of Dr. Jaimie Meyer (“Meyer Decl.”) ¶¶ 16, 22, Velesaca v. Wolf, Case No. 1:20-cv-01803-AKH, ECF Doc. 42 (S.D.N.Y. Mar. 16, 2020); Ex. 3, Expert Declaration of Elizabeth Y. Chiao (“Chiao Decl.”) ¶ 28, Russell, et al. v. Harris County, Texas, No. 4:19-cv-00226, ECF Doc. 32-2 (S.D. Tex. Mar. 27, 2020). 20 Michigan closes bars, stops restaurant dine-in, further limits gatherings, WOODTV (Mar. 16, 2020), https://www.woodtv.com/health/coronavirus/whitmerorders-bars-restaurants-to-close-due-to-virus-concerns/; Doug Mainwaring, Governor urges ‘social distancing’ even among families at home, LifeSite (Apr. 3, 2020), https://www.lifesitenews.com/news/governor-urges-social-distancing-evenamong-families-at-home; Christian Berthelsen, Elise Young, N.J., N.Y. Urge Residents to Stay Put With Peak Approaching, Bloomberg (Apr. 9, 2020), https://www.bloomberg.com/news/articles/2020-04-09/murphy-says-socialdistancing-is-slowing-virus-spread-in-n-j; Laura Ziegler, Act Like You Have The Virus, Kansas City Officials Urge As They Step Up Social Distance Enforcement,
6

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.7 Page 7 of 71
District of Columbia have ordered all businesses deemed nonessential to close.21
Three hundred sixteen million people in at least 42 states, three counties, nine cities,
the District of Columbia, and Puerto Rico are being urged (or ordered) to stay
home.22 Gatherings where it is impossible to maintain social distancing have been
cancelled across the country and the world.23 In several states, police are arresting
or ticketing people who fail to maintain six feet of separation between themselves
and others.24
KCUR (Mar. 30, 2020), https://www.kcur.org/post/act-you-have-virus-kansas-cityofficials-urge-they-step-social-distance-enforcement#stream/0; Kendall Downing, City, county officials urge social distancing over Easter holiday weekend; City braces for COVID-19 budget impact, WMC5 (Apr. 8, 2020), https://www.wmcactionnews5.com/2020/04/08/city-county-officials-urge-socialdistancing-over-easter-holiday-weekend-city-braces-covid-budget-impact/; Many People Will Get COVID-19’ Says Mayor Garcetti As He Urges LA To Practice Social Distancing, Self-Quarantine, CBSN Los Angeles (Mar. 14, 2020), https://losangeles.cbslocal.com/2020/03/14/many-people-will-get-covid-19-saysmayor-garcetti-as-he-urges-la-to-practice-social-distancing-self-quarantine/. 21 Eric Schumaker, Here are the states that have shut down nonessential businesses, ABC News, (Apr. 3, 2020), https://abcnews.go.com/Health/states-shut-essentialbusinesses-map/story?id=69770806. 22 Sarah Mervosh, Denise Lu & Vanessa Swales, See Which Cities and States Have Told Residents to Stay at Home, N.Y. Times (Apr. 20, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-homeorder.html. 23 A List of What’s Been Canceled Because of the Coronavirus, N.Y. Times (Apr. 1, 2020), https://www.nytimes.com/article/cancelled-events-coronavirus.html. 24 Hannah Fry, Manhattan Beach issues 129 citations for coronavirus socialdistancing, L.A. Times (Apr. 7, 2020), https://www.latimes.com/california/story/2020-04-07/manhattan-beach-citationscoronavirus-social-distancing-violations; Detroit police: Property owners will get
7

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.8 Page 8 of 71
9. Wayne County and the officials responsible for operating the Wayne
County Jail have failed to adequately respond to the obvious and urgent threats posed
by this growing pandemic. Contrary to public claims, the people detained inside have
limited and, at times no access to soap, cleaning supplies, or personal protective
equipment, Kleenex, and paper towels; they sparingly receive clean clothing, linens,
and towels; in many cases, they sleep and eat within a couple of feet and, at times,
inches of one another; they must wait days to receive medical attention; and,
frequently, requests for medical attention are dismissed or punished.
10. The population reduction in the jail is insufficient, and the
approximately 850 people held inside are forced to suffer unconstitutional conditions
that blatantly deny them adequate medical care as well as the most basic protections
necessary to mitigate the spread and risk of infection.
11. Most notably, however, the Wayne County Jail’s population of
social distancing violation ticket if crowd gathers, Fox 2 (Apr. 6, 2020), https://www.fox2detroit.com/news/detroit-police-property-owners-will-get-socialdistancing-violation-ticket-if-crowd-gathers; Katie Canales, Police in California have started ticketing people having picnics and congregating in beach areas as law enforcement cracks down on violators of the statewide stay-at-home order, Business Insider (Apr. 6, 2020), https://www.businessinsider.com/californiagiving-people-tickets-stay-at-home-coronavirus-2020-4; Amanda Jackson, Police are arresting and fining people for violating social distancing orders, CNN (Apr. 1, 2020), https://www.cnn.com/2020/03/31/us/violating-coronavirus-orderstrnd/index.html. Alice Speria, NYPD’s Aggressive Policing Risks Spreading The Coronavirus, The Intercept (Apr. 3, 2020), https://theintercept.com/2020/04/03/nypd-social-distancing-arrests-coronavirus/.
8

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.9 Page 9 of 71
approximately 850 people makes it impossible to implement the single most effective weapon against the risk of infection, absent a vaccine: social distancing.
12. Public health experts agree that all of the aforementioned protective measures are insufficient to contain the virus if social distancing cannot be achieved. Infectious disease physician, virologist, and associate professor Adam Lauring emphasized, “[i]f social distancing cannot meaningfully be practiced, then it is impossible to prevent the spread of infections.”25 Infectious disease physician Carlos Franco-Paredes, M.D., echoes Dr. Lauring’s sentiments, “unless social distancing is…meaningfully implemented,” protective “interventions are insufficient to interrupt the transmission of COVID-19.”26 In accord with “U.S. public health experts,” National Institutes of Health Director Dr. Francis Collins, similarly remarked, “what we need most right now to slow the stealthy spread of this new coronavirus is a full implementation of social distancing.”27 And UC San Francisco epidemiologists Jeff Martin, MD, MPH, and George Rutherford, III, MD, make clear, “[s]ocial distancing is currently the most important factor we can control in the COVID-19 outbreak, and therefore critical” to “avoid catching the virus yourself
25 Ex. 14, Declaration of Dr. Adam Lauring (“Lauring Decl.”) ¶ 13. 26 Ex. 6, Report of Dr. Carlos Franco-Paredes, p. 1. 27 Dr. Francis Collins, To Beat COVID-19, Social Distancing is a Must, NIH Director’s Blog (Mar. 19, 2020), https://directorsblog.nih.gov/2020/03/19/to-beatcovid-19-social-distancing-is-a-must/.
9

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.10 Page 10 of 71
and avoid passing it on.”28 13. People confined in jails and prisons must “be furnished with the basic
human needs, one of which is ‘reasonable safety,’” Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (citations omitted). Yet Plaintiffs, as well as the class and subclass they represent, all face imminent risk of serious injury or death from a COVID-19 outbreak in the Wayne County Jail. In the midst of a public health crisis, the people confined at the Wayne County Jail have not been provided adequate safeguards against the severe threat of this novel coronavirus.
14. Because Defendants’ actions (and failure to act) constitute ongoing, systemic violations of Petitioner/Plaintiffs’ constitutional rights, Petitioners/Plaintiffs seek class-wide relief requiring Defendants to take basic and necessary steps to protect the health and welfare of people held inside of the jail, who, due to the nature of their confinement, are both at heightened risk of infection and death and unable to enjoy the most basic necessary protections which are routinely practiced by people outside of the jail. Petitioners/Plaintiffs further request a writ of habeas corpus for all those who are medically vulnerable and at particularly grave risk of infection and death from COVID-19—all they ask is to be treated
28 Nina Bai, Why Experts Are Urging Social Distancing to Combat Coronavirus Outbreak, Univ. of Cal. S.F. (Mar. 14, 2020), https://www.ucsf.edu/news/2020/03/416906/why-experts-are-urging-socialdistancing-combat-coronavirus-outbreak.
10

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.11 Page 11 of 71
humanely during this perilous time. JURISDICTION AND VENUE
15. This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. § 2241, and 28 U.S.C. § 2201, et seq., as well as the Eighth and Fourteenth Amendments to the United States Constitution. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, 28 U.S.C. § 2241, and 28 U.S.C. § 1651.
16. Venue is proper pursuant to 28 U.S.C. § 1391 because a substantial part of the events and omissions giving rise to these claims occurred and continue to occur in this judicial district.
PARTIES 17. Petitioner/Plaintiff Charles Russell, a 59 year old Black man, currently resides in Wayne County, Michigan. At all times relevant to this Complaint, Mr. Russell was in the custody of the Defendants, in their official capacities, at the Wayne County Jail. He is currently confined in Division III of the Jail. Mr. Russell suffers from stage 3 prostate cancer, diabetes, high blood pressure, and an umbilical hernia. Since being taken into custody on March 20, 2020, Mr. Russell has been unable to attend any radiation treatment sessions, which he must receive five times per week to prevent his cancer from spreading. He represents the Class and the medically vulnerable subclass.
11

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.12 Page 12 of 71
18. Petitioner/Plaintiff Christopher Hubbard, a 26 year old Black man, currently resides in Wayne County, Michigan. At all times relevant to this Complaint, Mr. Hubbard was in the custody of the Defendants, in their official capacities, at the Wayne County Jail. He is currently confined in Division III of the Jail. Mr. Hubbard has diabetes and asthma. He is expecting a baby with his partner in October 2020. He represents the Class, as well as the pretrial and medically vulnerable subclasses.
19. Petitioner/Plaintiff Harry White, a 36 year old Black man, currently resides in Wayne County, Michigan. Mr. White is the father of four children and is expecting a new baby with his fiancé this fall. At all times relevant to this Complaint, Mr. White was in the custody of the Defendant, in their official capacities, at the Wayne County Jail. He is currently confined in Division III of the Jail. Mr. White suffers from a heart murmur and localized paralysis in his feet and hands and chronic pain from a bullet located on his spine. He has had to relearn to walk and is unable to stand for long periods of time. He represents the Class, as well as the postconviction and medically vulnerable subclasses.
20. Petitioner/Plaintiff Carl Smelley, a 38 year old Black man, currently resides in Wayne County, Michigan. At all times relevant to this Complaint, Mr. Smelley was in the custody of the Defendants, in their official capacities, at the Wayne County Jail. He is currently confined in Division II of the Jail. Mr. Smelley
12

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.13 Page 13 of 71
suffers from Sickle Cell Disease, hypertension, and diabetes. He represents the Class and the medically vulnerable subclass.
21. Petitioner/Plaintiff CalDerone Pearson, a 30 year old Black man, currently resides in Wayne County, Michigan. Mr. Pearson is the father of five young children who rely on his care. At all times relevant to this Complaint, Mr. Pearson was in the custody of the Defendants, in their official capacities, at the Wayne County Jail. He is currently confined in Division III of the Jail. He represents the Class and the post-conviction subclass.
22. Petitioner/Plaintiff Shane Carline, a 33 year old White man, currently resides in Wayne County, Michigan and is recently married. At all times relevant to this Complaint, Mr. Carline was in the custody of the Defendants, in their official capacities, at the Wayne County Jail. He is currently confined in Division II of the Jail because he cannot afford to pay his bond. He is awaiting trial and is presumptively innocent. He represents the Class and the pretrial subclass.
23. Petitioner/Plaintiff Courtney White, a 54 year old Black man, currently resides in Wayne County, Michigan. At all times relevant to this Complaint, Mr. White was in the custody of the Defendants, in their official capacities, at the Wayne County Jail. He is currently confined in Division III of the Jail. Mr. White suffers from high blood pressure and high cholesterol. He represents the Class, as well as the post-conviction and medically vulnerable subclasses.
13

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.14 Page 14 of 71
24. Defendant Wayne County is a political subdivision of the State of Michigan that can be sued in its own name. Wayne County is responsible for all acts of the Wayne County Sheriff’s Office. The Wayne County Sheriff’s Office oversees the Jail and is responsible for the custody and care of all persons detained or incarcerated in the Jail, and it currently has immediate custody over Petitioners/Plaintiffs and other putative class members.
25. Defendant Benny Napoleon is the Sheriff for Wayne County and is responsible for operating the Jail and maintaining the care and custody of people confined at the Jail. Defendant Napoleon is being sued in his official capacity.
26. Defendant Robert Dunlap is the Chief of Jails and Court Operations and is responsible for operating the Jail and maintaining the care and custody of people confined at the Jail. Defendant Dunlap is being sued in his official capacity.
27. Defendant James E. Davis is the Deputy Chief of Jail Operations and is responsible for operating the Jail and maintaining the care and custody of people confined at the Jail. Defendant Davis is being sued in his official capacity.
28. Defendant Daniel Pfannes is the Undersheriff for the Wayne County Sheriff’s Office and is responsible for operating the Jail and maintaining the care and custody of people confined at the Jail. Defendant Pfannes is being sued in his official capacity.
14

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.15 Page 15 of 71
THE GRAVE RISK OF HARM POSED BY THE COVID-19 PANDEMIC REQUIRES AN EMERGENCY RESPONSE
29. The highly contagious novel coronavirus, and its resulting infection, COVID-19, are spreading at an alarming rate. Emphasizing “deep[] concern[] both by the alarming levels of spread and severity, and by the alarming levels of inaction,” the World Health Organization has called for countries to take “urgent and aggressive action.”29
30. The virus is transmitted through respiratory droplets or contact with surfaces on which the virus is present.30 Recent studies show that more than 50% of infected persons may never show symptoms, but can, nevertheless, transmit the virus to others.31 As a result, confirmed cases of the virus are likely drastically understated.
31. Dr. Amir Moheb Mohareb, an expert in infectious diseases, explains

29 See World Health Organization, Director-General Opening Remarks (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-openingremarks-at-the-mediabriefing-on-covid-19---11-march-2020; see also Coronavirus: COVID-19 Is Now Officially A Pandemic, WHO Says, NPR (Mar. 11, 2020), https://www.npr.org/sections/goatsandsoda/2020/03/11/814474930/coronaviruscovid-19-is-now-officially-a-pandemic-who-says.

30 See World Health Organization, Modes of transmission of virus causing COVID19: implications for IPC precaution recommendations (Mar. 29, 2020), https://www.who.int/news-room/commentaries/detail/modes-of-transmission-ofvirus-causing-covid-19-implications-for-ipc-precaution-recommendations.

31 Katherine Harmon Courage, How people are spreading Covid-19 without

symptoms,

Vox,

(Apr.

22,

2020)

https://www.vox.com/2020/4/22/21230301/coronavirus-symptom-asymptomatic-

carrier-spread.

15

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.16 Page 16 of 71
that COVID-19 can be spread through airborne or aerosolized transmission and that “various particles in small respiratory droplets that are emitted by an infected person can remain suspended in the air and remain infective over several hours and over long distances.”32 He continues, “[p]athogens that travel via airborne transmission can infect persons even if they are wearing surgical or procedural masks.” Buildings or facilities that do not have negative-pressure ventilation may be at risk of spreading aerosolized pathogens between rooms. Furthermore, “[a]erosols can be generated by a number of common events, including vigorous coughing, sneezing, use of certain nasal sprays or nebulizer treatments, and toilet flushing.”33 There is further reason to believe that SARS-CoV-2 can be transmitted via fecal-oral contact and that the identification of viable SARS-CoV-2 in stool of infected persons raises concern of airborne transmission via toilet flushing.”34 Finally, he declares, “[h]and hygiene and the provision of surgical masks are insufficient to prevent the spread of infection in a congregate setting.”35
32. The number of people infected by COVID-19 is growing
32 Ex. 16, Expert Declaration of Dr. Amir Moheb Mohareb (“Mohareb Decl.”) ¶ 7, Mays v. Dart, Case No. 20-cv-2134 (Apr. 3, 2020). 33 Id. 34 Id. 35 Id.
16

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.17 Page 17 of 71

exponentially.36 On January 1, 2020, the first confirmed COVID-19 case was diagnosed in the United States.37 As of May 2, 2020, there were more than 1,092,000 confirmed COVID-19 cases and more than 64,000 deaths in the United States.38 Nationally, CDC projections indicate that over 200 million individuals in the United States could be infected with COVID-19 without effective public health intervention over the course of the pandemic,39 and as many as 2.2 million deaths in the worst projections.40
33. The virus poses a grave risk of severe illness, including lung tissue damage, sometimes leading to a permanent loss of respiratory capacity. It can also

36 The death toll in Italy, which began experiencing this epidemic about a week earlier than the first diagnosed American case, saw a rise of 30% overnight in the 24 hours between March 5, 2020, and March 6, 2020 and a rise of 25% on March 15 alone—a day that killed 368 people in Italy. See Crispian Balmer & Angelo Amante, Italy coronavirus deaths near 200 after biggest daily jump, Reuters (Mar. 6, 2020), https://www.reuters.com/article/us-health-coronavirus-italy/italy-coronavirusdeaths-near-200-after-biggest-daily-jump-idUSKBN20T2ML.

37 Derrick Bryson Taylor, A Timeline of the Coronavirus, N.Y. Times (Mar. 2020), https://www.nytimes.com/article/coronavirus-timeline.html (last visited Mar. 24, 2020).

38 Coronavirus 2019, Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html.

39 James Glanz et al., Coronavirus Could Overwhelm U.S. without Urgent Action,

Estimates

Say,

N.Y.

Times

(Mar.

20,

2020),

https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-

outbreak.html.

40 Holly Yan, More than 3,000 people in the US have died from coronavirus, CNN (Mar. 31, 2020), https://www.cnn.com/2020/03/30/health/us-coronavirusupdatesmonday/index.html.

17

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.18 Page 18 of 71
cause acute respiratory distress syndrome, affect cardiac functions (including the
possibility of heart failure), lead to severe damage to other organs (including causing
irreversible harm to the kidneys or neurologic injury),41 and cause life-threatening
blood clots.42 Research also suggests that COVID-19 can trigger an over-response
in the immune system,43 resulting in death.44 People over the age of 50 are
particularly at risk (accounting for 74% of patients hospitalized), as are people with
certain underlying conditions, most commonly, hypertension, obesity, chronic lung
disease, diabetes mellitus, and cardiovascular disease.45
34. The experiences of persons infected with COVID-19 are “a lot more
frightening” than the flu.46 Suffering from acute respiratory distress syndrome has
41 Ex. 4, Expert Decl. of Jonathan Louis Golob (“Golob Decl.”) ¶ 7. 42 Lydia Ramsey, Blood clots are the latest life-threatening complication of the coronavirus, but doctors aren't sure how to treat them, Business Insider (Apr. 19, 2020), https://www.businessinsider.com/coronavirus-blood-clot-complications-insevere-covid-19-treatment-debate-2020-4. 43 Id. 44 Ex. 4, Golob Decl. ¶ 7. 45 Centers for Disease Control & Prevention, Morbidity and Mortality Weekly Report – Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Cases (Apr. 8, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm. 46 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, Propublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes--terrifying-lungfailure-from-covid19-even-in-his-young-patients.
18

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.19 Page 19 of 71
been compared to “essentially drowning in [one’s] own blood.”47 Even relatively young people with few health problems can be “wiped out” by the virus, “like they’ve been hit by a truck,” and, in some cases, “sudden[ly]” go into complete respiratory failure.48
35. Further, because COVID-19-related complications can develop rapidly, local hospitals are overwhelmed with high patient volumes and shortages in health care resources. Treatment for severe COVID-19 cases requires advanced medical support with highly specialized equipment, such as ventilators and oxygen assistance, and a team of qualified health care providers.
36. The current estimated incubation period is between 2 and 14 days.49 Approximately 20% of people infected experience life-threatening complications, and, of those infected, between 1% and 3.4% die.50 According to recent estimates, the fatality of people infected with the coronavirus is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health
47 Id. 48 Id. 49 Centers for Disease Control & Prevention, Coronavirus Disease COVID-19 Symptoms (updated: Feb. 29 2020), https://www.cdc.gov/coronavirus/2019ncov/about/symptoms.html. 50 Brian Resnick & Christina Animashaun, Why Covid-19 is worse than the flu, in one chart, Vox (Mar. 18, 2020), https://www.vox.com/science-andhealth/2020/3/18/21184992/coronavirus-covid-19-flu-comparison-chart.
19

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.20 Page 20 of 71
care systems.51 Patients who do not die from serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage and loss of respiratory capacity.52
37. Because it is unclear whether people who have recovered from COVID19 are immune to reinfection,53 and a vaccine appears more than one year away, the only effective weapon against the virus is preventing new infections. According to health experts, the only guaranteed way to prevent new infections, is social distancing: physically isolating oneself from any other person at a minimum distance of six feet. Dozens of the world’s experts on fighting epidemics agree that extreme social distancing approximates the type of “total freeze”54 on transmission that is vital to halting and reversing the spread of COVID-19. Epidemiologists say that “[i]f it were possible to wave a magic wand and make all Americans freeze in place for
51 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, Wall St. J. (Mar. 10, 2020), https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier11583856879. 52 Ex. 4, Golob Decl. ¶ 4. 53 Dr. Delaram J. Taghipour, Questions Remain Over Whether COVID-19 Recovery Will Guarantee Immunity: Is Reinfection Still Possible, ABC News (Apr. 12, 2020), https://abcnews.go.com/Health/questions-remain-covid-19-recovery-guaranteeimmunity-reinfection/story?id=70085581. 54 Donald G. McNeil Jr., The Virus Can Be Stopped, but Only With Harsh Steps, Experts Say, N.Y. Times (Mar. 22, 2020), https://www.nytimes.com/2020/03/22/health/coronavirus-restrictions-us.html.
20

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.21 Page 21 of 71
14 days while sitting six feet apart . . . the whole epidemic would sputter to a halt.”55
INCARCERATED PEOPLE AND CORRECTIONAL STAFF ARE AT HEIGHTENED RISK DURING THE COVID-19 PANDEMIC
38. Jail facilities become “ticking time bombs” in a pandemic, as “[m]any
people crowded together, often suffering from diseases that weaken their immune systems, form a potential breeding ground and reservoir for diseases.”56
Epidemiological research overwhelmingly “shows that mass incarceration raises
contagion rates for infectious disease—both for people in jails, and for the community at large.”57
39. These facilities are inextricably linked to public life: staff, visitors,
contractors, and vendors pass between communities and these facilities multiple
times daily, and, if infected, carry the virus with them. Similarly, rapid turnover of
jail and prison populations means that people often cycle between these facilities
and communities. Thus, the ability to control the spread of infection outside of
facilities hinges on controlling infection and the spread of infection inside of these
55 Donald G. McNeil Jr., The Virus Can Be Stopped, but Only With Harsh Steps, Experts Say, N.Y. Times (Mar. 22, 2020), https://www.nytimes.com/2020/03/22/health/coronavirus-restrictions-us.html. 56 See St. Louis Univ., “Ticking Time Bomb”: Prisons Unprepared For Flu Pandemic, ScienceDaily (2006), https://www.sciencedaily.com/releases/2006/09/060915012301.htm. 57 Sandhya Kajeepeta & Seth J. Prins, Why Coronavirus in Jails Should Concern All of Us, The Appeal (Mar. 24, 2020), https://theappeal.org/coronavirus-jails-publichealth/.
21

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.22 Page 22 of 71
facilities. Put simply, jail health is public health.
40. According to Dr. Jaimie Meyer, an expert in public health in jails and
prisons: “[T]he risk posed by COVID-19 in jails and prisons is significantly higher
than in the community, both in terms of risk of transmission, exposure, and harm to
individuals who become infected.”58 This is due to a number of factors, including:
a. The close proximity of individuals in those facilities;
b. Their reduced ability to protect themselves through social distancing;
c. The lack of necessary medical and hygiene supplies ranging from hot water, soap or hand sanitizer, to protective equipment;
d. Ventilation systems that encourage the spread of airborne diseases;
e. Difficulties quarantining individuals who become ill;
f. The enhanced susceptibility of the population in jails and prisons due to chronic health conditions;
g. The fact that incarcerated people, rather than professional cleaners, are often responsible for cleaning the facilities and are not given appropriate supplies; and
h. The fact that jails and prisons normally have to rely heavily on outside hospitals that will become unavailable during a pandemic, as well as the loss of both medical and correctional staff to illness.59
58 Ex. 2, Meyer Decl. ¶ 7, ECF Doc. 42, Velesaca v. Wolf, Case No. 1:20-cv-01803AKH (S.D.N.Y. Mar. 16, 2020). 59 See Ex. 2, Meyer Decl. ¶¶ 7-19; Pandemic Influenza & Jail Facilities & Populations, Am. J. of Pub. Health, October 2009 (“The pathway for transmission of pandemic influenza between jails and the community is a two-way street. Jails process millions of bookings per year. Infected individuals coming from the community may be housed with healthy inmates and will come into contact with
22

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.23 Page 23 of 71

41. Increased risk of transmission and infection also result from the constant cycling of people in and out of the jail (including staff),60 limited access to medical care within the Jail itself, and ineffective screening procedures. Most people do not show symptoms for two to fourteen days while being contagious. Others never exhibit any symptoms at all. Thus, while screening for fevers and other symptoms associated with COVID-19 may stop some infected people from entering or transmitting the disease, it cannot catch many of those actively spreading the virus. The drastic social distancing measures that have been imposed across the country are designed to combat this exact problem. To be sure, by staying at home, we can limit our contact with other persons, even the asymptomatic. This option is unavailable in the Jail.
42. Any of the revolving door of Jail staff can be asymptomatically carrying and transmitting COVID-19, and the Jail has no means of stopping the spread of this disease. In Michigan, more than 40 state Department of Corrections staff have

correctional officers, which can spread infection throughout a facility.”). See also

Dr. Anne Spaulding, Coronavirus and the Correctional Facility: for Correctional

Staff

Leadership,

Mar.

9,

2020,

available

at

https://www.ncchc.org/filebin/news/COVID_for_CF_Administrators_3.9.2020.pdf

.

60 See Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://www.prisonpolicy.org/blog/2020/03/06/pandemic.

23

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.24 Page 24 of 71
contracted COVID-19, and an additional 150 staff have self-quarantined due to possible exposure.61 On April 2, 2020, Andy Potter, Executive Director of the Michigan Corrections Organization, and Brian Dawe, Executive Director of the American Correctional Officer Intelligence Network, sent a letter to the National Governors Association, describing the dire impact of COVID-19 on correctional officers and staff: “[O]fficers in Michigan, New York and New Jersey have died from COVID-19. They will not be the last. Hundreds more across the nation have tested positive and thousands face quarantine. Detainees in our custody are dying as a result of this virus.”62 The letter also referenced a survey of over 750 correctional officers and staff about the ways in which the COVID-19 virus is impacting prisons, jails, and juvenile detention facilities, in which almost 60% of respondents said that COVID-19-related hazards inside their facility remain unaddressed.63 Correctional officials around the country agree that particular care must be taken to stop the spread of COVID-19 within the nation’s jails. Leann Bertsch, the Director of the North Dakota Department of Corrections and Rehabilitation, concluded that,
61 Jameson Cook, Michigan prison guards concerned about dangers of COVID-19, Macomb Daily (Apr. 5, 2020), https://www.macombdaily.com/news/coronavirus/michigan-prison-guardsconcerned-about-dangers-of-covid-19/article_1e6c27f6-7604-11ea-a44443bddcfab230.html. 62 Letter from One Voice & ACOIN to Nat’l Governors Ass’n (Apr. 2, 2020), https://drive.google.com/file/d/13euHXAPbSyVo1vkG9k1x7ymJCl_UJhTc/view. 63 Id.
24

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.25 Page 25 of 71
“ignoring the health of those living and working inside the walls of our nation’s
correctional facilities poses a grave threat to us all,” and that “putting public health
first is the best, and only, way to effectively achieve [a department of correction’s] public safety mission during the COVID-19 pandemic.”64
43. On March 30, 2020, the Centers for Disease Control and Prevention
(CDC) published guidance for correctional and detention facilities, including local jails.65 The CDC recognized that incarcerated people must exist “within congregate
environments” that “heighten[] the potential for COVID-19 to spread once introduced.”66 Indeed, “[t]here are many opportunities for COVID-19 to be
introduced into a correctional or detention facility” including “daily staff ingress and
egress…transfer of incarcerated/detained persons between facilities and systems, to court appearances,” as well as “high turnover” of “admit[ted] new entrants.”67
Accordingly, the CDC recommends that correctional facilities:
a. Post signage throughout the facility communicating COVID-19
64 Brie Williams & Leanne Bertsch, A public health doctor and head of corrections agree: we must immediately release people from jails and prisons, The Appeal (Mar. 27, 2020), https://theappeal.org/a-public-health-doctor-and-head-ofcorrections-agree-we-mustimmediately-release-people-from-jails-and-prisons/. 65 Ex. 7, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities, Centers for Disease Control & Prevention (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidancecorrectional-detention.html. 66 Id. 67 Id.
25

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.26 Page 26 of 71
symptoms and hand hygiene instructions, ensure such signage is understandable for non-English speaking people as well as those with low literacy, and provide clear information about the presence of COVID-19 cases within a facility and the need to increase social distancing and maintain hygiene precautions;
b. Ensure that sufficient stocks of hygiene supplies are on hand and available, and have a plan in place to restock as needed. Provide a nocost supply of and access to soap to incarcerated/detained persons, sufficient to allow frequent hand washing. Provide Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. Provide hand drying supplies, and alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions);
c. Provide running water, hand drying machines or disposable paper towels for hand washing, and tissues (providing no-touch trash receptacles for disposal);
d. Ensure that sufficient stocks of cleaning supplies are on hand and available, and have a plan in place to restock as needed, including issues, cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19;
e. Ensure that sufficient stocks of PPE and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility, including standard medical supplies for daily clinic needs, and recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls);
f. Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty;
g. Suspend co-pays for incarcerated people seeking medical evaluation for respiratory symptoms;
26

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.27 Page 27 of 71
h. Even if COVID-19 cases have not been identified locally or inside, implement “intensified cleaning and disinfecting procedures” that clean and disinfect high-touch surfaces and objects “[s]everal times per day,” and ensure adequate supplies to support intensified cleaning and disinfection practices”;
i. Perform pre-intake screening and temperature checks for all new entrants, and implement daily temperature checks in housing units where COVID-19 cases have been identified;
j. If an individual has symptoms of COVID-19 (fever, cough, shortness of breath), require the individual to wear a face mask and place her under medical isolation; and
k. Implement social distancing strategies to increase the physical space between incarcerated people, ideally a distance of six feet “regardless of the presence of symptoms.”
44. The CDC’s guidance for jail administrators, however, is not a substitute
for what is medically required to protect people’s lives during a pandemic. Nor is it
a repudiation of the CDC’s scientific guidance that social distancing is required to
stop the transmission of the virus.
45. The global path of the virus proves that jails and prisons are epicenters
for transmission. Approximately one month into the pandemic in the province of
Hubei, China, over half of reported COVID-19 cases were from jails.68 In South
Korea, which has had tremendous success in slowing and stopping the spread of the
virus, “the single largest COVID-19 outbreak and mortality cluster was from the
68 Zi Yang, Cracks in the System: COVID-19 in Chinese Prisons, The Diplomat (Mar. 9, 2020), https://thediplomat.com/2020/03/cracks-in-the-system-covid-19-inchinese-prisons/.
27

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.28 Page 28 of 71
Daenam Prison Hospital, where 101 detainees were infected and seven died.”69 46. The coronavirus has started spreading inside other prisons, jails, and
detention centers in the United States. Experts predict that a mass contagion is only a matter of time and that “[a]ll prisons and jails should anticipate that the coronavirus will enter their facility.”70
47. Once the virus enters a jail or prison, the infection rate has been known to far exceed that of the broader community. In mid-March, for example, the jail at Rikers Island in New York City had not had a single confirmed COVID-19 case. By March 30, 167 detainees, 114 correction staff and 20 health workers at Rikers tested positive for COVID-19; two correction staff members had died and multiple detainees had been hospitalized. Rikers now has a rate of infection that is nearly seven times higher than that in New York City and nine times higher than the rate in
69 Nancy Gertner & John Reinstein, Compassionate Release Now for Prisoners Vulnerable to the Coronavirus, Boston Globe (Mar. 23, 2020), https://www.bostonglobe.com/2020/03/23/opinion/compassionate-release-nowprisoners-vulnerable-coronavirus/. 70 Evelyn Cheng & Huileng Tan, China Says More than 500 Cases of the New Coronavirus Stemmed from Prisons, CNBC (Feb. 20, 2020), https://www.cnbc.com/2020/02/21/coronavirus-china-says-twoprisons-reportednearly-250-cases.html (quoting Tyler Winkelman, co-director of the Health, Homelessness, and Criminal Justice Lab at the Hennepin Healthcare Research Institute in Minneapolis).
28

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.29 Page 29 of 71
New York State71; over 30 times higher than the rest of America; and far higher than the infection rates of the most infected regions of the world.72 More than 700 people have tested positive for Covid-19, including more than 400 staff.73 The Chief Medical Officer of Rikers has described COVID-19 infections as a “public health disaster unfolding before our eyes.” Id. In his view, following CDC guidelines has not been enough to stem the crisis: “infections in our jails are growing quickly despite these efforts.”74
48. The Cook County Jail, similarly, went from two confirmed COVID-19 cases on March 23 to more than 350 confirmed cases, 238 detainees and 115 staff members, two weeks later.75 Approximately one month later, cases have more than

71 Asher Stockler, More Than 700 People Have Tested Positive for Coronavirus on Rikers Island, Including Over 440 Staff, Newsweek (May 4, 2020), https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872.

72 COVID-19 Infection Tracking in NYC Jails, The Legal Aid Society (updated May 1, 2020), https://legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ (last visited May 3, 2020).

73 See Jan Ransom, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail,

N.Y.

Times,

(Mar.

30,

2020),

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

74 Ross MacDonald (@RossMacDonaldMD), Twitter (Mar. 30, 2020, 8:03 PM), https://twitter.com/rossmacdonaldmd/status/1244822686280437765?s=12 (“I can assure you we were following the CDC guidelines before they were issued. We could have written them ourselves. . . [I]infections in our jails are growing despite these efforts.”).

75 Timothy Williams & Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. Times (Apr. 8, 2020),

29

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.30 Page 30 of 71
doubled, 448 detainees and 300 jail staff have contracted COVID-19, and six
detainees have died as a result.76 Nurses at Cook County’s Stroger Hospital have
warned that the virus is a “growing beast” that threatens not only staff and people
behind bars but all of Cook County.77 An entire unit at Stroger Hospital has been
converted into a space for treating COVID-19 cases from the Cook County jail, and
the unit is rapidly reaching maximum capacity.78
49. An equally gruesome pattern is already devastating Michigan’s carceral
system.79 In one Michigan prison alone, 10% of all incarcerated people have tested
positive for COVID-19, and 9 prisoners have already died statewide.80 As of May 2,
there were 1412 confirmed cases among people detained in Michigan’s prisons, an
https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jailchicago.html. 76 Andy Grimm, Cook County Jail director defends handling of COVID-19 outbreak, Chi. Sun Times, (Apr. 23, 2020), https://chicago.suntimes.com/coronavirus/2020/4/23/21233570/cook-county-jailcovid-19-outbreak-tom-dart. 77 Shannon Heffernan, Nurses Warn COVID-19 Cases At Cook County Jail Aren’t Just Staying Behind Bars, WBEZ, Chicago’s NPR (Apr. 11, 2020), https://www.wbez.org/stories/nurses-warn-covid-19-cases-at-cook-county-jailarent-just-staying-behind-bars/44cc1e46-693b-44cc-8a5a-347737966185. 78 Id. 79 See Angie Jackson & Kristi Tanner, Infection Rate at Michigan Prison Exceeds New York, Chicago Hot Spots, Detroit Free Press (Apr. 15, 2020), https://www.freep.com/story/news/local/michigan/2020/04/16/infection-ratemichigan-prison-exceeds-new-york-chicago-jail-hotspots/2987935001/. 80 Id.
30

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.31 Page 31 of 71
increase of almost 1100 cases since April 12.81 And 175 prison staff also had
confirmed cases on April 15. There have also been numerous outbreaks in
Michigan’s jails, including in all three counties in the Detroit metropolitan area.82
50. For this reason, medical and public health experts have urged
emergency action to fight the spread of COVID-19 in jails and other carceral
facilities, including decarceration, improved access to medical care, compliance with
CDC guidelines, and more.83 Medical experts explain that the need for action is
urgent given that “[t]he window of opportunity is rapidly narrowing for mitigation
of COVID-19”—outbreaks are measured “in a matter of days, not weeks,” with this
81Steve Neavling, Nearly half of the inmates tested in Michigan prisons have coronavirus, Metro Times (May 2, 2020), https://www.metrotimes.com/newshits/archives/2020/04/30/nearly-half-of-the-inmates-tested-in-michigan-prisonshave-coronavirus. 82 See Ross Jones, Michigan Prisons and Jails See COVID-19 Cases Rise, WXYZ Channel 7 News (Apr. 3, 2007), https://www.wxyz.com/news/localnews/investigations/michigan-prisons-and-jails-see-covid-19-cases-rise. 83 See, e.g., Ex. 4, Brad Lander, Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus, Medium (Mar. 12, 2020), https://medium.com/@bradlander/doctors-in-nychospitals-jails-and-shelters-call-on-the-city-totake-more-aggressive-action-tofb75f0b131c2; Ex. 8, Letter from Johns Hopkins faculty to Governor Hogan, Mar. 25, 2020, https://bioethics.jhu.edu/wp-content/uploads/2019/10/JohnsHopkinsfaculty-letter-on-COVID-19-jails-and-prisons.pdf; Ex. 1, Stern Decl. ¶ 11, ECF Doc. 6, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or. Filed March 16, 2020); Ex. 10, Declaration of Dr. Ranit Mishori (“Mishori Decl.”) ¶ 46, ECF Doc. 2-3, Coreas v. Bounds, et al., Case No. 8:20-cv-00780 (D. Md., filed March 24, 2020); Ex. 11, Declaration of Robert B. Greifinger (“Greifinger Decl.”) ¶ 13, ECF Doc. 4, Dawson v. Asher, Case No. 2:20-cv-00409-JLR-MAT (D. Or., filed March 16, 2020)
31

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.32 Page 32 of 71
type of novel virus.84 51. Medical experts have emphasized that urgent action in the jails is an
essential public health priority because outbreaks will place incredible strain on regional hospitals and health centers. Experts, like Dr. Meyer, make clear that “[r]educing the size of the population in jails and prisons is crucially important to reducing the level of risk both for those within those facilities and for the community at large.”85
52. Public health experts, including Dr. Gregg Gonsalves,86 Ross MacDonald,87 Dr. Marc Stern,88 Dr. Oluwadamilola T. Oladeru, and Adam
84 Ex. 10, Mishori Decl. ¶ 46, supra note 51. 85 Ex. 2, Meyer Decl. ¶ 37, supra note 37. 86 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Ct. Mirror (Mar. 11, 2020), https://cutt.ly/BtRSxCF. 87 Craig McCarthy & Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ N.Y. Post (Mar. 19, 2020), https://cutt.ly/ptRSnVo. 88 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington Assoc. of Sheriffs & Police Chiefs (Mar. 5, 2020), https://cutt.ly/EtRSm4R.
32

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.33 Page 33 of 71
Beckman,89 Dr. Anne Spaulding,90 Homer Venters,91 and Josiah Rich92 have all strongly cautioned that people booked into and held in jails are likely to face serious, even grave, harm due to the outbreak of COVID-19.
53. According to Dr. Stern, “taking immediate and concerted efforts to implement preventive steps, as well as reducing the population to the lowest number possible prioritizing those who are elderly or have underlying medical conditions defined by the CDC, will increase public safety via reducing public health risk.”93
54. In response to this need for immediate action, jails and prisons nationwide have released people, in order to prevent community outbreaks of severe illness and death from COVID-19. For example, Los Angeles County, California
89 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, HealthAffairs Blog (Mar. 10, 2020), https://cutt.ly/QtRSYNA. 90 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (Mar. 9, 2020). 91 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (Mar. 12, 2020), https://cutt.ly/jtRSPnk. 92 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, The Guardian (Mar. 13, 2020, 3:00pm), https://cutt.ly/itRSDNH. 93 Ex. 1, Stern Decl. ¶ 13.
33

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.34 Page 34 of 71

has released more than 3,500 people;94 New York released more than 1,600 people;95 New Jersey 1,000 people;96 Cuyahoga County, Ohio more than 800 people.97
55. Internationally, governments have also responded to the threat posed by COVID-19 by releasing people from incarceration. In Iran, more than 80,000 people were temporarily released from prison to protect them and to protect the community from propagation of an outbreak.98 In Ethiopia, more than 4,000 people were pardoned and released from incarceration to help prevent the spread of COVID-19.99

94Los Angeles, Ventura County Jails Releasing Inmates To Cut Risk Of Coronavirus

Exposure,

CBSN

L.A.

(May

3,

2020),

https://losangeles.cbslocal.com/2020/04/15/coronavirus-jails-releasing-inmates-

los-angeles-county-ventura-county/.

95 Rosa Goldensohn, Covid-Sick at Rikers On $1 Bail – And A Parole Violation, The City (May 3, 2020), https://thecity.nyc/2020/04/rikers-island-early-release-soughtamid-coronavirus-soread.html.

96 Tracey Tulley, 1,000 Inmates Will Be Released From N.J. Jails to Curb

Coronavirus

Risk,

N.Y.

Times

(Mar.

23,

2020),

https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-

release.html.

97 Ronnie Dahl, Will reduced crowding at Cuyahoga County Jail continue after the

coronavirus

crisis?,

19

News

(May

3,

2020),

https://www.cleveland19.com/2020/04/23/will-reduced-crowding-cuyahoga-

county-jail-continue-after-coronavirus-crisis/.

98 Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), https://www.reuters.com/article/us-healthcoronavirus-iran-prisoners/iran-temporarily-frees-85000-from-jail-includingpolitical-prisoners-amid-coronavirus-idUSKBN21410M.

99 Bukola Adebayo, Ethiopia pardons more than 4,000 prisoners to help prevent

coronavirus

spread,

CNN

(Mar.

26,

2020),

34

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.35 Page 35 of 71

56. States and other local jurisdictions have also made changes to existing carceral policies in response to the COVID-19 pandemic, including eliminating medical co-pays for incarcerated people and waiving fees for phone calls and video communication.100 Others have required facilities to distribute and make available sanitation supplies and hand sanitizer to everyone who is incarcerated, arranged for the immediate evaluation and treatment of anyone with symptoms, and enacted screening procedures for everyone who enters the jail or prison.101
57. Over the past two weeks, multiple courts have also acknowledged the severe and urgent threats posed by COVID-19 and have accordingly ordered the release of detained and incarcerated persons.102

https://www.cnn.com/2020/03/26/africa/ethiopia-pardons-4000-prisoners-overcoronavirus/index.html.

100 Mich. Joint Task Force on Jail & Pretrial Incarceration, Jail Population Reduction to Curb the Spread of COVID-19 (May 1, 2020), available at https://courts.michigan.gov/NewsEvents/press_releases/Documents/Jails%20Task %20Force%20press%20release%20on%20COVID-19_FINAL.pdf.

101 See, e.g., Preparedness and Response Plan 5-8, Indiana Dep’t of Correction

(2020),

available

at

https://www.in.gov/idoc/files/IDOC%20Pandemic%20Response%20Plan%203-3-

2020.pdf#response%20plan.

102 See, e.g., Castillo et al. v. Barr, 5:20-cv-00605, ECF Doc. 32 (C.D. Cal. Mar. 27, 2020) (ordering petitioners be released from immigration detention in light of COVID-19 and noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); USA v. Garlock., No. 18 Cr 00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Xochihua-Jaimes v. Barr, 798 F. App’x 52 (9th Cir. Mar. 24,

35

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.36 Page 36 of 71
THE COVID-19 PANDEMIC HAS REACHED WAYNE COUNTY AND SWIFT ACTION IS NEEDED TO
PREVENT A MASS OUTBREAK IN THE JAIL
58. Distressingly, Michigan’s coronavirus case count is doubling every
three days,103 and the state is nowhere close to hitting the apex of the COVID-19
pandemic.104
59. The Governor of Michigan declared a state of emergency on March 10,
2020, after two positive cases of COVID-19 were confirmed in Michigan—one in
2020) (ordering, sua sponte, that petitioner be immediately released from immigration detention “[i]n light of the rapidly escalating public health crisis” related to COVID-19 that public health authorities predict will especially impact immigration detention centers”); U.S. v. Stephens, 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, explaining that “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent” and that “inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop”); In re: Extradition of Alejandro Toledo Manrique, No. 19-mj-71055-MAG-1 (TSH), 2020 WL 1307109, at *2 (N.D. Cal. March 19, 2020) (ordering release on bond despite government assertions that facility has preparedness plan in place and no cases have been confirmed). 103 Kristen Jordan Shamus & Kristi Tanner, ‘Southeast Michigan is burning’: Michigan’s coronavirus case count doubles every 3 days, Detroit Free Press (May 4, 2020), https://www.freep.com/indepth/news/local/michigan/2020/03/28/michigan-coronavirus-surge-covid-19case-count/2898574001/. 104 Courtney Vinopal, WATCH: Michigan Gov. Gretchen Whitmer gives coronavirus update, PBS (May 4, 2020), https://www.pbs.org/newshour/health/watch-live-michigan-gov-gretchen-whitmergives-coronavirus-update.
36

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.37 Page 37 of 71

Wayne County and the other in Oakland County.105 On March 26, 2020, the Wayne County Local Health Department issued a Local Public Health Emergency Order.106 This order serves as a directive for daily screening procedures for employees working at essential businesses. The procedures include: asking if the employee has symptoms of fever, cough, shortness of breath, sore throat, or diarrhea; use of a touchless/contactless thermometer to conduct temperature checks is strongly recommended; and asking if the employee has had close contact in the last 14 days with an individual diagnosed with COVID-19.107
60. On March 15, 2020, the Michigan Supreme Court issued Administrative Order 2020 instructing all trial courts in Michigan to take all “reasonable measures to avoid exposing participants in court proceedings, court employees, and the general public to the COVID-19 virus.” The Order further instructs courts to reduce jail populations by “tak[ing] into careful consideration public health factors arising out of the present state of emergency” in making bond determinations and determining conditions or probation.

105 Michigan Executive Order No. 2020-04 Declaration of State of Emergency, (Mar. 10, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705521576--,00.html.

106Emergency Public Health Order in Response to the COVID-19 Pandemic Under

MCL

333.2453,

available

at

https://www.waynecounty.com/departments/hhvs/wellness/novel-coronavirus-

information.aspx.

107 Id.

37

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.38 Page 38 of 71
61. On March 23, 2020, Governor Whitmer issued a statewide stay-at-
home order and ordered all non-essential businesses to close to bolster efforts to
fight the ongoing COVID-19 outbreak.108 And, on April 24, 2020, Governor
Whitmer issued Executive Order 2020-62, specifically underscoring the life-or-
death threat that the COVID-19 pandemic poses to people incarcerated in county
jails throughout Michigan, as well as to jail staff and the community at large. The
order sets forth necessary protocols that the Michigan Department of Corrections,
county jails, local lockups, and juvenile detention centers must implement to reduce
exposure risks to the virus.109 These protocols include:
a. “Screening all persons arriving at or departing from a facility, including staff, incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (‘CDC’). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.”
b. “Restricting all visits, except for attorney-related visits, and conducting those visits without physical contact to the extent feasible.”;
108 Michigan Executive Order No. 2020-21 Temporary requirement to suspend activities that are not necessary to sustain or protect life, (Mar. 23, 2020), https://content.govdelivery.com/attachments/MIEOG/2020/03/23/file_attachments/ 1408152/EO%202020-21%20Stay%20Home,%20Stay%20Safe.pdf. 109 Michigan Executive Order 2020-62 Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody; temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups and juvenile detention centers (May 4, 2020), https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-527098--,00.html.
38

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.39 Page 39 of 71
c. “Limiting off-site appointments except for urgent or emergency medical treatment.”
d. “Developing and implementing protocols for incarcerated persons who display symptoms of COVID-19, including methods for evaluation and processes for testing, notification of the Department of Health and Human Services (‘DHHS’), and isolation during testing, while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments.”
e. “Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.”
f. “Providing, to the fullest extent possible, appropriate personal protective equipment to all staff as recommended by the CDC.”
g. “Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.”
h. “Ensuring access to personal hygiene products for incarcerated persons and correctional staff, including soap and water sufficient for regular handwashing.”
i. “Ensuring that protective laundering protocols are in place.”
j. “Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.”
k. “Practicing social distancing in all programs and classrooms— meaning a distance of at least six feet between people in any meeting, classroom, or other group.”
l. “Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.”
62. On March 26, 2020, Michigan Supreme Court Chief Justice Bridget M. 39

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.40 Page 40 of 71
McCormack and Sheriff Matt Saxton, Executive Director of the Michigan Sheriffs’ Association, issued a joint statement urging Judges and Sheriffs “to reduce and suspend jail sentences for people who do not pose a public safety risk” and “release far more people on their own recognizance as they await their day in court,” emphasizing that “[f]ollowing this advice WILL SAVE LIVES” during this global pandemic.110
63. The Michigan Joint Task Force on Jail and Pretrial Incarceration similarly highlighted the grave risk of fatal infection in county jails: “As high traffic institutions characterized by relatively confined spaces, the threat of COVID-19 is particularly acute in our county jails. Individuals in jail, including law enforcement and correctional officers, are at an elevated risk of being exposed to the virus and spreading it to others through inadequate social distancing.” Accordingly, they admonished “justice system decision makers to continue taking all necessary actions to keep our communities safe through arrest alternatives, de-incarceration as appropriate, and social distancing.”111
110 Michigan Court News Release (May 4, 2020), https://courts.michigan.gov/NewsEvents/press_releases/Documents/CJ%20and%20MSA%20Joint%20Statement%2 0draft%202%20(003).pdf. 111 Jail Population Reduction to Curb the Spread of COVID-19 (May 4, 2020) https://courts.michigan.gov/NewsEvents/press_releases/Documents/Jails%20Task%20Force%20press%20release%2 0on%20COVID-19_FINAL.pdf.
40

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.41 Page 41 of 71
DEFENDANTS’ RESPONSES TO THE COVID-19 PANDEMIC ARE CONSTITUTIONALLY DEFICIENT AND PLACE THE PEOPLE IN ITS
CUSTODY AT HEIGHTENED RISK 64. The Jail is comprised of three buildings: Divisions I, II, and III. Division I, referred to colloquially as the “New Jail,” houses nearly 60 women and over 100 men. Most of these individuals are pre-trial detainees. Division II, referred to as the “Old Jail,” sits kitty corner from Division I and houses almost 420 men, many of whom are also pre-trial detainees. Both Divisions I and II are near Wayne County’s Third Circuit Court, where criminal cases are heard. Division III is located in Hamtramck and houses almost 200 men, most of whom are post-conviction detainees. 65. Despite the aforementioned repeated urgent calls to reduce jail populations and implement basic protective measures, Defendants have failed to take sufficient steps in any of the three Divisions to do either. And Defendants are woefully unprepared and incapable of taking necessary precautions to protect and provide adequate medical treatment for the people currently confined in the Jail in the face of this unprecedented, life-threatening public health crisis.Defendants well know that people incarcerated in the Jail face a significant risk of exposure to COVID-19. The CDC, the Governor, medical experts, and various advocates have repeatedly alerted the Defendants to the imminent risk of serious harm and death, and the preventive measures necessary to protect against the further spread of
41

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.42 Page 42 of 71
COVID-19The Jail’s screening measures do not meet CDC standards. When a detainee arrives at the Jail, his or her temperature is checked, but he or she is not formally tested. The detainee is then “quarantined” for only three days. This is contrary to the Centers for Disease Control’s recommendation that individuals in jail settings remain quarantined for a period of 14 days.112 In quarantine, a handful of detainees are each separated into their own 5 x 5 one-person, unpressurized cagelike cell so air flows freely between them. Each cell is equipped with a sink and a lidless toilet that is approximately one foot away from the bed. During the day, detainees are locked in their cells for all but one hour.
66. Jail staff, who inconsistently wear protective gear, cycle in and out of the quarantine area. Meal service is provided by non-quarantined trustees who wear gloves but not masks, and food is served in carryout containers that are first examined by Jail staff who are not wearing gloves or masks. The detainees share one shower, which is not cleaned during the three-day quarantine period, and each detainee is provided with hotel-sized bars of soap with which to shower and wash his hands. The amount of soap that a detainee receives is under the discretion of jail
112 Ex. 7, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities, Centers for Disease Control & Prevention (May 4, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidancecorrectional-detention.html.
42

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.43 Page 43 of 71
staff. Requests for additional soap are often refused. In order to conserve soap, detainees break the bar apart into smaller pieces.
67. After three days in “quarantine,” detainees are transferred to a different unit without any additional testing or screening. They are housed in small, often poorly ventilated, units of up to as many as 50 people with either one or two-person cells or four-person cubicles. Beds in the two-person cells and four-person cubicles are approximately one to two feet away from one another, making it impossible to maintain a distance of at least six feet. In most cases, detainees do not wear masks while they sleep.
68. Some cells are equipped with sinks and toilets. The toilets have no lids, and they are located only one foot away from the beds. Further, in Division I, the toilet from one cell is connected to the toilet in the neighboring cell, and when the toilet in one cell is flushed, excrement from that toilet flows to the neighboring toilet. Many of the sinks only partially operate, either because the water will not run, or because they are too dirty for use. In the female wards, detainees find maggots, fruit flies, or other bugs in the sinks, and the sink and toilet water is interchangeable, making it impossible for detainees in those wards to clean their hands.
69. During the day, detainees congregate in communal spaces with shared showers, tables, seating, telephones, and tablets. And, unless their cells are equipped with a toilet and sink, detainees share bathrooms. In most cases, detainees have
43

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.44 Page 44 of 71
limited or no access to disinfectant or paper towel with which to sanitize these hightouch, high-use shared surfaces, so they are forced to rely on the Jail for cleaning services. These surfaces are cleaned as infrequently as once weekly. Each person must therefore risk COVID-19 infection when touching and speaking through the phone or tablet, utilizing the bathroom facilities, and eating at the same table.
70. During meals, detainees typically eat at communal tables (made of metal or wood particle) located in the common area outside of their cells. It is almost always impossible, even with reduced populations, to maintain a distance of six feet from any other detainee while sitting at the tables, and detainees do not wear their masks while they eat.
71. All meals are prepared in the kitchen by trustees and an outside vendor at Division III. The trustees and vendors wear gloves but, until April 10, they did not have masks, and none of them have been tested or otherwise screened for COVID-19.
72. Meals are distributed to detainees by the Sheriff’s Deputies or trustees. The trustees are sporadically provided gloves and masks, but the deputies inconsistently wear protective gear and, in some cases, do not wear any gear at all. In at least one division (Division I), loose plasticware is placed in a single bag, which is passed around from one detainee to another with instructions to “take one and pass it down.” In one facility, Division III, there have been periods where trustees used
44

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.45 Page 45 of 71
garbage bags to cover their hands because they were not provided gloves with which to serve meals to other detainees.
73. None of the detainees have access to alcohol-based hand sanitizer, and palm-size hotel-type bars of all-purpose soap are inconsistently distributed to the various units. Detainees are forced to use this single small bar of soap to wash their hands, clothes, and take a body shower. The soap is extremely drying and causes breakouts of little bumps on the skin, similar to psoriasis. Some units have a regular supply of soap, while others are provided with soap only once weekly. The soap runs out quickly, and requests for additional soap are denied. If detainees want additional hygiene products, they have to purchase them from the commissary. A bar of soap is $1.65.
74. On floor five in Division II, the detainees’ only shared shower was flooded with standing water for seven days. They took “bird baths” in the sink in order to clean themselves. In Division III there are numerous showers that are inaccessible because they do not run hot water.
75. The Jail provides one or two rolls of toilet paper weekly; when detainees run out, which is not uncommon, the Jail refuses to provide additional toilet paper.
76. Detainees are not provided with paper towel to dry their hands; instead, they use their towels or their uniforms. New towels and uniforms are supposed to be
45

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.46 Page 46 of 71
distributed once or twice weekly, but recently laundry has been irregular, and in some cases, detainees have been without clean linens for three weeks. Detainees are not reissued the same uniforms or towels.
77. Laundry for all three Jail divisions is done at Division III by select detainees. Prior to April 10, those detainees wore gloves but no masks. All of the laundry items come into close contact with other people in the jail, ensuring that any respiratory aerosols or droplets remain on the clothing long after they are transmitted. One of the detainees who worked in the laundry prior to April 1, Michael Meshinski, was infected with COVID-19. The extent to which he contaminated the laundry distributed to all three facilities is unknown. It is also unknown whether the laundry facility has been disinfected.
78. People confined in the jail are not provided adequate cleaning supplies in the proper concentrations of strength to prevent transmission of the virus. Detainees are forced to create their own cleaning solutions by mixing shampoo, jail issued all-purpose soap or soap that is purchased from the commissary, and heavily diluted Simple Green multi-purpose solution, which is not a disinfectant and does not kill viruses.
79. Nor are people in the Jail provided adequate cleaning supplies to clean their own cells, even when they request them from Jail staff and when they are transferred to new units or cells within the facility.
46

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.47 Page 47 of 71
80. Detainees are not provided with protective equipment consistent with CDC standards, if they are provided any at all. With the exception of detainees who work in laundry or food service, none of the detainees have access to gloves. On April 10, for the first time, the Jail distributed cloth masks to some detainees, others received paper masks, and detainees were instructed to keep the masks for two weeks, after which time they would receive replacements. The Jail has subsequently distributed new masks to some detainees but not others.
81. The Jail has a shortage of protective gear, and there is apparently no established protocol requiring staff to wear protective gear, even if they are physically touching detainees, serving food, doing rounds, or otherwise coming in contact with the detainee population. Although some staff wear both gloves and masks, other staff members, including guards, nurses, and outside vendors, wear no protective equipment whatsoever. Others wear gloves but not masks, or masks but not gloves. These inconsistent protective practices are also true of Jail staff who have tested positive for COVID-19.
82. The Jail provides detainees with little or no information about COVID19. Jail staff have acknowledged that distancing is impossible and soap is not always available. Signs posted in Division II instruct detainees to “use a tissue for coughs” and “avoid touching your face,” but no tissue is provided.
83. The Jail, otherwise, has provided no information about COVID-19,
47

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.48 Page 48 of 71
including basic prevention guidance; the risks associated with infection, especially to certain vulnerable populations; symptoms; and available treatments. Instead, detainees rely exclusively on the news and family and friends to learn about the virus. When detainees ask the guards for information, guards are dismissive or falsely advise detainees that they are safer from infection inside the Jail.
84. Although many of the detainees have underlying conditions that make them particularly vulnerable to serious COVID-19-related illness or death, responses to requests for medical treatment take days or weeks. Complaints of illness or requests for medical attention are often ignored or dismissed. In some cases, detainees who complain of illness are threatened with disciplinary action. When people complain to guards or ask about medical treatment, they are told that unless they are dying or having a medical emergency they will not be seen.
85. In the rare instance that the Jail responds to requests for treatment, and a detainee is notably ill, he is sent to a make-shift infirmary in Divisions II or III. Detainees in these units are tested for COVID-19, though results are typically two weeks delayed because the Jail has no on-site doctors.
86. Detainees in the infirmaries are provided masks, but not gloves, and they receive clean uniforms, linens, and towels only every two weeks.
87. They have no access to paper towel or any disinfectant to clean shared spaces and surfaces, including phones, tablets, tables, and showers.
48

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.49 Page 49 of 71
88. “Medical treatment” provided by the Jail consists of Tylenol, cough syrup, and Gatorade.
89. Detainees in the Division II infirmary are allowed out of their cells during the day, but the unit has no seating. Thus, when they watch television, detainees sit on the floor or lean against a bannister within inches of one another.
90. In the Division III infirmary, detainees are relegated to their cells for 23 hours daily, but the rooms are not pressurized, and, thus, air passes between rooms, exposing them to an increased risk of airborne transmission. Each detainee is allowed one hour outside of his cell daily, and, this is the only time during the day that he can shower, watch television, or communicate with friends or family using the telephone or a tablet. The detainees are staggered so no two are out simultaneously, but the common areas and high-touch surfaces are never disinfected; they are cleaned only with Simple Green, which again is not a disinfectant.
91. In the infirmaries in both Divisions, new sick detainees are routinely transferred to the units. As a result, detainees continue to be re-exposed to the virus, and at least three detainees have been ill for approximately one month, and two have tested positive more than once. Although detainees have complained about this issue to the Jail, their complaints are completely dismissed, and the Jail plainly has no system whatsoever to properly isolate patients in their varying stages of illness.
92. Publicly, the Jail claims that, as of April 22, only 13 detainees have
49

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.50 Page 50 of 71
tested positive for COVID-19.113 That number is almost certainly vastly
undercounted, due to the Jail’s failure to test detainees unless they are seriously
visibly ill.114 Throughout the last few weeks, many detainees have experienced and
continue to experience varying degrees of symptoms and illness.
93. In early April, laundry worker Michael Meshinski died alone in his
home from COVID-19-related complications after he was released from the jail on April 1.115 During the two weeks before his release, he was ill with a fever and lost
bowel control, but his pleas for medical attention were ignored. Id. According to
declarant Mark Malec, who was housed on the same cellblock, Mr. Meshinski
visited the medical unit a few times, but was always returned to his 50-detainee unit
the same day. On or about the day he was released, Mr. Meshinski was so ill that a
Deputy sent him to the medical unit, and he never returned. The Jail gave Mr.
113 Amber Ainsworth, 177 Wayne County Sheriff’s Office employees, 13 jail inmates test positive for COVID-19, Click On Detroit (May 4, 2020), https://www.clickondetroit.com/news/local/2020/04/23/177-wayne-countysheriffs-office-employees-13-jail-inmates-test-positive-for-covid-19/. 114 See e.g., Linda So & Grant Smith, In four U.S. state prisons, nearly 3,300 inmates test positive for coronavirus -- 96% without symptoms, Reuters (Apr. 25, 2020), https://www.reuters.com/article/us-health-coronavirus-prisons-testing-in/in-fourus-state-prisons-nearly-3300-inmates-test-positive-for-coronavirus-96-withoutsymptoms-idUSKCN2270RX. 115 See Charlie LeDuff, LeDuff: Wayne County Jail Gave An Infected Inmate A Bus Pass Home. Now He's Dead, Deadline Detroit (Apr. 7, 2020), https://www.deadlinedetroit.com/articles/24915/leduff_the_wayne_county_jail_ga ve_an_infected_inmate_a_bus_pass_home_now_he_s_dead.
50

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.51 Page 51 of 71

Meshinski nothing more than a bus pass to get back to his home in Taylor.116 He was found dead in his home that Sunday, and the Wayne County Medical Examiner listed COVID-19 as the cause of death.117
94. Nevertheless, the Jail insufficiently tests screens, and monitors potentially infected or ill detainees. Detainees are routinely transferred from one unit to another and one division of the Jail to another without being tested or otherwise evaluated for possible exposure or infection. Only approximately 10% of detainees have been formally tested for the virus. This is true even for newly admitted detainees, and participants in the Jail’s work release program. Additionally, the Jail houses detainees in the work release programs in open pods with detainees who remain in the Jail. This revolving door creates a heightened risk of exposure or infection.
95. The Jail’s testing and screening protocol is similarly deficient for its revolving door of staff, contracted vendors, and detainees, any of whom could carry the virus into the facility. This is true even though 177 Jail employees have tested positive for COVID-19 and 4 have died, including 2 Jail physicians.118

116 See id.

117 Id.

118 See Ariana Taylor, 13 Detainees in the Wayne County Jail Have Contracted

COVID-19,

The

Detroit

News

(Apr.

24,

2020),

https://www.detroitnews.com/story/news/local/wayne-county/2020/04/22/13-

detainees-wayne-county-jail-have-contracted-covid-19/3005465001/.

