U.S. District Court Western District of Louisiana (Lake Charles) CIVIL DOCKET FOR CASE #: 2:20−cv−00422−TAD−KK

CLOSED

Livas et al v. Myers et al Assigned to: Judge Terry A Doughty Referred to: Magistrate Judge Kathleen Kay Cause: 28:2241 Petition for Writ of Habeas Corpus (federa
Plaintiff

Date Filed: 04/06/2020 Date Terminated: 04/22/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: Federal Question

Brandon Livas

represented by Bruce W Hamilton American Civil Liberties Union Foundation of LA P O Box 56157 New Orleans, LA 70156 504−522−0617 Email: bhamilton@laaclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Alicia Wedekind A C L U National Prison Project 915 15th St NW Washington, DC 20005 202−548−6610 Email: jwedekind@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Luger Katten Muchin & Rosenman (IL) 525 W Monroe St Chicago, IL 60661 312−902−5200 Fax: 312−902−1061 Email: david.luger@katten.com PRO HAC VICE ATTORNEY TO BE NOTICED

Katharine Murphy Schwartzmann American Civil Liberties Union Foundation of LA P O Box 56157 New Orleans, LA 70156 504−522−0628 Email: kschwartzmann@laaclu.org ATTORNEY TO BE NOTICED

Somil Trivedi American Civil Liberties Union Foundation (DC) 915 15th St NW Washington, DC 20005 202−904−7737 Email: strivedi@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

Richard Buswell
Plaintiff Dewayne Corbett
Plaintiff Johnny Smith

represented by Bruce W Hamilton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Alicia Wedekind (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Luger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) ATTORNEY TO BE NOTICED
Somil Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce W Hamilton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Alicia Wedekind (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Luger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) ATTORNEY TO BE NOTICED
Somil Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce W Hamilton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Alicia Wedekind (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Luger

Plaintiff Carlos Martin
Plaintiff Gaines Andrews

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) ATTORNEY TO BE NOTICED
Somil Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce W Hamilton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Alicia Wedekind (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Luger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) ATTORNEY TO BE NOTICED
Somil Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce W Hamilton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Alicia Wedekind (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Luger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) ATTORNEY TO BE NOTICED
Somil Trivedi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Rodney Myers
Defendant Michael Carvajal

represented by Karen J King U S Attorneys Office (LAF) 800 Lafayette St Ste 2200 Lafayette, LA 70501 337−262−6618 Fax: 337−262−6693 Email: karen.king@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine W Vincent U S Attorneys Office (LAF) 800 Lafayette St Ste 2200 Lafayette, LA 70501 337−262−6618 Fax: 337−262−6693 Email: katherine.vincent@usdoj.gov ATTORNEY TO BE NOTICED
represented by Karen J King (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine W Vincent (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/06/2020
04/06/2020 04/06/2020 04/06/2020 04/07/2020

# Docket Text
1 COMPLAINT against Michael Carvajal, Rodney Myers (Filing fee $400, receipt number ALAWDC−4227667) filed by Gaines Andrews, Johnny Smith, Brandon Livas, Dewayne Corbett, Richard Buswell, Carlos Martin. (Attachments: # 1 Civil cover sheet, # 2 Affidavit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Attorney Bruce W Hamilton added to party Richard Buswell(pty:pla), Attorney Bruce W Hamilton added to party Brandon Livas(pty:pla), Attorney Bruce W Hamilton added to party Carlos Martin(pty:pla), Attorney Bruce W Hamilton added to party Johnny Smith(pty:pla), Attorney Bruce W Hamilton added to party Gaines Andrews(pty:pla), Attorney Bruce W Hamilton added to party Dewayne Corbett(pty:pla))(aty,Hamilton, Bruce) (Entered: 04/06/2020)
CASE Assigned to Judge Terry A Doughty and Magistrate Judge Kathleen Kay. (crt,Thigpen, M) (Entered: 04/06/2020)
DIVISIONAL TRANSFER of Old Case Number 1:20−cv−0422 from Alexandria Division to Lake Charles Division. New Case Number 2:20−cv−0422. (crt,Thigpen, M) (Entered: 04/06/2020)
1 MOTION for Preliminary Injunction, MOTION for Permanent Injunction (Motion Ripe Deadline set for 4/6/2020.) by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. ADMINISTRATIVE ENTRY: (THE PDF IMAGE CAN BE FOUND IN ATTACHMENT #1 OF DOCUMENT 1 COMPLAINT (crt,Thigpen, M) (Entered: 04/14/2020)
2 MOTION for Somil Trivedi to Appear Pro Hac Vice ( Admission fee: $105, receipt number ALAWDC−4229189) by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. Motions referred to Kathleen Kay. Motion Ripe Deadline set for 4/7/2020. (Attachments: # 1 Exhibit, # 2 Proposed order)(aty,Hamilton, Bruce) Modified on 4/7/2020. Please see Corrective Document 4

04/07/2020 04/07/2020 04/07/2020
04/07/2020 04/08/2020 04/09/2020 04/10/2020 04/13/2020
04/13/2020
04/13/2020 04/15/2020 04/15/2020

for original signature of applying attorney (Haik, K). (Entered: 04/07/2020)
3 SUMMONS ISSUED as to U S Attorney, U S Attorney General, Rodney Myers, Michael Carvajal. (crt,Thigpen, M) (Entered: 04/07/2020)
4 CORRECTIVE DOCUMENT entitled Signed Pro Hac Vice filed by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith regarding 2 MOTION for Somil Trivedi to Appear Pro Hac Vice ( Admission fee: $105, receipt number ALAWDC−4229189) . (aty,Hamilton, Bruce) (Entered: 04/07/2020)
5 MINUTES for proceedings held before Judge Terry A Doughty: STATUS CONFERENCE held on 4/7/2020. Defendants' counsel agreed to provide the framework or guidance under which decisions are being made as to the release, removal, or furlough of prisoners by noon on Friday, April 10, 2020. Plaintiffs' counsel intends to review the information before making a decision to file a motion for injunctive relief. (crt,Crawford, A) (Main Document 5 replaced on 4/7/2020) (Crawford, A). (Entered: 04/07/2020)
NOTICE of Corrective Action regarding 5 Status Conference. Action taken: Document Replaced to correct typographical error. (crt,Crawford, A) (Entered: 04/07/2020)
6 ORDER granting 2 Motion to Appear Pro Hac Vice for appearance of Somil Trivedi for Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. Signed by Magistrate Judge Kathleen Kay on 4/8/2020. (crt,Williams, L) (Entered: 04/09/2020)
7 SEALED DOCUMENT: BOP's Notice of Inmates Previously Identified for Removal from FCC Oakdale by Michael Carvajal, Rodney Myers re 5 Status Conference,. (Attachments: # 1 Exhibit A− Attorney General Memo to the BOP dated March 26, 2020)(aty,King, Karen) (Entered: 04/09/2020)
8 NOTICE of BOP's COVID−19 INMATE REVIEW UPDATE by Michael Carvajal, Rodney Myers re 5 Status Conference, (Attachments: # 1 Exhibit 1−Declaration of Juan A. Segovia, # 2 Exhibit 2−AG Memo March 26, # 3 Exhibit 3−AG Memo April 3)(aty,King, Karen) (Entered: 04/10/2020)
9 MOTION for Temporary Restraining Order by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. Motion Ripe Deadline set for 4/13/2020. (Attachments: # 1 Memorandum / Brief, # 2 Affidavit, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Proposed order)(aty,Hamilton, Bruce) (Entered: 04/13/2020)
10 MEMORANDUM ORDER denying 9 Motion for TRO as Moot; granting 1 Motion for Emergency or Expedited consideration of 1 Request for Preliminary Injunction. Defendant must file a response to 1 Plaintiffs' Request for Preliminary Injunction by 4/15/20. It Is Further Ordered that Defendants file an additional response providing an update to the information provided on April 9 and 10, 2020 by noon on 4/16/20. Finally, It Is Further Ordered that a telephone status conference is set for 4/16/20 at 3:00 p.m. Signed by Judge Terry A Doughty on 4/13/2020. (crt,Crawford, A) Modified on 4/14/2020 to create docket entry relationship (Crawford, A). (Entered: 04/13/2020)
Set/Reset Hearings: Telephone Status Conference set for 4/16/2020 at 3:00 PM before Judge Terry A Doughty. Call in information previously provided. (crt,Crawford, A) (Entered: 04/13/2020)
11 MOTION for Jennifer Wedekind to Appear Pro Hac Vice ( Admission fee: $105, receipt number ALAWDC−4236288) by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. Motions referred to Kathleen Kay. Motion Ripe Deadline set for 4/15/2020. (Attachments: # 1 Exhibit, # 2 Proposed order)(aty,Hamilton, Bruce) (Entered: 04/15/2020)
12 MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss For Failure to State a Claim Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief and Emergency Motion for Release of Vulnerable and Low−Risk Prisoners from Oakdale. by Michael Carvajal, Rodney Myers. Motions referred to Kathleen Kay.

04/15/2020 04/16/2020 04/16/2020
04/16/2020 04/16/2020 04/17/2020 04/17/2020 04/20/2020 04/20/2020
04/20/2020 04/21/2020 04/21/2020

(Attachments: # 1 Memorandum / Brief)(aty,King, Karen) (Entered: 04/15/2020)
13 MEMORANDUM in Opposition re 1 MOTION for Preliminary Injunction MOTION for Permanent Injunction filed by Michael Carvajal, Rodney Myers. (Attachments: # 1 Exhibit 1−Objections to Exhibits, # 2 Exhibit 2−Declaraton of Dr. Richard Griffin, M.D.)(aty,King, Karen) (Entered: 04/16/2020)
14 NOTICE of BOP's Second COVID−19 Inmate Review Update by Michael Carvajal, Rodney Myers re 10 Order on Motion for TRO,, (Attachments: # 1 Exhibit 1−Declaration of Juan A. Segovia)(aty,King, Karen) (Entered: 04/16/2020)
15 MINUTES for proceedings held before Judge Terry A Doughty: STATUS CONFERENCE held on 4/16/2020. Petitioner's must respond to 12 MOTION to Dismiss for Lack of Jurisdiction by 4/20/2020. Respondents must file a reply memorandum by 4/21/2020. If the Court finds that it has subject−matter jurisdiction, oral argument will be held on 4/23/20 at 10:00 a.m., via video conference. (crt,Crawford, A) (Entered: 04/16/2020)
Set Deadlines as to 1 MOTION for Preliminary Injunction. Oral Argument set for 4/23/2020 at 10:00 AM by video conference before Judge Terry A Doughty. (crt,Crawford, A) (Entered: 04/16/2020)
16 ORDER granting 11 Motion to Appear Pro Hac Vice for appearance of Jennifer Wedekind for Gaines Andrews, Richard Buswell, Dewayne Corbett,Brandon Livas, Carlos Martin, Johnny Smith. Signed by Magistrate Judge Kathleen Kay on 4/16/2020. (crt,Williams, L) (Entered: 04/17/2020)
17 MOTION to Stay Consideration of Class Certification Pending Adjudication of Motion to Dismiss Petition and Emergency Motion by Michael Carvajal, Rodney Myers. Motions referred to Kathleen Kay. Motion Ripe Deadline set for 4/17/2020. (Attachments: # 1 Memorandum / Brief, # 2 Proposed order)(aty,King, Karen) (Entered: 04/17/2020)
Motions Transferred regarding 17 MOTION to Stay Consideration of Class Certification Pending Adjudication of Motion to Dismiss Petition and Emergency Motion. Motions referred to Judge Terry A Doughty. (crt,Haik, K) (Entered: 04/20/2020)
18 MINUTE ENTRY: Petitioner's response to 17 MOTION to Stay Consideration of Class Certification Pending Adjudication of Motion to Dismiss Petition and Emergency Motion is due by 4/21/2020. Signed by Judge Terry A Doughty on 4/20/2020. (crt,Crawford, A) (Entered: 04/20/2020)
19 MEMORANDUM in Opposition re 12 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss For Failure to State a Claim Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief and Emergency Motion for Release of Vulnerable and Low−Risk Prisoners from Oakdale. filed by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. (aty,Hamilton, Bruce) (Entered: 04/20/2020)
20 MOTION for David Luger to Appear Pro Hac Vice ( Admission fee: $105, receipt number ALAWDC−4240882) by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. Motions referred to Kathleen Kay. Motion Ripe Deadline set for 4/20/2020. (Attachments: # 1 Exhibit, # 2 Proposed order)(aty,Hamilton, Bruce) (Entered: 04/20/2020)
21 ORDER granting 20 Motion to Appear Pro Hac Vice for appearance of David Luger for Gaines Andrews, David Luger for Richard Buswell, David Luger for Dewayne Corbett, David Luger for Brandon Livas, David Luger for Carlos Martin, David Luger for Johnny Smith. Signed by Magistrate Judge Kathleen Kay on 4/21/2020. (crt,Haik, K) (Entered: 04/21/2020)
22 (FILED IN ERROR) MEMORANDUM in Opposition re 17 MOTION to Stay Consideration of Class Certification Pending Adjudication of Motion to Dismiss Petition and Emergency Motion filed by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. (aty,Hamilton, Bruce) Modified on 4/22/2020 to reflect Filed in Error. Please see doc. 23 for correct pdf document (Haik, K). (Entered: 04/21/2020)

04/21/2020 04/21/2020 04/21/2020 04/22/2020 04/22/2020 04/22/2020 04/22/2020 04/22/2020 04/22/2020 04/22/2020

23 MEMORANDUM in Opposition re 17 MOTION to Stay Consideration of Class Certification Pending Adjudication of Motion to Dismiss Petition and Emergency Motion filed by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. (aty,Hamilton, Bruce) (Entered: 04/21/2020)
24 REPLY to Response to Motion re 12 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss For Failure to State a Claim Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief and Emergency Motion for Release of Vulnerable and Low−Risk Prisoners from Oakdale. filed by Michael Carvajal, Rodney Myers. (aty,King, Karen) (Entered: 04/21/2020)
NOTICE of Corrective Action to Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith regarding 22 Memorandum in Opposition to Motion. Action taken: Edited entry to reflect Filed in Error. Pleading was refiled in its entirety with correct pdf document as 23 MEMORANDUM in Opposition. (crt,Haik, K) (Entered: 04/22/2020)
25 MOTION for Leave to File Supplemental Authority with consent by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. Motions referred to Kathleen Kay. Motion Ripe Deadline set for 4/22/2020. (Attachments: # 1 Exhibit Supplemental Authority, # 2 Proposed order)(aty,Hamilton, Bruce) (Entered: 04/22/2020)
26 NOTICE of Supplemental Evidence by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith re 1 MOTION for Preliminary Injunction MOTION for Permanent Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(aty,Hamilton, Bruce) (Entered: 04/22/2020)
27 ELECTRONIC ORDER granting 25 Motion for Leave to File Supplemental Authority. Signed by Judge Terry A Doughty on 4/22/2020. (crt,Crawford, A) (Entered: 04/22/2020)
28 Supplemental Authority re 19 Memorandum in Opposition to Motion to Dismiss, by Gaines Andrews, Richard Buswell, Dewayne Corbett, Brandon Livas, Carlos Martin, Johnny Smith. (crt,Crawford, A) (Entered: 04/22/2020)
29 SEALED DOCUMENT: Respondents' Notice of Supplemental Evidence in Opposition to Petitioners' Motion for Preliminary Injunction by Michael Carvajal, Rodney Myers re 15 Status Conference,, Set Motion and R&R Deadlines/Hearings,. (Attachments: # 1 Exhibit A−Declaration of Dr. Richard Griffin, M.D., # 2 Exhibit B−Declaration of Todd Chapman)(aty,King, Karen) (Entered: 04/22/2020)
30 MEMORANDUM RULING re 12 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss For Failure to State a Claim, filed by Rodney Myers, Michael Carvajal. Signed by Judge Terry A Doughty on 4/22/2020. (crt,Crawford, A) (Entered: 04/22/2020)
31 JUDGMENT granting 12 Motion to Dismiss for Lack of Jurisdiction; denying as moot 12 Motion to Dismiss for Failure to State a Claim. Signed by Judge Terry A Doughty on 4/22/2020. (crt,Crawford, A) (Entered: 04/22/2020)

 
 Case 2:20-cv-00422-TAD-KK Document 1 Filed 04/06/20 Page 1 of 30 PageID #: 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

BRANDON LIVAS, RICHARD BUSWELL, DEWAYNE CORBETT, JOHNNY SMITH, CARLOS LORENZO MARTIN, and GAINES ANDREWS, on behalf of themselves and those similarly situated,
Petitioners, v.
RODNEY MYERS, warden of Oakdale Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Case No. xx-cv--Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief Class Action
IMMEDIATE RELIEF SOUGHT

Respondents.

INTRODUCTION 1. You are likely reading this Petition from self-isolation in your home. Now imagine if someone sick with COVID-19 came into your home and sealed the doors and windows behind them. That is what the Oakdale federal detention centers1 have just done to the over 1,800 human beings currently detained there, where a COVID-19 outbreak is rampant, social distancing is impossible, and no one detained can leave.

1 The Oakdale complex consists of FCI Oakdale I (population about 917) and FCI Oakdale II (population about 900, including 760 at the prison and 140 at the “Camp”). Conditions vary slightly among these buildings. See https://www.bop.gov/locations/institutions/oak/; https://www.bop.gov/locations/institutions/oad/. Because Defendant Myers is Warden for both, Defendant Carvajal is responsible for prisoners at both, and, upon information and belief, both facilities are infected with COVID-19, they are referred to collectively as “Oakdale.”
1

Case 2:20-cv-00422-TAD-KK Document 1 Filed 04/06/20 Page 2 of 30 PageID #: 2
2. We are in the midst of the most significant pandemic in generations.2 A highly
contagious and deadly virus called coronavirus has swept the globe. No one is safe. The lethality
rate of COVID-19, the serious respiratory disease caused by this coronavirus, is estimated between
0.3% and 3.5%: at least 5-35 times deadlier than the common flu that kills thousands a year.3 All
age groups, including some children, have contracted the disease,4 and the World Health
Organization estimates that one in five people who do contract it require hospitalization.5 On
March 13, 2020, President Trump declared a national state of emergency.6 As of March 26, 2020,
the United States led the world in confirmed cases of COVID-19.7 The virus is spreading
exponentially: U.S cases doubled in the five-day period prior to April 2nd.8
3. COVID-19 is currently running rampant in the state of Louisiana. A study from
the University of Louisiana at Lafayette reported that COVID-19 cases grew at 67.8% in the first
2 John M. Barry, The Single Most Important Lesson from the 1918 Influenza, New York Times (March 17, 2020), https://cutt.ly/PtQ5uAZ (Opinion piece by author of “The Great Influenza: The Story of the Deadliest Pandemic in History,” noting comparison between current COVID-19 outbreak and the 1918 influenza outbreak widely considered one of the worst pandemics in history). 3 Exhibit 1, Declaration of Joe Goldenson, MD (“Goldenson Dec.”) ¶7. As of April 52, 2020, there were 1,260015,104403 confirmed cases globally, with 6853,030413 deaths and 25810,588579 recoveries. Johns Hopkins University of Medicine, Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering at Johns Hopkins University, https://cutt.ly/StEyn2U. 4 Robert Verity, PhD., et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis, Lancet Infec Dis (March 30, 2020), 6. 5 World Health Organization, Q&A on Coronaviruses (COVID-19), “Should I Worry About COVID-19?,” https://cutt.ly/YtEyrxl. 6 Derek Hawkins et al., Trump Declares Coronavirus Outbreak a National Emergency, Wash. Post (March 13, 2020, 10:46 AM), https://cutt.ly/ftWyIPb. 7 Donald G. McNeil, Jr., The U.S. Now Leads the World in Confirmed Coronavirus Cases, New York Times (March 26, 2020), https://cutt.ly/QtQ7zz6. 8 Soo Kim, U.S. Coronavirus Cases Doubled in Just Five Days as Daily Death Toll Increasingly Exponentially, Newsweek (April 2, 2020), available at https://www.newsweek.com/coronavirus-updateamerica-cases-double-1495692; Johns Hopkins University, Coronavirus Resource Center, available at https://coronavirus.jhu.edu/map.html; see also Brittany Shammas, et al., Trump says Quarantine for New York Area “Will not be Necessary;” U.S. Coronavirus-related Deaths Double in Two Days, Wash. Post (March 28, 2020, 11:27 p.m.), https://cutt.ly/ktRo8u0.
2

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two weeks after the initial diagnosis, the highest rate in the United States.9 As of April 2, 2020, Louisiana had 9,150 confirmed cases of COVID-19, with at least 310 deaths.10 On April 2, 2020, Louisiana Governor John Bel Edwards extended the state’s stay-at-home order to April 30th, limiting gatherings in confined spaces to 10 or fewer people.11 Governor Edwards estimated that the state would exceed its ventilator capacity by April 9th, and its ICU capacity a few days after that.12
4. There is no vaccine or cure for COVID-19. The best course, according to public health experts, is to slow and prevent transmission, primarily through a practice known as “social distancing.”13 Social distancing requires all people to stay at least six feet away from all other people to control the spread of the virus. These measures are particularly important because the coronavirus spreads aggressively, and people can spread it even if they do not feel sick or exhibit any symptoms.14 The only assured way to curb the pandemic is through dramatically reducing
9 Adam Daigle, Coronavirus Cases Grew Faster in Louisiana Than Anywhere Else in the World: UL Study, THE ACADIANA ADVOCATE (Mar. 24, 2020), available at https://www.theadvocate.com/acadiana/news/coronavirus/article_94494420-6d4b-11ea-ac42ff7dd722c084.html. 10 Sunday, April 3rd’s figures represent a nearly 143% increase of confirmed cases since Friday, April 2 and a nearly 154% increase in confirmed deaths since Friday April, 2. See Louisiana Department of Health, Office of Public Health, Louisiana Coronavirus (COVID-19) Information, available at http://ldh.la.gov/coronavirus. 11 Louisiana coronavirus stay-at-home order extending to April 30, John Bel Edwards announces, NOLA.com (Apr. 2, 2020) available at https://cutt.ly/8tD5Kni; see also Victoria Christina, Gov. Edwards: Without social distancing, data models show thousands of new hospitalizations daily, WGNO.com (April 3, 2020) (Gov. Edwards encourages people to “understand the impact of” and “full[y] compl[y] with” social distancing), available at https://cutt.ly/ptD5Jr0. 12 Chandelis Duster, Louisiana governor says state could run out of ventilators by end of the week if coronavirus cases continue to rise, CNN, (Apr. 5, 2020, 12:43 p.m.) available at: https://cutt.ly/WtD5Fu1. 13 Goldenson Dec. ¶14; World Health Organization, Coronavirus, https://cutt.ly/ztWyf7e (“At this time, there are no specific vaccines or treatments for COVID-19.”).”). 14 Centers for Disease Control and Prevention, How Coronavirus Spreads, https://cutt.ly/CtYRkkC.
3