51

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.52 Page 52 of 71
96. The above-discussed Jail conditions continue to pose a substantial risk of harm, including severe illness or death, to detainees. Still, the Wayne County Sheriff’s Office and County officials responsible for Jail operations and the protection of detainees and staff have failed to respond adequately with even the most basic public health protections.
97. In violation of Petitioners/Plaintiffs’ Eighth and Fourteenth Amendment rights, the Jail is blatantly disregarding the known, obvious risks of illness and death and needlessly exposing people to a serious risk of contracting a highly-fatal infectious disease.
98. To unnecessarily expose people detained at the Wayne County Jail to the serious risk of contracting COVID-19 is constitutionally impermissible. Failure to act with speed and urgency will constitute a wholesale violation of the constitutional rights of those confined in the Jail.
IMMEDIATE RELEASE IS THE ONLY RESPONSE THAT SERVES PUBLIC HEALTH, COMMUNITY SAFETY, AND THE INDIVIDUAL
SAFETY OF EACH CLASS MEMBER 99. Immediate release of medically vulnerable Plaintiffs, as well as the subclass of medically vulnerable people they represent, remains a necessary public health intervention.119 100. Given the size of the Jail, the configuration of its cells, and staffing, the
119 Ex. 14, Lauring Decl. ¶¶ 42-43. 52

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.53 Page 53 of 71
jail population must be significantly decreased to ensure adequate social distancing. In this unique moment, release enhances the safety of the community and is necessary to protect the Plaintiff’s own health and safety. Petitioners/Plaintiffs must be able to exercise self-protective measures in a sanitary, disinfected space and to maintain social distance from other community members to flatten the curve of the virus’s spread and protect themselves from infection.
101. Release is needed not only to prevent irreparable harm to members of the medically vulnerable subclass, but also to sufficiently reduce the incarcerated population at the Jail to ensure proper social distancing necessary to reduce transmission for all class members and the wider public. Because of the rapidity with which COVID-19 spreads and the danger it poses, immediate release is both necessary and the least intrusive intervention to ensure Class Members are provided medically and constitutionally-sufficient treatment.
102. If immediate action is not taken to dramatically reduce the population of the Jail, all people who remain incarcerated will be at grave and unacceptable risk of contracting COVID-19—a serious and potentially life-threatening illness. People confined in prisons and jails must “be furnished with the basic human needs, one of which is ‘reasonable safety,’” Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (citations omitted), which is virtually impossible given the realities of the COVID19 pandemic and the limitations inherent in the Jail.
53

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.54 Page 54 of 71
103. With confirmed COVID-19 cases and deaths amongst staff and detainees, an outbreak within the facility has already begun. In order to meaningfully reduce the risk of serious illness and death, the jail population must be reduced drastically. After reviewing declarations from detainees and recently released detainees detailing conditions inside the Jail’s three divisions, discussed in detail below, University of Michigan Professor Adam Lauring, an infectious disease medical doctor and expert in virology, has emphasized that further “[r]educing the size of the population in the Wayne County Jail is the only way to prevent a further outbreak.”120
104. Medical experts specializing in correctional health similarly share Dr. Lauring’s urgent recommendations to dramatically reduce the population of detention centers, jails, and prisons. Dr. Ranit Mishori, Senior Medical Consultant for Physicians for Human Rights and an expert in correctional health issues, has concluded that “[r]eleasing people from incarceration is the best and safest way to prevent the spread of disease and reduce the threat to the most vulnerable incarcerated people” and that “[i]mmediate release is crucial for individuals with chronic illnesses or other preexisting conditions.”121 Release is “both necessary and urgent” given that “[t]he window of opportunity is rapidly narrowing for mitigation
120 Ex. 14, Lauring Decl. ¶ 42 121 Ex. 10, Mishori Decl. ¶ 46.
54

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.55 Page 55 of 71
of COVID-19.” 105. Dr. Jonathan Giftos, the former Medical Director for Correctional
Health Services at Riker’s Island, concluded that, “the only way to really mitigate the harm of rapid spread of coronavirus in the jail system is through depopulation, releasing as many people as possible with a focus on those at highest risk of complication.”122
106. Other correctional medical and public health experts have also urged the release of people from incarceration given the heightened risk of transmission and infection, including Dr. Marc Stern (the former Assistant Secretary for Health Care at the Washington State Department of Corrections),123 Dr. Robert B. Greifinger (former manager of medical care for people incarcerated in the New York State prison system and current federal court monitor of medical care in three large county jails),124 a group of doctors who work in New York City’s jails, hospitals and shelters,125 as well as a group of more than 200 Johns Hopkins faculty in public
122 Recipe for disaster: The spread of corona virus among detained populations, MSNBC (May 3, 2020), https://www.msnbc.com/all-in/watch/-recipe-for-disasterthe-spread-of-coronavirus-among-detained-populations-80947781758. 123 Ex. 1, Stern Decl. ¶¶10–12, 14. 124 Ex. 11, Greifinger Decl. ¶ 13. 125 Brad Lander, Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus, Medium (Mar. 12, 2020), https://medium.com/@bradlander/doctors-in-nyc-hospitals-jailsand-shelters-call-on-the-city-totake-more-aggressive-action-to-fb75f0b131c2.
55

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.56 Page 56 of 71
health, bioethics, medicine, and nursing.126 107. These experts have opined that unless social distancing can be
meaningfully implemented, it is impossible to protect public and individual health. Release is thus necessary under the Constitution to respond to this unprecedented coronavirus pandemic.
108. Releasing people from the jails would also reduce the burden on regional hospitals and health centers.
CLASS ACTION ALLEGATIONS 109. The named Petitioners/Plaintiffs bring this action on behalf of themselves and all others similarly situated as a class action under Federal Rule of Civil Procedure 23(b)(2). 110. The class that Petitioners/Plaintiffs seek to represent is defined as all current and future persons held at the Jail during the course of the COVID-19 pandemic (“Jail Class), including three subclasses:
a. The “Pretrial Subclass” is defined as: “All current and future persons detained at the Wayne County Jail during the course of the COVID-19 pandemic who have not yet been convicted of the offense for which they are currently held in the Jail.”
126 Letter from Johns Hopkins faculty to Governor Hogan (May 4, 2020), https://bioethics.jhu.edu/wp-content/uploads/2019/10/JohnsHopkins-faculty-letteron-COVID-19-jails-and-prisons.pdf.
56

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.57 Page 57 of 71
b. The “Post-conviction Subclass” is defined as: “All current and future persons detained at the Wayne County Jail during the course of the COVID-19 pandemic who are have been sentenced to serve time in the Jail or who are otherwise in the Jail as the result of an offense for which they have already been convicted.”
c. The “Medically Vulnerable Subclass” is defined as: “All members of the Jail Class who are also over the age of fifty, or who, regardless of age, experience an underlying medical condition that places them at particular risk of serious illness or death from COVID-19, including but not limited to (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or
57

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.58 Page 58 of 71
(l) a current or recent (last two weeks) pregnancy.” 111. This action is brought and may properly be maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. This action satisfies the requirements of numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). 112. On May 4, 2020, the Jail confined over 800 people, all of whom are eligible members of this class. Therefore, the class and subclasses meet the numerosity requirement of Federal Rule of Civil Procedure 23(a). 113. The subclasses are also too numerous for joinder of all members to be practicable. In Michigan, presumptively innocent pretrial detainees constitute approximately 50% of all people in jails.127 The Pretrial and Post-conviction subclasses, therefore, likely each include approximately half of the class. And, Demographic data regarding the health of correctional populations indicates that well over 30% of detained people suffer from at least one condition rendering them medically vulnerable.128 Thus, the medically vulnerable subclass likely contains
127 See Mich. Joint Task Force on Jail & Pretrial Incarceration, Report and Recommendations 7 (Jan. 10, 2020), https://courts.michigan.gov/NewsEvents/Documents/final/Jails%20Task%20Force%20Final%20Report%20and%20 Recommendations.pdf. 128 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), www.prisonpolicy.org/blog/2020/03/06/pandemic/.
58

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.59 Page 59 of 71
hundreds of people as well.
114. Joinder is impracticable because the class members are numerous; the class is fluid due to the inherently transitory nature of pretrial incarceration; and the class members are incarcerated and low-income, which limits their ability to institute individual lawsuits. Certifying this class supports judicial economy.
115. Common questions of law and fact exist as to all members of the class. The named Petitioners/Plaintiffs seek common declarative and injunctive relief concerning whether Defendants’ policies, practices, and procedures violate the constitutional rights of the class members. These common questions of fact and law include, but are not limited to:
a. Whether the conditions of confinement at the Jail since the beginning of the COVID-19 pandemic amount to constitutional violations;
b. What measures Defendants implemented in the Jail in response to the COVID-19 crisis; 59

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.60 Page 60 of 71
c. Whether Defendants’ practices during the COVID-19 pandemic exposed people confined at the Jail to a substantial risk of serious harm; and
d. Whether Defendants knew of and disregarded a substantial risk of serious harm to the safety and health of the class.
116. Plaintiffs’ claims are typical of the class members’ claims. The injuries that Petitioners/Plaintiffs have suffered due to Defendants’ unconstitutional course of conduct are typical of the injuries suffered by the class. All class members seek the same declaratory and injunctive relief.
117. The Petitioners/Plaintiffs are adequate representatives of the class because their interests in the vindication of the legal claims they raise are entirely aligned with the interests of the other class members, each of whom has the same constitutional claims. There are no known conflicts of interest among members of the proposed class, and the interests of the named Petitioners/Plaintiffs do not conflict with those of the other class members.
118. Petitioners/Plaintiffs are represented by counsel with experience and success in litigating complex civil rights matters in federal court. The interests of the members of the class will be fairly and adequately protected by the named Petitioners/Plaintiffs and their attorneys.
119. Because the putative class challenges Defendants’ system as
60

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.61 Page 61 of 71
unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the class, certification under Rule 23(b)(2) is appropriate and necessary.
120. A class action is the only practicable means by which the named Petitioners/Plaintiffs and class members can challenge the Defendants’ unconstitutional actions and obtain the necessary immediate declaratory and injunctive relief sought for themselves and all other members of the class.
CLAIMS FOR RELIEF COUNT I: Declaratory and Injunctive Relief for Violation of the Eighth
Amendment (42 U.S.C. § 1983) Jail Class and Post-Conviction Subclass versus All Defendants 121. Petitioners/Plaintiffs incorporate by reference each allegation contained in the preceding paragraphs as if set forth fully herein. 122. Under the Eighth Amendment, as applicable to States and their political subdivisions through the Fourteenth Amendment, post-convicted persons in carceral custody have a right to be free from cruel and unusual punishment. As part of the right, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. See, e.g., Estelle, 429 U.S. at 104; DeShaney, 489 U.S. at 200. 123. As part of this right, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. Deliberate
61

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.62 Page 62 of 71
indifference to the serious risk COVID-19 poses to members of the Jail Class, and particularly members of the Medically-Vulnerable Subclass, violates this right.
124. Petitioners/Plaintiffs, and the class they represent, suffer a substantial risk of serious harm to their health and safety due to the presence of, and spread of, COVID-19.
125. Defendants know of and are failing to abate the serious risks that COVID-19 poses to Plaintiffs, including severe illness, permanent physical damage, and death. These risks are well-established and obvious to Defendants.
126. Defendants are subjecting Petitioners/Plaintiffs to conditions of confinement that increase their risk of contracting COVID-19, for which there is no known vaccine, treatment, or cure. Due to the conditions at the Jail, Petitioners/Plaintiffs are unable to take steps to protect themselves—such as social distancing, accessing medical attention or testing, or washing their hands regularly— and Defendants have failed to provide adequate protections or mitigation measures. Defendants act with deliberate indifference towards Petitioners/Plaintiffs by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease.
127. As a result of Defendants’ unconstitutional actions, Petitioners/Plaintiffs are suffering irreparable injury.
128. Accordingly, Defendants, as supervisors, direct participants, and policy
62

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.63 Page 63 of 71
makers for Wayne County, have violated and are violating the rights of the Post-trial Subclasses under the Eighth Amendment. COUNT II: Declaratory and Injunctive Relief for Violation of the Fourteenth
Amendment (42 U.S.C. § 1983)) Pretrial Subclass versus All Defendants 129. Petitioners/Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 130. Under the Fourteenth Amendment, corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody. Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (the state has an “unquestioned duty to provide adequate . . . medical care” for detained persons); see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“[T]he due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”). 131. Due process claims brought by pretrial detainees under the Fourteenth Amendment are evaluated under an objective standard. See Richmond, 885 F.3d at 938 n.3; Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc); Darnell v. Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017); Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018). Members of the Pre-Trial subclass are not required to show that Defendants are subjectively aware of a substantial risk of
63

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.64 Page 64 of 71
serious harm due to COVID-19, although if such a showing is required that standard is met under the circumstances presented here.
132. The Jail has neither the capacity nor the ability to comply with public health guidelines to prevent an outbreak of COVID-19 and cannot provide for the safety of the Jail Class. Defendants’ actions and inactions result in the confinement of members of the Jail class in a facility where they do not have the capacity to test for, treat, or prevent COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate medical care.
133. Defendants violate Petitioners/Plaintiffs’ due process rights by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease. Petitioners/Plaintiffs face a serious risk of intense pain, illness, lasting bodily damage, and ultimately, death in the Jail due to the Defendants’ insufficient measures to prevent the spread of infection.
134. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Wayne County, have violated and are violating the rights of the Pre-trial Subclass under the Fourteenth Amendment.
Count III: Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
Medically-Vulnerable Subclass versus all Defendants 135. Petitioners/Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
64

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.65 Page 65 of 71
136. Because the Medically Vulnerable Plaintiffs/Petitioners and subclass seek release in light of the immediate and urgent risks to their health and lives, there is no other available remedy that could protect their rights.
137. Respondents/Defendants are holding Petitioners/Plaintiffs in custody in violation of the Due Process Clause of the Eighth and/or Fourteenth Amendment to the Constitution of the United States. Both amendments forbid exposing Petitioners/Plaintiffs to a severe risk of death, pain, or permanent severe injury, and at this time, with respect to the Medically-Vulnerable Subclass, no options available to Respondents/Defendants will adequately mitigate that risk other than release from custody.
138. Section 2241(c)(3) allows this court to order the release of people like Plaintiffs who are held “in violation of the Constitution.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“It is clear, not only from the language of §§ 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.”). Such relief is appropriate where, as here, there are no set of conditions under which an individual can be constitutionally detained, and the petitioner is thus “challenging
65

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.66 Page 66 of 71
the fact, not conditions, of her confinement.”129 COUNT IV: Declaratory and Injunctive Relief for Violation of the Fourteenth
Amendment (42 U.S.C. § 1983)) Medically Vulnerable Subclass versus All Defendants 139. Petitioners/Plaintiffs repeat and re-allege paragraphs 1 through 113 as if fully set forth in this Count. 140. The Medically Vulnerable Plaintiffs/Petitioners and subclass seek release in light of the immediate and urgent risks to their health and lives. There is no other available remedy that could protect their rights. 141. Respondents/Defendants are holding Petitioners/Plaintiffs in custody in violation of the Due Process Clause of the Eighth and/or Fourteenth Amendment to the Constitution of the United States. Both amendments forbid exposing Petitioners/Plaintiffs to a severe risk of death, pain, or permanent severe injury. At this time, with respect to the Medically Vulnerable Subclass, no options are available to Respondents/Defendants that will adequately mitigate that risk other than removing the Petitioners/Plaintiffs from custody at the Jail. 142. Accordingly, Petitioners/Plaintiffs are entitled to be transferred to a form of custody that does not expose them to an unconstitutional risk of substantial harm, including a transfer to home confinement.
129 Ex. 15, Order at 8, Malam v. Adducci, No. 20 cv-10829 (E.D. Mich. Apr. 6, 2020), DE 23.
66

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.67 Page 67 of 71
PRAYER FOR RELIEF WHEREFORE, Petitioners/Plaintiffs and the Putative Class Members respectfully request that the Court: A. Certify the proposed class and subclasses; B. Enter a declaratory judgment that Defendants are violating Named Plaintiffs’ and Class Members’ constitutional rights by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a contagious, infectious disease; C. Enter a temporary restraining order, preliminary injunction, and permanent injunction, and/or writ of habeas corpus requiring Defendants to immediately release all Medically Vulnerable Petitioners/Plaintiffs and Subclass Members or transfer them to home confinement; D. Enter a temporary restraining order, preliminary injunction, and permanent injunction requiring, during the COVID-19 pandemic, for Defendants to:
1. Effectively communicate to all people incarcerated, including lowliteracy and non-English-speaking people, sufficient information about COVID-19, measures taken to reduce the risk of transmission, and any changes in policies or practices to reasonably ensure that individuals are able to take precautions to prevent infection;
2. Provide adequate spacing of six feet or more between people
67

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.68 Page 68 of 71
incarcerated, so that social distancing can be accomplished; 3. Ensure that each incarcerated person 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, and (2) an adequate supply of disinfectant hand wipes or other products effective against the virus that causes COVID-19 for daily cleanings; 4. Ensure that all incarcerated people have access to hand sanitizer containing at least 60% alcohol; 5. Provide an adequate stock of daily cleaning supplies, such as sponges, brushes, disinfectant hand wipes, and/or disinfectant products effective against the virus that causes COVID-19; 6. Provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, telephones, tablets, tables, bathrooms, seating, and door handles) between each use; 7. Provide daily access to clean showers and clean laundry, including clean personal towels and washrags for each shower; 8. Require that all Jail staff wear personal protective equipment, including masks and gloves, when interacting with any person or when touching surfaces in cells or common areas;
68

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.69 Page 69 of 71
9. Require that all Jail staff wash their hands with soap and water or use hand sanitizer containing at least 60% alcohol both before and after touching any person or any surface in cells or common areas;
10.Take each incarcerated person’s temperature daily (with a functioning, properly operated, and sanitized thermometer) to identify potential COVID-19 Infections.
11.Conduct immediate testing for anyone displaying known symptoms of COVID-19 and who has potentially been exposed to infection;
12.Ensure that individuals identified as having COVID-19 or having been exposed to COVID-19 receive adequate medical care and are properly quarantined in a non-punitive setting, with continued access to showers, recreation, mental health services, reading materials, phone and video calls with loved ones, communications with counsel, and personal property;
13.Respond to all emergency (as defined by the medical community) requests for medical attention within an hour;
14.Waive all medical co-pays for those experiencing COVID-19-related symptoms; and
15.Cease and desist retaliatory disciplinary action in response to (a) incarcerated persons’ requests for medical attention and basic,
69

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.70 Page 70 of 71
necessary protections, and/or (b) efforts by incarcerated persons to publicize unsafe and life-threatening conditions inside the Jail. E. If immediate release is not granted on the basis of this Petition alone, expedite review of the Petition, including oral argument, via telephonic or videoconference if necessary; F. Enter an order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; G. Order such other and further relief as this Court deems just, proper, and equitable.

DATED:

Respectfully submitted,

/s/Ashley A. Carter Ashley A. Carter (DC Bar No. 979793) Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (MI Bar No. P76789; DC Bar No. 1028529) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 Tel: (202) 728-9557 tharvey@advancementproject.org acarter@advancementproject.org mnemeth@advancementproject.org

/s/Martin L. Saad Martin L. Saad (DC Bar No. 462096)* Sheena R. Thomas (DC Bar No. 1020290)* Khary J. Anderson (DC Bar No. 1671197)* VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 Tel: (202) 344-4000 MLSaad@Venable.com SRThomas@Venable.com KJAnderson@Venable.com

/s/Allison L. Kriger Allison L. Kriger (MI Bar No. P76364) LARENE & KRIGER, P.L.C. 645 Griswold Street, Suite 1717

/s/Christopher N. Moran Christopher N. Moran (MD Bar No. 1512160132)*

70

Case 2:20-cv-11094-MAG-EAS ECF No. 1 filed 05/04/20 PageID.71 Page 71 of 71

Detroit, Michigan 48226 Tel: (313) 967-0100 allison.kriger@gmail.com
/s/Alec Karakatsanis Alec Karakatsanis (DC Bar No. 999294)* A. Dami Animashaun (DC Bar No. 1614199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 Tel: (202) 894-6126 alec@civilrightscorps.org dami@civilrightscorps.org

Emily J. Wilson (MD Bar No. 1801040016)* VENABLE LLP 750 E. Pratt Street, Ste. 900 Baltimore, MD 21202 Tel: (410) 244-7400 CNMoran@Venable.com EJWilson@Venable.com
/s/Desiree M. Ferguson Desiree M. Ferguson (MI Bar No. P34904) Amanda Alexander (MI Bar No. P77795)* DETROIT JUSTICE CENTER 1420 Washington Blvd., Suite 301 Detroit, MI 48226 Tel: (313) 736 -5957 dferguson@detroitjustice.org aalexander@detroitjustice.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

71

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 1-1 filed 05/04/20 PageID.72 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES RUSSELL, et al., individually and on behalf of all others similarly situated,
Plaintiffs,
v.
WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as the Sheriff of Wayne County, et al.,
Defendants.

Case No. Class Action

Index of Exhibits To Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief

EXHIBIT 1 2 3 4 5 6

DESCRIPTION Declaration of Dr. Marc Stern Declaration of Dr. Jaime Meyer Declaration of Elizabeth Y. Chiao Declaration of Dr. Jonathan Golob Declaration of Dr. Carlos Franco-Paredes Declaration of Dr. Carlos Franco-Paredes (Oakland County Jail)

1

Case 2:20-cv-11094-MAG-EAS ECF No. 1-1 filed 05/04/20 PageID.73 Page 2 of 2

7

Interim Guidance on Management of Coronavirus

Disease 2019 (COVID-19) in Correctional and Detention

Facilities CDC.gov

8

March 25, 2020 letter to Governor Larry Hogan from the

faculty members of the Johns Hopkins Bloomberg School

of Public Health, et al.

9

March 12, 2020 letter to Mayor de Blasio and City

Officials from NYC Council Members Brad Lander and

Ritchie Torres

10

Declaration of Ranit Mishori, MD, MHS, FAAFP filed in

the United States District Court for the District of

Maryland

11

Declaration of Robert B. Greifinger, MD filed in Case

2:20-cv-00409-JLR-MAT Document 4

12

Michigan Executive Order 2020-29 (COVID-19)

13

March 31, 2020 letter to Michigan sheriffs from the

ACLU

14

Declaration of Dr. Adam Lauring

15

Amended Opinion and Order Granting in Part Petitioner’s

Emergency Application for a Temporary Restraining

16

Expert Declaration of Dr. Amir Moheb Mohareb Filed in

Mays v. Dart, Case No. 20-cv-2134 (April 3, 2020)

2

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.74 Page 1 of 19
DECLARATION OF DR. MARC STERN, MD MPH On this 14th day of April, 2020, I hereby declare: 1. I am a physician, board-specialized in internal medicine, specializing in correctional health care. On a regular basis, I investigate, evaluate, and monitor the adequacy of health care delivery systems in correctional institutions on behalf of a variety of parties including federal courts. Most recently, I served as the Assistant Secretary of Health Care for the Washington State Department of Corrections. In terms of educational background, I received a Bachelor of Science degree from State University of New York (Albany) in 1975, a medical degree from State University of New York (Buffalo) in 1982, and a Master of Public Health from Indiana University in 1992. I am an Affiliate Assistant Professor at the University of Washington School of Public Health. 2. My prior experience includes working with the Office of Civil Rights and Civil Liberties of the U.S. Department of Homeland Security; the Special Litigation Section of the Civil Rights Division of the U.S. Department of Justice; and state departments of corrections and county jails. Through 2013, I taught the National Commission on Correctional Health Care’s (NCCHC) correctional health care standards semi-annually to correctional health care administrators at NCCHC’s national conferences. I authored a week-long curriculum commissioned by the National Institute of Corrections of the U.S. Department of Justice to train
1

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.75 Page 2 of 19
jail and prison wardens and health care administrators in the principles and practice of operating safe and effective correctional health care operations, and served as the principal instructor for this course. I currently also serve as the COVID-19 expert resource to the National Sheriffs Association and the Washington Association of Sheriffs and Police Chiefs.
3. In the past four years alone, I have been qualified as an expert in several jurisdictions on correctional health care systems and conditions of confinement. Attached as Exhibit A is a copy of my curriculum vitae.
4. I am not receiving payment in exchange for providing this affidavit to counsel for the Plaintiffs regarding appropriate correctional healthcare measures during the COVID-19 pandemic. In light of the emergency conditions occurring in jails and prisons across the country, I am providing my services pro bono.
5. I am familiar with the virus from a clinical perspective, including its causes and conditions, its transmission – especially in crowded and unsanitary conditions – and its ability to quickly spread through correctional facilities.
6. In the context of a pandemic like the one we currently face, public health and public safety interests are closely intertwined. When and if correctional staffing challenges arise due to the need for staff to quarantine, seek treatment, or care for dependents, managing internal safety in carceral settings becomes
2

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.76 Page 3 of 19
even more challenging. Understaffing in the correctional setting is dangerous for staff as well as incarcerated people, and the stress and fear of the current crisis only serve to increase those risks.
7. Jails and prisons are congregate environments, i.e. places where people live, eat, shower, and sleep in close proximity. In such environments, infectious diseases that are transmitted via the air or touch, as does COVID-19 – are more likely to spread. The spread of COVID-19 in similar environments such as nursing homes and cruise ships, and now correctional facilities themselves, has already been demonstrated.
8. The CDC and other public health authorities recommend a number of preventive steps to prevent or decrease the spread of COVID-19. It can be difficult if not impossible to execute all these recommendations or execute them effectively in jails and prisons, placing people at risk.
9. Although it is important for jails to comply with the CDC recommendations, it is equally important to understand that compliance with these standards alone is not enough to create a carceral setting that fully protects the health and safety of the people detained there. First of all, although the CDC guidelines are based on science, as a federal institution, CDC would avoid issuing recommendations, such as downsizing, that can be seen as imposing requirements on local governments around the country, even when the science would support
3

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.77 Page 4 of 19
such recommendations. Second, and relatedly, the CDC guidelines incorporate a “harm reduction” approach, a common practice in public health guidance. The harm reduction approach recognizes that though there is an appropriate and safe way to address a public health problem, people do not always do things in that way, and so provides guidance on how to reduce risk of harm even when not following the appropriate practices. For example, the CDC guidance, like public health guidance everywhere, states that social distancing should permit six feet or more of social distancing between sleeping quarters, but also states that such distancing should be provided “if space allows.” This does not mean that it is safe to have less than six feet of social distance in a jail, and in fact a carceral setting that does not allow for such social distancing is not a safe one and is likely to facilitate the spread of COVID-19.
10. For this reason, it is also important to reduce the number of persons incarcerated. I recognize that in most institutions, this number cannot be reduced to zero. However, the lower the number, the lower the risk. In other words, reducing the population to, say, a number that allows single occupancy in all rooms is better than maintaining a higher population number, but will still not achieve the level of risk that would exist if the population were released.
11. Downsizing jail populations serves two critical public health aims: (1) targeting residents who are at elevated risk of suffering from severe symptoms
4

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.78 Page 5 of 19
of COVID-19 (“medically at-risk”); and (2) allowing those who remain incarcerated to maintain social distancing and avoid other risks associated with forced communal living. Because m e d i c a l l y a t - r i s k populations are at the highest risk of severe complications from COVID-19, and because when they develop severe complications they will be transported to community hospitals— thereby using scarce community resources (ER beds, general hospital beds, ICU beds)—avoiding disease in this population is a critical contribution to public health overall. Because the staff who work at the jail share risk with the communal residents, reducing spread of infection in the jail significantly reduces the chances of a staff member infecting his or her family or community.
12. Downsizing jail populations by releasing high risk individuals and others the court system deems eligible for release will help to “flatten the curve” overall—both within the jail setting and without.
13. Thus, taking immediate and concerted efforts to implement preventive steps, as well as reducing the population to the lowest number possible prioritizing those who are elderly or have underlying medical conditions defined by the CDC, will increase public safety via reducing public health risk.
14. For the first time in history, large scale decisions about incarceration need to be made on the basis of public safety, not only considering criminal justicerelated factors, but also public health-related factors.
5

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.79 Page 6 of 19
15. I have reviewed the declarations of Jamaal Cameron and Richard Briggs. If accurate, they highlight a number of conditions or practices that are inconsistent with current public health recommendations: crowded conditions which do not allow safe distancing; unsafe practices for isolating residents with suspected COVID-19; inadequate disinfection of frequently touched common surfaces, inadequate provision of supplies for disinfecting surfaces; inadequate provision of hand soap, and inadequate access to episodic care (barriers to requesting care and insufficient evaluation when care is accessed).
16. Thoughtful downsizing that takes into account public safety, based not only criminal justice-related factors, but also public health-related factors, should be implemented in tandem with aggressive prevention measures that are based on national recommendations, modified, as necessary by public health and medical experts to adapt to the unique combination of physical structure and layout, operations, policies, logistics, inmate characteristics, and staffing factors of the jail.
18. I declare under penalty of perjury that the foregoing is true and correct.
Executed on April 14, 2020.
Marc Stern, MD MPH
6

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.80 Page 7 of 19
EXHIBIT A
CV of Dr. Marc Stern

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.81 Page 8 of 19

MARC F. STERN, M.D., M.P.H., F.A.C.P.

April, 2020

marcstern@live.com +1 (360) 701–6520

SUMMARY OF EXPERIENCE

CORRECTIONAL HEALTH CARE CONSULTANT

2009 – PRESENT

Consultant in the design, management, and operation of health services in a correctional setting to assist in evaluating, monitoring, or providing evidence-based, cost-effective care consistent with constitutional mandates of quality.

Current activities include: • COVID-19 Medical Advisor, National Sheriffs Association (2020 - )
• Advisor to various jails in Washington State on patient safety, health systems, and related health care and custody staff activities and operations, and RFP and contract generation (2014 - )
• Consultant to the US Department of Justice, Civil Rights Division, Special Litigation Section. Providing investigative support and expert medical services pursuant to complaints regarding care delivered in any US jail, prison, or detention facility. (2010 - ) (no current open cases)
• Physician prescriber/trainer for administration of naloxone by law enforcement officers for the Olympia, Tumwater, Lacey, Yelm, and Evergreen College Police Departments (2017 - )
• Consultant to the Civil Rights Enforcement Section, Office of the Attorney General of California, under SB 29, to review the healthcare-related conditions of confinement of detainees confined by Immigration and Customs Enforcement in California facilities (2017 - )
• Rule 706 Expert to the Court, US District Court for the District of Arizona, in the matter of Parsons v. Ryan (2018 - )

Previous activities include: • Consultant to Human Rights Watch to evaluate medical care of immigrants in Homeland Security detention (2016 -
2018)
• Consultant to Broward County Sheriff to help develop and evaluate responses to a request for proposals (2017 2018)
• Member of monitoring team (medical expert) pursuant to Consent Agreement between US Department of Justice and Miami-Dade County (Unites States of America v Miami-Dade County, et al.) regarding, entre outre, unconstitutional medical care. (2013 - 2016)
• Jointly appointed Consultant to the parties in Flynn v Walker (formerly Flynn v Doyle), a class action lawsuit before the US Federal District Court (Eastern District of Wisconsin) regarding Eighth Amendment violations of the health care provided to women at the Taycheedah Correctional Institute. Responsible for monitoring compliance with the medical component of the settlement. (2010 - 2015)
• Consultant on “Drug-related Death after Prison Release,” a research grant continuing work with Dr. Ingrid Binswanger, University of Colorado, Denver, examining the causes of, and methods of reducing deaths after release from prison to the community. National Institutes of Health Grant R21 DA031041-01. (2011 - 2016)
• Consultant to the US Department of Homeland Security, Office for Civil Rights and Civil Liberties. Providing investigative support and expert medical services pursuant to complaints regarding care received by immigration detainees in the custody of U.S. Immigration and Customs Enforcement. (2009 - 2014)
• Special Master for the US Federal District Court (District of Idaho) in Balla v Idaho State Board of Correction, et al., a class action lawsuit alleging Eighth Amendment violations in provision of health care at the Idaho State Correctional Institution. (2011 - 2012)
• Facilitator/Consultant to the US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, providing assistance and input for the development of the first National Survey of Prisoner Health. (2010-2011 )
• Project lead and primary author of National Institute of Corrections’ project entitled “Correctional Health Care Executive Curriculum Development,” in collaboration with National Commission on Correctional Health Care. NIC commissioned this curriculum for its use to train executive leaders from jails and prisons across the nation to better manage the health care missions of their facilities. Cooperative Agreement 11AD11GK18, US Department of Justice, National Institute of Corrections. (2011 - 2015 )

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.82 Page 9 of 19

Marc F. Stern, M.D.

Page 2

• Co-teacher, with Jaye Anno, Ph.D., for the National Commission on Correctional Health Care, of the Commission’s standing course, An In-Depth Look at NCCHC’s 2008 Standards for Health Services in Prisons and Jails taught at its national meetings. (2010 - 2013)
• Contributor to 2014 Editions of Standards for Health Services in Jails and Standards for Health Services in Prisons, National Commission on Correctional Health Care. (2013)
• Consultant to the California Department of Corrections and Rehabilitation court-appointed Receiver for medical operations. Projects included: o Assessing the Receiver’s progress in completing its goal of bringing medical care delivered in the Department to a constitutionally mandated level. (2009) o Providing physician leadership to the Telemedicine Program Manager tasked with improving and expanding the statewide use of telemedicine. (2009)
• Conceived, co-designed, led, and instructed in American College of Correctional Physicians and National Commission on Correctional Health Care’s Medical Directors Boot Camp (now called Leadership Institute), a national training program for new (Track “101”) and more experienced (Track “201”) prison and jail medical directors. (2009 - 2012)
• Participated as a member of a nine-person Delphi expert consensus panel convened by Rand Corporation to create a set of correctional health care quality standards. (2009)
• Convened a coalition of jails, Federally Qualified Health Centers, and community mental health centers in ten counties in Washington State to apply for a federal grant to create an electronic network among the participants that will share prescription information for the correctional population as they move among these three venues. (2009 2010)
• Participated as a clinical expert in comprehensive assessment of Michigan Department of Corrections as part of a team from the National Commission on Correctional Health Care. (2007)
• Provided consultation to Correctional Medical Services, Inc., St. Louis (now Corizon), on issues related to development of an electronic health record. (2001)
• Reviewed cases of possible professional misconduct for the Office of Professional Medical Conduct of the New York State Department of Health. (1999 – 2001)
• Advised Deputy Commissioner, Indiana State Board of Health, on developing plan to reduce morbidity from chronic diseases using available databases. (1992)
• Provided consultation to Division of General Medicine, University of Nevada at Reno, to help develop a new clinical practice site combining a faculty practice and a supervised resident clinic. (1991)

OLYMPIA BUPRENORPHINE CLINIC, OLYMPIA, WASHINGTON

2019 - PRESENT

Volunteer practitioner at a low-barrier clinic to providing Medication Assisted Treatment (buprenorphine) to opioid dependent individuals wishing to begin treatment, until they can transition to a long-term treatment provider

OLYMPIA FREE CLINIC, OLYMPIA, WASHINGTON

2017 - PRESENT

Volunteer practitioner providing episodic care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home

OLYMPIA UNION GOSPEL MISSION CLINIC, OLYMPIA, WASHINGTON

2009 – 2014

Volunteer practitioner providing primary care at a neighborhood clinic which provides free care to individuals without health insurance until they can find a permanent medical home; my own patient panel within the practice focuses on individuals recently released jail and prison.

WASHINGTON STATE DEPARTMENT OF CORRECTIONS

2002 – 2008

Assistant Secretary for Health Services/Health Services Director, 2005 – 2008 Associate Deputy Secretary for Health Care, 2002 – 2005

Responsible for the medical, mental health, chemical dependency (transiently), and dental care of 15,000 offenders in total confinement. Oversaw an annual operating budget of $110 million and 700 health care staff.

• As the first incumbent ever in this position, ushered the health services division from an operation of 12 staff in headquarters, providing only consultative services to the Department, to an operation with direct authority and

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.83 Page 10 of 19

Marc F. Stern, M.D.

Page 3

responsibility for all departmental health care staff and budget. As part of new organizational structure, created and filled statewide positions of Directors of Nursing, Medicine, Dental, Behavioral Health, Mental Health, Psychiatry, Pharmacy, Operations, and Utilization Management.
• Significantly changed the culture of the practice of correctional health care and the morale of staff by a variety of structural and functional changes, including: ensuring that high ethical standards and excellence in clinical practice were of primordial importance during hiring of professional and supervisory staff; supporting disciplining or career counseling of existing staff where appropriate; implementing an organizational structure such that patient care decisions were under the final direct authority of a clinician and were designed to ensure that patient needs were met, while respecting and operating within the confines of a custodial system.
• Improved quality of care by centralizing and standardizing health care operations, including: authoring a new Offender Health Plan defining patient benefits based on the Eighth Amendment, case law, and evidence-based medicine; implementing a novel system of utilization management in medical, dental, and mental health, using the medical staffs as real-time peer reviewers; developing a pharmacy procedures manual and creating a Pharmacy and Therapeutics Committee; achieving initial American Correctional Association accreditation for 13 facilities (all with almost perfect scores on first audit); migrating the eight individual pharmacy databases to a single central database.
• Blunted the growth in health care spending without compromising quality of care by a number of interventions, including: better coordination and centralization of contracting with external vendors, including new statewide contracts for hospitalization, laboratory, drug purchasing, radiology, physician recruitment, and agency nursing; implementing a statewide formulary; issuing quarterly operational reports at the state and facility levels.
• Piloted the following projects: direct issuance of over-the-counter medications on demand through inmates stores (commissary), obviating the need for a practitioner visit and prescription; computerized practitioner order entry (CPOE); pill splitting; ER telemedicine.
• Oversaw the health services team that participated variously in pre-design, design, or build phases of five capital projects to build complete new health units.

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

2001 – 2002

Regional Medical Director, Northeast Region, 2001 – 2002
Responsible for clinical oversight of medical services for 14,000 offenders in 14 prisons, including one (already) under court monitoring.
• Oversaw contract with vendor to manage 60-bed regional infirmary and hospice.
• Coordinated activities among the Regional Medical Unit outpatient clinic, the Albany Medical College, and the 13 feeder prisons to provide most of the specialty care for the region.
• Worked with contracting specialists and Emergency Departments to improve access and decrease medical out-trips by increasing the proportion of scheduled and emergency services provided by telemedicine.
• Provided training, advice, and counseling to practitioners and facility health administrators in the region to improve the quality of care delivered.

CORRECTIONAL MEDICAL SERVICES, INC. (now CORIZON)

2000 – 2001

Regional Medical Director, New York Region, 2000 – 2001
Responsible for clinical management of managed care contract with New York State Department of Correctional Services to provide utilization management services for the northeast and northern regions of New York State and supervision of the 60-bed regional infirmary and hospice.
• Migrated the utilization approval function from one of an anonymous rule-based “black box” to a collaborative evidence-based decision making process between the vendor and front-line clinicians.

MERCY INTERNAL MEDICINE, ALBANY, NEW YORK Neighborhood three-physician internal medicine group practice. Primary Care Physician, 1999 – 2000 (6 months) Provided direct primary care to a panel of community patients during a period of staff shortage.

1999 – 2000

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.84 Page 11 of 19

Marc F. Stern, M.D.

Page 4

ALBANY COUNTY CORRECTIONAL FACILITY, ALBANY, NEW YORK

1998 – 1999

Acting Facility Medical Director, 1998 – 1999

Directed the medical staff of an 800 bed jail and provided direct patient care following the sudden loss of the Medical Director, pending hiring of a permanent replacement. Coordinated care of jail patients in local hospitals. Provided consultation to the Superintendent on improvements to operation and staffing of medical unit and need for privatization.

VETERANS ADMINISTRATION MEDICAL CENTER, ALBANY, NY

1992 – 1998

Assistant Chief, Medical Service, 1995 – 1998 Chief, Section of General Internal Medicine and Emergency Services, 1992 – 1998
Responsible for operation of the general internal medicine clinics and the Emergency Department.
• Designed and implemented an organizational and physical plant makeover of the general medicine ambulatory care clinic from an episodic-care driven model with practitioners functioning independently supported by minimal nursing involvement, to a continuity-of-care model with integrated physician/mid-level practitioner/registered nurse/licensed practice nurse/practice manager teams.
• Led the design and opening of a new Emergency Department.
• As the VA Section Chief of Albany Medical College’s Division of General Internal Medicine, coordinated academic activities of the Division at the VA, including oversight of, and direct teaching in, ambulatory care and inpatient internal medicine rotations for medical students, residents, and fellows. Incorporated medical residents as part of the general internal medicine clinics. Awarded $786,000 Veterans Administration grant (“PRIME I”) over four years for development and operation of educational programs for medicine residents and students in allied health professions (management, pharmacy, social work, physician extenders) wishing to study primary care delivery.

ERIE COUNTY HEALTH DEPARTMENT, BUFFALO, NY

1988 – 1990

Director of Sexually Transmitted Diseases (STD) Services, 1989 – 1990 Staff Physician, STD Clinic, 1988 – 1989 Staff Physician, Lackawanna Community Health Center, 1988 – 1990
Provided leadership and patient care services in the evaluation and treatment of STDs. Successfully reorganized the county’s STD services which were suffering from mismanagement and were under public scrutiny. Provided direct patient care services in primary care clinic for underserved neighborhood.

UNION OCCUPATIONAL HEALTH CENTER, BUFFALO, NY Staff Physician, 1988 – 1990 Provided direct patient care for the evaluation of occupationally-related health disorders.

1988 – 1990

VETERANS ADMINISTRATION MEDICAL CENTER, BUFFALO, NY

1985 – 1990

Chief Outpatient Medical Section and Primary Care Clinic, 1986 – 1988 VA Section Head, Division of General Internal Medicine, University of Buffalo, 1986 – 1988
• Developed and implemented a major restructuring of the general medicine ambulatory care clinic to reduce fragmentation of care by introduction of a continuity-of-care model with a physician/nurse team approach.
Medical Director, Anticoagulation Clinic 1986 – 1990 Staff Physician, Emergency Department, 1985 – 1986

FACULTY APPOINTMENTS

2020 – present 2007 – present
1999 – present
1996 – 2002

Faculty Associate, Center for Human Rights, University of Washington
Affiliate Assistant Professor, Department of Health Services, School of Public Health, University of Washington Clinical Professor, Fellowship in Applied Public Health (previously Volunteer Faculty, Preventive Medicine Residency), University at Albany School of Public Health
Volunteer Faculty, Office of the Dean of Students, University at Albany

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.85 Page 12 of 19

Marc F. Stern, M.D.

Page 5

1992 – 2002 1993 – 1997 1990 – 1992 1985 – 1990 1982 – 1985

Associate Clinical/Associate/Assistant Professor of Medicine, Albany Medical College Clinical Associate Faculty, Graduate Program in Nursing, Sage Graduate School Instructor of Medicine, Indiana University Clinical Assistant Professor of Medicine, University of Buffalo Clinical Assistant Instructor of Medicine, University of Buffalo

2016 – present 2016 – present 2016 – 2017 2013 – present 2013 – 2016
2013 – present 2011 – 2012 2007 – present 2004 – 2006
2004 2003 – present
2001 – present 1999 – present
1999
1997 – 1998 1996 – 2002 1996 – 2002 1995 – 1998 1995
1994 – 1998
1993 1993
1988 – 1989
1987 – 1990 1987 – 1989
1987 – 1988 1987 1986 – 1988 1986 – 1988
1979 – 1980

OTHER PROFESSIONAL ACTIVITIES
Chair, Education Committee, Academic Consortium on Criminal Justice Health Washington State Institutional Review Board (“Prisoner Advocate” member) Mortality Reduction Workgroup, American Jail Association Conference Planning Committee – Medical/Mental Health Track, American Jail Association “Health in Prisons” course, Bloomberg School of Public Health, Johns Hopkins University/International Committee of the Red Cross Institutional Review Board, University of Washington (“Prisoner Advocate” member), Education Committee, National Commission on Correctional Health Care National Advisory Committee, COCHS (Community–Oriented Correctional Health Services) Fellow’s Advisory Committee, University of Washington Robert Wood Johnson Clinical Scholar
Program External Expert Panel to the Surgeon General on the “Call to Action on Correctional Health Care” Faculty Instructor, Critical Appraisal of the Literature Course, Family Practice Residency Program,
Providence St. Peter Hospital, Olympia, Washington Chair/Co-Chair, Education Committee, American College of Correctional Physicians Critical Appraisal of the Literature Course, Preventive Medicine Residency Program, New York State
Department of Health/University at Albany School of Public Health Co–Chairperson, Education Subcommittee, Workshop Submission Review Committee, Annual
Meeting, Society of General Internal Medicine Northeast US Representative, National Association of VA Ambulatory Managers Faculty Mentor, Journal Club, Internal Medicine Residency Program, Albany Medical College Faculty Advisor and Medical Control, 5 Quad Volunteer Ambulance Service, University at Albany Preceptor, MBA Internship, Union College Quality Assurance/Patient Satisfaction Subcommittee, VA National Curriculum Development
Committee for Implementation of Primary Care Practices, Veterans Administration Residency Advisory Committee, Preventive Medicine Residency, New York State Department of
Health/School of Public Health, University at Albany Chairperson, Dean's Task Force on Primary Care, Albany Medical College Task Group to develop curriculum for Comprehensive Care Case Study Course for Years 1 through 4,
Albany Medical College Teaching Effectiveness Program for New Housestaff, Graduate Medical Dental Education Consortium
of Buffalo Human Studies Review Committee, School of Allied Health Professions, University of Buffalo Chairman, Subcommittee on Hospital Management Issues and Member, Subcommittee on
Teaching of Ad Hoc Committee to Plan Incoming Residents Training Week, Graduate Medical Dental Education Consortium of Buffalo Dean's Ad Hoc Committee to Reorganize "Introduction to Clinical Medicine" Course Preceptor, Nurse Practitioner Training Program, School of Nursing, University of Buffalo Course Coordinator, Simulation Models Section of Physical Diagnosis Course, University of Buffalo Chairman, Service Chiefs' Continuity of Care Task Force, Veterans Administration Medical Center, Buffalo, New York Laboratory Teaching Assistant in Gross Anatomy, Université Libre de Bruxelles, Brussels, Belgium

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.86 Page 13 of 19

Marc F. Stern, M.D.

Page 6

1973 – 1975 1972 – 1975
1972 – 1975

Instructor and Instructor Trainer of First Aid, American National Red Cross
Chief of Service or Assistant Chief of Operations, 5 Quad Volunteer Ambulance Service, University at Albany.
Emergency Medical Technician Instructor and Course Coordinator, New York State Department of Health, Bureau of Emergency Medical Services

2019 – present 2015 – present 2015 – present
2011 – present 2010 – present 2010 – present 2001 – present 2001 – 2004 1996
1990 – 1992

REVIEWER/EDITOR Criminal Justice Review (reviewer) PLOS ONE (reviewer) Founding Editorial Board Member and Reviewer, Journal for Evidence-based Practice in Correctional Health, Center for Correctional Health Networks, University of Connecticut American Journal of Public Health (reviewer) International Advisory Board Member and Reviewer, International Journal of Prison Health Langeloth Foundation (grant reviewer) Reviewer and Editorial Board Member (2009 – present), Journal of Correctional Health Care Journal of General Internal Medicine (reviewer) Abstract Committee, Health Services Research Subcommittee, Annual Meeting, Society of General Internal Medicine (reviewer) Medical Care (reviewer)

EDUCATION
University at Albany, College of Arts and Sciences, Albany; B.S., 1975 (Biology) University at Albany, School of Education, Albany; AMST (Albany Math and Science Teachers) Teacher Education
Program, 1975 Université Libre de Bruxelles, Faculté de Medecine, Brussels, Belgium; Candidature en Sciences Medicales, 1980 University at Buffalo, School of Medicine, Buffalo; M.D., 1982 University at Buffalo Affiliated Hospitals, Buffalo; Residency in Internal Medicine, 1985 Regenstrief Institute of Indiana University, and Richard L. Roudebush Veterans Administration Medical Center; VA/NIH
Fellowship in Primary Care Medicine and Health Services Research, 1992 Indiana University, School of Health, Physical Education, and Recreation, Bloomington; M.P.H., 1992 New York Academy of Medicine, New York; Mini-fellowship Teaching Evidence-Based Medicine, 1999

CERTIFICATION
Provisional Teaching Certification for Biology, Chemistry, Physics, Grades 7–12, New York State Department of Education (expired), 1975
Diplomate, National Board of Medical Examiners, 1983 Diplomate, American Board of Internal Medicine, 1985 Fellow, American College of Physicians, 1991 License: Washington (#MD00041843, active); New York (#158327, inactive); Indiana (#01038490, inactive) “X” Waiver (buprenorphine), Department of Health & Human Services, 2018

2019 – present 2005 – 2016 2004 – 2006
2000 – present

MEMBERSHIPS Washington Association of Sheriffs and Police Chiefs American Correctional Association/Washington Correctional Association American College of Correctional Physicians (Member, Board of Directors, Chair Education Committee) American College of Correctional Physicians

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.87 Page 14 of 19

Marc F. Stern, M.D.

Page 7

RECOGNITION B. Jaye Anno Award for Excellence in Communication, National Commission on Correctional Health Care. 2019 Award of Appreciation, Washington Association of Sheriffs and Police Chiefs. 2018 Armond Start Award of Excellence, American College of Correctional Physicians. 2010 (First) Annual Preventive Medicine Faculty Excellence Award, New York State Preventive Medicine Residency Program, University at Albany School of Public Health/New York State Department of Health. 2010 Excellence in Education Award for excellence in clinical teaching, Family Practice Residency Program, Providence St. Peter Hospital, Olympia, Washington. 2004 Special Recognition for High Quality Workshop Presentation at Annual Meeting, Society of General Internal Medicine. 1996 Letter of Commendation, House Staff Teaching, University of Buffalo. 1986

WORKSHOPS, SEMINARS, PRESENTATIONS, INVITED LECTURES
It’s the 21st Century – Time to Bid Farewell to “Sick Call” and “Chronic Care Clinic”. Annual Conference, National Commission on Correctional Health Care. Fort Lauderdale, Florida. 2019
HIV and Ethics – Navigating Medical Ethical Dilemmas in Corrections. Keynote Speech, 14th Annual HIV Care in the Correctional Setting. AIDS Education and Training Program (AETC) Mountain West, Olympia, Washington. 2019
Honing Nursing Skills to Keep Patients Safe in Jail. Orange County Jail Special Training Session (including San Bernardino and San Diego Jail Staffs), Theo Lacy Jail, Orange, California. 2019
What Would You Do? Navigating Medical Ethical Dilemmas. Leadership Training Academy, National Commission on Correctional Health Care. San Diego, California. 2019
Preventing Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
How to Investigate Jail Deaths. Jail Death Review and Investigations: Best Practices Training Program, American Jail Association, Arlington, Virginia. 2018
Executive Manager Program in Correctional Health. 4-day training for custody/health care teams from jails and prisons on designing safe and efficient health care systems. National Institute for Corrections Training Facility, Aurora, Colorado, and other venues in Washington State. Periodically. 2014 – present
Medical Ethics in Corrections. Criminal Justice 441 – Professionalism and Ethical Issues in Criminal Justice. University of Washington, Tacoma. Recurring seminar. 2012 – present
Medical Aspects of Deaths in ICE Custody. Briefing for U.S. Senate staffers, Human Rights Watch. Washington, D.C. 2018
Jails’ Role in Managing the Opioid Epidemic. Panelist. Washington Association of Sheriffs and Police Chiefs Annual Conference. Spokane, Washington. 2018
Contract Prisons and Contract Health Care: What Do We Know? Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Health Care Workers in Prisons. (With Dr. J. Wesley Boyd) Behind Bars: Ethics and Human Rights in U.S. Prisons Conference. Center for Bioethics – Harvard Medical School/Human Rights Program – Harvard Law School. Boston, Massachusetts. 2017
Prisons, Jails and Medical Ethics: Rubber, Meet Road. Grand Rounds. Touro Medical College. New York, New York. 2017
Jail Medical Doesn’t Have to Keep You Up at Night – National Standards, Risks, and Remedies. Washington Association of Counties. SeaTac, Washington. 2017
Prison and Jail Health Care: What do you need to know? Grand Rounds. Providence/St. Peters Medical Center. Olympia, Washington. 2017
Prison Health Leadership Conference. 2-Day workshop. International Corrections and Prisons Association/African Correctional Services Association/Namibian Corrections Service. Omaruru, Namibia. 2016; 2018

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.88 Page 15 of 19

Marc F. Stern, M.D.

Page 8

What Would YOU Do? Navigating Medical Ethical Dilemmas. Spring Conference. National Commission on Correctional Health Care. Nashville, Tennessee. 2016
Improving Patient Safety. Spring Provider Meeting. Oregon Department of Corrections. Salem, Oregon 2016
A View from the Inside: The Challenges and Opportunities Conducting Cardiovascular Research in Jails and Prisons. Workshop on Cardiovascular Diseases in the Inmate and Released Prison Population. The National Heart, Lung, and Blood Institute. Bethesda, Maryland. 2016
Why it Matters: Advocacy and Policies to Support Health Communities after Incarceration. At the Nexus of Correctional Health and Public Health: Policies and Practice session. Panelist. American Public Health Association Annual Meeting. Chicago, Illinois. 2015
Hot Topics in Correctional Health Care. Presented with Dr. Donald Kern. American Jail Association Annual Meeting. Charlotte, North Carolina. 2015
Turning Sick Call Upside Down. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas, 2015.
Diagnostic Maneuvers You May Have Missed in Nursing School. Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
The Challenges of Hunger Strikes: What Should We Do? What Shouldn’t We Do? Annual Conference. National Commission on Correctional Health Care. Dallas, Texas. 2015
Practical and Ethical Approaches to Managing Hunger Strikes. Annual Practitioners’ Conference. Washington Department of Corrections. Tacoma, Washington. 2015
Contracting for Health Services: Should I, and if so, how? American Jail Association Annual Meeting. Dallas, Texas. 2014
Hunger Strikes: What should the Society of Correctional Physician’s position be? With Allen S, May J, Ritter S. American College of Correctional Physicians (Formerly Society of Correctional Physicians) Annual Meeting. Nashville, Tennessee. 2013
Addressing Conflict between Medical and Security: an Ethics Perspective. International Corrections and Prison Association Annual Meeting. Colorado Springs, Colorado. 2013
Patient Safety and ‘Right Using’ Nurses. Keynote address. Annual Conference. American Correctional Health Services Association. Philadelphia, Pennsylvania. 2013
Patient Safety: Overuse, underuse, and misuse…of nurses. Keynote address. Essentials of Correctional Health Care conference. Salt Lake City, Utah. 2012
The ethics of providing healthcare to prisoners-An International Perspective. Global Health Seminar Series. Department of Global Health, University of Washington, Seattle, Washington. 2012
Recovery, Not Recidivism: Strategies for Helping People Who are Incarcerated. Panelist. NAMI Annual Meeting, Seattle, Washington, 2012
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Salem, Oregon. 2011
Ethics and HIV Workshop. HIV/AIDS Care in the Correctional Setting Conference, Northwest AIDS Education and Training Center. Spokane, Washington. 2011
Patient Safety: Raising the Bar in Correctional Health Care. With Dr. Sharen Barboza. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee. 2010
Patient Safety: Raising the Bar in Correctional Health Care. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Achieving Quality Care in a Tough Economy. National Commission on Correctional Health Care Mid-Year Meeting, Nashville, Tennessee, 2010 (Co-presented with Rick Morse and Helena Kim, PharmD.)
Involuntary Psychotropic Administration: The Harper Solution. With Dr. Bruce Gage. American Correctional Health Services Association, Annual Meeting, Portland, Oregon. 2010
Evidence Based Decision Making for Non-Clinical Correctional Administrators. American Correctional Association 139th Congress, Nashville, Tennessee. 2009
Death Penalty Debate. Panelist. Seattle University School of Law, Seattle, Washington. 2009

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.89 Page 16 of 19

Marc F. Stern, M.D.

Page 9

The Patient Handoff – From Custody to the Community. Washington Free Clinic Association, Annual Meeting, Olympia, Washington. Lacey, Washington. 2009
Balancing Patient Advocacy with Fiscal Restraint and Patient Litigation. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Staff Management. National Commission on Correctional Health Care and American College of Correctional Physicians “Medical Directors Boot Camp,” Seattle, Washington. 2009
Management Dilemmas in Corrections: Boots and Bottom Bunks. Annual Meeting, American College of Correctional Physicians, Chicago, Illinois. 2008
Public Health and Correctional Health Care. Masters Program in community–based population focused management – Populations at risk, Washington State University, Spokane, Washington. 2008
Managing the Geriatric Population. Panelist. State Medical Directors’ Meeting, American Corrections Association, Alexandria, Virginia. 2007
I Want to do my own Skin Biopsies. Annual Meeting, American College of Correctional Physicians, New Orleans, Louisiana. 2005
Corrections Quick Topics. Annual Meeting, American College of Correctional Physicians. Austin, Texas. 2003
Evidence Based Medicine in Correctional Health Care. Annual Meeting, National Commission on Correctional Health Care. Austin, Texas. 2003
Evidence Based Medicine. Excellence at Work Conference, Empire State Advantage. Albany, New York. 2002
Evidence Based Medicine, Outcomes Research, and Health Care Organizations. National Clinical Advisory Group, Integrail, Inc., Albany, New York. 2002
Evidence Based Medicine. With Dr. LK Hohmann. The Empire State Advantage, Annual Excellence at Work Conference: Leading and Managing for Organizational Excellence, Albany, New York. 2002
Taking the Mystery out of Evidence Based Medicine: Providing Useful Answers for Clinicians and Patients. Breakfast Series, Institute for the Advancement of Health Care Management, School of Business, University at Albany, Albany, New York. 2001
Diagnosis and Management of Male Erectile Dysfunction – A Goal–Oriented Approach. Society of General Internal Medicine National Meeting, San Francisco, California. 1999
Study Design and Critical Appraisal of the Literature. Graduate Medical Education Lecture Series for all housestaff, Albany Medical College, Albany, New York. 1999 Male Impotence: Its Diagnosis and Treatment in the Era of Sildenafil. 4th Annual CME Day, Alumni Association of the Albany–Hudson Valley Physician Assistant Program, Albany, New York. 1998
Models For Measuring Physician Productivity. Panelist. National Association of VA Ambulatory Managers National Meeting, Memphis, Tennessee. 1997
Introduction to Male Erectile Dysfunction and the Role of Sildenafil in Treatment. Northeast Regional Meeting Pfizer Sales Representatives, Manchester Center, Vermont. 1997
Male Erectile Dysfunction. Topics in Urology, A Seminar for Primary Healthcare Providers, Bassett Healthcare, Cooperstown, New York. 1997
Evaluation and Treatment of the Patient with Impotence: A Practical Primer for General Internists. Society of General Internal Medicine National Meeting, Washington D.C. 1996
Impotence: An Update. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1996
Diabetes for the EMT First–Responder. Five Quad Volunteer Ambulance, University at Albany. Albany, New York. 1996
Impotence: An Approach for Internists. Medicine Grand Rounds, St. Mary's Hospital, Rochester, New York. 1994
Male Impotence. Common Problems in Primary Care Precourse. American College of Physicians National Meeting, Miami, Florida. 1994
Patient Motivation: A Key to Success. Tuberculosis and HIV: A Time for Teamwork. AIDS Program, Bureau of Tuberculosis Control – New York State Department of Health and Albany Medical College, Albany, New York. 1994

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.90 Page 17 of 19

Marc F. Stern, M.D.

Page 10

Recognizing and Treating Impotence. Department of Medicine Grand Rounds, Albany Medical College, Albany, New York. 1992
Medical Decision Making: A Primer on Decision Analysis. Faculty Research Seminar, Department of Family Practice, Indiana University, Indianapolis, Indiana. 1992
Effective Presentation of Public Health Data. Bureau of Communicable Diseases, Indiana State Board of Health, Indianapolis, Indiana. 1991
Impotence: An Approach for Internists. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Using Electronic Databases to Search the Medical Literature. NIH/VA Fellows Program, Indiana University, Indianapolis, Indiana. 1991
Study Designs Used in Epidemiology. Ambulatory Care Block Rotation. Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Effective Use of Slides in a Short Scientific Presentation. Housestaff Conference, Department of Medicine, Indiana University, Indianapolis, Indiana. 1991
Impotence: A Rational and Practical Approach to Diagnosis and Treatment for the General Internist. Society of General Internal Medicine National Meeting, Washington D.C. 1991
Nirvana and Audio–Visual Aids. With Dr. RM Lubitz. Society of General Internal Medicine, Midwest Regional Meeting, Chicago. 1991
New Perspectives in the Management of Hypercholesterolemia. Medical Staff, West Seneca Developmental Center, West Seneca, New York. 1989
Effective Use of Audio–Visual Aids. Nurse Educators, American Diabetes Association, Western New York Chapter, Buffalo, New York. 1989
Management of Diabetics in the Custodial Care Setting. Medical Staff, West Seneca Developmental Center, West Seneca, New York, 1989
Effective Use of Audio–Visuals in Diabetes Peer and Patient Education. American Association of Diabetic Educators, Western New York Chapter, Buffalo, New York. 1989
Pathophysiology, Diagnosis and Care of Diabetes. Nurse Practitioner Training Program, School of Nursing, University of Buffalo, Buffalo, New York. 1989
Techniques of Large Group Presentations to Medical Audiences – Use of Audio–Visuals. New Housestaff Training Program, Graduate Medical Dental Education Consortium of Buffalo, Buffalo, New York. 1988

PUBLICATIONS/ABSTRACTS
Borschmann, R, Tibble, H, Spittal, MJ, … Stern, MF, Viner, KM, Wang, N, Willoughby, M, Zhao, B, and Kinner, SA. The Mortality After Release from Incarceration Consortium (MARIC): Protocolfor a multi-national, individual participant data meta-analysis. Int. J of Population Data Science 2019 5(1):6
Binswanger IA, Maruschak LM, Mueller SR, Stern MF, Kinner SA. Principles to Guide National Data Collection on the Health of Persons in the Criminal Justice System. Public Health Reports 2019 134(1):34S-45S
Stern M. Hunger Strike: The Inside Medicine Scoop. American Jails 2018 32(4):17-21
Grande L, Stern M. Providing Medication to Treat Opioid Use Disorder in Washington State Jails. Study conducted for Washington State Department of Social and Health Services under Contract 1731-18409. 2018.
Stern MF, Newlin N. Epicenter of the Epidemic: Opioids and Jails. American Jails 2018 32(2):16-18
Stern MF. A nurse is a nurse is a nurse…NOT! Guest Editorial, American Jails 2018 32(2):4,68
Wang EA, Redmond N, Dennison Himmelfarb CR, Pettit B, Stern M, Chen J, Shero S, Iturriaga E, Sorlie P, Diez Roux AV. Cardiovascular Disease in Incarcerated Populations. Journal of the American College of Cardiology 2017 69(24):2967-76
Mitchell A, Reichberg T, Randall J, Aziz-Bose R, Ferguson W, Stern M. Criminal Justice Health Digital Curriculum. Poster, Annual Academic and Health Policy Conference on Correctional Health, Atlanta, Georgia, March, 2017

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.91 Page 18 of 19

Marc F. Stern, M.D.

Page 11

Stern MF. Patient Safety (White Paper). Guidelines, Management Tools, White Papers, National Commission on Correctional Health Care. http://www.ncchc.org/filebin/Resources/Patient-Safety-2016.pdf. June, 2016
Binswanger IA, Stern MF, Yamashita TE, Mueller SR, Baggett TP, Blatchford PJ. Clinical risk factors for death after release from prison in Washington State: a nested case control study. Addiction 2015 Oct 17
Stern MF. Op-Ed on Lethal Injections. The Guardian 2014 Aug 6
Stern MF. American College of Correctional Physicians Calls for Caution Placing Mentally Ill in Segregation: An Important Band-Aid. Guest Editorial. Journal of Correctional Health Care 2014 Apr; 20(2):92-94
Binswanger I, Blatchford PJ, Mueller SR, Stern MF. Mortality After Prison Release: Opioid Overdose and Other Causes of Death, Risk Factors, and Time Trends From 1999 to 2009. Annals of Internal Medicine 2013 Nov; 159(9):592-600
Williams B, Stern MF, Mellow J, Safer M, Greifinger RB. Aging in Correctional Custody: Setting a policy agenda for older prisoner health care. American Journal of Public Health 2012 Aug; 102(8):1475-1481
Binswanger I, Blatchford PJ, Yamashita TE, Stern MF. Drug-Related Risk Factors for Death after Release from Prison: A Nested Case Control Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Blatchford PJ, Forsyth S, Stern MF, Kinner SA. Death Related to Infectious Disease in Ex-Prisoners: An International Comparative Study. Oral Presentation, University of Massachusetts 4th Annual Academic and Health Policy Conference on Correctional Healthcare, Boston, Massachusetts, March, 2011
Binswanger I, Lindsay R, Stern MF, Blatchford P. Risk Factors for All-Cause, Overdose and Early Deaths after Release from Prison in Washington State Drug and Alcohol Dependence. Drug and Alcohol Dependence Aug 1 2011;117(1):1-6
Stern MF, Greifinger RB, Mellow J. Patient Safety: Moving the Bar in Prison Health Care Standards. American Journal of Public Health November 2010;100(11):2103-2110
Strick LB, Saucerman G, Schlatter C, Newsom L, Stern MF. Implementation of Opt-Out HIV testing in the Washington State Department of Corrections. Poster Presentation, National Commission on Correctional Health Care Annual Meeting, Orlando, Florida, October, 2009
Binswanger IA, Blatchford P, Stern MF. Risk Factors for Death After Release from Prison. Society for General Internal Medicine 32nd Annual Meeting; Miami: Journal of General Internal Medicine; April 2009. p. S164-S95
Stern MF. Force Feeding for Hunger Strikes – One More Step. CorrDocs Winter 2009;12(1):2
Binswanger I, Stern MF, Deyo RA, Heagerty PJ, Cheadle A, Elmore JG, Koepsell TD. Release from Prison – A High Risk of Death for Former Inmates. New England Journal of Medicine 2007 Jan 11;356(2):157–165
Stern MF, Hilliard T, Kelm C, Anderson E. Epidemiology of Hepatitis C Infection in the Washington State Department of Corrections. Poster Presentation, CDC/NIH ad hoc Conference on Management of Hepatitis C in Prisons, San Antonio, Texas, January, 2003
Phelps KR, Stern M, Slingerland A, Heravi M, Strogatz DS, Haqqie SS. Metabolic and skeletal effects of low and high doses of calcium acetate in patients with preterminal chronic renal failure. Am J Nephrol 2002 Sep–Dec;22(5–6):445–54
Goldberg L, Stern MF, Posner DS. Comparative Epidemiology of Erectile Dysfunction in Gay Men. Oral Presentation, International Society for Impotence Research Meeting, Amsterdam, The Netherlands, August 1998. Int J Impot Res. 1998;10(S3):S41 [also presented as oral abstract Annual Meeting, Society for the Study of Impotence, Boston, Massachusetts, October, 1999. Int J Impot Res. 1999;10(S1):S65]
Stern MF. Erectile Dysfunction in Older Men. Topics in Geriatric Rehab 12(4):40–52, 1997. [republished in Geriatric Patient Education Resource Manual, Supplement. Aspen Reference Group, Eds. Aspen Publishers, Inc., 1998]
Stern MF, Wulfert E, Barada J, Mulchahy JJ, Korenman SG. An Outcomes–Oriented Approach to the Primary Care Evaluation and Management of Erectile Dysfunction. J Clin Outcomes Management 5(2):36–56, 1998
Fihn SD, Callahan CM, Martin D, et al.; for the National Consortium of Anticoagulation Clinics.* The Risk for and Severity of Bleeding Complications in Elderly Patients Treated with Warfarin. Ann Int Med. 1996;124:970–979
Fihn SD, McDonell M, Martin D, et al.; for the Warfarin Optimized Outpatient Follow–up Study Group.* Risk Factors for Complications of Chronic Anticoagulation. Ann Int Med. 1993;118:511–520. (*While involved in the original proposal development and project execution, I was no longer part of the group at the time of this publication)
Stern MF, Dittus RS, Birkhead G, Huber R, Schwartz J, Morse D. Cost–Effectiveness of Hepatitis B Immunization Strategies for High Risk People. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992

Case 2:20-cv-11094-MAG-EAS ECF No. 1-2 filed 05/04/20 PageID.92 Page 19 of 19

Marc F. Stern, M.D.

Page 12

Fihn SD, McDonell MB, Vermes D, Martin D, Kent DL, Henikoff JG, and the Warfarin Outpatient Follow–up Study Group. Optimal Scheduling of Patients Taking Warfarin. A Multicenter Randomized Trial. Oral Presentation, Society of General Internal Medicine National Meeting, Washington, D.C., May 1992. Clin Res 1992
Fihn SD, McDonnell MB, Vermes D, Kent DL, Henikoff JG, and the Warfarin Anticoagulation Study Group. Risk Factors for Complications During Chronic Anticoagulation. Poster Presentation, Society of General Internal Medicine National Meeting, Seattle, May 1991
Pristach CA, Donoghue GD, Sarkin R, Wargula C, Doerr R, Opila D, Stern M, Single G. A Multidisciplinary Program to Improve the Teaching Skills of Incoming Housestaff. Acad Med. 1991;66(3):172–174
Stern MF. Diagnosing Chlamydia trachomatis and Neisseria gonorrhea Infections. (letter) J Gen Intern Med. 1991;6:183
Stern MF, Fitzgerald JF, Dittus RS, Tierney WM, Overhage JM. Office Visits and Outcomes of Care: Does Frequency Matter? Poster Presentation, Society of General Internal Medicine Annual Meeting, Seattle, May 1991. Clin Res 1991;39:610A
Stern MF. Cobalamin Deficiency and Red Blood Cell Volume Distribution Width. (letter) Arch Intern Med. 1990;150:910
Stern M, Steinbach B. Hypodermic Needle Embolization to the Heart. NY State J Med. 1990;90(7):368–371
Stern MF, Birkhead G, Huber R, Schwartz J, Morse D. Feasibility of Hepatitis B Immunization in an STD Clinic. Oral Presentation, American Public Health Association Annual Meeting, Atlanta, November 1990

EXPERT TESTIMONY Pajas v. County of Monterey, et al. US District Court for the Northern District of California, 2019 (trial) Dockery, et al. v. Hall et al. US District Court for the Southern District of Mississippi Northern Division, 2018 (trial) Benton v. Correct Care Solutions, et al. US District Court for the District of Maryland, 2018 (deposition) Pajas v. County of Monterey, et al. US District Court Northern District of California, 2018 (deposition) Walter v. Correctional Healthcare Companies, et al. US District Court, District of Colorado, 2017 (deposition) Winkler v. Madison County, Kentucky, et al. US District Court, Eastern District of Kentucky, Central Division at Lexington, 2016 (deposition) US v. Miami-Dade County, et al. US District Court, Southern District of Florida, periodically 2014 - 2016

Case 2:2C0-acsve-111:02904-c-Mv-A01G8-0E3A-SAKHECFDoNcou.m1e-3nt 4fi2ledF0il5e/d040/32/016/2P0agePIaDg.9e31 oPf 2a3ge 1 of 23
Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
1

Case 2:2C0-acsve-111:02904-c-Mv-A01G8-0E3A-SAKHECFDoNcou.m1e-3nt 4fi2ledF0il5e/d040/32/016/2P0agePIaDg.9e42 oPf 2a3ge 2 of 23
7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails 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. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are 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. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: 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 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 is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
2

Case 2:2C0-acsve-111:02904-c-Mv-A01G8-0E3A-SAKHECFDoNcou.m1e-3nt 4fi2ledF0il5e/d040/32/016/2P0agePIaDg.9e53 oPf 2a3ge 3 of 23
access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 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.
14. 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 outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. 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.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
3

Case 2:2C0-acsve-111:02904-c-Mv-A01G8-0E3A-SAKHECFDoNcou.m1e-3nt 4fi2ledF0il5e/d040/32/016/2P0agePIaDg.9e64 oPf 2a3ge 4 of 23
work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
4

Case 2:2C0-acsve-111:02904-c-Mv-A01G8-0E3A-SAKHECFDoNcou.m1e-3nt 4fi2ledF0il5e/d040/32/016/2P0agePIaDg.9e75 oPf 2a3ge 5 of 23
21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 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. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
5

Case 2:2C0-acsve-111:02904-c-Mv-A01G8-0E3A-SAKHECFDoNcou.m1e-3nt 4fi2ledF0il5e/d040/32/016/2P0agePIaDg.9e86 oPf 2a3ge 6 of 23
place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
6

Case 2:2C0-acsve-111:02904-c-Mv-A01G8-0E3A-SAKHECFDoNcou.m1e-3nt 4fi2ledF0il5e/d040/32/016/2P0agePIaDg.9e97 oPf 2a3ge 7 of 23
31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
7

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e008 ofP2a3ge 8 of 23

COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

I declare under penalty of perjury that the foregoing is true and correct.

March 1__5, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

8

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e019 ofP2a3ge 9 of 23
EXHIBIT A

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e0210 oPfa2g3e 10 of 23
Jaimie Meyer, MD, MS, FACP

CURRICULUM VITAE

Date of Revision: Name: School:

November 20, 2019 Jaimie Meyer, MD, MS, FACP Yale School of Medicine

Education:
BA, Dartmouth College Anthropology 2000 MD, University of Connecticut School of Medicine 2005 MS, Yale School of Public Health Biostatistics and Epidemiology 2014

Career/Academic Appointments:
2005 - 2008 Residency, Internal Medicine, NY Presbyterian Hospital at Columbia, New York, NY 2008 - 2011 Fellowship, Infectious Diseases, Yale University School of Medicine, New Haven, CT 2008 - 2012 Clinical Fellow, Infectious Diseases, Yale School of Medicine, New Haven, CT 2010 - 2012 Fellowship, Interdisciplinary HIV Prevention, Center for Interdisciplinary Research on
AIDS, New Haven, CT 2012 - 2014 Instructor, AIDS, Yale School of Medicine, New Haven, CT 2014 - present Assistant Professor, AIDS, Yale School of Medicine, New Haven, CT 2015 - 2018 Assistant Clinical Professor, Nursing, Yale School of Medicine, New Haven, CT

Board Certification:
AB of Internal Medicine, Internal Medicine, 08-2008, 01-2019 AB of Internal Medicine, Infectious Disease, 10-2010 AB of Preventive Medicine, Addiction Medicine, 01-2018

Professional Honors & Recognition:

International/National/Regional

2018

NIH Center for Scientific Review, Selected as Early Career Reviewer

2017

Doris Duke Charitable Foundation, Doris Duke Charitable Foundation Scholar

2016

American College of Physicians, Fellow

2016

NIH Health Disparities, Loan Repayment Award Competitive Renewal

2016

AAMC, Early Career Women Faculty Professional Development Seminar

2014

NIH Health Disparities, Loan Repayment Program Award

2014

NIDA, Women & Sex/Gender Differences Junior Investigator Travel Award

2014

International Women's/Children's Health & Gender Working Group, Travel Award

2014

Patterson Trust, Awards Program in Clinical Research

2013

Connecticut Infectious Disease Society, Thornton Award for Clinical Research

2011

Bristol Myers-Squibb, Virology Fellows Award

1

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e0311 oPfa2g3e 11 of 23
Jaimie Meyer, MD, MS, FACP

2006 2005 2005 2000 2000

NY Columbia Presbyterian, John N. Loeb Intern Award American Medical Women’s Association, Medical Student Citation Connecticut State Medical Society, Medical Student Award Dartmouth College, Hannah Croasdale Senior Award Dartmouth College, Palaeopitus Senior Leadership Society Inductee

Yale University

2014

Women’s Faculty Forum, Public Voices Thought Leadership Program Fellow

Grants/Clinical Trials History:

Current Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Center for Interdisciplinary Research on AIDS (CIRA) 2019-20 Pilot Project Awards Optimizing PrEP’s Potential in Non-Clinical Settings: Development and Evaluation of a PrEP Decision Aid for Women Seeking Domestic Violence Services Tiara Willie Principal Investigator 2% $29,993.00
$29,993.00 7/11/2019 - 7/10/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

SAMHSA H79 TI080561 CHANGE: Comprehensive Housing and Addiction Management Network for Greater New Haven Principal Investigator 20% $389,054.00
$1,933,368.00 11/30/2018 - 11/29/2023

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project

Gilead Sciences, Inc. Investigator Sponsored Award, CO-US-276-D136 Delivering HIV Pre-Exposure Prophylaxis to Networks of Justice-Involved Women Principal Investigator 8% $81,151.00

2

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e0412 oPfa2g3e 12 of 23
Jaimie Meyer, MD, MS, FACP

period: Project period:

$306,199.00 6/19/2018 - 1/31/2020

Agency: I.D.#: Title: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA R21 DA042702 Prisons, Drug Injection and the HIV Risk Environment Principal Investigator 22% $129,673.00
$358,276.00 8/1/2017 - 7/31/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Doris Duke Charitable Foundation Clinical Scientist Development Award Developing and Testing the Effect of a Patient-Centered HIV Prevention Decision Aid on PrEP uptake for Women with Substance Use in Treatment Settings Principal Investigator 27% $149,959.00
$493,965.00 7/1/2017 - 6/30/2020

Past Grants Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA K23 DA033858 Evaluating and Improving HIV Outcomes in Community-based Women who Interface with the Criminal Justice System Principal Investigator 75% $149,509.00
$821,147.00 7/1/2012 - 11/30/2017

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year:

Robert Leet & Clara Guthrie Patterson Trust R12225, Award in Clinical Research Disentangling the Effect of Gender on HIV Treatment and Criminal Justice Outcomes Principal Investigator 10% $75,000.00

3

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e0513 oPfa2g3e 13 of 23
Jaimie Meyer, MD, MS, FACP

Total costs for project

period:

$75,000.00

Project period:

1/31/2014 - 10/31/2015

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Bristol-Myers Squibb HIV Virology Fellowship Award Effect of newer antiretroviral regimens on HIV biological outcomes in HIVinfected prisoners: a 13 year retrospective evaluation Principal Investigator 10% $34,390.00
$34,390.00 12/1/2011 - 11/30/2012

Pending Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIMH R01 MH121991 Identifying Modifiable Risk and Protective Processes at the Day-Level that Predict HIV Care Outcomes among Women Exposed to Partner Violence Sullivan, Tami Principal Investigator 30% $499,755.00
$4,148,823.00 1/1/2020 - 12/31/2024

Invited Speaking Engagements, Presentations, Symposia & Workshops Not Affiliated With Yale:
International/National 2019: CME Outfitters, Washington, DC. "A Grassroots Approach to Weed out HIV and HCV in Special
OUD Populations" 2019: US Commission on Civil Rights, Washington, DC. "An Analysis of Women’s Health, Personal
Dignity and Sexual Abuse in the US Prison System" 2018: College of Problems on Drug Dependence, College of Problems on Drug Dependence, San
Diego, CA. "Research on Women who Use Drugs: Knowledge and Implementation Gaps and A Proposed Research Agenda" 2018: Clinical Care Options, Washington, DC. "Intersection of the HIV and Opioid Epidemics" 2016: Dartmouth Geisel School of Medicine, Hanover, NH. "Incarceration as Opportunity: Prisoner Health and Health Interventions" 2010: Rhode Island Chapter of the Association of Nurses in AIDS Care, Providence, RI. "HIV and Addiction"

4

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e0614 oPfa2g3e 14 of 23
Jaimie Meyer, MD, MS, FACP
Regional 2018: Clinical Directors Network, New York, NY. "PrEP Awareness among Special Populations of
Women and People who Use Drugs" 2018: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "HIV prevention for
justice-involved women" 2017: Clinical Directors Network, New York, NY. "Optimizing the HIV Care Continuum for People who
use Drugs" 2016: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "Topics in Infectious
Diseases" 2016: Connecticut Advanced Practice Registered Nurse Society, Wethersfield, CT. "Trends in HIV
Prevention: Integration of Biomedical and Behavioral Approaches"
Peer-Reviewed Presentations & Symposia Given at Meetings Not Affiliated With Yale: International/National
2019: CPDD 81st Annual Scientific Meeting, CPDD, San Antonio, TX. "Punitive approaches to pregnant women with opioid use disorder: Impact on health care utilization, outcomes and ethical implications"
2019: 14th International Conference on HIV Treatment and Prevention Adherence, IAPAC Adherence, Miami, FL. "Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP Contextually Relevant?"
2019: 2019 NIDA International Forum, NIDA, San Antonio, TX. "Diphenhydramine Injection in Kyrgyz Prisons: A Qualitative Study Of A High-Risk Behavior With Implications For Harm Reduction"
2019: 11th International Women’s and Children’s Health and Gender (InWomen’s) Group, InWomen’s Group, San Antonio, TX. "Uniquely successful implementation of methadone treatment in a women’s prison in Kyrgyzstan"
2019: Harm Reduction International, Porto, Porto District, Portugal. "How does methadone treatment travel? On the ‘becoming-methadone-body’ of Kyrgyzstan prisons"
2019: APA Collaborative Perspectives on Addiction Annual Meeting, APA Collaborative Perspectives on Addiction Annual Meeting, Providence, RI. "Impact of Trauma and Substance Abuse on HIV PrEP Outcomes among Women in Criminal Justice Systems. Symposium: “Partner Violence: Intersected with or Predictive of Substance Use and Health Problems among Women.”"
2019: Society for Academic Emergency Medicine (SAEM), Worcester, MA. "Effects of a Multisite Medical Home Intervention on Emergency Department Use among Unstably Housed People with Human Immunodeficiency Virus"
2019: Conference on Retroviruses and Opportunistic Infections (CROI), IAS, Seattle, WA. "Released to Die: Elevated Mortality in People with HIV after Incarceration"
2019: 12th Academic and Health Policy on Conference on Correctional Health, 12th Academic and Health Policy on Conference on Correctional Health, Las Vegas, NV. "PrEP Eligibility and HIV Risk Perception for Women across the Criminal Justice Continuum in Connecticut"
2019: Association for Justice-Involved Female Organizations (AJFO), Atlanta, GA. "Treatment of Women’s Substance Use Disorders and HIV Prevention During and Following Incarceration"
5

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e0715 oPfa2g3e 15 of 23
Jaimie Meyer, MD, MS, FACP

2018: 2018: 2018: 2018:
2018: 2018: 2018: 2017: 2017: 2017: 2017: 2017: 2017: 2016: 2015:

American Public Health Association (APHA) Annual Meeting, American Public Health Association (APHA) Annual Meeting, San Diego, CA. "New Haven Syringe Service Program: A model of integrated harm reduction and health care services" 12th National Harm Reduction Conference, 12th National Harm Reduction Conference, New Orleans, LA. "Service needs and access to care among participants in the New Haven Syringe Services Program" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "HIV risk perceptions and risk reduction strategies among prisoners in Kyrgyzstan: a qualitative study" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "Methadone Maintenance Therapy Uptake, Retention, and Linkage for People who Inject Drugs Transitioning From Prison to the Community in Kyrgyzstan: Evaluation of a National Program" NIDA International Forum, NIDA, San Diego, CA. "HIV and Drug Use among Women in Prison in Azerbaijan, Kyrgyzstan and Ukraine" 2018 Conference on Retroviruses and Opportunistic Infections (CROI), CROI, Boston, MA. "From prison’s gate to death’s door: Survival analysis of released prisoners with HIV" 11th Academic and Health Policy on Conference on Correctional Health, Academic Consortium on Criminal Justice Health, Houston, TX. "Assessing Concurrent Validity of Criminogenic and Health Risk Instruments among Women on Probation in Connecticut" IDWeek: Annual Meeting of Infectious Diseases Society of America, Infectious Diseases Society of America, San Diego, CA. "Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons (Oral presentation)" International AIDS Society (IAS) Meeting, International AIDS Society, Paris, Île-de-France, France. "Late breaker: Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons" NIDA International Forum, NIDA, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "Assessing Receptiveness to and Eligibility for PrEP in Criminal Justice-Involved Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" Annual Meeting of the Society for Applied Anthropology, Society for Applied Anthropology, Santa Fe, NM. "Where rubbers meet the road: HIV risk reduction for women on probation (Oral presentation)" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Palm Springs, CA. "An Event-level Examination of Successful Condom Negotiation Strategies among College Women" CDC National HIV Prevention Conference, CDC, Atlanta, GA. "Beyond the Syndemic: Condom Negotiation and Use among Women Experiencing Partner Violence (Oral presentation)"

6

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e0816 oPfa2g3e 16 of 23
Jaimie Meyer, MD, MS, FACP

2015: 2015: 2014: 2014: 2014: 2013: 2013: 2012: 2012: 2012: 2011:

International Harm Reduction Conference, International Harm Reduction, Kuala Lumpur, Federal Territory of Kuala Lumpur, Malaysia. "Evidence-Based Interventions to Enhance Assessment, Treatment, and Adherence in the Chronic Hepatitis C Care Continuum" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Phoenix, AZ. "Violence, Substance Use, and Sexual Risk among College Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" College on Problems in Drug Dependence (CPDD), College on Problems in Drug Dependence (CPDD), San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Boston, MA. "Longitudinal Treatment Outcomes in HIVInfected Prisoners and Influence of Re-Incarceration" HIV Intervention and Implementation Science Meeting, HIV Intervention and Implementation Science Meeting, Bethesda, MD. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Atlanta, GA. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Correlates of Retention in HIV Care after Release from Jail: Results from a Multi-site Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Frequent Emergency Department Use among Released Prisoners with HIV: Characterization Including a Novel Multimorbidity Index" 5th Academic and Health Policy Conference on Correctional Health, 5th Academic and Health Policy Conference on Correctional Health, Atlanta, GA. "Effects of Intimate Partner Violence on HIV and Substance Abuse in Released Jail Detainees" IAPAC HIV Treatment and Adherence Conference, IAPAC, Miami, FL. "Adherence to HIV treatment and care among previously homeless jail detainees"

Regional 2019: Connecticut Infectious Disease Society, New Haven, CT. "Preliminary Findings from a Novel
PrEP Demonstration Project for Women Involved in Criminal Justice Systems and Members of their Risk Networks" 2017: Connecticut Public Health Association Annual Conference, Connecticut Public Health Association, Farmington, CT. "The New Haven syringe services program" 2014: Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Longitudinal Treatment Outcomes in HIV-Infected Prisoners and Influence of ReIncarceration"

7

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e0917 oPfa2g3e 17 of 23
Jaimie Meyer, MD, MS, FACP

2013: 2011:

Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Emergency Department Use by Released Prisoners with HIV"

Professional Service:
Peer Review Groups/Grant Study Sections 2019 - present Reviewer, NIDA, NIH Reviewer: RFA-DA-19-025: HEAL Initiative: Justice Community
Opioid Innovation Network (JCOIN) Clinical Research Centers 2019 - present Reviewer, Yale DCFAR Pilot Projects 2018 - present Reviewer, Center for Interdisciplinary Research on AIDS (CIRA) 2015 - present Reviewer, University of Wisconsin-Milwaukee Research Growth Initiative

Advisory Boards

2017

Advisor, HIV Prevention and Treatment in Cis-Gendered Women, Gilead Sciences, Inc.

Journal Service
Editor/Associate Editor 2019 - present Associate Editor, Journal of the International Association of Providers of AIDS Care
(JIAPAC), Section Editor: Sex and Gender Issues

Reviewer 2019 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, JAIDS Reviewer, Addiction Sci and Clin Pract Reviewer, Addictive Behav Reports Reviewer, AIDS Care Reviewer, Social Science and Medicine Reviewer, SpringerPlus Reviewer, Substance Abuse Treatment Prevention and Policy Reviewer, Women’s Health Issues Reviewer, Yale Journal of Biology and Medicine Reviewer, AIMS Public Health Reviewer, American Journal on Addictions Reviewer, American Journal of Epidemiology Reviewer, American Journal of Public Health Reviewer, Annals Internal Medicine Reviewer, BMC Emergency Medicine Reviewer, BMC Infectious Diseases Reviewer, BMC Public Health Reviewer, BMC Women’s Health

8

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e1018 oPfa2g3e 18 of 23
Jaimie Meyer, MD, MS, FACP

2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, Clinical Infectious Diseases Reviewer, Critical Public Health Reviewer, Drug and Alcohol Dependence Reviewer, Drug and Alcohol Review Reviewer, Epidemiologic Reviews Reviewer, Eurosurveillance Reviewer, Health and Justice (Springer Open) Reviewer, International Journal of Drug Policy Reviewer, International Journal of Prisoner Health Reviewer, International Journal of STDs and AIDS Reviewer, International Journal of Women’s Health Reviewer, JAMA Internal Medicine Reviewer, Journal of Family Violence Reviewer, Journal of General Internal Medicine Reviewer, Journal of Immigrant and Minority Health Reviewer, Journal of International AIDS Society Reviewer, Journal of Psychoactive Drugs Reviewer, Journal of Urban Health Reviewer, Journal of Women’s Health Reviewer, Open Forum Infectious Diseases Reviewer, PLoS ONE Reviewer, Public Health Reports

Professional Service for Professional Organizations
AAMC Group on Women in Medicine and Science (GWIMS) 2016 - present Member, AAMC Group on Women in Medicine and Science (GWIMS)

American College of Physicians 2016 - present Fellow, American College of Physicians 2013 - 2016 Member, American College of Physicians

American Medical Association 2005 - present Member, American Medical Association

American Medical Women’s Association 2011 - present Member, American Medical Women’s Association

American Society of Addiction Medicine 2009 - present Member, American Society of Addiction Medicine

9

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e119 oPfa2g3e 19 of 23
Jaimie Meyer, MD, MS, FACP

Connecticut Infectious Disease Society 2011 - present Member, Connecticut Infectious Disease Society

Infectious Disease Society of America 2008 - present Member, Infectious Disease Society of America

InWomen’s Network, NIDA International Program 2013 - present Member, InWomen’s Network, NIDA International Program

New York State Medical Society 2005 - 2008 Member, New York State Medical Society

Yale University Service University Committees 2016 - 2018 Council Member, Leadership Council, Women’s Faculty Forum

Medical School Committees 2015 - 2016 Committee Member, US Health and Justice Course, Yale School of Medicine 2014 - present Committee Member, Yale Internal Medicine Traditional Residency Intern Selection
Committee

Public Service 2019 - present 2017 - present 2013 - present 2012 - present 2009 - 2011 2002 1998 - 1999

Faculty Member, Yale University Program in Addiction Medicine Faculty Member, Arthur Liman Center for Public Interest Law, Yale Law School Mentor, Women in Medicine at Yale Mentoring Program Faculty Member, Yale Center for Interdisciplinary Research on AIDS Instructor, Preclinical Clerkship Tutor, Yale School of Medicine Fellow, Soros Open Society Institute Fellow, Costa Rican Humanitarian Foundation

Bibliography:
Peer-Reviewed Original Research 1. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Emergency department use by released prisoners
with HIV: an observational longitudinal study. PloS One 2012, 7:e42416. 2. Chen NE, Meyer JP, Bollinger R, Page KR. HIV testing behaviors among Latinos in Baltimore City.
Journal Of Immigrant And Minority Health / Center For Minority Public Health 2012, 14:540-51. 3. Chitsaz E, Meyer JP, Krishnan A, Springer SA, Marcus R, Zaller N, Jordan AO, Lincoln T, Flanigan TP,
Porterfield J, Altice FL. Contribution of substance use disorders on HIV treatment outcomes and antiretroviral medication adherence among HIV-infected persons entering jail. AIDS And Behavior 2013, 17 Suppl 2:S118-27.

10

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e120 oPfa2g3e 20 of 23
Jaimie Meyer, MD, MS, FACP
4. Chen NE, Meyer JP, Avery AK, Draine J, Flanigan TP, Lincoln T, Spaulding AC, Springer SA, Altice FL. Adherence to HIV treatment and care among previously homeless jail detainees. AIDS And Behavior 2013, 17:2654-66.
5. Althoff AL, Zelenev A, Meyer JP, Fu J, Brown SE, Vagenas P, Avery AK, Cruzado-Quiñones J, Spaulding AC, Altice FL. Correlates of retention in HIV care after release from jail: results from a multi-site study. AIDS And Behavior 2013, 17 Suppl 2:S156-70.
6. Williams CT, Kim S, Meyer J, Spaulding A, Teixeira P, Avery A, Moore K, Altice F, Murphy-Swallow D, Simon D, Wickersham J, Ouellet LJ. Gender differences in baseline health, needs at release, and predictors of care engagement among HIV-positive clients leaving jail. AIDS And Behavior 2013, 17 Suppl 2:S195-202.
7. Meyer JP, Wickersham JA, Fu JJ, Brown SE, Sullivan TP, Springer SA, Altice FL. Partner violence and health among HIV-infected jail detainees. International Journal Of Prisoner Health 2013, 9:124-41.
8. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Frequent emergency department use among released prisoners with human immunodeficiency virus: characterization including a novel multimorbidity index. Academic Emergency Medicine : Official Journal Of The Society For Academic Emergency Medicine 2013, 20:79-88.
9. Meyer JP, Cepeda J, Springer SA, Wu J, Trestman RL, Altice FL. HIV in people reincarcerated in Connecticut prisons and jails: an observational cohort study. The Lancet. HIV 2014, 1:e77-e84.
10. Meyer JP, Zelenev A, Wickersham JA, Williams CT, Teixeira PA, Altice FL. Gender disparities in HIV treatment outcomes following release from jail: results from a multicenter study. American Journal Of Public Health 2014, 104:434-41.
11. Meyer JP, Cepeda J, Wu J, Trestman RL, Altice FL, Springer SA. Optimization of human immunodeficiency virus treatment during incarceration: viral suppression at the prison gate. JAMA Internal Medicine 2014, 174:721-9.
12. Meyer JP, Cepeda J, Taxman FS, Altice FL. Sex-Related Disparities in Criminal Justice and HIV Treatment Outcomes: A Retrospective Cohort Study of HIV-Infected Inmates. American Journal Of Public Health 2015, 105:1901-10.
13. Boyd AT, Song DL, Meyer JP, Altice FL. Emergency department use among HIV-infected released jail detainees. Journal Of Urban Health : Bulletin Of The New York Academy Of Medicine 2015, 92:10835.
14. Shrestha R, Karki P, Altice FL, Huedo-Medina TB, Meyer JP, Madden L, Copenhaver M. Correlates of willingness to initiate pre-exposure prophylaxis and anticipation of practicing safer drug- and sexrelated behaviors among high-risk drug users on methadone treatment. Drug And Alcohol Dependence 2017, 173:107-116.
15. Peasant C, Sullivan TP, Weiss NH, Martinez I, Meyer JP. Beyond the syndemic: condom negotiation and use among women experiencing partner violence. AIDS Care 2017, 29:516-523.
16. Wickersham JA, Gibson BA, Bazazi AR, Pillai V, Pedersen CJ, Meyer JP, El-Bassel N, Mayer KH, Kamarulzaman A, Altice FL. Prevalence of Human Immunodeficiency Virus and Sexually Transmitted Infections Among Cisgender and Transgender Women Sex Workers in Greater Kuala Lumpur, Malaysia: Results From a Respondent-Driven Sampling Study. Sexually Transmitted Diseases 2017, 44:663-670.
17. Hoff E, Marcus R, Bojko MJ, Makarenko I, Mazhnaya A, Altice FL, Meyer JP. The effects of opioidagonist treatments on HIV risk and social stability: A mixed methods study of women with opioid use disorder in Ukraine. Journal Of Substance Abuse Treatment 2017, 83:36-44.
11

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e1321 oPfa2g3e 21 of 23
Jaimie Meyer, MD, MS, FACP
18. Rutledge R, Madden L, Ogbuagu O, Meyer JP. HIV Risk perception and eligibility for pre-exposure prophylaxis in women involved in the criminal justice system. AIDS Care 2018, 30:1282-1289.
19. Peasant C, Sullivan TP, Ritchwood TD, Parra GR, Weiss NH, Meyer JP, Murphy JG. Words can hurt: The effects of physical and psychological partner violence on condom negotiation and condom use among young women. Women & Health 2018, 58:483-497.
20. Loeliger KB, Altice FL, Desai MM, Ciarleglio MM, Gallagher C, Meyer JP. Predictors of linkage to HIV care and viral suppression after release from jails and prisons: a retrospective cohort study. The Lancet. HIV 2018, 5:e96-e106.
21. Odio CD, Carroll M, Glass S, Bauman A, Taxman FS, Meyer JP. Evaluating concurrent validity of criminal justice and clinical assessments among women on probation. Health & Justice 2018, 6:7.
22. Loeliger KB, Altice FL, Ciarleglio MM, Rich KM, Chandra DK, Gallagher C, Desai MM, Meyer JP. Allcause mortality among people with HIV released from an integrated system of jails and prisons in Connecticut, USA, 2007-14: a retrospective observational cohort study. The Lancet. HIV 2018, 5:e617-e628.
23. Loeliger KB, Meyer JP, Desai MM, Ciarleglio MM, Gallagher C, Altice FL. Retention in HIV care during the 3 years following release from incarceration: A cohort study. PLoS Medicine 2018, 15:e1002667.
24. Azbel L, Wegman MP, Polonsky M, Bachireddy C, Meyer J, Shumskaya N, Kurmanalieva A, Dvoryak S, Altice FL. Drug injection within prison in Kyrgyzstan: elevated HIV risk and implications for scaling up opioid agonist treatments. International Journal Of Prisoner Health 2018, 14:175-187.
25. Peasant C, Montanaro EA, Kershaw TS, Parra GR, Weiss NH, Meyer JP, Murphy JG, Ritchwood TD, Sullivan TP. An event-level examination of successful condom negotiation strategies among young women. Journal Of Health Psychology 2019, 24:898-908.
26. Ranjit YS, Azbel L, Krishnan A, Altice FL, Meyer JP. Evaluation of HIV risk and outcomes in a nationally representative sample of incarcerated women in Azerbaijan, Kyrgyzstan, and Ukraine. AIDS Care 2019, 31:793-797.
27. Rhodes T, Azbel L, Lancaster K, Meyer J. The becoming-methadone-body: on the onto-politics of health intervention translations. Sociology Of Health & Illness 2019, 41:1618-1636.
28. Olson B, Vincent W, Meyer JP, Kershaw T, Sikkema KJ, Heckman TG, Hansen NB. Depressive symptoms, physical symptoms, and health-related quality of life among older adults with HIV. Quality Of Life Research : An International Journal Of Quality Of Life Aspects Of Treatment, Care And Rehabilitation 2019.
Chapters, Books, and Reviews 29. Azar MM, Springer SA, Meyer JP, Altice FL. A systematic review of the impact of alcohol use
disorders on HIV treatment outcomes, adherence to antiretroviral therapy and health care utilization. Drug And Alcohol Dependence 2010, 112:178-93. 30. Meyer JP, Springer SA, Altice FL. Substance abuse, violence, and HIV in women: a literature review of the syndemic. Journal Of Women's Health (2002) 2011, 20:991-1006. 31. Meyer JP, Chen NE, Springer SA. HIV Treatment in the Criminal Justice System: Critical Knowledge and Intervention Gaps. AIDS Research And Treatment 2011, 2011:680617. 32. Springer SA, Spaulding AC, Meyer JP, Altice FL. Public health implications for adequate transitional care for HIV-infected prisoners: five essential components. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2011, 53:469-79.
12

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e1422 oPfa2g3e 22 of 23
Jaimie Meyer, MD, MS, FACP
33. Chen NE, Meyer JP, Springer SA. Advances in the prevention of heterosexual transmission of HIV/AIDS among women in the United States. Infectious Disease Reports 2011, 3.
34. Meyer J, Altice F. HIV in Injection and Other Drug Users. Somesh Gupta, Bhushan Kumar, eds. Sexually Transmitted Infections 2nd ed. New Delhi, India: Elsevier, 2012: 1061-80. ISBN 978-81312-2809-8.
35. Meyer JP, Althoff AL, Altice FL. Optimizing care for HIV-infected people who use drugs: evidencebased approaches to overcoming healthcare disparities. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2013, 57:1309-17.
36. Meyer J, Altice F. Chapter 47, Treatment of Addictions: Transition to the Community. Robert L. Trestman, Kenneth L. Appelbaum, Jeffrey L. Metzner, eds. Oxford Textbook of Correctional Psychiatry (Winner of the 2016 Guttmacher Award). Oxford University Press 2015. ISBN 9780199360574.
37. Meyer JP, Moghimi Y, Marcus R, Lim JK, Litwin AH, Altice FL. Evidence-based interventions to enhance assessment, treatment, and adherence in the chronic Hepatitis C care continuum. The International Journal On Drug Policy 2015, 26:922-35.
38. Mohareb A, Tiberio P, Mandimika C, Muthulingam D, Meyer J. Infectious Diseases in Underserved Populations. Onyema Ogbuagu, Gerald Friedland, Merceditas Villanueva, Marjorie Golden, eds. Current Diagnosis and Treatment- Infectious Diseases. McGraw-Hill Medical 2016.
39. Meyer JP, Womack JA, Gibson B. Beyond the Pap Smear: Gender-responsive HIV Care for Women. The Yale Journal Of Biology And Medicine 2016, 89:193-203.
40. Meyer JP, Muthulingam D, El-Bassel N, Altice FL. Leveraging the U.S. Criminal Justice System to Access Women for HIV Interventions. AIDS And Behavior 2017, 21:3527-3548.
41. Shrestha R, McCoy-Redd B, Meyer J. Pre-Exposure Prophylaxis (PrEP) for People Who Inject Drugs (PWID). Brianna Norton, Ed. The Opioid Epidemic and Infectious Diseases. Elsevier 2019.
42. Meyer JP, Isaacs K, El-Shahawy O, Burlew AK, Wechsberg W. Research on women with substance use disorders: Reviewing progress and developing a research and implementation roadmap. Drug And Alcohol Dependence 2019, 197:158-163.
Peer-Reviewed Educational Materials 43. The Fortune Society Reentry Education Project Detailing Kit. New York City Department of Health
and Mental Hygiene. October 2014 44. United Nations Office on Drugs and Crime. Vienna, Austria
Invited Editorials and Commentaries 45. Meyer JP. Capsule Commentary on Pyra et al., sexual minority status and violence among HIV
infected and at-risk women. Journal Of General Internal Medicine 2014, 29:1164. 46. Brinkley-Rubinstein L, Dauria E, Tolou-Shams M, Christopoulos K, Chan PA, Beckwith CG, Parker S,
Meyer J. The Path to Implementation of HIV Pre-exposure Prophylaxis for People Involved in Criminal Justice Systems. Current HIV/AIDS Reports 2018, 15:93-95. 47. Meyer JP. The Sustained Harmful Health Effects of Incarceration for Women Living with HIV. Journal Of Women's Health (2002) 2019, 28:1017-1018.
13

Case 2:20C-cavs-e110:2904--cMv-A0G18-E0A3-SAKEHCFDNocou. m1-e3nt f4il2ed F05ile/0d40/230/16/P2a0gePIDa.g1e1523 oPfa2g3e 23 of 23
Jaimie Meyer, MD, MS, FACP
Case Reports, Technical Notes, Letters 48. Paul J. Bullous pemphigoid in a patient with psoriasis and possible drug reaction: a case report.
Connecticut Medicine 2004, 68:611-5. 49. How J, Azar MM, Meyer JP. Are Nectarines to Blame? A Case Report and Literature Review of
Spontaneous Bacterial Peritonitis Due to Listeria monocytogenes. Connecticut Medicine 2015, 79:31-6. 50. Vazquez Guillamet LJ, Malinis MF, Meyer JP. Emerging role of Actinomyces meyeri in brain abscesses: A case report and literature review. IDCases 2017, 10:26-29. 51. Harada K, Heaton H, Chen J, Vazquez M, Meyer J. Zoster vaccine-associated primary varicella infection in an immunocompetent host. BMJ Case Reports 2017, 2017. 52. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Answer to December 2017 Photo Quiz. Journal Of Clinical Microbiology 2017, 55:3568. 53. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Photo Quiz: Peripheral Blood Smear in a Ugandan Refugee. Journal Of Clinical Microbiology 2017, 55:33133314. Scholarship In Press 54. Hoff E, Adams Z, Dasgupta A, Goddard D, Sheth S, Meyer J. Reproductive Health Justice and Autonomy: A systematic review of pregnancy planning intentions, needs, and interventions among women involved in US criminal justice systems. J Women’s Health
14

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P16ageP1aogfe310of 30
Exhibit B – Declaration of Dr. Elizabeth Y. Chiao

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P17ageP2aogfe320of 30

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

Declaration of Dr. Chiao
I. Background and Qualifications
1. I am Dr. Elizabeth Chiao, Professor of Medicine, Division of Infectious Diseases and Health Services, Research, Baylor College of Medicine. I am board certified by the American Board of Internal Medicine (ABIM) in Medical Oncology and Infectious Diseases. I am licensed to practice medicine in the state of Texas, license number L8647. I earned my Doctor of Medicine from Cornell University Medical College, and Master Degree in Public Health from Yale University School of Medicine, Department of Epidemiology and Public Health. I completed my residency at the University of Utah, and completed Fellowships in Medical Oncology at Memorial Sloan Kettering, and in Infectious Diseases at Baylor College of Medicine.
2. I have worked for the past 14 years as Faculty in the Division of Infectious Diseases and Health Services Research at Baylor College of Medicine. My research interests focus on the epidemiology, prevention, treatment and outcomes of HIV-related comorbidities and Cancers, as well as health disparities for people living with HIV.
3. In the past 14 years I have received continuous funding by the National Institutes of Health (NIH) starting with an NCI funded K23 (K23 CA124318) in 2006. I subsequently received an NCI funded R01 (R01CA163103) entitled “The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors,” and a second R01 (R01CA206476) “(PQ 3) Identifying Novel Pharmacologic Risk factors for Common Non-AIDS Defining Cancers in Individuals with Well-controlled HIV Infection.” I am additionally a co-investigator on multiple national NIH funded projects. I also hold several leadership positions in the AIDS Malignancy Consortium (AMC): I am 1) the Baylor College of Medicine principal investigator for the AMC, 2) the co-chair of AMC 087: a phase 1 protocol of Cabozantinib for the treatment of advanced solid tumors in HIV-infected individuals (currently enrolling), and 3) the
1

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P18ageP3aogfe330of 30
chair of the Solid Tumor Working Group in the AMC. Furthermore, I collaborate with U.S.-based and international researchers and I have been appointed to several national and international committees including the Board of Scientific Advisers subcommittee for HIV-related malignancies, scientific merit review committees for South Africa and the organizing committee for the International HIV Malignancy Conference. My clinical work as the clinical director of both the Anal Dysplasia and Medical Oncology clinics at the Thomas Street Health Center were recognized with a Baylor Clinician STAR award in 2017. Finally, I lead an active mentoring program where several mentees have successfully applied for and obtained career development awards and other various research funding. In summary, I am a clinician researcher whose goals are to improve survival and quality of life for people living with HIV (HIV), and individuals with virally mediated cancer by improving cancer prevention, screening and treatment outcomes.
4. I have written and published extensively on the topics of infectious diseases, and the epidemiology of people living with HIV (PLWH), including papers about PLWH involved in the criminal justice system. In particular, I have published in leading peer-reviewed journals on the health disparities and the ethical medical care for PLWH for people in detention; disparities in the outcomes of AIDS-related Kaposi Sarcoma; and how to improve screening for Human Papillomavirus-related cancers in PLWH to take just three examples.
5. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
6. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
7. I have not testified as an expert at trial or by deposition in the past four years.
8. This declaration is substantially the same as a sworn declaration submitted by Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut, in federal court in New York. CITE. Dr. Meyer is board certified in Internal Medicine, Infectious Diseases and Addiction Medicine.
9. I have reviewed thoroughly Dr. Meyer’s report, and the sources cited in it. Based on my own independent training, expertise, and experience in epidemiology and infectious diseases, I fully agree with Dr. Meyer’s analysis of the dangers that the novel corona posed in New York City-area jails, and believe that they are applicable, as described below, to the Harris County jail.
II. Heightened Risk of Epidemics in Jails and Prisons
10. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to
2

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P19ageP4aogfe340of 30
individuals who become infected. There are several reasons this is the case, as delineated further below.
11. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails 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. Prison health is public health.
12. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are 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. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
13. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
14. Reduced prevention opportunities: 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 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 alcoholbased 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 is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
3

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P20ageP5aogfe350of 30
15. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and illequipped 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.
16. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 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.
17. 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 outbreaks of infectious diseases. To prevent transmission of dropletborne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
18. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
19. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
20. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the
1 Active case finding for communicable diseases in prison, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
4

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P21ageP6aogfe360of 30
care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
21. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public. Furthermore, rapid spread of infectious diseases among the inmates can often worsen the epidemic outside of the incarcerated population because staff are more likely to be infected and spread the disease to their families and the wider population.
22. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
23. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but recent data from China has demonstrated that almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms, and it is possible that transmission can occur for weeks after their symptoms resolve.5 In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the
2 Influenza Outbreaks at Two Correctional Facilities—Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David. M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deathsare-few/. 4 This whole section draws from Broks J. Global Epidemiology and Prevention of COVID19, COVID-10 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-toknow-in-corrections. 5 Du Z, Xu X, Wu Y, Wang L, Cowling BJ, Ancel Meyers L. Serial interval of COVID-19 among publicly reported confirmed cases. Emerg Infect Dis. 2020 Jun [date cited]. https://doi.org/10.3201/eid2606.200357
5

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P22ageP7aogfe370of 30
virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for over a year to the general public. Antiviral medications are currently in testing but not yet FDA-approved. People in prison and jail will likely have even less access to these novel health strategies as they become available.
24. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.6 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.7 Among those individuals, the risk of poor outcomes, included the need for mechanical intervention is over 20%. Death in COVID-19 infection is usually due to pneumonia, and sepsis, and would occur between approximately 1-4% of the popultion. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
25. The care of people who are infected with COVID-19 depends on how seriously they are ill.8 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. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID19 becomes more widespread in communities.
26. In order to prevent overwhelming the local health systems, aggressive containment and COVD-19 prevention is of utmost importance. To this end, certain states and jurisdictions, including Harris County have mandated COVID-19 prevention strategies, such as “shelter in place” or “stay at home”, which have gone beyond containment and mitigation. Jails and prisons already have difficulty with containment because it requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. However, even with these efforts, it is nearly impossible for
6 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/summary.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fsummary.html. 7 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, The Lancel (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext. 8 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2002), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
6

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P23ageP8aogfe380of 30
jails and prisons to provide the atmosphere of “shelter in place” or “stay at home” social distancing, given the number of individuals that work in and are housed in these facilities in the current system. Decreasing the population will help the prison facilities to develop “isolation” strategies that can nearly mirror Harris County mandates.
27. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.9 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place.10 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in the Harris County Jail
28. In preparing this report I have spoken with Dr. Marc Robinson, who has worked as a physician in the medical clinic in the jail and therefore has first-hand knowledge of the medical facilities and jail conditions in the Harris County Jail. Based on my conversation with Dr. Robinson, I understand that the medical facilities in the jail are rudimentary and are not equipped to care for anyone with an acute illness. The Harris County Jail cannot do anything other than administer oxygen, and supplies are limited. Thus, anyone whose symptoms are more severe than mild would be sent to the local hospital. This would cause significant strain on both the local hospital and jail/prison staff. Because people wait for administrative disposition, and are housed/ live in close quarters, and because of the number of people detained of the Harris County Jail, it is impossible for inmates to comply with local health mandates and CDC recommendations, including social distancing. Moreover, because hundreds of people cycle in and out of the jail every day, it is virtually impossible to create stable units of people isolating those infected with those who are uninfected, which is necessary to contain infection.
29. Based on my conversations with Ms. Sarah Wood, Policy Director for the Harris County Office of the Public Defender, and Dr. Robinson, my experience working on public health and Infectious Diseases, and my review of the relevant literature, it is my professional judgment that the Harris County Jail is dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
9 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases-70000-prisoners-ascoronavirus-cases-surge-idUSKBN20W1E5. 10 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-preparecoronavirus-federal-prisons-providing-significant/story?id=69433690.
7

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P24ageP9aogfe390of 30
30. Above and beyond the inability to prevent the spread of COVID-19 and increased risk for severe illness and inability to care for inmates in jail and prisons, the delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
31. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
32. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
33. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
34. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
35. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID19.
36. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be illequipped to identify, monitor, and treat a COVID-19 epidemic.
37. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
38. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
8

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P25ageP1a0goef1300of 30
V. Conclusion and Recommendations 39. For the reasons above, it is my professional judgment that individuals placed in the Harris County Jail are at a significantly higher risk of infection with COVID-19 as compared to the population in the community, given the procedural and housing conditions in the facilities, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death. 40. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for who both are housed and work within those facilities and for the community at large. 41. From a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in the Harris County Jail at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release, and that a careful evaluation of procedural and housing guidance is created for those who remain in the facilities during the “stay at home” mandate, and possibly until the epidemic is contained. 42. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune systems, cancer, and diabetes) or who are over the age of 60.11 They are in even greater danger in these facilities, including a meaningfully higher risk of death. 43. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. 44. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.
11 Report of the WHO-China Joint Mission of Coronavirus Disease 2019 (COVID-19) (Feb. 16-24 2020), available at https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf.
9

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P26ageP1a1goef1310of 30 I declare under penalty of perjury that the foregoing is true and correct to the best of my ability.

_______________________ Name

3/27/2020________ Date

10

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P27ageP1a2goef1320of 30 EXHIBIT A
Curriculum Vitae
11

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P28ageP1a3goef1330of 30
Personal statement My research focuses on HIV clinical management, HIV co-morbidity research, HIV malignancy clinical management, and virally-mediated cancer research, with an emphasis on evaluating the epidemiology of HIVassociated cancers, cancer prevention and outcomes. My work involves both utilizing large databases and cohorts to improve cancer prevention strategies for HIV-infected individuals as well as clinical trial/clinical research elucidating the prevention and treatment of HIV-related cancers. My training in Epidemiology, HIV, Oncology, and Infectious Diseases make me uniquely qualified to conduct research in HIV-related and other viral malignancies. My group and I were the first to show the effect of cumulative measurements of combined antiretroviral therapy (cART) on multiple different HIV-associated cancers utilizing VA administrative databases. We have over 20 publications on HIV-associated malignancies focusing on elucidating the impact of HIV-related factors on the incidence of HIV-related malignancies in high impact journals such as JAMA, the Journal of Clinical Oncology, Clinical Infectious Diseases, and the Journal of Acquired Immune Deficiency Syndromes. In the past 12 years I have received continuous funding by the National Institutes of Health (NIH) starting with an NCI funded K23 (K23 CA124318) in 2006. I subsequently received an NCI funded R01 (R01CA163103) entitled “The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors,” and a second R01 (R01CA206476) “(PQ 3) Identifying Novel Pharmacologic Risk factors for Common NonAIDS Defining Cancers in Individuals with Well-controlled HIV Infection.” I am additionally a co-investigator on multiple national NIH funded projects. I also hold several leadership positions in the AIDS Malignancy Consortium (AMC): I am 1) the Baylor College of Medicine principal investigator for the AMC, 2) the co-chair of AMC 087: a phase 1 protocol of Cabozantinib for the treatment of advanced solid tumors in HIV-infected individuals (currently enrolling), and 3) the chair of the Solid Tumor Working Group in the AMC. Given my research productivity and expertise, I was recently selected to co-lead the Mechanisms of Cancer Evolution Scientific Working Group in the Dan L. Duncan Cancer Center. Furthermore, I collaborate with U.S.-based and international researchers and I have been appointed to several national and international committees including the Board of Scientific Advisers subcommittee for HIV-related malignancies, scientific merit review committees for South Africa and the organizing committee for the International HIV Malignancy Conference. My clinical work as the clinical director of both the Anal Dysplasia and Medical Oncology clinics at the Thomas Street Health Center were recognized with a Baylor Clinician STAR award in 2017. Finally, I lead an active mentoring program where several mentees have successfully applied for and obtained career development awards and other various research funding. In summary, I am a clinician researcher whose goals are to improve survival and quality of life for HIV-infected individuals, and individuals with virally mediated cancer by improving cancer prevention, screening and treatment outcomes.
I. GENERAL BIOGRAPHICAL INFORMATION
A. Personal 1. Name: Elizabeth Yu Chiao, MD, MPH 2. Date of Birth: 7/13/1969; citizenship: USA 3. Home Address: 416 Byrne St. Houston, TX 77009 4. Office Address: Houston VA Medical Center (152), 2002 Holcombe Blvd, Houston, TX 77030 5. Office Phone Number: 713-440-4485 6. Email: echiao@bcm.edu
B. Education: 1. Undergraduate Education: a. Cornell University, Ithaca, NY, School of Arts, (Biology and Society), May 1990
2. Medical Education or Graduate Education (with thesis/dissertation title, advisor): a. Yale University School of Medicine, New haven, CT, Department of Epidemiology and Public
Health, Master Degree in Public Health, December 1993, Graduated with Distinction, Thesis Title: Survival Analysis of Connecticut AIDS Cases reported through 1990 b. Cornell University Medical College, New York, NY, Doctor of Medicine, May 1998
3. Postgraduate Training: residency, fellowship (clinical or research), with source of support and advisor, if relevant):
Page 1 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P29ageP1a4goef1340of 30
a. University of Utah, Salt Lake City, UT, Internal Medicine Department, Resident House staff, June 1998-2001
b. Postgraduate Training-Fellowship: Memorial Sloan Kettering Cancer Center, New York, NY, Department of Medicine, Medical Oncology Clinical Research Fellow, Advisor: Susan Krown, July 2002-2004
c. Postgraduate Training-Fellowship: Baylor College of Medicine, Houston, TX, Department of Medicine, Infectious Disease Fellow: July 2004-April 2005

C. Academic Appointments 1. Current Faculty position at BCM: a. Professor, Internal Medicine, Infectious Diseases, Health Services Research Section, Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 7/2018-present b. Associate Professor, Internal Medicine, Infectious Diseases, Health Services Research Section, Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 3/2014-7/2018 c. Assistant Professor, Internal Medicine, Infectious Diseases, Health Services Research Section Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 1/2006-3/2014 d. Instructor, Internal Medicine, Infectious Diseases, 4/2005-1/2006

2. Previous faculty position at other institutions: a. University of Utah, Salt Lake City, UT, Instructor, Department of Medicine. Attending physician in
the HIV inpatient and outpatient services. Supervise and teach Internal Medicine house staff; 7/2001-7/2002

D. Other advanced training/experience: 1. Formal Sabbatical leave: a. None

2. Other specialized training following academic appointment: a. Trained high-resolution anoscopy (HRA). UCSF HRA training program 4/05

E. Other information: 1. Honors or Awards: titles, dates: a. Heather Belsey Faculty Award, University of Utah 2002 b. MPH with Distinction 1993 c. Martin Luther King Community Service Award, Yale Medical School (1992) d. Outstanding Reviewer Annals Internal Medicine 2007 e. Outstanding Reviewer Clinical Infectious Diseases Award 2008 f. NIH Loan Repayment Recipient 2007-2011 g. Baylor College of Medicine Star Clinician Award 2017 h. Co-Leader Mechanisms of Cancer Evolution, Dan L. Duncan NCI designated Cancer Center 2019

F. Board Certification:

1. Texas State License Number:

Physician: L8647 exp: 5/31/2021

2. New York State License Number:

Physicians and Surgeons: 224503-1

3. ABIM Board Certification

a.

Internal Medicine Boards:

Certified 08/2001 Exp: 8/2011

b.

Internal Medicine Subspecialty Oncology: Certified 11/2004 Exp: 11/2024

c.

Internal Medicine Subspecialty Inf Dis:

Certified 11/2006 Exp: 11/2026

4. Other non-academic positions: a. Board Member Voices Breaking Boundaries Non-Profit
Page 2 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P30ageP1a5goef1350of 30
b. Board Member of Univerity of Houston’s Friends of Women’s, Gender and Sexuality Studies
II. RESEARCH INFORMATION
A. Research Support
Current Research Funding:
1. (PQ3) Identifying Novel Pharmacologic Risk factors for Common Non-AIDS Defining Cancers in Individuals with Well-controlled HIV Infection a. National Institute of Health b. Principal Investigator c. June 2016-March 2020 d. $1,968,930 e. 1R01 CA206476-01
2. The Effectiveness of High Resolution Microendoscopy (HRME) in High Grade Intraepithelial Lesions (HSIL) Diagnosis for People Living with HIV a. National Institute of Health b. Co-Principal Investigator c. November 2018-November 2023 d. $2,100,000 e. R01 CA232890
3. AIDS Cancer Specimen Resource a. National Institute of Health, NCI b. Co-Investigator c. September 2013- December 2018 d. $1,747,386 over 5 years e. NIH UM1CA181255 f. PI: M. McGrath
4. Texas NeuroAIDS Repository a. National Institute of Health, NIMH b. Co-Investigator (Baylor Principal Investigator) c. February 2018-February 2023 d. $650,000 over 5 years e. U24MH100930 f. PI: B. Gelman
5. Annual Anal Sampling using DNA Screening to Identify Men Who have Sex with Men at Increased Risk for Anal Cancer a. National Institute of Health, NCI b. Co-investigator c. Sep 2017 - Aug 2022 d. $380,613 e. R01CA215403-01A1 f. PI: A. Nyitray
6. AIDS Malignancy Clinical Trial Consortium a. National Institute of health, NCI b. Co-investigator (Baylor Principal Investigator) c. August 2015- August 2020 d. $ 453,000 e. UM1CA121974 f. PI: R. Mitsuyasu
7. Immunogenetic determinants of HPV-related head and neck cancer in Veterans a. MEDVAMC b. Co-Principal Investigator c. April 2018 - March 2020 d. $148,169
Page 3 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P31ageP1a6goef1360of 30
e. VA 1 I01 BX004183-01A1 8. Determining the accuracy of self- and partner anal exams for detecting anal abnormalities
a. National Institutes of Health, NCI b. Co-investigator c. Sept 2018-Aug 2023 d. $ 1,100,173 e. R01CA232892-01 f. PI: A. Nyitray 9. Optimizing Age-Based Anal Cancer Screening Among People Living with HIV Using Decision Analytic Modeling
a. National Institutes of Health, NCI b. Co-Investigator c. February 2019-February 2024 d. $200,000 e. 1R01CA232888-01A1 f. PI: A. Deshmukh
10. A Randomized Controlled Trial of Mail-Self Stamped HPV Testing to Increase Cervical Cancer Screening Participation Among Minority/Underserved Women in an Integrated Safety Net Healthcare System a. National Institutes of Health, NIMHD b. Co-Investigator c. April 2019- April 2024 d. $140,000 e. R01 MD013715-01 f. PI: J. Montealegre
Past Research Funding: 1. Pilot Study of Valganciclovir in Patients with Classic, non-HIV-associated Kaposi’s Sarcoma
a. Roche Pharmaceuticals b. Fellow c. July 2004-July 2010 d. $47,000 e. Pharmaceutical Grant 2. The Epidemiology of HIV-related Anal Dysplasia a. Baylor Seed Fund Institutional Grant b. Principal Investigator c. July 2007-July 2008 d. $25,000 (project support only) 3. Risk of Monoclonal Gammopathy of Undetermined Significance (MGUS) and Subsequent Multiple Myeloma (MM) among African American and White Veterans in the United States a. Contract b. National Cancer Institute c. July 2007-July 2008 d. $50,000 (project support only) 4. HPV-related cancers in HIV infected veterans a. Pilot funds from HSR&D b. Baylor College of Medicine c. Principal Investigator d. January 2009-December 2009 e. $10,000 5. The Epidemiologic Effects of HAART on HIV-related Anal Cancer and Anal Dysplasia a. K23 Patient-Oriented Mentored Career Development Award b. National Institute of Cancer, NIH c. Principal Investigator d. July 2006-June 2011 e. $637,500 over 5 years (80% salary and project funds)
Page 4 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P32ageP1a7goef1370of 30
6. NIH 1 K23 CA124318-06 K23 Patient-Oriented Mentored Career Development Award Supplement a. National Institute of Cancer, NIH b. Principal Investigator c. September 2009-August 2011 d. $100,000 over 2 years (project support only)
7. Behavioral Strategies to Accrue and Retain Diverse Underserved Populations in HIV Related Malignancy Clinical Trials a. Supplement to U10CA139519-01A1 b. Co-Investigator c. September 2011-September 2013 d. $80,000
8. AIDS Cancer Specimen Registry (ACSR) Pilot Funds a. Pilot Funds from the ACSR b. UCSF c. Principal Investigator d. September 2009- September 2013 e. $75,000 (project support only)
9. The Effect of HAART on the Epidemiology and Molecular Pathogenesis of HIV-related Hodgkin Lymphoma a. Pilot Funds from the AIDS Malignancy Consortium (AMC) b. Principal Investigator c. May 2011-June 2014 d. $65,000 e. NIH P30 CA125123
10. The Feasibility of Self/Partner-Assisted Digital Anal Exams for Cancer Screening a. National Cancer Institute b. Co-investigator c. September 2013- September 2016 d. $125,000 e. NIH R21 CA181901
11. The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors a. National Institutes of Health, NCI b. Principal Investigator c. September 2011- August 2016 d. $120,000 e. NIH 1 R01 CA163103 (S1)
12. Risk and Predictors of Esophageal and Esophagogastric Junction Adenocarcinomas in HIVInfected Individuals
a. National Institute of Health, NIAID b. Co-investigator c. June 2016-December 2018 d. $475,487 e. P30AI027767 13. Supplement for AMC 084: The Effectiveness of Screening HIV-Infected Women for Anal Cancer
Precursors a. National Institute of Health, NCI b. Co-investigator c. Sep 2017 - Aug 2019 d. $193,793 e. UM1CA121974
1. National Scientific Participation:
a. Journal Review editorial boards: a. Ad-hoc journal reviewer, Antiviral Therapy, June 2006-present b. Ad-hoc journal reviewer, Annals Internal Medicine, July 2007-present
Page 5 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P33ageP1a8goef1380of 30
c. Ad-hoc journal reviewer, Clinical Infectious Disease, August 2007-present d. Ad-hoc journal reviewer, International Journal of Cancer, July 2011-present e. Ad-hoc journal reviewer, International Journal of Infectious Diseases, May 2013-present f. Ad-hoc journal reviewer, JAIDS, March 2006-present
b. Review panels: a. The Ontario HIV Network, grant review July 2006 b. Reviewer, Ad Hoc, American Re-investment and Renewal Acct (ARRA) AIDS Cancer Vaccines, NCI, NIH, August, 2009. Bethesda, MD c. Reviewer, Ad Hoc, D43 AIDS Malignancy Training Grants in Africa, NCI, NIH February, 2010. Bethesda, MD d. Reviewer, Ad Hoc, NCI: RFA CA 11-011 and 012 “Research Answers to NCI’s Provocative Questions”, March 26-28, 2012 e. Reviewer, Ad Hoc, NCI: J subcommittee-Career Development Awards, March, 2013 f. Reviewer, Ad Hoc, NCI J subcommittee-Career Development Awards, July, 2013 g. Reviewer, Ad Hoc, NCI J subcommittee-Career Development Awards, November, 2013 h. Reviewer, Ad Hoc, NIAID, HIV and Aging Provocative Questions, November, 2013 i. Reviewer, Ad Hoc, NIAID, Special Emphasis Panel, January, 2014 j. Reviewer, Ad Hoc, NCI: Subcommittee - HIV and AIDS Malignancy September, 2017 k. Reviewer Ad Hoc, NIAID HIV and Aging Special Emphasis Panel, March 2018 l. Reviewer, NCI U54 Prevention of HPV-related Cancers in HIV-infected individuals: United States-Latin American-Caribbean Clinical Trials Network: Partnership Centers Special Emphasis Panel, April 2019
c. Professional societies: i. American Society of Clinical Oncology, 2004-current ii. Infectious Diseases Society of America, 2007-current
d. National Committees i. ACTG co-infections and malignancies subcommittee 2011-2014 ii. ACTG 5298, “A Randomized, Double-Blinded, Placebo-Controlled, Phase 3 Trial of the Quadrivalent HPV Vaccine to Prevent Anal Human Papillomavirus Infection in HIV-Infected Men and Women” iii. NCI “Provocative Questions: AIDS Malignancy” Committee March, 2014 iv. AMC Steering Committee, Member 2016-2018 v. Chair, AMC Non-AIDS Defining Cancer Committee (April 2017-present) vi. International Conference of HIV Malignancies (ICMH) meeting organizing committee (2017current)
vii. NCI Board of Scientific Advisers, HIV Malignancies, June 2017 viii. Scientific Steering Committee of University of Washington /Fred Hutchinson CFAR, March 2018 ix. 2018 Eurogin Program Committee, March 2018
x. External Advisory Board Weil/Cornell CFAR, February 2019
e. Invited lectures, presentations, research seminars: a. International i. Chiao, E. Head and Neck Cancers in U.S. Veterans Living in HIV, IAS Mexico City 7/23/2019 ii. Chiao, E. Screening HIV-infected Women for Anal Cancer Precursors, Eurogin, Salzburg, Austria 6/10-6/13/2016 iii. Chiao, E. Screening People Living with HIV for Anal Cancer, Eurogin, Lisbon, Portugal 12/3-12/15/2018
b. National 1) Chiao, E. Co-Chair: International Conference on HIV-related Malignancies, Outcome Disparities of HIV-associated Malignancies, Bethesda, MD, October 21-22, 2019
Page 6 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P34ageP1a9goef1390of 30
2) Chiao, E. A Multi-Disciplinary Approach to Optimizing and Advancing Cancer Care for People Living with HIV, CFAR Seminar, University of Washington, Seattle WA July 11, 2019
3) Chiao, E. Co-Chair: International Conference on HIV-related Malignancies, Epidemiology of HIV-associated Malignancies, Bethesda, MD, October 22-24, 2017
4) Chiao, E. Co-Chair: Conference on Retroviruses and Opportunistic Infections (CROI): HPV-related malignancies, February 28-March 3, 2013, Atlanta, GA
5) Chiao, E. Chair person: AACR Annual Meeting, HIV Malignancies: Current Dilemmas and Future Directions, March 31-April 4, 2012, Chicago, IL.
6) Chiao, E. HIV- Related Anal Cancer and Cancer Precursors in the HAART Era, Association of Nurses in AIDS Care yearly meeting, September 26, 2008.
c. Local 1. Chiao, E. MD Anderson Cancer Center Institutional Grand Rounds: HIV and Maligncies, 5/18/2018 2. Chiao, E. Screening HIV-infected Individuals for Anal Cancer Precursors: What is the Evidence. Southern AIDS Education and Training Conference, 2/20/2018 3. Chiao, E. Viral and Molecular Oncogenesis Program meeting: "Evidence for screening HIV-infected women for anal cancer precursors”, 5/18/2011, 5/15/2016. 4. Chiao, E. TSH-HCHD HIV Conference 2017: Anal Cancer and HIV, 4/30/2017. 5. Chiao, E. CFAR AIDS Research Forum: Human Papilloma Virus and Cancer in HIVpositive Patients, 8/18/17.
2. Publications
a. Full papers in Peer Review Journals: I. Published
1) Clark E, Royse KE, Dong Y, Chang E, Raychaudhury S, Kramer J, White DL, Chiao E. Stable Incidence and Poor Survival for HIV-Related Burkitt Lymphoma Among the U.S. Veteran Population During the Anti-Retroviral Era. J Acquir Immune Defic Syndr. 2020 Jan 27. doi: 10.1097/QAI.0000000000002303. [Epub ahead of print] PubMed PMID: 31977597.
2) Stier EA, Abbasi W, Agyemang AF, Valle Álvarez EA, Chiao EY, Deshmukh AA. Recurrence of Anal High-Grade Squamous Intraepithelial Lesions among Women Living with HIV. J Acquir Immune Defic Syndr. 2020 Jan 16. doi: 10.1097/QAI.0000000000002304. [Epub ahead of print] PubMed PMID: 31977596.
3) Nyitray AG, DʼSouza G, Stier EA, Clifford G, Chiao EY. The Utility of Digital Anal Rectal Examinations in a Public Health Screening Program for Anal Cancer. J Low Genit Tract Dis. 2020 Jan 16. doi: 10.1097/LGT.0000000000000508. [Epub ahead of print] PubMed PMID: 31972661.
4) Sandulache VC, Wilde DC, Sturgis EM, Chiao EY, Sikora AG. A Hidden Epidemic of "Intermediate Risk" Oropharynx Cancer. Laryngoscope Investig Otolaryngol. 2019 Oct 17;4(6):617-623. doi: 10.1002/lio2.316. eCollection 2019 Dec. Review. PubMed PMID: 31890879; PubMed Central PMCID: PMC6929570.
5) Sandulache VC, Lei YL, Heasley LE, Chang M, Amos CI, Sturgis EM, Graboyes E, Chiao EY, Rogus-Pulia N, Lewis J, Madabhushi A, Frederick MJ, Sabichi A, Ittmann M, Yarbrough WG, Chung CH, Ferrarotto R, Mai W, Skinner HD, Duvvuri U, Gerngross P, Sikora AG. Innovations in risk-stratification and treatment of Veterans with oropharynx cancer; roadmap of the 2019 Field Based Meeting. Oral Oncol. 2019 Oct 21:104440. doi: 10.1016/j.oraloncology.2019.104440. [Epub ahead of print] PubMed PMID: 31648864.
6) White, DL; Oluyomi, A; Royse, K,; Dong, Y, Nguyen, H; Chang, E, Richardson, P; Jiao, L; Garcia, J.; Kramer, JR.; Thrift, A, Chiao, EY, Incidence of AIDS-related Kaposi Sarcoma in all 50 United States from 2000 to 2014. JAIDS. 2019 Aug 1;81(4):387-394. doi: 10.1097/QAI.0000000000002050. PMID: 31242141
7) Stier, A., Lensing,S., Darragh, M., Deshmukh, A., Einstein, M., Palefsky, J., Jay,N. BerryLawhorn, J.M., Wilkin, T., Wiley, D., Barroso, L., Cranston, R., Levine, R., Guiot, H., French, A., Citron, D., Rezaei, M.K., Goldstone, S., Chiao, E. Prevalence of and risk factors for anal high-
Page 7 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P35ageP2a0goef2300of 30
grade squamous intraepithelial lesions in women living with HIV. Clin Infect Dis. 2019 Jul 11. pii: ciz408. doi: 10.1093/cid/ciz408. Epub ahead of print. PMID: 31292602 8) Kramer J, Hartman C, White DL, Royse K, Richardson P, Thirft A, Raychaudhury S, Desiderio R, Sanchez D, Chiao E. Validation of HIV cohort identification using automated clinical data in the Department of Veterans Affairs. HIV Medicine. 2019 May 26. doi: 10.1111/hiv.12757. Epub ahead of print. PMID: 31131549 9) El-Mallawany N, Kamiyango W, Villier J, Peckham-Gregory E, Scheurer M, McAtee C, Allen C, Kovarik C, Frank D, Eason A, Caro-Vegas C, Chiao E, Schutze G, Ozuah N, Mehta P, Kazembe P, Dittmer D. Kaposi Sarcoma Herpesvirus Inflammatory Cytokine Syndrome (KICS)-like Clinical Presentation in HIV-Infected Children in Malawi. Clin Infect Dis. 2019 Mar 22 pii: ciz250. doi: 10.1093/cid/ciz250. Epub ahead of print. PMID: 31102440. 10) Thrift AP, Kramer JR, Hartman CM, Royse K, Richardson P, Dong Y, Raychaudhury S, Desiderio, R, Sanchez D, Anandasabapathy S, White DL, Chiao EY. Risk and Predictors of Esophageal and Stomach Cancers in HIV-infected Veterans: A Matched Cohort Study. J Acquir Immune Defic Syndr. 2019 Mar 29. Epub ahead of print. PMID: 30939533 11) Harms A, Kansara S, Stach C, Richardson P, Chen G, Lai S, Sikora AG, Parke R, Donovan D, Chiao E, Skinner H, Sandulache VC. Swallowing Function in Survivors of Oropharyngeal Cancer Is Associated With Advanced T Classification. Ann Otol Rhinol Laryngol 2019 Mar 27:3489419839091. doi: 10.1177/0003489419839091. Epub ahead of print PMID:30913911 12) Fokom Domgue J, Messick C, Milbourne A, Guo M, Salcedo MP, Dahlstrom KR, Chiao EY, Deshmukh AA, Sturgis EM, Schmeler KM. Prevalence of high-grade anal dysplasia among women with high-grade lower genital tract dysplasia or cancer: Results of a pilot study. Gynecologic Oncology. 2019 Mar 1. Doi: 10.1016/j.ygyno. Epub ahead of print. PMID: 30827725 13) Kahn JA, Belzer M, Chi X, Lee J, Gaur AH, Mayer K, Martinez J, Futterman DC, Stier EA, Paul ME, Chiao EY, Reirden D, Goldstone SE, Ortiz Martinez AP, Cachay ER, Barroso LF, Da Costa M, Wilson CM, Palefsky JM; AIDS Malignancy Consortium and Adolescent Medicine Trials Network for HIV/AIDS Interventions. Pre-vaccination prevalence of anogenital and oral human papillomavirus in young HIV-infected men who have sex with men. Papillomavirus Res. 2019 Jan 15;7:52-61. doi: 10.1016/j.pvr.2019.01.002. Epub ahead of print. PMID: 30658128 14) Badr, H, Herbert, K, Chhabria, K, Sandulache, V, Bobby R, Chiao, E, Wagner, T. Couple-Based Self-Management for Head and Neck Cancer: Results of A Randomized Pilot Trial. Cancer. 2018 Dec 6. doi: 10.1002/cncr.31906. PMID: 30521075 15) Hicks, JT, Hwang, LY, Barnaiuk ,S, White, M, Chiao, EY, Onwuka, N, Ross, MW, Nyitray, AG. Factors associated with self-reported anal cancer screening history in men who have sex with men. Sex Health. 2018 Dec 6. Doi: 10.1071/SH18D39. PMID: 30517839 16) El-Mallawany,N, Villiera, J, Kamiyango, W, Peckham-Gregory, E, Scheurer, M, Allen,C, McAtee, C, Legarreta, A, Dittmer, D, Kovarik, C, Chiao, E, Martin,S, Ozuah,N, Mehta,P, Kazembe, P. Endemic Kaposi Sarcoma in HIV-Negative Children and Adolescents: An Evaluation of Overlapping and Distinct Clinical Features in Comparison with HIV-Related Disease. Infectious Agents and Cancer. Infect Agent Cancer.2018 Nov9; 13:33. doi:10.1186/s1307-018-0207-4. eCollection 2018. PMID: 30455728; PMCID: PMC6230225 17) Richardson P, Kansara S, Chen G, Sabichi A, Sikora A, Parke R, Donovan D, Chiao E, Sandulache V. Treatment Patterns in Veterans with Laryngeal and Oropharyngeal Cancer and Impact on Survival. Laryngoscope Investig Otolaryngol. 2018 Aug 9;3(4):275-282. doi: 10.1002/lio2.170. eCollection 2018 Aug. PMID: 30186958 ; PMCID: PMC6119785 18) Suk,R, Mahale,P, Sonawane, P, Sikora,A, Chhatwal, J, Schmeler, K, Sigel, K, Cantor, S, Chiao, E* , Deshmukh, A*. Trends in risks for second primary cancers associated with index Human Papillomavirus-Associated cancers. JAMA Network Open. 2018;1(5) e181999. doi:10.1001/jamanetworkopen.2018.1999. PMID: 30646145 ; PMCID: PMC6324459 19) Bender Ignacio R, Lin L, Rajdev L, Chiao E. Evolving Paradigms in HIV Malignancies: Review of Ongoing Clinical Trials. Journal of the National Comprehensive Cancer Network : JNCCN. 2018;16(8):1018-1026. doi:10.6004/jnccn.2018.7064. PMID: 30099376; PMCID: PMC6109631 20) Oseso LN, Chiao EY, Ignacio RAB. Evaluating Antiretroviral Therapy Ini tiation in HIV-Associated Malignancy: Is There Enough Evidence to Inform Clinical Guidelines? Send to J Natl Compr Canc Netw. 2018 Aug;16(8);927-932. doi: 10.6004/jnccn.2018.7057. PMID: 30099368 ; PMCID: PMC6207434
Page 8 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P36ageP2a1goef2310of 30
21) Chang E, Sabichi AL, Kramer JR, Hartman C, Royse KE, White DL, Patel NR, Richardson P, Yellapragada SV, Garcia JM, Chiao EY. Nivolumab Treatment for Cancers in the HIV-infected Population. J Immunother. 2018 Jul 16. doi: 10.1097/CJI.0000000000000240. [Epub ahead of print] PMID: 30020193 ; PMCID: PMC6128753
22) Chang E, Mapakshi SR, Mbang P, El-Mallawany NK, Kramer JR, White DL, Chiao EY. The impact of protease inhibitors on HIV-associated Kaposi sarcoma incidence: a systematic review. J Acquir Immune Defic Syndr. 2018 Jul 6. doi: 10.1097/CJI.0000000000000240 [Epub ahead of print.] PMID: 29985803
23) Deshmukh AA, Shirvani SM, Likhacheva A, Chhatwal J, Chiao EY, Sonawane K. The Association Between Dietary Quality and Overall and Cancer-Specific Mortality Among Cancer Survivors, NHANES III. JNCI Cancer Spectr. 2018 Apr;2(2):pky022. doi: 10.1093/jncics/pky022. Epub 2018 Jun 5. PMID: 29905226 ; PMCID: PMC5989369
24) Thrift AP, Chiao EY. Are Non-HIV Malignancies Increased in the HIV-Infected Population? Curr Infect Dis Rep. 2018 May 26;20(8):22. doi: 10.1007/s11908-018-0626-9. Review. PMID: 29804238
25) Wilkin TJ, Chen H, Cespedes MS, Leon-Cruz JT, Godfrey C, Chiao EY, Bastow B, WebsterCyriaque J, Feng Q, Dragavon J, Coombs RW, Presti RM, Saah A, Cranston RD. A randomized, placebo-controlled trial of the quadrivalent HPV vaccine in HIV-infected adults age 27 or older: AIDS Clinical Trials Group protocol A5298. Clin Infect Dis. 2018 Apr 5. doi: 10.1093/cid/ciy274. [Epub ahead of print] PMID: 29659751 ; PMCID: PMC6186857
26) Cranston RD, Cespedes MS, Paczuski P, Yang M, Coombs RW, Dragavon J, Saah A, Godfrey C, Webster-Cyriaque JY, Chiao EY, Bastow B, Wilkin T; ACTG 5298 Study Team. High Baseline Anal Human Papillomavirus and Abnormal Anal Cytology in a Phase 3 Trial of the Quadrivalent Human Papillomavirus Vaccine in Human Immunodeficiency Virus-Infected Individuals Older Than 26 Years: ACTG 5298. Sex Transm Dis. 2018 Apr;45(4):266-271. doi: 10.1097/OLQ.0000000000000745. PMID: 29528986; PMCID: PMC5868482
27) Hwang JP, Ahmed S, Ariza-Heredia EJ, Duan Z, Zhao H, Schmeler KM, Ramondetta L, Parker SL, Suarez-Almazor ME, Ferrajoli A, Shih YT, Giordano SH, Chiao EY. Low rate of cervical cancer screening among women with hematologic malignancies after stem cell transplant. Biol Blood Marrow Transplant. 2018 May;24(5):1094-1098. doi: 10.1016/j.bbmt.2018.01.019. Epub 2018 Feb 9. PMID: 29378304
28) Chang E, Rivero G, Patel N, Chiao E, Lai S, Bajaj K, Mbue J, Yellapragada S. HIV-Related Refractory Hodgkin Lymphoma: A Case Report of Complete Response to Nivolumab. Clin Lymphoma Myeloma Leuk. 2018 Feb;18(2):e143-e146. doi: 10.1016/j.clml.2017.12.008. Epub 2018 Jan 3. PMID: 29342442; PMCID: PMC5809264
29) Stier EA, Chiao EY. Anal Cancer and Anal Cancer precursors in Women with a History of HPVRelated Dysplasia and Cancer. Semin Colon Rectal Surg. 2017 Jun;28(2):97-101. doi: 10.1053/j.scrs.2017.04.008. Epub 2017 Apr 26. PMID:29204065 ; PMCID: PMC5710808
30) Sonawane K, Suk R, Chiao EY, Chhatwal J, Qiu P, Wilkin T, Nyitray AG, Sikora AG, Deshmukh AA. Oral Human Papillomavirus Infection: Differences in Prevalence Between Sexes and Concordance with Genital Human Papillomavirus Infection, NHANES 2011 to 2014.Ann Intern Med. 2017 Nov 21;167(10):714-724. doi: 10.7326/M17-1363. Epub 2017 Oct 17 PMID:29049523 ; PMCID: PMC6203692
31) Deshmukh AA, Chiao EY, Cantor SB, Stier EA, Goldstone SE, Nyitray AG, Wilkin T, Wang X, Chhatwal J. Management of precancerous anal intraepithelial lesions in HIV-positive MSM: clinical and cost-effectiveness. Cancer. 2017 Dec 1;123(23):4709-4719. doi: 10.1002/cncr.31035. Epub 2017 Sep 26. [Available on 2018-12-01] PMID: 28950043 ;PMCID: PMC5693634
32) Biggerstaff KS, Frankfort BJ, Orengo-Nania S, Garcia J, Chiao E, Kramer JR, White D. Validity of code based algorithms to identify primary open angle glaucoma (POAG) in Veterans Affairs (VA) administrative databases. Ophthalmic Epidemiol. 2018 Apr;25(2):162-168. doi: 10.1080/09286586.2017.1378688. Epub 2017 Sep 25. PMID: 28945495
33) Nyitray AG, Hicks JT, Hwang L-Y, Baraniuk S, White M, Millas S, Onwuka N, Zhang X, Brown EL, Ross MW, Chiao EY. A Phase II clinical study to assess the feasibility of self- and partner anal exams to detect anal canal abnormalities including anal cancer. Sex Transm Infect. 2018 Mar;94(2):124-130. doi: 10.1136/sextrans-2017-053283. Epub 2017 Aug 23. PMID: 28835533; PMCID: PMC6173609
Page 9 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P37ageP2a2goef2320of 30
34) Royse KE, El Chaer F, Amirian ES, Hartman C, Krown SE, Uldrick TS, Lee JY, Shepard Z, Chiao EY. Disparities in Kaposi Sarcoma Incidence and Survival in the United States: 2000-2013. PLoS One. 2017 Aug 22;12(8):e0182750. doi: 10.1371/journal.pone.0182750. eCollection 2017. PMID: 28829790; PMCID: PMC5567503
35) Deshmukh AA, Cantor SB, Fenwick E, Chiao EY, Nyitray AG, Stier EA, Goldstone SE, Wilkin T, Chhatwal J. Adjuvant HPV vaccination for anal cancer prevention in HIV-positive men who have sex with men: The time is now. Vaccine. 2017 Sep 12;35(38):5102-5109. doi: 10.1016/j.vaccine.2017.08.006. Epub 2017 Aug 12. PMID: 28807605; PMCID: PMC5581672 [Available on 2018-09-12]
36) Butame SA, Lawler S, Hicks JT, Wilkerson JM, Hwang LY, Baraniuk S, Ross MW, Chiao EY, Nyitray AG. (2017). A qualitative investigation among men who have sex with men on the acceptability of performing a self- or partner anal exam to screen for anal cancer. Cancer Causes Control. 2017 Oct;28(10):1157-1166. doi: 10.1007/s10552-017-0935-6. Epub 2017 Aug 4. [Available on 2018-10-01].PMID: 28779467; PMCID: PMC5731636
37) Chew EY, Hartman CM, Richardson PA, Zevallos JP, Sikora AG, Kramer JR, Chiao EY. Risk factors for oropharynx cancer in a cohort of HIV-infected veterans. Oral Oncol. 2017 May;68:6066. doi: 10.1016/j.oraloncology.2017.03.004. Epub 2017 Mar 23. PMID: 28438295 ; PMCID: PMC6365160
38) Kahn JA, Lee J, Belzer M, Palefsky JM, AIDS Malignancy Consortium and Adolescent Medicine Trials Network for HIV/AIDS Interventions (Chiao EY is listed as a senior author of this group). HIV-Infected Young Men Demonstrate Appropriate Risk Perceptions and Beliefs about Safer Sexual Behaviors after Human Papillomavirus Vaccination. AIDS Behav. 2017 Feb 20 [Epub ahead of print] PubMed [Available on 2018-08-20] PMID: 28220313; PMCID: PMC5563486
39) Oliver NT, Chiao EY. Malignancies in women with HIV infection. Curr Opin HIV AIDS. 2017 Jan;12(1):69-76. PMID: 27849632 ;PMCID: PMC5568069
40) Nyitray A, Chiao E. Maybe it isn't time to abandon the digital rectal exam for all conditions. Curr Med Res Opin. 2017 Feb;33(2):315-316. doi: 10.1080/03007995.2016.1254608. Epub 2016 Dec 8. PMID: 27805418
41) Deshmukh AA, Zhao H, Das P, Chiao EY, You YN, Franzini L, Lairson DR, Swartz MD, Giordano SH, Cantor SB. Clinical and economic evaluation of treatment strategies for T1N0 anal canal cancer. Am J Clin Oncol. 2016 Oct 17. [Epub ahead of print]. PMID: 27755059; PMCID: PMC5393969
42) Oliver, NT, Hartman, CM, Kramer, JR, Chiao, EY. Statin drugs decrease progression to cirrhosis in HIV/hepatitis C virus coinfected individuals. AIDS. 2016 Oct 23;30(16):2469-2476. PMID:27753678; PMCID: PMC5290260;
43) Lai S, Wenaas AE, Sandulache VC, Hartman C, Chiao E, Kramer J, Zevallos JP. Prognostic Significance of p16 Cellular Localization in Oropharyngeal Squamous Cell Carcinoma. Ann Clin Lab Sci. 2016 Mar;46(2):132-9. PMID:27098618
44) Varier I, Keeley BR, Krupar R, Patsias A, Dong J, Gupta N, Parasher AK, Genden E, Miles B, Teng M, Bakst RL, Gupta V, Misiukiewics K, Chiao E, Scheurer M, Laban S, Zhang DY, Ye F, Cui M, Demicco EG, Posner MR, Sikora A. Clinical Characteristics and Outcomes of Oropharyngeal Carcinoma Related to High Risk Non-HPV16 Viral Subtypes. Head Neck. 2016 Sep;38(9):1330-7. doi: 10.1002/hed.24442. Epub 2016 Apr 15. PMID:27080140
45) Mbang PA, Kowalkowski MA, Amirian ES, Giordano TP, Richardson PA, Hartman CM, Chiao EY. Association between Time on Protease inhibitors and the Incidence of Squamous Cell Carcinoma of the Anus among U.S. Male Veterans. PLoS One. 2015 Dec 2;10(12):e0142966. doi: 10.1371/journal.pone.0142966. PMID:26629701; PMCID:PMC4668039
46) Deshmukh AA, Zhao H, Franzini L, Lairson DR, Chiao EY, Swartz MD, Das P, Giordano SH, Cantor SB. Total Lifetime and Cancer-related Costs for Elderly Patients Diagnosed with Anal Cancer in the United States. Am J Clin Oncol. 2015 Oct 29. [Epub ahead of print] PMID:26523440 ; PMCID: PMC5592145;
47) Chiao E, Stier EA. Reply. Am J Obstet Gynecol. 2016 Mar;214(3):411-2. doi: 10.1016/j.ajog.2015.10.917. Epub 2015 Oct 30. PMID: 26522860
48) Battaglia TA, Gunn CM, McCoy ME, Mu HH, Baranoski AS, Chiao EY, Kachnic LA, Stier EA. Beliefs About Anal Cancer among HIV-Infected Women: Barriers and Motivators to Participation
Page 10 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P38ageP2a3goef2330of 30
in Research. Womens Health Issues. 2015 Nov-Dec;25(6) :720-6. doi:10.1016/j.whi.2015.06.008. Epub 2015 Aug 4. PMID:26253825; PMCID:PMC4641840 49) Hwang JP, Granwehr BP, Torres HA, Suarez-Almazor ME, Giordano TP, Barbo AG, Lin HY, Fish MJ, Chiao EY. HIV testing in patients with cancer at the initiation of therapy at a large US comprehensive cancer center. J Oncol Pract. 2015 Sep;11(5):384-90. doi: 10.1200/JOP.2015.005116. Epub 2015 Aug 4. PMID:26243649 ; PMCID:PMC4575402 50) Deshmukh AA, Chhatwal J, Chiao EY, Nyitray A, Das P, Cantor SB. Long-term outcomes of adding HPV vaccine to the anal intraepithelial neoplasia treatment regimen in HIV-positive men who have sex with men. Clin Infect Dis. 2015 Jul 29. pii: civ628. PMID:26223993; PMCID:PMC4614412 51) Robinson JO, Slashinski MJ, Chiao E, McGuire AL. It depends whose data are being shared; considerations for genomic data sharing policies. J Law Biosci. 2015 jul 21;2(3):697-704. doi: 10.1093/jlb/lsv030. eCollection 2015 Nov. PMID: 27774218 ; PMCID: PMC5034404; 52) Moscicki A, Darragh TM, Berry-Lawhorn JM, Roberts JM, Khan MJ, Boardman LA, Chiao E, Einstein MH, Goldstone SE, Jay N, Likes WM, Stier EA, Welton ML, Wiley DJ, Palefsky JM. Screening for Anal Cancer in Women. J Low Genit Tract Dis. 2015 Jul;19(3 Suppl 1):S26-41. doi:10.1097/LGT.0000000000000117. PMID:26103446; PMCID:PMC4479419 53) Stier EA, Sebring MC, Mendez AE, Ba FS, Trimble DD, Chiao EY. Prevalence of anal human papillomavirus infection and anal HPV-related disorders in women: a systematic review. Am J Obstet Gynecol. 2015 Sep;213(3):278-309. doi: 10.1016/j.ajog.2015.03.034. Epub 2015 Mar 19. PMID:25797230; PMCID:PMC4556545 54) Kowalkowski MA, Kramer JR, Richardson PR, Suteria I, Chiao EY. Use of boosted protease inhibitors reduces Kaposi sarcoma incidence among male veterans with HIV Infection. Clin Infect Dis. 2015 May 1;60(9):1405-14. doi:10.1093/cid/civ012.Epub 2015 Jan 13. PMID:25586682; PMCID:PMC4462659 55) Kim MH, Ahmed S, Hosseinipour MC, Giordano TP, Chiao EY, Yu X, Nguyen C,Chimbwandira F, Kazembe PN, Abrams EJ. Implementation and operational research: The impact of Option B+ on the antenatal PMTCT cascade in Lilongwe, Malawi. J Acquir Immune Defic Syndr. 2015 Apr 15;68(5):e77-83. doi:10.1097/QAI.0000000000000517. PMID:25585302; PMCID:PMC4359035 56) Ahmed S, Kim M, Dave A, Sabelli R, Kanjelo K, Preidis G, Giordano TP, Chiao EY, Hoessinipour M, Kazembe P, Chimbwandira F, Abrams E. Improved identification and enrollment into care of HIV-exposed and infected infants and children following a community health worker intervention in Lilongwe, Malawi. J Int AIDS Soc. 2015 Jan 7;18(1)19305. doi:10.7448/IAS.18.1.19305. eCollection 2015. PMID: 25571857; PMCID:PMC4287633 57) Kramer JR, Kowalkowski MA, Duan Z, Chiao EY. The Effect of HIV Viral Control on the Incidence of Hepatocellular Carcinoma in Veterans with Hepatitis C and HIV Coinfection. J Acquir Immune Defic Syndr. 2015 Apr 1;68(4):456-62. doi:10.1097/QAI.0000000000000494. PMID:25559606; PMCID:PMC4334674 58) Dailey Garnes NJ, D'Souza G, Chiao E. Number of Primary Care Visits Associated with Screening for Cervical Dysplasia among Women with HIV Infection in Harris County, Texas, United States of America. HIV Adv Res Dev. 2015;1(2). pii: 107. Epub 2015 Feb 16. PMID:27500276; PMCID:PMC4974513 59) Deshmukh AA, Chiao EY, Das P, Cantor SB. Clinical effectiveness and cost-effectiveness of quadrivalent human papillomavirus vaccination in HIV-negative men who have sex with men to prevent recurrent high-grade anal intraepithelial neoplasia. Vaccine. 2014 Nov;32(51):6941-6947 doi:10.1016/j.vaccine.2014.10.052. PMID:25444820; PMCID:PMC4254641 60) Zevallos JP, Hartman CM, Kramer JR, Strugis EM, Chiao EY. Increased Thyroid Cancer Incidence Corresponds to Increased Utilization of Thyroid Ultrasound and Fine Needle Aspiration: A Population-based Study in the Veterans Affairs Healthcare System. Cancer. 2014 Nov 6. doi: 10.1002/cncr.29122. PMID:25376872 61) Luu HN, Amirian ES, Chiao EY, Scheurer ME. Age patterns of Kaposi's sarcoma incidence in a cohort of HIV-infected men. Cancer Med. 2014 Aug 20. doi: 10.1002/cam4.312. PMID:25139791; PMCID:PMC4298390 62) Kowalkowski M, Day R, Du X, Chan W, Chiao E. Cumulative HIV Viremia and Non-AIDS-Defining Malignancies Among a Sample of HIV-Infected Male Veterans. J Acquir Immune Defic Syndr. 2014 Jul 30. PMID:25078536; PMCID:PMC4162758
Page 11 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P39ageP2a4goef2340of 30
63) Zevallos JP, Sandulache VC, Hamblin J, Skinner HD, Kramer J, Hartman CM, Horter KL, Lai S, Zhou X, Chiao EY. The impact of race on oropharyngeal squamous cell carcinoma presentation and outcomes among veterans. Head Neck. 2016 Jan;38(1):44-50. doi: 10.1002/hed.23836. Epub 2015 Jan 27.PMID:24992520
64) Kowalkowski MA, Mims MA, Day RS, Du XL, Chan W, Chiao EY. Longer duration of combination antiretroviral therapy reduces the risk of Hodgkin lymphoma: A cohort study of HIV-infected male veterans. Cancer Epidemiol. 2014 Aug;38(4):386-92. doi: 10.1016/j.canep.2014.05.009. Epub 2014 Jun 16. PMID:24947588; PMCID:PMC4447432
65) Sandulache VC, Hamblin J, Lai S, Pezzi T, Skinner HD, Khan NA, Dioun SM, Hartman C, Kramer J, Chiao E, Zhou X, Zevallos JP. Oropharyngeal squamous cell carcinoma (OPSCCA) in the veteran population is associated with traditional carcinogen exposure and poor clinical outcomes. Head Neck. 2014 May 7; PMID:24801106; PMCID:PMC4496314
66) Dinardo AR, Lewis DS, Koo HL, Goodman JC, Chiao E, Andrade R. Paradoxical immune reconstitution inflammatory syndrome due to toxoplasmic encephalitis: two cases and review of initiation of antiretroviral timing in toxoplasmic encephalitis IRIS. F1000Res. 2013 May 30;2. doi: 10.12688/f1000research.2-133. PMID:24358883; PMCID:PMC3814919
67) Valentin L, Dinardo A, Chiao E, Woc-Colburn L, Nachiappan A. Tuberculosis IRIS a mediastinal problem. F1000Res. 2013 Feb 18;2. doi: 10.12688/f1000research.2-54 PMID:24358876; PMCID:PMC3799548
68) Kowalkowski MA, Lulla P, Mims MP, Amirian ES, Chiao EY. Effect of Immune Reconstitution on the Incidence of HIV-Related Hodgkin Lymphoma. PLoS One. 2013 Oct 2;8(10):e77409. doi: 10.1371/journal.pone.0077409. PMID:24098586 ; PMCID:PMC3788758
69) Kim MH, Ahmed S, Preidis GA, Abrams EJ, Hosseinipour MC, Giordano TP, Chiao EY, Paul ME, Bhalakia A, Nanthuru D, Kazembe PN. Low Rates of Mother-to-Child HIV Transmission in a Routine Programmatic Setting in Lilongwe, Malawi. PLoS One. 2013 May 31;8(5):e64979. PMID:23741437; PMCID:PMC3669205
70) Amirian ES, Chiao EY, Hill KT, Marquez-Do D, Scheurer ME. Preliminary findings from a pilot study on the effects of interferon-α treatment on human papillomavirus infection in HIV and hepatitis C virus co-infected men. Sexual health. 2013 November 22; 10(6):570-570 https://doi.org/10.1071/SHv10n6ab2
71) Chiao EY, Hartman CM, El-Serag HB , Giordano TP. The Impact of HIV Viral Control on the Incidence of HIV-Associated Anal Cancer. 2013 Apr 22 JAIDS PMID:23614995; PMCID:PMC3797186
72) Amirian ES, Fickey PA Jr, Scheurer ME, Chiao EY. Anal Cancer Incidence and Survival: Comparing the Greater San-Francisco Bay Area to Other SEER Cancer Registries. PLoS One. 2013;8(3):e58919. doi: 10.1371/journal.pone.0058919. PMID:23484057; PMCID:PMC3590168
73) Betancourt EM, Wahbah MM, Been LC, Chiao EY, Citron DR, Laucirica R. Anal cytology as a predictor of anal intraepithelial neoplasia in HIV-positive men and women. Diagn Cytopathol. 2013 Jan 3. doi: 10.1002/dc.22941. PMID:23288861
74) Kim M, Ahmed S, Buck W, Preidis G, Hosseinipour M, Bhalakia A, Nanthuru D, Kazembe P, Chimbwandira F, Giordano T, Chiao E, Schutze G, Kline M, The Tingathe program: a pilot intervention using community health workers to create a continuum of care in the Prevention of Mother to Child Transmission of HIV (PMTCT) cascade of services in Malawi, Journal International AIDS Society. 2012 Jul 11;15(4):1-11 PMID:22789644; PMCID:PMC3499848
75) Chiao EY, Nambi PV, Naik AD. The impact of diabetes process and outcome quality measures on overall survival in patients with co-morbid colorectal cancer. J Cancer Surviv. 2010 Dec;4(4):381-7. PMID:20721633; PMCID:PMC3175493
76) Chiao EY, Dezube BJ, Krown SE, Wachsman W, Brock MV, Giordano TP, Mitsuyasu R, Pantanowitz L. Time for oncologists to opt in for routine opt-out HIV testing? JAMA. 2010 Jul 21;304(3):334-9. PMID:20639567; PMCID:PMC3160789
77) Chiao EY, Engels EA, Kramer JR, Pietz K, Henderson L, Giordano TP, Landgren O. Risk of immune thrombocytopenic purpura and autoimmune hemolytic anemia among 120 908 US veterans with hepatitis C virus infection. Arch Intern Med. 2009 Feb 23;169(4):357-63. PMID:19237719; PMCID:PMC2782638
Page 12 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P40ageP2a5goef2350of 30
78) Chiao EY. Duration of anal human papilloma virus infection among immunocompetent women: clues to anal cancer epidemiology and possible prevention strategies. Clin Infect Dis. 2009 Mar 1;48(5):547-9. PMID:19191637
79) El-Serag HB, Engels EA, Landgren O, Chiao E, Henderson L, Amaratunge HC, Giordano TP. Risk of hepatobiliary and pancreatic cancers after hepatitis C virus infection: A population-based study of U.S. veterans. Hepatology. 2009 Jan;49(1):116-23. PMID:19085911; PMCID:PMC2719902
80) Davila JA, Chiao EY, Hasche JC, Petersen NJ, McGlynn KA, Shaib YH. Utilization and determinants of adjuvant therapy among older patients who receive curative surgery for pancreatic cancer. Pancreas. 2009 Jan;38(1):e18-25.PMID:18797424; PMCID:PMC3835699
81) Chiao EY, Giordano, TP, Richardson, P, El-Serag, HB. Human immunodeficiency virusassociated squamous cell cancer of the anus: epidemiology and outcomes in the highly active antiretroviral therapy era. J Clin Oncol. 2008 Jan 20;26(3):474-9. PMID:18202423
82) Arora A, Chiao E, Tyring SK. AIDS malignancies. Cancer Treat Res. 2007;133:21-67. PMID:17672037
83) Giordano TP, Henderson L, Landgren O, Chiao EY, Kramer JR, El-Serag H, Engels EA. Risk of non-Hodgkin lymphoma and lymphoproliferative precursor diseases in US veterans with hepatitis C virus. JAMA. 2007 May 9;297(18):2010-7. PMID:17488966
84) Chiao EY, Giordano TP, Palefsky JM, Tyring S, El Serag H. Screening HIV-infected individuals for anal cancer precursor lesions: a systematic review. Clin Infect Dis. 2006 Jul 15;43(2):223-33. Review. PMID:16779751
85) Chiao EY, Krown SE, Stier EA, Schrag D. A population-based analysis of temporal trends in the incidence of squamous anal canal cancer in relation to the HIV epidemic. J Acquir Immune Defic Syndr. 2005 Dec 1;40(4):451-5. PMID:16280701
86) Fields KS, Petersen MJ, Chiao E, Tristani-Firouzi P. Case reports: treatment of nevirapineassociated dress syndrome with intravenous immune globulin (IVIG). J Drugs Dermatol. 2005 JulAug;4(4):510-3. PMID:16004028
87) Stier EA, Krown SE, Chi DS, Brown CL, Chiao EY, Lin O. Anal dysplasia in HIV-infected women with cervical and vulvar dysplasia. J Low Genit Tract Dis. 2004 Oct;8(4):272-5. PMID:15874871
88) Teruya-Feldstein J, Chiao E, Filippa DA, Lin O, Comenzo R, Coleman M, Portlock C, Noy A. CD20-negative large-cell lymphoma with plasmablastic features: a clinically heterogenous spectrum in both HIV-positive and -negative patients. Ann Oncol. 2004 Nov;15(11):1673-9. PMID:15520070
89) Chiao EY, Krown SE. Update on non-acquired immunodeficiency syndrome-defining malignancies. Curr Opin Oncol. 2003 Sep;15(5):389-97. PMID:12960522
90) Chiao EY, Ries KM, Sande MA. AIDS and the elderly. Clin Infect Dis. 1999 Apr;28(4):740-5. PMID:10825030
91) Chiao E, Hadler J. From the Centers for Disease Control. Early childhood vaccination levels. JAMA. 1992 Feb 5;267(5):628-9NB. As reported from: CDC. Early Childhood Vaccination Levels Among Urban Children in Connecticut 1990 and 1991. MMWR RR2; 40: 888-90.1991. PMID:1731124
II. In Press 1. Gutierrez AM, Hofstetter JD, Dishner E, Chiao EY, Rai D, McGuire AL. A right to privacy and confidentiality: Ethical medical care for patients in United States immigration detention. Journal of Law, Medicine, and Ethics; Spring 2020
2.Sandulache VC, Wilde DC, Sturgis, Chiao EY, Sikora AG. A Hidden Epidemic of “Intermediate Risk” Oropharynx Cancer. Laryngoscope Investigative Otolaryngology.
III. Submitted/Under Review
1. Suk R, Montealegre J, Nemutlu G, Nyitray A, Chhatwal J, Bauer C, Chiao E, Schmeler K, Sonawane K, Deshmukh A. Knowledge of Human Papillomavirus (HPV), HPV Vaccine, and HPV-associated Cancers: Sex Differences in the United States, HINTS-5. JAMA IM.
Page 13 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P41ageP2a6goef2360of 30
b. Abstracts given during last three years:
1) Elizabeth Chiao, MD, MPH, Dorothy J. Wiley PhD, Shelly Y Lensing, MS, Teresa Darragh, MD, Mark H Einstein, MD, Naomi Jay, PhD, J. Michael Berry Lawhorn, MD, Ashish A Deshmukh, PhD, Joel M Palefsky, MD, Timothy Wilkin, MD, Luis F Barroso, MD, Rebecca Levine, MD, Audrey L French, MD, Humberto Guiot MD, Ross D Cranston, MD, Elizabeth Stier, MD. Screening Tests for Anal High-Grade Squamous Intraepithelial Lesion Detection in Women Living with HIV. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
2) Eva Clark, Liang Chen,Yongquan Dong, Suchismita Raychaudhury, Jennifer Kramer, Donna White, Elizabeth Chiao. HIV+ Female Veterans Are At Increased Risk of Developing Genital Cancers. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
3) Eva Clark MD, Kathryn E. Royse, Yongquan Dong, Elaine Chang, Suchismita Raychaudhury, Jennifer Kramer, Donna White, Elizabeth Chiao. Burkitt Lymphoma in The ART Era: Stable Incidence, Poor Survival. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
4) Kathryn E. Royse, Jose M. Garcia, Donna L. White, Jennifer R. Kramer, Yongquan Dong, Suchismita Raychaudhury, Peter A. Richardson, Christine Hartman, Elizabeth Y. Chiao. Prostate adenocarcinoma incidence and risk factors in Veterans with well controlled HIV infection. In: Proceedings of the American Association for Cancer Research Annual Meeting 2019, March 29- Apr 3; Atlanta, GA. Philadelphia
5) Domgue JF, Messick C, Milbourne A, Guo M, Salcedo M, Chiao E, Dahlstrom K, Sturgis E, Schmeler K. Prevalence of anal dysplasia and cancer in women with lower genital tract dysplasia and cancer: Preliminary results of the PANDA Study. Accepted for presentation at the 17th Biennial Meeting of the International Gynecologic Cancer Society. Kyoto, Japan. September 14-16, 2018.
6) Mapakshi S, Kramer JR, Royse K, Chiao E, Garcia J, Kanwal F, El-Serag HB, Jiao L, White DL. Statins Use and Overall Survival in Pancreatic Cancer Patients: A Systematic Review and Metaanalysis. Accepted for presentation at the annual Digestive Disease Week 2018. Washington, DC. June 2-5, 2018.
7) Chang E, Thrift AP, White DL, Kramer J, Sabichi AL, Hartman C, Royse KE, Richardson P, Chiao EY. Nivolumab efficacy and safety in veterans with and without HIV infection. Accepted for presentation at the annual American Association for Cancer Research 2018. Chicago, Illinois. April 14-18, 2018.
8) Garcia JM, Kramer JR, Richardson PA, White D, Raychaudhury S, Chang E, Hartman C, Chiao EY. Effect of Diabetes, Metabolic factors and Medications on Risk of Lung Cancer among HIVInfected Veterans. Accepted for presentation at the annual Endocrine Society 2018. Chicago, Illinois. March 17-20, 2018.
9) Thrift AP, Royse KE, Richardson PA, Raychaudhury S, Desiderio R, White DL, Kramer JR, Chiao E. Risk of Non-AIDS-Defining Cancers among Veterans with well-controlled HIV Infection. Accepted for presentation at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, March 4-8, 2018.
10) Thrift AP, White DL, Nguyen HP, Royse KE, Kramer JR, Chiao EY. Trends in incidence of Kaposi Sarcoma among males in all 50 United States between 2000 and 2013. Accepted for presentation at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, March 4-8, 2018.
11) Mapakshi S, Mbang P, Kramer JR, White DL, Chiao EY. Impact of Protease Inhibitor Based Regimens on Incidence of HIV associated Kaposi Sarcoma: A Systematic Review of Literature.
Page 14 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P42ageP2a7goef2370of 30
Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
12) Thrift AP, Royse KE, Richardson PA, Raychaudhury S, Desiderio R, White DL, Kramer JR, Chiao EY. Risk Of Non-AIDS-Defining Cancers Among Veterans With Well-Controlled HIV Infection. Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
13) Chang E, Hartman C, Royse K, Kramer J, White D, Richardson P, Chiao EY. A Case Series of Nivolumab in Veterans with HIV Infection and Malignancy. Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
14) Mapakshi SR, Kramer JR, Royse KE, Chiao E, Garcia JM, Kanwal F, El-Serag H, Jiao L, White D. Statins Use and Overall Survival in Pancreatic Cancer Patients: A Systematic Review and Meta-analysis. Presented at the annual Digestive Disease Week Meeting, Chicago, Illinois, May 6, 2017.
15) Biggerstaff K, Kramer J, Chiao E, Richardson P, Orengo-Nania S, Frankfort B, White D. Open Angle Glaucoma (OAG) and Uric Acid (UA) Levels in the Veteran Population. Presented at the 27th Annual Meeting of the American Glaucoma Society, Coronado, California. March 3, 2017.
16) Biggerstaff K, Frankfort B, Orengo-Nania S, Garcia J, Chiao E, Kramer J, White D. Diagnostic Algorithms to Identify Primary Open Angle Glaucoma in Veterans Affairs Administrative Databases. Poster presented at 2016 Michael E. DeBakey VA Medical Center Research Poster Day, Houston, Texas, October 26, 2016.
17) Biggerstaff K, Frankfort B, Orengo-Nania S, Garcia J, Chiao E, Kramer J, White D. Diagnostic Algorithms to Identify Primary Open Angle Glaucoma in Veterans Affairs Administrative Databases. Poster presented at 2016 Baylor Graduate Student Symposium, Houston, Texas, October 19, 2016.
18) Varier I, Chew E, Ramsey D, Sikora A, Chiao E. HEALTHCARE UTILIZATION IN HPV RELATED CANCERS. Presented at the AHNS 9th International Conference on Head and Neck Cancer, Seattle, WA, July 18, 2016.
19) Wilkin TJ, Chen H, Cespedes M, Paczuski P, Godfrey C, Chiao E, Luque A, Webster-Cyriaque JY, Bastow B, Cranston R. ACTG A5298: A Phase 3 Trial of the Quadrivalent HPV Vaccine in Older HIV+ Adults. CROI February 23, 2016.
20) Oliver N, Hartman CM, Kramer JR, Chiao EY. Statin Use and the Impact on Cirrhosis Progression in a HIV/HCV Co-infected Population. Poster Presented at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, February 23, 2016.
21) Oliver N, Hartman CM, Kramer JR, Chiao EY. Metabolic Risk Factors Associated with HCC Development in an HIV/HCV Co-Infected Cohort. Poster Presented at the 15th Conference on Malignancies in AIDS and Other Acquired Immunodeficiencies, Bethesda, MD, October 26, 2015.
c. Books: a. complete books written: N/A b. books edited: N/A c. book chapters written 1) Chang E, Chiao EY. Oncologic Manifestations of HIV Infection. In The Sub-Specialty Care of HIV-Infected Patients. Nova Scientific Publications, 2018. 2) Oliver N, Chiao EY. Malignant Diseases in HIV. In AAHIVM Fundamentals of HIV Medicine. Oxford University Press. 2017 3) Chiao E. Malignant Diseases in HIV. In Looking for Daylight: Evidence in Medicine and Federal Policy on Comparative Effectiveness Research. Oxford University Press, 2016
Page 15 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P43ageP2a8goef2380of 30
4) Mbang P, Chiao E. Malignancies and Neoplasms. In AAHIMV Fundamentals of HIV Medicine. AAHIVM, 2012
5) Tarakaji M, Chiao E. Anal Canal Carcinoma. In Tumor Board Reviews, Guidelines and Case Reviews in Oncology, Demos Medical. 2012
6) Chiao. E. Epidemiology and Clinical Characteristics of Non-AIDS-Defining Malignancies in Molecular basis for therapy of AIDS defining cancers, Springer 2010
7) Chiao EY, Krown SE. Non-AIDS-Defining Cancers in HIV Infected Individuals. In, Viral and Immunological Malignancies. PA Volberding and J Palefsky, eds. American Cancer Society, Atlas of Clinical Oncology. 2006
8) Arora A, Chiao E, Tyring S. Treatment of AIDS-Associated Viral Oncogenesis. In AIDS Associated Viral Oncogenesis. Myers, C editor. Springer publishing, 2007.
d. Other works communicating research results to scientific colleagues: N/A e. Other works communicating research results to general public : N/A
III. TEACHING INFORMATION
A. Educational Leadership Roles 1. CSTP research mentor, 2. T32 research mentor, Infectious Disease T32, medical oncology T32
B. Didactic course work 1. Courses taught at current institution: a. Implicit Association Test (IAT) “Best Intentions” Workshop for the LACE course 2009-present b. Patient Safety Course Steering Committee, 2011-2012 c. Infectious Diseases Course: Viruses and Cancer 2012-2018 2. Courses taught at other institutions: N/A 3. Courses expected to be taught at BCM: Undergraduate Medical Education: Infectious Diseases Course
C. Curriculum development work None
D. Non-didactic teaching 1. Resident training: 80 hours 2. Clinical Fellow training: Ben Taub General Hospital 4 weeks per year 3. Graduate Student training: PhD Dissertation Committee: Mark Kowalkowski, PhD September, 2013, Ashish Deshmukh, UTSPH PhD 2014, Hsuan-Chen Liu PhD 2019 (expected) 4. Estimate of kinds of non-didactic teaching expected at BCM: Mentor for internal Medicine Residents and Fellows Research; Dan Haim Cohen 2007-2008, and Natalie Dailey 2009-2010, Virginia Jackson 2011-2012, Pamela Mbang 2015-2016, Nora Oliver, Elaine Chang 2017-2018, Eva Clark 2018-2021 5. Medical School Mentor 2009-2011 Medical Students: Erin Chew 2016-2018, Alison Kremer Yoder 2018-2019 6. Mentor Junior Faculty: Maria Kim, MD; Saeed Ahmed, MD; Jose Zevallos, MD- recipient VISN 16 Pilot; Aaron Thrift, PhD, Michael Scheurer, PhD, Vlad Sandluche, MD/PhD, Bich Dang, MD, Andrew Dinardo, MD (pediatrics), Lillie Lin, MD (MDACC), Ashish Deshmukh, MD (University of Florida), Rachel Bender Ignacio, MD (University of Washington), Alan Nyitray, PHD (University of Texas School of Public Health)
E. Lectures and Presentations: 1. International: a. Chiao, E. Panelist, Confronting the Challenges Relevant to HIV/AIDS Malignancies in SubSaharan Africa Symposium, Capetown, South Africa 7/31-8/2/2015
2. National:
Page 16 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P44ageP2a9goef2390of 30
a. Chiao, E. Human Immunodeficiency Virus and Cancer: A Multi-disciplinary Approach to Optimizing and Advancing Clinical Care. Boston University Infectious Diseases Grand Rounds, March 21, 2019
b. Chiao, E. HIV in the Southern United States. Symposium: An Interdisciplinary History of the Struggle Against HIV/AIDS. University of Utah Law school, October 2, 2015
c. “HIV and the 50 plus population” 2007. AETC. Cornell University Medical College, NY, NY. June 15, 2007
d. “Oncology and HIV Disease” 2005. Quarterly Roundtable Discussion. Moderated by Kristen Ries, University of Utah.
3. Regional: a. The Epidemiology and Outcomes of HPV-Associated Malignancies. Cancer Program Continuing Medical Education, Alexandria, VA, 8/8/13 b. “HIV and the over 50 population” 15th Annual Thomas Street HIV Conference. Houston Hyatt. December 16, 2006 c. “HIV and the Elderly” West Houston Medical Center. Sponsored by Texas-Oklahoma AIDS Education Training Center. April 8, 2005
4. Local: (See FAP Educational Portfolio for additional recurring lectures) a. Research in Progress: VA Research Symposium, Michael E. Debakey, January 2018 b. Research in Progress: Infectious Diseases Division, Baylor College of Medicine, May 2017 c. Citywide Infectious Diseases Conference, Baylor College of Medicine, March 2016 d. BCM Grand Rounds: “Infectious Disease Update: HPV vaccine update”, January 2012 e. BCM Grand Rounds: “CPC: Lumps on the Head”, January 2012 f. Research in Progress: Infectious Diseases Division, Baylor College of Medicine, February 2008 g. CPC Internal Medicine, Baylor College of Medicine March 2007 h. “Update on AIDS-Related Maligancies” VA and Thomas Street Clinical Noon Conferences. January, 2006 i. Anal Cancer and Anal Cancer Precursors among HIV-Infected Individuals. Quality Research in Progress Seminar Series. Houston Center for Quality Care and Utilization Services (HCQCUS). October 8, 2005
F. Visiting professorships: N/A
IV. MEDICAL AND SERVICE INFORMATION
A. Patient care responsibilities 1. Department-wide: N/A 2. Section or specialty: a. HIV/Infectious Disease Attending: Ben Taub General Hospital 1. 1.5 months per year, 2006-current b. HIV/Infectious Disease Clinic: Thomas Street Clinic 1. ½ day every other week, 2006-current c. Medical Oncology Clinic: Thomas Street Clinic 1. ½ day every other week, plus emergency weekly visits, 2006-current d. Anal Dysplasia Clinic: Thomas Street Clinic 1. ½ day every week, 2006-current e. Research Clinic (Med Onc and Anal Dysplasia) for AMC trials 1. ½ day every week 2008-current
B. Clinical Leadership or Business Development: N/A
C. Voluntary Health Organization Participation: N/A
V. SERVICE CONTRIBUTIONS
Page 17 of 18

CaseC2a:2s0e-c4v:1-191-c0v9-40-0M2A26G-EDAoScumEeCnFt 3N2o-.21-4Filefdileodn0053/0/247/2/200 inPTaXgeSID.1P45ageP3a0goef3300of 30
A. Administrative assignments 1. Department administration, committees, etc: 2. College, School or University administration, committees, etc a. IRB member July 2006- July 2009, b. Baylor Department Medicine Research Committee, January 2018
B. National, Regional or Local Participation in Professional or Voluntary Organizations 1. Hurricane “Harvey” Hero September 2017
Last updated 12/30/2019
Page 18 of 18

Case 2:C2a0s-cev2-1:210-9c4v--M00A4G0-9E-JALSR-MECAFT NDo.o1cu-5mefnilet d5 05F/i0le4d/2003/16P/a2g0eIDP.a1g4e61 oPfa4ge 1 of 4
DECLARATION OF DR. JONATHAN LOUIS GOLOB
I, Jonathan Louis Golob, declare as follows:
1. I am an Assistant Professor at the University of Michigan School of Medicine in Ann Arbor, Michigan, where I am a specialist in infectious diseases and internal medicine. At the University of Michigan School of Medicine, I am a practicing physician and a laboratory-based scientist. My primary subspecialization is for infections in immunocompromised patients, and my recent scientific publications focus on how microbes affect immunocompromised people. I obtained my medical degree and completed my residency at the University of Washington School of Medicine in Seattle, Washington, and also completed a Fellowship in Internal Medicine Infectious Disease at the University of Washington. I am actively involved in the planning and care for patients with COVID-19. Attached as Exhibit A is a copy of my curriculum vitae.
2. COVID-19 is a novel zoonotic coronavirus that has been identified as the cause of a viral outbreak that originated in Wuhan, China in December 2019. The World Health Organization has declared that COVID-19 is causing a pandemic. As of March 12, 2020, there are over 140,000 confirmed cases of COVID-19. COVID-19 has caused over 5,000 deaths, with exponentially growing outbreaks occurring at multiple sites worldwide, including within the United States.
3. COVID-19 makes certain populations of people severely ill. People over the age of fifty are at higher risk, with those over 70 at serious risk. As the Center for Disease Control and Prevention has advised, certain medical conditions increase the risk of serious COVID-19 for people of any age. These medical conditions include: those with lung disease, heart disease, diabetes, or immunocompromised (such as from cancer, HIV, autoimmune diseases), blood disorders (including sickle cell disease), chronic liver or kidney disease, inherited metabolic disorders, stroke, developmental delay, or pregnancy.
4. For all people, even in advanced countries with very effective health care systems such as the Republic of Korea, the case fatality rate of this infection is about ten fold higher than that observed from a severe seasonal influenza. In the more vulnerable groups, both the need for care, including intensive care, and death is much higher than we observe from influenza infection: In the highest risk populations, the case fatality rate is about 15%. For high risk patients who do not die from COVID-19, a prolonged recovery is expected to be required, including the need for extensive rehabilitation for profound deconditioning, loss of digits, neurologic damage, and loss of respiratory capacity that can be expected from such a severe illness.
Page 1 of 4

Case 2:C20a-scev-21:12009-c4v--M0A04G0-9E-AJLSR-EMCAFTNoD.o1c-u5mefinletd505F/0ile4d/2003/1P6a/2g0eIDP.1a4g7e 2 Pofa4ge 2 of 4
5. In most people, the virus causes fever, cough, and shortness of breath. In high-risk individuals as noted above, this shortness of breath can often be severe. Even in younger and healthier people, infection of this virus requires supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.
6. Most people in the higher risk categories will require more advanced support: positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Such care requires highly specialized equipment in limited supply as well as an entire team of care providers, including but not limited to 1:1 or 1:2 nurse to patient ratios, respiratory therapists and intensive care physicians. This level of support can quickly exceed local health care resources.
7. The COVID-19 virus can severely damage the lung tissue, requiring an extensive period of rehabilitation and in some cases a permanent loss of respiratory capacity. The virus also seems to target the heart muscle itself, causing a medical condition called mycocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, which reduces the heart's ability to pump, leading to rapid or abnormal heart rhythms in the short term, and heart failure that limits exercise tolerance and the ability to work lifelong. There is emerging evidence that the virus can trigger an over-response by the immune system in infected people, further damaging tissues. This cytokine release syndrome can result in widespread damage to other organs, including permanent injury to the kidneys (leading to dialysis dependence) and neurologic injury.
8. There is no vaccine for this infection. Unlike influenza, there is no known effective antiviral medication to prevent or treat infection from COVID-19. Experimental therapies are being attempted. The only known effective measures to reduce the risk for a vulnerable person from injury or death from COVID-19 are to prevent individuals from being infected with the COVID-19 virus. Social distancing, or remaining physically separated from known or potentially infected individuals, and hygiene, including washing with soap and water, are the only known effective measures for protecting vulnerable communities from COVID-19.
9. COVID-19 is known to be spreading in the Seattle, Washington-area community. As of March 11, 2020 there are 270 confirmed cases of COVID-19 (an increase of 36 from March 10, 2020) and twenty-seven deaths from COVID-19 in the Seattle area. This
Page 2 of 4

Case 2:C20a-scev-21:12009-c4v--M0A04G0-9E-AJLSR-EMCAFTNoD.o1c-u5mefinletd505F/0ile4d/2003/1P6a/2g0eIDP.1a4g8e 3 Pofa4ge 3 of 4
represents the largest known outbreak in the United States, and one the largest known outbreaks in the world as of March 12, 2020.
10. Nationally, without effective public health interventions, CDC projections indicate about 200 million people in the United States could be infected over the course of the epidemic, with as many as 1.5 million deaths in the most severe projections. Effective public health measures, including social distancing and hygiene for vulnerable populations, could reduce these numbers.
11. Based on the recovered genomes of the virus from the community analyzed by the Nextstrain project run by Dr. Trevor Bedford of the Fred Hutchinson Cancer Research Center in Seattle, it is known that the infection is being shared from person to person in and around Seattle. COVID-19 strains have specifically traced infection between residents and staff members of a skilled nursing facility in the Seattle area. This evidence suggests that COVID-19 is capable of spreading rapidly in institutionalized settings. The highest known person-to-person transmission rates for COVID-19 are in a skilled nursing facility in Kirkland, Washington and on afflicted cruise ships in Japan and off the coast of California. The strain of virus spreading in the Seattle area is genetically related to the strain of virus that spread readily on the cruise ships.
12. The COVID-19 outbreak in Seattle has resulted in the need for unprecedented public health measures, including multiple efforts to facilitate and enforce social distancing. These include encouraging employees to work from home, bans of gathering of more than 250 people, closure of schools, closure of the University of Washington campus in Seattle, limitations of visitation to skilled nursing facilities, and cancellation of major public events. Individuals have been asked to delay or cancel health care procedures in order to free up capacity within the system.
13. During the H1N1 influenza ("Swine Flu") epidemic in 2009, jails and prisons were sites of severe outbreaks of viral infection. Given the avid spread of COVID-19 in skilled nursing facilities and cruise ships, it is reasonable to expect COVID-19 will also readily spread in detention centers, particularly when residents cannot engage in proper hygiene and isolate themselves from infected residents or staff.
14. This information provides many reasons to conclude that vulnerable people, people over the age of 50 and people of any age with lung disease, heart disease, diabetes, or immunocompromised (such as from cancer, HIV, autoimmune diseases), blood disorders (including sickle cell disease), chronic liver or kidney disease, inherited metabolic disorders, stroke, developmental delay, or pregnancy living in an institutional setting,
Page 3 of 4

Case 2:C20a-scev-21:12009-c4v--M0A04G0-9E-AJLSR-EMCAFTNoD.o1c-u5mefinletd505F/0ile4d/2003/1P6a/2g0eIDP.1a4g9e 4 Pofa4ge 4 of 4 such as an immigration detention center, with limited access to adequate hygiene facilities and exposure to potentially infected individuals from the community are at grave risk of severe illness and death from COVID-19.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
-1t‘ Executed this 13 day in March, 2020 in Ann Arbor, Michigan.
7..''''' '
Dr. Jonathan Louis Golob
Page 4 of 4

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e1510of 1P3agePa1goef I1D3 #:874

1 Timothy P. Fox (CA Bar 157750)

2

tfox@creeclaw.org Elizabeth Jordan*

3

ejordan@creeclaw.org CIVIL RIGHTS EDUCATION AND

4

ENFORCEMENT CENTER 1245 E. Colfax Avenue, Suite 400

5

Denver, CO 80218 Tel: (303) 757-7901

6 Fax: (303) 872-9072

7 Lisa Graybill*

lisa.graybill@splcenter.org

8 Jared Davidson*

9

jared.davidson@splcenter.org SOUTHERN POVERTY LAW

10

CENTER 201 St. Charles Avenue, Suite 2000

11

New Orleans, Louisiana 70170 Tel: (504) 486-8982

12 Fax: (504) 486-8947

Stuart Seaborn (CA Bar 198590) sseaborn@dralegal.org Melissa Riess (CA Bar 295959) mriess@dralegal.org DISABILITY RIGHTS ADVOCATES 2001 Center Street, 4th Floor Berkeley, California 94704 Tel: (510) 665-8644 Fax: (510) 665-8511

13

14

15 Attorneys for Plaintiffs (continued on next page)

16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

17

EASTERN DIVISION – RIVERSIDE

18 FAOUR ABDALLAH FRAIHAT, et al., Case No.: 19-cv-01546-JGB(SHKx)

19 20

Plaintiffs, v.

DECLARATION OF DR. CARLOS FRANCO-PAREDES

21 U.S. IMMIGRATION AND CUSTOMS 22 ENFORCEMENT, et al.,

Date: March 24, 2020

23

Defendants.

24

25

26

27

28

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e1521of 1P3agePa2goef I1D3 #:875

1 William F. Alderman (CA Bar 47381)

2

walderman@orrick.com Jake Routhier (CA Bar 324452)

3

jrouthier@orrick.com ORRICK, HERRINGTON &

4

SUTCLIFFE LLP 405 Howard Street

5

San Francisco, CA 94105 Tel: (415) 773-5700

6 Fax: (415) 773-5759

7 Michael W. Johnson**

mjohnson1@willkie.com

8 Dania Bardavid**

9

dbardavid@willkie.com Jessica Blanton**

10

jblanton@willkie.com Joseph Bretschneider**

11

jbretschneider@willkie.com WILLKIE FARR &

12

GALLAGHER LLP 787 Seventh Avenue

13 New York, NY 10019

Tel: (212) 728-8000

14 Fax: (212) 728-8111

15 Maia Fleischman*

16

maia.fleischman@splcenter.org SOUTHERN POVERTY LAW

17

CENTER 2 South Biscayne Boulevard

18

Suite 3750 Miami, FL 33131

19

Tel: (786) 347-2056 Fax: (786) 237-2949

20

Christina Brandt-Young*

21 cbrandt-young@dralegal.org

22

DISABILITY RIGHTS ADVOCATES

23

655 Third Avenue, 14th Floor New York, NY 10017

24

Tel: (212) 644-8644 Fax: (212) 644-8636

25

Mark Mermelstein (CA Bar 208005) mmermelstein@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street Suite 3200 Los Angeles, CA 90017 Tel: (213) 629-2020 Fax: (213) 612-2499 Leigh Coutoumanos** lcoutoumanos@willkie.com WILLKIE FARR & GALLAGHER LLP 1875 K Street NW, Suite 100 Washington, DC 20006 Tel: (202) 303-1000 Fax: (202) 303-2000 Shalini Goel Agarwal (CA Bar 254540) shalini.agarwal@splcenter.org SOUTHERN POVERTY LAW CENTER 106 East College Avenue Suite 1010 Tallahassee, FL 32301 Tel: (850) 521-3024 Fax: (850) 521-3001 Maria del Pilar Gonzalez Morales (CA Bar 308550) pgonzalez@creeclaw.org CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 1825 N. Vermont Avenue, #27916 Los Angeles, CA 90027 Tel: (805) 813-8896 Fax: (303) 872-9072

26 Attorneys for Plaintiffs (continued from previous page) *Admitted Pro Hac Vice
27 **Pro Hac Vice Application Forthcoming

28

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e1532of 1P3agePa3goef I1D3 #:876

1

Declaration of Dr. Carlos Franco-Paredes

2

The Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2), is a

3 newly emerging zoonotic agent initially identified in December 2019 that, as of

4 today, has spread to more than 150 countries causing 297,000 confirmed cases and

5 12,755 deathsa. This viral pathogen causes the Coronavirus Disease 2019 (COVID-

6 19). Infection with COVID-19 is associated with significant morbidity and

7 mortality especially in patients above 55 years of age and those with chronic

8 medical conditionsb,c,d.

9

Immigration detention centers in the U.S. are tinderboxes for the

10 transmission of highly transmissible infectious pathogens including the SARS-

11 CoV-2, which causes COVID-19. Given the large population density of

12 immigration detention centers and the ease of transmission of this viral pathogen,

13 the attack rate inside these centers will take exponential proportions, consuming

14 significant medical and financial resources.

15

As an infectious disease clinician with a public health degree in the

16 dynamics of infectious disease epidemics and pandemics and twenty years of

17 clinical experience, I am concerned about the treatment of immigrants inside

18 detention centers which could make the current COVID-19 epidemic worse in the

19 U.S. by having a high case fatality rate among detainees and potentially spreading

20 the outbreak into the larger community. A copy of my CV is presented in Exhibit

21 A.

22

I have experience providing care to individuals in a civil detention center

23 and have performed approximately two medical forensic examinations and fifteen

24 medical second opinion evaluations for patients in the custody of the Department

25 of Homeland Security (DHS). Based on my conversations with patients, my own

26 observations, and information that exists regarding the resources available within

27 immigration detention facilities as detailed by the ICE Health Services Corps, it is

28 my professional opinion that the medical care available in DHS custody cannot

1

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e1543of 1P3agePa4goef I1D3 #:877

1 properly accommodate the needs of patients should there be an outbreak of 2 COVID-19 in an immigration detention facility. The physical and emotional 3 trauma that detainees and asylum seekers experience can weaken their immune 4 systems, resulting in increased risk of severe manifestations of infections. For 5 example cases of influenza virus infections causing pneumonia and respiratory 6 failure, - albeit influenza infection is not as communicable and not transmitted 7 during asymptomatic infection as it is the case with SARS-CoV-2 -, has caused 8 human deaths inside immigration detention centers e.