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contact for all.15 Consequently, every American institution—from schools16 to places of worship,17 from businesses18 to legislatures19—has been exhorted to reduce the number of people in close quarters, if not empty entirely.20 They have also been told to undertake aggressive sanitation measures, such as cleaning and disinfecting all surfaces for exacting periods of time with products with particular alcohol contents, and closing off any areas used by a sick person.21
5. These imperatives apply with special force to prisons, where the government controls almost entirely a person’s ability to avoid others and to maintain adequate sanitation.
6. Yet prisons are fundamentally incapable of implementing these recommendations, and incarcerated people are already dying nationwide as a result. For example, as of February 29, 2020, at the peak of the outbreak in Wuhan, China —the city where COVID-19 originated—over half of all new infection cases were incarcerated people.22 On Rikers Island, the rate of infection among incarcerated people is over eight times the rate of infection in New York City generally,
15 Harry Stevens, Why Outbreaks Like Coronavirus Spread Exponentially, and how to “Flatten the Curve,” Wash. Post. (March 14, 2020), https://cutt.ly/etYRnkz. 16 Centers for Disease Control and Prevention, Interim Guidance for Administrators of US K-12 Schools and Child Care Programs, https://cutt.ly/ItRPq5n. 17 Centers for Disease Control and Prevention, Interim Guidance for Administrators and Leaders of Community-and Faith-Based Organizations to Plan, Prepare, and Respond to Coronavirus Disease 2019 (COVID-19), https://cutt.ly/KtRPk1k. 18 Centers for Disease Control and Prevention, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), https://cutt.ly/stRPvg4. 19 Nat’l Conf. of State Legislatures, Coronavirus and State Legislatures in the News, https://cutt.ly/4tRPQne.a 20 As of April 3, 2020, fully 311 million Americans were being urged by their City, County, Parish, Territory, and/or State governments to stay at home to reduce the spread of coronavirus. See Sarah Mervosh, Denise Lu, Vanessa Swales, Which States and Cities Have Told Residents to Stay at Home, NEW YORK TIMES (last updated April 3, 2020), available at: https://cutt.ly/CtDMZY0. 21 Centers for Disease Control and Prevention, Cleaning and Disinfecting Your Facility, https://cutt.ly/atYE7F9. 22 Zi Yang, Cracks in the System: COVID-19 in Chinese Prisons, THE DIPLOMAT (March 9, 2020), available at https://thediplomat.com/2020/03/cracks-in-the-system-covid-19-in-chinese-prisons/.
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and 45 times higher than the rate in Wuhan, China.23 Fourteen prisoners have died of COVID-19 in Bucks County, Pennsylvania.24 Three inmates have died of the disease at FSL Elkton, a federal prison near Youngstown, Ohio.25
7. Further, prisons are not sealed off from the world outside them. By their nature, people cycle in and out constantly—from correctional and medical staff, to families and attorneys, to those serving short sentences or finishing longer ones. This dynamic was occurring before BOP’s lockdown, and possibly-infected-but-asymptomatic employees are still going home and returning to Oakdale even during the lockdown’s pendency. This allows COVID-19 to spread from Oakdale to the community and from the community to Oakdale. Failing to prevent and mitigate the spread of COVID-19 endangers not only those within the institution, but the entire community. Hence, immediate and categorical release of prisoners, starting with the medically-vulnerable, is the primary mitigation effort that Oakdale can undertake to comport with public health guidance and to prevent a catastrophic outbreak at the facility.
8. Attorney General Barr’s April 3rd Memorandum to Defendant Carvajal (“April 3 Memo”) recognized the “significant level of infection” at Oakdale and suggested “immediately” “mov[ing] vulnerable inmates out.”26 However, the April 3 Memo did not define “vulnerable
23 These numbers likely underestimate the infection rate on Rikers Island, as they do not include the number of people contracted COVID-19 on Rikers Island but who have already been released. The rates of infection rely on publicly released data collected by the Legal Aid Society. See LEGAL AID SOCIETY, Analysis of COVID-19 Infection Rate in NYC Jails (last visited April 5, 2020, 3:00 p.m.), available at: https://cutt.ly/RtYTbWd. 24 Larry R. King, Bucks County COVID-19 Deaths Reach 14; Four Cases Confirmed at Prison (April 4, 2020), available at: https://cutt.ly/utD6u5F. 25 Rachel Polansky, 3 inmates at eastern Ohio prison dead from suspected cases of COVID-19, WKYC (April 4, 2020, 11:18 p.m.), available at: https://cutt.ly/7tD6wlA. 26 Memorandum from Attorney General William Barr to Director of Bureau of Prisons, The Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (April 3, 2020), available at https://politi.co/2UV3JBi.
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inmates.”27 Nor did it establish concrete timelines and guidelines for local officials, including Defendants, to implement this directive in line with public health expertise—even though Oakdale is a low-security facility, and therefore every prisoner has already been deemed low risk. Finally, the April 3 Memo did not establish accountability mechanisms for the suffering, death, and constitutional violations to date. This lawsuit seeks all of the above.
9. Everyone at Oakdale recognizes Defendants’ inaction to date. Defense attorneys and prisoners have reported a continuing lack of hygiene protocols and social distancing, and corrections officers are suing for hazard pay.28
10. Absent intervention from this Court to align the operation of Oakdale with public health principles—first and foremost, the release of as many incarcerated persons as possible, but also improved sanitation, testing, and treatment protocols for all others—devastating, and in many cases deadly, irreparable harm will befall incarcerated persons, facility staff, and the community.29 The outbreaks in corrections facilities around the country30 prove the need for immediate and significant reductions in population. The case-by-case review that Attorney General Barr proposes—even if implemented now, which it has not been—is no match for exponential spread
27 Id.; see also Memorandum from Attorney General William Barr to Director of Bureau of Prisons, Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (March 26, 2020), available at https://www.justice.gov/file/1262731/download. 28 Nicole Ogrysko, AFGE sues for hazard pay for federal employees working through coronavirus pandemic, FEDERAL NEWS NETWORK (March 30, 2020, 6:26 p.m.) (“Three of the named plaintiffs on the case work at the Federal Correctional Complex in Oakdale, Louisiana.”), available at https://federalnewsnetwork.com/afge/2020/03/afge-sues-for-hazard-pay-for-federal-employees-workingthrough-coronavirus-pandemic/. 29 Noam N. Levey, Jenny Jarvie, Coronavirus Will Hit Health System Hard and Not All States are Prepared, L.A. TIMES (March 12, 2020 4:00 a.m.), https://cutt.ly/mtYTI3U; Joanne Kenen, Local Officials Alarmed by Dearth of Ventilators, Hospital Beds, POLITICO (March 14, 2020 7:00 a.m.), https://cutt.ly/stYTDDk. 30 Sam Kelly, 134 inmates at Cook County Jail confirmed positive for COVID-19, CHICAGO SUN-TIMES (Mar. 30, 2020, 8:11 p.m.). https://cutt.ly/6tYTqi5.
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of the disease. Courts and executive branch officials elsewhere in the country have accepted this

reality and begun broad-based, categorical releases.31

11. Accordingly, Petitioners—a class and subclass of persons incarcerated at Oakdale

now and in the future—bring this action and request immediate release of all Petitioners and Class

Members, coupled with appropriate support and conditions upon release, as informed by public

health expertise. If this Court does not grant immediate release on the basis of this Petition-

Complaint, Petitioners request a hearing as soon as possible. Given the exponential spread of

COVID-19, there is no time to spare.

I.

JURISDICTION AND VENUE

12. Petitioners bring this putative class action pursuant to 22 U.S.C. § 2241 for relief

from detention that violates their Eighth Amendment rights under the U.S. Constitution.

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

§ 2241 (habeas corpus), 28 U.S.C. § 1651 (All Writs Act), Article I, § 9, cl. 2 of the U.S.

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

14. Venue is proper in this judicial district and division pursuant to 28 U.S.C. § 2241(d)

because the Petitioners and all other class members are in custody in this judicial district and venue.

Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or

omissions giving rise to Petitioners’ claims occurred in this district.

31 See, e.g., Memorandum and Order, Thakker v. Doll, No. 1:20-CV-0480 (M.D.Pa. Mar. 31, 2020) at Doc. No. 47 (categorically releasing petitioners who “suffer[] from chronic medical conditions and face[] an imminent risk of death or serious injury if exposed to COVID-19); Emmanuel Felton, A Judge Ordered The Release Of Low-Level Prisoners Because Of The Coronavirus. People Were Absolutely Furious., BUZZFEED NEWS (Mar. 27, 2020, 5:27 pm), https://cutt.ly/QtD2DOl.
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II.

PARTIES

15. Petitioner Brandon Livas, BOP No. Register 37736034, is detained in the satellite

camp at Oakdale (FCI Oakdale II). He is 35 years old. He is diabetic and suffers from acute

pancreatitis. He has no access to hot water and soap, and he cannot practice social distancing—he

lives in a dorm-style barracks with a bed that is less than three feet away from his nearest neighbor.

As part of his job duties at Oakdale, he is expected to clean about six prison offices. He is serving

a 15-month sentence for fraud that began on December 2, 2019. He is a first-time, nonviolent

offender.

16. Petitioner Richard Joseph Buswell, BOP Register No. 15618035, is detained at

Oakdale (FCI Oakdale II). He is 51 years old. He has access to communal bars of soap that are

filthy; they are shared by about 125 people at four sinks; those 125 people share six showers and

eight filthy toilets. He suffers from asthma, hypertension, and sleep apnea; he sleeps with a CPAP

device. He is serving a 10-year sentence for conspiracy to commit securities fraud and an 8-year

concurrent sentence for distribution of synthetic marijuana.

17. Petitioner Johnny Smith, BOP Register No. 33172034, is detained at Oakdale (FCI

Oakdale I). He is 49 years old and suffers from hypertension and a thyroid condition.

18. Petitioner Carlos Lorenzo Martin, BOP Register No. 15029043, is detained at

Oakdale (FCI Oakdale II). He is 35 years old and has compromised lungs due to childhood asthma.

He is housed in a room which sleeps 72 prisoners in bunks arranged in rows, such that when he

sleeps he can reach out and touch the person next to him on either side. He was convicted of a drug

charge and is slated for release in eight months.

19. Petitioner Dewayne Corbett, BOP Register No. 21703171, is detained at Oakdale

(FCI Oakdale I). He is 58 years old and in chronic care. He has a respiratory disorder involving a

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4-by-5-millimeter nodule on his lung and is awaiting a CT scan, so he feels he needs to socially

distance but cannot.

20. Petitioner Gaines Andrews, BOP No. Register 44677379, is detained in the satellite

camp at Oakdale (FCI Oakdale II). He is 39 years old and suffers from asthma. He is the head of

maintenance and frequently makes deliveries to FCI Oakdale I. As part of his job duties at Oakdale,

he is helping construct tent camps in the prison recreation yard along with bunk houses and

showers for prison staff. He pleaded guilty to a single count of conspiracy to distribute

methamphetamine and received a 10-year sentence; he is scheduled for release on October 28,

2022.

21. Respondent Rodney Myers is the warden of Oakdale and currently has immediate

custody over Petitioners and all other putative Class members.

22. Respondent Michael Carvajal is the Director of the United States Bureau of Prisons

and is responsible for all people including Plaintiffs housed at Bureau of Prisons facilities,

including all structures at Oakdale.

III.

FACTUAL ALLEGATIONS

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

23. The novel coronavirus that causes COVID-19 has led to a global pandemic.32 As of

April 5, 2020, there were more than 1.26 million reported COVID-19 cases throughout the world

32 Goldenson Dec. ¶5; Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, WALL ST. J. (Mar. 11, 2020, 11:59 PM), https://cutt.ly/UtEuSLC.
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and more than 9,400 deaths in the United States.33 Projections indicate that as many as 240,000 people in the U.S. will die from COVID-19, accounting for existing interventions.34
24. The virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.35 There is no vaccine against COVID-19, and there is no known medication to prevent or treat infection.36 Social distancing—deliberately keeping at least six feet of space between persons to avoid spreading the illness37—plus a vigilant hygiene regimen, including washing hands frequently and thoroughly with soap and water, are the only known effective measures for protecting against transmission of COVID-19.38 Because the coronavirus spreads among people who do not show symptoms, staying away from people is the best way to prevent contraction. In other words, everyone—including officials at Oakdale—has to act as is if everyone has the disease.
25. Once contracted, COVID-19 can cause severe damage to lung tissue, including a permanent loss of respiratory capacity, and it can damage tissues in other vital organs including the heart and liver.39
33 See Johns Hopkins University of Medicine, Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering at Johns Hopkins University, https://cutt.ly/StEyn2U. 34 Rick Noack, et al., White House Task Force Projects 100,000 to 240,000 Deaths in U.S., Even With Mitigation Efforts, WASH. POST. (April 1, 2020, 12:02 a.m.), https://cutt.ly/5tYT7uo. 35 Centers for Disease Control and Prevention, Interim Infection Prevention and Control Recommendations for Patience with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, https://cutt.ly/ztRAo0X. 36 Supra note 3. 37 Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine, https://cutt.ly/VtYYiDG. 38 Goldenson Dec. ¶14. 39 Centers for Disease Control and Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl.
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26. People over the age of fifty face a greater risk of serious illness or death from COVID-19.40 In a February 29, 2020 preliminary report, individuals age 50-59 had an overall mortality rate of 1.3%. 60-69-year-olds had an overall 3.6% mortality rate, and those 70-79 years old had an 8% mortality rate.41
27. People of any age who suffer from the following also have an elevated risk: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease.42 Early reports estimate that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.43
40 Xianxian Zhao, et al., Incidence, clinical characteristics and prognostic factor of patients with COVID19: a systematic review and meta-analysis (March 20, 2020), https://cutt.ly/etRAkmt. 41 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ (data analysis based on WHO China Joint Mission Report and Chinese CCDC report published in the Chinese Journal of Epidemiology). 42 Centers for Disease Control and Prevention, Groups at Higher Risk for Severe Illness, https://bit.ly/3dYDrqI; Coronavirus disease (COVID-19) advice for the public: Myth busters, World Health Organization, https://cutt.ly/dtEiCyc (“Older people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to becoming severely ill with the virus.”). 43 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12 https://cutt.ly/KtD3ALr (finding fatality rates for patients with COVID-19 and comorbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”).
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28. In many people, COVID-19 causes fever, cough, and shortness of breath. However, for people over the age of fifty or with medical conditions that increase the risk of serious COVID19 infection, shortness of breath can be severe.44 Most people in higher-risk categories who develop serious illness will need advanced support. This requires highly specialized equipment like ventilators that are in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists, and intensive care physicians.45
29. In serious cases, COVID-19 causes acute respiratory disease syndrome (“ARDS”), which is life-threatening; those who receive ideal medical care with ARDS have a 30% mortality rate.46
30. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.47
31. Even some younger and healthier people who contract COVID-19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.48
32. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza.49 According to recent estimates, the fatality
44 Goldenson Dec. ¶¶ 7-9. 45 Kevin McCoy and Katie Wedell, ‘On-the-job emergency training': Hospitals may run low on staff to run ventilators for coronavirus patients, USA TODAY (Mar. 27, 2020), available at https://bit.ly/2V7rLsS. 46 Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland, March 25, 2020, https://cutt.ly/stERiXk. 47 CDC, Interim Clinical Guidance, supra note 39. 48 Robin McKie, Why do some young people die of coronavirus?, The Guardian (April 5, 2020), available at https://bit.ly/2x5dghp. 49 Goldenson Dec. ¶7.
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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.50
All People in Oakdale Face Grave and Immediate Danger Due to COVID-19 33. Beyond the general public health concerns presented by the COVID-19 pandemic, persons incarcerated at Oakdale face a particularly acute threat of illness, permanent injury, and death.51 34. Louisiana is experiencing some of the worst COVID-19 outbreaks in the world. As of April 3, 2020, Louisiana had 10,297 confirmed cases of COVID-19, with at least 370 deaths.52 A study from the University of Louisiana at Lafayette reported that COVID-19 cases grew at 67.8%, the highest rate in the United States.53 35. People in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19,54 as already evidenced by the rapid spread of the virus in cruise ships55 and nursing homes.56 It is virtually impossible for people who are confined in prisons, jails, and detention centers to engage in the necessary social
50 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM), https://cutt.ly/itEmi8j. 51 Goldenson Dec. ¶¶ 15-23. 52 Goldenson Dec. ¶ 11. Louisiana cases nearly tripled from March 29 (3,553 confirmed cases) to April 3 (10,297 confirmed cases). See Louisiana Department of Health, Office of Public Health, Louisiana Coronavirus (COVID-19) Information, available at http://ldh.la.gov/coronavirus. 53 Daigle, Coronavirus Cases Grew Faster in Louisiana Than Anywhere Else in the World, supra note 9 54 Goldenson Dec. ¶ 19. 55 The CDC is currently recommending that travelers defer cruise ship travel worldwide. “Cruise ship passengers are at increased risk of person-to-person spread of infectious diseases, including COVID-19.” COVID-19 and Cruise Ship Travel, Centers for Disease Control and Prevention, https://cutt.ly/7tEEQvT. 56 The CDC notes that long-term care facilities and nursing homes pose a particular risk because of “their congregate nature” and the residents served. Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, Centers for Disease Control and Prevention, https://cutt.ly/7tEEITH.
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distancing and hygiene required to mitigate the risk of transmission.57 This is demonstrated by dramatic outbreaks in the Cook County Jail in Chicago58 and Rikers Island in New York City, where the transmission rate for COVID-19 is estimated to be the highest in the world.59 The CDC also warns of “community spread” where the virus spreads easily and sustainably within a community where the source of the infection is unknown.60
36. Correctional settings further increase the risk of contracting COVID-19 due to the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, presence of many high-contact surfaces, and no possibility of staying at a distance from others.61
37. Correctional facilities house large groups of people together, and move people in groups to eat, recreate, and engage in programming.62 They frequently have insufficient medical care for the population even outside times of crisis.63 Hot water, soap, and paper towels are often in limited supply. Incarcerated people, rather than professional cleaners, are responsible for cleaning the facilities64 and often are not given appropriate supplies.
57 Goldenson Dec. ¶ 26; see also KPLC News, Death toll rising at Federal prison in Oakdale (April 2, 2020, 9:32 p.m.) (Corrections union president admits: “It’s unfortunate that the inmates are being kept in a close proximity, that’s just the nature and physical layout of our institution. They sleep in cells right next to one another. I mean approximately three to four feet from one another.”). 58 See supra note 30. 59 Supra note 23. 60 How Coronavirus Spreads, Centers for Disease Control and Prevention, https://cutt.ly/jtEE9vG. 61 Letter from Johns Hopkins Faculty, supra note 46. 62 See, e.g, Nathalie Baptiste, Correctional Facilities are the Perfect Incubators for the Coronavirus, MOTHER JONES (March 6, 2020), https://cutt.ly/GtRSi3e. 63 See, e.g., Steve Coll, The Jail Health-Care Crisis, The New Yorker (Feb. 25, 2019), https://cutt.ly/ftERHNg. 64 See Exhibit 3 (Declaration of Gaines Andrews) ¶3; see, e.g., Wendy Sawyer, How much do incarcerated people earn in each state?, Prison Policy Initiative, (April 10, 2017); https://cutt.ly/qtER2bh (noting that “custodial, maintenance, laundry” and “grounds keeping” are among the most common jobs for incarcerated people); North Carolina Dept. of Corrections, North Carolina Prison Inmates at Work,
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38. Outbreaks of the flu regularly occur in prisons. During the H1N1 epidemic in 2009, jails and prisons dealt with a disproportionately high number of cases.65
39. In addition to Dr. Joe Goldenson, whose declaration is attached here, public health experts including Dr. Gregg Gonsalves,66 Ross MacDonald,67 Dr. Marc Stern,68 Dr. Oluwadamilola T. Oladeru and Adam Beckman,69 Homer Venters,70 the faculty at Johns Hopkins schools of nursing, medicine, and public health,71 and Josiah Rich72 have all strongly cautioned that people booked into and held in correctional facilities are likely to face serious, even grave, harm due to the outbreak of COVID-19.
Existing Procedures and Protocols Will Not Be Sufficient to Ensure the Safety of Class Members or the General Public 40. Because of the severity of the threat posed by COVID-19, and its potential to rapidly spread throughout a correctional setting, public health experts recommend the rapid release
https://cutt.ly/jtERCbb (noting that cleaning the grounds and facilities is one of the jobs of incarcerated persons in North Carolina). 65 The H1N1 “swine flu” pandemic outbreak spread dramatically in jails and prisons in 2010, but that strain of virus had a low fatality rate because of the characteristics of the virus—COVID-19’s fatality rate is far higher. David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, PRISON LEGAL NEWS (Feb. 15, 2010), https://cutt.ly/ytRSkuX. 66 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror (March 11, 2020), https://cutt.ly/BtRSxCF. 67Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (March 19, 2020, 11:29 a.m.), https://cutt.ly/ptRSnVo. 68 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington Assoc. of Sheriffs & Police Chiefs (March 5, 2020), https://cutt.ly/EtRSm4R. 69 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, HEALTH AFFAIRS (March 10, 2020), https://cutt.ly/QtRSYNA. 70 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (March 12, 2020), https://cutt.ly/jtRSPnk. 71 See, supra note 46. 72 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, THE GUARDIAN (March 13, 2020 3:00 p.m.), https://cutt.ly/itRSDNH.
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from custody of people most vulnerable to COVID-19.73 Release protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for people held or working in a prison and the broader community.74 Release of the most vulnerable people from custody also reduces the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.75
41. Internationally, governments and jail staff have recognized the threat posed by COVID-19 and released high numbers of detained persons. In Iran, for example, more than 85,000 people were released from jails to curb the spread of coronavirus.76
42. Domestically, jail administrators in Cuyahoga County, Ohio;77 Los Angeles, California;78 San Francisco, California;79 Jefferson County, Colorado;80 and the State of New Jersey,81 among others, have concluded that widespread jail release is a necessary and appropriate public health intervention.
73 See, e.g., Josiah Rich, Scott Allen, and Mavis Nimoh, We must release prisoners to lessen the spread of coronavirus, WASHINGTON POST (March 17, 2020), available at https://wapo.st/2JDVq7Y. 74 See generally Goldenson Dec.; id. at ¶ 26 (“What’s more, the infection in FCI Oakdale would not stay limited to the facility, but would worsen infection rates in the broader community.”). 75 Id. 76 US Jails Begin Releasing Prisoners to Stem COVID-19 Infections, BBC News (March 19, 2020), https://cutt.ly/9tRDyb3 (noting Iran’s release of over 85,000 prisoners in response to the virus). 77 Scott Noll, Cuyahoga County Jail Releases Hundreds of Low-Level Offenders to Prepare for Coronavirus Pandemic, (March 20, 2020 6:04 p.m.), https://cutt.ly/CtRSHkZ. 78 Alene Tchekmedyian, More L.A. County Jail Inmates Released Over Fears of Coronavirus Outbreak, L.A. Times, (March 19, 2020 6:55 p.m.), https://cutt.ly/ltRSCs6. 79 Megan Cassidy, Alameda County Releases 250 Jail Inmates Amid Coronavirus Concerns, SF to Release 26, San Francisco Chronicle (March 20, 2020), https://cutt.ly/0tRSVmG. 80 Jenna Carroll, Inmates Being Released Early from JeffCo Detention Facility Amid Coronavirus Concerns, KDVR Colorado (March 19, 2020 2:29 pm.), https://cutt.ly/UtRS8LE. 81 Erin Vogt, Here’s NJ’s Plan for Releasing Up to 1,000 Inmates as COVID-19 Spreads (March 23, 2020), https://cutt.ly/QtRS53w.
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43. Notwithstanding Attorney General Barr’s April 3 memorandum, which lacks specificity and oversight, immediate release of medically vulnerable Class members and a plan formulated by a public health expert remain necessary.82
44. The April 3 Memo directed Defendant Carvajal to review all prisoners with COVID-19 risk factors who may be candidates for release to home confinement, starting with those at Oakdale and two other federal detention centers that have been hit the hardest by COVID19 so far. This step, while necessary, falls far short of what is necessary to protect the health, safety, and lives of Petitioners and to avoid further death and serious illness. The April 3 Memo directs Defendant Carvajal to implement the review process “immediately” and “immediately maximize appropriate transfers to home confinement,” but it does not provide any concrete timelines or procedures for doing so. Critical decisions are left entirely to the discretion of BOP personnel, who have already demonstrated that they lack the expertise and resources to implement AG Barr’s directives and otherwise deal with the COVID-19 outbreak at Oakdale. Further, there is no indication how many people incarcerated at Oakdale will be considered and approved for transfer to home confinement. The only appropriate response to this emergency is immediate intervention by the Court.
45. Indeed, it is unclear whether Defendants can or will move with the required speed. Even before President Trump signed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Defendant Carvajal had the authority to release vulnerable prisoners in light of the pandemic. He did not. The CARES Act, signed March 27, 2020, then gave the Attorney General expanded power to immediately release prisoners on account of COVID-19, and Attorney
82 See Public Health Expert Declarations, supra note 80.
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General Barr sent a memorandum to Defendant Carvajal the day before “directing” Defendant Carvajal to “prioritize” home confinement for vulnerable populations. Defendant Carvajal did nothing. Indeed, government attorneys continued to oppose release in individual cases for Oakdale prisoners.83 Prisoners have informed undersigned counsel they have either not been permitted to submit individual grievance requests, or have not received responses to requests for furloughs, personal protective equipment, and additional personal hygiene supplies.
46. It has now been three days since Attorney General Barr’s April 3 Memo “directing” Defendant Carvajal to “move with dispatch in using home confinement” for vulnerable prisoners. Defendants have not moved with dispatch. There is no evidence that prisoners have been released based on these immediate directives. The case-by-case review contemplated in the April 3 Memo is both unnecessary—Oakdale is already a low-security facility—and inadequate to the moment. In the time between Attorney General Barr’s March 26 directive and today, five men at Oakdale have died waiting for the process to play out.
47. Accordingly, expedited release to home confinement—with social distancing, testing, and other expert-guided measures as necessary—is needed not only to prevent irreparable harm to members of the medically-vulnerable subclass, but also to reduce the incarcerated population at Oakdale sufficiently to ensure proper social distancing to reduce transmission for all class members and the wider public.84
83 See, e.g., United States’ Supplemental Opposition to Motion for Modification of Sentence, Stay of Sentence, and/or Imposition of Interim Sentence, United States v. Harold Lee, No. 12-CR-0320 (W.D.La. Apr. 3, 2020). 84 See Public Health Expert Declarations, supra note 80. Further, in the prison context, the ABA urges that “Governmental authorities in all branches in a jurisdiction should take necessary steps to avoid crowding that… adversely affects the … protection of prisoners from harm, including the spread of disease.” ABA Standard on Treatment of Prisoners 23-3.1(b).
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48. Oakdale poses a particularly high risk of transmission. The CDC recommendations described above are “impossible” at Oakdale.85 As to social distancing, Petitioner Buswell said that phones two feet apart, as are the sinks. There eight working sinks, eight dirty toilets, and “five or six” working showers for approximately 125 men at the Camp facility where he lives.86 He also said, “There is no liquid soap in the individual soap dispensers and we only have access to communal bar soap, which is filthy. We do not have access to hand sanitizer or clean hand towels. Laundry is done only twice a week.”87
49. Petitioner Buswell is over 50 and has several serious chronic health conditions including asthma and sleep apnea that make him particularly vulnerable to COVID-19.88 He has interacted directly with three staffers who have tested positive.89 Yet no one has responded to his administrative request for a furlough for over a week, and his case manager told him she was “too overwhelmed to deal with it and did not provide [him] any further guidance.”90
50. Petitioner Andrews is the head of maintenance amongst the prisoners and is helping to build “tent camps in the yard” including “personally buil[ding] frames to hold oxygen tanks.”91 Although corrections officers are “quitting or retiring” rather than work at FCI Oakdale I, he is working seven days a week.”92 He and his team “do not have enough personal protective
85 Declaration of Somil Trivedi at Ex. 2 (Declaration of Richard Buswell) (“Buswell Dec.”) ¶4; Goldenson Dec. ¶ 26. 86 Buswell Dec. ¶4; see also Andrews Dec. ¶5 (“Despite knowing about it, the prison directed maintenance to rip out half of the showers because they wanted to install new ones.”). 87 Id. ¶5. 88 Buswell Dec. ¶2; Goldenson Dec. ¶8 (“The case fatality rate varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardio-vascular disease, respiratory disease, diabetes, and immune compromise.”) 89 Buswell Dec. ¶10. 90 Id. ¶8. 91 Andrews Dec. ¶3. 92 Id. ¶3, ¶6.
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equipment. We are able to get masks once per day if we ask, but they are not N95 masks.”93 Even worse, he believes that prison officials “knew about this virus in January” but still “directed the maintenance team to rip out half of the showers because they wanted to install new ones.”94 He said the official overseeing shower installation retired on April 5.95
51. Counsel’s conversations with other prisoners during the current lockdown confirm these horrific conditions. A prisoner in the “Camp” facility at Oakdale told counsel that bunks are three feet away from each other; there is no access to hot water or soap; and there are eight showers for over 130 prisoners with no indication of tiered showering to improve social distancing. Camp residents are among the most vulnerable and cannot socially distance because of the “barracksstyle” housing. A prisoner at the FCI Oakdale I building reported access to hot water and soap, but not hand sanitizer; laundry only once per week; and eight toilets, 15 urinals, and 24 showers for all prisoners, again without an indication of procedures to ensure distancing.
52. All available evidence indicates that Defendants have thus far disregarded the Attorney General’s directives to release vulnerable prisoners with “dispatch” in order to reduce populations and better achieve social distancing for those who remain.
53. Corrections officers suing Oakdale for hazard pay have made similar, harrowing complaints: one “performed work in close proximity to objects, surfaces, and/or individuals infected with COVID-19.”96 Another “transported an inmate infected with COVID-19” and was
93 Id. ¶4. 94 Id. ¶5. 95 Id. 96 Complaint, Braswell v. United States of America, Civil Action No. 20-cv-359C at ¶ 23 (Fed. Cl. March 27, 2020), available at https://www.classaction.org/media/braswell-et-al-v-the-united-states-ofamerica.pdf.
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only given personal protective equipment “after he had spent a significant amount of time with the

inmate.”97

54. The corrections union president has admitted that there is not sufficient personal

protective equipment and that the layout of the prison makes social distancing physically

impossible.98

55. Given this track record, it defies reality that Oakdale could now miraculously

implement AG Barr’s directives on its own, in line with CDC guidelines99 and with the

combination of speed and care for human life that the moment requires.100

IV.

CLASS ACTION ALLEGATIONS

56. Petitioners bring this action pursuant to Rule 23 of the Federal Rules of Civil

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

57. Petitioners Livas, Smith, Martin, Andrews, Corbett, and Buswell each seek to

represent a class of all current and future people in post-conviction custody at Oakdale (“Class”),

including a subclass of persons who, by reason of age or medical condition, are particularly

vulnerable to injury or death if they were to contract COVID-19 (“Medically-Vulnerable

Subclass”).

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

incarcerated at Oakdale over the age of 50, as well as all current and future persons incarcerated

97 Id. 98 KPLC News, Death toll rising at Federal prison in Oakdale (April 2, 2020) (Corrections union president admits: “It’s unfortunate that the inmates are being kept in a close proximity, that’s just the nature and physical layout of our institution. They sleep in cells right next to one another. I mean approximately three to four feet from one another.”). 99 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. 100 Id.; see also Goldenson Dec. ¶ 28.
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at Oakdale of any age who experience: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease.
59. Each Petitioner can represent the Class because each Petitioner is currently housed at Oakdale. Each Petitioner can also represent the Medically-Vulnerable Subclass because each Petitioner is over the age of 50 and/or suffers from one of the conditions listed in the definition of the Subclass above.
60. This action has been brought and may properly be maintained as a class action under Federal law. It satisfies the numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
61. Joinder is impracticable because (1) the classes are numerous; (2) the classes include future members, and (3) the class members are incarcerated, rendering their ability to institute individual lawsuits limited, particularly in light of the BOP’s current 14-day lockdown and generally reduced legal visitation and court closures in the Western District of Louisiana instituted to address COVID-19 concerns.
62. There are approximately 1,871 people in the proposed Class, and, on information and belief, approximately 748 people in the proposed Medically-Vulnerable Subclass.101
101 See https://www.bop.gov/locations/institutions/oak/; https://www.bop.gov/locations/institutions/oad/.
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63. Common questions of law and fact exist as to all members of the proposed Class

and Subclass: all have a right to receive adequate COVID-19 prevention, testing, and treatment.

64. Named Petitioners have the requisite personal interest in the outcome of this action

and will fairly and adequately protect the interests of the class. Petitioners have no interests adverse

to the interests of the proposed class. Petitioners retained pro bono counsel with experience and

success in the prosecution of civil rights litigation. Counsel for Petitioners know of no conflicts

among proposed class members or between counsel and proposed class members.

65. Defendants have acted on grounds generally applicable to all proposed Class

members, and this action seeks declaratory and injunctive relief. Petitioners therefore seek class

certification under Rule 23(b)(2).

66. In the alternative, the requirements of Rule 23(b)(1) are satisfied, because

prosecuting separate actions would create a risk of inconsistent or varying adjudications with

respect to individual class members that would establish incompatible standards of contact for the

party opposing the proposed classes.

V.

ARGUMENT

Petitioner’s Incarceration Amidst the Current COVID-19 Outbreak in Oakdale Violates his/her Right to Constitutional Conditions of Confinement

67. Corrections officials have a constitutional obligation to protect incarcerated people

from a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 828 (1994). Indeed,

under the Eighth Amendment, prison officials “must provide humane conditions of confinement;

. . . must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must

take reasonable measures to guarantee the safety of the inmates[.]” Id. at 832 (internal quotation

marks omitted). This obligation also requires corrections officials to address prisoners’ serious

medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Brown v. Plata, 563 U.S. 493,

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531-32 (2011); Hinojosa v. Livingston, 807 F.3d 657, 666 (5th Cir. 2015) (plaintiff stated an Eighth Amendment claim when Defendants subjected him to conditions “posing a substantial risk of serious harm” to his health).
68. This obligation requires corrections officials to protect incarcerated people from infectious diseases like COVID-19; officials may not wait until someone tests positive for the virus and an outbreak begins. Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition. . . . 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”); Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004) (“It is also important to note that [an] inmate need not show that death or serious illness has [already] occurred.”); 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.”). By then it is too late. That one individual would have almost certainly infected untold numbers of people before displaying symptoms.102
69. Prison officials violate this affirmative obligation by showing “deliberate indifference” to the substantial risk of serious harm. Farmer, 511 U.S. at 828. 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, 36 (holding that a prisoner “states a cause of
102 Goldenson Dec. ¶ 26.
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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”) (emphasis added); see also Ball v. LeBlanc, 792 F.3d 584, 594 (5th Cir. 2015) (court “may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious”) (citing Farmer, 511 U.S. at 842); Hinojosa, 807 F.3d at 667 (“open and obvious nature” of dangerous prison conditions supported an inference of deliberate indifference); Johnson v. Epps, 499 F. App’x 583, 589-92 (5th Cir. 2012) (allegations that prisoner was exposed to “serious, communicable diseases” and that prison officials were aware of the risk and did nothing to prevent it were sufficient to state a claim for violation of Eighth Amendment rights); Gates v. Collier, 501 F.2d 1291, 1300-03 (5th Cir. 1974) (affirming district court’s holding that allowing “[s]ome inmates with serious contagious diseases . . . to mingle with the general prison population,” alongside maintaining a host of other unsanitary and inhumane conditions, “constitute[d] cruel and unusual punishment”) (cited with approval in Rhodes v. Chapman, 452 U.S. 337, 352 n.17 (1981)).
70. Here, COVID-19 is “sure or very likely to cause serious illness,” and even waiting until “next week” to attempt internal mitigation efforts may be too long. See supra ¶¶48-54 (describing Oakdale’s failures to implement social distancing and hygienic practices thus far). In other words, the harmful “condition of confinement” at Oakdale is confinement itself.
71. Indeed, as outlined in Dr. Goldenson’s declaration, there are no mitigation efforts that Oakdale could undertake that would better prevent the risk of contraction—and possible later spread to the non-prison community—than immediate release of the Medically-Vulnerable Subclass and potentially more.103 Accordingly, Oakdale’s failure to do so constitutes deliberate
103 Goldenson Dec. ¶ 26-27.
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indifference. See, e.g., Hare v. City of Corinth, Miss., 74 F.3d 633, 644 (5th Cir. 1996) (“even where a State may not want to subject a detainee to inhumane conditions of confinement or abusive jail practices, its intent to do so is nevertheless presumed when it incarcerates the detainee in the face of such known conditions and practices.”) (emphasis added).
72. As Dr. Goldenson puts it: It is my opinion that the exponential infection of rate for COVID-19 we already see in the community would be magnified within FCI Oakdale. Adequate social distancing would be impossible to maintain. What’s more, the infection in FCI Oakdale would not stay limited to the facility, but would worsen infection rates in the broader community. The death rate will increase substantially before it starts to diminish without major interventions. This is why leaving implementation in the hands of local officials alone, who lack the expertise and resources and were incapable of preventing the outbreak in the first place or treating those who eventually died, is insufficient.
Goldenson Dec. ¶ 26. 28 U.S.C. § 2241 is an Appropriate Vehicle to Remedy these Violations 73. Section 2241(c)(3) allows this court to order the release of inmates like Petitioners
who are held “in violation of the Constitution.” 28 U.S.C. 2241(c)(3); 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.”); Peyton v. Rowe, 391 U.S. 54, 67 (1968) (Section 2241(c)(3) can afford immediate release for claims other than those challenging the sentence itself).
74. While the Fifth Circuit has indicated that “conditions of confinement” claims may not sound in Section 2241, it has not addressed how Section 2241 would apply in the current context, where the “condition” is a lightning-fast pandemic that has already killed five men in the
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prison facility. Therefore immediate release is the only medically and legally sound remedy, rather

than mere mitigation and/or further proceedings.104 Cf. Skinner v. Switzer, 562 U.S. 521, 534

(2011) (preferring Section 1983 to Section 2241 where outcome of challenge is not inevitable)

(citing Heck v. Humphrey, 512 U.S. 477, 487 (1994)); see also Jones v. Cunningham, 371 U.S.

236, 243 (1963) (habeas “is not now and never has been a static, narrow, formalistic remedy”);

Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 CAL. L. REV. 1, 12-14 (an original

purpose of habeas was to rectify systemic violations by state actors).

VI.

CLAIM FOR RELIEF

FIRST CLAIM FOR RELIEF

Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution 28 U.S.C. § 2241
Class including Medically-Vulnerable Subclass versus All Defendants

75. Under the Eighth Amendment, persons in carceral custody have a right to be free

from cruel and unusual punishment. As part of the right, the government must protect incarcerated

persons from a substantial risk of serious harm to their health and safety. See, e.g., Farmer, 511

104 The Fifth Circuit recognizes that “[s]ection 2241 is the proper habeas remedy if a prisoner challenges the execution of his sentence rather than the validity of his conviction and sentence.” Carter v. Sawyer, 54 Fed. App’x. 406 (5th Cir. 2002) (unpublished) (citing United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992)); see also United States v. Gabor, 905 F.2d 76, 77-78 (5th Cir. 1990). Similarly, the Fifth Circuit has long held that the “sole function” of habeas is to “grant relief from unlawful imprisonment or custody,” such as the unconstitutional imprisonment Petitioners are currently enduring. United States v. Pierre, 525 F.2d 933, 935-936 (5th Cir. 1976) (approving the district court’s exercise of habeas jurisdiction to stay exclusion of petitioners because “[s]uch injunctive relief was necessary to enforce the petitioners’ right of liberty, and inhered in the question of custodial restraint upon liberty” and the district court’s decision not to exercise jurisdiction over petitioners’ request for the issuance of work permits because “the collateral relief now sought, on the other hand, is extraneous rather than intrinsic to the central question of the legality of custody.”) (emphasis added). See also Torres v. Chapman, 359 Fed. App’x. 459, 461 (5th Cir. 2009) (unpublished); Moore v. King, No. 08-60164, 2009 WL 122555, *1 (5th Cir. 2009) (per curiam) (unpublished) (“Because Moore does not seek release from custody, his claims are not cognizable in habeas proceeding.”)
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U.S. at 828; Estelle, 429 U.S. at 104. Defendants are aware of the serious risk COVID-19 poses to members of the Class, and particularly members of the Medically-Vulnerable Subclass, yet have failed to take meaningful action to reduce the population of Oakdale and mitigate the risk of harm to the Class members. Defendants are therefore deliberately indifferent to that risk and violate Class members’ constitutional rights.
76. Oakdale has neither the capacity nor the ability to comply with public health guidelines to manage the outbreak of COVID-19 currently ravaging the facility and cannot provide for the safety of the Class.
77. Defendants’ actions and inactions result in the confinement of members of the Class in a prison where Defendants have not followed and seem incapable of following public health guidance regarding social distancing and personal hygiene, and treating or preventing COVID-19 outbreaks and deaths, all of which violates Petitioners’ rights to treatment and adequate medical care.
78. By failing to implement controls necessary to contain the COVID-19 outbreak and stop preventable deaths at Oakdale, Defendants have violated the Eighth Amendment rights of the Class and particularly the Medically-Vulnerable Subclass.

VII.

REQUEST FOR RELIEF

79. Petitioners and Class Members respectfully request that the Court order the

following:

1. Certification of this Petition as a Class Action;

2. A temporary restraining order, preliminary injunction, permanent

injunction, and/or writ of habeas corpus requiring Defendants to immediately release all

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Medically-Vulnerable Subclass Members, with supports to ensure social distancing and other expert-recommended measures to prevent the spread of coronavirus;
3. Following immediate release of all Medically-Vulnerable Subclass Members, a plan, to be immediately submitted to the Court and overseen by a qualified public health expert pursuant to Fed. R. Evid. 706, which outlines:
i. Specific mitigation efforts, in line with CDC guidelines, to prevent, to the degree possible, contraction of COVID-19 by all Class Members not immediately released;
ii. A housing and/or public support plan for any released Class or Subclass Members for whom testing confirms exposure to or infection with COVID-19 and who do not readily have a place to self-isolate for the CDC-recommended period of time (currently 14 days).
4. All further action required to release Class Members outside the Medically-Vulnerable Subclass to ensure that all remaining persons are incarcerated in Oakdale under conditions consistent with CDC guidance to prevent the spread of COVID-19, including requiring that all persons be able to maintain six feet or more of space between them;
5. If immediate release is not granted on the basis of this Petition alone, then expedited review of the Petition, including oral argument, via telephonic or videoconference if necessary;
6. A declaration that Oakdale’s policies violate the Eighth Amendment right against cruel and unusual punishment with respect to the Class; and
7. Any further relief this Court deems appropriate.
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Dated: April 6, 2020
Respectfully submitted,
Katie Schwartzmann, La no. 30295 Bruce Hamilton, La no. 33170 ACLU-F of Louisiana P.O. Box 56157 New Orleans, La 70156 (504) 522-0628 kschwartzmann@laaclu.org bhamilton@laaclu.org
David Luger* Hannah O. Koesterer* KATTEN MUCHIN ROSENMAN LLP
525 W. Monroe St. Chicago, IL 60661 david.luger@katten.com hannah.koesterer@katten.com
Ryan J. Meyer* KATTEN MUCHIN ROSENMAN LLP
2121 Pearl St., Ste. 1100 Dallas, TX 75201
ryan.meyer@katten.com *pro hac vice applications forthcoming

/s/ Somil Trivedi Somil Trivedi*
Jennifer Wedekind* AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 915 15th St., NW Washington, DC 20005 *pro hac vice applications forthcoming
Andrea Woods* Brandon Buskey* Meredith Taylor Brown*
Gabriel Arkles* AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad St. New York, NY 10004 Tel. (212) 549-2500 awoods@aclu.org *pro hac vice applications forthcoming
Attorneys for Petitioners

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Case 2:20-cv-00422-TAD-KK Document 1-2 Filed 04/06/20 Page 1 of 1 PageID #: 33

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

BRANDON LIVAS, RICHARD BUSWELL, DEWAYNE CORBETT, JOHNNY SMITH, CARLOS LORENZO MARTIN, and GAINES ANDREWS, on behalf of themselves and those similarly situated,

Case No.
Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief

Petitioners, v.