9 • For people in the highest risk populations, the fatality rate of COVID-19
10 infection is about 15 percent.
11

12

According to the CDC, groups deemed to be at high risk of developing

13 severe disease and dying from COVID-19 include those above 55 years of age and

14 those with underlying medical conditions (regardless of their age) (See Table 1).

15 These cases are also amplifiers or hyper-spreaders of the infection since they tend

16 to have high viral concentrations in their respiratory secretions.

17

The clinical experience in China, South Korea, Italy and Spain has shown

18 that 80% of confirmed cases tend to occur in persons 30-69 years of age regardless

19 of whether they had underlying medical conditions. Of these, 20% develop severe

20 clinical manifestations or become critically ill. Among those with severe clinical

21 manifestations, regardless of their age or underlying medical conditions, the virus

22 progresses into respiratory failure, septic shock, and multiorgan dysfunction

23 requiring intensive care support including the use of mechanical ventilator support.

24 The overall case fatality rate is 10-14% of those who develop severe disease. In

25 China, 80% of deaths occurred among adults > 60 yearsc.

26 Table 1. Risk factors for developing severe disease and death outside the U.S.

27 Age groups at high risk of

50-59 years (1% CFR)*

28 developing severe disease and dying 60-69 years (3.6% CFR)

without underlying medical

70-79 years (8% CFR)

2

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e1554of 1P3agePa5goef I1D3 #:878

1 conditions

2 Groups with underlying medical 3 conditions at high risk of dying 4 regardless of their age

-Cardiovascular Disease (congestive heart failure, history of myocardial infarction, history of cardiac surgery)

5

-Systemic Arterial Hypertension (high

6

blood pressure)

7

-Chronic Respiratory Disease (asthma,

8

chronic obstructive pulmonary disease including chronic bronchitis or

9

emphysema, or other pulmonary

10

diseases)

11

-Diabetes Mellitus

12

-Cancer

13

14

-Chronic Liver Disease

15

-Chronic Kidney Disease

16

-Autoimmune Diseases (psoriasis,

17

rheumatoid arthritis, systemic lupus

18

erythematosus)

19

-Severe Psychiatric Illness **

20 -History of Transplantation
21

22

-HIV/AIDS

23

-Pregnancy***

24 *CFR= Case Fatality Rate. This is an indicator of lethality used during outbreaks to identify the number of
individuals who succumb out of those infected.
25 ** In South Korea, 20% of deaths occurred in what they defined as Psychiatric Illness (J Korean Med Sci 2020;
35(10): e112).
26 *** Extrapolation from previous influenza pandemics including the 2009 pandemic that increased pregnancy-related
mortality 4-fold particularly during second and third trimesters. The reason is due to immune mediated changes
27 during pregnancy and lung function compromise due to gravid uterus (Omer S. N Engl J Med 2017;376(13): 1256-
1267.
28

3

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e1565of 1P3agePa6goef I1D3 #:879

1

There is a growing number of confirmed cases in the U.S., increasing

2 number of hospitalizations and admissions to intensive care units, and many

3 deaths. In this wave of the pandemic or in subsequent ones, it is likely the number

4 of infected individuals will continue to augment. In the closed settings of

5 immigration detention centers, where there is overcrowding and confinement of a

6 large number of persons, networks of transmission become highly conducive to

7 spread rapidly. 8 As of March 16, 2020c, cases of COVID-19 in the U.S. reported by the CDC

9 shows that 31% of COVID-19 cases, 45% of hospitalizations, and 80% of deaths

10 occurred among adults > 65 years of age. Case-fatality in persons aged > 85 ranged

11 from 10-27%, followed by 3-11% among persons aged 65-84 years, 1% among

12 persons aged 55-64 and <1% among persons 20-54 years of age.

13

Reports by the Chinese CDC demonstrate that the case fatality rate is highest among critical

14 cases in the high-risk categories with COVID at 49%f. Case fatality was higher for patients with

15 comorbidities: 10.5% for those with cardiovascular disease, 7% for diabetes, and 6% each for

16 chronic respiratory disease, hypertension, and cancer. Case fatality for patients who developed 17 respiratory failure, septic shock, or multiple organ dysfunction was 49%b.

18 • For people with these risk factors, COVID-19 can severely damage
19 lung tissue, which requires an extensive period of rehabilitation, and
20 in some cases, can cause permanent loss of respiratory capacity.
21

22

There is preliminary evidence that persons with COVID-19 who are

23 recovering from severe disease and who have developed extensive pulmonary 24 disease including Acute Respiratory Distress Syndrome (ARDS)g may have long-

25 term sequelae similar to other infectious pathogens evolving in a similar pattern.

26 Long term sequelae of those with sepsis, ARDS and respiratory failure identified in

27 the literature include long-term cognitive impairment, psychological morbidities,

28 neuromuscular weakness, pulmonary dysfunction, and ongoing healthcare

4

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e1576of 1P3agePa7goef I1D3 #:880

1 utilization with reduced quality of lifeh and need for rehabilitation servicesi.

2 • COVID-19 may also target the heart muscle, causing a medical
3 condition called myocarditis, or inflammation of the heart muscle.
4 Myocarditis can affect the heart muscle and electrical system,
5 reducing the heart’s ability to pump. This reduction can lead to
6 rapid or abnormal heart rhythms in the short term, and long-term
7 heart failure that limits exercise tolerance and the ability to work.
8

9

The full description of the pathogenesis of COVID-19 requires to be

10 completely elucidated. However, there is clinical evidence that in addition to the

11 severe lung injury associated to this viral infection, some persons may also develop

12 myocardial involvement that appears to be the result of either direct viral infection

13 or caused by the immune response to SARS-CoV-2. From the published case

14 reports, myocarditis caused by this viral pathogen is associated with congestive 15 heart failure, cardiac arrhythmias and deathj. Similar to other viral myocarditis, 16 most patients may develop long-term myocardial damagek.

17 • Emerging evidence also suggests that COVID-19 can trigger an over-
18 response of the immune system, further damaging tissues in a
19 cytokine release syndrome that can result in widespread damage to
20 other organs, including permanent injury to the kidneys and
21 neurologic injury. These complications can manifest at an alarming
22 pace.
23

24

Among persons infected with SARS-CoV-2 and developing COVID-19,

25 severe disease systemic inflammation is associated with adverse outcomes l.

26 However, there is evidence that the use of corticosteroids have not shown benefit

27 and they might be more likely to cause harm when administered to persons with 28 ARDS caused by COVID-19m. Similar to influenza infection, acute lung injury and

5

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e1587of 1P3agePa8goef I1D3 #:881

1 acute respiratory distress syndrome are most likely caused by the respiratory 2 epithelial membrane dysfunction leading to acute respiratory distress syndrome l,n.

3 Preliminary evidence from case reports and small cases series from China and

4 South Korea confirm that there is minimal inflammation and evidence of cell 5 necrosis in the form of apoptosis of the respiratory epithelium o. The resultant

6 tissue hypoxia is responsible and potential concomitant bacterial sepsis contribute

7 to multiorgan dysfunction and death. If a patient with COVID-19 develops

8 myocarditis, cardiogenic shock caused by fulminant myocarditis may also 9 contribute to the overall occurrence of multiple organ failure k.

10 • Patients can show the first symptoms of infection in as little as two
11 days after exposure, and their condition can seriously deteriorate in
12 five days or sooner.
13

14

There is evidence of substantial undocumented infection facilitating the

15 rapid dissemination of novel coronavirus SARS-CoV-2 which is responsible for 16 79% of documented cases of COVID-19 in Chinao. Once an individual is exposed

17 to this virus from either a symptomatic individual (21% of cases) or from

18 asymptomatic individuals (79% of cases), the shortest incubation period is 3 days 19 with a median incubation period of 5.1 (95% CI 4.5 to 5.8 days)p. Overall, 97.5% 20 of persons who develop symptoms do so within 11.5 days of the initial exposure p.

21 Most persons with COVID-19 who develop severe disease do so immediately after 22 admission or within 3-5 days from their initial presentationc,q and represent 53% of 23 those requiring intensive care unit admissions and advanced supportive carec. At

24 my current institution, the two confirmed deaths occurred within 48 hours of

25 admission to the hospital.

26 • Most people in higher risk categories who develop serious disease
27 will need advanced support. This level of supportive care requires
28 highly specialized equipment that is in limited supply, and an entire

6

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e1598of 1P3agePa9goef I1D3 #:882

1

team of care providers, including 1:1 or 1:2 nurse to patient ratios,

2

respiratory therapists, and intensive care physicians. This level of

3

support can quickly exceed local health care resources.

4 There is sufficient evidence that the SARS-CoV-2 pandemic has an
5 overwhelming impact in healthcare utilization in all settings (China, South Korea,
6 Italy, France, Germany, and others). In the U.S.c, current evidence demonstrates 7
that COVID-19 can result in severe disease, including hospitalization (31%) and 8
admission to an intensive care unit (53% of ICU admissions). To respond to this 9
overwhelming demand in ICU admissions, there is a need for a multidisciplinary 10
approach that is time consuming and requires highly trained personnel including 11
pulmonary and critical care physicians, nurses, respiratory therapists, 12
phlebotomists, social workers, and case managers. The care of this group of 13
patients also requires subspecialists including nephrologists, infectious disease 14
physicians, hematologists, hospitalists, and others. Patients on mechanical 15
ventilation or requiring extracorporeal membrane oxygenation require additional 16
staff including perfusionists and 1:1 dedicated nursing care. Currently, medical 17
centers in many urban and rural settings in the U.S. are functioning at full capacity. 18
Therefore, preventing the occurrence of an outbreak within a detention facility 19
would reduce the risk of overwhelming local healthcare systems. Indeed, a 20
potential outbreak occurring within an immigration detention center, the number of 21
detainees who will require transfer outside the facility for specialized care may 22
exceed the capacity of local hospitals. This is particularly important in rural and 23
semirural settings where many immigration detention centers are located, and 24
where they may have contact with a limited number of surrounding medical 25
centers. 26

27 Conclusions:

28 There is a need to proactively consider alternative strategies to dilute the

7

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e15190 ofP1a3ge P1a0goef I1D3 #:883

1 potential community-based impact of an outbreak inside immigration detention

2 centers. Therefore, it is my professional view that releasing detainees/asylum

3 seekers on humanitarian parole from these centers constitutes a high-yield public

4 health intervention that may significantly lessen the impact of this outbreak not

5 only within detention centers but among the communities surrounding these

6 centers. In particular, targeting the release of persons in the age groups at risk of

7 severe disease and death; and persons with underlying medical conditions, may

8 lessen the human and financial costs that this outbreak may eventually impose on

9 ICE detention facilities nationwide. Responding to an outbreak requires significant

10 improvements in staffing, upgrading medical equipment, substantial supplies

11 including antibiotics, intravenous infusions, cardiac and respiratory monitors,

12 devices for oxygen supply, and personal protection supplies among persons at high

13 risk of severe COVID-19 disease.

14

15

A large outbreak of COVID-19 in an immigration detention facility would

16 put a tremendous strain on the medical system to the detriment of patients in the

17 communities surrounding these centers. It is reasonable to anticipate that there will

18 be the loss of additional lives that could have otherwise been saved.

19

20 I declare under penalty of perjury that the statements above are true and correct to

21 the best of my knowledge.

22

23 Date: March 21, 2020

24

25

26

27

28

Carlos Franco-Paredes, MD, MPH, DTMH (Gorgas) Associate Professor of Medicine

8

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e16101 ofP1a3ge P1a1goef I1D3 #:884

1 Division of Infectious Diseases

2

Department of Medicine Program Director Infectious Disease Fellowship

3 Training Program, University of Colorado

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e16112 ofP1a3ge P1a2goef I1D3 #:885

1 References

2

a. Johns Hopkins University. Coronavirus Resource Center Available at:

https://coronavirus.jhu.edu/map.html. Accessed: March 21, 2020.

3

b. CDC-Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease

(COVID-19) Available at: https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-

4

management-patients.html). Accessed: March 21, 2020.

c. CDC COVID 19 Response Team. Severe outcomes among patients with coronavirus disease 2019

5

(COVID-19) – United States, February 12-March 16, 2020. Available at:

6

https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm. Accessed: March 21, 2020. d. Rodriguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, Villamizar-Peña R, Holguin-Rivera Y,

7

Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, Franco-Paredes C, Henao-Martinez AF,

Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, Villamil-Gómez WE,

8

Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R; Latin

American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19). Electronic

9

address: https://www.lancovid.org. Clinical, laboratory and imaging features of COVID-19: A systematic

review and meta-analysis.Travel Med Infect Dis. 2020 Mar 13:101623. doi: 10.1016/j.tmaid.2020.101623.

10

[Epub ahead of print].

e. Foppian Palacios C, Opensahw JJ, Travassos MA. Influenza in U.S. detention centers- the desperate need

11

for immunization. N Engl J Med 2020; 382(9): 789-792.

f. Novel Coronavirus Pneumonia Emergency Response Epidemiology Teamexternal iconexternal icon. [The

12

Epidemiological Characteristics of an Outbreak of 2019 Novel Coronavirus Diseases (COVID-19) in

13

China]. Zhonghua Liu Xing Bing Xue Za Zhi. 2020;41(2):145–151. DOI:10.3760/cma.j.issn.02546450.2020.02.003.

14

g. Mart M, Ware LB. The long-lasting effects of the acute respiratory distress syndrome. Expert Rev Respir Dis 2020; https://doi.org/10.1080/17476348.2020.1743182.

15

h. Wu C, Chen X, Cai Y, Xia J, Zhou X, Xu S, Huang H, Zhang L, Zhou X, Du C, Zhang Y, Song J, Wang S, Chao Y, Yang Z, Xu J, Zhou X, Chen D, Xiong W, Xu L, Zhou F, Jiang J, Bai C, Zheng J, Song Y. Risk

16

Factors Associated With Acute Respiratory Distress Syndrome and Death in Patients With Coronavirus Disease 2019 Pneumonia in Wuhan, China. JAMA Intern Med. 2020 Mar 13. doi:

17

10.1001/jamainternmed.2020.0994. [Epub ahead of print]. i. Koh GC, Hoenig H. How should the rehabilitation community prepare for 2019-nCOV? Arch Phys Med

18

Rehabil 2020 Mar 16. Pii: S0003-9993(20)30153-2. Doi: 10.1016/j.apmr.2020.03.003. (Epub ahead of

print].

19

j. Chen C, Zhou Y, Wen WD. SARS-CoV-2: a potential novel etiology of fulminant myocarditis. Herz 2020;

March 5. https://doiorg/10.1007/s00059-020-04909-z.

20

k. Hu H, Ma F, Wei X, Fang Y. Coronavirus fulminant myocarditis saved with glucocorticoid and human

immunoglobulin. Eur Heat J 2020; Mar 16. [Epub ahead of print].

21

l. Li R, Pei S, Chen B, Song , Zhang T, Shaman J. Substantial undocumented infection facilitates the rapid

dissemination of novel coronavirus (SARS-CoV2). Science 10.1126/scienceabb3221 (2020).

22

m. Russell CD, Millar JE, Baillie JK. Clinical evidence does not support corticosteroid treatment for 2019-

nCoV lung injury. Lancet Infect Dis 2020; 395: 474-475.

23

n. Hoffmann M, Kleine-Weber H, Schroeder S, Krüger N, Herrler T, Erichsen S, Schiergens TS, Herrler

G, Wu NH, Nitsche A, Müller MA, Drosten C, Pöhlmann S. SARS-CoV-2 Cell Entry Depends on ACE2

24

and TMPRSS2 and Is Blocked by a Clinically Proven Protease Inhibitor. Cell. 2020 Mar 4. pii: S0092-

8674(20)30229-4. doi: 10.1016/j.cell.2020.02.052. [Epub ahead of print]

25

o. Tian S, Hu W, Niu L, Liu H, Su H, Xiao SY. Pulmonary pathology of early phase 2019 novel coronavirus

(COVID-19) pneumonia in patients with lung cancer. J Thorac Oncol 2020;

26

https://doi.org/10.1016;j.tho.2020.02.010.

p. Lauer SA, Grantz KH, Bi Q, Jones FK, Zheng Q, Meredith HR, Azman AS, Reich NG, Lessler J.The

27

incubation period of coronavirus disease 2019 (COVID-19) from publicly reported confirmed cases:

28

estimation and application. Ann Intern Med 2020; March 10, doi: https://doi/org/107326/M20-0504. q. Korean Society of Infectious Diseases; Korean Society of Pediatric Infectious Diseases; Korean Society of

Epidemiology; Korean Society for Antimicrobial Therapy; Korean Society for Healthcare-associated

10

CCaassee 25::2109--ccvv--1011059446--MJGABG--SEHAKS DEoCcFumNoe.n1t -861-1fi2ledF0il5e/d040/32/024/2P0agePIaDg.e16123 ofP1a3ge P1a3goef I1D3 #:886

1

Infection Control and Prevention; Korea Centers for Disease Control and Prevention. Report on the

Epidemiological Features of Coronavirus Disease 2019 (COVID-19) Outbreak in the Republic of

2

Korea from January 19 to March 2, 2020. J Korean Med Sci. 2020 Mar 16;35(10):e112. doi:

10.3346/jkms.2020.35.e112.

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.317603 Page 1 of 45

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAAL CAMERON; RICHARD BRIGGS; RAJ LEE; MICHAEL CAMERON; MATTHEW SAUNDERS, individually and on behalf of all others similarly situated,
Plaintiffs,
v. MICHAEL BOUCHARD, in his official capacity as Sheriff of Oakland County; CURTIS D. CHILDS, in his official capacity as Commander of Corrective Services; OAKLAND COUNTY, MICHIGAN,
Defendants.

Case No. 20-cv-10949 Hon. Linda V. Parker

Declaration of Dr. Carlos Franco-Paredes – Oakland County Jail

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.317614 Page 2 of 45
Declaration of Dr. Carlos Franco-Paredes – Oakland County Jail FORMAL ASSESSMENT Executive Summary: My overarching recommendation is an urgent reduction in the inmate population of the Oakland County Jail (“Jail”) and increased screening of COVID-19 infection among the staff and inmates. Although leadership and staff at the Jail have instituted some interventions to mitigate the impact of COVID-19 and improve the safety of the inmate population, these interventions are insufficient to interrupt the transmission of COVID-19 infection, unless social distancing is also meaningfully implemented. However implementing social distancing inside the Jail is impossible at current jail population levels. Therefore, reducing the inmate population to allow for effective social distancing is the only way to protect medically vulnerable inmates. Medically vulnerable inmates are at a substantial risk of contracting, spreading and becoming seriously ill or dying from COVID-19 in any carceral setting, but particularly in this Jail where there is an active outbreak of the virus. Inmates at high-risk of severe disease and death from COVID-19 infection need to be identified, and released unless they can be confined in conditions that provide for 24-7 social distancing.
Additionally, I recommend further measures in this report that the Jail should immediately implement to more effectively mitigate the serious risk of harm posed by this virus.
COVID-19 in the State of Michigan, Oakland County, and the Oakland County Jail The State of Michigan has 37,203 confirmed cases of COVID-19 with 3,274 deaths. After Wayne County, Oakland County is the second county with the highest number of cases (6881) and the second with the highest number of deaths (612). There is an active outbreak of cases of Covid-19. On April 3, it was reported that the Oakland County jail had 6 cases, and by April 11 they had 23 cases. The jail would not provide me with information on the number of current confirmed cases. I therefore asked counsel for Plaintiffs, who informed me that the Jail has acknowledged in litigation documents that there have been at least 36 confirmed cases.
1

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.317625 Page 3 of 45
Oakland County Jail Observations
1. Social Distancing:
a. Main Jail building: In the main Jail building, which holds most of the inmate population, it would be impossible to accomplish proper social distancing at anything near the current population. CDC guidelines state that social distancing “strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities.” However, nothing in the CDC guidelines says that it is safe to fail to provide inmates with the ability to observe full social distancing. During an outbreak such as the one occurring in the Jail, a reduction in the inmate population is urgently needed to accommodate further social distancing, particularly in the main building. Transferring inmates to other locations would not be sufficient. The entire main building does not provide sufficient opportunities for social distancing, and although the annex is somewhat less crowded, transferring inmates there may only shift the worst of the social distancing problem from the main building where there is an active outbreak, to the annex. Moving inmates to the annex would also run a risk of bringing the outbreak into the annex. Insufficient social distancing is especially severe in the receiving unit of the main building and in the holding pods. (See picture from 2nd floor main jail – Cell B1c from outer catwalk, attached further in this report.) In these holding pods, there is severe overcrowding and toilet hygiene is insufficient to adequately prevent spread of the infection. There is also close contact between receiving units and holding blocks such that if new inmates arrive who are infected, they may potentially infect those who are being housed in the holding blocks.
b. Annex: Adequate social distancing also remains a concern in the Annex, but not as significant as in the main building. Additionally, the shared bathrooms and social space in the East Annex pose a serious problem, because facilities are shared by a large number of people, thus making social distancing unfeasible and raising the likelihood that an infection will spread via the shared facilities.
c. East Annex: Adequate social distancing also remains a concern in the East Annex, but not as significant as in the main building. Additionally, the shared bathrooms and social space in the East Annex pose a serious
2

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.317636 Page 4 of 45
problem, because facilities are shared by many people, thus making social distancing unfeasible and raising the likelihood that an infection will spread via the shared facilities.
2. Medical care: The Oakland County correctional staff did not answer my questions about the medical care being provided to inmates with COVID-19, including protocols as to what happens to inmates who develop severe disease and protocols for transfer to a local hospital for treatment. They would not discuss the number of confirmed cases, how cases are confirmed, or how patients are selected for testing. As a result, I did not receive sufficient information to properly assess whether the facility is providing adequate medical care to inmates at the Jail. Significantly, my inspection did not reveal any additional measures being taken to protect medically vulnerable inmates, who appeared to be mixed in with the general population.
3. Cleanliness: In the Annex, trustees are responsible for cleaning bathrooms once every shift change of security officers. Most inmates, however, reported that cleaning is left entirely to the inmates and is voluntary. Additionally, the Jail’s cleaning measures are not enough to prevent the spread of COVID-19 in shared bathroom facilities. Toilets and showers need to be cleaned after every use in order to provide proper protections and the Jail has not taken measures to allow for the necessary cleaning. Toilets are a particularly serious transmission concern because they have no lids, and because fecal matter can disperse with each flush and presents a particularly efficient pathway of transmission. During my inspection, I observed that all staff and inmates had masks on. The three jail buildings had sufficient cleaning supplies and disinfection products, but I was not able to discern whether inmates have sufficient access to them. Some inmates, particularly in the holding area of the main Jail building, reported not receiving sufficient quantities of soap. The Jail staff did not provide me with any information on how often personal hygiene supplies are made available to inmates or how often disinfectant supplies are replaced. One of the female inmates that I interviewed in the Annex reported to me that she was required to clean and disinfect cells previously occupied by female inmates that were newly admitted to the jail. She had cleaning products, but did not have the type of specialized mask that could prevent her from becoming infected if asked to clean an infected cell. She was not informed of the infectious status of any of the female inmates housed in the cells she was required to clean. In addition, inmates in the Annex regularly need to pass by the cells where transient inmates are housed. This means that many inmates in the Annex are potentially exposed to infection from new intakes.
3

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.317647 Page 5 of 45
4. Mitigation Efforts: During my inspection, I observed that the Jail has been implementing some mitigating interventions according to CDC guidelines including halting all group activities, staggering pod time and limiting the number of people on the pod at any given time; providing inmates with masks, isolating some sick inmates; performing limited testing of sick inmates; making cleaning supplies readily available; and providing education materials regarding COVID-19 to inmates. I was not able to discern how long most of these measures have been in place, and whether inmates had recently been moved. I observed COVID-19 materials posted on the walls in all three Jail buildings, but I was unable to confirm how long these materials had been posted on the walls. It appeared to me that many of these materials were recently posted given how clean the pages were.
COVID-19 in Correctional Facilities:
As recent evidence indicates from custodial settings in other States such as in Ohio, and from Sterling prison in Colorado, even a small outbreak of COVID-19 cases reflects just the tip of the iceberg of a larger outbreak with a larger number of undetected cases in those with no symptoms or mild symptoms. The number of people who are asymptomatic or exhibiting mild symptoms may represent up to 80% of those with coronavirus infection that are responsible for transmitting more than 44% of the cases.
For example, in Sterling Correctional Facility, when the Department of Corrections performed prevalence testing after only a few confirmed cases of COVID-19 among symptomatic inmates, they identified another 138 infected inmates. For this pandemic, the use of temperature screens and assessment of symptoms, which is what the Jail is relying upon for most screenings, is insufficient when instituted in correctional facilities; and furthermore, it may actually foster further transmission by providing a false sense of security. In fact, in physician forums, there is an urgent call to ask CDC to update their recommendations as well as move towards universal testing in correctional facilities.
This unprecedented pandemic calls for unprecedented measures in every setting but particularly in congregate settings. No one living inside the Jail or outside in the larger community is safe until there is interruption of coronavirus transmission.
Recommendations
In response to the COVID-19 outbreak, the leadership and the staff at the Jail have instituted some interventions to mitigate the impact of COVID-19 and improve the
4

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.317658 Page 6 of 45
safety of the inmate population, but I was unable to discern how long these interventions have been in place. It was not possible to discern whether the desirable measures that I witnessed, such as providing disinfectant and masks have been ongoing for a significant period of time. After conducting my inspection of the Jail, where I had the opportunity to speak with inmates and observe the dynamics of the different buildings (main, annex, and east annex), it is my opinion that additional interventions are necessary to protect inmate, staff, and ultimately strengthen community safety and address the following three major issues:
1. Diffusing Density  Evidence of mass outbreaks from other jail and prison settings validates that even when excellent infection control practices are in place, if they are coupled with incomplete or inconsistent adherence to social distancing, these practices will be insufficient to contain the occurrence of new cases. Especially in settings such as Oakland County, where there is ongoing sustained transmission of COVID-19 within the broader community.
 Social distancing requires inmates maintaining a distance of at least six feet from each other at all times. Additionally, disinfection of key areas (telephones and toilets), mask use, and regular handwashing must be meticulously followed. These protocols are necessary to prevent spread of COVID-19 among otherwise healthy people. These protocols are especially imperative for high-risk individuals. Without these protocols, high-risk individuals face a substantial risk of serious illness or death from this infection.
 To the extent that inmates at risk of severe disease or death cannot be released, medically vulnerable individuals should be housed in singleperson cells to mitigate the risk of serious illness or death to this population. All current inmates and new inmates should be immediately screened to determine if they meet the criteria for high risk noted in Table 1 of this report.
2. Testing for COVID-19 is Critical  It is my opinion based on increasing evidence and recent publications that expanding testing capabilities will improve isolation and quarantine strategies at the Jail. There are some ongoing efforts at the Jail to test inmates. However, I was not able to discern how inmates are selected for testing, and Jail staff refused to answer any questions
5

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.317669 Page 7 of 45
about this subject. Temperature checks are insufficient; expanding testing to identify asymptomatic inmates with COVID-19 infection is a necessary, but not sufficient, measure to combat this epidemic inside the Jail. For example, in custodial settings in Ohio, the rate of asymptomatic and symptomatic infection in an enclosed jail environment could reach up to 70% (with more than 20% asymptomatic infection). A similar ratio of symptomatic to asymptomatic ratio was identified and reported at Sterling Prison in Colorado.
 Priorities for testing:  Test newly admitted inmates for novel coronavirus infection even if asymptomatic to reduce the risk of new introductions into the Jail. There is no other way to effectively screen asymptomatic people at intake.
 Any inmate at the Jail with one or more symptoms consistent with COVID-19 should undergo a clinical assessment including testing for the presence of the novel coronavirus SARS-CoV-2 in nasopharynx. It should never be assumed that in inmate who reports illness and some symptoms is not infected simply because the inmate does not exhibits all of the symptoms or any particular symptom (such as a high temperature).
 Ideally, all Jail inmates and staff should be tested, to guide isolation and quarantine practices. Alternatively, prevalence testing is reasonable.
3. Prevention of exposure to the novel coronavirus  Institute directives for all inmates in all units to use disinfectant and clean telephones after each use.  Institute directives for all inmates in all units to use disinfectant prior to and after the use of toilettes.  Enforce guidance on bed positions:  For single beds positioned next to each other (side-to side): provide at least 6 feet of space and ensure that inmates’ are positioned head to toe while sleeping.  For bunkbeds that are positioned next to each other or across from one another: Position beds at least 6 feet apart. Ensure the inmate’s laying position is head to toe on each separate bunk
6

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.31770 Page 8 of 45

bed, so positioning allows for the least transmission risk as possible. This includes laying position that is head to toe with adjacent bunks.  Enforce social distancing practices of all inmates in all units during med-line or meal-line  Inmates exhibiting COVID-19 symptoms should not be required to clean their own cell and no inmate should clean up after other inmates.  Professional janitorial services should be brought in to disinfect the male medical isolation unit or any unit, which may become quarantined in the near future.  Under no circumstances should inmates in the two annex buildings be moved into the already crowded main jail building. Transfers of this nature increase the severity of the lack of social distancing in the main building and put the transferred inmates at greatly increased risk of infection.

Table 1. Risk factors for developing severe disease and death

Age groups at high risk of developing severe disease and dying without underlying medical conditions

>50 years (1% CFR)* 60-69 years (3.6% CFR)

High risk groups of dying with underlying medical conditions regardless of their age

70-79 years (8% CFR)
-Cardiovascular disease (congestive heart failure, history of myocardial infarction, history of cardiac surgery)

-Systemic Arterial Hypertension (High Blood Pressure)

Chronic respiratory disease (asthma, chronic obstructive pulmonary disease including chronic bronchitis or emphysema, or other pulmonary diseases)

-Diabetes mellitus

7

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.31781 Page 9 of 45
-Cancer -Chronic Liver Disease -Chronic Kidney Disease -Autoimmune Diseases -Severe Psychiatric Illness ** -History of transplantation -Immune suppression (HIV/AIDS, glucocorticoids, other immunosuppressant drugs, history of smoking) -Pregnancy *CFR= Case Fatality Rate is an indicator used during outbreaks to identify the number of individuals who succumb out of those who become infected ** In South Korea, 20% of deaths occurred in what they defined as Psychiatric Illness (J Korean Med Sci 2020; 35(10): e112).
8

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.31792 Page 10 of 45
Photo Redacted
9

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.318703 Page 11 of 45
Social distancing (6 feet) is also impossible in the receiving male and female areas as shown in image below in Main Jail Receving - Cells R3, R4, R5
Photo Redacted
CONCLUSIONS The leadership and staff at Oakland County Jail have in place some interventions as per CDC recommendations for COVID-19. However, as I have observed in other correctional facilities, adhering to some CDC recommendations to contain and mitigate a COVID-19 outbreak without implementing all of them and, critically, without the ability to achieve social distancing is insufficient to stop its spread. This epidemiological situation is not unique to Oakland County jail; it applies to all correctional facilities as witnessed by the growing number of outbreaks within correctional facilities with increasing
10

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.318714 Page 12 of 45
number of cases and deaths. This is a severe pandemic caused by a highly transmissible virus in crowded settings. Therefore, the single most important intervention in controlling a COVID-19 outbreak at Oakland County Jail is continuing to reduce population density to achieve meaning social distancing. In this context, unless more inmates are released from jail, protecting the medically vulnerable at high risk of developing severe disease and dying from COVID-19, is certainly almost impossible with current interventions.
I declare under penalty of perjury that the statements above are true and correct to the best of my knowledge.
Date: April 27, 2020
______________________________ Carlos Franco-Paredes, MD, MPH, DTMH (Gorgas) Associate Professor of Medicine
11

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.318725 Page 13 of 45
DOCUMENTS REVIEWED FOR THIS DECLARATION Declarations:
1. Captain Curtis Childs Affidavit. 2. Vicky-Lyn Warren Affidavit. 3. Sergeant Ryan Terry 4. Daily Inmate Population Report for 4/17/2020 by the Oakland County
Sheriff’s Office. 5. Inspection Order by Honorable Linda V. Parker. Scientific References and Relevant Newspaper Publications: 1. Walmsley R. World Prison Population List. 11th ed. London, UK:
International Centre for Prison Studies, Kings College; 2016. Available at: https://www.prisonstudies.org/sites/default/files/resources/downloads/world _prison_population_list_11th_edition_0.pdf. Accessed: April 27, 2020. 2. Herivel T, Wright P. Prison profiteers. Who makes money from mass incarceration? The New Press, New York, NY, U.S.A. 2007New York Lawyers for the Public Interest. Detained and denied healthcare access in immigration detention. 3. Kinner SA, Young JT. Understanding and improving the health of people who experience incarceration: An overview and synthesis. Epidemiol Rev 2018; 40: 4-11.
12

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.318736 Page 14 of 45
4. Prison Policy Initiative. Available at: https://www.prisonpolicy.org/reports/pie2020.html. Accessed: April 11, 2020.
5. Harding DJ, Morenoff JD, Nguyen AP, Bushway SD, Binswanger IA. A natural experiment study of the effects of imprisonment on violence in the community. Nat Hum Behav 2019; 3(7): 671-77.
6. Harding DJ. Do prisons makes us safer. Sci Am 2019. Available at: https://www.scientificamerican.com/article/do-prisons-make-us-safer/. Accessed: April 12, 2020.
7. Case A, Deaton A. Rising morbidity and mortality in midlife among white non-Hispanic Americans in the 21st century. Proc Natl Acad Sci USA 2015; 112 (49): 15078-83.
8. Berger ZD, Goldberg DS. Caught in the web – U.S. immigration and compound disadvantage. N Engl J Med 2019; 381(11): 993-995Harding DJ, Morenoff JD, Nguyen AP, Bushway SD. Short-and long-term effect of imprisonment on future felony convictions and prison admissions. Proc Natl Acad Sci 2017; 114 (42): 11103-11108.
9. Harding DJ, Morenoff JD, Herbert CW. Home is hard to find: neighborhood, institutions and the residential trajectories of returning prisoners. Ann Am Acad Pol Soc Sci 2013; 647(1): 214-236.
10.CDC-Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) Available at: https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html). Accessed: April 12, 2020.
11.Johns Hopkins University. Coronavirus Resource Center Available at: https://coronavirus.jhu.edu/map.html. Accessed: April 12, 2020.
12.The New York Times. Coronavirus in the U.S.: Latest map and case count – The New York Times. Available at: https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html?referringSource=articleShare. Accessed: April 27, 2020.
13.Fauci AS. Infectious diseases: considerations for the 21st century. Clin Infect Dis 2001; 32: 675-85.
14.Finnie TJR, Copley VR, Hall IM, Leach S. An analysis of influenza outbreaks in institutions and enclosed societies. Epidemiol Infect 2014; 14: 107-113.
15.Chao W-C, Liu P-Y, Wu C-L. Control of an H1N1 outbreak in a correctional facility in central Taiwan. J Microbiol Immunol Infect 2017; 50: 175-182.
16.Dolan K, Wirtz AL, Moazen B, Ndeffo-Mbah M, Galvani A, Kinner SA, Courtney R, McKee M, Amon JJ, Maher L, Hellard M, Beyrer C, Altice FL.
13

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.318747 Page 15 of 45
Global burden of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. Lancet 2016; 388 (10049): 1089-1102. 17.Prisons and custodial settings are part of a comprehensive response to COVID-19. Lancet Public Health 2020; 5(4): e188-e189. 18.CDC. Interim guidance on management of coronavirus disease 2019 (COVID-19) in correctional and detention facilities. Available at: https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html. Accessed: April 12, 2020. 19.Van Doremalen N, Bushmaker T, Morris DH, Holbrook MG, Gamble A, Williamson BN, Tamin A, Harcourt JL, Thornburg NJ, Gerber SI, LloydSmith JO, de Wit E, Munster VJ. Aerosol and surface stability of SARSCoV-2 as compared with SARS-CoV-1. N Engl J Med 2020; Mar 17. doi: 10.1056/NEJMc2004973. 20.Mizumoto K, Chowell G. Transmission potential of the novel coronavirus (COVID-19) onboard the diamond Princess Cruises Ship, 2020. Infect Dis Modelling 2020; 5: 264-270. 21.Mizumoto K, Kagaya K, Zarebski A, Chowell G. Estimating the asymptomatic proportion of coronavirus disease 2019 (COVID-19) cases on board the diamond Princess cruise ship, Yokohama, Japan, 2020. Euro Surveill 2020; 25 (10). doi: 10.2807/1560-7917.ES.2020.25.10.2000180. 22.Sanche S, Lin YT, Xu C, Romero-Severson E, Hengartner N, Ke R. High contagiousness and rapid spread of severe acute respiratory syndrome coronavirus 2. Emerg Infect Dis. 2020 Jul https://doi.org/10.3201/eid2607.200282. 23.Swerdlow DL, Finelli L. Preparation for possible sustained transmission of 2019 Novel Coronavirus. Lessons from previous pandemics. JAMA 2020; 323(12): 1129-30. 24.Patrozou E, Mermel LA. Does influenza transmission occur from asymptomatic infection or prior to symptom onset? Public Health Rep 2009; 124: 193-96. 25.Thompson R. Pandemic potential of 2019-nCoV.Lancet Infect Dis 2020; 20 March 20; doi.org/10.1016/S1473-3099 (20)30068-2. 26.Li R, Pei S, Chen B, Song , Zhang T, Shaman J. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARSCoV2). Science 10.1126/scienceabb3221 (2020). 27.World Prisons Brief. COVID-19 in prisons: a major public health risk. https://www.prisonstudies.org/news/covid-19-prisons-%E2%80%93-majorpublic-health-risk. Accessed: April 27, 2020. 28.Federal Bureau of Prisons. Available at: https://www.bop.gov/coronavirus/. Accessed: April 27, 2020.
14

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.318758 Page 16 of 45
29.New York Times. Chicago’s jail is top U.S. hot spot as virus spreads behind bars. April 8, 2020. Available at: https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jailchicago.html. Accessed: April 27, 2020.
30.Cabral J, Cuevas AG. Health inequities among Latinos/Hispanics: documentation status as a determinant of health. J Racial Ethnic Health Disp 2020; Feb 5. doi: 10.1007/s40615-020-00710-0.
31.Gransky M, Keller A, Venters H. Death rates among detained immigrants in the United States. In J Environ Res Public health 2015; 12, 14414-14419.
32.Farmer PE, Nizeye B, Stulac S, Keshavjee S. Structural violence and clinical medicine. PLoS Med 2006; 3(10); e449.
33.The Guardian. Data form US south shows African Americans hit hardest by COVID-19. https://www.theguardian.com/world/2020/apr/08/blackamericans-coronavirus-us-south-data. Accessed: April 27, 2020.
34.MMWR. COVID-19 in a Long-Term Care Facility — King County, Washington, February 27–March 9, 2020; March 27, 2020: 69(12): 339-342.
35.The United States Department of Justice. Aging in Prison. National Institute of Corrections. Available at: https://nicic.gov/aging-prison. Accessed: April 24, 2020.
36.Williams BA, Stern MF, Mellow j, Safer M, Greifinger RB. Aging in correctional custoy: setting a policy agenda for older prisoner health care. Am J Public Health 2012; 102(8): 1475-1481.
37.Ghandi RT, Lynch JB, Del Rio C. Mild or moderate Covid-19. N Engl J Med 2020; April 24. DOI: 10.1056/NEJMcp2009249.
38.Gandhi M, Yokoe DS, Havlir DV. Asymptomatic transmission, the Achilles’ Heel of current strategies to control Covid-19. N Engl J Med 2020. April 24. DOI: 10.1056/NEJMe2009758.
39.Arons MM, Hatfield KM, Reddy SC, et al. Presymptomatic SARS-CoV-2 infections and transmission in a skilled nursing facility. N Engl J Med 2020. DOI: 10.1056/NEJMoa2008457.
40.Sharsftein JM, Becker SJ, Mello MM. Diagnostic testing for the novel coronavirus. JAMA 2020; 323(15): 1437-38.
41.He X, Lau EHY, Wu P, et al. Temporal dynamics in viral shedding and transmissibility of COVID-19. Nature Med 2020; DOI: 10.1038/s41591020-0869-5.
42.Chen Y, Chen L, Deng Q, et al. The presence of SARS-CoV-2 RNA in feces of COVID-19 patients. J Med Virol. 2020 Apr 3. doi: 10.1002/jmv.25825.
43.Coronavirus Michigan Data. Available at: https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173--,00.html. Accessed: April 26, 2020.
15

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.318769 Page 17 of 45

1
EXHIBIT A.

PERSONAL INFORMATION Carlos Franco-Paredes, M.D., M.P.H.

CURRENT PROFESSIONAL POSITION AND ACTIVITIES:
 Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus and Infectious Diseases (July 2018 - ongoing).
 Fellowship Program Director, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus (March 2019- ongoing).

EDUCATION

1989 -1995

M.D. - La Salle University School of Medicine, Mexico

City, Mexico

1996-1999 Internship and Residency in Internal Medicine, Emory

University School of Medicine Affiliated Hospitals, Atlanta,

GA

1999-2002 Fellowship in Infectious Diseases, Emory University School of

Medicine Affiliated Hospitals, Atlanta, GA

1999-2002 Fellow in AIDS International Training and Research Program,

NIH Fogarty Institute, Rollins School of Public Health, Emory

University, Atlanta, GA

1999 - 2002

Masters Degree in Public Health (M.P.H.) Rollins School

of Public Health, Emory University, Atlanta, GA, Global

Health Track

2001-2002 Chief Medical Resident, Grady Memorial Hospital, Emory

University

School of Medicine, Atlanta, GA

2006

Diploma Course in Tropical Medicine, Gorgas. University of

Alabama, Birmingham and Universidad Cayetano Heredia,

Lima Peru

16

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.31870 Page 18 of 45
CERTIFICATIONS
1999-Present Diplomat in Internal Medicine American Board of Internal Medicine (Recertification 11/2010-11/2020)
2001-present Diplomat in Infectious Diseases, American Board of Internal Medicine, Infectious Diseases Subspecialty (Recertification 04/2011-04/2021)
2005-present Travel Medicine Certification by the International Society of Travel Medicine
2007-present Tropical Medicine Certification by the American Society of Tropical Medicine – Diploma in Tropical Medicine and Hygiene (DTMH - Gorgas)
EMPLOYMENT HISTORY:  2002 - 2004 - Advisor to the Director of the National Center for Child and Adolescent Health and of the National Immunization Council (NIP), Ministry of Health Mexico; my activities included critical review of current national health plans on vaccination, infectious diseases, soiltransmitted helminthic control programs; meningococcal disease outbreaks in the jail system, an outbreak of imported measles in 20032004 and bioterrorism and influenza pandemic preparedness. I represented the NIP at meetings of the Global Health Security Action Group preparation of National preparedness and response plans for Mexico
 2005 – 2011- Co-Director Travel Well Clinic, Emory University Emory Midtown Hospital
 2004- 8/2009 -Assistant Professor of Medicine Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA
 3/2008-10/2009 Consultant WHO, HQ, Geneva, Influenza Vaccine  9/2009- 3/2011 Associate Professor of Medicine
Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA  1/2007 – 3/2011 Assistant Professor of Public Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA
17

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.31881 Page 19 of 45
 4/2011 –5/2013 - Associate Professor of Public Health in Global Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA
 2010 - WHO HQ Consultant for a 4-month-period on the Deployment of H1N1 influenza vaccine in the African Region, Jan to March 2010, Switzerland Geneva, WHO HQ 2010 sponsored by John Snow Inc. USAID, Washington, D.C.
 2014-2015 - Consultant International Association of Immunization Managers, Regional Meeting of the Middle Eastern and North African Countries and Sub Saharan Africa, held in Durban South Africa, Sept 2014; and as rapporteur of the Inaugural Conference, 3-4 March 2015, Istanbul, Turkey.
 3/2011- 5/2017 - Phoebe Physician Group –Infectious Diseases Clinician Phoebe Putney Memorial Hospital, Albany, GA.
 5/2015 - 9/2015 - Consultant Surveillance of Enteric Fever in Asia (Pakistan, Indonesia, Bangladesh, Nepal, India) March 2015-October 2015.
 June 19, 2017-June 31, 2018–Visiting Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver, Anschutz Medical Campus
 June 2004- present - Adjunct Professor of Pediatrics, Division of Clinical Research, Hospital Infantil de México, Federico Gómez, México City, México. Investigador Nacional Nivel II, Sistema Nacional de Investigadores (12/2019); SNI III Sistema Nacional de Investigadores (1/2020-); Investigador Clínico Nivel E, Sistema Nacional de Hospitales
HONORS AND AWARDS
1995 Top Graduating Student, La Salle School of Medicine 1997 Award for Academic Excellence in Internal Medicine, EUSM
1999 Alpha Omega Alpha (AOA) House staff Officer, EUSM
2002 Pillar of Excellence Award. Fulton County Department of Health and Wellness Communicable Disease Prevention Branch, Atlanta GA
18

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.31892 Page 20 of 45

2002 Emory University Humanitarian Award for extraordinary service in Leadership Betterment of the Human Condition the Emory University Rollins School of Public Health

2002 Winner of the Essay Contest on the Health of Developing Countries:

Causes and Effects in Relation to Economics or Law, sponsored by the Center for International Development at Harvard University and the World Health Organization Commission on Macroeconomics Health with the essay "Infectious Diseases, Non-zero Sum Thinking and the Developing World”

2002 “James W. Alley” Award for Outstanding Service to Disadvantaged Populations, Rollins School of Public Health of Emory University May 2002. Received during Commencement Ceremony Graduation to obtain the Degree of Masters in Public Health

2006 Golden Apple Award for Excellence in Teaching, Emory University, SOM

2006 Conference

Best Conference Award Conference, “Juha Kokko” Best Department of Medicine, EUSM

2007 “Jack Shulman” Award Infectious Disease fellowship, Excellence in Teaching Award, Division of Infectious Diseases, EUSM

2007 Emerging Threats in Public Health: Pandemic Influenza CDROM, APHA’s Public Health Education and Health Promotion Section, Annual Public Health Materials Contest award

2009 National Center for Preparedness, Detection, and Control of Infectious Diseases. Honor Award Certificate for an exemplary partnership in clinical and epidemiologic monitoring of illness related to international travel. NCPDCID Recognition Awards Ceremony, April 2009. CDC, Atlanta, GA

2012 The ISTM Awards Committee, directed by Prof. Herbert DuPont, selected the article "Rethinking typhoid fever vaccines" in the Journal of Travel Medicine (Best Review Article)

19

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.319803 Page 21 of 45

2012 Residency Program

Best Clinical Teacher. Albany Family Medicine

2018 Outstanding Educator Award – Infectious Diseases Fellowship, Division of Infectious Diseases, University of Colorado, Anschutz Medical Center, Aurora Colorado

EDITORSHIP AND EDITORIAL BOARDS

2007-Present Deputy/Associate Editor PLoS Neglected Tropical Disease

Public Library of Science

2017-2018

Deputy Editor, Annals of Clinical Microbiology and

Antimicrobials

BMC

2007-2019 Core Faculty International AIDS Society-USA -Travel and Tropical Medicine/HIV/AIDS

INTERNATIONAL COMMITTEES 2018- Member of the Examination Committee of the International Society of
Travel Medicine. Developing Examination Questions and Proctoring the Certificate in Traveler’s Health Examination Proctor Certificate of Traveler’s Health Examination (CTH) as part of the International Society of Travel Medicine– 12th Asia-Pacific Travel Health Conference, Thailand 21-24 March 2019 Proctor Certificate of Traveler’s Health Examination (CTH), Atlanta, GA, September, 2019
PUBLICATIONS
BOOKS Franco-Paredes C, Santos-Preciado JI. Neglected Tropical Diseases in Latin America and the Caribbean, Springer-Verlag, 2015. ISBN-13: 978-3709114216 ISBN-10: 3709114217
Franco-Paredes C. Core Concepts in Clinical Infectious Diseases, Academic Press, Elsevier, March 2016. ISBN: 978-0-12-804423-0

20

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.319814 Page 22 of 45
RESEARCH ORIGINAL ARTICLES (clinical, basic science, other) in refereed journals: 1. Del Rio C, Franco-Paredes C, Duffus W, Barragan M, Hicks G. Routinely Recommending HIV Testing at a Large Urban Urgent-Care Clinic – Atlanta, GA. MMWR Morbid Mortal Wkly Rep 2001; 50:538-541. 2. Del Rio C, Barragán M, Franco-Paredes C. Pneumocystis carinii Pneumonia. N Engl J Med 2004; 351:1262-1263. 3. Barragan M, Hicks G, Williams M, Franco-Paredes C, Duffus W, Del Rio C. Health Literacy is Associated with HIV Test Acceptance. J Gen Intern Med 2005; 20:422-425. 4. Rodriguez-Morales A, Arria M, Rojas-Mirabal J, Borges E, Benitez J, Herrera M, Villalobos C, Maldonado A, Rubio N, Franco-Paredes C. Lepidopterism Due to the Exposure of the Moth Hylesia metabus in Northeastern Venezuela. Am J Trop Med Hyg 2005; 73:991-993. 5. Rodriguez-Morales A, Sánchez E, Arria M, Vargas M, Piccolo C, Colina R, Franco-Paredes C. White Blood Cell Counts in Plasmodium vivax. J Infect Dis 2005; 192:1675-1676. 6. Franco-Paredes C, Nicolls D, Dismukes R, Kozarsky P. Persistent Tropical Infectious Diseases among Sudanese Refugees Living in the US. Am J Trop Med Hyg 2005; 73: 1. 7. Osorio-Pinzon J, Moncada L, Franco-Paredes C. Role of Ivermectin in the Treatment of Severe Orbital Myiasis Due to Cochliomyia hominivorax. Clin Infect Dis 2006; 3: e57-9. 8. Rodriguez-Morales A, Franco-Paredes C. Impact of Plasmodium vivax Malaria during Pregnancy in Northeastern Venezuela. Am J Trop Med Hyg 2006; 74:273-277. 9. Rodriguez-Morales A, Nestor P, Arria M, Franco-Paredes C. Impact of Imported Malaria on the Burden of Malaria in Northeastern Venezuela. J Travel Med 2006; 13:15-20. 10. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Is anemia in Plasmodium vivax More Severe and More Frequent than in Plasmodium falciparum? Am J Med 2006; 119:e9-10. 11. Hicks G, Barragan M, Franco-Paredes C, Williams MV, del Rio C. Health Literacy is a Predictor of HIV Knowledge. Fam Med J 2006; 10:717-723. 12. Cardenas R, Sandoval C, Rodriguez-Morales A, Franco-Paredes C. Impact of Climate Variability in the Occurrence of Leishmaniasis in Northeastern Colombia. Am J Trop Med Hyg 2006; 75:273-7.
21

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.319825 Page 23 of 45
13. Franco-Paredes C, Nicolls D, Dismukes R, Wilson M, Jones D, Workowski K, Kozarsky P. Persistent and Untreated Tropical Infectious Diseases among Sudanese Refugees in the US. Am J Trop Med Hyg 2007; 77:633-635. 14. Rodríguez-Morales AJ, Sanchez E, Arria M, Vargas M, Piccolo C, Colina R, Franco-Paredes C. Hemoglobin and haematocrit: The Threefold Conversion is also Non Valid for Assessing Anaemia in Plasmodium vivax Malaria-endemic Settings. Malaria J 2007; 6:166. 15. Franco-Paredes C, Jones D, Rodriguez-Morales AJ, Santos-Preciado JI. Improving the Health of Neglected Populations in Latin America. BMC Public Health 2007; 7. 16. Kelly C, Hernández I, Franco-Paredes C, Del Rio C. The Clinical and Epidemiologic Characteristics of Foreign-born Latinos with HIV/AIDS at an Urban HIV Clinic. AIDS Reader 2007; 17:73-88. 17. Hotez PJ, Bottazzi ME, Franco-Paredes C, Ault SK, Roses-Periago M. The Neglected Tropical Diseases of Latin America and the Caribbean: Estimated Disease Burden and Distribution and a Roadmap for Control and Elimination. PLoS Negl Trop Dis 2008; 2:e300. 18. Tellez I, Barragan M, Nelson K, Del Rio C, Franco-Paredes C. Pneumocystis jiroveci (PCP) in the Inner City: A Persistent and Deadly Pathogen. Am J Med Sci 2008; 335:192-197. 19. Rodriguez-Morales AJ, Olinda, Franco-Paredes C. Cutaneous Leishmaniasis Imported from Colombia to Northcentral Venezuela: Implications for Travel Advice. Trav Med Infect Dis 2008; 6(6): 376-9. 20. Jacob J, Kozarsky P, Dismukes R, Bynoe V, Margoles L, Leonard M, Tellez I, Franco-Paredes C. Five-Year Experience with Type 1 and Type 2 Reactions in Hansen’s Disease at a US Travel Clinic. Am J Trop Med Hygiene 2008; 79:452454. 21. Delgado O, Silva S, Coraspe V, Ribas MA, Rodriguez-Morales AJ, Navarro P, Franco-Paredes C. Epidemiology of Cutaneous Leishmaniasis in Children and Adolescents in Venezuela. Trop Biomed. 2008; 25(3):178-83. 22. Franco-Paredes C, Lammoglia L, Hernandez I, Santos-Preciado JI. Epidemiology and Outcomes of Bacterial Meningitis in Mexican Children: 10Years' Experience (1993-2003). Int J Infect Dis 2008; 12:380-386. 23. Pedroza A, Huerta GJ, Garcia ML, Rojas A, Lopez I, Peñagos M, FrancoParedes C, Deroche C, Mascareñas C. The Safety and Immunogenicity of Influenza Vaccine in Children with Asthma in Mexico. Int J Infect Dis 2009; 13(4): 469-75. 24. Museru O, Franco-Paredes C. Epidemiology and Outcomes of Hepatitis B Virus Infection among Refugees Seen at U.S. Travel Medicine Clinic: 2005-2008. Travel Med Infect Dis 2009; 7: 171-179.
22

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.319836 Page 24 of 45
25. Rodriguez-Morales AJ, Olinda M, Franco-Paredes C. Imported Cases of Malaria Admitted to Two Hospitals of Margarita Island, Venezuela: 1998-2005. Travel Med Infect Dis 2009: (1): 48-45. 26. Kelley CF, Checkley W, Mannino DM, Franco-Paredes C, Del Rio C, Holguin F. Trends in Hospitalizations for AIDS-associated Pneumocystis jiroveci Pneumonia in the United States (1986-2005). Chest 2009; 136(1): 190-7. 27. Carranza M, Newton O, Franco-Paredes C, Villasenor A. Clinical Outcomes of Mexican Children with Febrile Acute Upper Respiratory Infection: No Impact of Antibiotic Therapy. Int J Infect Dis 2010; 14(9): e759-63. 28. Museru O, Vargas M, Kinyua M, Alexander KT, Franco-Paredes C, Oladele A. Hepatitis B Virus Infection among Refugees Resettled in the U.S.: High Prevalence and Challenges in Access to Health Care. J Immigrant Minor Health 2010; 29. Moro P, Thompson B, Santos-Preciado JI, Weniger B, Chen R, FrancoParedes C. Needlestick injuries in Mexico City sanitation workers. Revista Panamericana de Salud Pública/Pan American Journal of Public Health 2010; 27 (6): 467-8. 30. Barragan M, Holtz M, Franco-Paredes C, Leonard M. The Untimely Misfortune of Tuberculosis Diagnosis at time of Death. Infect Dis Clin Pract 2010; 18(6):1-7. 31. Hochberg N, Armstrong W, Wang W, Sheth A, Moro R, Montgomery S, Steuer F, Lennox J, Franco-Paredes C. High Prevalence of Persistent Parasitic Infections in Foreign-born HIV-infected Persons in the United States. PLoS Neglect Dis 2011; 5(4): e1034. 32. Larocque RC, Rao SR, Lee J, Ansdell V, Yates JA, Schwartz BS, Knouse M, Cahill J, Hagmann S, Vinetz J, Connor BA, Goad JA, Oladele A, Alvarez S, Stauffer W, Walker P, Kozarsky P, Franco-Paredes C, Dismukes R, Rosen J, Hynes NA, Jacquerioz F, McLellan S, Hale D, Sofarelli T, Schoenfeld D, Marano N, Brunette G, Jentes ES, Yanni E, Sotir MJ, Ryan ET; the Global TravEpiNet Consortium. Global TravEpiNet: A National Consortium of Clinics Providing Care to International Travelers--Analysis of Demographic Characteristics, Travel Destinations, and Pretravel Healthcare of High-Risk US International Travelers, 2009-2011. Clin Infect Dis. 2012; 54(4):455-462. 33. Espinosa-Padilla SE, Murata C, Estrada-Parra S, Santos-Argumendo L, Mascarenas C, Franco-Paredes C, Espinosa-Rosales FJ. Immunogenicity of a 23valent pneumococcal polysaccharide vaccine among Mexican children. Arch Med Res 2012; 34. Harris JR, Lockhart SR, Sondermeyer G, Vugia DJ, Crist MB, D'Angelo MT, Sellers B, Franco-Paredes C, Makvandi M, Smelser C, Greene J, Stanek D, Signs
23

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.319847 Page 25 of 45
K, Nett RJ, Chiller T, Park BJ. Cryptococcus gattii infections in multiple states outside the US Pacific Northwest. Emerg Infect Dis. 2013; 19 (10):1620-6. 35. Franco-Paredes C. Aerobic actinomycetes that masquerade as pulmonary tuberculosis. Bol Med Hosp Infant Mex 2014; 71(1): 36-40. 36. Chastain DB, Ngando I, Bland CM, Franco-Paredes C, and Hawkins WA. Effect of the 2014 Clinical and Laboratory Standard Institute urine-specific breakpoints on cefazolin susceptibility rates at a community teaching hospital. Ann Clin Microbiol Antimicrob 2017; 16(1): 43. 37. Kashef Hamadani BH, Franco-Paredes C, MCollister B, Shapiro L, Beckham JD, Henao-Martinez AF. Cryptococcosis and cryptococcal meningitis- new predictors and clinical outcomes at a United States Academic Medical Center. Mycoses 2017; doi: 10.1111/myc.12742. 38. Chastain DB, Franco-Paredes C, Wheeler SE, Olubajo B, Hawkins A. Evaluating Guideline Adherence regarding Empirical Vancomycin use in patients with neutropenic fever. Int J Infect Dis 2018; Feb 22. pii: S1201-9712(18)30052-3. doi: 10.1016/j.ijid.2018.02.016. PMID: 29477362 39. Parra-Henao G, Amioka E, Franco-Paredes C, Colborn KL, Henao-Martinez AF. Heart failure symptoms and ecological factors as predictors of Chagas disease among indigenous communities in the Sierra Nevada de Santa Marta, Colombia. J Card Fail 2018; Mar 26. pii: S1071-9164(18)30119-2. doi: 10.1016/j.cardfail.2018.03.007. 40. Vela Duarte D, Henao-Martinez AF, Nyberg E, Castellanos P, FrancoParedes C, Chastain DB, Lacunar Stroke in Cryptococcal Meningitis: Clinical and Radiographic Features. J Stroke and Cerebrovascular Disease 2019; 41. Chastain DB, Henao-Martinez AF, Franco-Paredes C. A clinical pharmacist survey of prophylactic strategies used to prevent adverse events of lipid-associated formulations of amphotericin B. Infect Dis 2019; 42. Henao-Martínez AF, Chadalawada S, Villamil-Gomez WE, DeSanto K, Rassi A Jr, Franco-Paredes C. Duration and determinants of Chagas latency: an etiology and risk systematic review protocol. JBI Database System Rev Implement Rep. 2019 Jul 22. doi: 10.11124/JBISRIR-D-18-00018.
CONSENSUS STATEMENTS
Pritchett MA, Oberg CL, Belanger A, De Cardenas J, Cheng G, Cumbo Nacheli G, Franco-Paredes C, Singh J, Toth J, Zgoda M, Folch E. Society for Advanced Bronchoscopy Consensus Statement and Guidelines for bronchoscopy and airway management amid the COVID-19 pandemic. J Thorac Dis 2020; http:/dx.doi.org/10.21037/jtd.2020.04.32
24

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.319858 Page 26 of 45
RESEARCH ORIGINAL ARTICLES AS COLLABORATOR (clinical, basic science, other) in refereed journals: 43. Benator D, Bhattacharya M, Bozeman L, Burman W, Cantazaro A, Chaisson R, Gordin F, Horsburgh CR, Horton J, Khan A, Lahart C, Metchock B, Pachucki C, Stanton L, Vernon A, Villarino ME, Wang YC, Weiner M, Weis S; Tuberculosis Trials Consortium. Rifapentine and Isoniazid Once a Week versus Rifampicin and Isoniazid twice a week for Treatment of Drug-susceptible Pulmonary Tuberculosis in HIV-Negative Patients: a Randomised Clinical Trial. Lancet 2002; 360:528-34. 44. Weiner M, Burman W, Vernon A, Benator D, Peloquin CA, Khan A, Weis S, King B, Shah N, Hodge T; Tuberculosis Trials Consortium. Low INH Concentrations and Outcome of Tuberculosis Treatment with Once-weekly INH and Rifapentine. Am J Rev Crit Care Med 2003; 167:1341-1347. 45. Jasmer RM, Bozeman L, Schwartzman K, Cave MD, Saukkonen JJ, Metchock B, Khan A, Burman WJ; Tuberculosis Trials Consortium. Recurrent Tuberculosis in the United States and Canada: Relapse or Reinfection? Am J Respir Crit Care Med 2004; 170:1360-1366. Mendelson M, Davis XM, Jensenius M, Keystone JS, von Sonnenburg F, Hale DC, Burchard GD, Field V, Vincent P, Freedman DO; GeoSentinel Surveillance Network. Health risks in travelers to South Africa: the GeoSentinel experience and implications for the 2010 FIFA World Cup. Am J Trop Med Hyg. 2010; 82(6): 991-5. 46. Hagmann S, Neugebauer R, Schwartz E, Perret C, Castelli F, Barnett ED, Stauffer WM; GeoSentinel Surveillance Network. Illness in children after international travel: analysis from the GeoSentinel Surveillance Network. Pediatrics. 2010; 1 25(5): e1072-80. 47. Schlagenhauf P, Chen LH, Wilson ME, Freedman DO, Tcheng D, Schwartz E, Pandey P, Weber R, Nadal D, Berger C, von Sonnenburg F, Keystone J, Leder K; GeoSentinel Surveillance Network. Sex and gender differences in travelassociated disease. Clin Infect Dis. 2010; 50 (6): 826-32. 48. Jensenius M, Davis X, von Sonnenburg F, Schwartz E, Keystone JS, Leder K, Lopéz-Véléz R, Caumes E, Cramer JP, Chen L, Parola P; GeoSentinel Surveillance Network. Multicener GeoSentinel analysis of rickettsial diseases in international travelers, 1996-2008. Emerg Infect Dis. 2009; 15(11):1791-8. 49. Chen LH, Wilson ME, Davis X, Loutan L, Schwartz E, Keystone J, Hale D, Lim PL, McCarthy A, Gkrania-Klotsas E, Schlagenhauf P; GeoSentinel Surveillance Network. Emerg Infect Dis. 2009; 15(11): 1773-82. 50. Nicolls DJ, Weld LH, Schwartz E, Reed C, von Sonnenburg F, Freedman DO, Kozarsky PE; GeoSentinel Surveillance Network. Characteristics of
25

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.319869 Page 27 of 45
schistosomiasis in travelers reported to the GeoSentinel Surveillance Network 1997-2008. Am J Trop Med Hyg 2008; 79(5): 729-34. 51. Greenwood Z, Black J, Weld L, O'Brien D, Leder K, Von Sonnenburg F, Pandey P, Schwartz E, Connor BA, Brown G, Freedman DO, Torresi J; GeoSentinel Surveillance Network. Gastrointestinal infection among international travelers globally. J Travel Med 2008; 1 5(4):221-8. 52. Davis XM, MacDonald S, Borwein S, Freedman DO, Kozarsky PE, von Sonnenburg F, Keystone JS, Lim PL, Marano N; GeoSentinel Surveillance Network. Health risks in travelers to China: the GeoSentinel experience and implications for the 2008 Beijing Olympics. Am J Trop Med Hyg 2008; 79(1): 4-8. 53. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Vaccine preventable diseases in returned international travelers: results from the GeoSentinel Surveillance Network. Vaccine 2010; 28(46):7389-95. 54. Esposito DH, Han PV, Kozarsky PE, Walker PF, Gkrania-Klotsas E, Barnett ED, Libman M, McCarthy AE, Field V, Connor BA, Schwartz E, MacDonald S, Sotir MJ; GeoSentinel Surveillance Network. Characteristics and spectrum of disease among ill returned travelers from pre- and post-earthquake Haiti: The GeoSentinel experience. Am J Trop Med Hyg 2012 Jan; 86(1):23-8. 55. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Latitudinal patterns of travel among returned travelers with influenza: results from the GeoSentinel Surveillance Network, 1997-2007. J Travel Med 2012; 19(1):4-8. doi: 10.1111/j.1708-8305.2011.00579.x.
REVIEW, EDITORIALS, CASE SERIES, CASE REPORT ARTICLES: 56. Franco-Paredes C, Jurado R. Ankylosing Spondylitis Fibrocavitary Lung Disease. Clin Infect Dis 2001; 32:1062.
57. Franco-Paredes C, Evans J, Jurado R. Diabetes Insipidus due to Streptococcus pneumoniae Meningitis. Arch Intern Med 2001; 161; 1114-15.
58. Franco-Paredes C, Blumberg H. Tuberculosis Psoas Abscess caused by Mycobacterium tuberculosis and Staphylococcus aureus: Case Report and Review. Am J Med Sci 2001; 321:415-17.
59. Jurado R, Franco-Paredes C. Aspiration Pneumonia: A Misnomer. Clin Infect Dis 2001;33:1612-3.
60. Del Rio Carlos, Franco-Paredes C. Bioterrorism: A New Public Health Problem. Sal Publ Mex 2001; 43:585-88.
26

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.31970 Page 28 of 45
61. Franco-Paredes C, Blumberg H. New Concepts in the Diagnosis of Latent Tuberculosis Infection. Consultant 2001; 41:1105-1121.
62. Franco-Paredes C, Bellehemeur T, Sanghi P, et al. Aseptic Meningitis and Retrobulbar Optic Neuritis Caused By VZV Preceding the Onset of PORN in a Patient with AIDS. AIDS 2002; 16:1045-1049.
63. Franco-Paredes C, Mehrabi D, Calle J, Jurado R. Night Sweats Revisited. Infect Dis Clin Pract 2002; 11:291-293.
64. Franco-Paredes C, Jurado R, Del Rio C. The Clinical Utility of the Urine Gram Stain. Infect Dis Clin Pract 2002; 11:561-563.
65. Franco-Paredes C, Agudelo C. Editorial Response: The Ever Expanding Clinical Spectrum of Tuberculosis. J Clin Rheumatol 2002;8:1-2.
66. Franco-Paredes C, Rebolledo P, Folch E, Hernandez I, Del Rio C. Diffuse CD8 Lymphocytosis Syndrome in HIV-infected Patients. AIDS Reader 2002; 12:408-13.
67. Franco-Paredes C. Human Immunodeficiency Virus Infection as a Risk Factor for Tuberculosis Infection and Clinical Disease. Infect Med 2002; 19:475479.
68. Franco-Paredes C, Leonard M, Jurado R, Blumberg H. Tuberculosis of the Pancreas. Report of two cases and Review of the Literature. Am J Med Sci 2002; 323(1): 54-58.
69. DiazGranados C, Franco-Paredes C, Steinberg J. A Long Suffering Patient with New Abdominal Pain. Clin Infect Dis 2002; 34(9):1213-1214; 1267-1268.
70. Franco-Paredes C, Martin K. Extranodal Rosai-Dorfman Manifested in the Meninges. Southern Med J 2002; 95(9): 1101-1104.
71. Franco-Paredes C, Workowski K, Harris M. Infective EndocarditisEndarteritis Complicating Coarctation of the Aorta. Am J Med 2002; 112(7):59092.
72. Folch E, Hernandez I, Barragan M, Franco-Paredes C. Infectious Disease, Non-Zero Sum Thinking and the Developing World. Am J Med Sci 2003; 326:6672.
73. Franco-Paredes C, Santos Preciado JI. Parasitology Resources on the World Wide Web: A Powerful Tool for Infectious Diseases Practitioners. Clin Infect Dis 2003; 37:694-701.
27

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.31981 Page 29 of 45
74. Franco-Paredes C, Tellez I, Santos-Preciado JI. Monkeypox Virus Infection Appears in the Americas. Salud Publ Mex 2003; 45:428-430.
75. Franco-Paredes C, Del Rio C, Nava Frías M, Rangel Frausto S, Téllez I, Santos Preciado JI. Confronting Bioterrorism: Epidemiologic, Clinical, and Preventive Aspects of Smallpox. Sal Publ Mex 2003; 45:298-309.
76. Franco-Paredes C, Kuri-Morales P, Alvarez-Lucas C, Zavala E, Betancourt M, Nava-Frias M, Santos-Preciado JI. Severe Acute Respiratory Syndrome: A Global View of the Epidemic. Sal Publ Mex 2003; 45:211-220.
77. Huneycut D, Folch E, Franco-Paredes C. Atypical Manifestations of Infections in Patients with Familial Dysautonomia. Am J Med 2003; 115(6): 505506.
78. Franco-Paredes C, Sanghi P. Progressive Multifocal Leukoencephalopathy. Infect Med 2003; 20(8):376.
79. Franco-Paredes C, Guarner J, McCall C, Mehrabi D, Del Rio C. Clinical and Pathological Recognition of Leprosy. Am J Med 2003; 114(3):246-7.
80. Franco-Paredes C, Lammoglia L, Santos Preciado JI. Historical Perspective of Smallpox in Mexico: Origins, Elimination, and Risk of Reintroduction due to Bioterrorism. Gac Med Mex 2004; 141:321-328.
81. Santos-Preciado JI, Franco-Paredes C. Influenza Vaccine in Childhood: a Preventive Strategy of National Priority. Salud Publ Mex 2004; 46:498-500.
82. Almeida L, Franco-Paredes C, Pérez LF, Santos JI. Meningococcal Disease: Preventive and Clinical Aspects. Salud Publ Mex 2004; 46(5):438-50.
83. Franco-Paredes C, Téllez I, Del Rio C. The Inverse Relationship between Decreased Infectious Diseases and Increased Inflammatory Disease Occurrence. Arch Med Res 2004; 35:258-26.
84. Arria M, Rodríguez-Morales A, Franco-Paredes C. Galeria Ecoepidemiológica de la Cuenca Amazónica. Rev Peru Salud Publ 2005; 22:236-240.
85. Franco-Paredes C, Lammoglia L, Santos-Preciado JI. The Spanish Royal Philanthropic Expedition to Bring Smallpox Vaccination to the New World and Asia in the 19th Century. Clin Infect Dis 2005; 41:1285-1289.
86. Diaz-Borjon A, Lim S, Franco-Paredes C. Multifocal Septic Arthritis: An Unusual Complication of Invasive Streptococcus pyogenes Infection. Am J Med 2005. 118(8): 924-925.
28

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.31992 Page 30 of 45
87. Franco-Paredes C, Rodríguez A. Lepromatous Leprosy. Infect Med 2005
88. Santos-Preciado JI, Franco-Paredes C. Tratamiento Acortado Estrictamente Supervisado (TAES o DOTS) Para Tuberculosis en Poblaciones Con Niveles Moderados de Farmacorresistencia: Perspectiva del Impacto Internacional. Rev Inv Clin 2005; 57:488-490.
89. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Severe Thrombocytopenia, Reply to Spinello et al. Clin Infect Dis 2005; 41:1211-1212.
90. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky P. Reply to Newton et al. Clin Infect Dis 2005;41:1688-1689.
91. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Occurrence of Thrombocytopenia in Plasmodium vivax malaria. Clin Infect Dis 2005;41:130-131.
92. Franco-Paredes C, Rodríguez-Morales A, Santos-Preciado JI. Bioterrorism: Preparing for the Unexpected. Rev Inv Clin 2005; 57: 57(5):695-705.
93. Franco-Paredes C, Tellez I, Del Rio C, Santos-Preciado JI. Pandemic Influenza: Impact of Avian Influenza. Salud Publ Mex 2005; 2: 47(2):107-9.
94. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky D. Neurotoxicity Associated To Misdiagnosis of Malaria. Clin Infect Dis 2005; 40:1710-1711.
95. Rodríguez-Morales A, Benitez J, Franco-Paredes C. Plasmodium vivax Malaria Imported from a rural Area Near Caracas Venezuela? J Trav Med 2006; 13:325-326.
96. Franco-Paredes C, Tellez I, Del Rio C. Rapid HIV Testing. Current HIV/AIDS Reports 2006; 3:169-75.
97. Franco-Paredes C, Hidron A, Steinberg JP. Photo Quiz: An 82-year-old Female from Guyana with Fever and Back pain. Chyluria due to Wuchereria bancrofti Infection. Clin Infect Dis 2006; 42 (9): 1297; 1340-1341.
98. Franco-Paredes C, Kozarsky P, Nicolls D, Dismukes R. Pelvic Echinococcosis in a Northern Iraqi Refugee. J Trav Med 2006. 13 (2): 119-122.
99. Franco-Paredes C, Santos-Preciado JI. Prevention of Malaria in Travelers. Lancet Infect Dis 2006; 6:139-149.
100. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42: 731-732.
29

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.410903 Page 31 of 45
101. Franco-Paredes C, Diaz-Borjon A, Barragán L, Senger M, Leonard M. The Ever Expanding Association between Tuberculosis and Rheumatologic Diseases. Am J Med 2006; 119:470-477.
102. Franco-Paredes C, Rouphael N, Del Rio C, Santos-Preciado JI. Vaccination Strategies to Prevent Tuberculosis in the New Millennium: From BCG to New Vaccine Candidates. Int J Infect Dis 2006; 10:93-102.
103. Tellez I, Calderon O, Franco-Paredes C, Del Rio C. West Nile Virus: A Reality in Mexico. Gac Med Mex 2006; 142:493-9.
104. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42:731-732.
105. Kieny MP, Costa A, Carrasco P, Perichov Y, Franco-Paredes C, SantosPreciado JI, et al. A Global Pandemic Influenza Vaccine Action Plan. Vaccine 2006; 24:6367-6370.
106. Franco-Paredes C, Anna Von, Alicia Hidron, Alfonso J. Rodríguez-Morales, Ildefonso Tellez, Maribel Barragán, Danielle Jones, Cesar G. Náquira, Jorge Mendez. Chagas Disease: An Impediment in Achieving the Millennium Development Goals in Latin America. BMC Int Health Hum Rights 2007; 7:7.
107. Von A, Zaragoza E, Jones D, Rodriguez-Morales A, Franco-Paredes C. New Insights into Chagas Disease: A Neglected Disease in Latin America. J Infect Developing Countries 2007; 1:99-111.
108. Tellez I, Franco-Paredes C, Caliendo A, Del Rio C. Rapid HIV Test: A Primer for Clinicians. Infect Med 2007; 24:381-385.
109. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 1. General Aspects and Immunopathogenesis. Clin Cardiol 2007; 30:195-199.
110. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 2. Myocardial Manifestations of Parasitic Diseases. Clin Cardiol 2007; 30:218-222.
111. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 3. Pericardial Manifestations of Parasitic Diseases and Other Cardiopulmonary Manifestations. Clin Cardiol 2007; 30:277-280.
112. Rouphael N, Talati N, Franco-Paredes C. A Painful Thorn in the Foot: Eumycetoma. Am J Med Sci 2007; 334:142-144.
30

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.410914 Page 32 of 45
113. Zimmer S, Franco-Paredes C. Efficacy of Nitazoxanide in the Treatment of Cyclospora cayetanensis in a Patient Allergic to Sulfas. Clin Infect Dis 2007; 44(3):466-7.
114. Kaplan R, Rebolledo P, Gonzalez E, Franco-Paredes C. An Unexpected Visitor: Mycobacterium kansasii Cutaneous Infection. Am J Med 2007; 120(5):415-6.
115. Seybold U, Blumberg H, Talati N, Franco-Paredes C. Hematogenous Osteomyelitis Mimicking Osteosarcoma due to Community Associated Methicillin-Resistant Staphylococcus aureus. Infect 2007; 35(3): 190-3.
116. Liff D, Kraft C, Pohlel K, Sperling L, Chen E, Franco-Paredes C. Nocardia Nova Aortitis Following Coronary Artery Bypass Surgery. J Am Soc Echo 2007; 20(5):537:e7-8.
117. Rodriguez-Morales AJ, Franco-Paredes C. Paracoccidiodomycosis (South American Blastomycosis) of the Larynx Mimicking Carcinoma. Am J Med Sci 2008; 335:149-150.
118. Franco-Paredes C. Filariasis due Loa loa is also a cause of Angioedema. Am J Med 2008; 121(10): e29.
119. Rodriguez-Morales A, Benitez J, Tellez I, Franco-Paredes C. Chagas Disease Screening among Latin American Immigrants in Non-endemic Settings. Travel Medicine and Infectious Disease 2008; 6:162-3.
120. Talati N, Rouphael N, Kuppali K, Franco-Paredes C. Spectrum of Central Nervous System Manifestations due to Rapidly Growing Mycobacteria. Lancet Infect Dis 2008; 8:390-8.
121. Rifakis P, Rodríguez-Morales A, Franco-Paredes C. Atypical Plasmodium vivax Malaria in a Traveler: Bilateral hydronephrosis, Severe Thrombocytopenia, and Hypotension. J Trav Med 2008; 15(2): 119-21.
122. Osorio-Pinzon J, Carvajal C, Sussman O, Buitrago R, Franco-Paredes C. Acute liver failure due to dengue virus infection. Int J Infect Dis 2008; 12: 444445.
123. Jacob J, Franco-Paredes C. The Stigmatization of leprosy in India and its Impact on future approaches to elimination and control. PloS Neglected Tropical Diseases 2008; 30:e113.
124. Difrancesco L, Mora L, Doss M, Small J, Williams M, Franco-Paredes C. Short of Breath: Not short of diagnosis. J Hosp Med 2009; 4(1):60-7.
31

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.410925 Page 33 of 45
125. Whitaker JA, Edupuganti S, Del Rio C, Franco-Paredes C. Rethinking Typhoid Fever Vaccines: Implications for travelers and those living in endemic areas. J Travel Med 2009, 16(1): 46-52.
126. Franco-Paredes C, Hidron A, Lesesne J, Tellez I, Del Rio C. HIV-AIDS: Pretravel recommendations and health-related risks. Topics in HIV 2009; 17(1): 211. 127. Franco-Paredes C, Jacob JT, Stryjewska B, Yoder L. Two patients with leprosy and the sudden appearance of Inflammation in the skin and new sensory loss. PLoS Negl Trop Dis 2009; 3(9): e425. 128. Franco-Paredes C, Hidron A, Jacob J, Nicolls D, Kuhar D, Caliendo A. Transplantation and Tropical Infectious Diseases. Int J Infect Dis 2009; 14(3): e189-96. 129. Parker S, Vogenthaler N, Franco-Paredes C. Leishmania tropica Cutaneous and Presumptive Concomitant Viscerotropic Leishmaniasis with Prolonged Incubation. Arch Dermatol 2009; 145(9): 1023-6. 130. DiazGranados C, Franco-Paredes C. HIV and Chagas Disease Co-Infection: An Evolving Epidemiologic and Clinical Association. Lancet Infect Dis 2009; 9:324-330. 131. Hidron A, Franco-Paredes C, Drenkard C. A rare opportunistic infection in a woman with systemic lupus erythematous and multiple skin lesions. Lupus 2009; 18 (12): 1100-3. 132. Franco-Paredes C, Kozarsky P. The Bottom Line. Am J Med 2009; 122(12): 1067-8. 133. Franco-Paredes C, Bottazzi ME, Hotez PJ. The Unfinished Agenda of Chagas Disease Control in the Era of Globalization. PLoS Negl Trop Dis. 2009 Jul 7; 3(7): e470. 134. Franco-Paredes C, Carrasco P, Del Rio C, Santos Preciado JI. Respuesta al Brote de Influenza A H1N1. Salud Publ Mex 2009; 51 (3): 183-186. 135. Franco-Paredes C. An Unusual Clinical Presentation of Posttraumatic Stress Disorder in a Sudanese Refugee. Journal of Immigrant and Minority Health 2009; 12(2): 267-9. 136. Kempker R, DiFrancesco L, Gorgojo A, Franco-Paredes C. Xantogranulomathous pyelonephritis caused by Community-Associated MRSA. Cases Journal 2009; 2: 7437. 137. Franco-Paredes C, Carrasco P, Santos-Preciado JI. The First Influenza Pandemic in the New Millennium: Lessons Learned Hitherto for Current Control Efforts and Overall Pandemic Preparedness. Journal of Immune Based Therapies and Vaccines 2009, 7:2.
32

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.410936 Page 34 of 45
138. Livorsi D, Qureshi S, Howard M, Franco-Paredes C. Brainstem Encephalitis: An Unusual Presentation of Herpes Simplex Virus Infection. J Neurol 2010; 257(9): 1432-7. 139. Del Rio C, Franco-Paredes C. The Perennial threat of influenza viruses: The Mexican Experience during the Influenza A (H1N1) 2009 Pandemic. Arch Med Res 2010; 40(8):641-2. 140. Santos-Preciado JI, Franco-Paredes C, Hernandez-Ramos MI, Tellez I, Del Rio C, Roberto Tapia-Conyer R. What have we learned from the Novel Influenza A (H1N1) Influenza Pandemic in 2009 for strengthening Pandemic Influenza Preparedness? Arch Med Res 2010; 40(8): 673-6. 141. Franco-Paredes C, Hernandez-Ramos MI, Del Rio C, Alexander KT, TapiaConyer R, Santos-Preciado JI. H1N1 Influenza Pandemics: Comparing the Events of 2009 in Mexico with those of 1976, and 1918-1919. Arch Med Res 2010; 40(8): 6730-6. 142. Graham A, Furlong S, Owusu K, Margoles L, Franco-Paredes C. Clinical Management of Leprosy Reactions. Infect Dis Clin Pract 2010; 18: 234-7. 143. Hidron A, Vogenthaler N, Santos-Preciado JI, Rodriguez-Morales AJ, Franco-Paredes C, Rassi A. Cardiac Involvement with Parasitic Diseases. Clin Microb Rev 2010; 23 (2): 1-27. 144. Franco-Paredes C, Zeuli J, Hernandez-Ramos I, Santos-Preciado JI. Preserving Idealism in Global Health. Global Health Prom 2010; 17(4): 57-60. 145. Franco-Paredes C. Reconstructing the Past of Poliovirus Eradication. Lancet Infect Dis 2010; 10(10): 660-1. 146. Franco-Paredes C, Ko AI, Aksoy S, Hotez PJ. A New Clinical Section in PLoS Neglected Tropical Diseases: NTD Photo Quiz. PLoS Neglect Trop Dis 2010; 4(9): e760. 147. Tellez I, Franco-Paredes C. Actinomycetoma. PLoS Neglect Trop Dis 2010; 4(9): e772. 148. Franco-Paredes C, Hernandez I, Santos-Preciado JI. Equidad en inmunizaciones en las poblaciones más vulnerables en Mesoamérica: Plan Regional del Sistema Mesoamericano de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S323-32. 149. Santos-Preciado JI, Rodriguez MH, Franco-Paredes C. Equidad en Salud en America Latina: De la Oficina Panamericana de Salud Pública a la Iniciativa de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S289-94. 150. Rassi A Jr., Rassi A, Franco-Paredes C. A Latin-American woman with palpitations, a right bundle branch block, and an apical aneursym. PLoS Neglect Trop Dis 2011; 5(2):e852. doi: 10.1371/journal.pntd.0000852. 151. Gupta D, Green J, Franco-Paredes C, Lerakis S. Challenges in the Clinical Management of Blood-Culture Negative Endocarditis: the case of Bartonella
33

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.410947 Page 35 of 45
henselae infection. Am J Med 2011; 124(3):e1-2. doi: 10.1016/j.amjmed.2010.09.022. 152. Franco-Paredes C. Health Equity is not only Healthcare Delivery. Lancet 2011; 377: 1238. 153. Franco-Paredes C, Santos-Preciado JI. Freedom, Justice, and the Neglected Tropical Diseases. PLoS Neglect Trop Dis 2011; 5(8):e1235. 154. Sellers B, Hall P, Cine-Gowdie S, Hays AL, Patel K, Lockhart SR, FrancoParedes C. Cryptococcus gattii: An Emerging Fungal Pathogen in the Southeastern United States. Am J Med Sci. 2012; 343(6):510-1. doi: 10.1097/MAJ.0b013e3182464bc7. 155. Franco-Paredes C. Poliovirus eradication. Lancet Infect Dis 2012; 12(6):432-3. doi: 10.1016/S1473-3099(12)70102-0. 156. Franco-Paredes C, Ray S. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2012; 125(12):e3-4. doi: 10.1016/j.amjmed.2012.03.002. 157. Franco-Paredes C. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2013: 126(7):e17. doi: 10.1016/j.amjmed.2013.03.001. 158. Franco-Paredes C. Illness and Death in the Universe. Perm J. 2013; 17(4):90-1. 159. Hare A, Franco-Paredes C. Ocular Larva Migrans: A Severe Manifestation of an Unseen Epidemic. Curr Trop Med Rep 2014; 1: 69-73. 160. Franco-Paredes C. Recovering our Human Story. J Cosmology and Philosophy 2014;12: 210-213. 161. Powell DR, Patel S, Franco-Paredes C. Varicella-Zoster virus vasculopathy: The growing association between herpes zoster virus and strokes. Am J Med Sci 2014; 350(3):243-5. 162. Franco-Paredes C. The growing threat of leishmaniasis in travelers. Trav Med Infect Dis 2014; 12(6 Pt A):559-60. doi: 10.1016/j.tmaid.2014.10.020. 163. Franco-Paredes C, Sellers B, Hayes A, Chane T, Patel K, Lockhart S, Marr K. Management of Cryptococcus gattii meningoencephalitis. Lancet Infect Dis 2014; 15(3):348-55. 164. White C, Franco-Paredes C. Leprosy in the 21st Century. Clin Microb Rev 2014; 28(1): 80-94. 165. Carrasco P, Franco-Paredes C, Andrus J, Waller K, Maassen A, Symenouh E, Hafalia G. Inaugural conference of the International Association of Immunization Managers (IAIM), Istanbul Turkey, 3-4 March 2015; Vaccine 2015; 33(33):4047-50.
34

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.410958 Page 36 of 45
166. Franco-Paredes C, Rodriguez-Morales AJ. Unsolved matters in leprosy: a descriptive review and call for further research. Ann Clin Microbiol Antimicrob 2016; 15(1):33. 167. Rodriguez-Morales AJ, Banderia AC, Franco-Paredes C. The expanding spectrum of modes of transmission of Zika virus: a global concern. Ann Clin Microbiol Antimicrob 2016; 15:13. doi: 10.1186/s12941-016-0128-2. 168. Khan MI, Katrinak C, Freeman A, Franco-Paredes C. Enteric Fever and Invasive Nontyphidal Salmonellosis – 9th International Conference on typhoid and Invasive NTS Disease, Bali, Indonesia, April 30-May 3, 2015. Emerg Infect Dis 2016; 22(4): doi: 10.3201/eid2204.151463. 169. Franco-Paredes C, Khan MI, Santos-Preciado JI, Gonzalez-Diaz E, Rodriguez-Morales AJ, Gotuzzo E. Enteric Fever: A Slow Reponse to An Old Plague. PLoS Negl Trop Dis 2016; 10(5):e0004597. doi: 10.1371/journal.pntd.0004597. 170. Rodriguez-Morales AJ, Villamil-Gomez WE, Franco-Paredes C. The arboviral burden of disease caused by co-circulation and co-infection of dengue, chikungunya and Zika in the Americas. Trav Med Infect Dis 2016; 14(3):177-9. doi: 10.1016/j.tmaid.2016.05.004. 171. Alvarado-Socarras JL, Ocampo-Gonzalez M, Vargas Soler JA, RodriguezMorales AJ, Franco-Paredes C. Congenital and neonatal Chikungunya in Colombia. J Pediatric Infect Dis Soc. 2016;5(3): e17-20. 172. Franco-Paredes C, Chastain DB, Ezigbo C, Callins KR. Reducing transmission of HIV in the Southeastern U.S. Lancet HIV 2017; 4(3):e101-e102. 173. Franco-Paredes C, Chastain D, Marcos LA, Rodriguez-Morales AJ. Cryptococcal meningoencephalitis in AIDS: When to start antiretroviral therapy? Ann Clin Microbiol Antimicrob 2017; 16:9. 174. Khan MI, Franco-Paredes C, Ochiai RL, Mogasale V, Sushant S. Barriers to typhoid fever vaccine access in endemic countries. Research and Reports in Tropical Medicine; 2017; 8:37-44. 175. Franco-Paredes C, Chastain D, Taylor P, Stocking S, Sellers B. Boar hunting and brucellosis caused by Brucella suis. Trav Med Infect Dis 2017; S14778939(17): 30037-6. 176. Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcal Antigen Negative Cryptococcal Meningoencephalitis. Diagn Microbiol Infect Dis 2017; 89(2): 143-145. 177. Chastain DB, Henao-Martinez A, Franco-Paredes C. Opportunistic invasive fungal infections in HIV/AIDS: Cryptococcosis, Histoplasmosis, Coccidioidomycosis and Talaromycosis. Current Infect Dis Rep 2017; 19(10): 36. 178. Chastain DB, Kayla Stover, Franco-Paredes C. Adressing Antiretroviral Therapy-Associated Drug-Drug Interactions in Patients Requiring Treatment for
35

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.410969 Page 37 of 45
Opportunistic Infections in Low-Income and Resource-Limited Settings. J Clin Pharmacol 2017; 57(11):1387-1399. 179. Franco-Paredes C. The Harmony of Disequilibrium. Permanente J. 2017; 22. doi: 10.712/TPP/17-067. 180. Franco-Paredes C, Henao-Martinez A, Chastain DB. A 27-year-old male with blurry vision, oral and nasal mucosal lesions, and a skin rash. Clin Infect Dis 2018; 181. Henao-Martinez AF, Olague N, Franco-Paredes C. Spontaneous Mycobacterium bolletti skin abscesses —an under recognized zoonosis from raw bovine milk. Trav Med Infect Dis 2018 Jan 29. pii: S1477-8939(18)30003-6. doi: 10.1016/j.tmaid.2018.01.003. PMID: 29477362. 182. Franco-Paredes C, Henao-Martinez AF, Mathur S, Villamil-Gomez W. A Man Who Harvest Peanuts with Verrucous Lesions in his Right Index Finger. Am J Med Sci 2018; Mar; 355(3):e7. doi: 10.1016/j.amjms.2017.11.010. Epub 2017 Nov 22. No abstract available. PMID: 2954993 183. Henao-Martinez AF, Franco-Paredes C, Palestine A, Montoya G. Symptomatic acute toxoplasmosis in returning travelers. Open Forum Infect Dis 2018;5(4):ofy058. doi: 10.1093/ofid/ofy058. eCollection 2018 Apr. PMID: 29644250. 184. Steele GM, Franco-Paredes C, Chastain DB. Non-infectious causes of fever in adults. Nurse Pract 2018Apr 19; 43(4):38-44. doi: 10.1097/01.NPR.0000531067.65817.7d. 185. Henao-Martinez AF, Chastain DB, Franco-Paredes C, Treatment of cryptococcosis in non-HIV immunocompromised patients. Curr Opin Infect Dis 2018; PMID 29738314. 186. Chastain DB, Sam JI, Steele GM, Lowder LO, Franco-Paredes C. Expanding Spectrum of Toxoplasmosis gondii: Thymoma and Toxoplasmic encephalitis. Open Forum Infect Dis 2018; Jul 7;5(7):ofy163. doi: 10.1093/ofid/ofy163. eCollection 2018 Jul.. 187. Bruner KT, Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcus gattii complex infections in HIV-infected patients, Southeastern United States. Emerg Infect Dis 2018; 24(11): 1998-2002. 189. José A. Suárez, Lolimar Carreño, Alberto E. Paniz-Mondolfi, Francisco J. Marco-Canosa, Héctor Freilij, Jorge A. Riera, Alejandro Risquez, Andrea G. Rodriguez-Morales, Evimar Hernández-Rincón, Jorge Alvarado-Socarras, Gustavo Contreras, Maritza Cabrera, Rosa M. Navas, Fredi Díaz-Quijano, Tamara Rosales, Rosa A. Barbella-Aponte, Wilmer E. Villamil-Gómez, Marietta Díaz, Yenddy Carrero, Anishmenia Pineda, Nereida Valero-Cedeño, Cesar Cuadra-Sánchez, Yohama Caraballo-Arias, Belkis J. Menoni-Blanco, Giovanni Provenza, Jesús E. Robles, María Triolo-Mieses, Eduardo Savio-Larriera, Sergio Cimerman, Ricardo
36

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.42070 Page 38 of 45
J. Bello, Carlos Franco-Paredes, Juliana Buitrago, Marlen Martinez-Gutierrez, Julio Maquera-Afaray, Marco A. Solarte-Portilla, Sebastián Hernández-Botero, Krisell Contreras, Jaime A. Cardona-Ospina, D. Katterine Bonilla-Aldana, Alfonso J. Rodriguez-Morales. Infectious Diseases, Social, Economic and Political Crises, Anthropogenic Disasters and Beyond: Venezuela 2019-Implications for public health and travel medicine. Rev Panam Enf Inf 2018; 1(2):73-93. 190. Gharamati A, Rao A, Pecen PE, Henao-Martinez AF, Franco-Paredes C, Montoya JG. Acute Disseminated Toxoplasmosis with Encephalitis. Open Forum Infect Dis 2018; Oct 17; 5 (11):ofy259. doi: 10.1093/ofid/ofy259. 191. Franco-Paredes C, Rodriguez-Morales AJ, Luis A. Marcos, Henao-Martinez AF, Villamil-Gomez WE, Gotuzzo E, Bonifaz A. Cutaneous Mycobacterial Diseases. Clin Microb Rev 2018; 14; 32(1). pii: e00069-18. doi: 10.1128/CMR.00069-18. 192. Henao-Martínes AF, Pinto N, Henao San Martin V, Franco-Paredes C, Gharamati A. Successful Treatment of Gonococcal Osteomyelitis with One Week of Intravenous Antibiotic Therapy. Int J STDs HIV 2019; 193. Reno E, Foster G, Franco-Paredes C, Henao-Martinez AF. Fatal fulminant hepatitis A in a US traveler returning from Peru. J Trav Med 2019. 194. Canfield G, C, Mann S, Zimmer S, Franco-Paredes C. A 31-Year-Old Micronesian Man with Shoulder Fungating Mass. Clin Infect Dis 2019; 195. Parra-Henao G, Oliveros H, Hotez PJ, Motoa G, Franco-Paredes C, HenaoMartínez AF. In Search of Congenital Chagas Disease in the Sierra Nevada de Santa Marta, Colombia. Am J Trop Med Hyg. 2019;101(3):482-483. doi: 10.4269/ajtmh.19-0110. PMID: 31264558. 196. Bonilla-Aldana DK, Suárez JA, Franco-Paredes C, Vilcarromero S, Mattar S, Gómez-Marín JE, Villamil-Gómez WE, Ruíz-Sáenz J, Cardona-Ospina JA, Idarraga-Bedoya SE, García-Bustos JJ, Jimenez-Posada EV, Rodríguez-Morales AJ. Brazil burning! What is the potential impact of the Amazon wildfires on vector-borne and zoonotic emerging diseases? - A statement from an international experts meeting. Travel Med Infect Dis. 2019:101474. doi: 10.1016/j.tmaid.2019.101474. 197. Henao-Martinez AF, Archuleta S, Vargas D, Franco-Paredes C. A Latin American patient with a left ventricular pseudoaneurysm presenting with progressive dyspnea and palpitations. Am J Med 2019; doi: 10.1016/j.amjmed.2019.10.006 198. Canfield GS, Henao-Martinez AF, Franco-Paredes C, Zhelnin K, Wyles D, Gardner EM. Corticosteroids for post-transplant Immune reconstitution syndrome in Cryptococcus gattii Meningoencephalitis: Case report and literature review. Open Forum Infect Dis 2019; 6(11): ofz460. Doi: 10.1093/ofid/ofz460. PMID: 31737740.
37

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.42081 Page 39 of 45
199. Kon S, Hawkins K, Franco-Paredes C. Intramedullary Spinal Cord Lesions in an Immunocompromised Host due to Mycobacterium Haemophilum. ID Cases 2019; 200. Franco-Paredes C, Rodriguez-Morales AJ, Henao-Rodriguez AJ, Carrasco P, Santos-Preciado JI. Vaccination Strategies to prevent paralytic poliomielitis due to cVDPV2. Lancet Infect Dis 2019; 201. Motoa G, Pate A, Franco-Paredes C, Chastain D, Henao-Martinez Aj, Hojat L. Use of procalcitonin to guide discontinuation of antimicrobial therapy in patients with persistent intra-abdominal collections: A case series. Case Rep Infect Dis 2019; 202. Murillo-Garcia D, Galindo J, Pinto N, Motoa G Benamu E, Franco-Paredes C, Chastain D, Henao-Martinez AF. Anaerobic bacteremias in left ventricular assist devices and advanced heart failure. Case Rep Infect Dis 2019; 204. Franco-Paredes, C, Villamil-Gómez Wilmer E., Schultz, J, Henao-Martínez AF, Parra-Henao, G, Rassi Jr. A, Rodriguez-Morales AJ, Suarez JA. A Deadly Feast: Elucidating the Burden of Orally Acquired Acute Chagas Disease in Latin America - Public Health and Travel Medicine Importance. Trav Med Infect Dis 2020; 205. Reno E, Quan N, Franco-Paredes C, Chastain DB, Chauhan L, RodriguezMorales AJ, Henao-Martinez A. Prevention of Yellow Fever in Travelers: An Update. Lancet Infect Dis 2020; 206. Franco-Paredes C, Griselda Montes de Oca Sanchez, Cassandra White. Global Leprosy Status 2020: Still Losing Touch. Ann Acad Med Singapore 2020; 207. Basco SA, Steele GM, Henao-Martinez AF, Franco-Paredes C, Chastain DB. Unexpected etiology of a pleural empyema in a patient with chronic lymphocytic leukemia (CLLL): Capnocytophaga ochracea. ID Cases 2020: Mar 20;20:e00747. doi: 10.1016/j.idcr.2020.e00747. eCollection 2020. 208. Rodriguez-Morales AJ, Gallego V, Escalera-Antezana JP, Mendez CA, Zambrano LI, Franco-Paredes C, Suarez JA, Rodriguez-Enciso HD, BalbinRamon GH, Savio-Larriera E, Risquez A, Cimerman S. COVID-19 in Latin America: The implications of the first confirmed case in Brazil. Travel Med Infect Dis 2020; doi: 10.1016/j.tmaid.2020.101613. 209. Rodríguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, Villamizar-Peña R, Holguin-Rivera Y, Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, Franco-Paredes C, Henao-Martinez AF, Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, Villamil-Gómez WE, Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R, On behalf of the Latin American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19) (www.lancovid.org).
38

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.42092 Page 40 of 45
Clinical, Laboratory and Imaging Features of COVID-19: A systematic review and meta-analysis. Travel Med Infect Dis 2020; 210. Meyer J, Franco-Paredes C, Yaizal F, Gartland M, Parmar P. COVID-19 and the Coming Plague in U.S. Immigration Detention Centers. Lancet Infect Dis 2020; 211. Franco-Paredes C. Albert Camus’ ‘The COVID-19 Plague” Revisited. Clin Infect Dis 2020 Apr 17. pii: ciaa454. doi: 10.1093/cid/ciaa454 212. Pritchett MA, Oberg CL, Belanger A, De Cardenas J, Cheng G, Cumbo Nacheli G, Franco-Paredes C, Singh J, Toth J, Zgoda M, Folch E. Society for Advanced Bronchoscopy Consensus Statement and Guidelines for bronchoscopy and airway management aid the COVID-19 pandemic. J Thorac Dis 2020 | http://dx.doi.org/10.21037/jtd.2020.04.32. BOOK CHAPTERS: Franco-Paredes C, Albrecht H. Anisakiasis (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007.
Franco-Paredes C, Albrecht H. Visceral Larva Migrans (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007.
Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd.
Franco-Paredes C. The Post-travel Period. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd.
Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7.
Franco-Paredes C. General Approach to the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7.
Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7.
39

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.421003 Page 41 of 45
Franco-Paredes C, Santos-Preciado JI. Introduction of Antimicrobial Agents in Poor-Resource Countries: Impact on the Emergence of Resistance. In: Antimicrobial Resistance in Developing Countries. Ed. Byarugaba DK, Sosa A. Springer Science & Business Media, 2010.
Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012. Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7.
Franco-Paredes C, Hochberg N. General Approach to the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7.
Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7.
Hochberg N, Franco-Paredes C. Emerging Infections in Mobile Populations. In: Emerging Infections 9. Ed. Scheld WM, Grayson ML, Hughes JM. American Society of Microbiology Press 2010. ISBN. 978-1-55581-525-7.
Franco-Paredes C, Chagas Disease (American Trypanosomiasis). In: Farrar J, Hotez P, Junghanss T, Kang G, Lalloo D, White NJ. Manson’s Tropical Medicine 23rd Edition, Elsevier, London, U.K., 2014.
Franco-Paredes C, Keystone J. Fever in the Returned Traveler. In: Empiric, Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2014.
Franco-Paredes C. Mycobacterium leprae (Leprosy). In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015
Franco-Paredes C, Albrecht H. Anisikasis In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015. Franco-Paredes C. Illness and Death in the Universe. In: Narrative Medicine Anthology. Ed: Tom Janisse. The Permanente Press, Oakland, California, Portland
Oregon, 2016, pp. 23-25. ISBN: 978-0-9770463-4-8. Villamil-Gomez W, Reyes-Escalante M, Franco-Paredes C. Severe and
40

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.421014 Page 42 of 45

complicated malaria due to Plasmodium vivax. In: Current Topics in Malaria. Ed: Rodriguez-Morales AJ. ISBN 978-953-51-2790-1, Print ISBN 978-953-51-2789-5. InTechOpen 2016. Franco-Paredes C. Mycobacterial Infections of the Central Nervous System. In: The Microbiology of the Central Nervous System Infections. Ed. Kon K, Rai M. Elsevier 2018. ISBN 978-0-12-813806-9 Franco-Paredes C. Leprosy. In: Neglected Tropical Diseases. Drug Discovery and Development. Ed: Swinney D, Pollastri. Wiley-VCH Verlag GmbH & Co. KGaA, 2019. Franco-Paredes C, Henao-Martinez AJ. Legal Perspectives in Travel Medicine. In: Eds: Kozarksy P, Weinberg M. Yellow Book: Health Information for Travelers 2019-2020, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Prevención de la transmisión. In: Guerrero MI, Hernández CA y Rodríguez G Editores La lepra: una enfermedad vigente. Centro Dermatológico Federico Lleras Acosta Bogotá DC, Colombia. Panamericana Formas e Impresos. 2019. p. 309-322.
Published Abstracts in Peer-Reviewed Journals: Kleinschmidt-DeMasters B, Hawkins K, Franco-Paredes C. Non-tubercular mycobacterial spinal cord abscesses in an HIV plus male due M. haemophilum. J Neuropathol Experim Neurol 2018; 77(6): 532. Pate A, Franco-Paredes C, Henao-Martinez A. Cryptococcal meningitis: A comparison of clinical features and outcomes by HIV Status. Open Forum Infect Dis 2019; Oct 6 (Suppl 2): S629-S630. PMC6809090.

FORMAL TEACHING

Medical Student Teaching 2001 - 2002 Clinical Methods, Emory University School of Medicine

I. 2001 - 2002 Clinical Instructor Harvey Cardiology Course, Emory University School of Medicine
2001 - 2002 Problem-Based Learning for Second year Medical Students, EUSM

2005-2011 Clinical Methods Preceptor, ECLH

2006-2008

Medical Spanish - Instructor for M2, EUSM

2006-2007 Directed Study on Social Determinants of Infectious Diseases for M2 students (Lindsay Margolis and Jean Bendik), EUSM

41

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.421025 Page 43 of 45

2007-2011 Instructor - Global Health for M2 Students, EUSM

2007-2008 Presentation-Case Discussion – Social Determinants of Diseases – Coordinated by Dr. Bill Eley – Emory School of Medicine New Curriculum.

2018-

Small Group: Parasitic Diseases, Microbiology Course for First Year Medical Students, University of Colorado, Anschutz Medical Center.

2019-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz Medical Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

2019-

Class Global Health and Underserved Populations of the New SOM CU Curriculum. Course Co-Director. Pilot Class (Jan 6-Jan 17, 2020).

2020-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz Medical Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

Graduate Program

Training programs

2006-2011 Professor - GH511 (Global Health 511) International Infectious Diseases Prevention and Control, Rollins School of Public Health

2009-2011 Professor – GH500 D – Key Issues in Global Health, Career MPH Program

2006-2011 Thesis Advisor to students Global Health Track – Hubert Department of Global Health, Rollins School of Public Health of Emory University

2008-2011 Coordinator International Exchange between Rollins School of Public Health and National Institute of Public Health, Cuernavaca, Mexico – Supported by the Global Health Institute of Emory University

Residency and Fellowship Program:

2004-2011 Resident Report – Noon Conferences Emory Crawford Long Hospital and Grady Memorial Hospital

2004-2011 Didactic Lectures on Parasitic Diseases and Non-tuberculous mycobacterial diseases for Internal Medicine Residents and Infectious Disease Fellows

42

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.421036 Page 44 of 45

2005-2008 Coordinator Journal Club Infectious Disease Division 2005-2011 Travel Medicine Elective, Internal Medicine Residents (2 internal
residents per month)

2005

Grand Rounds – EUH - Department of Medicine: “Travel Medicine”

2006

Grand Rounds – ECLH – Department of Medicine: “Malaria”

2008

Grand Rounds - ECLH – Department of Medicine: “Leprosy”

2008-2011 Journal Club Coordinator, Internal Medicine Residency Program – ECLH

2009

Grand Rounds - EUH – Department of Medicine: “Leprosy a Modern Perspective of an Ancient Disease”

2009

Grand Rounds – Pulmonary and Critical Care Division – Neglected Tropical Diseases of the Respiratory Tract, June 16, 2009

2017

Grand Rounds – Leprosy, University of Colorado, Anschutz Medical Center, Division of Infectious Diseases, December 2017

2017

Grand Rounds – Infections associated with Secondary Antiphospholid Syndrome, University of Colorado, Anschutz Medical Center, Division of Rheumatology,

2018

Didactic Session – Travel Medicine (Pretravel and Postravel) Infectious Diseases Fellowship Anschutz Medical Center, Division of Infectious Diseases

2017-

Infectious Diseases Fellows Clinic, University of Colorado, Anschutz Medical Center, IDPG.

2019

Invited Speaker: Travel Medicine, Pretravel/Postravel Care, Physician Assistant Program, September 12, 2019, University of Colorado, Anschutz Medical Center

Other categories: 2000-2002 Physician Assistant Supervision during Fellowship/Junior Faculty,
Emory University 2004-2007 Mentoring of four College Students to enter into Medical School
(Emory, Southern University, and Dartmouth): Lindsay Margolis 2004-Emory University
43

Case 2:20-cv-110099449-MLVAPG-M-EJAHS EECCFFNNoo..412-7 filfeilded040/53/0/42/020 PPagaegIeDID.1.421047 Page 45 of 45

Michael Woodworth 2005 – Emory University

Peter Manyang 2007 – Southern University

Padraic Chisholm 2007 – Southern University/Emory University

2009-2011 Project Leader. Partnership – Emory Global Health Institute – University-wide - Emory Travel Well Clinic and is titled Hansen’s disease in the state of Georgia: A Modern Reassessment of an Ancient Disease”. http://www.globalhealth.emory.edu/fundingOpportunities/p rojectideas.php. Students: 5 MPH students (RN/MPH, MD/MPH)

2017-

Infectious Diseases Fellowship Program, University of

Colorado, Anschutz Medical Center. Teaching activities

Inpatient and outpatient (ID Fellows Weekly Clinic)

2019-

Infectious Diseases Fellowship Program Director

University of Colorado, Aurora Colorado

44

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.208 Page 1 of 26
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

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

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

CS 316182-A  03/27/2020

cdc.gov/coronavirus

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.209 Page 2 of 26
Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
2

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.210 Page 3 of 26
This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
3

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.211 Page 4 of 26
Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
4

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.212 Page 5 of 26
The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
5

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.213 Page 6 of 26
ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
6

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.214 Page 7 of 26
√ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
7

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.215 Page 8 of 26
ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s.
ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
8

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.216 Page 9 of 26
√ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
9

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.217 Page 10 of 26
Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing.
ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
10

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.218 Page 11 of 26
ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
11

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.219 Page 12 of 26
√ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
12

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.220 Page 13 of 26
√ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
13

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.221 Page 14 of 26
If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
14

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.222 Page 15 of 26
√ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
15

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.223 Page 16 of 26
ο If cohorting is necessary:  Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.  Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.  Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
16

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.224 Page 17 of 26
√ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
17

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.225 Page 18 of 26
√ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
18

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.226 Page 19 of 26
ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
19

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.227 Page 20 of 26
ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
20

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.228 Page 21 of 26
√ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
21

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.229 Page 22 of 26
√ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
22

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.230 Page 23 of 26
ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs.
ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
23

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.231 Page 24 of 26
ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program.
ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
24

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.232 Page 25 of 26
Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

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

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

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

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





more details.

Staff

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

–

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

–

Staff performing temperature checks on any group

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

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

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



–







guidelines)

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

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

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

25

Case 2:20-cv-11094-MAG-EAS ECF No. 1-8 filed 05/04/20 PageID.233 Page 26 of 26
Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
26

Case 2:20-cv-11094-MAG-EAS ECF No. 1-9 filed 05/04/20 PageID.234 Page 1 of 9
March 25, 2020
Hon. Larry Hogan Governor of Maryland Annapolis, MD
Dear Governor Hogan:
We are writing as faculty members of the Johns Hopkins Bloomberg School of Public Health, School of Nursing and School of Medicine to express our urgent concern about the spread of COVID-19 in Maryland’s prisons, jails, and juvenile detention centers. As you know, COVID19 is highly contagious, difficult to prevent except through social distancing, and especially dangerous to individuals over age 60 or with a chronic disease. Moreover, recent data suggest that the virus can remain on surfaces for up to 72 hours, thus rendering social distancing less effective in circumstances where the virus is present.
Jails, prisons, detention facilities and other closed settings have long been known to be associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, influenza, MRSA (methicillin resistant staph aureus), and viral hepatitis. Several deaths were reported in the US in immigration detention facilities associated with ARDS (acute respiratory distress syndrome) following influenza A, including a 16 year old immigrant child who died of untreated ARDS in custody in May 2019. ARDS is the lifethreatening complication of COVID-19 disease and has a 30% mortality given ideal care. A correctional officer in New York has also died of the disease.
The close quarters of jails and prisons, the inability to employ effective social distancing measures, and the many high-contact surfaces within facilities, make transmission of COVID-19 more likely. Soap and hand sanitizers are not freely available in some facilities. Hand sanitizers like Purell, are banned in many facilities, because they contain alcohol. Further, for incarcerated individuals who are infected or very sick, the ability properly to treat them and save their lives is very limited. Testing kits are in short supply, and prisons and jails have limited options for proper respiratory isolation.
A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of COVID-19 and other infectious diseases. These include physical/mechanical risks such as overcrowding, population density in close confinement, insufficient ventilation, shared toilets, showers, and eating environments and limited availability of hygiene and personal protective equipment such as masks and gloves in some facilities. The high rate of turnover and population mixing of staff and detainees also increases likelihoods of exposure. This has led to prison outbreaks of COVID-19 in multiple detention facilities in China, associated with introduction into facilities by staff.
These populations are also at additional risk, due to high rates of chronic health conditions; substance use; mental health issues; and, particularly in prisons, aging and chronically ill populations who may be vulnerable to more severe illnesses after COVID-19 infection, and to death. Given that Maryland prisons, jails, and juvenile detention centers incarcerate high

Case 2:20-cv-11094-MAG-EAS ECF No. 1-9 filed 05/04/20 PageID.235 Page 2 of 9
numbers of marginalized populations and African Americans will be disproportionately affected by these risks.
Prison, jail, and detention center staff may bring the virus into the facility and are also at risk of acquisition from infected incarcerated individuals. Once infected, staff may also transmit the virus back into the communities and to their families. As jail, prison, and detention center health care staff themselves get sick with COVID-19, workforce shortages will make it even more difficult to adequately address all the health care needs in facilities.
Every effort should be made to reduce exposure in jails and other detention facilities, and we appreciate the efforts thus far of administrators toward this goal. To ensure that there are no impediments for inmates to come forward when sick, health care must be available to inmates without co-pays. But there should also be efforts to reduce the state prison population as well. It may be extremely difficult, however, to achieve and sustain prevention of transmission in these closed settings and given the design feature of the facilities. Moreover, lockdowns and use of solitary confinement should not be used as a public health measure, both because they have limited effectiveness and because they are a severe infringement of the rights of incarcerated people. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible.
Treatment needs of infected incarcerated individuals also need to be met, including expanded arrangements with local hospitals. It is essential that these facilities, which are public institutions, be transparent about their plans for addressing COVID-19. Such transparency will help public health officials and families of incarcerated people know what facilities are doing, and it also can help jurisdictions across the state share information and best practices. Other counties across the country have shared their action plans with the public and Maryland should follow these examples.
We therefore urge you to take the following steps:
1. Require correctional facility administrators to make their plans for prevention and management of COVID-19 in their institutions publicly available, as the San Francisco Sheriff’s Department has done. Protocols should be in line with national CDC guidance. Frequently updated recommendations and model protocols are available from the National Commission on Correctional Health Care (https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-to-know-incorrections)
2. Ensure that intake screening protocols are updated to include COVID-specific questions.
3. Ensure the availability of sufficient soap and hand sanitizer for incarcerated individuals without charge; restrictions on alcohol (in hand sanitizers) should be suspended.
4. Implement other precautions to limit transmission within prisons and jails without relying on widespread use of lockdowns and solitary confinement. Additional precautions jointly issued by the Vera Institute of Justice and Community Oriented

Case 2:20-cv-11094-MAG-EAS ECF No. 1-9 filed 05/04/20 PageID.236 Page 3 of 9
Correctional Health Services are available at https://cochs.org/files/covid-19/covid19-jails-prison-immigration.pdf 5. Consider pre-trial detention only in genuine cases of security concerns. Persons held for non-payment of fees and fines, or because of insufficient funds to pay bail, or parole or probation violations, should be prioritized for release. No one in these categories should be sent to jail 6. Expedite consideration of all older incarcerated individuals and those with chronic conditions predisposing to severe COVID-19 disease (heart disease, lung disease, diabetes, immune-compromise) for parole or other form of release from prison, with alternative forms of supervision and with supports in the community once released. Clemency power and expanded authority in Maryland law for administrative parole should be employed. 7. Invest in increased resources for discharge planning and re-entry transitions to facilitate prison release of people under these revised policies. 8. Arrange for COVID-19 testing of incarcerated individuals and correctional facility workers who become ill. 9. Cease any collection of fees or co-pays or medical care. 10. Seek a Medicaid 1135 waiver to enable hospitals to provide an appropriate level of care to incarcerated individuals who are sick. See https://cochs.org/files/medicaid/COVID-19-Justicie-Involved-1135-Waiver.pdf
This pandemic is shedding a bright light on the extent of the connection between all members of society: jails, prisons and other detention facilities are not separate, but are fully integrated with our community. As public health experts, we believe these steps are essential to support the health of incarcerated individuals, who are some of the most vulnerable people in our society; the vital personnel who work in prisons and jail; and all people in the state of Maryland. Our compassion for and treatment of these populations impact us all.
Thank you very much.
This letter represents the views of the following signatories, and do not necessarily reflect the views of The Johns Hopkins University
Sincerely,
Patricia Davidson, Dean Johns Hopkins School of Nursing
Joshua Sharfstein, Vice Dean for Public Health Practice and Community Engagement Johns Hopkins Bloomberg School of Public Health
David Celentano, Chair Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
David Peters, Chair Department of International Health Johns Hopkins Bloomberg School of Public Health

Case 2:20-cv-11094-MAG-EAS ECF No. 1-9 filed 05/04/20 PageID.237 Page 4 of 9
Colleen Barry, Chair Department of Health Policy & Management Johns Hopkins Bloomberg School of Public Health
Rajiv Rimal, Chair Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health
Marsha Wills-Karp, Chair Department of Environmental Health and Engineering Johns Hopkins Bloomberg School of Public Health
Karen Bandeen-Roche, Hurley Dorrier Professor & Chair Department of Biostatistics Johns Hopkins Bloomberg School of Public Health
M. Daniele Fallin, Chair Department of Mental Health Johns Hopkins Bloomberg School of Public Health
Jeffrey Kahn, Andreas C. Dracopoulos Director Johns Hopkins Berman Institute of Bioethics.
Leonard Rubenstein, Senior Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
Carolyn Sufrin, Assistant Professor Department of Gynecology and Obstetrics Johns Hopkins School of Medicine
Susan Sherman, Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health
Chris Beyrer, Desmond Tutu Professor of Public Health and Human Rights Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
Gabriel Eber, Senior Associate Department of Epidemiology Johns Hopkins Bloomberg School of Public Health
cc: Robert Greene, Secretary of Department of Public Safety and Correctional Services David Blumberg, Chair, Maryland Parole Commission Sam Abed, Secretary, Department of Juvenile Services
For additional signature please see below

Case 2:20-cv-11094-MAG-EAS ECF No. 1-9 filed 05/04/20 PageID.238 Page 5 of 9

Carl Latkin, Professor Department of Health, Behavior and Society Johns Hopkins School of Public Health

Caleb Alexander, Practicing General Internist

David Dowdy, Associate Professor

Department of Epidemiology

Department of Epidemiology

Johns Hopkins Bloomberg School of Public Health Johns Hopkins Bloomberg School of Public Health

Stefan Baral, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Heather McKay, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Andrea Wirtz, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Amal Wanigatunga, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Renee M. Johnson, Associate Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Lorraine T. Dean, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Curtis Meinert, Professor Emertius Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Corinne Joshu, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Moyses Szklo, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Alden L. Gross, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Allison McFall, Research Associate Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Colleen Hanrahan, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Josef Coresh, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Antonio J. Trujillo, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Sarah Murray, Assistant Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Li-Ching Lee, Senior Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Courtland Robinson, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Nancy Glass, Professor Johns Hopkins School of Nursing

Yusra Shawar, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Maria Merritt, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Hannah Tappis, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Alan Regenberg, Associate Faculty Johns Hopkins Berman Institute of Bioethics

Andrew Azman, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Tener Goodwin Veenema, Professor Johns Hopkins School of Nursing

Amelia Buttress, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Katherine Smith, Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Ju Nyeong Park, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Sean Allen, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Carol Underwood, Assistant Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Zoé Hendrickson, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Jennifer L. Glick, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Graham Mooney, Associate Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health Johns Hopkins School of Medicine

Janet Holbrook, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Stella Babalola, Associate Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Margaret E. Ensminger, Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Elizabeth Hazel, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Safia Jiwani, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Angela KC, Associate Faculty Johns Hopkins Center for Global Health Johns Hopkins Bloomberg School of Public Health

Kawsar Talaat, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Seema Subedi, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Linnea Zimmerman, Assistant Professor Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Henry Perry, Senior Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Case 2:20-cv-11094-MAG-EAS ECF No. 1-9 filed 05/04/20 PageID.239 Page 6 of 9

Alain Labrique, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Jean H. Humphrey, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Joanne Katz, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Cyrus Engineer, Associate Chair Academic Programs Johns Hopkins Bloomberg School of Public Health

Priyanka Agrawal, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Daniela C. Rodriguez, Associate Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Talata Sawadogo-Lewis, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Lara Ho, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Sara Benjamin-Neelon, Associate Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Rupali J. Limaye, Associate Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Shaun Truelove, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Matthew Fentress, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Caroline Moreau, Associate Professor Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Pamela Surkan, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Svea Closser, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Melissa A. Marx, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Susan Rifkin, Senior Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jean C. Sack, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Ummekulsoom Lalani, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jessica Atwell, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Swetha Manochar, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

S. Wilson Beckham, Assistant Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Amita Gupta, Professor Johns Hopkins School of Medicine

Henry Kalter, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Allison Jeffery, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Janice Bowie, Professor Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Yunhee Kang, Assisant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Gulam Kibria, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Lori Heise, Professor Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Rebecca Heidkamp, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Justin Mayhew, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jennifer Lee, Research Associate Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Cesar Ugarte-Gil, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Sabriya Linton, Assistant Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Amber Mehmood, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Peter Winch, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Dustin Gibson, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Melissa Davey-Rothwell, Associate Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public Health

Kathleen Norton, Administrative Director Johns Hopkins Center for American Indian Health

Tamar Mendelson, Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Candelaria Vergara Coggiano, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Anna Durbin, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Johannes Thrul, Assistant Professor

Kristin Mmari, Associate Professor

Ashley Sheffel, Assistant Scientist

Case 2:20-cv-11094-MAG-EAS ECF No. 1-9 filed 05/04/20 PageID.240 Page 7 of 9

Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Department of Population, Family, and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Department of International Health Johns Hopkins Bloomberg School of Public Health

Hanna Pickard, Bloomberg Distinguished Professor William Robert Brieger, Professor

Department of Philosophy

Department of International Health

Berman Institute of Bioethics

Johns Hopkins Bloomberg School of Public Health

Kristen Hurley, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Judith Bass, Associate Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Halida Akhter, Senior Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Nicholas Reed, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Alan Scott, Professor Department of Molecular Microbiology and Immunology Johns Hopkins Bloomberg School of Public Health

John Jackson, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Hima Patel, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Donatella Massai, Senior Researcher Department of International Health Johns Hopkins Bloomberg School of Public Health

Robin McKenzie, Associate Professor of Medicine Johns Hopkins University School of Medicine

Michelle Colder Carras, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

David A Sack, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Harsha Rajashekharaiah, Research Associate Department of International Health, Center for Humanitarian Health Johns Hopkins Bloomberg School of Public Health

Ann Yelmokas McDermott, Associate Scientist Department of International Health Johns Hopkins School of Public Health

Hilary Bok, Associate Professor, Philosophy Berman Institute of Bioethics Krieger School of Arts and Sciences

Kate Wright, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Cui Yang, Assistant Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Alexa Edmier, Associate Faculty Department of International Health Johns Hopkins Bloomberg School of Public Health

Rebecca Fix, Assistant Scientist Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Smisha Agarwal, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Michelle Kaufman, Assistant Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Alene Kennedy-Hendricks, Assistant Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Stephen Tamplin, Associate Scientist Department of Health, Behavior, and Society Johns Hopkins Bloomberg School of Public He

Sara Bennett, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Adam Koon, Assistant Scientist Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Nancy Kass, Vice-Provost and Professor of Bioethics and Public Health Johns Hopkins University and Bloomberg School of Public Health

Hojoon Sohn, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Vidhi Maniar, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Keith West, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Li Liu, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Melinda Munos, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Alain Koffi, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Terrinieka Powell, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Sarah Dalglish, Associate Professor Department of International Health Johns Hopkins School of Public Health

Ghassan Hamra, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Keri Althoff, Associate Professor Department of Epidemiology Johns Hopkins School of Public Health

Kathleen Page, Associate Professor Johns Hopkins School of Medicine

Elizabeth Stuart, Professor Departments of Mental Health, Biostatistics, and Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Case 2:20-cv-11094-MAG-EAS ECF No. 1-9 filed 05/04/20 PageID.241 Page 8 of 9

Beth McGinty, Associate Professor Department of Health, Policy and Management Johns Hopkins Bloomberg School of Public Health

Shruti Mehta, Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Yeeli Mui, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Alex McCourt, Assistant Scientist Department of Health Policy & Management Johns Hopkins Bloomberg School of Public Health

Eric Bass, Professor of Medicine Johns Hopkins University School of Medicine

Karin Tobin, Associate Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Lilly Engineer, Assistant Professor Department of Health Policy and Management Johns Hopkins School of Medicine and Bloomberg School of Public Health

Elizabeth Skinner, Senior Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Philip Anglewicz, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Jennifer Wolff, Professor Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Joanne Rosen, Senior Lecturer Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Tricia Aung, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Sachini Bandara, Assistant Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Hossein Zare, Assistant Scientist Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Mark Van Natta, Associate Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Daniel Webster, Bloomberg Professor of American Health Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Danielle German, Associate Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Cassandra Crifasi, Assistant Professor Center for Gun Policy and Research Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Emily Gurley, Associate Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Jonathan Golub, Professor Department of Medicine, Epidemiology, and International Health Johns Hopkins Bloomberg School of Public Health

Subhra Chakraborty, Associate Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

Michael Rosenblum, Associate Professor Department of Biostatistics Johns Hopkins Bloomberg School of Public Health

Haneefa Saleem, Assistant Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Amy Knowlton, Professor Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Neha Shah, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Trang Nguyen, Assistant Scientist Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Ingo Ruczinski, Professor Department of Biostatistics Johns Hopkins Bloomberg School of Public Health

Krystal Lee, Research Associate Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Elizabeth Letourneau, Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Chiara Altare, Assistant Scientist Department of International Health Johns Hopkins Bloomberg School of Public Health

William W Eaton, Professor Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Diana Yeung, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Jia Ahmad, Research Associate Department of Health Policy and Management Johns Hopkins Bloomberg School of Public Health

Sheppard G. Kellam, Professor Emeritus Department of Mental Health Johns Hopkins Bloomberg School of Public Health

Sarah Polk, Assistant Professor Centro SOL, Johns Hopkins School of Medicine

Kathleen Page, Associate Professor Johns Hopkins School of Medicine

Corinne Keet, Associate Professor Johns Hopkins School of Medicine Johns Hopkins Bloomberg School of Public Health

Rachel Chan Seay, Assistant Professor Department of Gynecology and Obstetrics Johns Hopkins School of Medicine

Amanda Latimore, Assistant Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Avonne Connor, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Gail Geller, Professor Department of Medicine Johns Hopkins University School of Medicine Berman Institute of Bioethics

Noel Mueller, Assistant Professor Department of Epidemiology Johns Hopkins School of Public Health

Case 2:20-cv-11094-MAG-EAS ECF No. 1-9 filed 05/04/20 PageID.242 Page 9 of 9

Michele Decker, Associate Professor Department of Population, Family and Reproductive Health Johns Hopkins Bloomberg School of Public Health

Becky Genberg, Assistant Professor Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Cecilia Tomori, Director of Global Public Health and Community Health Johns Hopkins School of Nursing

Anne Burke, Associate Professor Department of Gynecology and Obstetrics Johns Hopkins School of Medicine

Anthony D. So, Professor of the Practice Department of International Health Johns Hopkins Bloomberg School of Public Health

Baldeep Dhaliwal, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Shea Littlepage, Research Associate Department of International Health Johns Hopkins Bloomberg School of Public Health

Julie Denison, Associate Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

Joseph Carrese, Professor Johns Hopkins School of Medicine

Julie Evans, Research Associate Department of Health, Behavior and Society Johns Hopkins Bloomberg School of Public Health

Sheree Schwartz, Assistant Scientist Department of Epidemiology Johns Hopkins School of Public Health

Timothy Shields, Associate Scientist Department of Epidemiology Johns Hopkins Bloomberg School of Public Health

Paul Spiegel, Professor Department of International Health Johns Hopkins Bloomberg School of Public Health

4/4/2020 Case 2:D2o0ct-ocrsvi-n1N1Y0C9H4os-pMitaAls,GJa-iEls,AanSd ShEelCterFs CNalol o.n1th-e1C0ity tfoilTeakde 0M5or/e0A4g/g2re0ssivePAactigonetIoDC.o2m4b3at thePSaprgeaed o1f Coofro4navirus
Anyone can publish on Medium per our Policies, but we don’t fact-check every story. For more info about the coronavirus, see cdc.gov.
Doctors in NYC Hospitals, Jails, and Shelters Call on the City to Take More Aggressive Action to Combat the Spread of Coronavirus
Brad Lander Follow Mar 12 · 3 min read
From NYC Council Members Brad Lander and Ritchie Torres:

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

1/4

4/4/2020 Case 2:D2o0ct-ocrsvi-n1N1Y0C9H4os-pMitaAls,GJa-iEls,AanSd ShEelCterFs CNalol o.n1th-e1C0ity tfoilTeakde 0M5or/e0A4g/g2re0ssivePAactigonetIoDC.o2m4b4at thePSaprgeaed o2f Coofro4navirus
As public representatives, we have been talking with constituents, public health experts, schools, and city officials about how to balance the urgent need to slow the spread of coronavirus with the need to continue providing services, maintain public order, and lessen the hardships on families and vulnerable populations. In that spirit, we are sharing the following letter, provided to us by a group of doctors working in the City’s hospitals, jails, clinics and shelters, which calls for the City to rapidly take far more aggressive steps (as they term it: “enforced solidarity”) to halt community spread.
***
March 12, 2020
An Open Letter to Mayor de Blasio and City Officials
As doctors and public health officials working in the City’s hospitals, jails, clinics, and shelters, we are extremely anxious about the impact of the COVID-19 virus on vulnerable populations and by the City’s hesitance to take more dramatic action. Given the information we have about the exponential growth of the virus and the limited capacity of our health system to care for the number of people who will become sick and need care at the same time, we believe that aggressive measures must be taken now. Actions taken now to encourage and facilitate what we are calling enforced solidarity (a more accurate description than social distancing) will mitigate the impact of the virus on vulnerable populations and our health system.
We call on the City to:
Act immediately and boldly to slow the spread of the virus:
Suspend classes at public schools, while keeping schools open for emergency childcare for essential workers and vulnerable families. Keep childcare groups small, under 10 kids per group. Close schools immediately and reopen some as centers of family support and mitigation.
Order the NYPD to stop making low level arrests for violations and misdemeanors, in order to prevent the spread of the virus through our jails, courts, and precincts.