Class Action

RODNEY MYERS, warden of Oakdale Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

IMMEDIATE RELIEF SOUGHT

Respondents

DECLARATION OF SOMIL TRIVEDI

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the following is true

and correct to the best of my knowledge and belief:

1. My name is Somil Trivedi. I am a Senior Staff Attorney for the American Civil Liberties

Union and am counsel for the Petitioners in this case. I make this declaration in support of

Petitioners’ Petition for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory

Relief.

2. Attached hereto are true and correct copies of the following materials, identified as

numbered exhibits in the Petition:

Ex. 1:

Declaration of Joe Goldenson, MD

Ex. 2:

Declaration of Richard Buswell

Ex. 3:

Declaration of Gaines Andrews

Dated:

April 6, 2020

/s/ Somil Trivedi Somil Trivedi

Case 2:20-cv-00422-TAD-KK Document 1-3 Filed 04/06/20 Page 1 of 10 PageID #: 34
EXHIBIT 1

Case 2:20-cv-00422-TAD-KK Document 1-3 Filed 04/06/20 Page 2 of 10 PageID #: 35
Declaration of Joe Goldenson, MD 1. I am a medical physician with 33 years of experience in correctional health care. For
28 years, I worked for Jail Health Services of the San Francisco Department of Public Health. For 22 of those years, I served as the Director and Medical Director. In that role, I provided direct clinical services, managed public health activities in the San Francisco County jail, and administered the correctional health enterprise, including its budget, human resources services, and medical, mental health, dental, and pharmacy services.
2. I served as a member of the Board of Directors of the National Commission on Correctional Health Care for eight years and was past President of the California chapter of the American Correctional Health Services Association. In 2014, I received the Armond Start Award of Excellence from the Society of Correctional Physicians, which recognizes its recipient as a representative of the highest ideals in correctional medicine.
3. For 35 years, I held an academic appointment as an Assistant Clinical Professor at the University of California, San Francisco.
4. I have worked extensively as a correctional health medical expert and court monitor. I have served as a medical expert for the United States District Court for the Northern District of California for 25 years. I am currently retained by that Court as a medical expert in Plata v. Newsom, Case No. 3:01-cv-01351 (N.D. Cal.), to evaluate medical care provided to inmate patients in the California Department of Correctional Rehabilitation. I have also served as a medical expert/monitor at Cook County Jail in Chicago and Los Angeles County Jail, at other jails in Washington, Texas, and Florida, and at prisons in Illinois, Ohio, and Wisconsin.
The nature of COVID-19 5. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease,
is a global pandemic and has been termed a global health emergency by the WHO. Cases first began appearing sometime between December 1, 2019 and

Case 2:20-cv-00422-TAD-KK Document 1-3 Filed 04/06/20 Page 3 of 10 PageID #: 36
December 31, 2019 in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City. 6. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus which caused the 2002-2003 SARS epidemic. 7. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.3 to 3.5%, which is 5-35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are self-limited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support. 8. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardio-vascular disease, respiratory disease, diabetes, and immune compromise. 9. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS) which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China. 10. COVID-19 is widespread. Since it first appeared in Hubei Province, China, in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents, heavily affected countries include Italy, Spain, Iran, South

Case 2:20-cv-00422-TAD-KK Document 1-3 Filed 04/06/20 Page 4 of 10 PageID #: 37
Korea, and the US. The U.S. is now the world’s most affected country. As of April 3, 2020, there have been 972,303 confirmed human cases globally and 50,322 known deaths. The pandemic has been termed a global health emergency by the WHO. It is not contained and cases are growing exponentially. 11. In the United States alone, the CDC reports 239,279 cases and 5,443 deaths as of April 3, 2020. The Louisiana Department of Health reports 10,297 cases and 370 dead as of April 3. All these numbers are likely underestimates because of limited availability of testing. 12. SARS-nCoV-2 is now known to be fully adapted to human-to-human spread. This is almost certainly a new human infection, which also means that there is no preexisting or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities. 13. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again is likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20-30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2-14 days, which is why isolation is generally limited to 14 days. 14. There is currently no vaccine for COVID-19, and no cure. The only know ways to prevent the spread of SARS-nCoV-2 involve measures such as thorough

Case 2:20-cv-00422-TAD-KK Document 1-3 Filed 04/06/20 Page 5 of 10 PageID #: 38
handwashing, frequent decontamination of surfaces, and maintaining six feet of physical distance between individuals (“social distancing”).
The risks of COVID-19 in detention facilities 15. COVID-19 poses a serious risk to prisoners, workers, and anyone else in
detention facilities. Detention facilities, including prisons like Oakdale, have long been associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis. 16. The severe epidemic of Tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of Tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities surrounding a prison. 17. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as social distancing and proper decontamination of surfaces is virtually impossible. 18. For example, several deaths were reported in the US in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May 2019. 19. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases. These include physical/mechanical risks such as overcrowding; population density in close confinement; insufficient ventilation; shared toilet, shower, and eating environments; and limits on hygiene and personal protective equipment

Case 2:20-cv-00422-TAD-KK Document 1-3 Filed 04/06/20 Page 6 of 10 PageID #: 39
such as masks and gloves in some facilities. Limits on soap (copays are common) and hand sanitizer, since they can contain alcohol, are also risks for spread. 20. Additionally, the high rate of turnover and population mixing of staff and detainees 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. The current outbreak in the detention facility of Riker’s Island in New York City is an example—and in the first days of that outbreak, the majority of cases were among prison staff, not inmates. 21. In addition to the nature of the prison environment, prison and jail 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 death or severe illnesses after infection from COVID-19 disease. 22. While every effort should be made to reduce exposure in detention facilities through internal mitigation efforts, this may be extremely difficult to achieve and sustain quickly enough. 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. 23. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are inevitable, as evidenced in Oakdale. Releasing as many inmates as possible is important to protect the health of inmates, correctional facility staff, health care workers at jails and other detention facilities, the community as a

Case 2:20-cv-00422-TAD-KK Document 1-3 Filed 04/06/20 Page 7 of 10 PageID #: 40
whole. Indeed, according to the World Health Organization, “enhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”1 24. From news reports, it is my understanding that 5 prisoners have died at FCI Oakdale. 18 detainees and 17 staff members have COVID-19, and that dozens more have symptoms. Even these dozens may represent the tip of the iceberg, since newly-infected people typically do not show symptoms for 2-14 days, and since the infection spreads rapidly to additional people. News outlets have reported that four detainees have already died from COVID-19 in FCI Oakdale. Given the way the disease has progressed elsewhere, we can expect the death toll to mount rapidly. 25. It is my understanding that FCI Oakdale has five open bay / dorm housing units, eight housing units with multiple-occupancy cells, and no housing units with single occupancy cells, but a number of segregation units. It also my understanding that FCI Oakdale may have upward of 100 new admissions in a given month and roughly 1,700 detainees in the facility on any given day; that staff that enter and leave the facility regularly; and that detainees share restroom and shower facilities and eat communally prepared food. 26. Based on these understandings, it is my opinion that the exponential infection of rate for COVID-19 we already see in the community would be magnified within
1 World Health Organization, Regional Office for Europe, Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance (Mar. 15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-of-COVID-19in-prisons.pdf.

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FCI Oakdale. Adequate social distancing would be impossible to maintain. What’s more, the infection in FCI Oakdale would not stay limited to the facility, but would worsen infection rates in the broader community. The death rate will increase substantially before it starts to diminish without major interventions. This is why leaving implementation in the hands of local officials alone, who lack the expertise and resources and were incapable of preventing the outbreak in the first place or treating those who eventually died, is insufficient. 27. It is my public health recommendation that everyone who is medically-vulnerable to severe symptoms and death from COVID-19, as defined in this lawsuit,2 be released from FCI Oakdale immediately, taking precautions that they are released to a place where they can maintain medically appropriate isolation for at least 14 days and receive any necessary and available testing healthcare for underlying chronic conditions. 28. It is my public health recommendation that a public health expert be appointed to oversee operations related to preventing further spread of COVID-19 in FCI Oakdale, which may include authorizing further staggered release of detainees until it is possible to maintain consistent social distancing and appropriate hygiene within the facility.
2 “Persons held at Oakdale over the age of 50 , as well as all current and future persons held at Oakdale of any age who experience (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.”

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Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 5th day of April 2020 in Alameda County, CA __________________________________ Joe Goldenson, MD References
1. Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016.
2. Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85.
3. Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447.
4. Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344.
5. Nakamoto Group, Prison Rape Elimination Act Audit Report of FCC Oakdale (2017), https://www.bop.gov/locations/institutions/oak/OAK_prea.pdf.

Case 2:20-cv-00422-TAD-KK Document 1-3 Filed 04/06/20 Page 10 of 10 PageID #: 43
6. Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)30663-8. doi: 10.1016/S0140-6736(16)30663-8
7. Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151.

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EXHIBIT 2

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Declaration of Richard Buswell 1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons Register Number is 15618035. I previously pleaded guilty to one count of conspiracy to commit wire fraud and one count of distribution of synthetic marijuana. I received a 10-year sentence for the wire fraud charge and a consecutive 8-year sentence for the marijuana charge. 2. I am 51-years-old and I have a number of serious chronic medical conditions. I have high blood pressure, which I treat with medication. I have asthma, which I treat with an albuterol inhaler. I also have sleep apnea, which requires me to use a Continuous Positive Airway Pressure (CPAP) machine to sleep at night. 3. I am concerned that I already have coronavirus or COVID-19, or that I will get it very soon. 4. It is impossible for inmates at Oakdale to stay six feet away from each other. To make phone calls, inmates must stand within two feet of each other because the phones are so close. For approximately 125 men, we have eight working sinks, which are no more than two feet apart. There are only five or six working showers. We have eight working toilets, which are very dirty. 5. There is no liquid soap in the individual soap dispensers and we only have access to communal bar soap, which is filthy. We do not have access to hand sanitizer or clean hand towels. Laundry is done only twice a week. 6. Most of the prison staff has very little access to personal protective equipment. Even when they do have access, they often do not wear masks or gloves. A member of the prison medical staff takes inmates’ temperatures every day, but they wear the same pair of gloves for every inmate, which puts us at risk of cross-contamination.
1

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7. Three Oakdale staffers that I interacted with have tested positive for coronavirus. Many prison staffers work at the prison hospital and then come to the Camp. Several prison staffers have told me that it’s just a matter of time until we get coronavirus and get sick, and that there is nothing they can do for us. The prison is constructing hospital tents in the recreation yard. The prison staff is overworked and they are just as confused and scared as the inmates. I am concerned about the prison staff’s safety as well as the inmates’.
8. Approximately one week ago, I submitted a request for emergency furlough. I have not received a response. I spoke to my case manager about my request. She told me she was too overwhelmed to deal with it and did not provide me any further guidance. She told me she thought that the inmates at Oakdale probably already have coronavirus or COVID-19 and she believes she already has it as well, which made me very worried.
9. I work in food service and help prepare meals for the inmates. I am housed at the Camp and prepare meals for the inmates at FCI Oakdale. Since Oakdale went on lockdown, I have been preparing bag lunches for inmates. We are preparing bag lunches because we don’t have enough food to meet the usual requirements. We cannot get any food into the prison and we were not prepared for this. Prison officials are trying to get more food. I estimate we have enough food to last 30 to 40 days.
10. The three prison staffers I interacted with who tested positive for coronavirus also helped prepare bag lunches for inmates. They appeared to be very sick while they were working and handling food in close quarters for an eight-hour shift. One staff member in particular was coughing, sweating, and seemed very sick.
2

Case 2:20-cv-00422-TAD-KK Document 1-4 Filed 04/06/20 Page 4 of 4 PageID #: 47 I, Somil Trivedi, certify that I reviewed the information contained in this declaration with
Mr. Buswell by telephone on April 5, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge. ________________________________ Somil Trivedi American Civil Liberties Union 915 15th Street, NW, Washington, DC 20005 202.715.0802 strivedi@aclu.org
3

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EXHIBIT 3

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Declaration of Gaines Andrews 1. I am currently incarcerated at FCI Oakdale II. My Bureau of Prisons Register Number is 44677379. I previously pleaded guilty to one count of conspiracy to distribute methamphetamine and received a 10-year sentence. 2. I am 39 years old. I am a longtime smoker and I have asthma. 3. I am the head of maintenance and frequently make deliveries to FCI Oakdale I. The prison is building tent camps in the yard. I personally built frames to hold oxygen tanks. We are also building bunk houses and showers for prison guards who are dealing with the outbreak crisis. We are working seven days a week. 4. We do not have enough personal protective equipment. We are able to get masks once per day if we ask, but they are not N95 masks. 5. Prison staff knew about this virus in January. Despite knowing about it, the prison directed maintenance to rip out half of the showers because they wanted to install new ones. The person in charge of building the new showers is retiring today. 6. Many prison guards are quitting or retiring rather than being assigned to FCI Oakdale I. I, Somil Trivedi, certify that I reviewed the information contained in this declaration with Mr. Andrews by telephone on April 5, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
________________________________ Somil Trivedi American Civil Liberties Union 915 15th Street, NW, Washington, DC 20005 202.715.0802 strivedi@aclu.org
1

 
 Case 2:20-cv-00422-TAD-KK Document 5 Filed 04/07/20 Page 1 of 3 PageID #: 71
MINUTES OF PROCEEDING TERRY A. DOUGHTY U.S. DISTRICT JUDGE APRIL 7, 2020

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL.

CIVIL ACTION NO. 2:20-CV-00422

VERSUS

JUDGE TERRY A. DOUGHTY

RODNEY MYERS, ET AL.

MAG. JUDGE KATHLEEN KAY

******

Plaintiffs filed a Complaint in the above-referenced matter on April 6, 2020. In that

Complaint, they raised time-sensitive claims and requested injunctive relief. As a result, the

Court set a telephone conference for April 7, 2020, at 2:00 p.m.

The undersigned conducted the telephone status conference at the appointed time.

Plaintiffs were represented by attorneys Bruce Hamilton, Somil Trivedi, and Jennifer Wedekind.

Defendants appeared through and were represented by trial counsel, Assistant United States

Attorney Karen King, and Assistant United States Attorney Katherine Vincent. Also

participating was Jason Sickler, Regional Counsel for the Bureau of Prisons (“BOP”). Also

present were Kayla Dye McClusky, Law Clerk, and Amy Crawford, Courtroom Deputy.

Mr. Traveti noted that Plaintiffs have not yet filed a separate motion for a temporary

restraining order or for preliminary injunctive relief because they would like to attempt to

resolve the issues raised through a collaborative process with the BOP and counsel.

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Ms. King noted that the Cares Act expanded the number of inmates who may be eligible for release or removal from the Oakdale facilities and that the memorandum issued by Attorney General Barr addressing the Cares Act only issued on Friday, April 3, 2020. Prior to the April 3rd memorandum, Oakdale had identified three inmates who could be removed under the limited authority then available. Mr. Sickler indicated that those three inmates have been further isolated from the prison population for a fourteen-day period in an effort to ensure that they do not have the corona virus and to prevent further spread.
Mr. Sickler reported a number of steps that have been taken at Oakdale to stop or slow down the spread of the virus, including, among others, temperature checks of staff and inmates, the issuance of soap to inmates, quarantining of inmates who have been exposed to the corona virus, the provision of surgical masks to inmates on a daily basis, isolating inmates who become ill, and the increase of staff to address medical needs.
Counsel for all parties agreed that inmates must be assessed on a case-by-case basis to determine eligibility for release of some type, removal to other locations, or furlough. The Director of the BOP is currently working on guidance for the facilities to use for these assessments. While Plaintiffs’ counsel would agree to a mediation on these issues, Ms. Vincent stated that they did not currently have authority for mediation. Defendants’ counsel also expressed concern that mediation could further slow the process at this point.
However, Defendants’ counsel agreed to provide the Court under seal the name of the three inmates who were previously identified for removal from Oakdale as soon as possible. They further agreed to provide the framework or guidance under which decisions are being made as to the release, removal, or furlough of prisoners by noon on Friday, April 10, 2020.

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Plaintiffs’ counsel intends to review the provided information before making a decision to file a motion for injunctive relief. Counsel all indicated that they are available next week for a hearing by videoconference, if necessary.
The conference ended at 3:05 p.m. TAD

 
 Case 2:20-cv-00422-TAD-KK Document 8 Filed 04/10/20 Page 1 of 13 PageID #: 81

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, RICHARD BUSWELL, DEWAYNE CORBETT, JOHNNY SMITH, CARLOS LORENZO MARTIN and GAINES ANDREWS, on behalf of themselves and those similarly situated
VERSUS
RODNEY MYERS, Warden of Oakdale Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities

) CIVIL ACTION NO. 20-cv-00422 ) ) ) ) ) ) JUDGE DOUGHTY ) ) ) MAGISTRATE JUDGE KAY ) ) ) )

BOP’S COVID-19 INMATE REVIEW UPDATE Pursuant to a Conference held between the parties and the Court (Doc. 5), the Bureau of Prisons (“BOP”) provides the following information regarding the framework or guidance under which decisions are being made as to the release, removal, or furlough of prisoners at the Federal Correctional Complex-Oakdale (“FCC Oakdale”):

Background

FCC Oakdale is comprised of three separate men’s prison facilities. See Declaration of Juan A. Segovia, Associate Warden, Federal Medical Center, Forth Worth, Texas dated April 10, 2020 (“Segovia Decl.”), attached hereto as Exhibit 1. The complex includes two low security facilities: FCI Oakdale I and FCI Oakdale II, and a minimum security facility: the Satellite Prison Camp (“the Camp”). Segovia

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Decl. ¶2. FCI Oakdale I houses approximately 970 inmates in six housing units. Id. at ¶4. Three of the housing units have separately secured cells, while the remaining three housing units are dormitory style, with sleeping bunks arranged in cubicles. Id. FCI Oakdale II houses approximately 760 inmates, all in the traditional cell units with separately secured cells. Id. at ¶9. The Camp houses 123 inmates in a single, dormitory-style unit, similar to the dormitory units in FCI Oakdale I. Id. at ¶7.
The BOP is charged with the care, custody, and control of incarcerated individuals and is not empowered to reduce or modify criminal sentences imposed by courts, or to unilaterally release inmates. Congress has left such decisions, to modify or reduce inmates’ sentences, to their original sentencing courts. See 18 U.S.C. § 3582. The BOP’s role in sentence reduction or modification proceedings involves the potential to move the sentencing court for a reduction in sentence on an inmate’s behalf in certain circumstances. 18 U.S.C. § 3582(c)(1)(A). BOP has set forth the guidelines under which it will make such a motion in its Program Statement 5050.50, “Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g).” (Available at https://www.bop.gov/policy/progstat/5050_050_EN.pdf). Segovia Decl. ¶14.
Although the BOP is not empowered to modify an inmate’s sentence, Congress has provided the Attorney General and Bureau of Prisons with wide discretion in determining where to confine inmates. See 18 U.S.C. § 3621. Both placement in a RRC (also called a halfway house) and home confinement are forms
2

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of confinement, not actual releases from custody. See 18 U.S.C. § 3624(c). Placement in a halfway house and/or home confinement is discretionary. See 18 U.S.C. § 3621(c) (“Such conditions may include a community correctional facility” and “[t]he authority under this subsection may be used to place a prisoner in home confinement.”) (emphasis added). While providing a framework of factors to consider inmate placement, Congress also affirmed the breadth of the agency’s discretion in such matters, noting that even sentencing court orders regarding inmate placement in a community correction facility “shall have no binding effect,” and that “a designation of a place of imprisonment under this subsection is not reviewable by any court.” 18 U.S.C. § 3621(b)(5). Segovia Decl. ¶17.
The BOP’s Action Plan
The BOP began preparing for the coronavirus in January 2020 by obtaining guidance from its Health Services Division regarding the disease, existing outbreaks, and best practices to mitigate transmission. See Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp. An agency task force also worked with the Centers for Disease Control (“CDC”) and reviewed guidance from the World Health Organization (“WHO”). Phase II of the BOP’s Action Plan was announced on March 13, 20201. Id. National measures were made effective immediately across the BOP which included:
• Screening of Inmates and Staff;
1 FCI Oakdale I received its first positive COVID-19 test result on March 21, 2020 and has been on lockdown since that time. Segovia Decl. at ¶4.
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• Restriction on Contractor Access; • Suspension of Social Visits/Tours; • Suspension of Legal Visits; • Suspension of Inmate Movements; and • Modified Operations to maximize social distancing.
On March 31, 2020, the BOP announced that additional measures would be taken in response to the number of quarantine and isolation cases in its facilities. See COVID-19 Action Plan: Phase Five, https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp. Effective April 1, 2020, the BOP instituted a 14-day period of containment for inmates, wherein inmates were secured in their assigned cells/quarters to decrease the spread of the virus, with limited exceptions for programming, health and educational services. Id.
The Attorney General’s March 26, 2020 Memo
The U.S. Attorney General (“AG”) issued a memorandum to the BOP directing, where appropriate, that the BOP utilize home confinement “to protect the health and safety of BOP personnel and the people in our custody.” Attorney General Memorandum to the BOP dated March 26, 2020, attached hereto as Exhibit 2. Specifically, the AG directed the BOP to “prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.” Id. However the AG noted that many inmates would be safer in BOP facilities due to the controlled population and access to medical care. Id.
4

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As such, the prioritization of home confinement was conditioned upon careful, individualized determinations made by BOP staff to include certain discretionary factors such as: (1) age and vulnerability to COVID-19; (2) facility security level; (3) prison conduct; (4) minimum PATTERN score; (5) demonstrated and verifiable reentry plan to prevent recidivism and maximize public safety (lower risk of contracting COVID-19 upon release, than at BOP facility); and (6) crime of conviction and risk posed by the inmate to the community. Id. Additionally, the AG directed that a medical assessment be conducted to assess the inmate’s COVID-19 risk factors, the associated risks at the inmate’s facility, as well as the risks at the location of potential home confinement. Id. Moreover, the list of discretionary factors was non-exhaustive. The AG specifically noted that it is incumbent upon the BOP not to take any action that would contribute to the spread of COVID-19, or put the public at risk. Id.
The Attorney General’s April 3, 2020 Memo
On April 3, 2020, the AG issued a second memorandum to the BOP regarding the use of home confinement. See Attorney General Memorandum to the BOP dated April 3, 2020, attached hereto as Exhibit 3. Pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), the AG made a finding of emergency conditions which are materially affecting the function of the BOP. Id.; see also, Segovia Decl. ¶19. This finding allowed the AG to expand the cohort of inmates who can be considered for home confinement. Id. Thus, all at-risk inmates could now be considered for home confinement, rather than just inmates who were previously
5

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eligible for transfer (inmates with 10 percent of prison term remaining or 6 months). Id. The AG also recognized that indiscriminately releasing inmates, “would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses.” Id.; see also, Segovia Decl. ¶13.
Conditions at FCC Oakdale FCC Oakdale I has taken numerous steps to mitigate the spread of COVID19 at each of its facilities. Inmate orderlies have been deployed on a 24-hour basis to disinfect, using appropriate cleaning chemicals, all such facilities after each use. This is in addition to daily surgical mask, soap, and disinfectant cleaning supplies being available to every inmate in the complex. A variety of additional soap and other hygiene items have been and remain available for inmate purchase. Orderlies are also assigned to disinfect all other communal use items, such as telephones and computers, after each use by the inmates. All inmates are also being monitored by medical staff daily, including temperature checks. Segovia Decl. ¶¶ 4, 8, 9. FCI Oakdale is being used for quarantine and isolation related to COVID-19. Inmates exhibiting symptoms of the virus are placed on the isolation floor and tested for the virus. Inmates exposed to a symptomatic or a positive COVID-19 person are placed on the quarantine floor. Segovia Decl. ¶¶ 5, 6. There is also postquarantine housing, where those cleared from the quarantine are further separated for an additional time to monitor their condition and ensure their safety. Id. at ¶6.
6

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There have been forty-nine COVID-19 positive inmates at FCI Oakdale I, eighteen hospitalizations, and six fatalities. Id. at ¶4. The Camp has had one confirmed positive COVID-19 inmate, who was removed to isolation at FCI Oakdale I on April 2, when he began displaying symptoms. Id. at ¶7. There was one suspected positive inmate at FCI Oakdale II, however, he was transferred to a local hospital and remains there pending test results. Id. at ¶9. Finally, there have been 17 staff members who have tested positive for COVID-19. Id. at ¶10. Nineteen other staff members are quarantined away from the complex, awaiting test results. Id.
Release or Transfer of Inmates The BOP continues to consider the use of compassionate release for appropriate inmates who have existing terminal and debilitating medical conditions, or who are elderly and nearing the end of their sentence, as provided for in Program Statement 5050.50. Segovia Decl. ¶15. FCC Oakdale staff have received a number of requests for consideration for a reduction in sentence motion. Id. Staff continue processing those requests and attempt to do so quickly in light of the current circumstances. Id. Recent changes in the law also allow an individual inmate to make such a motion for reduction in sentence or compassionate release with their sentencing court for their current conviction, even if the BOP has not decided to make such motion on their behalf. 18 U.S.C. § 3582(c)(1)(A). Inmates at FCC Oakdale, and at other facilities, have recently availed themselves of this option. At least five FCC Oakdale inmates have recently filed such motions and, after their sentencing courts
7

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made the appropriate individualized decisions, have been granted their requested sentence reductions. Segovia Decl. ¶16.
Pursuant to the March 26, 2020 memorandum from the Attorney General, the BOP has prioritized the consideration of home confinement, which has the potential to remove someone from the prison population faster, as a response to the COVID-19 pandemic. Inmates at FCC Oakdale were considered for home confinement under the terms of this memo. Three were thought likely to be approved and were transferred to quarantine in the special housing unit, pending final determination. As noted in the BOP’s notice to the Court filed on April 9, 2020, one of these three was later determined to be ineligible due to a history of sex crimes, one is waiting out his quarantine pending transfer, and one is being rereviewed based on updated guidance discussed below. Segovia Decl. ¶ 18.
Based upon the AG’s finding of emergency conditions pursuant to the CARES Act, discussed above, guidance on implementation of home confinement was initially provided by the BOP’s Central Office, recommending initial review for placement in home confinement of inmates who meet the following nine criteria: 1) Primary Offense is not violent; 2) Primary Offense is not sex offense; 3) Primary Offense is not terrorism; 4) No detainer; 5) Mental Health Care Level is less than IV; 6) PATTERN (BOP’s new risk and needs assessment tool) score is MIN; 7) BRAVO (BOP’s existing risk evaluation tool) score is LOW or MIN; 8) Completed at least 50% of their sentence; and 9) No Incident Reports in the past 12 months. Segovia Decl. ¶19.
8

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Based on this initial set of nine criteria, late on April 6, 2020, the BOP’s Office of Research and Evaluation identified 4,013 inmates nationwide to be the first cohort reviewed under the extended home confinement timeframe. Of these 4,013 inmates, fifty-eight are currently housed at FCC Oakdale. This review would ordinarily be done by case management staff at FCC Oakdale. However, circumstances made this a challenge, with a leader in this department being out under quarantine, and other staff having to perform ancillary custody functions to ensure basic needs, orderly operations, safety, and security are provided to FCC Oakdale inmates. On April 8, 2020, AW Segovia began marshalling resources pulling from temporary staff with experience in case management, seeking remote assistance from other facilities, and freeing up FCC Oakdale’s existing case management staff by transferring their emergent custody responsibilities to other temporary staff. FCC Oakdale focused on the Camp and FCI Oakdale I inmates, because of COVID-19 cases from those facilities. They have since reviewed thirtyfour of the fifty-eight originally-listed inmates. Segovia Decl. ¶20.
Acting upon additional guidance from the BOP’s Regional Office Staff, on the afternoon of April 9, the reviewing staff have also expanded the criteria, removing the eighth factor, consideration of whether inmates in low or minimum facilities have served 50% of their sentence. Accordingly, staff reviewed an additional 90 inmates for home confinement eligibility. So far, ten additional inmates have been determined to be potentially eligible and they have already been placed in special housing or will be placed there shortly, allowing them to begin the 14-day pre-
9

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transfer quarantine. Of those reviewed, the most common reasons for ineligibility appear to be history of previous violence or sex offenses. Segovia Decl. ¶21.
The primary factors being used to prioritize consideration by BOP staff, including prison disciplinary history, PATTERN score, violence or sex crime history, and classification level, come directly from the Attorney General’s March 26th Memorandum. In his April 3rd Memorandum, the Attorney General reiterated that BOP’s expanded consideration of inmates for home confinement should continue to be guided by those factors. AW Segovia has checked the BOP’s records for each of the named petitioners in this matter to determine whether they are likely to be reviewed for consideration under the Attorney General’s expansion of home confinement eligibility. Individual Petitioners Livas, Martin, Andrews, and Corbett have PATTERN risk recidivism scores above minimum, removing them from priority consideration. Petitioner Smith is ineligible due to his current offenses, involving the production and possession of child pornography. Finally, based on the new April 9th expanded criteria, Petitioner Buswell appears to be eligible and will be given priority review for home confinement. Segovia Decl. ¶22.
Once reviews are completed for the initial list of FCC Oakdale inmates designated for priority consideration by the Attorney General’s memorandum, it is anticipated that the institution may consider expanding the criteria for review. AW Segovia further anticipates coordinating with medical staff at FCC Oakdale to continue additional reviews for inmates with the highest COVID-19 medical risk,
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per CDC guidelines, who might not have met the previous criteria. Segovia Decl. ¶23.
Placement in RRC or home confinement, once approved, still requires a number of factors to be satisfied prior to implementation. For example, the release plan needs to be evaluated by the appropriate United States Probation Office. In order to facilitate faster removal of approved inmates from the prison facility, the BOP has provided its Wardens with additional guidance allowing the use of nontransfer furloughs up to 30 days in length in specific circumstances. As inmates are approved for home confinement through the above-described review process, they may also be considered for such a furlough if they meet the criteria. Segovia Decl. ¶24.
The BOP staff at FCC Oakdale, and across the region, are working very hard to protect all from the effects of the current pandemic. In addition to the specific COVID-19 remediation measures outlined above, the BOP is continually working to reduce populations at affected facilities. Within the discretion provided to the agency by Congress, the BOP staff continue to identify, evaluate, and place appropriately-situated inmates in halfway houses or home confinement, removing them from prison facilities. The BOP also continues to work with sentencing courts on sentence reductions and compassionate release motions, as appropriate. Segovia Decl. ¶25.
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Respectfully submitted,

DAVID C. JOSEPH United States Attorney

BY: s/ Karen J. King

KAREN J. KING (#23508)

KATHERINE W. VINCENT (#18717)

Assistant United States Attorney

800 Lafayette Street, Suite 2200

Lafayette, Louisiana 70501

Telephone: (337) 262-6618

Facsimile: (337) 262-6693

Email:

karen.king@usdoj.gov

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 10th day of April, 2020, a copy of the above

and foregoing BOP’s COVID-19 INMATE REVIEW UPDATE was electronically filed

with the Clerk of the Court using the CM/ECF system. I also certify that I have

forwarded this filing via email to all known counsel of record:

Katie M. Schwartzmann Bruce Hamilton ACLU Foundation of Louisiana P. O. Box 56157 New Orleans, LA 70156 Email: kschwartzmann@laaclu.org Email: bhamilton@laaclu.org

David Luger Hannah O. Koesterer Katten Muchin Rosenman LLP 525 W. Monroe Street Chicago, IL 60661 Email: david.luger@katten.com Email: hannah.koesterer@katten.com

Ryan J. Meyer Katten Muchin Rosenman LLP 2121 Pearl Street, Suite 1100 Dallas, TX 75201 Email: ryan.meyer@katten.com

Somil Trivedi Jennifer Wedekind

Andres Woods Brandon Buskey

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American Civil Liberties Union Foundation 915 15th Street, NW Washington, DC 20005 Email: strivedi@aclu.org

Meredith Taylor Brown Gabriel Arkles American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Email: awoods@aclu.org
s/ Karen J. King KAREN J. KING (#23508) Assistant United States Attorney

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GOVERNMENT EXHIBIT
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GOVERNMENT EXHIBIT
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GOVERNMENT EXHIBIT
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

BRANDON LIVAS, RICHARD BUSWELL, DEWAYNE CORBETT, JOHNNY SMITH, CARLOS LORENZO MARTIN, and GAINES ANDREWS, on behalf of themselves and those similarly situated,

Civil Action No. 2:20-CV-00422 Judge Terry A. Doughty

Petitioners, v.

Magistrate Judge Kathleen Kay

RODNEY MYERS, warden of Oakdale Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Respondents.

PETITIONERS’ EMERGENCY MOTION FOR RELEASE OF VULNERABLE AND LOW-RISK PRISONERS FROM OAKDALE NOW INTO COURT COME Petitioners in the above-captioned matter, through undersigned counsel, who move this Honorable Court to issue a Temporary Restraining Order (“TRO”) that includes the following relief: (1) A temporary restraining order and/or preliminary injunction requiring Defendants to identify all Medically-Vulnerable Subclass Members within forty-eight (48) hours of the Court’s order; a. For any Medically-Vulnerable Subclass Member whose release Defendants would like to
challenge, Defendants must also present evidence within the same forty-eight (48) hour period that such individual presents such a serious risk of flight or imminent physical danger to others, even during home confinement and while Louisiana’s stay-at-home order remains in place, that no other conditions can mitigate that risk; b. Following this submission, the Magistrate Judge in this action will determine within fortyeight (48) hours whether Defendants have shown by clear and convincing evidence that Defendants’ evidence of a serious risk of flight or imminent physical danger, even during

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home confinement and while Louisiana’s stay-at-home order remains in place, substantially outweighs the risk of COVID-19 contraction at Oakdale; c. The Court will immediately release all such persons for whom Defendants have not made the required showing;
(2) A temporary restraining order and/or preliminary injunction requiring Defendants to provide all persons released with educational resources on COVID-19 including instructions that they should self-isolate for the CDC-recommended period of time (currently 14 days) following release; (3) A preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Defendants to:
a. Continue to release all current and future Medically-Vulnerable Subclass members absent the showing described above in paragraph (1);
b. Report weekly on the population of persons in Oakdale who are Medically-Vulnerable as defined in this action;
c. Release additional Class Members, including those not considered Medically-Vulnerable, as needed to ensure that all remaining persons incarcerated at Oakdale are under conditions consistent with CDC and public health guidance to prevent the spread of COVID-19, including requiring that all persons be able to maintain social distancing; and
(4) A declaration that Oakdale’s policies violate the Eighth Amendment right against cruel and unusual punishment with respect to the Class Members.
The outbreak of COVID-19 at Oakdale federal correctional institutions I and II (“Oakdale”) has already claimed the lives of six people incarcerated there.1 At least 50 prisoners and 17 staff members have tested positive.2 More people are falling sick every day. Yet Respondents’ efforts to stem the outbreak have been far too little, far too late, and their newly
1 BOP’s COVID-19 Inmate Review Update, April 10, 2020, Dkt. No. 8 at 7 (“Inmate Update”). 2 Id.
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produced “plan” does nothing to achieve the social distancing that experts agree is necessary to prevent further suffering. Accordingly, Petitioners seek an order for the expedited, responsible release of medically-vulnerable incarcerated persons at Oakdale to locations where they can socially distance. Petitioners also seek the appointment of a public-health expert to oversee changes at Oakdale to ensure social distancing and infection prevention and treatment for those remaining. Given the mounting death toll inside, there is no time to waste.
Petitioners readily satisfy the four-factor test for a temporary restraining order. They can likely show that the status quo will continue to unconstitutionally place Class and Subclass members at a substantial risk of serious harm, and there can be no question that the harm would be irreparable—six men have died already. The public interest weighs heavily in favor of a plan that will prevent the guaranteed spread of COVID-19 in that incarcerated population, which could easily spread to the broader community and devastate the region’s medical infrastructure. Indeed, public health experts, including the declarant in this record, agree that prisoners, staff, and the public at large would be harmed far more by waiting for Respondents’ slow-moving plan to take shape while Class members are unable to safely socially distance or maintain recommended hygienic practices.
Federal Rule of Civil Procedure 65(c) provides that the Court should levy “security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Petitioners respectfully request that the Court waive the bond requirement, given the obviousness of the risk to Class members’ health, their indigence, and the strong public interest involved.3 Furthermore, the requirement of a bond is contrary to the proposition that inadequate resources under no circumstances justify a prison’s deprivation of constitutional rights.4 Consistent with this well-established principle, this Court
3 See, e.g., Molton Co v. Eagle-Picher Industries, Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (approving waiver of bond given strength of case and “the strong public interest” involved); Campos v. INS, 70 F. Supp. 2d 1296, 1310 (S.D. Fla. 1998) (because plaintiffs were indigent and sought to vindicate their constitutional rights, consistent with the public interest, the court did not require a bond). 4 See, e.g., Smith v. Sullivan, 553 F.2d 373, 378 (5th Cir. 1977) (inadequate resources can never be a justification for depriving an inmate of his constitutional rights).
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should not require Plaintiffs, who are indigent, to post a bond in order to protect their constitutional rights.
For the reasons in the attached memorandum, the Court should immediately issue an order consistent with the above-described relief.

Respectfully submitted this 13th day of April, 2020.

/s/ Bruce Hamilton Bruce Hamilton, La no. 33170 Katie Schwartzmann, La no. 30295
ACLU-F of Louisiana P.O. Box 56157
New Orleans, La 70156 (504) 522-0628
kschwartzmann@laaclu.org bhamilton@laaclu.org
David Luger* Hannah O. Koesterer* KATTEN MUCHIN ROSENMAN LLP
525 W. Monroe St. Chicago, IL 60661 david.luger@katten.com hannah.koesterer@katten.com
Ryan J. Meyer* KATTEN MUCHIN ROSENMAN LLP
2121 Pearl St., Ste. 1100 Dallas, TX 75201
ryan.meyer@katten.com *pro hac vice applications forthcoming

Somil Trivedi** Jennifer Wedekind* AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 915 15th St., NW Washington, DC 20005 **admitted pro hac vice *pro hac vice applications forthcoming
Andrea Woods* Brandon Buskey* Meredith Taylor Brown*
Gabriel Arkles* AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad St. New York, NY 10004 Tel. (212) 549-2500 awoods@aclu.org *pro hac vice applications forthcoming

CERTIFICATE OF SERVICE
I hereby certify that on April 13, 2020, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the court’s electronic filing system.

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Case 2:20-cv-00422-TAD-KK Document 9 Filed 04/13/20 Page 5 of 5 PageID #: 110 I further certify that copies of all pleadings and other papers filed in the action to date or
to be presented to the Court at the hearing, have been furnished to the Defendants’ attorneys, who have already made an appearance in this matter.
/s/ Bruce Hamilton Bruce Hamilton, La. Bar No. 33170
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

BRANDON LIVAS, RICHARD BUSWELL, DEWAYNE CORBETT, JOHNNY SMITH, CARLOS LORENZO MARTIN, and GAINES ANDREWS, on behalf of themselves and those similarly situated,

Civil Action No. 2:20-CV-00422 Judge Terry A. Doughty

Petitioners, v.

Magistrate Judge Kathleen Kay

RODNEY MYERS, warden of Oakdale Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Respondents.

MEMORANDUM IN SUPPORT OF PETITIONERS’ EMERGENCY MOTION FOR RELEASE OF VULNERABLE AND LOW-RISK PRISONERS FROM OAKDALE
The outbreak of COVID-19 at Oakdale federal correctional institutions I and II
(“Oakdale”) has already claimed the lives of six people incarcerated there.1 At least 50 prisoners
and 17 staff members have tested positive.2 More people are falling sick every day. Yet
Respondents’ efforts to stem the outbreak have been far too little, far too late, and their newly
produced “plan” does nothing to achieve the social distancing that experts agree is necessary to
prevent further suffering. Accordingly, Petitioners seek an order for the expedited, responsible
release3 of medically-vulnerable incarcerated persons at Oakdale to locations where they can
1 BOP’s COVID-19 Inmate Review Update, April 10, 2020, Dkt. No. 8 at 7 (“Inmate Update”). 2 Id. 3 The term “release,” as used throughout this memorandum, refers to discharge of incarcerated persons from the physical confines of Oakdale, not necessarily release from custody. Release options may include, but are not limited to: release to parole or community supervision; transfer furlough (as to another facility, hospital, or halfway house); or non-transfer furlough, which could entail a released person’s eventual return to Oakdale once the pandemic is over and the viral health threat is abated. Any releases would include requirements for testing, care, and social distancing, as informed by the Rule 706 expert that Petitioners have requested.