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

2/4

4/4/2020 Case 2:D2o0ct-ocrsvi-n1N1Y0C9H4os-pMitaAls,GJa-iEls,AanSd ShEelCterFs CNalol o.n1th-e1C0ity tfoilTeakde 0M5or/e0A4g/g2re0ssivePAactigonetIoDC.o2m4b5at thePSaprgeaed o3f Coofro4navirus
Order the courts to consider release for anyone in pretrial detention over 60. Administratively reschedule all criminal court proceedings for people who are not currently incarcerated. Reschedule all other court proceedings.
Urge businesses to have all non-essential workers work from home. Employers may have discretion over who is “essential,” but give guidance that only those providing services that must be maintained during a state of emergency should be considered essential.
Strongly advise people over 60 to avoid public transit.
Cancel all City events and revoke permits for events.
Ensure that medical personnel have adequate personal protective equipment.
Open a virus hotline for residents to be able to call a nurse and get a home visit if needed for quarantined people with moderate symptoms rather than bring people into the ER.
Order the Administration of Children’s Services (ACS) to stop requiring parents to attend groups and programs; halt non-emergency family court proceedings, guarantee tele-visitation for parents and children.
Take steps to strengthen the social safety net to protect vulnerable New Yorkers.
Turn schools into centers for community aid: food pantry, crisis navigation, and eventually satellite testing sites once we have capacity to test widely.
Urge the State to adopt paid sick leave for up to 2 weeks for all workers immediately.
Work with the State to institute an immediate moratorium on evictions and provide benefits for families and businesses.
Divert workers from other non-essential services to Naturally Occurring Retirement Communities and public housing to check on quarantined elderly. Can do by phone/remote to minimize unnecessary contact.
Increase Meals-on-Wheels service.

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

3/4

4/4/2020 Case 2:D2o0ct-ocrsvi-n1N1Y0C9H4os-pMitaAls,GJa-iEls,AanSd ShEelCterFs CNalol o.n1th-e1C0ity tfoilTeakde 0M5or/e0A4g/g2re0ssivePAactigonetIoDC.o2m4b6at thePSaprgeaed o4f Coofro4navirus
Increase staffing for the City’s mental health hotline to deal with increased anxiety and suicidality exacerbated by isolation and uncertainty. Take steps to address the digital divide, including providing burner cell phones at crisis centers and shelters for people who do not have cell phones. We are grateful for the City’s caution and attention to the impact of the coronavirus and associated response on vulnerable populations. We urge the City to begin taking more aggressive steps to shut down business as usual to slow community spread, while also increasing support for vulnerable populations. Sincerely, Doctors and public health officials working in NYC’s hospitals, jails, clinics, and shelters
Healthcare Jail Shelter Doctors
About Help Legal

https://medium.com/@bradlander/doctors-in-nyc-hospitals-jails-and-shelters-call-on-the-city-to-take-more-aggressive-action-to-fb75f0b131c2

4/4

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.247 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

COREAS, et al.,

Petitioners-Plaintiffs, v. BOUNDS, et al,

Civil Action No.:

Respondents-Defendants.

DECLARATION OF Ranit Mishori, MD, MHS, FAAFP I, Ranit Mishori, make the following declaration based on my personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and correct. I. Background
1. I am Dr. Ranit Mishori. I am a senior medical advisor at Physicians for Human Rights (PHR), and Professor of Family Medicine at the Georgetown University School of Medicine, where I am the director of the department’s Global Health Initiatives, Health Policy fellowship and our practice-based research network. A fellow of the American Academy of Family Physicians and Diplomate of the American Board of Family Medicine, I did my residency training at the Georgetown University/Providence Hospital Family Medicine Residency program. I received my medical degree from Georgetown University School of Medicine and a master’s degree in International Health from the Johns Hopkins Bloomberg School of Public Health, in the Disease Control and Prevention Track (focusing on the science of how to halt the spread of infectious disease).

1

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.248 Page 2 of 15
2. I am the faculty leader for Georgetown University School of Medicine’s Correctional Health Interest group, where I supervise medical students placed at various area jails, prisons and detention centers. In addition, I am the director of Georgetown University’s Asylum program which focuses on the care and medico-legal issues of asylum seekers, including immigration detention. I have written extensively and given talks and lectures about such issues nationally and internationally. In my role as senior medical advisor at PHR (and prior to that, as a consultant for PHR), I have reviewed and analyzed dozens of cases related to health outcomes of individuals in correctional facilities, and advised the organization and other partners (civil society, legal aid organizations and the media) about issues related to incarceration, including hunger strikes, medical care quality, communicable disease management, violence, and care of pregnant women in such settings.1
3. As an attending physician at the Georgetown University/Washington Hospital Center Family Medicine Residency Program, I work with urban underserved populations, including the homeless, formerly incarcerated individuals, immigrants and refugees. I routinely come in contact with victims of abuse, trauma and poverty where I regularly assess their medical as well as psycho-social needs in the context of their social-determinants of health (such as housing and incarceration).

1 See, e.g., Ranit Mishori, Risk Behind Bars: Coronavirus and Immigration Detention, The Hill (Mar. 17, 2020),

https://thehill.com/opinion/immigration/487986-risk-behind-bars-coronavirus-and-immigration-detention; Amanda

Holpuch, Coronavirus Inevitable in Prison-Like US Immigration Centers, Doctors Say, The Guardian (Mar. 11, 2020),

https://www.theguardian.com/world/2020/mar/11/coronavirus-outbreak-us-immigration-centers;

Abigail

Hauslohner, et al., Coronavirus Could Pose Serious Concern in ICE Jails, Immigration Courts, The Washington Post

(Mar. 12, 2020), https://www.washingtonpost.com/immigration/coronavirus-immigration jails/2020/03/12/44b5e56a-

646a-11ea-845d-e35b0234b136_story.html; Silvia Foster-Frau, Coronavirus Cases in Migrant Detention Facilities

Called ‘Inevitable’, Express News (Mar. 15, 2020) https://www.expressnews.com/news/us-world/border-

mexico/article/Whether-in-detention-or-in-Mexico-U-S-15129447.php.

2

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.249 Page 3 of 15
4. For four years I was an elected member of the American Academy of Family Physicians’ Commission on the Health of the Public and Science, where I chaired the Public Health Issues sub-committee. During that time, I was a one of the lead authors of the Academy’s comprehensive position paper on Incarceration and Health.
5. My CV is attached as Exhibit A. II. COVID-19
6. The novel coronavirus, officially known as SARS-CoV-2 (Coronavirus), causes a disease known as COVID-19. COVID-19 has now reached pandemic status. As of March 24, 2020, according to the World Health Organization (WHO), more than 334,000 people have been diagnosed with COVID-19 around the world and 14,652 have died.2 In the United States, about 31,537 people have been diagnosed and more than 400 people have died as of the same date.3 The numbers of infection and death in the United States are likely underestimated due to the lack of test kits available.
7. The transmission of Coronavirus is expected to grow exponentially. Nationally, projections by the Centers for Disease Control and Prevention (CDC) indicate that over 200 million people in the United States could be infected with Coronavirus over the course of the pandemic without effective public health intervention, with as many as 1.5 million deaths in certain projections.
2 See Novel Coronavirus (COVID-19) Situation, World Health Organization, https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed Mar. 18, 2020 (at noon EDT). 3 See Mitch Smith, et al., U.S. Coronavirus Map: Cases Now Reported in All 50 States, The New York Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed Mar. 18, 2020 (at noon EDT).
3

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.250 Page 4 of 15
8. The novel coronavirus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but it also survives on surfaces for some period of time. The virus can cause severe damage to lung tissue, requiring an extensive period of rehabilitation, and in some cases, a permanent loss of respiratory capacity. The virus also targets the heart muscle, leading to myocarditis, or inflammation of the heart muscle. It is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where Coronavirus originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. The “contagiousness” of this novel coronavirus—its R0 (the number of people who can get infected from a single infected person)—is twice that of the flu. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. For this reason, only with aggressive testing for the virus can we track the disease, isolate those affected, and stop its spread.
9. COVID-19 is a serious disease, which can lead to respiratory failure, kidney failure, and death. Older patients and patients with chronic underlying conditions are at a particularly high risk for severe cases and complications. 4 The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 than from influenza. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.
4 Fei Zhou, et al., Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID-19 in Wuhan, China, The Lancet (published online Mar. 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS01406736(20)30566-3/fulltext.
4

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.251 Page 5 of 15
According to preliminary data from China, serious illness, sometimes resulting in death, occurs in up to 16% of cases, with a higher rate among those older and high-risk individuals. 5
10. The CDC previously identified underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age, including: blood disorders, chronic kidney or liver disease, immunosuppression, endocrine disorders (including diabetes), metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.
11. Those in high-risk categories who do not die may have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that are likely to soon be in very short supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities. Patients who do not die from serious cases of COVID-19 may also face prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
12. Complications from COVID-19, including severe damage to lung, heart, liver, or other organs, can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
13. There is no vaccine to prevent COVID-19. There is no known cure or antiviral treatment for COVID-19 at this time.
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention, accessed Mar. 14, 2020, https://www.cdc.gov/coronavirus/2019-ncov/summary.html.
5

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.252 Page 6 of 15
14. COVID-19 prevention strategies include containment and mitigation. Containment requires identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Unfortunately, due to the lack of testing availability, most public health experts agree that it is too late to effectively implement a containment strategy in the United States at-large.
15. As the infectious disease spreads in a community, public health demands mitigation strategies, which include scrupulous hand hygiene and social distancing. For that reason, public health officials have recommended extraordinary measures to combat the rapid spread of coronavirus. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of this risk mitigation strategy. III. Detention Centers, Jails, & Prisons
16. The risk posed by infectious diseases in immigration detention facilities, including jails and prisons, is significantly higher than in the community, both in terms of risk of exposure and transmission and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
17. Globally, outbreaks of contagious diseases are all too common in confined detention settings and are more common than in the community at large. Though they contain a captive population, these settings are not isolated from exposure. ICE has temporarily suspended social visitation in all detention facilities.6 However, staff arrive and leave on a shift basis; there is no ability to adequately screen staff for new, asymptomatic infection. Contractors and vendors
6 ICE Guidance on Covid-19, U.S. Immigration and Customs Enforcement, accessed Mar. 18, 2020 (at 1:00 p.m. EDT), https://www.ice.gov/covid19.
6

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.253 Page 7 of 15
also pass between communities and facilities and can bring infectious diseases into facilities. People are often transported to, from, and between facilities.
18. Jails, prisons and detention centers often do not have access to vital community health resources that can be crucial in identifying infectious diseases, including sufficient testing equipment and laboratories. This is especially true when, as now, there is a shortage in available test kits.
19. During an infectious disease outbreak, a containment strategy requires people who are ill to be isolated and that caregivers have adequate personal protective equipment (PPE). Jails and prisons are often under-resourced and ill-equipped to provide sufficient PPE for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak. Moreover, efforts to mitigate disease spread in jails, prisons and detention centers will help limit its transmission in the community, since staff members are able to come and go, and return to their family members at the end of their shifts. This is especially true when, as now, facemasks are already in short supply.
20. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people live in close, crowded quarters and must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. Toilets, sinks, and showers are shared, without disinfection between use. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Detainees often have a small number of telephones that they share, and which form their only contact with the outside world—including
7

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.254 Page 8 of 15
their family and lawyers. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
21. Additionally, jails and prisons are often unable to adequately provide the mitigation recommendations described above. During an infectious disease outbreak, people can protect themselves by washing hands. Detention centers, jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often underresourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained 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 is often not done in jails and prisons.
22. People incarcerated in detention centers, jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.7 This is because people in detention centers, jails and prisons, for a variety of reasons, have higher rates of chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and suppressed immune systems from HIV or other conditions, than people in the community.
23. Detention centers, jails and prisons are often poorly equipped to manage infectious disease outbreaks. Some detention centers, jails and prisons lack onsite medical facilities or 24hour medical care. The medical facilities at detention centers, jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of
7 Active Case Finding For Communicable Diseases in Prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
8

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.255 Page 9 of 15
droplet-borne infectious diseases, people who are infected and symptomatic need to be isolated in specialized negative pressure rooms. Most detention centers, jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). ICE has admitted that not all of the detention centers it oversees have even one.8 In the course of an infectious disease outbreak, resources will become exhausted rapidly and any beds available will soon be at capacity.
24. Even assuming adequate space, solitary confinement is not an effective disease containment strategy. Isolation of people who are ill using solitary confinement is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms, air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and the staff. This makes both containing the illness and caring for those who have become infected much more difficult.
25. Infectious disease outbreaks, such as COVID-19, may exacerbate existing mental health conditions and contribute to the development of new mental health conditions.9 Mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation. Moreover, failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by an infectious
8 Brittny Mejia, ICE Says No Confirmed Coronavirus Among Detainees After 4 Test Negative, Los Angeles Times, accessed Mar. 18, 2020, https://www.latimes.com/california/story/2020-03-10/ice-says-no-detainees-havecoronavirus-four-being-tested 9 Brian Honermann, An “Epidemic Within an Outbreak:” The Mental Health Consequences of Infectious Disease Epidemics, O’Neill Institute for National and Global Health Law (Feb. 26, 2015), accessed Mar. 19, 2020, https://oneill.law.georgetown.edu/epidemic-within-outbreak-mental-health-consequences-infectious-diseaseepidemics/; Müller N, Infectious Diseases and Mental Health, Comorbidity of Mental and Physical Disorders; Shultz JM, Mental Health Consequences of Infectious Disease Outbreaks, accessed Mar. 19, 2020, https://www.urmc.rochester.edu/MediaLibraries/URMCMedia/flrtc/documents/Slides-MH-CONSEQUENCES-OFID-OUTBREAKSV2.pdf.
9

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.256 Page 10 of 15
disease outbreak such as COVID-19, may result in poor health outcomes and even death. The scientific evidence points to a bi-directional relationship between mental health conditions and infectious diseases. Not only are individuals with mental health conditions more at risk for communicable diseases, they are also harder to treat, once infected, due to the nature of their underlying mental health disorder. For individuals in these facilities, especially those with chronic mental health conditions, the experience of an epidemic and the lack of care while confined to small, crowded quarters can itself be traumatizing, compounding the trauma of incarceration.
26. A coronavirus brought into a detention facility can quickly spread among the dense detainee cohort. Soon many are sick—including high-risk groups such as those with chronic conditions—quickly overwhelming the already strained health infrastructure within the facility. This can also lead to a strain on the surrounding hospitals to which these individuals may be transferred.
27. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.10 Subsequent CDC investigation of 995 inmates and 235 staff members across the two facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.11 H1N1 is far less contagious than coronavirus. These scenarios occurred in the “best case” of influenza, a viral infection for which
10 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention, Apr. 6, 2020, https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 11 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deathsare-few/.
10

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.257 Page 11 of 15
there was an effective and available vaccine and antiviral medications, unlike the coronavirus COVID-19, for which there is currently neither.
28. In recent years in immigration detention facilities, overcrowding, poor hygiene measures, medical negligence, and poor access to resources and medical care have led to outbreaks of other infectious diseases as well, including mumps and chickenpox.
29. Additionally, as health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions.
30. We have ample basis to conclude that detention settings are equally unprepared for the rapid spread of Coronavirus. Not surprisingly, Chinese prison officials report that over 500 COVID-19 cases in the current outbreak stemmed from the Hubei province prisons. In Israel, an entire prison was quarantined. Recognizing that the release of those incarcerated is the only solution, US jails in at least a dozen states have begun releasing inmates. In Iran, over 80,000 prisoners were released as a means of preventing death in government prisons. Major human rights organizations such as Human Rights Watch, Physicians for Human Rights and Amnesty International have issued calls to release those detained in immigration facilities to prevent the spread of coronavirus.
31. In my professional opinion, it is inevitable that SARS-CoV-2, the virus that causes COVID-19, will infect prisons, jails, and/or other immigration detention centers in the United States. This is consistent with the prediction of other experts that all detention centers, prisons and jails should anticipate. Given the shortage of COVID-19 tests in the United States, it is likely that detention facilities are unable to conduct aggressive, widespread testing to identify all positive
11

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.258 Page 12 of 15
coronavirus cases. The ability to identify cases is crucial in order to be able to determine whether there is a risk for coronavirus transmission in an institution. IV. The Maryland Detention Facilities
32. Based on the description of the Maryland facilities contained in the Lopez Declaration, it is my professional opinion that the Maryland facilities are particularly susceptible to rapid spread of the virus and are not equipped to handle a coronavirus outbreak.
33. The living conditions described in the Lopez Declaration are not amenable to the necessary social distancing and hygiene measures that would be necessary to contain or minimize spread of the virus.
34. In particular, the fact that persons detained in those facilities share dorms, cells, living spaces, and bathroom space that is not disinfected between each use, and regularly interact with each other in narrow hallways and other areas where maintaining distance is not possible makes it all but inevitable that the virus would spread rapidly within the facility.
35. Because routine testing is not being undertaken at the facility, it is impossible to tell how many asymptomatic carriers of the disease may already be at the facility or to screen for new instances of the virus before an individual with COVID-19 becomes symptomatic. Since testing is not widely available, it is highly unlikely that the facility would even be able to keep up with the need to test individuals exhibiting symptoms for the virus. Rapid spread of the virus within the facility is therefore extremely likely.
36. The fact that medical units are shared spaces exacerbates this problem, as there appears to be no way to isolate individuals infected with the virus when this becomes necessary. The fact that there is only a small amount of space available in the medical unit makes it highly
12

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.259 Page 13 of 15
unlikely that the facility could accommodate expanded need for services as a result of a coronavirus outbreak.
37. Moreover, the absence of 24-hour onsite medical facilities, the minimal and parttime nature of medical staffing, and that detainees appear to have had difficulties accessing routine medical care in the past renders it highly unlikely that the facility would be able to provide appropriate screening or treatment should that become necessary.
38. Based on the description of the facilities I have reviewed, it is my professional opinion that an outbreak is highly likely and that the consequences of rampant COVID-19 infection in the facility would be disastrous, especially for high-risk individuals like the plaintiffs in this case. V. Specific Cases.
39. The two plaintiffs in this lawsuit present with personal health characteristics that put them at high risk for complications from COVID-19 should they be exposed to the virus in detention.
40. Mr. Coreas, who suffers from Diabetes is also at a higher risk for complications due to this chronic medical condition. According to the CDC and the American Diabetes Association, those with diabetes are at a higher risk for COVID-19 complications, but also to deadly conditions resulting from the viral infection itself overwhelming the body, such as DKA – or diabetic ketoacidosis.
41. Mr. Cedillo suffers from hypertension. Early research has shown that those with a diagnosis of hypertension have worse symptoms and are more likely to die from COVID-19. VI. Conclusion and Recommendations
13

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.260 Page 14 of 15
42. For the reasons above, it is my professional judgment that the plaintiffs, currently in ICE’s immigration detention centers, are at a significantly higher risk of infection with Coronavirus as compared to the population in the community, and that they are at a significantly higher risk of complications and poor outcomes if they do become infected. These outcomes include severe illness (including respiratory, cardiac and kidney failure) and even death.
43. Given that the only viable public health strategy available in the United States currently is risk mitigation, reducing the size of the population in detention centers, jails and prisons is crucially important to reducing the level of risk both for those within those facilities and for the community at large. Not doing so is not only inadvisable but also reckless given the public health realities we now face in the United States.
44. Even with the best-laid plans to address the spread of Coronavirus in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my professional opinion, the only viable public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of an effective vaccine for prevention or effective treatment for the disease at this stage. My professional opinion is consistent with the view of the medical profession as a whole that there are no conditions of confinement in carceral settings that can adequately manage the serious risk of harm for high-risk individuals during the COVID-19 pandemic.
45. Immediate release is crucial for the above-mentioned individuals. 46. Releasing people from incarceration is the best and safest way to prevent the spread of disease and reduce the threat to the most vulnerable incarcerated people. It is my professional opinion that this step is both necessary and urgent. The window of opportunity is rapidly narrowing
14

Case 2:20-cv-11094-MAG-EAS ECF No. 1-11 filed 05/04/20 PageID.261 Page 15 of 15
for mitigation of COVID-19 in these facilities. It is a matter of days, not weeks. Once a case of Coronavirus is identified in a facility, it will likely be too late to prevent a widespread outbreak.
47. Release of the most vulnerable people also reduces the burden on these facilities’ limited health care infrastructure, as it lessens the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.
48. Release of the most vulnerable people – such as the plaintiffs in this case -- also reduces the burden on regional hospitals and health centers, which will otherwise bear the brunt of having to treat these individuals when infected, thus reducing the number of hospital beds and equipment available for the general population. VII. Expert Disclosures
49. None. I declare under penalty of perjury that the foregoing is true and correct. Executed this 24th day of March, 2020 in Washington, D.C. Ranit Mishori, M.D, MHS, FAAFP
15

Case 2:2C0a-csve-121:2009-4c-vM-0A0G40-E9A-JSLRE-MCAFTNoD. o1c-1u2mefnilte4d 0F5/il0e4d/2003/16P/a2g0eIDP.a2g6e21 oPf a3ge 1 of 3
Declaration of Robert B. Greifinger, MD
I, Robert B. Greifinger, declare as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and co-author of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am familiar with immigration detention centers, having toured and evaluated the medical care in approximately 20 immigration detention centers, out of the several hundred correctional facilities I have visited during my career. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
3. COVID-19 is a coronavirus disease that has reached pandemic status. As of today, according to the World Health Organization, more than 132,000 people have been diagnosed with COVID-19 around the world and 4,947 have died.2 In the United States, about 1,700 people have been diagnosed and 41 people have died thus far.3 These numbers are likely an underestimate, due to the lack of availability of testing.
4. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19. There is no known cure or antiviral treatment for COVID-19 at this time. The only way to mitigate COVID-19 is to use scrupulous hand hygiene and social distancing.
5. People in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death. According to preliminary data from China, 20% of people in high risk categories who contract COVID-19 have died.
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 See https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed March 13, 2020. 3 See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed March 13, 2020.

Case 2:2C0a-csve-121:2009-4c-vM-0A0G40-E9A-JSLRE-MCAFTNoD. o1c-1u2mefnilte4d 0F5/il0e4d/2003/16P/a2g0eIDP.a2g6e32 oPf a3ge 2 of 3
6. Those who do not die have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that will likely be in very short supply.
7. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy.
8. Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19. For that reason, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of risk mitigation strategy. At least one nursing home in the Seattle area has had cases of COVID-19 and has been quarantined.
9. The Seattle metropolitan area, hit hard by COVID, is the epicenter of the largest national outbreak at this time. Therefore, it is highly likely, and perhaps inevitable, that COVID19 will reach the immigration detention facility in Tacoma, Washington. Immigration courts and the ICE field office in Seattle have already closed this month due to staff exposure to COVID-19.
10. The conditions of immigration detention facilities pose a heightened public health risk to the spread of COVID-19, even greater than other non-carceral institutions.
11. Immigration detention facilities are enclosed environments, much like the cruise ships that were the site of the largest concentrated outbreaks of COVID-19. Immigration detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources. People live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. Toilets, sinks, and showers are shared, without disinfection between use. Food preparation and food service is communal, with little opportunity for surface disinfection. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
12. Many immigration detention facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. As examples, immigration detention facilities often use practical nurses who practice beyond the scope of their licenses; have part-time physicians who have limited availability to be on-site; and facilities with no formal linkages with local health departments or hospitals.
13. The only viable public health strategy available is risk mitigation. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy. In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks

Case 2:2C0a-csve-121:2009-4c-vM-0A0G40-E9A-JSLRE-MCAFTNoD. o1c-1u2mefnilte4d 0F5/il0e4d/2003/16P/a2g0eIDP.a2g6e43 oPf a3ge 3 of 3
to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage. 14. To the extent that vulnerable detainees have had exposure to known cases with laboratory-confirmed infection with the virus that causes COVID-19, they should be tested immediately in concert with the local health department. Those who test negative should be released. 15. This release cohort can be separated into two groups. Group 1 could be released to home quarantine for 14 days, assuming they can be picked up from NWDC by their families or sponsors. Group 2 comprises those who cannot be easily transported to their homes by their families or sponsors. Group 2 could be released to a housing venue for 14 days, determined in concert with the Pierce County or Washington State Department of Health.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 14th day in March, 2020 in New York City, New York.
Robert B. Greifinger, M.D.

4/16/2020 Case 2:20-cv-11094-MAG-EAS ECWFhitNmeor.- E1x-e1c3utivefOilerdder 02052/00-249/(2C0OVID-P19a)geID.265 Page 1 of 6

THE OFFICE OF GOVERNOR GRETCHEN WHITMER



WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-29 (COVID-19)

EXECUTIVE ORDER

No. 2020-29

Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody;
temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identi ed in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.

On March 10, 2020, the Michigan Department of Health and Human Services identi ed the rst

two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive

Order 2020-4. This order declared a state of emergency across the state of Michigan under

section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act,

1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of

1945, 1945 PA 302, as amended, MCL 10.31-.33.



The Emergency Management Act vests the governor with broad powers and duties to “cop[e]

with dangers to this state or the people of this state presented by a disaster or emergency,”

which the governor may implement through “executive orders, proclamations, and directives

having the force and e ect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the

Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may

promulgate reasonable orders, rules, and regulations as he or she considers necessary to

protect life and property or to bring the emergency situation within the a ected area under

control.” MCL 10.31(1).



https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html

1/6

4/16/2020 Case 2:20-cv-11094-MAG-EAS ECWFhitNmeor.- E1x-e1c3utivefOilerdder 02052/00-249/(2C0OVID-P19a)geID.266 Page 2 of 6
To mitigate the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders who work at or are incarcerated in prisons, county jails, local lockups, and juvenile detention centers across the state, it is reasonable and necessary to implement limited and temporary COVID-19-related protocols and procedures regarding entry into facilities operated by the Michigan Department of Corrections and transfers to and from the Department’s custody; to recommend limited and temporary COVID-19-related protocols and measures for county jails, local lockups, and juvenile detention centers; and to temporarily suspend certain rules and procedures to facilitate the implementation of those recommendations.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. The Michigan Department of Corrections (the “Department”) must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which the Department has already developed and implemented at the facilities it operates and which include the following:

a. Screening all persons arriving at or departing from a facility, including sta , incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.
 b. Restricting all visits, except for attorney-related visits, and conducting those visits without physical contact to the extent feasible.

c. Limiting o -site appointments for incarcerated persons to only appointments for urgent or emergency medical treatment.

d. Developing and implementing protocols for incarcerated persons who display symptoms

of COVID-19, including methods for evaluation and processes the Department of Health and Human Services (“DHHS”), and

for testing, noti isolation during

tceasttiionng,of

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html

2/6

4/16/2020 Case 2:20-cv-11094-MAG-EAS ECWFhitNmeor.- E1x-e1c3utivefOilerdder 02052/00-249/(2C0OVID-P19a)geID.267 Page 3 of 6 while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments.

e. Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.

f. Providing, to the fullest extent possible, appropriate personal protective equipment to all sta as recommended by the CDC.

g. Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.

h. Ensuring access to personal hygiene products for incarcerated persons and correctional sta , including soap and water su cient for regular handwashing.

i. Ensuring that protective laundering protocols are in place.

j. Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.

k. Practicing social distancing in all programs and classrooms—meaning a distance of at least

six feet between people in any meeting, classroom, or other group.



Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.

2. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the capacity and procedural requirements regarding county jail overcrowding states of
emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq.,

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html

3/6

4/16/2020 Case 2:20-cv-11094-MAG-EAS ECWFhitNmeor.- E1x-e1c3utivefOilerdder 02052/00-249/(2C0OVID-P19a)geID.268 Page 4 of 6 is temporarily suspended. While this order is in e ect, all actions that would be authorized under the CJOA in the event of a declaration of a county jail overcrowding state of emergency are authorized and shall remain authorized without regard to any reduction in jail population or any other such limitations on the duration of authorization imposed by the CJOA.

3. Anyone authorized to act under section 2 of this order is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:

a. Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.

b. Anyone who is incarcerated for a tra c violation.

c. Anyone who is incarcerated for failure to appear or failure to pay.

d. Anyone with behavioral health problems who can safely be diverted for treatment.

4. E ective immediately, all transfers into the Department’s custody are temporarily suspended. Beginning seven (7) days from the e ective date of this order, and no more than once every seven (7) days, a county jail or local lockup may request that the director of the Department determine that the jail or lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order. Upon inspection, if the director
 of the Department determines that a county jail or local lockup has satisfactorily
implemented risk reduction protocols, transfers from that jail or lockup will resume in accordance with the Department’s risk reduction protocols. The director of the Department may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.

5. Parole violators in the Department’s custody must not be transported to or lodged in a

county jail or local lockup unless the director of the Department has determined that such

county jail or local lockup has satisfactorily implemented risk reduction protocols as

described in section 1 of this order.



https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html

4/6

4/16/2020 Case 2:20-cv-11094-MAG-EAS ECWFhitNmeor.- E1x-e1c3utivefOilerdder 02052/00-249/(2C0OVID-P19a)geID.269 Page 5 of 6
6. The State Budget O ce must immediately seek a legislative transfer so that counties may be reimbursed for lodging incarcerated persons that would have been transferred into the Department’s custody if not for the suspension of transfers described in section 4 of this order.

7. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:

a. Removing from the general population any juveniles who have COVID-19 symptoms.

b. Eliminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.

c. Providing written and verbal communications to all juveniles at such facilities regarding COVID-19, access to medical care, and community-based support.

d. To the extent feasible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.

8. Unless otherwise directed by court order, for juveniles on court-ordered probation, the

use of out-of-home con nement for technical violations of probation and any



requirements for in-person meetings with probation o cers are temporarily suspended.

9. This order is e ective immediately and continues through April 26, 2020 at 11:59 pm.

Given under my hand and the Great Seal of the State of Michigan.
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html


5/6

4/16/2020 Case 2:20-cv-11094-MAG-EAS ECWFhitNmeor.- E1x-e1c3utivefOilerdder 02052/00-249/(2C0OVID-P19a)geID.270 Page 6 of 6
MICHIGAN.GOV HOME ADA MICHIGAN NEWS POLICIES COPYRIGHT 2020 STATE OF MICHIGAN

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html


6/6

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14
State Headquarters
2966 Woodward Avenue Detroit, MI 48201 Phone 313.578.6800 Fax 313.578.6811 E-mail aclu@aclumich.org www.aclumich.org

filed 05/04/20

PageID.271 Page 1 of 15
Detroit Office
645 Griswold Suite 3300 Penobscot Building Detroit, MI 48226 Phone 313.256.9833 Fax 313.965.0372 www.sado.org

March 31, 2020

Sent via email

Re: Reducing Your Jail Population Pursuant to Executive Order 2020-29

Dear Sheriff:
The ACLU of Michigan (“ACLU”) and the State Appellate Defender Office (“SADO”) appreciate the efforts that many courts and law enforcement officials around the state have already taken to try to reduce jail populations in order to mitigate the probability of a disastrous COVID-19 outbreak in our jails and to reduce the impact when one inevitably occurs despite everyone’s best efforts. On March 29, 2020, Governor Whitmer signed Executive Order 202029, attached here for your convenience. The Order underscores the life-or-death threat that the COVID-19 pandemic poses to people incarcerated in county jails throughout Michigan, as well as to jail staff and the community at large. The Order suspends the capacity and procedural requirements of Michigan’s County Jail Overcrowding Act (“JOA”), thus empowering sheriffs and courts to swiftly but safely take bold and urgent steps to dramatically reduce jail populations to alleviate these risks.
We write to highlight the specific measures that sheriffs and courts can now take to further reduce jail populations under the JOA, as modified by EO 2020-29, while maintaining public safety. We note that Chief Justice Bridget McCormack and Sheriff Matt Saxton of the Michigan Sheriffs’ Association recently issued a press release urging courts and sheriffs to take similar measures, emphasizing that “[f]ollowing this advice WILL SAVE LIVES.” The ACLU and SADO agree.
It is important to note that all of the powers conferred by the JOA allow courts and sheriffs to act promptly and efficiently without conducting separate hearings in each individual case. And, as expressly authorized by EO 2020-29, you may immediately implement any or all of the JOA’s population reduction measures without regard to the capacity, procedural, and waiting-period requirements that strict compliance with the statute would otherwise entail. Accordingly, the following critical measures can now be taken immediately by judges and sheriffs working together—and as a matter of public health, must be taken without any delay—in order to reduce the risks of fatal COVID-19 outbreaks in our jails:
• Release of pre-trial detainees. The JOA permits the chief district judge, chief circuit judge, the sheriff (and in some jurisdictions a few additional judges) to vote to establish a “maximum value” for convertible cash bonds. The sheriff is then authorized to convert the bond of any person in jail because of inability to pay a bond up to the “maximum value” into a personal bond and to release that individual upon approval from the chief circuit judge. MCL 801.51a(1)(a), (2). Courts and sheriffs should immediately use this

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.272 Page 2 of 15
power by establishing high “maximum values.” Then sheriffs should promptly provide lists of individuals who qualify for release because of their bond amount, and chief circuit judges should promptly and summarily approve such lists.
The JOA also provides ways to promptly and safely release most individuals whose cash bail exceeds the “maximum value.” The JOA allows chief judges to modify bond to facilitate the release of any pre-trial detainee, except for individuals accused of crimes against their romantic partner or children, who does not pose “a high risk to public safety.” MCL 801.56(2)(b), (3), (4)(b). Sheriffs should promptly provide lists of all individuals who are still in jail in a format that complies with MCL 801.56(2)(b). Chief judges should then make determinations about whether to modify bond as rapidly as possible and in recognition that an individual accused of a crime should not be presumed guilty and should not be presumed to be likely to re-offend in the absence of extraordinary facts suggesting a recurring pattern of violent activity.
• Release of prisoners who have served 85% of their sentence. The JOA permits sheriffs to release people who were convicted of most crimes immediately if they have already served 85% or more of their sentence, unless the chief circuit judge concludes that immediate release will present a threat to public safety. MCL 801.51a(1)(b). This option exists for all criminal convictions except “assaultive offense, sex offense, prison or jail escape offense, weapons offense, drunk driving offense, or a controlled substance offense except possession of less than 25 grams of a controlled substance.” Accordingly, sheriffs should immediately provide lists of eligible individuals who have served 85% of their sentence to chief circuit judges. Chief circuit judges should promptly order the release of all such people absent persuasive evidence that the individuals will be a danger to the public, evidence of which should be very rare given the offenses that are eligible for release.
• Reduction of sentences for other prisoners. The JOA provides three ways to reduce the sentences of people housed in county jails. First, section 56 states that sheriffs should provide a list of all individuals currently serving sentences in the jails to the chief circuit judges. MCL 800.56(2)(a). Chief circuit judges must then classify the list into two categories: individuals who present a “high risk to public safety” if released and those who do not. The chief judge can then set a minimum and maximum percentage amount by which sentences of the non-high risk individuals may be reduced, and the sheriff may immediately reduce the sentences of all such people by any amount within the range set by the chief judge. MCL 801.56(4)(a).
Second, sheriffs can unilaterally reduce the sentences of all people in a county jail by up to 30% without approval from a circuit judge. MCL 801.57.
Third, any sentencing judge “may suspend or reduce any validly imposed jail sentence imposed by that judge.” MCL 800.59b(1). Judges can delegate these powers to their chief judge. All judges should be encouraged to exercise this power (or delegate it to their chief judges) to reduce or suspend sentences of all people who do not pose an immediate high risk to public safety. In particular, judges should suspend sentences in
2

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.273 Page 3 of 15
situations where the defendant has not yet begun to serve their sentence, so as to avoid introducing new individuals and risks into the carceral environment.
• Refuse to detain new people in the jails. The JOA authorizes sheriffs to defer admitting new detainees to the jail except for individuals convicted of certain, more serious, crimes, until the crisis has abated. Specifically, sheriffs may decline to admit new individuals to their jails unless such individuals have been convicted of “violent or assaultive crimes, sex offenses, escape from prison or jail, drunk driving offenses, controlled substance offenses except possession of less than 25 grams of a controlled substance, or weapons offenses.” MCL 801.58(1). Sheriffs are now able to exercise these powers to refuse to admit all new pre-trial detainees, people convicted of most offenses, as well as anyone charged with technical probation violations or failure to appear, unless the chief circuit judge affirmatively determines that detention is necessary because of a “threat to public safety.” Significantly, sheriffs can decline to admit new detainees under this section without first obtaining approval from the circuit court.
• Review and termination of agreements to house other detainees, especially ICE detainees. Section 55(f) of the JOA allows sheriffs to review agreements to house detainees from other governmental actors and authorizes termination of such arrangements. MCL 801.55(f). This allows sheriffs to revisit contracts to hold federal detainees, including ICE detainees. In our experience, most such contracts allow for immediate termination in the event of an “emergency.” Accordingly, sheriffs should consider immediately terminating such contracts and releasing ICE detainees as an efficient way to significantly reduce jail populations without imperiling public safety.1
In addition, local jails should not hold people on detainers for Immigrations and Customs Enforcement (ICE), which are not judicially issued warrants, but are merely requests to hold individuals for ICE. See Lopez-Lopez v. County of Allegan, 321 F Supp 3d 794, 799 (WD Mich., 2018) (“[C]ooperation with ICE detainers is discretionary rather than mandatory”).
In addition to the specific powers enumerated above, the JOA includes several other measures that courts and jails have at their disposal to reduce jail populations. For example, MCL 801.55(a)–(q) sets forth a panoply of alternatives to incarceration that can be utilized. A full copy of the relevant provisions of the JOA are attached to this letter for your convenience.
EO 2020-29 also offers additional categories of people for special consideration of release. These include older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, people nearing their release date, people incarcerated for traffic violations or for failure to appear or failure to pay, and people with behavioral health problems who can safely be diverted for treatment.
1 The standard Intergovernmental Service Agreement (IGSA) between county jails and ICE specifically provides that you can bring medically vulnerable individuals to ICE’s attention for release within 48 hours, and that limitations on releasing ICE detainees do not apply in “medical or emergency situations.”
3

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.274 Page 4 of 15
Finally, EO 2020-29 complements the tools already in place to reduce jail populations. MCL 771.2(5) provides for modification of probation, where jail is a condition of the probation, and MCL 801.257 permits reductions of jail sentences by one quarter. SADO and the ACLU of Michigan appreciate that sheriffs and courts have already been working around the clock in many jurisdictions to improve public safety. EO 2020-29 provides a powerful new tool to accelerate those efforts, and rapidly deploying these new powers is urgent to protect both people in jails, and jail staff and their loved ones, as well as the health of the public at large. Our organizations would be eager to speak with you about ways to facilitate the swift and safe release of people in jails pursuant to the Governor’s order. Thank you for your consideration of these matters in a challenging time.
Sincerely, Dan Korobkin, Legal Director Phil Mayor, Senior Staff Attorney ACLU of Michigan dkorobkin@aclumich.org pmayor@aclumich.org Jonathan Sacks, Director State Appellate Defender Office JSacks@sado.org Cc: Chief Justice Bridget Mary McCormack (via email) Matt Saxton, Executive Director, Michigan Sheriffs’ Association
4

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.275 Page 5 of 15
EXECUTIVE ORDER
No. 2020-29
Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody; temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
To mitigate the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders who work at or are incarcerated in prisons, county jails, local lockups, and juvenile detention centers across the state, it is reasonable and necessary to implement limited and temporary COVID-19-related protocols and procedures regarding entry into facilities operated by the Michigan Department of Corrections and transfers to and from the Department’s custody; to recommend limited and temporary COVID-19-related protocols and measures for county jails, local lockups, and juvenile detention centers; and to temporarily suspend certain rules and procedures to facilitate the implementation of those recommendations.
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.276 Page 6 of 15
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. The Michigan Department of Corrections (the “Department”) must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which the Department has already developed and implemented at the facilities it operates and which include the following:
(a) Screening all persons arriving at or departing from a facility, including staff, incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.
(b) Restricting all visits, except for attorney-related visits, and conducting those visits without physical contact to the extent feasible.
(c) Limiting off-site appointments for incarcerated persons to only appointments for urgent or emergency medical treatment.
(d) Developing and implementing protocols for incarcerated persons who display symptoms of COVID-19, including methods for evaluation and processes for testing, notification of the Department of Health and Human Services (“DHHS”), and isolation during testing, while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments.
(e) Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.
(f) Providing, to the fullest extent possible, appropriate personal protective equipment to all staff as recommended by the CDC.
(g) Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.
(h) Ensuring access to personal hygiene products for incarcerated persons and correctional staff, including soap and water sufficient for regular handwashing.
(i) Ensuring that protective laundering protocols are in place.
(j) Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.
(k) Practicing social distancing in all programs and classrooms—meaning a distance of at least six feet between people in any meeting, classroom, or other group.
2

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.277 Page 7 of 15
(l) Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.
2. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the capacity and procedural requirements regarding county jail overcrowding states of emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq., is temporarily suspended. While this order is in effect, all actions that would be authorized under the CJOA in the event of a declaration of a county jail overcrowding state of emergency are authorized and shall remain authorized without regard to any reduction in jail population or any other such limitations on the duration of authorization imposed by the CJOA.
3. Anyone authorized to act under section 2 of this order is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:
(a) Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.
(b) Anyone who is incarcerated for a traffic violation.
(c) Anyone who is incarcerated for failure to appear or failure to pay.
(d) Anyone with behavioral health problems who can safely be diverted for treatment.
4. Effective immediately, all transfers into the Department’s custody are temporarily suspended. Beginning seven (7) days from the effective date of this order, and no more than once every seven (7) days, a county jail or local lockup may request that the director of the Department determine that the jail or lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order. Upon inspection, if the director of the Department determines that a county jail or local lockup has satisfactorily implemented risk reduction protocols, transfers from that jail or lockup will resume in accordance with the Department’s risk reduction protocols. The director of the Department may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.
5. Parole violators in the Department’s custody must not be transported to or lodged in a county jail or local lockup unless the director of the Department has determined that such county jail or local lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order.
6. The State Budget Office must immediately seek a legislative transfer so that counties may be reimbursed for lodging incarcerated persons that would have been transferred into the Department’s custody if not for the suspension of transfers described in section 4 of this order.
3

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.278 Page 8 of 15
7. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:
(a) Removing from the general population any juveniles who have COVID-19 symptoms.
(b) Eliminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.
(c) Providing written and verbal communications to all juveniles at such facilities regarding COVID-19, access to medical care, and community-based support.
(d) To the extent feasible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.
8. Unless otherwise directed by court order, for juveniles on court-ordered probation, the use of out-of-home confinement for technical violations of probation and any requirements for in-person meetings with probation officers are temporarily suspended.
9. This order is effective immediately and continues through April 26, 2020 at 11:59 pm.
Given under my hand and the Great Seal of the State of Michigan.

Date: March 29, 2020 Time: 7:23 pm

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
4

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.279 Page 9 of 15
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.51a County jail population exceeding 95% of jail's rated design capacity; actions by county sheriff; maximum value of outstanding bonds; duration; applicability of subsections (1) to (3). Sec. 1a. (1) In a county other than a county described in subsection (4), the sheriff of that county shall take
the following actions on the fifth consecutive day on which the general population of the county jail exceeds 95% of the jail's rated design capacity:
(a) The sheriff shall review the outstanding bonds for each prisoner. If the total of a prisoner's outstanding bonds does not exceed a maximum value determined as provided in subsection (2), the sheriff, subject to the approval of the chief circuit judge in that county, shall modify each outstanding bond for that prisoner to a personal recognizance bond in that same amount, issue to the prisoner a receipt similar to an interim bond receipt, and send a copy of the receipt to the court that set the bond.
(b) The following prisoners, except for any prisoner that the chief circuit judge in that county believes would present a threat to the public safety if released, shall be released immediately:
(i) Any sentenced prisoner who has served 85% or more of his or her sentence, unless he or she is serving a sentence for a violent or assaultive offense, sex offense, prison or jail escape offense, weapons offense, drunk driving offense, or a controlled substance offense except possession of less than 25 grams of a controlled substance.
(ii) Any prisoner detained in the county jail for a civil contempt adjudication for failure to pay child support who has no other charges pending against him or her.
(2) The maximum value of outstanding bonds, for purposes of subsection (1)(a), shall be determined by a majority vote of the following individuals, as applicable:
(a) In a single-county or multicounty judicial district, the chief circuit judge for the judicial circuit that includes that county, the chief district judge for that district, and the sheriff of the county.
(b) In a county containing 2 or more judicial districts, the chief circuit judge for the judicial circuit that includes that county, the chief probate judge for that county, the sheriff of the county, and 2 district judges chosen by the chief district judges sitting in that county.
(3) A determination made under subsection (2) remains in effect for 1 year after the date on which that determination was made.
(4) Subsections (1) to (3) do not apply to either of the following: (a) A county for which a county jail management plan has been approved under section 9a. (b) A county having a population greater than 650,000 as of the most recent federal decennial census that, on the effective date of this section, has implemented a written jail management plan in which the basis of the plan is jail bed allocation. The exception provided by this subsection applies only as long as that plan remains in effect.
History: Add. 2007, Act 140, Eff. Feb. 11, 2008.
Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.280 Page 10 of 15
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.55 Reduction of prisoner population by sheriff, notified persons, and other judges; means. Sec. 5. The sheriff, the persons notified pursuant to section 4, and other circuit, district, and municipal
judges may attempt to reduce the prisoner population of the county jail through any available means which are already within the scope of their individual and collective legal authority, including, but not limited to, the following:
(a) Accelerated review and rescheduling of court dates. (b) Judicial review of bail for possible bail reduction, release on recognizance, or conditional release of prisoners in the county jail. (c) Prosecutorial pre-trial diversion. (d) Judicial use of probation, fines, community service orders, restitution, and delayed sentencing as alternatives to commitment to jail. (e) Use of work-release, community programs, and other alternative housing arrangements by the sheriff, if the programs and alternative housing arrangements are authorized by law. (f) Review of agreements which allow other units of government to house their prisoners in the overcrowded county jail to determine whether the agreements may be terminated. (g) Entering into agreements which allow the sheriff for the county in which the overcrowded county jail is located to house prisoners in facilities operated by other units of government. (h) Refusal by the sheriff to house persons who are not required by law to be housed in the county jail. (i) Acceleration of the transfer of prisoners sentenced to the state prison system, and prisoners otherwise under the jurisdiction of the department of corrections, to the department of corrections. (j) Judicial acceleration of pending court proceedings for prisoners under the jurisdiction of the department of corrections who will be returned to the department of corrections regardless of the outcome of the pending proceedings. (k) Reduction of waiting time for prisoners awaiting examination by the center for forensic psychiatry. (l) Alternative booking, processing, and housing arrangements, including the use of appearance tickets instead of booking at the county jail and the use of weekend arraignment, for categories of cases considered appropriate by the persons notified pursuant to section 4. (m) Acceptance by the courts of credit cards for payments of bonds, fines, and court costs. (n) Use of community mental health and private mental health resources in the county as alternatives to housing prisoners in the county jail for those prisoners who qualify for placement in the programs and for whom placement in the programs is appropriate. (o) Use of community and private substance abuse programs and other therapeutic programs as alternatives to housing prisoners in the county jail for those prisoners who qualify for placement in the programs and for whom placement in the programs is appropriate. (p) Preparation of a long-range plan for addressing the county jail overcrowding problem, including recommendations to the county board of commissioners on construction of new jail facilities and funding for construction or other options designed to alleviate the overcrowding problem. (q) Review of sentencing procedures, including the elimination of delays in preparing presentence reports for prisoners awaiting sentence, and staggering the dates on which prisoners will start serving a jail sentence to minimize fluctuating demands on jail capacity.
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 2007, Act 140, Eff. Feb. 11, 2008.
Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.281 Page 11 of 15

COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982

801.56 Requirement of further actions; failure of certain actions to reduce population to level

prescribed in subsection (1); presenting prisoner information to chief circuit judge;

applicability of subsection (2)(b) to certain prisoners; review; classification of prisoners;

reduction of sentences; duration; report.

Sec. 6. (1) The further actions prescribed in subsections (2) to (5) and in sections 7 and 8 shall be required

unless the actions taken pursuant to section 5 reduce the county's jail population to the higher of the

following:

(a) 90% of rated design capacity or a percentage of rated design capacity less than 90% as set by a court

prior to February 8, 1983.

(b) A prisoner population such that the jail has the following number of empty beds:

(i) For a jail with a rated design capacity of less than 500 beds, at least 10 empty beds.

(ii) For a jail with a rated design capacity of 500 beds or more, at least 25 empty beds.

(2) If the actions taken pursuant to section 5 do not reduce the county jail's population to the level

prescribed in subsection (1) within 14 days after the declaration of the county jail overcrowding state of

emergency, the sheriff shall present to the chief circuit judge for the county in which the jail is located the

following information for each prisoner housed in the county jail on that date:

(a) For prisoners who are serving a sentence of imprisonment for conviction of 1 or more crimes:

(i) The name of each prisoner.

(ii) The offense for which the prisoner was convicted.

(iii) The length of sentence imposed for the prisoner.

(iv) The date on which the prisoner began serving his or her sentence.

(v) The date on which the prisoner will be released from the jail according to the terms of his or her

sentence, including computations for good time.

(vi) The name of the judge who imposed the sentence.

(b) For prisoners housed in the county jail, other than a prisoner described in subsection (3), who are not

serving a sentence of imprisonment for conviction of a crime:

(i) The name of the prisoner.

(ii) The offense for which the prisoner is being detained in the county jail.

(iii) The amount of the prisoner's bond.

(iv) The date on which the prisoner began his or her period of detention.

(v) The name of the judge who ordered the prisoner to be detained.

(3) Subsection (2)(b) does not apply to a prisoner who is detained in the county jail in connection with a

crime or an allegation of a crime in which the victim was a spouse, a former spouse, an individual with whom

he or she has had a child in common, an individual residing or having resided in the same household, or an

individual with whom he or she has or has had a dating relationship as that term is defined in section 2950 of

the revised judicature act of 1961, 1961 PA 236, MCL 600.2950.

(4) After the chief circuit judge for the county in which the jail is located reviews the information

presented by the sheriff pursuant to subsection (2), the chief circuit judge shall, for purposes of county jail

population reduction, do both of the following:

(a) Classify prisoners who are serving sentences of imprisonment for conviction of crimes into 2 groups:

those prisoners who, if released, would present a high risk to the public safety, and those who, if released,

would not present a high risk to the public safety. The chief circuit judge shall also determine a minimum and

a maximum percentage by which the sentences can be reduced. The sheriff shall reduce the sentences of all

prisoners who, if released, would not present a high risk to the public safety by an equal percentage which is

within the minimum and maximum percentages determined by the chief circuit judge.

(b) Review the list of prisoners housed in the county jail who are not serving a sentence for conviction of

crimes and determine for each prisoner whether the release of that prisoner would or would not present a high

risk to public safety. The chief circuit judge may do either or both of the following with regard to a prisoner

whose release would not present a high risk to the public safety:

(i) Modify the bond of the prisoner, subject to any conditions reasonably necessary to ensure the

appearance of the individual in court.

(ii) Release the prisoner subject to the condition that he or she be placed on electronic monitoring.

(5) The sentences of prisoners sentenced to and housed in the county jail after the fourteenth day of the

county jail overcrowding state of emergency may continue to be reduced in the same manner as prescribed in

subsections (2)(a) and (4)(a), but shall not be reduced after the county jail overcrowding state of emergency is

Rendered Friday, March 13, 2020

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020

© Legislative Council, State of Michigan

Courtesy of www.legislature.mi.gov

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.282 Page 12 of 15
ended or after the sheriff orders a sentence reduction pursuant to section 7, whichever occurs first. (6) The department of corrections, in cooperation with the Michigan sheriffs' association, shall annually
report to the chairpersons of the senate and house standing committees responsible for legislation concerning corrections. The report shall evaluate the effect on the overcrowding state of emergency procedures under this section.
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 1988, Act 399, Imd. Eff. Dec. 27, 1988;Am. 2008, Act 542, Imd. Eff. Jan. 13, 2009.
Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 2

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.283 Page 13 of 15
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.57 Failure of certain actions to reduce population to level prescribed in MCL 801.56(1); equal reduction of original sentences. Sec. 7. If the actions taken pursuant to sections 5 and 6 do not reduce the county jail's population to the
level prescribed in section 6(1) within 28 days of the declaration of the county jail overcrowding state of emergency, the original sentences, not including good time, of all prisoners sentenced to and housed in the county jail on that date shall be equally reduced by the sheriff by the least possible percentage reduction necessary, not to exceed 30%, to reduce the county jail's prisoner population to the level prescribed in section 6(1).
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 1988, Act 399, Imd. Eff. Dec. 27, 1988. Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.284 Page 14 of 15
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.58 Failure of certain actions to reduce population to level prescribed in MCL 801.56(1); deferring acceptance for incarceration of certain persons. Sec. 8. (1) Except as otherwise provided in this subsection and subsection (2), if the actions taken pursuant
to sections 5, 6, and 7 do not reduce the county jail's population to the level prescribed in section 6(1) within 42 days of the declaration of the county jail overcrowding state of emergency, the sheriff shall defer acceptance for incarceration in the general population of the county jail persons sentenced to or otherwise committed to the county jail for incarceration until the county jail overcrowding state of emergency is ended pursuant to section 9, except that the sheriff shall not defer acceptance for incarceration all persons under sentence for or charged with violent or assaultive crimes, sex offenses, escape from prison or jail, drunk driving offenses, controlled substance offenses except possession of less than 25 grams of a controlled substance, or weapons offenses.
(2) The sheriff shall not defer acceptance of a prisoner for incarceration into the general population of the county jail if both of the following occur:
(a) The sheriff or the sentencing judge presents to the chief circuit judge for the county in which the county jail is located information alleging that deferring acceptance of the prisoner for incarceration would constitute a threat to public safety.
(b) The chief circuit judge, based upon the presence of a threat to public safety, approves of accepting the prisoner for incarceration.
History: 1982, Act 325, Eff. Feb. 8, 1983;Am. 1988, Act 399, Imd. Eff. Dec. 27, 1988;Am. 2007, Act 140, Eff. Feb. 11, 2008. Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-11094-MAG-EAS ECF No. 1-14 filed 05/04/20 PageID.285 Page 15 of 15
COUNTY JAIL OVERCROWDING STATE OF EMERGENCY (EXCERPT) Act 325 of 1982
801.59b Suspension or reduction of jail sentence by sentencing judge; delegation of authority to chief judge; modification of bond. Sec. 9b. (1) For purposes of this act, a sentencing judge may suspend or reduce any validly imposed jail
sentence imposed by that judge. A sentencing judge may delegate the authority conferred under this subsection to the chief judge of the judicial district or circuit in which the sentencing judge serves or his or her designee.
(2) For purposes of this act, a judge may modify bond set by the court for unsentenced prisoners. A judge may delegate the authority conferred under this subsection to the chief judge of the judicial district or circuit in which the judge serves, or his or her designee.
History: Add. 2007, Act 139, Imd. Eff. Nov. 13, 2007. Popular name: Jail Overcrowding Emergency Powers Act

Rendered Friday, March 13, 2020
© Legislative Council, State of Michigan

Page 1

Michigan Compiled Laws Complete Through PA 61 of 2020
Courtesy of www.legislature.mi.gov

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.286 Page 1 of 13
DECLARATION OF DR. ADAM LAURING
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualification
1. My name is Adam Lauring, M.D., Ph.D.
2. I am a board-certified medical doctor in Infectious Diseases
3. I have been a physician for more than 18 years, and I have worked in Infectious Diseases for 14 years.
4. My bio, attached as Exhibit A, includes a brief description of my education and relevant experience
5. My Curriculum Vitae, attached as Exhibit B, includes a full list of my honors, experience, and publications.
6. I am donating my time reviewing materials and preparing this Declaration. Any live testimony I provide will also be pro bono.
II. Heightened Risk of Epidemics in Jails and Prisons
7. As I will discuss below, the risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of multiple risks of transmission and exposure to individuals who become infected.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails, however, are closely connected to communities. Staff, visitors, contractors, and vendors pass between communities and these facilities and, if infected, these individuals can carry with them and transmit infectious diseases. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities, posing the same risk. People often need to be transported to

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.287 Page 2 of 13
and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people share dining halls, bathrooms, showers, telephones, and other common areas, the opportunities for transmission are greater. Where infectious diseases are transmitted from person to person by droplets, and no vaccine exists, the best initial strategy is to practice social distancing – maintaining a physical distance of at least six feet from any other person. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community.
10.Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting, therefore, dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases, and significantly increases the likelihood of the spread of infection. For example, in mid-March, the jail at Rikers Island in New York City had not had a single confirmed COVID-19 case. By March 30, 167 inmates, 114 correction staff and 20 health workers at Rikers tested positive for COVID-19; two correction staff members have died and multiple inmates have been hospitalized.1 As of April 8, Rikers had a rate of infection that is far higher than the infection rates of the most infected regions of the world. More than 700 people have tested positive for COVID-19, including more than 400 staff.2 The Chief Medical Officer of Rikers has described a “public health disaster unfolding before our eyes.” In his view, following CDC guidelines has not been enough to stem the crisis: “infections in our jails are growing quickly despite these efforts.”3
1 Jan Ransom, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, NY Times, Mar. 30, 2020. 2 Asher Stockler, More Than 700 People Have Tested Positive for Coronavirus on Rikers Island, Including Over 440 Staff, Newsweek (April 8, 2020), https://www.newsweek.com/rikers-island-covid-19-new-york-city-1496872. 3 Ross MacDonald (@RossMacDonaldMD), Twitter (Mar. 30, 2020, 8:03 PM), https://twitter.com/rossmacdonaldmd/status/1244822686280437765?s=12 (“I can assure you we were following the CDC guidelines before they were issued. We could

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.288 Page 3 of 13

Like the explosive growth at Rikers, the Cook County Jail went from two
confirmed COVID-19 cases on March 23 to more than 350 confirmed cases, 238 inmates and 115 staff members, two weeks later.4 As of April
13, the number of confirmed cases totaled 500, of which two-thirds are inmates.5

11.Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other jail or prison inmates, staff, and visitors.

12.Reduced prevention opportunities: During an infectious disease outbreak, people can curb their risk of infection by washing hands. Jails and prisons often do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers. When handwashing is unavailable, then the risk of infection and rate of infection spread is much greater. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcoholbased sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, telephones, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.

have written them ourselves. . . [I]infections in our jails are growing despite these

efforts.”).

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

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

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

chicago.html.

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

2020),

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

chicagos-cook-county-jail

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.289 Page 4 of 13

13.Additional reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk to everyone in the facility of a widespread outbreak.
14.Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.6 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.
15.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 outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms, if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes containing the illness and caring for those who have become infected nearly impossible.
16.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

6 Active case finding for communicable diseases in prison, 391 The Lancet 2186

(2018),

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

6736(18)31251-0/fulltext.

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.290 Page 5 of 13
access to testing equipment, laboratories, medications, and specialized equipment, such as ventilators.
17.Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During a pandemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves. To help ease the collective burden on Southeastern Michigan hospitals, the state is constructing make-shift field hospitals.7 The patient volume at Detroit’s Sinai-Grace Hospital is so overwhelming that patients are lining the hallways, and patient care is suffering from staff, supplies, and equipment shortages.8 In some cases, patients have died waiting for medical attention.9
18.Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines may be limited. Locally, for example, two Wayne County Jail physicians, including the Jail’s medical director, have died from COVID-19.10
7 TCF Center makeshift hospital in Detroit ready to accept first patients, WXYZ Detroit, Channel 7 (April 9, 2020) https://www.wxyz.com/news/coronavirus/4local-health-systems-will-help-staff-tcf-center-temporary-hospitals-first-patientsarriving-friday 8 Paul P. Murphy, Detroit hospital workers say people are dying in the ER hallways before help can arrive (April 9, 2020), https://www.cnn.com/2020/04/09/us/detroithospital-workers-sinai-grace-coronavirus/index.html 9 Id. 10 Charlie LeDuff, LeDuff: Covid Has Killed 2 Wayne County Jail Doctors, A Commander, And Still: Silence, Deadline Detroit (April 13, 2020), https://www.deadlinedetroit.com/articles/24965/leduff_covid_has_killed_2_wayne _county_jail_doctors_a_commander_and_still_silence

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.291 Page 6 of 13

19.Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public. Furthermore, rapid spread of infectious diseases among the inmates can often worsen the epidemic outside of the incarcerated population because staff are more likely to be infected and spread the disease to their families and the wider population.

20.These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.11 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.12 Even facilities on “quarantine” continued to accept new cases” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.

III. Profile of COVID-19 as an Infectious Disease13

11 Influenza Outbreaks at Two Correctional Facilities—Maine, March 2011, Centers

for

Disease

Control

and

Prevention

(2012),

https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm.

12 David. M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are

Few,

Prison

Legal

News

(Feb.

15,

2010),

https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-

prisons-and-jails-but-deathsare-few/.

13 This whole section draws from Broks J. Global Epidemiology and Prevention of

COVID19, COVID-10 Symposium, Conference on Retroviruses and Opportunistic

Infections (CROI), virual (March 10, 2020); Coronavirus (COVID-19), Centers for

Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent

Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections,

National Commission on Correctional Health Care (February 28, 2020),

https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-toknow-in-

corrections.

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.292 Page 7 of 13

21.The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but recent data from China has demonstrated that almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms, and it is possible that transmission can occur for weeks after their symptoms resolve.14 In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. A recent study out of Singapore found 10% of new infections could be caused by asymptomatic patients.15 Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for over a year to the general public. Antiviral medications are currently in testing but not yet FDA-approved. People in prison and jail will likely have even less access to these novel health strategies as they become available.
22.Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.16 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease,

14 Du Z, Xu X, Wu Y, Wang L, Cowling BJ, Ancel Meyers L. Serial interval of

COVID-19 mong publicly reported confirmed cases. Emerg Infect Dis. 2020 Jun

[date cited]. https://doi.org/10.3201/eid2606.200357

15 Linda Givetash, New Chinese data on asymptomatic coronavirus cases could help

world

response,

NBC

News

(April

9,

2020),

https://www.nbcnews.com/news/world/new-chinese-data-asymptomatic-

coronavirus-cases-could-help-world-response-n1173896.

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

and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/casesupdates/summary.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.

gov%2Fcoronavirus%2F2019-ncov%2Fsummary.html.

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.293 Page 8 of 13

and diabetes, and older age.17 74% of cases requiring hospitalization are people over the age of 50.18 Among those individuals, the risk of poor outcomes, included the need for mechanical intervention is over 20%. Death in COVID-19 infection is usually due to pneumonia, and sepsis, and would occur between approximately 1-4% of the population. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine

23.The care of people who are infected with COVID-19 depends on how seriously they are ill.19 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. As discussed earlier, Southeastern Michigan hospitals are already overwhelmed and beyond capacity to provide this type of intensive care. This will worsen as COVID-19 becomes more widespread in communities.

24.In order to reduce the burden on the local health systems, aggressive containment and COVID-19 prevention is of utmost importance. To this end, State of Michigan and the City of Detroit have mandated COVID19 prevention strategies, such as “shelter in place” or “stay at home” orders, which have gone beyond containment and mitigation. Jails and prisons already have difficulty with containment because it requires

17 Clinical course and risk factors for mortality of adult inpatients with COVID-19

in Wuhan, China: a retrospective cohort study, The Lancel (published online March

11,

2020),

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

6736(20)30566-3/fulltext.

18 Center for Disease Control, Morbidity and Mortality Weekly Report –

Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-

Confirmed

Coronavirus

Cases

(April

8,

2020),

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

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

Management of Patients with Confirmed Coronavirus Disease, Centers for Disease

Control and Prevention (March 7, 2002), https://www.cdc.gov/coronavirus/2019-

ncov/hcp/clinical-guidance-management-patients.html.

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.294 Page 9 of 13

intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. However, even with these efforts, it is nearly impossible for jails and prisons to provide the atmosphere of “shelter in place” or “stay at home” social distancing, given the number of individuals that work in and are housed in these facilities in the current system.

25.The time to act is now. Data from other settings demonstrates what happens when jails and prisons are unprepared for COVID-19. To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place.20 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.

IV. Risk of COVID-19 in the Oakland County Jail

26.In preparing this report I have reviewed the declarations of Oakland County Jail Inmates Arsineau, Bates, Briggs, J. Cameron, M. Cameron, Kucharski, Lee, and Saunders.