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socially distance. Petitioners also seek the appointment of a public-health expert to oversee changes at Oakdale to ensure social distancing and infection prevention and treatment for those remaining. Given the mounting death toll inside, there is no time to waste.
At the April 7, 2020 telephone conference with this Court, Respondents presented no meaningful plan or timeline to expedite prisoner release.4 Indeed, Respondents represented on April 7 that they were awaiting further guidance related to the April 3 Memo, indicating that normal procedures would be slowed, if anything. Respondents also conceded that only three prisoners had been identified for release in the nine full days since the Attorney General’s earlier March 26, 2020 Memorandum.5
Respondents’ disclosures since the conference have not cured the problem. First, the number of prisoners identified for potential release has apparently decreased.6 Second, Respondents’ April 10, 2020 “update” is not sufficient to reverse the ongoing Eighth Amendment violations at Oakdale. Fewer than 70 Oakdale prisoners have been deemed even “potentially eligible” for home confinement,7 with no timeline or specifics as to when those determinations would be made or whether any such releases would cure the baseline problem: that social distancing at current population levels is impossible, and therefore COVID-19 will continue to spread and potentially kill prisoners, staff, and those in the community.
Petitioners readily satisfy the four-factor test for a temporary restraining order. They can likely show that the status quo will continue to unconstitutionally place Class and Subclass members at a substantial risk of serious harm, and there can be no question that the harm would be irreparable—six men have died already. The public interest weighs heavily in favor of a plan that will prevent the guaranteed spread of COVID-19 in that incarcerated population, which
4 See Minutes of Proceeding, April 7, 2020, Dkt. No. 5 at 2 (“Minute Order”) (“The Director of the BOP is currently working on guidance for the facilities to use for these assessments.”) 5 Minute Order, Dkt. No. 5 at 2. 6 BOP’s Notice of Inmates Previously Identified for Removal from FCC Oakdale, April 9, 2020, Dkt. No. 7 (showing that only 1 of 4 named prisoners is currently slated for release, while others have been rejected or are still pending). 7 Inmate Update, Dkt. No. 8 at 8-9.
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could easily spread to the broader community and devastate the region’s medical infrastructure. Indeed, public health experts, including the declarant in this record, agree that prisoners, staff, and the public at large would be harmed far more by waiting for Respondents’ slow-moving plan to take shape while Class members are unable to safely socially distance or maintain recommended hygienic practices.
Numerous correctional facilities nationwide—including other federal prisons—are already clearing and releasing people in significant numbers in response to the imperative of social distancing.8 Elected officials in Louisiana are demanding action.9 Yet the Oakdale Respondents are still “reviewing,” with no end date in sight. Therefore, despite Petitioners’ stated preference to collaborate privately and quickly, a temporary restraining order is now required to compel the necessary action.
FACTUAL BACKGROUND
I. COVID-19 is a Fast-Moving Disease Particularly Harmful to Elderly or Immune-Compromised People
8 BOP itself claims it has placed an additional 566 prisoners on home confinement since Attorney General Barr’s March 26, 2020 memorandum. See Federal Bureau of Prisons, Update on COVID-19 and Home Confinement (April 5, 2020), https://www.bop.gov/resources/news/20200405_covid19_home_confinement.jsp. Outside the federal system, for example, officials in Cleveland have moved more than 700 prisoners out of Cuyahoga County Jail in less than two weeks; more than 250 have been released near Oakland, California; Pennsylvania has authorized release of up to 1,800. New Jersey planned release of as many as 1,000. See Kevin Johnson, Local jails releasing hundreds of prisoners amid coronavirus fears, USA Today (March 26, 2020), Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, THE NEW YORK TIMES (March 23, 202), available at: https://www.nytimes.com/2020/03/23/nyregion/coronavirusnj-inmates-release.html https://www.usatoday.com/story/news/politics/2020/03/26/jails-free-hundredsprisoners-stop-coronavirus/5077204002/; see also Michael Gorsenger, Gov. Wolf issues executive order to release 1,800 inmates to stop COVID-19 spread, Local News 21 (April 10, 2020), https://local21news.com/news/local/gov-wolf-issues-executive-order-to-release-18000-inmates-to-stopcovid-19-spread. 9 Press Release, Senator John Kennedy (R-LA), Kennedy, Cassidy, Johnson urge Federal Bureau of Prisons to take immediate action at Oakdale Prison (April 7, 2020), https://www.kennedy.senate.gov/public/2020/4/kennedy-cassidy-johnson-urge-federal-bureau-of-prisonsto-take-immediate-action-at-oakdale-prison.
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COVID-19 is a novel virus for which there is no established curative medical treatment, no vaccine, and no cure.10 Compared with past outbreaks of communicable diseases, the
COVID-19 pandemic is of “unprecedented magnitude” because of the “magnitude and speed of transmission of COVID-19.”11 COVID-19 is transmitted by droplets of infected aerosol, which
can survive in the air for up to three hours—and on surfaces such as plastic and stainless steel for up to 2 to 3 days.12 Indeed, a new study of an early cluster of COVID-19 cases in Wuhan, China
revealed the dangers of indirect transmission resulting from infected people contaminating common surfaces—in the study, it was a communal mall bathroom.13 New research also shows
that controlling the spread of COVID-19 is made even more difficult because of the prominence
of asymptomatic transmission, i.e., transmission by people who are contagious but who exhibit
limited or no symptoms, rendering ineffective any screening tools dependent on identifying symptomatic behavior.14
COVID-19 is an acute respiratory syndrome that can cause pneumonia, acute respiratory
distress syndrome, respiratory failure, heart failure, sepsis, and other potentially fatal conditions.15 Treatment for severe cases of COVID-19 includes isolation, oxygen, and mechanical ventilation.16 COVID-19 is particularly dangerous for elderly or
immunocompromised individuals and those who have chronic lung disease, moderate to severe
10 Goldenson Dec., Dkt. No. 1-3 at ¶ 14; see also Information for Clinicians on Therapeutic Options for Patients with COVID-19, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/therapeutic-options.html (“There are no drugs or other therapeutics approved by the [FDA] to prevent or treat COVID-19.”). 11 United States v. Martin, No. 19-cr-140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020). 12 Goldenson Dec., Dkt. No. 1-3 at ¶ 17; see also George Petras et al., How long does the coronavirus live on surfaces?, USA Today (March 27, 2020), https://www.usatoday.com/indepth/news/2020/03/25/coronavirus-survives-on-metal-plastic-cardboard-common-objects/2866340001/. 13 Jing Cai, et al., Indirect virus transmission in cluster of COVID-19 cases, Wenzhou, China, 2020, Emerging Infectious Diseases, Vol. 26, No. 6, June 2020, https://doi.org/10.3201/eid2606.200412. 14 Chelsea Ritschel, Coronavirus: Are People Who Are Asymptomatic Still Capable of Spreading COVID19, Independent (March 15, 2020), https://www.independent.co.uk/life-style/health-andfamilies/coronavirus-symptoms-asymptomatic-covid-19-spread-virus-a9403311.html. 15 Fei Zhou, et al., Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID-19 in Wuhan, China: A Retrospective Cohort Study, 395 LANCET 1054 (March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext. 16 Goldenson Dec., Dkt. No. 1-3 at ¶¶ 9, 14.
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asthma, serious heart conditions, severe obesity, or other medical conditions such as diabetes, renal failure, or liver disease, particularly if not well-controlled.17 According to a study of nearly
1,600 COVID-19 cases, “patients with at least one co-morbidity—including cardiovascular
disease, diabetes and chronic kidney diseases—‘had a 79% greater chance of requiring intensive care or a respirator or both, or of dying.’”18 Nationwide, the mortality rate among persons aged 55-64 is 1-3%; among persons aged 65-84, 3-11%; and among persons 85 or older, 10-27%.19
To reduce the risk of contracting COVID-19, the Centers for Disease Control and
Prevention (“CDC”) advises all people—and particularly those “at higher risk of severe
illness”—to “[s]tay home,” “[w]ash your hands often,” “[a]void close contact,” “keep space
between yourself and others (stay 6 feet away, which is about two arm lengths),” “[k]eep away from people who are sick,” and “[c]lean and disinfect frequently touched surfaces.”20 The
President’s Task Force on COVID-19 recommends avoiding gatherings of more than 10 people.21
17 Centers for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. 18 Coronel v. Decker, No. 20-cv-2472, 2020 WL 1487274, at *3 (S.D.N.Y. Mar. 27, 2020) (slip op.) (quoting Sharon Begley, Who Is Getting Sick, and How Sick? A Breakdown of Coronavirus Risk by Demographic Factors, STAT NEWS (Mar. 3, 2020), https://www.statnews.com/2020/03/03/who-isgetting-sick-and-how-sick-a-breakdown-of-coronavirus-risk-by-demographic-factors/; see also Jason Oke & Carl Heneghan, Global Covid-19 Case Fatality Rates, Oxford COVID-19 Evidence Service (March 28, 2020), https://www.cebm.net/covid-19/global-covid-19-case-fatality-rates/ (“Patients with comorbid conditions had much higher [fatality] rates.”). 19 CDC COVID-19 Response Team, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)—United States, February 12–March 16, 2020, 69 MORBIDITY AND MORTALITY WEEKLY REPORT 343 (March 26, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm; see also Oke & Heneghan, supra n.18 (finding similar mortality rates globally). 20 Centers for Disease Control and Prevention, What You Can Do, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/what-you-can-do.html; see also Martin, 2020 WL 1274857, at *2 (“With no known effective treatment, and vaccines months (or more) away, public health officials have been left to urge the public to practice ‘social distancing,’ frequent (and thorough) hand washing, and avoidance of close contact with others . . . all of which are extremely difficult to implement in a detention facility.”). 21 Cecelia Smith-Schoenwalder, Trump Administration Suggests Avoiding Gatherings of More Than 10 People, USNews.com (March 16, 2020), https://www.usnews.com/news/national-news/articles/2020-0316/trumps-coronavirus-task-force-suggests-limiting-gatherings-to-10-people-or-fewer.
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Louisiana is experiencing some of the worst COVID-19 outbreaks in the world. As of April 12, 2020, Louisiana had 20,595 confirmed cases of COVID-19, with at least 840 deaths.22 A study from the University of Louisiana at Lafayette reported that COVID-19 cases grew at 67.8%, the highest rate in the United States.23
II. Class and Subclass Members at Oakdale Are at Heightened Risk of Contraction, Transmission of COVID-19
Oakdale is a complex of two federal correctional institutions; it comprises two, lowsecurity facilities (FCI Oakdale I and FCI Oakdale II, which include a “Camp”) with a total population of approximately 1,800. According to the Bureau of Prisons (“BOP”), 50 incarcerated persons and 17 staff members at Oakdale have tested positive for COVID-19, 19 staff members have been quarantined awaiting test results, and six people have died.24
As a rule, “[i]ndividuals in carceral settings are at a significantly higher risk of spreading infectious diseases.”25 This is because it is typically “not possible to isolate . . . detainees from the outside world (including from staff and vendors who may have been exposed to COVID-19), nor is it possible to isolate them from one another.”26 Prevention of infection from an infected droplet is “particularly difficult to control in detention facilities, as social distancing and proper decontamination of surfaces is virtually impossible.”27 “The probability of transmission of potentially pathogenic organisms is increased by crowding, delays in medical evaluation and
22 See Louisiana Department of Health Coronavirus (COVID-19) Information, updated daily at noon: http://ldh.la.gov/coronavirus/. 23 Adam Daigle, Coronavirus Cases Grew Faster in Louisiana Than Anywhere Else in the World: UL Study, THE ACADIANA ADVOCATE (March 24, 2020), https://www.theadvocate.com/acadiana/news/coronavirus/article_94494420-6d4b-11ea-ac42ff7dd722c084.html. 24 Inmate Update, Dkt. No. 8 at 7. 25 Coronel, 2020 WL 1487274, at *3 (internal quotation omitted). 26 Id. 27 Goldenson Dec., Dkt. No. 1-3 at ¶ 17.
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treatment, rationed access to soap, water, and clean laundry, [and] insufficient infection-control expertise.”28
Because they contain high concentrations of people in close proximity, prisons are breeding grounds for the uncontrolled transmission of the virus that causes COVID-19. Louisiana State University and Tulane University health experts concluded the same in a recent letter to Louisiana Governor John Bel Edwards.29 People are housed “in tightly-packed and poorly-ventilated dormitories; they share toilets, showers, and sinks; they wash their bedsheets and clothes infrequently; and often lack access to basic personal hygiene items,” the 15 professors said.30 In light of the pandemic, prisons are “tinderboxes, ready to explode and endanger our entire country.”31
a. While Public Health Officials Recommend Social Distancing, Oakdale Prisoners are “Jammed Like Sardines” in Unsanitary Conditions
The conditions inside Oakdale are in particular need of swift intervention. First and foremost, Oakdale is too crowded to achieve anything close to recommended social distancing. Every declarant confirms that prisoners live, eat, and sleep much closer than six feet apart. Petitioner Dewayne Corbett sleeps in a 10 by 15-foot cell with two other cellmates. When he wakes up, they are “face-to-face,” and he has to “slide by them” to get out the door.32 And yet there are cells housing up to six people per cell. Phones are roughly two feet apart, as are the sinks, and there is no indication that Oakdale has introduced staggered usage or other protocols to ensure that prisoners can maintain social distancing while using those facilities.
28 United States v. Stephens, No. 15-cr-95, --- F. Supp. 3d ----, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (quoting Joseph A. Bick, Infection Control in Jails and Prisons, 45 CLINICAL INFECTIOUS DISEASES 1047, 1047 (Oct. 2007), https://doi.org/10.1086/521910. 29 Katherine Andrinopoulos et al., Public Health Letter to Gov. John Bel Edwards (March 27, 2020), https://www.scribd.com/document/453999944/Public-Health-Letter-to-Gov-Edwards. 30 Id. 31 Id. 32 Declaration of Dewayne Corbett, Exhibit 6 at ¶ 4.
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In FCI Oakdale I, beds are roughly 2.5 feet apart.33 Around 160 to 180 prisoners share eight toilets, 12 to 14 sinks, and 20 showers.34 The showers are separated by “thin, plastic partitions so that water from one shower stall splashes the person in the next stall.”35 In FCI
Oakdale II, men sleep in crowded dormitories in which the beds are also roughly two to three feet apart.36 Petitioner Richard Buswell says, “We are jammed together like sardines.”37 The hallways are also less than six feet wide.38 There are no more than eight working showers for the roughly 120 men housed there.39 There is no indication of staggering or other protocols to ensure
distancing while in the bathroom or shower areas.
Worse yet, many prisoners report being in close contact with individuals known to be infected with COVID-19.40 Indeed, Petitioner Smith reports that after the first prisoner tested positive, his cellmates were “dispersed throughout other units,”41 thereby accelerating the spread,
not containing it. Other declarants report that fellow prisoners have symptoms like coughing and diarrhea, but do not receive medical attention until they have a fever or are “pale, sweating,”42 or “very sick.”43 Declarant Arthur Wammel estimates that “around 60 men are coughing all night long”44 while in their bunks.45 Accordingly, because prisoners are often closer to one another
33 Declaration of Johnny Smith, Exhibit 11 at ¶ 3. 34 Id. 35 Id. 36 Declaration of Brandon Livas, Exhibit 7 at ¶ 3; Declaration of Arthur Wammel, Exhibit 13 at ¶ 5; Declaration of Richard Buswell, Exhibit 3 at ¶ 6 (beds are “30 to 36 inches apart”); Declaration of Daniel Collins, Exhibit 5 at ¶ 3; Declaration of Pio Alejandr Campos, Exhibit 4 at ¶ 5. 37 Buswell Dec., Ex. 3 at ¶ 6; Smith Dec., Ex. 11 at ¶ 7 (“we were crowded like sardines”). 38 Buswell Dec., Ex. 3 at ¶ 7. 39 Wammel Dec., Ex. 13 at ¶ 5; Collins Dec., Ex. 5 at ¶ 3. 40 Declaration of Travis Scott, Exhibit 10 at ¶ 5; Wammel Dec., Ex. 13 at ¶ 4; Livas Dec., Ex. 7 at ¶¶ 4–5; Collins Dec., Ex. 5 at ¶ 4. 41 Smith Dec., Ex. 11 at ¶ 7. 42 Buswell Dec., Ex. 3 at ¶ 4. 43 Declaration of Gaines Andrews, Exhibit 2 at ¶ 5 (“Almost all of the other prisoners I interact with seem to be displaying symptoms.”); Collins Dec., Ex. 5 at ¶ 13. 44 Wammel Dec., Ex. 13 at ¶ 6; Livas Dec., Ex. 7 at ¶ 6 (“many people are coughing throughout the night”). 45 Campos Dec., Ex. 4 at ¶ 7.
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than six feet,46 it stands to reason that dozens if not hundreds of Class members are unconsciously inhaling droplets from fellow prisoners who are potentially or actually infected.
Cleaning supplies are rationed and running low.47 Communal phones and computers are not sanitized after use,48 despite the fact that coronavirus can live on such surfaces. At Oakdale II, “[f]ive to ten men use the bathroom facility every two minutes, so it is almost impossible to keep it clean.”49 Prisoners are being moved from quarantine back into crowded areas.50 Prisoners are being told that they are no longer being tested for COVID-19, under the assumption that everyone already has it.51 Staff have quit in light of these conditions,52 or they “lock themselves in the office.”53 Prisoners have no such recourse.
b. Respondents’ Asserted Mitigation Efforts are Too Little, Too Late
i. The April 10 “Update” Does Not Contain a Credible Social Distancing Plan
Respondents’ April 10 “Update” is woefully inadequate to decrease the prison’s crowded, congregate conditions and achieve CDC-recommended social distancing. Under the Attorney General’s March 26, 2020 direction, Respondents admit that BOP had identified only three people at Oakdale for potential release.54 Under its expanded authority under the Attorney General’s April 3, 2020, memorandum, BOP identified 58 people to review.55 By April 10, 2020, Oakdale staff have only managed to review 34 individuals.56 Oakdale staff expanded their criteria to include 90 more prisoners for home-confinement eligibility, but only 10 were
46 See, e.g., Livas Dec., Ex. 7 at ¶ 3. 47 Campos Dec., Ex. 4 at ¶ 6; Declaration of John Sposato, Exhibit 12 at ¶ 8. 48 Buswell Dec., Ex. 3 at ¶ 11; Andrews Dec., Ex. 2 at ¶ 7; Smith Dec., Ex. 11 at ¶ 4; Livas Dec., Ex. 7 at ¶ 9; Collins Dec., Ex. 5 at ¶ 7. 49 Buswell Dec., Ex. 3 at ¶ 12. 50 Wammel Dec., Ex. 13 at ¶ 7. 51 Id. 52 Andrews Dec., Dkt. 1-5 at ¶ 6; Scott Dec., Ex. 10 at ¶ 9; Campos Dec., Ex. 4 at ¶ 13. 53 Buswell Dec., Ex. 3 at ¶ 10. 54 Inmate Update, Dkt. No. 8 at 8. 55 Id. at 9. 56 Id.
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determined eligible.57 Thus, Oakdale appears presently to have identified, at most, 44 people for potential release. Even if all 44 were released, which is far from clear, this number is paltry in a population of about 1,800—about 2 percent—and will do nothing to allow those who remain in the facility to achieve social distancing.58 Accordingly, it will do nothing to stop the outbreak.59 As Dr. Goldenson concludes, “[t]he government’s April 10, 2020 plan is inadequate to achieve social distancing or protect prisoners from COVID-19 and does not change my public health recommendations.”60
Moreover, Respondents provide no timeline for release and additional review, no plan to increase social distancing for those who remain, and no indication that the risk of infection is sufficiently considered. According to Respondents, Oakdale staff rely on at least eight BOP criteria to consider a person for home confinement, none of which is their pre-existing medical condition or vulnerability to COVID-19.61 Instead, they calculate factors such as a person’s rating under BOP’s algorithm, the Prisoner Assessment Tool Targeting Estimated Risk and Needs, or “PATTERN.”62 Released last July to implement the First Step Act, it is designed to “measure risk of recidivism of inmates.”63 The tool obviously does not consider risk of infection or death—it was not designed for the present circumstance of a viral pandemic.64 Hence, even if Respondents were proceeding with the necessary speed and with social distancing as their
57 Id. 58 April 12, 2020 Declaration of Joe Goldenson, MD, Exhibit 1 at ¶ 31. 59 Indeed, prisoners have heard that staff have stopped testing people under the assumption that everyone already has COVID-19. Wammel Dec., Ex. 13 at ¶ 7. 60 Goldenson Dec., Ex. 1 at ¶¶ 29-35. 61 Inmate Update, Dkt. No. 8 at 8-10. 62 Id. at 8. 63 Department of Justice Announces Enhancements to the Risk Assessment System (Jan. 15, 2020), https://www.justice.gov/opa/pr/department-justice-announces-enhancements-risk-assessment-system-andupdates-first-step-act. 64 See, e.g., Letter from Leadership Conference on Civil Rights to Attorney General Bill Barr, RE: The use of the PATTERN risk assessment in prioritizing release in response to the COVID-19 pandemic, April 3, 2020, http://civilrightsdocs.info/pdf/policy/letters/2020/Final_Letter_on_ PATTERN_in_Response_to_AG_Barr_Memo_on_4_26-4_3_2020.pdf.
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primary imperative—neither of which are true—their tools are not calibrated to those ends,
further underscoring the need for court and expert oversight.
ii. Respondents’ Efforts to Mitigate the Unsanitary Conditions at Oakdale are Insufficient and May be Making Things Worse
Respondents claim they have now taken remedial measures to improve hygiene, such as
deploying ubiquitous staff mask usage and “inmate orderlies” on a “24-hour basis to disinfect”
its facilities—all of which is directly contradicted by the declarations of people actually incarcerated at Oakdale.65
At the April 7 conference, Respondents asserted that they are conducting daily
temperature checks at the 4 p.m. hour. Prisoners confirm that Oakdale staff have been performing daily temperature checks since about April 2.66 However, the CDC recommended daily temperature checks in prisons on March 23, 2020.67 Further, prisoners are lined up “right next to each other” during the checks, not six feet apart,68 and staff are not always sanitizing
65 Compare Inmate Update, Dkt. No. 8 at 6 to Smith Dec., Ex. 11 at ¶¶ 4, 11 (“Good sanitation is not practically possible because of the conditions here. The building is so congested that it cannot be effectively disinfected. The chemical used in FCI Oakdale I, Clean On The Go, requires 10 minutes between applications. I have never seen prison staff applying it to common areas between prisoners’ uses of those areas. […] Correction officers used to wear masks in the prison, but they have largely stopped because they have apparently decided that it is futile.”); Collins Dec., Ex. 5 at ¶ 7 (“Orderlies are not sanitizing the phones. I’m forced to use the phone right after someone else without it being cleaned.”); Livas Dec., Ex. 7 at ¶¶ 9, 11 (“I have never seen prison staff sanitizing or wiping down common areas or surfaces such as telephones. […] The prison staff wear personal protective equipment inconsistently— some of them wear a mask or gloves, but generally not both and not all the time.”); Sposato Dec., Ex. 12 at ¶ 7 (“The showers are not cleaned after each use.”); Declaration of Hector Perez, Exhibit 8 at ¶ 8 (“We are housed in dormitories that are dirty and crowded.”) 66 Buswell Dec., Ex. 3 at ¶ 5; compare Corbett Dec., Ex. 6 at ¶ 3 (describing a temperature check at 9 a.m.). 67 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, (March 23, 2020) (“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.”) (recommending twice daily temperature checks for those in contact with known COVID-19 cases), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf. 68 Wammel Dec., Ex. 13 at ¶ 3.
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head thermometers after use.69 This process exacerbates the spread of droplets potentially containing the disease.70
Respondents asserted at the April 7 conference that Oakdale staff are now wearing personal protective equipment. But, according to the Petitioners and other declarants, not all staff wear the equipment all the time.71 Indeed, some have stopped completely because they believe “it is futile.”72 Petitioner Corbett asserted that a doctor touched every prisoner with the same gloves without changing them.73 Droplets could easily have passed from one prisoner to another during that check—even assuming they were kept six feet apart while waiting for the doctor.
Respondents also asserted that prisoners are being given masks on a daily basis.74 Some prisoners confirm having been provided one mask per day since April 2 (well after community spread), while others say it is sporadic75 or that they are being asked to reuse them.76 But, by the same token, all their personal cleaning supplies were confiscated and there are not enough replacement bottles.77 Prisoners report increased cleaning, but that it only started “this week.”78
In the end, while Oakdale staff have started implementing some hygiene mitigation efforts, they only started after numerous infections and deaths; the efforts are only sporadically enforced; and, most importantly, these substandard hygiene efforts have not addressed social distancing. Indeed, some practices like group temperature checks may be increasing the risk of close-quarters transmission. Yet the CDC, Dr. Goldenson, and the consensus of public-health experts have recommended social distancing as the best protection against COVID-19 contraction. Respondents have not made any successful efforts to increase social distancing because, without significantly reducing the prisoner population, social distancing at Oakdale is
69 Scott Dec., Ex. 10 at ¶ 4. 70 Goldenson Dec., Ex. 1 at ¶ 17. 71 Andrews Dec., Ex. 2 at ¶ 8; Livas Dec., Ex. 7 at ¶ 11. 72 Smith Dec., Ex. 11 at ¶ 11. 73 Corbett Dec., Ex. 6 at ¶ 3. 74 Inmate Update, Dkt. No. 8 at 6. 75 Andrews Dec., Ex. 2 at ¶ 9; Collins Dec., Ex. 5 at ¶ 11. 76 Smith Dec., Ex. 11 at ¶ 15. 77 Declaration of Carlos Lorenzo Martin, Exhibit 8 at ¶ 5; see also Collins Dec., Ex. 5 ¶ 8. 78 Wammel Dec., Ex. 13 at ¶ 7.
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“impossible.”79 Without addressing this central requirement, Respondents’ April 10 plan is window dressing at best. Indeed, unless and until the population at Oakdale is reduced to such a level that the prisoners who remain can engage in social distancing, there is no set of mitigating actions that will reduce or eliminate the unconstitutional risk of harm to all prisoners in the facility.
LEGAL STANDARD To obtain a preliminary injunction or temporary restraining order, Petitioners must demonstrate: “(1) a substantial likelihood of success on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that grant of an injunction will not disserve the public interest.” Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009) (quoting Speaks v. Kruse, 445 F.3d 396, 399-400 (5th 2006)); La. Dep’t of Transp. & Dev. v. U.S. Dep’t of Transp., No. 15-2638, 2015 WL 7313876, at *4 (W.D. La. Nov. 20, 2015) (citing Byrum, 566 F.3d at 445). Petitioners must meet each of these requirements, La. Dep’t of Transp., 2015 WL 7313876 at *4, but are “not required to prove [their] entitlement to summary judgment.” Byrum, 566 F.3d at 446 (citing ICEE Distribs., Inc. v. J&J Snack Foods Corp., 325 F.3d 586, 596 n.34 (5th Cir. 2003)). Rather, they “must present a prima facie case but need not show that [they are] certain to win.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011) (quoting C. Wright & A. Miller, 11A FEDERAL PRACTICE & PROCEDURE § 2948.3 (2d ed. 1995)). The Court may issue a temporary restraining order without awaiting for the adverse party’s response if it finds that “immediate and irreparable injury . . . will result to the movant before the adverse party can be heard in opposition.” FED. R. CIV. P. 65(b)(1); Havlik v. United States, No. 18-cv-0692, 2018 WL 5117282, at *1 (W.D. La. Oct. 19, 2018).
79 Goldenson Dec., Dkt. 1-3 at ¶ 17; Smith Dec., Ex. 11 at ¶ 3 (“It is impossible for people at Oakdale to stay six feet away from each other.”); Livas Dec., Ex. 7 at ¶ 3.
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ARGUMENT Corrections officials have a constitutional obligation to protect incarcerated people from a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 828 (1994). Petitioners have a substantial likelihood of succeeding in their claim that Respondents are failing to provide those constitutionally-mandated protections to the Class. The harm arising from these constitutional violations—severe illness and possibly death—is irreparable, and the remaining balancing factors weigh heavily in favor of the Court granting Petitioners’ motion for a temporary restraining order/preliminary injunction. I. Plaintiffs Have a Substantial Likelihood of Success on the Merits of Their
Claim That the Conditions in Which They Are Being Confined are Unconstitutional Plaintiffs can present a prima facie case that the current conditions at Oakdale are unconstitutional. Under the Eighth Amendment, prison officials have a constitutional obligation to provide for incarcerated persons’ reasonable safety and to address their serious medical needs. See, e.g., Farmer, 511 U.S. at 832-33 (1994) (under the Eighth Amendment, prison officials “must provide humane conditions of confinement,” including adequate medical care, and “must take reasonable measures to guarantee the safety of the inmates”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference to serious medical needs of prisoners” is “proscribed by the Eighth Amendment”); Hinojosa v. Livingston, 807 F.3d 657, 666 (5th Cir. 2015) (plaintiff stated an Eighth Amendment claim when defendants subjected him to conditions “posing a substantial risk of serious harm” to his health). Prison officials violate this affirmative obligation by showing “deliberate indifference” to the substantial risk of serious harm to the prisoners. Farmer, 511 U.S. at 828. “A prison official acts with deliberate indifference when he ‘knows of and disregards an excessive risk to inmate health or safety.’” Hinojosa, 807 F.3d at 665 (quoting Farmer, 511 U.S. at 837). A court “may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Ball v. LeBlanc, 792 F.3d 584, 594 (5th Cir. 2015) (quoting Farmer, 511 U.S. at 842);
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see also Hinojosa, 807 F.3d at 667 (“open and obvious nature” of dangerous prison conditions supported an inference of deliberate indifference).
With respect to an impending infectious disease like COVID-19, deliberate indifference is satisfied when prison officials “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 3334 (1993) (emphasis added). “That the Eighth Amendment protects against future harm to inmates is not a novel proposition. . . . It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Id. at 33; see also Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004) (“It is also important to note that [an] inmate need not show that death or serious illness has [already] occurred.”) (citing Helling, 509 U.S. at 32). “[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.” Farmer, 511 U.S. at 833.
Here, there can be no doubt that Respondents are aware of and have insufficiently responded to the substantial risk that exposure to COVID-19 poses to all persons incarcerated at Oakdale, and particularly to the Medically Vulnerable Subclass. Respondents’ own “update” contains several admissions to that effect. First, the BOP claims it began preparing for the coronavirus in January 2020,80 yet it waited at least six weeks to release its national directives to screen prisoners and staff, suspend prisoners’ movements, and modify operations to maximize social distancing.81 An Oakdale prisoner became the first person to die from COVID-19 in BOP custody on March 28, 2020.82 By that time, BOP and its agents had known for weeks or months about the rapid-fire spread of COVID-19, the danger it posed to prisons, and especially the
80 Inmate Update, Dkt. No. 8 at 3. 81 Id. at 3-4. 82 Sarah N. Lynch, Prisoner Serving Time for Drug Charge Is First U.S. Inmate to Die From COVID-19, Reuters (March 29, 2020), https://www.reuters.com/article/us-heath-coronavirus-prison-death/prisonerserving-time-for-drug-charge-is-first-u-s-inmate-to-die-from-covid-19-idUSKBN21G04T.
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danger it posed to medically vulnerable populations. Indeed, a BOP agency task force worked with the CDC and reviewed World Health Organization guidance before announcing Phase II of its “Action Plan” on March 13, 2020.83 The CDC expanded its guidance for people at extreme risk of serious illness from the coronavirus in early March.84
As COVID-19 continued to infiltrate Oakdale in recent days, Respondents have failed to provide even basic safeguards to the Class, despite being aware of directives from the Department of Justice to immediately address the issue. In his April 3 memo, Attorney General Barr noted that he had already “directed the Bureau of Prisons to prioritize the use of home confinement as a tool for combatting the dangers that COVID-19 poses to our vulnerable inmates. . . .”85 He went on to note the “significant levels of infection” at facilities including FCI Oakdale and affirmed that the government must “move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.86 Yet despite these directives, and Defendants’ understanding of the necessity of implementing them, Defendants have employed release criteria that do not consider vulnerability to COVID-19,87 moved without dispatch or even stated timelines, and failed to release anyone to date. Moreover, they have placed the burden on other actors and other systems to effectuate the release of medically-vulnerable prisoners. For example, Defendants point to the use of compassionate release or reduction of sentence motions as an avenue for release.88 But these avenues have not resulted and will not result in the release of enough people in a short enough period of time to reduce the risk of harm to the Class and Subclass Members.
83 Inmate Update, Dkt. No. 8 at 3. 84 Korin Miller, Who’s Most At Risk for Coronavirus? Why Certain People Are Vulnerable to Complications, Prevention (March 13, 2020), https://www.prevention.com/health/a31245792/coronavirus-high-risk-groups/. 85 Memorandum from Attorney General William Barr to Director of Bureau of Prisons, The Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (April 3, 2020), available at https://politi.co/2UV3JBi. 86 Id. 87 Goldenson Dec. at ¶ 33. 88 Inmate Update at 7-8.
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Despite pervasive warnings, Respondents failed to act, then acted sluggishly and ineffectively. Respondents’ utter disregard for social distancing and any meaningful timeline to achieve it, both before the April 10 “update” and within it, prove that the deliberate indifference will continue without this Court’s intercession.
This is exactly the type of inadequate action and culpable inaction that the Fifth Circuit has previously found sufficient to constitute deliberate indifference. For instance, in Gomez v. Warner, the Fifth Circuit found that a prisoner alleged deliberate indifference by prison officials where the prison’s razor-swapping program created the mere “risk” of “possible spread” in the transmission of deadly “infectious diseases such as HIV, AIDS, and hepatitis.” Gomez v. Warner, 39 F.3d 320 (5th Cir. 1994) (per curiam) (emphasis in original); see also, e.g., Johnson v. Epps, 479 F. App’x 583, 589-92 (5th Cir. 2012) (allegations that inmate was exposed to “serious, communicable diseases” and that prison officials were aware of the risk and did nothing to prevent it were sufficient to state a claim for violation of Eighth Amendment rights); Gates v. Collier, 501 F.2d 1291, 1300-03 (5th Cir. 1974) (affirming district court’s holding that allowing “[s]ome inmates with serious contagious diseases . . . to mingle with the general prison population,” alongside maintaining a host of other unsanitary and inhumane conditions, “constitute[d] cruel and unusual punishment”) (cited with approval in Rhodes v. Chapman, 452 U.S. 337, 352 n. 17 (1981)); Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974), cert. denied, 421 U.S. 948 (1975) (finding that when systematic deficiencies in staffing, facilities or procedures make unnecessary suffering inevitable, a court will not hesitate to use its injunctive powers). Indeed, courts nationwide are recognizing the unprecedented health and public safety threat that COVID-19 presents and are making immediate release decisions accordingly.89
89 United States v. Zuckerman, 16-cr-194-AT, Dkt. No. 116 (S.D.N.Y. Apr. 3, 2020) (granting immediate compassionate release to a 75-year-old defendant with underlying health conditions, in light of COVID19); United States v. Campagna, 16-cr-78, 2020 WL 1489829 (S.D.N.Y. March 27, 2020) (“Defendant’s compromised immune system in concert with the COVID-19 public health crisis constitutes an extraordinary and compelling reason to modify Defendant’s sentence”); United States v. Hernandez, U.S. Dist. LEXIS 58739 (S.D.N.Y April 2, 2020) (“In light of the heightened medical risk presented to Mr. Hernandez by the COVID-19 pandemic, there are extraordinary and compelling reasons to reduce Mr. Hernandez’s sentence”); United States v. Perez, 17-cr-513, Dkt. No. 98 (S.D.N.Y April 1, 2020)
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Here, Petitioners are alleging far more than a risk of transmission of a deadly disease—
transmission is happening in real time while the Respondents have been deliberately indifferent
to Petitioners’ fate. Indeed, by the day this Court held its status conference on April 7, 2020, the
virus had spread from FCI Oakdale I to FCI Oakdale II.90 Between Saturday, March 28, 2020
(defendant’s “heightened risk of serious illness or death from COVID-19 due to his pre-existing medical issues” constitutes an “extraordinary and compelling” reason for compassionate release); United States v. Huneeus, 19-cr-10117, Dkt. No. 642 (D. Mass. March 17, 2020) (finding “extraordinary and compelling reasons” and granting motion for reduction of sentence “in light of the national state of emergency due to the global COVID-19 pandemic and Hunneus’ unique health circumstances”); United States v. Wishner, 2:14-cr-712, Dkt. No. 155 (C.D. Cal. March 27, 2020) (granting compassionate release under 18 U.S.C. 3582(c)(1) based on COVID-19 and underlying medical conditions); United States v. Copeland, No. 2:05cr-135-DCN, Dkt. No. 662 (D.S.C. Mar. 24, 2020) (granting compassionate release to defendant in part due to “Congress’s desire for courts to release individuals the age defendant is, with the ailments that defendant has during this current pandemic”); United States v. Powell, No. 1:94-cr-316-ESH (Mar. 28, 2020) (granting unopposed motion for compassionate release in light of COVID-19); United States v. Rodriguez, No. 2020 U.S. Dist. LEXIS 58718 (E.D. Pa. Apr. 1, 2020) (defendant’s circumstancesparticularly the outbreak of COIVD-19 and his underlying medical conditions present “extraordinary and compelling reasons” to reduce sentence); United States v. Colvin, 2020 U.S. Dist. LEXIS 57962, at *9 (D. Conn. Apr. 2, 2020) (defendant demonstrated “extraordinary and compelling reasons justifying her immediate release under Section 3582(c)(1)(A) and U.S.S.G. 1B1.13” because her diabetes substantially increases risk of illness should she contract COVID-19); United States v. Resnick, 12-cr-152, 2020 U.S. Dist. LEXIS 59091 (granting compassionate release because defendant is particularly vulnerable to COVID-19 because he is 65 years old with diabetes and end-stage liver disease); United States v. Jepsen, 2020 U.S. Dist. LEXIS 57007 (“The court finds that the totality of the circumstances specific to Mr. Jepsen constitute ‘extraordinary and compelling’ reasons to grant compassionate release,” including that he suffers chronic conditions considered to be risk factors for COVID-19); United States v. Edwards, 17-cr-3, Dkt. 134 (April 2, 2020) (Granting compassionate release, in considerations of COVID-19 pandemic and defendant’s compromised immune system.”); United States v. Karl Oreste, 14-20349-cr-Scola, Dkt. No. 200 (S.D. Fl. April 6, 2020) (granting compassionate release, concluding that there were extraordinary and compelling circumstances presented by COVID-19 pandemic and defendant’s advanced age and poor health); United State v. Bartolo Hernandez, 16-20091-CR-Williams, Dkt. No. 561 (S.D. Fl. April 3, 2020) (finding extraordinary and compelling reasons and granting compassionate release motion, over the government’s opposition, where—because of the coronavirus pandemic—the defendant was the only potential caregiver for his elderly mother); United States v. Foster, No. 1:14-cr-324-02, DE 191 (M.D. Pa. Apr. 3, 2020) (granting compassionate release to a defendant who—due to an underlying lung condition— was at greater risk of serious illness or death from COVID-19); United States v. Brannan, No. 4:15-CR-8001, DE 286 (S.D. Tx. Apr. 2, 2020) (granting compassionate release where defendant was 66-years-old with diagnoses of high blood pressure and high cholesterol); United States v. Williams, No. 3:04-cr-95MCR-CJK, DE 91 (N.D. Fla. Apr. 1, 2020) (granting compassionate release in light of severe risk posed to defendant by COVID-19); United States v. Marin, 15-cr-252, Dkt. No. 1326 (E.D.N.Y Mar. 30, 2020) (granting release due to age, deteriorating health and elevated risk of dire health consequences due to COVID-19 outbreak); United States v. Bolston, 18-cr-382-MLB, DE 20 (N.D. Ga. Mar. 30, 2020) (releasing defendant in part because of danger inherent to continued incarceration during COVID-19).
90 Nicholas Chrastil, Following five inmate deaths, coronavirus has spread to a new facility at Louisiana federal prison, THELENSNOLA.org (April 7, 2020), available at:
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and Friday, April 10, 2020, Respondents’ deliberate indifference has resulted in the deaths of six Oakdale inmates—Patrick Jones (49); Nicholas Rodriguez (43); James Wilson (57); David Townsend (66); Wallace Holley, Jr. (56); and George Jeffus (76). According to news reports, these men each had the types of pre-existing conditions that would have made them members of the proposed Medically-Vulnerable Subclass in this matter, had they been able to survive Respondents’ deliberate indifference long enough to participate in this suit.91
II. Petitioners Face a Substantial Threat of Irreparable Injury Petitioners require immediate relief to prevent irreparable injury. Indeed, six men have died, and dozens of putative Class members are already suffering the irreparable injury of COVID-19 infection. Countless more Class members inevitably will suffer infection unless immediate, remedial measures, including the expedited release of the Medically-Vulnerable Subclass members, are taken to effectively mitigate the virus’s spread. Class members are incarcerated in congregate settings with little-to-no control over their contact with others and the hygiene of their confinement, and thus cannot practically take the preventative measures recommended by the CDC and the President’s Task Force on COVID19.92 They are entirely at the mercy of Respondents, who have not adopted the necessary procedures to allow Class members to take these measures. In short, Respondents are failing to protect them from the obvious risk of severe harm, and Respondents impose on them conditions in which it is impossible for them to protect themselves.
https://thelensnola.org/2020/04/07/following-five-inmate-deaths-coronavirus-has-spread-to-a-newfacility-at-louisiana-federal-prison/ 91 Caroline Habetz, Fifth inmate at Oakdale federal prison dies from COVID-19, KPLC News (April 3, 2020), https://www.kplctv.com/2020/04/03/fifth-inmate-oakdale-federal-prison-dies-covid-/; Reuters, Death Toll From COVID-19 at Oakdale Prison in Louisiana Continues to Climb, N.Y. Times (April 2, 2020), https://www.nytimes.com/reuters/2020/04/02/us/02reuters-health-coronavirus-prisons.html; Fourth inmate at Oakdale Federal Prison dies of COVID-19, KATC News (April 2, 2020), https://www.katc.com/news/covering-louisiana/fourth-inmate-at-oakdale-federal-prison-dies-of-covid-19; KPLC, Sixth inmate at Oakdale federal prison dies from coronavirus (April 10, 2020), https://www.kplctv.com/2020/04/10/sixth-inmate-oakdale-federal-prison-dies-coronavirus/ 92 See supra nn. 20 & 21.
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And even if Respondents could somehow show that transmission was not a virtual certainty, which they cannot, “it is not necessary to demonstrate that harm is inevitable.” Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986); Rayford v. Bowen, 715 F. Supp. 1347, 1351 (W.D. La. 1989) (quoting Humana, 804 F.2d at 1394). Rather, all that is required is “a significant threat of injury from the impending action, that the injury is imminent, and that money damages would not fully repair the harm.” Humana, 804 F.2d at 1394. Here, the unprecedented “magnitude and speed of transmission” of COVID-19 through a facility that could hardly be more contrary to current public health recommendations and the President’s Task Force recommendations makes the threat of substantial injury “significant” and “imminent.” See Martin, 2020 WL 1274857, at *2.
Nor can there be any question that the threatened harm is irreparable. Likely hundreds of putative Class members have risk factors making death or severe illness likely if they contract COVID-19. “It goes without saying that . . . death is an irreparable injury.” East v. Blue Cross & Blue Shield of La., No. 14-cv-115-BAJ-RLB, 2014 WL 8332136, at *2 (M.D. La. Feb. 24, 2014); accord, e.g., Turner v. Epps, 842 F. Supp. 2d 1023, 1028 (S.D. Miss. 2012) (describing death as “the single most irreparable harm of all”). Even for those who recover—a touch-and-go proposition, given the demonstrated seriousness and spread of COVID-19, particularly for vulnerable populations—the extreme suffering that they may experience during their illness93 and the possibility of long-term respiratory impairment94 could not be erased. Such bodily injury
93 See, e.g., Graham Readfearn, What Happens to People’s Lungs When They Get Coronavirus?, THE GUARDIAN (Mar. 28, 2020, 2:56 AM), https://www.theguardian.com/world/2020/mar/28/what-happensto-peoples-lungs-when-they-get-coronavirus (noting that “almost all serious consequences of Covid-19 feature pneumonia” and that “there is evidence that pneumonia caused by Covid-19 may be particularly severe.” The lungs “become filled with inflammatory material [and] are unable to get enough oxygen to the bloodstream, reducing the body’s ability to take on oxygen and get rid of carbon dioxide”). 94 See, e.g., Peter Wark, How Are the Most Serious COVID-19 Cases Treated, and Does the Coronavirus Cause Lasting Damage?, THECONVERSATION.COM (Mar. 29, 2020, 9:29 PM), http://theconversation.com/how-are-the-most-serious-covid-19-cases-treated-and-does-the-coronaviruscause-lasting-damage-134398 (“At this stage there is no data on the long-term effects of COVID-19. But we can look at the after-effects of other acute viral respiratory diseases such as influenza, SARS and Middle East respiratory syndrome (MERS). In these diseases, collectively called acute respiratory distress syndromes (ARDS), the fragile small airways and air sacs become damaged by inflammation, can become blocked by fluid and blood, and are replaced by scar tissue as they heal. This can stiffen the lungs – at
20

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clearly amounts to irreparable harm. See, e.g., Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)
(noting that the “suffer[ing] of physical effects” can “serve as an independent basis for [a]
conclusion that the plaintiff would suffer irreparable harm in the absence of preliminary
injunctive relief”).
Moreover, COVID-19 outbreaks have brought some of the most well-equipped medical
systems in the country to their knees.95 In New York City, for example, many people with
serious non-COVID-19 conditions are finding it difficult, if not impossible, to obtain needed
medical care.96 People have died while waiting in line for overburdened emergency rooms.97
Medical personnel have been hit particularly hard, leading to numerous deaths and further
depleting medical systems’ resources.98 The outbreak’s toll on Oakdale’s system is apparent:
Aside from six prisoner deaths, 18 prisoner hospitalizations, and at least 50 prisoner infections,
17 prison staff members are infected and 19 more are quarantined, awaiting test results,99
resulting in a staff shortage that has made even reviewing prisoners for release a “challenge.”100
first from fluid and then from scar tissue – impairing their ability to transfer oxygen and making breathing more laboured.”). 95 See, e.g., Michael Rothfeld, Somini Sengupta, Joseph Goldstein, and Brian M. Rosenthal, 13 Deaths in a Day: An “Apocalyptic” Coronavirus Surge at an N.Y.C. Hospital, New York Times (March 25, 2020), https://www.nytimes.com/2020/03/25/nyregion/nyc-coronavirus-hospitals.html (“[H]ospitals are under siege. New York City’s hospitals run the gamut from prestigious teaching institutions catering to the elite to public hospitals providing care for some of the poorest communities in the nation. Regardless of whom they serve, few have been spared the impact of the pandemic: A flood of sick and fearful New Yorkers has besieged emergency rooms across the city.”); see also Miguel Marquez and Sonia Moghe, Inside a Brooklyn Hospital that Is Overwhelmed with COVID-19 Patients and Deaths, CNN (March 30, 2020), https://www.cnn.com/2020/03/30/us/brooklyn-hospital-coronavirus-patients-deaths/index.html (“‘A medical war zone,’ [Dr. Arabia] Mollette, an emergency room physician at Brookdale Hospital, told CNN. ‘Every day I come, what I see on a daily basis, is pain, despair, suffering and health care disparities.’”). 96 Id. 97 See, e.g., Jessica Glenza, Ankita Rao, and Alexandra Villarreal, “It’s What Was Happening in Italy”: the Hospital at the Center of New York’s COVID-19 Crisis, THE GUARDIAN (March 27, 2020), https://www.theguardian.com/us-news/2020/mar/27/new-york-coronavirus-elmhurst-hospital. 98 See, e.g., Dylan Scott, Umair Irfan, and Jen Kirby, The Next Coronavirus Crisis Will Be a Shortage of Doctors and Nurses, VOX (March 26, 2020), https://www.vox.com/2020/3/26/21192191/coronavirus-usnew-york-hospitals-doctors-nurses. 99 Inmate Update, Dkt. No. 8 at 7. 100 Id. at 9.
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In the three weeks since Oakdale’s first positive COVID-19 case and the 12 days since the Attorney General ordered BOP to prioritize releases from Oakdale, the prison has apparently succeeded in releasing no one except to hospitals and mortuaries. Instead, its plan has merely identified fewer than 70 “potentially eligible” people for release. Even if every one of those people were already released, that plan is woefully insufficient to prevent the spread of disease and protect Class members from harm, primarily because it does not reduce the Oakdale population enough to allow prisoners to socially distance from others.101
III. The Remaining Factors Weigh Heavily in Favor of a Temporary Restraining Order and Preliminary Injunction
The third and fourth factors, whether the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted and weighing the public interest “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). Here, they weigh heavily in favor of granting relief.
As an initial matter, the requested injunction would protect Petitioners’ constitutional rights under the Eighth Amendment, and “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014) (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)); accord, e.g., June Medical Servs., LLC v. Caldwell, No. 14-cv-525-JWD-RLB, 2014 WL 4296679, at *8 (M.D. La. Aug. 31, 2014). Because “confidence in the humane application of the governing laws of the State must be in the public’s interest,” Harris v. Johnson, 323 F. Supp. 2d 797, 810 (S.D. Tex. 2004), there is a clear public interest in preventing Respondents from exposing Class members to cruel and unusual punishment in the form of willful exposure to a serious risk of severe harm. At the April 7 hearing, Respondents repeatedly asserted without proof that defending this suit would draw resources from their efforts to implement the Attorney General’s April 3 Memo. But prison officials cannot avoid responsibility for constitutional violations “simply because a remedy would involve intrusion into the realm of prison
101 Goldenson Dec., Ex. 1 at ¶¶ 31-32.
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administration.” Brown v. Plata, 563 U.S. 493, 511 (2011) (internal citations and quotations omitted).
And beyond the public interest in protecting the putative Class members themselves, minimizing risk of transmission of COVID-19 is inarguably in the public interest. As already explained, the BOP’s delayed, sluggish, prospective and indefinite release plan is likely to spread COVID-19 from the staff of Oakdale to the broader Oakdale and Allen Parish community. “[A] COVID-19 outbreak at a detention facility could quickly overwhelm” not only the facility’s medical system, but “surrounding community hospitals” as well. Coronel, 2020 WL 1487274, at *7. The resulting effect on “public health and safety” would plainly harm the public interest. Id. “What goes on at this federal prison affects inmates, staff, and the broader Oakdale community,” Sen. John Kennedy recently said, demanding action at the prison.102
Respondents will assuredly argue that release of Class and Subclass members, even to home confinement or other controlled environment, presents a danger to public safety. However, such generalized claims cannot overcome the very real, very immediate harm to Petitioners and the public of a continued outbreak that is likely to extend beyond the prison walls. Moreover, Oakdale is a low-security facility; the Attorney General has already recommended expanded transfers; and Petitioners’ own suggested relief contemplates self-isolation for at least 14-days to comply with CDC guidance. At the same time, most Louisianans are also sheltering in place and any discharged prisoners would be subject to the same order. Accordingly, any asserted threat to public safety is further diminished under current conditions, and, in any event, is far outweighed by the harms of continued detention in a prison racked by COVID-19, including potential death. Cf. Thakker v. Doll, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020) (holding that balance of equities favors release of detainees in light of COVID-19 in part because failure to appear already carries grave consequences and travel is currently restricted).
102 April 7, 2020, press release, supra n. 9. 23