27.Based on my expertise in virology, review of the relevant literature, and my review of the declarations referred to paragraph 25, it is my professional judgment that immediate action is necessary to stem the spread of COVID-19 in the Oakland County Jail and prevent an even worse outbreak, which will result in severe harm to detained individuals, jail staff, and the broader community. The Oakland County Jail is not only obviously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak assuming what is described in the declarations is true, but in some cases, according to declarants, it is intentionally exposing inmates to COVID-19 as retribution for raising concerns about safety. The reasons for this conclusion are detailed as follows.

20 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal

prisons not providing significant guidance, sources say, ABC News (March 11,

2020),

https://abcnews.go.com/US/state-prisons-preparecoronavirus-federal-

prisons-providing- significant/story?id=69433690.

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.295 Page 10 of 13
28.According to the declarants, people confined in the jail sleep on bunks spaced one to three feet apart and in some cases are sleeping on the floor right next to cellmates. They further stated that inmates share showers, toilets, and sinks in small common areas, and some toilets are close to their beds. Declarants also state that much of the time, whether they are sitting, standing, walking, eating, or sleeping, they are within six feet of at least one other person. Notwithstanding their close proximity to one another, the declarants stated that there have been shortages in personal protective equipment, such as masks and gloves, for all people incarcerated and some working in the jail. Declarants further attested to the fact that staff inconsistently wears personal protective equipment when they interact with inmates. If these statements are true, the jail is not following basic CDC protection and prevention. And, given this layout and crowded environment in which individuals are held, largely without protection, it is impossible to provide an environment where social distancing can occur, and, in turn, impossible to prevent the risk or spread of infection.
29. According to the declarants, some inmates are not provided with regular access to soap, and, in some cases, have been without soap for more than one week. Declarants also state that they do not have access to any hand sanitizer or other personal sanitation supplies, even for purchase. The jail’s failure to provide adequate hygiene supplies deprives individuals of the most important CDC-recommended measures to protect themselves from infection.
30.Declarants attested to the fact that individuals confined at the jail have limited access to disinfectant, if at all, or basic cleaning supplies with which to clean their shared cells, shared living quarters, common areas, or high-touch surfaces. High-touch surfaces, such as light switches, door and sink knobs, telephones, tables, etc., should be sanitized after each use. Failure to properly sanitize shared spaces, common areas, and hightouch surfaces that detained individuals heavily use, seriously increases the risk of the spread of COVID-19 and demonstrates the Jail’s failure to take the most fundamental precautions for preventing the spread of the disease.
31.The declarations attest to significant neglect of inmates’ medical needs and the ability to provide the care necessary to prevent serious illness or

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.296 Page 11 of 13
death. The declarants stated that, although they were initially able to make requests for medical attention, those requests were ignored for days or dismissed. Presently, according to declarants, inmates are essentially unable to request medical attention because nurses and doctors are unavailable and jail guards tell the inmates that they cannot assist with to those requests. This is true, according to declarants, even for inmates who are particularly vulnerable to risk of severe illness or death, as a result of underlying health conditions.
32.The Jail’s failure to provide inmates with adequate medical care for their underlying chronic health conditions, as described by the declarants, results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected. According to their declarations, some Plaintiffs, and others held in the jail have serious medical vulnerabilities. A worsening outbreak in the jail would prove disastrous, and potentially fatal, for these medically vulnerable individuals. Based upon the declarations, it is apparent that the Jail is not providing adequate medical treatment to infected inmates. This is also worrisome because it will surely cause unnecessary risk of severe illness or death, and because patients from the Jail will further strain already-burdened Southeastern Michigan medical facilities who will have to absorb patients from the jail.
33.The declarants further attested to the fact that inmates who exhibit COVID-like symptoms, such as cough, shortness of breath, or a fever are not immediately tested or quarantined, if at all. Failure to adequately test for infection results in dramatic undercounting of persons infected, and, in turn, makes it impossible to protect against an outbreak.
34.The quarantine procedures described by declarants will not in any way mitigate or prevent the spread of infection. The declarants stated that the jail is “quarantining” presumably infected inmates in cells immediately adjacent to and within arms-reach of cells with inmates who are not presumed to be infected.
V. Conclusion and Recommendations
35.For the reasons above, it is my professional judgment that individuals placed in the Oakland County Jail are at a significantly higher risk of infection with COVID-19 as compared to the population in the

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.297 Page 12 of 13
community, given the procedural and housing conditions in the facility, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
36.Indeed, based on the circumstances described in the declarations, my expertise in virology, and based upon my knowledge and understanding of the ways in which the novel coronavirus is transmitted, drastically reducing the jail’s population is the only way to protect the health and safety of people detained in the facility and the public at large..
37.For the medically vulnerable – individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune systems, cancer, and diabetes) or who are over the age of 5021 – immediate release is the only option because the Jail’s widespread neglect of medical needs and failure to both identify and quarantine infection, coupled with the inmates’ limited access to lifesaving protections, if any, and inability to practice physical distancing creates a meaningfully higher risk of death.
38.From a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community must not be placed in the Oakland County Jail facilities at this time. I am also strongly of the opinion that individuals who are already in these facilities should be evaluated for release, and that a careful evaluation of procedural and housing guidance is created for those who remain in the facility during the “stay at home” mandate, and possibly until the epidemic is contained.
39.It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in this facility is a matter of days, not weeks.

21 Center for Disease Control, Morbidity and Mortality Weekly Report –

Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-

Confirmed

Coronavirus

Cases

(April

8,

2020),

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

Case 2:20-cv-11094-MAG-EAS ECF No. 1-15 filed 05/04/20 PageID.298 Page 13 of 13
40.Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.
41.I declare under penalty of perjury, that the foregoing is true and correct. Executed on this 15th day of April 2020.
____________________________ ADAM LAURING, M.D., Ph.D

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.32199 PaPgaege1 1ofo4f 545

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Janet Malam,
Petitioner, v. Rebecca Adducci, et al.,

Case No. 20-10829
Judith E. Levy United States District Judge
Mag. Judge Anthony P. Patti

Respondents. ________________________________/
AMENDED OPINION AND ORDER GRANTING IN PART PETITIONER’S EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER [2]1 This is an emergency petition challenging Janet Malam’s
mandatory detention pursuant to 8 U.S.C. § 1226(c) because of danger posed to her by the COVID-19 pandemic. Petitioner claims that her continued detention violates her Fifth Amendment rights by exposing her to substantial risk of illness and death. She requests a temporary restraining order (TRO) requiring that Respondents release her on her

1 On April 6, 2020 the Court amended its April 5, 2020 Order to include additional terms of supervision.

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.33200 PaPgaege2 2ofo4f 545
own recognizance and refrain from re-detaining her for the pendency of
her immigration proceedings.
For the foregoing reasons, the Court GRANTS IN PART this
emergency application for relief.
BACKGROUND
Petitioner Janet Malam, born in the United Kingdom, is a lawful
permanent resident. (ECF No. 1, PageID.3.) She was legally admitted to
the United States in 1967 at the age of four and is now fifty-six years old.
(Id.) Petitioner has been detained since March 4, 2020, in the Calhoun
County Correctional Facility2 in conjunction with removal proceedings at
the Detroit Immigration Court. (Id.) She brings suit against the following
Respondents: Rebecca Adducci, the Detroit District Director of United
2 The parties each refer to the Calhoun County Correctional Facility with different terminology. See Jail/Corrections Division, Calhoun County, https://www.calhouncountymi.gov/departments/sheriffs_office/jail.php (last visited Apr. 5, 2020) (“Calhoun County Correctional Facility”); Detention Facilities, U.S. Immigrations and Customs Enforcement, https://www.ice.gov/detentionfacility/calhoun-county-correctional-center (last visited Apr. 5, 2020) (“Calhoun County Correctional Center”); Calhoun County Jail, Google Maps, at https://www.google.com/maps/place/Calhoun+County+Jail/@42.3166565,85.1757947,15z/data=!4m2!3m1!1s0x0:0x4f8faa7bcca370c4?sa=X&ved=2ahUKEwiR wvHM3NHoAhUQmHIEHWeUCl4Q_BIwCnoECA4QCA (last visited Apr. 5, 2020) (“Calhoun County Jail”). The Court will refer to Petitioner’s current place of detention as the Calhoun County Correctional Facility or CCCF.
2

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.33301 PaPgaege3 3ofo4f 545
States Immigration and Customs Enforcement (ICE); Matthew Albence, Deputy Director of ICE; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Barr, Attorney General of the United States; ICE; and Heidi Washington, Director of the Michigan Department of Corrections (MDOC). (Id.)
Petitioner alleges that she suffers from a number of health conditions, including: multiple sclerosis; bipolar disorder; pain; anemia; essential primary hypertension; hypothyroidism; chronic obstructive pulmonary disease; fibromyalgia; mild cognitive impairment; carpal tunnel syndrome; severe major depressive disorder; opioid addiction; nicotine dependence; and polyneuropathy. (ECF No. 1, PageID.7.) According to Petitioner’s extensive medical records, these diagnoses are current and accurate as of March 3, 2020. (ECF No. 1-4, PageID.31.)
Because Petitioner has committed two or more crimes involving moral turpitude, her detention is mandatory pursuant to 28 U.S.C. § 1226(c).3 On March 30, 2020, Petitioner filed a petition requesting
3 Petitioner does not specify the nature of these crimes in either her petition or this application. In their response to Petitioner’s application for a temporary restraining order, Respondents note that Petitioner’s charge of removal is based on a 2003 Michigan state conviction of Larceny from the Person, Mich. Comp. Laws § 750.737, a 2008 conviction of Larceny $100 or Less in violation of a Taylor City,
3

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.33402 PaPgaege4 4ofo4f 545
emergency relief in either one of two forms: a writ of habeas corpus or an injunction “ordering Defendants to immediately release [Petitioner], with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause [of the Fifth and Fourteenth Amendments].” (Id. at PageID.17.) Petitioner simultaneously filed an Application for Temporary Restraining Order requesting that the Court order Petitioner’s release during the pendency of her immigration proceedings due to the substantial risk to her health posed by COVID-19 as a result of Petitioner’s continued detention in the enclosed group environment endemic to the Calhoun County Correctional Facility. (ECF No. 2.)
For the reasons stated below, the Court GRANTS Petitioner’s application for a temporary restraining order requiring her immediate release from detention for the duration of the COVID-19 State of Emergency in Michigan or until further Court order. LAW AND ANALYSIS
Michigan ordinance, a 2009 conviction of Retail Fraud in violation of a City of Flat Rock, Michigan ordinance, a 2011 conviction of Attempted Simple Larceny in violation of a City of Tyler, Michigan ordinance, and a 2012 conviction of Retail Fraud 3rd Degree $200 or less in violation of a City of Southgate, Michigan ordinance. (ECF No. 11-1, PageID.192.)
4

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.33503 PaPgaege5 5ofo4f 545
I. Jurisdiction “Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress.” Hamama v. Adducci, 912 F.3d 869, 874 (6th Cir. 2018) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). All courts have an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citing Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). A court must determine whether it has jurisdiction before deciding a cause of action. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998). Petitioner pleads that “[t]he Court has subject matter jurisdiction over this case pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. §1651 (All Writs Act); and 28 U.S.C. § 2241 (habeas corpus).” (ECF No. 1, PageID.5.) The Court has jurisdiction to adjudicate Petitioner’s claims under 28 U.S.C. § 2241. Moreover, even if
5

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.33604 PaPgaege6 6ofo4f 545
Petitioner’s claims could not be heard under 28 U.S.C. § 2241, 28 U.S.C. § 1331 provides an independent source of jurisdiction.
A. 28 U.S.C. § 2241 Jurisdiction 28 U.S.C. § 2241 provides a district court with jurisdiction over petitions for habeas corpus where a petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See INS v. St. Cyr, 533 U.S. 289, 298 (2001) (recognizing 28 U.S.C. § 2241 as a jurisdictional statute). For over 100 years, habeas corpus has been recognized as the vehicle through which noncitizens may challenge the fact of their detention. See Chin Yow v. U.S.¸ 208 U.S. 8, 13 (1908) (“Habeas corpus is the usual remedy for unlawful imprisonment.”) In 2001, the Supreme Court recognized the continued viability of the writ in cases involving the detention of noncitizens: “§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.” Zadvydas v. Davis, 533 U.S. 678, 688 (2001). In 2018, the Court ruled on the merits of a habeas petition challenging the validity of pre-removal detention. Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
6

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.33705 PaPgaege7 7ofo4f 545
Respondents claim, citing Luedtke v. Berkebile, that the Court lacks jurisdiction to grant habeas relief because 28 U.S.C. § 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). Though the Supreme Court has left as an open question “the reach of the writ with respect to claims of unlawful conditions of treatment or confinement,” Boumedienne v. Bush, 553 U.S. 732, 792 (2006), the Sixth Circuit, conversely, has held that “a § 2241 habeas petition is not the appropriate vehicle for challenging the conditions of . . . confinement.” Velasco v. Lamanna, 16 F. App’x 311, 314 (6th Cir. 2001). In 2018, the Sixth Circuit reiterated this holding, affirming a district court that dismissed a § 2241 petition raising an Eighth Amendment challenge to subpar prison conditions because such a claim must be brought in a civil-rights action such as one under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Solano-Moreta v. Fed. Bureau of Prisons, No. 17-1019, 2018 WL 6982510 (6th Cir. Sep. 24, 2018); but see Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) (“Habeas corpus tests not only the fact but also the form of detention.”) (internal citation
7

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.33806 PaPgaege8 8ofo4f 545
omitted); Roba v. U.S., 604 F.2d 215 (2d Cir. 1979) (holding that § 2241 petition may be used to challenge conditions of confinement).
The Respondents argue that “there is no dispute that Petitioner brings a challenge to the conditions of her confinement.” (ECF No. 11, PageID.175.) On its face, the application appears to concern Petitioner’s conditions of confinement. Petitioner titles her claim for relief: “Freedom from Cruel Treatment and Conditions of Confinement.” (ECF No. 1, PageID.16.) But Petitioner may nonetheless bring her claim under 28 U.S.C. § 2241 because she seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case.
Supreme Court and Sixth Circuit precedent support the conclusion that where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas. In Nelson v. Campbell, the Supreme Court held that a death-row inmate’s challenge to the method of his upcoming execution constituted a challenge to the conditions—not the fact or duration—of his execution, and therefore his claim fell outside the “core”
8

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.33907 PaPgaege9 9ofo4f 545
of habeas corpus. 541 U.S. 637, 644-45 (2004). However, the Court speculated that if the challenged method “were a statutorily mandated part of the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede acceptable alternatives,” there would be a “stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself,” bringing the claim into the core of habeas corpus. Id. at 645. In Adams v. Bradshaw, the Sixth Circuit relied on Nelson to uphold habeas jurisdiction over a claim where a petitioner challenged the method of his execution but did not concede that any acceptable alternative existed. 644 F.3d 481, 483 (6th Cir. 2011) (“Adams has not conceded the existence of an acceptable alternative procedure. . . . Thus, Adams's lethal-injection claim, if successful, could render his death sentence effectively invalid.”) Here, Petitioner has not conceded the existence of acceptable alternative conditions of her confinement; her Fifth Amendment claim, if successful, would render her continued detention invalid.
In contrast to this case, claims which the Sixth Circuit has held noncognizable in habeas are those in which the petitioner seeks relief other than release from custody: See Solano-Moreta, 2018 WL 6982510,
9

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43008 PaPgaege1010ofo4f 545
at *1 (seeking transfer); Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir. 2013) (challenge to lack of compensation and conditions of work performed in prison); Hodges v. Bell, 170 F. App’x 389, 390 (6th Cir. 2006) (seeking amelioration of conditions or transfer to mental health facility); Sullivan v. United States, 90 Fed. App’x 862, 862 (6th Cir. 2004) (seeking medical treatment in prison); Lutz v. Hemingway, 476 F.Supp. 2d 715, 718 (E.D. Mich. 2007) (seeking restoration of mail privileges in prison); see also Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004) (seeking transfer). Indeed, in Preiser v. Rodriguez, the Supreme Court distinguished conditions of confinement claims from claims seeking immediate or speedier release. 411 U.S. 475, 500 (1973) (distinguishing habeas case seeking good-time credits from § 1983 conditions of confinement cases on the grounds that “none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate release or a speedier release from that confinement—the heart of habeas corpus.”)
Although Petitioner here titles her claim for relief “Freedom from Cruel Treatment and Conditions of Confinement,” her Petition is a challenge to the continued validity of her confinement, regardless of its
10

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43109 PaPgaege1111ofo4f 545
conditions. Petitioner argues that the only adequate relief is her release from confinement. As Petitioner explains,
[S]ocial distancing and hygiene measures [are] Janet’s only defense against COVID-19. Those protective measures are exceedingly difficult, if not impossible, in the environment of an immigration detention center, where Janet shares toilets, sinks, phones, and showers, eats in communal spaces, and is in close contact with the many other detainees and officers. (ECF No. 1, PageID.16.) At the Court’s March 31, 2020 status conference for this case, counsel for Respondents conceded that social distancing between prisoners of at least six feet would be impossible at the Calhoun County Correctional Facility. This concession supports the conclusion of multiple doctors and public health experts: that “[t]he only viable public health strategy available is risk mitigation. . . . [T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety” (ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon)); the only way to “prevent serious illness including death” in ICE facilities is to “release all people with risk factors.” (ECF No. 20-3, PageID.374 (Declaration of Dr. Robert B. Greifingert).)
11

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43210 PaPgaege1212ofo4f 545
In this case, Petitioner does not take issue with the steps taken at the Calhoun County Correctional Facility to mitigate the risk of detainees contracting COVID-19. Rather, she says that no matter what steps are taken, due to her underlying serious health conditions, there is no communal holding facility where she could be incarcerated during the Covid-19 pandemic that would be constitutional. Petitioner’s claim must therefore be considered as a challenge to the continued validity of confinement itself. Accordingly, Petitioner’s claim is properly brought under 28 U.S.C. § 2241, and the Court has jurisdiction.
B. 28 U.S.C. § 1331 Jurisdiction Even if the Court were to lack jurisdiction under 28 U.S.C. § 2241, the Fifth Amendment provides Petitioner with an implied cause of action, and thus 28 U.S.C. § 1331 would offer an independent source of jurisdiction. 28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Petitioner properly framed her pleading as a civil rights action “[i]n the alternative.” In addition to her request for a writ of habeas corpus, Petitioner requests “injunctive relief
12

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43311 PaPgaege1313ofo4f 545
ordering Defendants to immediately release Janet, with appropriate precautionary public health measures, on the grounds that her continued detention violates the Due Process Clause.” (ECF No. 1, PageID.17.) She titles her single claim for relief “Violation of Fifth Amendment Right to Substantive and Procedural Due Process (Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement.” (Id. at PageID.16.)
Should Petitioner’s habeas petition fail on jurisdictional grounds, the Fifth Amendment provides Petitioner with an implied cause of action, and accordingly 28 U.S.C. 1331 would vest the Court with jurisdiction. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court first upheld the proposition that the Constitution itself provided an implied cause of action for claims against federal officials. 403 U.S. at 388. In 2017, the Supreme Court held that federal courts should not extend a Bivens remedy into new contexts if there exist any “special factors counseling hesitation.” Ziglar v. Abassi, 137 S.Ct. 1843, 1857 (2017). However, there is no corresponding limitation on the Constitution as a cause of action to seek injunctive or other equitable relief. See Ziglar, 137 S. Ct. at 1862 (declining to extend
13

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43412 PaPgaege1414ofo4f 545
Bivens to conditions of confinement claim, but noting that “Respondents . . . challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief.”). Instead, there is a “presumed availability of federal equitable relief against threatened invasions of constitutional interests.” Hubbard v. E.P.A., 809 F.2d 1, 11 (D.C. Cir. 1986) (citing Bivens, 403 U.S. at 404 (Harlan, J., concurring)). Indeed, “the power of the federal courts to grant equitable relief for constitutional violations has long been established.” Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir. 1995). Here, Petitioner seeks only injunctive and declaratory relief. Accordingly, she may bring her claim directly under the Fifth Amendment, and the Court has jurisdiction to hear the claim under 28 U.S.C. § 1331.
At oral argument, counsel for Respondent raised the question of whether the United States may be entitled to sovereign immunity if Petitioner brought this case under the Fifth Amendment. Sovereign immunity does not apply in this instance, and even if it did, it has been statutorily waived. Federal courts may exercise the traditional powers of equity in cases within their jurisdiction to enjoin violations of
14

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43513 PaPgaege1515ofo4f 545
constitutional rights by government officials. In Ex Parte Young, the Supreme Court first articulated the principle that state government officials may be sued for acting unconstitutionally, even if an ensuing injunction would bind the state. 209 U.S. at 123. In Philadelphia Co. v. Stimson, the Supreme Court recognized the applicability of that principle to suits against federal officials. 223 U.S. 605, 620 (1912) (“in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process”). More recently, the Supreme Court affirmed this principle in Dalton v. Specter: “sovereign immunity would not shield an executive officer from suit if the officer acted either ‘unconstitutionally or beyond his statutory powers.’” 511 U.S. 462, 472 (1994) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949)). In Malone v. Bowdoin, the Court called this principle the “constitutional exception to the doctrine of sovereign immunity.” 369 U.S. 643, 647 (1962). Petitioner here raises a constitutional challenge to her detention as the result of actions taken by Respondent Adducci, a federal officer. Sovereign immunity does not apply.
15

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43614 PaPgaege1616ofo4f 545
Even absent this constitutional exception, the Administrative Procedure Act (APA) provides a statutory waiver to any defense of sovereign immunity. 5 U.S.C. § 702 provides that:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
In 2013, the Sixth Circuit recognized that this waiver extends beyond suits brought under the APA:
[W]e now join all of our sister circuits who have done so in holding that § 702's waiver of sovereign immunity extends to all non-monetary claims against federal agencies and their officers sued in their official capacity, regardless of whether plaintiff seeks review of “agency action” or “final agency action” as set forth in § 704.
Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 673 (6th Cir. 2013); see also Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“The APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.”). ICE is a federal agency, of which Respondent Adducci is an officer or employee thereof. Petitioner challenges
16

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43715 PaPgaege1717ofo4f 545
Respondent’s actions made in her official capacity. Accordingly, the APA provides a statutory waiver of sovereign immunity.
C. Petitioner’s Status as a Noncitizen Petitioner’s status as a noncitizen who is undergoing removal proceedings does not affect the Court’s jurisdiction to hear this case. Although several statutes limit a district court’s authority to hear cases in the immigration context, none apply here, as set forth below. 28 U.S.C. § 1252(b)(9) provides that judicial review of: all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§ 1225 and 1226] shall be available only in judicial review of a final order under this section.
28 U.S.C. § 1252(b)(9). Petitioner does not have a final order of removal. In Jennings v. Rodriguez, the Supreme Court held that 1252(b)(9) did not strip jurisdiction from courts to hear challenges to detention pending removal because detention was not an action taken to remove a noncitizen from the United States. 138 S. Ct. 830, 841 (2018). Petitioner challenges her continued detention; accordingly, 28 U.S.C. § 1252(b)(9) does not strip this Court of jurisdiction.
17

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43816 PaPgaege1818ofo4f 545
8 U.S.C. § 1226(e) bars federal court review of any discretionary decision made by the Attorney General regarding detention, release, bond, or parole in an immigration case. However, in Demore v. Kim, 123 S. Ct. 1708, 1713–14 (2003), the Supreme Court held that § 1226(e) did not prevent noncitizens from raising constitutional challenges to mandatory detention under § 1226(c). Petitioner here raises a Fifth Amendment challenge to her continued mandatory detention under § 1226(c); thus, § 1226(e) does not prevent this Court from exercising jurisdiction.
Finally, 8 U.S.C. § 1252(f), titled “Limit on Injunctive Relief,” provides that:
[N]o court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
8 U.S.C. § 1252(f)(1). But as the Supreme Court recognized in Reno v. Amer.-Arab Anti-Discrim. Comm., “this ban does not extend to individual cases.” 525 U.S. 471, 481–82 (1999). Petitioner seeks individual relief.
18

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.43917 PaPgaege1919ofo4f 545
Therefore, 8 U.S.C. § 1252(f) does not affect this Court’s jurisdiction to enter injunctive or declaratory relief.
II. Proper Habeas Respondent Petitioner names as Respondents: Rebecca Adducci, the Detroit District Director of ICE; Matthew Albence, Deputy Director; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; William Parr, Attorney General of the United States; U.S. Immigration and Customs Enforcement; and Heidi Washington, Director of the Michigan Department of Corrections. Only Respondent Rebecca Adducci is properly named with respect to the petition for a writ of habeas corpus. “Historically, the question of who is ‘the custodian,’ and therefore the appropriate respondent in a habeas suit, depends primarily on who has power over the petitioner and . . . on the convenience of the parties and the court.” Roman v. Ashcroft, 340 F.3d 314, 319 (6th Cir. 2003) (citing Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998)). In Roman, the Sixth Circuit held that for habeas petitions in immigration contexts, “the INS District Director for the district where a detention facility is located ‘has power over’ alien habeas corpus petitioners.” Id. at 320. The court, in finding that the Attorney General was not a proper respondent
19

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53018 PaPgaege2020ofo4f 545
for a noncitizen’s habeas claim and that a habeas claim could properly have only one respondent, reiterated 28 U.S.C. § 2243’s requirement that a writ of habeas corpus “shall be directed to the person having custody of the person detained.” Id. at 321. Michigan only has one ICE District, located in Detroit. See Enforcement and Removal Operations Field Offices, https://www.ice.gov/contact/ero. Accordingly, Rebecca Adducci, the Detroit District Director, is the proper Respondent for Petitioner’s request for a writ of habeas corpus.
III. Petitioner’s Application for a Temporary Restraining Order
Petitioner, along with her complaint, filed an emergency application for a temporary restraining order. (ECF No. 3.) In determining whether to grant such an order, courts evaluate four factors: 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant would suffer irreparable injury absent an injunction; 3) whether granting the injunction would cause substantial harm to others; and 4) whether the public interest would be served by granting the injunction. Northeast Ohio Coal. for Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met,
20

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53119 PaPgaege2121ofo4f 545
but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted). “[P]reliminary injunctions are extraordinary and drastic remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015). Nonetheless, each of the four factors weighs in Petitioner’s favor, and the Court grants Petitioner’s motion for a temporary restraining order.
A. Irreparable Harm Petitioner is likely to experience irreparable injury absent an injunction, both in the form of loss of health or life, and in the form of an invasion of her constitutional rights. 1. Loss of Health or Life from COVID-19 The ongoing COVID-19 pandemic creates a high risk that absent an injunction by this Court, Petitioner will suffer irreparable harm in the form of loss of health or life as a result of contracting the COVID-19 virus. On March 22, 2020, the Governor of Michigan issued the following statement: “The novel coronavirus (COVID-19) is a respiratory disease
21

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53220 PaPgaege2222ofo4f 545

that can result in serious illness or death. It is caused by a new strain of

coronavirus not previously identified in humans and easily spread from

person to person. There is currently no approved vaccine or antiviral

treatment for this disease.” Executive Order, No. 2020-20 (Mar. 22,

2020).

Since March 4, 2020, the date of Petitioner’s detention at the

Calhoun County Correctional Facility, the exceptionally dangerous

nature of the COVID-19 pandemic has become apparent. On March 10,

2020, the Governor of Michigan announced the state’s first two cases of

COVID-19 and simultaneously declared a State of Emergency. Executive

Order, No. 2020-4 (Mar. 10, 2020). The number of new cases then began

to grow exponentially. As of April 5, 2020, there are now 15,718 confirmed

cases of COVID-19 and 617 known related deaths, with 238 confirmed

cases within the Michigan Department of Corrections system specifically.

See

Coronavirus,

Michigan.gov,

https://www.michigan.gov/coronavirus/0,9753,7-406-98163-520743--

,00.html. COVID-19 has a high risk of transmission, and the number and

22

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53321 PaPgaege2323ofo4f 545
rate of confirmed cases indicate broad community spread.4 Executive Order, No. 2020-20 (Mar. 22, 2020). Nationally, ICE detention facilities across our country are experiencing the same thing. As of April 4, 2020, ICE has confirmed at least 13 cases of COVID-19 among immigration detainees and 7 cases among detention facility employees and personnel. ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/coronavirus (updated Apr. 4, 2020 at 8:00pm).
On March 23, 2020, the Centers for Disease Control and Prevention (CDC) acknowledged that correctional and detention facilities “present[] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control (Mar. 23, 2020),
4 Indeed, since the time of Respondent’s brief, the numbers have continued to grow. Respondent reported that, as of April 3, 2020, Calhoun County alone had 25 cases. (ECF No. 11, PageID.169) By the time the Court held oral argument later that day, that number had grown to 31, with 1 reported death. On April 5, the date of this Order, the number of confirmed cases is now 42, with 1 reported death. Coronavirus, https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html.
23

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53422 PaPgaege2424ofo4f 545
https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html. [Hereinafter “CDC Guidance 3/23/2020”]. Specifically, the CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing). Id.
Though the CDC has recommended public health guidance for detention facilities, and though the Calhoun County Correctional Facility has indeed implemented measures designed to prevent spread of the disease, these measures are inadequate to sufficiently decrease the substantial likelihood that Petitioner will contract COVID-19. As prison officials are beginning to recognize around the country, even the most stringent precautionary measures—short of limiting the detained population itself—simply cannot protect detainees from the extremely high risk of contracting this unique and deadly disease. For example, on April 1, 2020, the Rikers Island jail complex’s chief physician
24

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53523 PaPgaege2525ofo4f 545

acknowledged that “infections are soaring” despite the facility’s

“following Centers for Disease Control and Prevention guidelines and

having moved mountains to protect our patients.” Miranda Bryant,

Coronavirus Spread at Rikers is a ‘Public Health Disaster’, Says Jail’s

Top

Doctor,

The

Guardian

(Apr.

1,

2020),

https://www.theguardian.com/us-news/2020/apr/01/rikers-island-jail-

coronavirus-public-health-disaster. In the immigration context

specifically, despite Respondents’ argument that the federal government

has effectively incorporated appropriate and effective precautions,

medical experts at the Department of Homeland Security have warned

that detention confinement creates a “tinderbox scenario” where rapid

outbreak is extremely likely, and extremely likely to lead to deadly

results as resources dwindle on an exponential level. Catherine E.

Shoichet, Doctors Warn of ‘Tinderbox Scenario’ if Coronavirus Spreads in

ICE

Detention,

CNN

(Mar.

20,

2020),

https://www.cnn.com/2020/03/20/health/doctors-ice-detention-

coronavirus/index.html.

Petitioner is 56 years old and suffers from the following conditions,

almost all of which place her at an increased risk of a dire outcome from

25

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53624 PaPgaege2626ofo4f 545
contracting the COVID-19 virus: multiple sclerosis, bipolar disorder, anemia, essential primary hypertension, hypothyroidism, chronic obstructive pulmonary disease, fibromyalgia, severe major depressive disorder, opioid addition, and polyneuropathy. (ECF No. 1-4, PageID.31.) See Centers for Disease Control, Groups at Higher Risk for Severe Illness, (Apr. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (noting that “people of all ages with underlying medical conditions are at higher risk for severe illness, particularly if the underlying medical conditions are not well controlled”). Additionally, Respondents have confined Petitioner in an environment where she “shares toilets, sinks, phones, and showers, eats in communal spaces, and is in close contact with the many other detainees and officers.” (ECF No. 1, PageID.16.) Petitioner’s involuntary interaction with purportedly asymptomatic guards who rotate shifts is also a significant exposure factor. How COVID-19 Spreads, CDC (April 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-
26

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53725 PaPgaege2727ofo4f 545
covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html.5
These are many of the conditions that the CDC has identified as being particularly likely to increase COVID-19 transmissions in detention facilities. CDC Guidance 3/23/2020. For these reasons, Petitioner’s confinement at the Calhoun County Correctional Facility renders her substantially likely to contract COVID-19, and Petitioner’s severe health conditions render her substantially likely to suffer irreparable harm or death as a result.
Respondents focus on one particular issue: whether Petitioner is more likely to contract COVID-19 if released than if she remains confined in their jail. Respondents acknowledge that “there is a health risk posed by COVID-19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-
5 On April 3, 2020, after Petitioner filed her emergency application for a temporary restraining order, the CDC updated its guidance in light of new evidence of asymptomatic transmission of COVID-19 to recommend that all individuals wear cloth face coverings “in public settings where other social distancing measures are difficult to maintain.” Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-facecover.html.
27

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53826 PaPgaege2828ofo4f 545
19.” (ECF No. 11, PageID.178.) Respondents also acknowledge that Petitioner “does not have to wait until she has COVID-19 to claim that the precautions taken to reduce exposure were insufficient.” (Id. at PageID.179.) Indeed, the crux of Respondents’ argument is not that COVID-19 does not pose a deadly threat to Petitioner if contracted. Rather, Respondents’ argument relies on the proposition that Petitioner does not have a substantial risk for exposure at the Calhoun County Correctional Facility, and her risk of exposure in the community may be greater. (Id. at PageID.178.)
To this end, Respondents posit the following: Petitioner has not established that she has either been exposed to COVID-19, or that her exposure is “imminent,” because there are currently no cases in the facility in which she is detained “and only 25 cases in the surrounding county.”6 (ECF No. 11, PageID.179.) Additionally, Respondents argue that their facility has implemented “numerous precautions to reduce the risk of exposure and spread of COVID-19,”7 and that even if Petitioner is
6 Hours later, due to the exponential nature of COVID-19’s spread, this statistic was already out of date. See supra fn.2.
7 Specifically, Respondents note that the ICE and CCCF precautions are as follows: tracking the disease, screening incoming detainees, isolating and testing
28

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.53927 PaPgaege2929ofo4f 545
at a “generalized risk” of contracting COVID-19, that does not mean that she is at a “substantial risk” for purposes of her constitutional claim. (Id. at PageID.179-180, citing Wooler v. Hickman Cty., 377 Fed. Appx. 502, 505 (6th Cir. 2010)).
Respondents’ arguments fail to address the stark reality of this particular global public health crisis. In the face of a deadly pandemic with no vaccine, no cure, limited testing capacity, and the ability to spread quickly through asymptomatic human vectors, a “generalized risk” is a “substantial risk” of catching the COVID-19 virus for any group of human beings in highly confined conditions, such as Petitioner within the CCCF facility. In acknowledgment of this simple truth, both the United States Attorney General and the Governor of Michigan have issued independent directives to consider early release for detainees who do not pose a public safety risk, as minimizing crowded populations is the only known way to mitigate spread of this pandemic. Prioritization of
symptomatic detainees, quarantining detainees who test positive, screening incoming staff, suspending in-person social visitation and limiting professional visitation to non-contact, increasing sanitation, educating all staff and detainees, providing detainees with toilet paper, personal soap, and disinfectants, and increasing handwashing stations. (ECF No. 11, PageID.172.)
29

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63028 PaPgaege3030ofo4f 545
Home Confinement as Appropriate in Response to COVID-19 Pandemic, Att’y Gen. (Mar. 26, 2020); Executive Order, No. 2020-29 (COVID-19) (Mar. 26, 2020). Moreover, Petitioner’s risk of contracting COVID-19 outside of Respondents’ custody has no bearing on whether they have exposed her to the likelihood of irreparable harm. Though the Court commends Respondents for the steps they have taken to prevent spread of the disease, as prisons and courts around the country are beginning to recognize, such measures are insufficient to stem deadly prison outbreaks. See, e.g., New York City Board of Correction Calls for City to Begin Releasing People From Jail as Part of Public Health Response to COVID-19, N.Y.C. Bd. of Corr. (Mar. 17, 2020), https://www1.nyc.gov/assets/boc/downloads/pdf/News/2020.03.17%20%20Board%20of%20Correction%20Statement%20re%20Release.pdf (arguing that, despite the “heroic work” of Department of Correction and Correctional Health Services staff “to prevent the transmission of COVID-19 in the jails and maintain safe and humane operations, the City must drastically reduce the number of people in jail right now and limit new admissions to exceptional circumstances.”). Even the Calhoun County Correctional Facility’s additional measure of screening incoming
30

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63129 PaPgaege3131ofo4f 545
shift workers for high temperatures is insufficient to stem the spread of disease, as COVID-19 spreads asymptomatically. How COVID-19 Spreads, CDC (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/howcovidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2 Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html.
Accordingly, the Court concludes that Petitioner’s continued confinement at the Calhoun County Correctional Facility exposes her to a substantial risk of contracting COVID-19, which due to her specific underlying health conditions exposes her to a substantial risk of irreparable harm to her health or life.
2. Violation of Constitutional Rights Petitioner’s Fifth Amendment claim triggers a finding that Petitioner will suffer irreparable harm absent an injunction. Petitioner alleges that in “subjecting Janet to detention conditions that amount to punishment and that fail to ensure her safety and health,” Respondent is “subjecting [her] to a substantial risk of serious harm, in violation of [her] rights under the Due Process Clause.” (ECF No. 1, PageID.17.) The alleged violation of a constitutional right is sufficient for a court to find
31

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63230 PaPgaege3232ofo4f 545
irreparable harm. See Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Covino v. Patrissi, 967 F.2d 73, 77; McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) ; see also Rhinehart v. Scutt, 408 F. App’x 510, 514 (6th Cir. 2018) (suggesting that allegation of “continuing violation of . . . Eighth Amendment rights" would trigger a finding of irreparable harm). Below, the Court finds Petitioner is likely to succeed on the merits of this Fifth Amendment claim. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”).
B. Likelihood of Success on the Merits Petitioner is likely to succeed on the merits of her claim that her continued confinement during the COVID-19 pandemic violates her Fifth Amendment rights. The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend.
32

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63331 PaPgaege3333ofo4f 545
V. The protection applies to “all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). As it pertains to Petitioner, the Due Process Clause prohibits the government from imposing torture or cruel and unusual confinement conditions on non-convicted detainees. See Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.”). This type of Fifth Amendment claim is analyzed “under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metropolitan Government of Nashville, 709 F.3d 563, 568 (6th Cir. 2013).
Eighth Amendment claims require a showing of deliberate indifference, see Farmer v. Brennan, 511 U.S. 825, 835 (1994), which has both an objective and a subjective component. Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013) (citing Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).
1. Objective Component The objective component is satisfied by showing that, “absent reasonable precautions, an inmate is exposed to a substantial risk of
33

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63432 PaPgaege3434ofo4f 545
serious harm.” Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (citing Amick v. Ohio Dep't of Rehab. & Corr., 521 Fed.Appx. 354, 361 (6th Cir.2013)). Respondents argue that the precautions they have taken at the Calhoun County Correctional Facility combined with the lack of a confirmed outbreak of COVID-19 at the facility show that Petitioner is unable to demonstrate she is at substantial risk of serious harm. (ECF No. 11, PageID.180.) Instead, Respondents argue that Petitioner merely has a “generalized risk” of contracting COVID-19, which is insufficient to prevail on a Fifth Amendment constitutional claim. (Id.) But as noted above, in Petitioner’s case, a generalized risk is a substantial risk.
As the Supreme Court explained in Helling v. McKinney, “[w]e have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” 509 U.S. 25, 33 (1993). “That the Eighth Amendment protects against future harm to inmates is not a novel proposition.” Id. “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening
34

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63533 PaPgaege3535ofo4f 545
condition in their prison on the ground that nothing yet had happened to them.” Id.
Respondents attempt to distinguish this case from Helling on the grounds that the Petitioner in Helling alleged a sufficiently imminent danger from “actual exposure to high levels of cigarette smoke because his former cellmate was a five-pack a day smoker.” (ECF No. 11, PageID.179 (citing Helling, 509 U.S. at 29).) Respondents argue that “Petitioner has not established that she either has been exposed to COVID-19, or that her exposure is “imminent.”” (Id.) But as the above analysis regarding the risk of irreparable injury to Petitioner demonstrates, the Respondents grievously underestimate the seriousness of the risk to Petitioner, in spite of precautionary measures and despite the lack of confirmed CCCF outbreak to date. The evergrowing number of COVID-19 outbreaks in prisons and detention facilities,8 despite a range of precautionary measures, demonstrates that
8 See, e.g., Ted Rod Roelofs, Coronavirus Cases Surge in Michigan’s Crowded Prisons, Bridge (Mar. 27, 2020), https://www.bridgemi.com/michigangovernment/coronavirus-cases-surge-michigans-crowded-prisons; Oregon Inmate in Salem Tests Positive for COVID-19, the First in the State Prison System, SalemReporter (Apr. 3, 2020), https://www.salemreporter.com/posts/2168/oregoninmate-in-salem-tests-positive-for-covid-19-the-first-in-the-state-prison-system (noting outbreak despite precautionary measures); Ames Alexander and Jessica
35

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63634 PaPgaege3636ofo4f 545
the risk of a COVID-19 outbreak in Respondent’s facility is significant. Nor, given the percentage of asymptomatic COVID-19 cases and the virus’ incubation period of up to fourteen days, can Respondents reasonably assert, as they do, that there are no COVID-19 cases in CCCF; they can only allege that there are no confirmed cases. By the time a case is confirmed, it will almost certainly be too late to protect Petitioner’s constitutional rights. Petitioner, so long as she remains detained, is therefore exposed to a substantial risk of serious harm.
2. Subjective Component The subjective component is demonstrated by showing that “(1) the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner, (2) the official did in fact draw the inference, and (3) the official then disregarded that risk.” 819 F.3d at 915–16 (citing Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)). “Because government officials do not readily admit the subjective

Banov, In NC Prisons, Five Employees and Four Inmates Have Now Tested Positive

for

COVID-19,

Charlotte

Observer

(Apr.

1,

2020),

https://www.charlotteobserver.com/news/coronavirus/article241675886.html;

Alexandra Kelley, Louisiana Prison Records Third Inmate Death as a Result of the

Coronavirus, The Hill (Apr. 1, 2020), https://thehill.com/changing-america/well-

being/prevention-cures/490839-louisiana-prison-records-third-inmate-death-as-a.

36

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63735 PaPgaege3737ofo4f 545
component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence. . . . ” Richko, 819 F.3d at 916 (citing Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)). Additionally, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
Respondents concede the COVID-19 risk to Petitioner: “The government does not dispute that there is a health risk posed by COVID19 and that Petitioner is in the category of people identified to be at higher risk for serious health consequences if she contracts COVID-19.” (ECF No. 11, PageID.178.) Rightfully so: the above analysis pertaining to the risk of irreparable harm reveals that the substantial risk to Petitioner is obvious. Farmer, 511 U.S. at 842.
Respondents instead argue that Calhoun County Correctional Facility’s precautionary measures preclude a finding of deliberate indifference because government officials cannot be said to have disregarded the risk to Petitioner. As noted above, officials at the Calhoun County Correctional Facility have taken a range of precautionary measures to protect against a potential outbreak. (See
37

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63836 PaPgaege3838ofo4f 545
ECF No. 11-3.) But as Plaintiff’s pleadings and the above analysis regarding irreparable injury demonstrate, even with these precautionary measures, in light of Petitioner’s underlying health conditions, she is not ensured anything close to “reasonable safety.” Farmer, 511 U.S. at 844. (See ECF No. 6-3, PageID.112 (Declaration of Doctor Golob stating, “[V]ulnerable people, people over the age of 50 and people of any age with lung disease . . . living in an institutional setting . . . are at grave risk of severe illness and death from COVID-19.”); ECF No. 6-1, PageID.87 (Declaration of Infectious Disease Epidemiologist Joseph Amon, stating “The only viable public health strategy available is risk mitigation. . . . [T]he public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety.”).) Based on the record before the Court, the only reasonable response by Respondents is the release of Petitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to Petitioner from COVID-19.
For the same reasons, Petitioner’s continued detention cannot “reasonably relate[] to any legitimate government purpose.” Bell v. Wolfish, 441 U.S. 520, 536-39 (1979) (holding that pretrial detention not
38

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.63937 PaPgaege3939ofo4f 545
reasonably related to a legitimate government purpose must be considered punishment and therefore contrary to the Fifth Amendment). In their response, Respondents do not directly address the justification for Petitioner’s continued detention. The Court notes that Petitioner is in civil detention pending removal proceedings pursuant to 28 U.S.C. § 1226(c). Petitioner faces significant risk of death due to COVID-19; accordingly, her continued confinement at the Calhoun County Correctional Facility is both unrelated and contrary to the government purpose of carrying out her removal proceedings.
Both the objective and subjective components are met; Petitioner has shown a likelihood of success on the merits. The Court reiterates that at this early stage in the litigation, Petitioner need not show a certainty of success on the merits. Indeed, “the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Northeast Ohio Coalition for Homeless and Service Employees Intern. Union, Local 1199, 467 F.3d at 1009 (6th Cir. 2006). Given the risk and severity of irreparable harm to Petitioner and the weight of public health evidence indicating release
39

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.73038 PaPgaege4040ofo4f 545
as the only reasonable option under these facts, Petitioner has met her current burden with respect to the merits of her claim.
Respondents nonetheless cite to some authority that release is an inappropriate remedy for Petitioner’s claim. See Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (noting release is not among the proper remedies for Eighth Amendment deliberate indifference claims, which are limited to injunctive relief for proper treatment and damages); Heximer v. Woods, No. 08-14170, 2018 WL 1193368, at *2 (E.D. Mich. Mar. 8, 2018) (noting that “release from custody is not an available remedy for a deliberate indifference claim.”). As explained above, Petitioner has shown a likelihood of success on the merits of her claim that given the extraordinary nature of the COVID-19 pandemic, no set of possible confinement conditions would be sufficient to protect her Fifth Amendment rights. Release from custody represents the only adequate remedy in this case, and it is within this Court’s broad equitable power to grant it. See Swann v. Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971) (“Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”)
40

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.73139 PaPgaege4141ofo4f 545
3. Qualified Immunity In its supplemental brief, Respondents note that to the extent Petitioner brings a civil rights case, Respondents are entitled to assert a defense of qualified immunity. (ECF No. 19, PageID.317.) Qualified immunity is unavailable as a defense in cases seeking injunctive relief. See Pearson v. Callahan, 555 U.S. 223, 242 (2009) (noting that qualified immunity defense is not available in “suits against individuals where injunctive relief is sought in addition to or instead of damages”); Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982) (describing qualified immunity as “immunity from suits for damages”). Because Petitioner here seeks only declaratory and injunctive relief, qualified immunity does not apply. C. Balance of Equities and Public Interest When the government opposes the issuance of a temporary restraining order, as Respondents do here, the final two factors—the balance of equities and the public interest—merge, because “the government’s interest is the public interest.” Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 512 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
41

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.73240 PaPgaege4242ofo4f 545
The public interest favors Petitioner’s release because of the risk that Petitioner’s constitutional rights will be deprived absent an injunction. “[I]t is always in the public interest to prevent the violation of a party's constitutional rights.” G & V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir.1994).
Additionally, Petitioner’s release will protect public health. Given the highly unusual and unique circumstances posed by the COVID-19 pandemic and ensuing crisis, “the continued detention of aging or ill civil detainees does not serve the public’s interest.” Basank, 2020 WL 1481503, at *6; see also Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (“the design and operation of detention settings promotes the spread of communicable diseases such as COVID-19”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal. 2020). Protecting public health and safety is in the public interest. See Neinast v. Bd. Of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests).
Respondents argue that public interest favors Petitioner’s continued detention because “the public interest in enforcement of the
42

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.73341 PaPgaege4343ofo4f 545
United States’ immigration laws is significant.” (ECF No. 11, PageID.187 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”)).
Respondents point to only one immigration law that will see continued enforcement by denying relief to Petitioner. That law is 8 U.S.C. § 1226(c), and it authorizes Petitioner’s continued detention. But as set forth above, Petitioner’s continued detention is in violation of the United States Constitution, to which 8 U.S.C. § 1226(c) must give way.
The enforcement of the remainder of U.S. immigration laws against Petitioner will continue unabated should the Court grant Petitioner relief. A hearing on Petitioner’s request for cancellation of removal is scheduled for April 14, 2020. (ECF No. 11, PageID.170). Respondents do not argue that Petitioner’s release will jeopardize her appearance at that hearing, nor do they argue that Petitioner’s release will undermine her removal from this country, should Petitioner’s defense fail and should conditions allow such removal.
43

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.73442 PaPgaege4444ofo4f 545
The public interest and balance of equities demand that the Court protect Petitioner’s constitutional rights and the public health over the continued enforcement of a detention provision that, as applied to Petitioner, is unconstitutional. The remaining factors counsel granting Petitioner relief.
Because all four factors weigh in favor of issuing emergency injunctive relief, Petitioners motion for a temporary restraining order is granted.
IV. Conclusion For the reasons stated above, Petitioner’s Application for a Temporary Restraining Order is GRANTED IN PART. Respondent Adducci is ORDERED to release Petitioner on April 6, 2020 on her own recognizance. Petitioner will be subject to the following restrictions: Petitioner is subject to fourteen days of home quarantine; Petitioner must comply with all Michigan Executive Orders; and Petitioner must appear at all hearings pertaining to her removal proceedings. Respondents may impose other reasonable nonconfinement terms of supervision. Respondents are further RESTRAINED from arresting Petitioner for civil immigration detention purposes until the State of Emergency in
44

CCasaese2:22:02-0c-vc-v1-11009842-9M-JAEGL--EAAPSP EECCFF NNoo.. 12-316 filefilded040/50/60/42/020 PaPgaegIeDID.5.73543 PaPgaege4545ofo4f 545

Michigan (related to COVID-19) is lifted or until further Court Order

stating otherwise.

The Temporary Restraining Order will expire on April 17, 2020, at

6:30 p.m. No later than April 10, 2020, at 12:00 p.m., Respondents must

show cause why this Order should not be converted to a preliminary

injunction. Petitioner may file a response no later than April 16, 2020, at

12:00 p.m.

IT IS SO ORDERED.

Dated: April 6, 2020 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 6, 2020.
s/William Barkholz WILLIAM BARKHOLZ Case Manager

45

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.617 Page 1 of 7

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

CHARLES RUSSELL; CHRISTOPHER HUBBARD; HARRY WHITE; CARL SMELLEY; SHANE CARLINE; and COURTNEY WHITE, individually and on behalf of all others similarly situated,

Case No. 20-cv-11094

Plaintiffs,

v.

WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as Sheriff of Oakland County; DANIEL PFANNES, in his official capacity as the Undersheriff for the Wayne County Sheriff’s Office; ROBERT DUNLAP, in his official capacity as Chief of Jails and Court Operations; JAMES E. DAVIS, in his official capacity as Deputy Chief of Jail Operations,

Defendants.

PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFFS’ EMERGENCY
MODTefIeOndNanFtOs.R EXPEDITED CONSIDERATION OF PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

1

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.618 Page 2 of 7
Despite “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic,” U.S. v. Stephens, __ F. Supp. 3d __, 15 Cr. 95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020), the recognition by courts and government that “[o]ur world has been altered with lightning speed,” see, e.g., Thakker v. Doll, __ F. Supp. __, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020), and the uniform understanding that “the choices we now make must reflect this new reality,” id., Defendants ask this Court to refrain from hearing an emergency motion that alleges federal constitutional violations and raises serious issues of law and fact. Instead, Defendants want to defer to an informal, ad-hoc process that appears to be tangential to a consent order entered as part of a jail overcrowding lawsuit that dates back to 1971. This informal process has proved insufficient in providing the relief Plaintiffs seek. Therefore, this Court should enter Plaintiffs’ proposed temporary restraining order immediately, or, in the alternative, hear argument on Plaintiffs’ motion as soon as possible.
Federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976) (emphasis added). The default rule is that “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Id. Abdication of the obligation to decide cases (especially those that present urgent federal constitutional questions) is
2

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.619 Page 3 of 7
justified only in “exceptional circumstances.” Id. at 813. Defendants have failed to demonstrate that such an “exceptional circumstance” is present here.
In asking this Court to take the extraordinary measure of abstaining from hearing an urgent federal constitutional question, Defendants fail to provide any evidence upon which this Court and Plaintiffs’ counsel could rely. Plaintiffs are unable to ascertain what measures Defendants claim to be taking, whether and how those measures are required by the state-court consent order, or why Defendants believe those measures fully cure the federal constitutional violations described in Plaintiffs’ Complaint and accompanying declarations. Further, Defendants have not disclosed critical information—in their opposition or to the public—about the specific criteria being used to decide who should be considered for administrative relief, nor have they articulated the specific legal or factual definitions it uses to decide who will be released.
Regardless, Defendants’ response to the COVID-19 crisis has been dangerously insufficient, and substantial harm remains to be remedied, as Plaintiffs’ Emergency Motion makes clear. Although Defendants have released some detainees, Doc. 10 at 2, medically vulnerable people who are at particularly grave risk of death or serious illness from COVID-19—including four of the named Plaintiffs—are still detained in the Jail. Doc. 1 ¶ 17 (Mr. Russell suffers stage 3 prostate cancer, diabetes, high blood pressure, and an umbilical hernia and
3

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.620 Page 4 of 7
remains incarcerated); id. ¶ 18 (Mr. Hubbard suffers from diabetes and asthma and remains incarcerated); id. ¶ 18 (Mr. Harry White suffers from a heart murmur and remains incarcerated); id. ¶ 20 (Mr. Smelley suffers from Sickle Cell Disease, hypertension, and diabetes and remains incarcerated); Id. ¶ 23 (Mr. Courtney White suffers from high blood pressure and high cholesterol).
Social distancing—the single most essential step in stopping the spread of COVID-19—cannot be accomplished in the Jail. See, e.g., id. ¶¶ 8, 11, 12, 37, 41, 69, 70, 126. Defendants’ claims that they have “taken numerous measures to ensure the safety and welfare of the inmates and its staff, in accordance with CDC guidelines,” Doc. 10 at 2, is nothing more than ipse dixit. Defendants offer no supporting documentary evidence to refute the 13 declarations offered in support of Plaintiff’s emergency motion and Complaint demonstrating that the precautions necessary to stop the spread of the virus are not being undertaken. See, e.g., Doc. 1 ¶ 67 (detainees are housed in units that feature two-person cells and four-person cubicles); id. ¶¶ 69–70 (detainees congregate in common areas where it is impossible to maintain a distance of six feet from their peers at the current population); id. ¶ 65 (detainees entering the Jail are quarantined for three days, in violation of CDC standards); id. ¶¶ 69, 73, 79, 87 (detainees have no access to hand sanitizer, and jail staff deny detainees’ requests to receive additional bars of soap or other cleaning supplies throughout the week); id. ¶ 78 (detainees have been
4

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.621 Page 5 of 7
forced to resort to creating their own cleaning solutions to supplement the inadequate Simple Green solution that Defendants provide); id. ¶ 80 (Defendants have not replaced the paper and cloth masks they provided to detainees nearly a month ago); id. (detainees never received gloves); id ¶¶ 66, 72, 81 (although more than 170 jail employees have tested positive for COVID-19, jail staff and trustees do not consistently wear personal protective equipment when interacting with detainees).
Because Plaintiffs and the class members they seek to represent remain at imminent risk of death or serious injury, this Court should grant Plaintiffs’ Motion Emergency Consideration. This Court should further issue a temporary restraining order and preliminary injunction ordering the relief requested in Plaintiffs’ Motion.
Respectfully submitted,

/s/Ashley A. Carter Ashley A. Carter (DC Bar No. 979793) Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (MI Bar No. P76789; DC Bar No. 1028529) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 Tel: (202) 728-9557 tharvey@advancementproject.org acarter@advancementproject.org mnemeth@advancementproject.org

/s/Martin L. Saad Martin L. Saad (DC Bar No. 462096)* Sheena R. Thomas (DC Bar No. 1020290)* Khary J. Anderson (DC Bar No. 1671197)* VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 Tel: (202) 344-4000 MLSaad@Venable.com SRThomas@Venable.com KJAnderson@Venable.com

5

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.622 Page 6 of 7

/s/Allison L. Kriger Allison L. Kriger (MI Bar No. P76364) LARENE & KRIGER, P.L.C. 645 Griswold Street, Suite 1717 Detroit, Michigan 48226 Tel: (313) 967-0100 allison.kriger@gmail.com
/s/Alec Karakatsanis Alec Karakatsanis (DC Bar No. 999294) A. Dami Animashaun (DC Bar No. 1614199) CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 Tel: (202) 894-6126 alec@civilrightscorps.org dami@civilrightscorps.org

/s/Christopher N. Moran Christopher N. Moran (MD Bar No. 1512160132)* Emily J. Wilson (MD Bar No. 1801040016)* VENABLE LLP 750 E. Pratt Street, Ste. 900 Baltimore, MD 21202 Tel: (410) 244-7400 CNMoran@Venable.com EJWilson@Venable.com
/s/Desiree M. Ferguson Desiree M. Ferguson (MI Bar No. P34904) Amanda Alexander (MI Bar No. P77795)* DETROIT JUSTICE CENTER 1420 Washington Blvd., Suite 301 Detroit, MI 48226 Tel: (313) 736 -5957 dferguson@detroitjustice.org aalexander@detroitjustice.org

Attorneys for Plaintiffs/Petitioners

*Applications for admission forthcoming

Dated: May 6, 2020

6

Case 2:20-cv-11094-MAG-EAS ECF No. 17 filed 05/06/20 PageID.623 Page 7 of 7
CERTIFICATE OF SERVICE I affirm that the forgoing was filed through this Court’s electronic filing system.
/s/ A. Dami Animashaun
7

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 30 filed 06/04/20 PageID.661 Page 1 of 6

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

CHARLES RUSSELL; CHRISTOPHER HUBBARD; HARRY WHITE; CARL SMELLEY; SHANE CARLINE; and COURTNEY WHITE, individually and on behalf of all others similarly situated,

Case No. 2:20-cv-11094 Hon. Mark A. Goldsmith

Plaintiffs,

v.

WAYNE COUNTY, MICHIGAN; BENNY NAPOLEON, in his official capacity as Sheriff of Oakland County; DANIEL PFANNES, in his official capacity as the Undersheriff for the Wayne County Sheriff’s Office; ROBERT DUNLAP, in his official capacity as Chief of Jails and Court Operations; JAMES E. DAVIS, in his official capacity as Deputy Chief of Jail Operations,

Defendants.

PLAINTIFFS’ MOTION FOR STAY PROCEEDINGS

PDlaeifnetnifdfasnrtse.spectfully request this Court stay proceedings in this action

pending the resolution of a motion filed in Wayne County Jail Inmates, et al. v.

William Lucas, et al., Case No. 71 173 217 CZ, or upon motion of either Party in

this matter. Pursuant to Local Rule 7.1(a), Plaintiffs have conferred with Defendants

1

Case 2:20-cv-11094-MAG-EAS ECF No. 30 filed 06/04/20 PageID.662 Page 2 of 6
prior to filing this Motion, which Defendants indicate they oppose. Plaintiffs filed this action in this Court on May 4, 2020. Heeding the
suggestion of this Court, the parties subsequently engaged in discussions as to whether Plaintiffs could seek relief in state court, where Defendant Wayne County is a party to a consent decree that monitors the quality of conditions at the Wayne County Jail (“the Jail”). On May 27, 2020, at the request of the parties, the Circuit Court for Wayne County entered a joint stipulated order to reopen the case underlying the state consent decree, Wayne County Inmates, et al. v. Lucas, et al. On May 28, 2020, Plaintiffs filed an Emergency Motion for Temporary Restraining Order in the Lucas action. Defendants’ response to Plaintiffs’ Emergency Motion is due on June 5, 2020; a hearing on the Emergency Motion has not yet been scheduled.
Plaintiffs accordingly seek a stay of this action. The Sixth Circuit has found a stay to be appropriate in similar circumstances. For instance, it has held that a stay is appropriate where concurrent state and federal actions are parallel, meaning that “the parties are substantially similar” and the claims in each case “are predicated on the same material allegations as to the same material facts.” Romine v. Compuserve Corp., 160 F.3d 337, 340 (6th Cir. 1998). In circumstances like these, “issuing a stay has been the general practice.” Bates v. Van Buren Tp., 122 Fed. App’x 803, 808, 2004 WL 2792483 at *5 (6th Cir. 2004) (citing Romine, 160 F.3d at 338) (citing Holmes Financial Associates, Inc. v. Resolution Trust Corp., 33 F.3d 561, 562 (6th
2

Case 2:20-cv-11094-MAG-EAS ECF No. 30 filed 06/04/20 PageID.663 Page 3 of 6
Cir.1994)). This Court need not stray from that general practice, as a stay is warranted
here. Plaintiffs in the Lucas actions are an already-certified class of all current and future detainees at the Jail, and Defendants in that action include Wayne County and the Wayne County Sherriff. As Defendants have noted, the parties in Russell—a putative class of detainees at the Jail—and Defendants—Wayne County, officials from the Wayne County Sherriff, and jail officials—are identical to the parties in this action. Moreover, Plaintiffs’ Emergency Motion, filed in the Lucas action, is premised on the same material allegations made in this Court and seeks similar relief. A stay of this action pending resolution of Plaintiffs’ claims in Lucas is thus appropriate. See Romine, 160 F.3d at 341 (noting that the possibility of duplicative class action litigation is a circumstance that particularly warrants a stay); see Bates, 122 Fed. App’x at 808 (citing Mahaffey v. Bechtel Assoc. Prof’l Corp., 699 F.2d 545, 546–47 (D.C.Cir.1983) (holding that a stay is required because it “effectively conserve[s] court resources while avoiding premature rejection of the litigants’ access, as specified by statute, to a federal forum”).
CONCLUSION For the reasons set forth, Plaintiffs request that this Honorable Court stay this case pending resolution of Wayne County Inmates, et al. v. Lucas, et al., or upon motion of either Party in this matter.
3

Case 2:20-cv-11094-MAG-EAS ECF No. 30 filed 06/04/20 PageID.664 Page 4 of 6

Respectfully submitted,

/s/Ashley A. Carter Ashley A. Carter (DC Bar No. 979793) Thomas B. Harvey (MBE #61734MO) Miriam R. Nemeth (MI Bar No. P76789; DC Bar No. 1028529) ADVANCEMENT PROJECT NATIONAL OFFICE 1220 L Street NW, Suite 850 Washington, DC 20005 Tel: (202) 728-9557 tharvey@advancementproject.org acarter@advancementproject.org mnemeth@advancementproject.org

/s/Martin L. Saad Martin L. Saad (DC Bar No. 462096)* Sheena R. Thomas (DC Bar No. 1020290)* Khary J. Anderson (DC Bar No. 1671197)* VENABLE LLP 600 Massachusetts Avenue NW Washington, DC 20001 Tel: (202) 344-4000 MLSaad@Venable.com SRThomas@Venable.com KJAnderson@Venable.com

/s/Allison L. Kriger Allison L. Kriger (MI Bar No. P76364) LARENE & KRIGER, P.L.C. 645 Griswold Street, Suite 1717 Detroit, Michigan 48226 Tel: (313) 967-0100 allison.kriger@gmail.com
/s/Alec Karakatsanis Alec Karakatsanis (DC Bar No. 999294)* A. Dami Animashaun (DC Bar No. 1614199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 Tel: (202) 894-6126 alec@civilrightscorps.org dami@civilrightscorps.org

/s/Christopher N. Moran Christopher N. Moran (MD Bar No. 1512160132)* Emily J. Wilson (MD Bar No. 1801040016)* VENABLE LLP 750 E. Pratt Street, Ste. 900 Baltimore, MD 21202 Tel: (410) 244-7400 CNMoran@Venable.com EJWilson@Venable.com
/s/Desiree M. Ferguson Desiree M. Ferguson (MI Bar No. P34904) Amanda Alexander (MI Bar No. P77795)* DETROIT JUSTICE CENTER 1420 Washington Blvd., Suite 301 Detroit, MI 48226 Tel: (313) 736 -5957 dferguson@detroitjustice.org aalexander@detroitjustice.org

4

Case 2:20-cv-11094-MAG-EAS ECF No. 30 filed 06/04/20 PageID.665 Page 5 of 6

Attorneys for Plaintiffs/Petitioners

DATED: June 4, 2020

*Applications for admission forthcoming

5

Case 2:20-cv-11094-MAG-EAS ECF No. 30 filed 06/04/20 PageID.666 Page 6 of 6
LOCAL RULE CERTIFICATION I, Allison L. Kriger, certify that this document complies with Local Rule 5.1(a), including: double-spaced (except for quoted materials and footnotes); at least one-inch margins on the top, sides, and bottom; consecutive page numbering; and type size of all text and footnotes that is no smaller than 10-1/2 characters per inch (for non-proportional fonts) or 14 point (for proportional fonts). I also certify that it is the appropriate length. Local Rule 7.1(d)(3).
/s/ Allison L. Kriger____ ALLISON L. KRIGER
6

 
 Case 2:20-cv-11094-MAG-EAS ECF No. 32 filed 06/24/20 PageID.668 Page 1 of 2

Case 2:20-cv-11094-MAG-EAS ECF No. 32 filed 06/24/20 PageID.669 Page 2 of 2

Case 2:20-cv-11094-MAG-EAS ECF No. 32-1 filed 06/24/20 PageID.670 Page 1 of 2

Case 2:20-cv-11094-MAG-EAS ECF No. 32-1 filed 06/24/20 PageID.671 Page 2 of 2