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This is an archetypal situation for a temporary restraining order. In the face of the virulent pandemic sweeping through Oakdale and the surrounding community, none of the government’s proposed mitigation efforts—even if executed perfectly—would achieve the necessary social distancing103 or cure Respondents’ ongoing constitutional violations Under these circumstances, it is the fact of the Petitioners’ confinement itself that gives rise to the constitutional violation. See Preiser v. Rodriguez, 411 U.S. 475, 498 (1973); Malam v. Adducci, Case No. 2:20-cv10829-JEL-APP, Dkt. No. 22, at 12 (E.D. Mich. Apr. 5, 2020) (granting temporary restraining order, in part, in COVID-19 habeas action, noting that the underlying claim was “a challenge to the continued validity of confinement itself”). Immediate, responsible release of enough prisoners to reduce the incarcerated population at Oakdale to a level that allows for adequate social distancing is therefore the only action that will reduce the risk of COVID-19 contraction and protect the constitutional rights of the Class and Subclass members. Respondents have failed to take the required decisive action. Instead, they have placed the burden on other actors and other systems to effectuate the release of medically-vulnerable prisoners. Respondents are not moving with the requisite dispatch and Petitioners do not have the luxury of waiting any longer.
Immediately requiring Respondents to expedite release of Medically-Vulnerable Subclass members will allow the Court to “preserve the status quo”—a healthy prison population—and “prevent irreparable harm”—additional infections and deaths—“just so long as is necessary to hold a hearing, and no longer.” Snow v. Lambert, No. 15-cv-567-SDD-RLB, 2015 WL 5071981, at *1 (M.D. La. Aug. 27, 2015) (citation omitted). Petitioners are prepared to proceed to a preliminary injunction hearing as soon as Respondents and the Court are able. But, in the interim, a temporary restraining order is the only way to ensure that Respondents’ plan to lockdown Plaintiffs in a tinderbox of infection is not a fait accompli before this Court has the opportunity to pass judgment on it.
103 Goldenson Dec., Dkt. No. 1-3 at ¶ 14. 24

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CONCLUSION For the foregoing reasons, the Court should immediately order the following relief: (1) A temporary restraining order and/or preliminary injunction requiring Defendants to identify all Medically-Vulnerable Subclass Members within forty-eight (48) hours of the Court’s order; a. For any Medically-Vulnerable Subclass Member whose release Defendants would like to
challenge, Defendants must also present evidence within the same forty-eight (48) hour period that such individual presents such a serious risk of flight or imminent physical danger to others, even during home confinement and while Louisiana’s stay-at-home order remains in place, that no other conditions can mitigate that risk; b. Following this submission, the Magistrate Judge in this action will determine within fortyeight (48) hours whether Defendants have shown by clear and convincing evidence that Defendants’ evidence of a serious risk of flight or imminent physical danger, even during home confinement and while Louisiana’s stay-at-home order remains in place, substantially outweighs the risk of COVID-19 contraction at Oakdale; c. The Court will immediately release all such persons for whom Defendants have not made the required showing;
(2) A temporary restraining order and/or preliminary injunction requiring Defendants to provide all persons released with educational resources on COVID-19 including instructions that they should self-isolate for the CDC-recommended period of time (currently 14 days) following release; (3) A preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Defendants to:
a. Continue to release all current and future Medically-Vulnerable Subclass members absent the showing described above in paragraph (1);
b. Report weekly on the population of persons in Oakdale who are Medically-Vulnerable as defined in this action;
25

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c. Release additional Class Members, including those not considered Medically-Vulnerable, as needed to ensure that all remaining persons incarcerated at Oakdale are under conditions consistent with CDC and public health guidance to prevent the spread of COVID-19, including requiring that all persons be able to maintain social distancing; and
(4) A declaration that Oakdale’s policies violate the Eighth Amendment right against cruel and unusual punishment with respect to the Class Members.
Respectfully submitted this 13th day of April, 2020. Respectfully submitted by:

/s/ Bruce Hamilton Bruce Hamilton, La no. 33170 Katie Schwartzmann, La no. 30295
ACLU-F of Louisiana P.O. Box 56157
New Orleans, La 70156 (504) 522-0628
kschwartzmann@laaclu.org bhamilton@laaclu.org
David Luger* Hannah O. Koesterer* KATTEN MUCHIN ROSENMAN LLP
525 W. Monroe St. Chicago, IL 60661 david.luger@katten.com hannah.koesterer@katten.com
Ryan J. Meyer* KATTEN MUCHIN ROSENMAN LLP
2121 Pearl St., Ste. 1100 Dallas, TX 75201
ryan.meyer@katten.com *pro hac vice applications forthcoming

Somil Trivedi** Jennifer Wedekind* AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 915 15th St., NW Washington, DC 20005 **admitted pro hac vice *pro hac vice applications forthcoming
Andrea Woods* Brandon Buskey* Meredith Taylor Brown*
Gabriel Arkles* AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad St. New York, NY 10004 Tel. (212) 549-2500 awoods@aclu.org *pro hac vice applications forthcoming

26

Case 2:20-cv-00422-TAD-KK Document 9-1 Filed 04/13/20 Page 27 of 27 PageID #: 137 CERTIFICATE OF SERVICE
I hereby certify that on April 13, 2020, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the court’s electronic filing system.
I further certify that copies of all pleadings and other papers filed in the action to date or to be presented to the Court at the hearing, have been furnished to the Defendants’ attorneys, who have already made an appearance in this matter.
/s/ Bruce Hamilton Bruce Hamilton, La. Bar No. 33170
27

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

BRANDON LIVAS, RICHARD BUSWELL, DEWAYNE CORBETT, JOHNNY SMITH, CARLOS LORENZO MARTIN, and GAINES ANDREWS, on behalf of themselves and those similarly situated,
Petitioners, v.

Civil Action No. 2:20-CV-00422 Judge Terry A. Doughty Magistrate Judge Kathleen Kay

RODNEY MYERS, warden of Oakdale Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Respondents

DECLARATION OF SOMIL TRIVEDI

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the following is true

and correct to the best of my knowledge and belief:

1. My name is Somil Trivedi. I am a Senior Staff Attorney for the American Civil

Liberties Union and am counsel for the Petitioners in this case. I make this declaration in support

of Petitioners’ Emergency Motion for Release of Vulnerable and Low-Risk Prisoners From

Oakdale.

2. Attached hereto are true and correct copies of the following materials, identified

as numbered exhibits in the Motion:

Ex. 1:

Declaration of Joe Goldenson, MD

Ex. 2:

Declaration of Gaines Andrews

Ex. 3:

Declaration of Richard Buswell

Ex. 4:

Declaration of Pio Alejandr Campos

Case 2:20-cv-00422-TAD-KK Document 9-2 Filed 04/13/20 Page 2 of 2 PageID #: 139

Ex. 5: Ex. 6: Ex. 7: Ex. 8: Ex. 9: Ex. 10: Ex. 11: Ex. 12: Ex. 13:
Dated:

Declaration of Daniel Collins Declaration of Dewayne Corbett Declaration of Brandon Livas Declaration of Carlos Lorenzo Martin Declaration of Hector Perez Declaration of Justin Scott Declaration of Johnny Smith Declaration of John Sposato Declaration of Arthur Wammel

April 13, 2020

/s/ Somil Trivedi Somil Trivedi

Case 2:20-cv-00422-TAD-KK Document 9-3 Filed 04/13/20 Page 1 of 10 PageID #: 140
Declaration of Joe Goldenson, MD 1. I am a medical physician with 33 years of experience in correctional health care. For 28
years, I worked for Jail Health Services of the San Francisco Department of Public Health. For 22 of those years, I served as the Director and Medical Director. In that role, I provided direct clinical services, managed public health activities in the San Francisco County jail, and administered the correctional health enterprise, including its budget, human resources services, and medical, mental health, dental, and pharmacy services. 2. I served as a member of the Board of Directors of the National Commission on Correctional Health Care for eight years and was past President of the California chapter of the American Correctional Health Services Association. In 2014, I received the Armond Start Award of Excellence from the Society of Correctional Physicians, which recognizes its recipient as a representative of the highest ideals in correctional medicine. 3. For 35 years, I held an academic appointment as an Assistant Clinical Professor at the University of California, San Francisco. 4. I have worked extensively as a correctional health medical expert and court monitor. I have served as a medical expert for the United States District Court for the Northern District of California for 25 years. I am currently retained by that Court as a medical expert in Plata v. Newsom, Case No. 3:01-cv-01351 (N.D. Cal.), to evaluate medical care provided to inmate patients in the California Department of Correctional Rehabilitation. I have also served as a medical expert/monitor at Cook County Jail in Chicago and Los Angeles County Jail, at other jails in Washington State, Texas, and Florida, and at prisons in Illinois, Ohio, and Wisconsin.

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The nature of COVID-19 5. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease, is a
global pandemic and has been termed a global health emergency by the WHO. Cases first began appearing between December 1, 2019 and December 31, 2019 in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City. 6. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus that caused the 2002-2003 SARS epidemic. 7. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.3 to 3.5%, which is 5-35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are selflimited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support. 8. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardiovascular disease, respiratory disease, diabetes, and immune compromise. 9. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS), which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China.

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10. COVID-19 is widespread. Since it first appeared in Hubei Province, China, in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents; heavily affected countries include Italy, Spain, Iran, South Korea, and the U.S. The U.S. is now the world’s most affected country. As of April 12, 2020, there have been 1,807,939 confirmed human cases globally and 112,241 known deaths. The pandemic has been termed a global health emergency by the World Health Organization (“WHO”). It is not contained, and cases are growing exponentially.
11. In the United States alone, the Centers for Disease Control and Prevention (“CDC”) reports 545,387 cases and 21,482 deaths as of April 12, 2020. CDC reports 20,595 cases and 840 dead in Louisiana as of April 12. All these numbers are likely underestimates because of limited availability of testing.
12. SARS-nCoV-2 is now known to be fully adapted to human-to-human spread. This is almost certainly a new human infection, which also means that there is no pre-existing or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
13. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again is likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20-30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2-14 days, which is why isolation is generally limited to 14 days.

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14. There is currently no vaccine for COVID-19, and no cure. The only know ways to prevent the spread of SARS-nCoV-2 involve measures such as thorough handwashing, frequent decontamination of surfaces, and maintaining six feet of physical distance between individuals (“social distancing”). The risks of COVID-19 in detention facilities
15. COVID-19 poses a serious risk to prisoners, workers, and anyone else in detention facilities. Detention facilities, including prisons like Oakdale, have long been associated with high transmission probabilities for infectious diseases, including tuberculosis, multidrug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis.
16. The severe epidemic of Tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of Tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities surrounding a prison.
17. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as social distancing and proper decontamination of surfaces is virtually impossible.
18. For example, several deaths were reported in the U.S. in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May 2019.
19. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases. These include physical/mechanical risks such as overcrowding; population density in close confinement; insufficient ventilation; shared toilet, shower, and eating environments; and

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limits on hygiene and personal protective equipment such as masks and gloves in some facilities. Limits on soap (copays are common) and hand sanitizer, since they can contain alcohol, are also risks for spread. 20. Additionally, the high rate of turnover and population mixing of staff and detainees increase 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. The current outbreak in the detention facility of Riker’s Island in New York City is an example—and in the first days of that outbreak, the majority of cases were among prison staff, not inmates. 21. In addition to the nature of the prison environment, prison and jail 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 death or severe illnesses after infection from COVID-19 disease. 22. While every effort should be made to reduce exposure in detention facilities through internal mitigation efforts, this may be extremely difficult to achieve and sustain quickly enough. Further, no mitigation effort can change the inherent nature of detention facilities, which force people to live in close proximity to one another. 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. Indeed, that is the only public health solution available at this time to reduce the spread of COVID-19 and potentially save lives. 23. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are highly likely. Releasing as many inmates as possible is important to protect the health of

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inmates, correctional facility staff, health care workers at jails and other detention facilities, and the community as a whole. Indeed, according to the WHO, “enhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”1 24. From BOP reports,2 it is my understanding that 6 prisoners have died at FCI Oakdale. 46 detainees and 17 staff members have COVID-19, and that dozens more have symptoms. Even these dozens may represent the tip of the iceberg, since newly-infected people typically do not show symptoms for 2-14 days, and since the infection spreads rapidly to additional people. News outlets have reported that six detainees have already died from COVID-19 in FCI Oakdale. Given the way the disease has progressed elsewhere, we can expect the death toll to mount rapidly. 25. It is my understanding that FCI Oakdale has five open bay / dorm housing units, eight housing units with multiple-occupancy cells, and no housing units with single occupancy cells, but a number of segregation units. It also my understanding that FCI Oakdale may have upward of 100 new admissions in a given month and roughly 1,700 detainees in the facility on any given day; that staff that enter and leave the facility regularly; and that detainees share restroom and shower facilities and eat communally prepared food. 26. Based on these understandings, it is my opinion that the exponential infection of rate for COVID-19 we already see in the community would be magnified within FCI Oakdale.
1 World Health Organization, Regional Office for Europe, Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance (Mar. 15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-of-COVID-19in-prisons.pdf. 2 https://www.bop.gov/coronavirus/

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Adequate social distancing would be impossible to maintain. What’s more, the infection in FCI Oakdale would not stay limited to the facility, but would worsen infection rates in the broader community. The death rate will increase substantially before it starts to diminish without major interventions. This is why leaving implementation in the hands of local officials alone, who lack the expertise and resources and were incapable of preventing the outbreak in the first place or treating those who eventually died, is insufficient. 27. It is my public health recommendation that everyone who is medically-vulnerable to severe symptoms and death from COVID-19, as defined in this lawsuit,3 be released from FCI Oakdale immediately, taking precautions that they are released to a place where they can maintain medically appropriate isolation for at least 14 days and receive any necessary and available testing healthcare for underlying chronic conditions. 28. It is my public health recommendation that a public health expert be appointed to oversee operations related to preventing further spread of COVID-19 in FCI Oakdale, which may include authorizing further staggered release of detainees until it is possible to maintain consistent social distancing and appropriate hygiene within the facility. The government’s April 10, 2020 plan is inadequate to achieve social distancing or protect prisoners from COVID-19 and does not change my public health recommendations
3 “Persons held at Oakdale over the age of 50 , as well as all current and future persons held at Oakdale of any age who experience (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.”

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29. I have reviewed the documents submitted by the Defendants in this matter on April 10, 2020.
30. It appears that officials at Oakdale will review fewer than 70 prisoners for potential release, and it is unclear what number will actually be released or when that release would occur.
31. Even if all individuals currently under review were released, this would not achieve social distancing for those who remain at Oakdale. With a prisoner population of roughly 1,800, plus corrections officers and other staff, removing roughly 2% of the prisoner population cannot physically allow people to keep six feet between one another.
32. The government’s plan also has no timeline for release of prisoners. Given that COVID19 is already present in the facility and spreads at an exponential rate, the lack of a timeline is disturbing.
33. While I am not an expert in the factors being used to evaluate prisoners for potential release, I see that none of the factors overtly includes risk of COVID-19 contraction or transmission. Based on my public health expertise, this is the wrong approach to containing the outbreak and protecting the health and safety of prisoners, staff, and the broader community.
34. Accordingly, my public-health opinions and recommendations in paragraphs 26-28 above remain unchanged.
35. Given the five-day period between my original declaration and this one, and the exponential growth rate of COVID-19, I believe the urgency of implementing those recommendations has increased.

Case 2:20-cv-00422-TAD-KK Document 9-3 Filed 04/13/20 Page 9 of 10 PageID #: 148
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 12th day of April, 2020 in Alameda County, CA __________________________________ Joe Goldenson, MD References
1. Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016.
2. Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85.
3. Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447.
4. Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344.
5. Nakamoto Group, Prison Rape Elimination Act Audit Report of FCC Oakdale (2017), https://www.bop.gov/locations/institutions/oak/OAK_prea.pdf.

Case 2:20-cv-00422-TAD-KK Document 9-3 Filed 04/13/20 Page 10 of 10 PageID #: 149
6. Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)30663-8. doi: 10.1016/S0140-6736(16)30663-8
7. Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151.
8. BOP’s COVID Inmate Review Update, dated April 10, 2020. 9. BOP’s COVID Inmate Review Update Exhibit 1 (Declaration of Juan A. Segovia),
dated April 10, 2020.

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EXHIBIT 2

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Declaration of Gaines Andrews 1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons Register Number is 44677379. I previously pleaded guilty to one count of conspiracy to distribute methamphetamine and received a 10-year sentence. 2. I am 39 years old. I am a longtime smoker and I have asthma, which I treat with an albuterol inhaler. 3. I am concerned that I already have coronavirus or COVID-19, or that I will get it very soon. 4. Prison staff have been doing daily temperature checks for the last few days by sending a medical staff member through the unit. 5. Almost all of the other prisoners I interact with seem to be displaying symptoms. 6. I have not been placed in quarantine or isolation. My understanding is that anyone placed in quarantine is put into the segregated housing unit (“SHU”). 7. The prison staff is not sanitizing commonly-used areas, like telephones. For instance, yesterday, I had to use a telephone right after another inmate and it was not sanitized. 8. The prison guards sometimes wear masks and gloves, but it depends on the guard. 9. The prison staff is sometimes giving out masks to the inmates, but it depends on the day. For instance, masks were provided to us on Monday, but none were handed out on Tuesday or Wednesday. 10. If we are lucky, the prison staff may clean bathrooms once a day. 11. We currently have six working showers that about 125-128 prisoners are forced to share.

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12. I currently do not have my own soap; instead, we have communal bar soap in the showers that all of us use. When I shower, I have to just pick up whatever soap is left on the ground by the last person to have used the shower.
13. In my unit, we are housed in a dormitory-style set up with rows of bunks. Each night, I go to sleep in a bunk-bed with another inmate sleeping above me and inmates sleeping within three feet of me on each side.
14. We do not have any hand sanitizer whatsoever. 15. I filed a grievance last week with FCI Oakdale II, but I have never head back from them. 16. If I were transferred to home confinement tomorrow, I can live at my mother’s house in Pearland, Texas. My daughter could pick me up at Oakdale and drive me to Pearland. If I was in Pearland, Texas, I would have access to medical care, which is the only service I would need. My inhaler, which I already have, is the only prospective medical care I would need unless I contract COVID-19 before I am moved to home confinement.
I, April Rodriguez, certify that I reviewed the information contained in this declaration with Mr. Andrews by telephone on April 9, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
________________________________ April Rodriguez American Civil Liberties Union 125 Broad Street, 18th Floor, New York, NY 10004 212.284.7884 april.rodriguez@aclu.org

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EXHIBIT 3

Case 2:20-cv-00422-TAD-KK Document 9-5 Filed 04/13/20 Page 2 of 4 PageID #: 154
Declaration of Richard Buswell 1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons Register Number is 15618035. I previously pleaded guilty to one count of conspiracy to commit wire fraud and one count of distribution of synthetic marijuana. I received a 10-year sentence for the wire fraud charge and a consecutive 8-year sentence for the marijuana charge. 2. I am 51 years old and I have a number of serious chronic medical conditions. I have high blood pressure, which I treat with medication. I have asthma, which I treat with an albuterol inhaler. I also have sleep apnea, which requires me to use a Continuous Positive Airway Pressure (CPAP) machine to sleep at night. 3. I have personally been in contact with at least one individual who tested positive for coronavirus. He was not placed in quarantine or put in isolation. 4. I estimate that around 20 of the 70 men in my unit are showing coronavirus symptoms or seem sick. Several inmates have been sick enough to seek medical attention. One inmate in my unit had to wait six hours before he received any medical attention. He was pale, sweating, and looked very ill. Another man has been in bed for nearly a week and has asked for medical attention several times, but he has not been treated. If your temperature is not high, prison staff will not help you. 5. Prison staff has been performing daily temperature checks since April 2 or April 3, 2020. 6. In my unit, we are housed in a dormitory-style set up with rows of bunks. Bunks are approximately 30 to 36 inches apart from each other. There are approximately 70 men sleeping in an area that is around 2,300 square feet. We are jammed together like sardines.
1

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7. It is impossible to keep an appropriate distance when walking by someone in the hallway, because the hallways are less than 6 feet wide. To get into the bathroom, or walk down the hallway, or go to the hall to eat, people are forced to almost physically touch each other as they pass. People wait in line to get meals standing approximately six inches away from each other.
8. Inmates are offered a new mask once a day. At times, only half of the inmates are wearing masks.
9. Most of the correctional officers in my unit are wearing personal protective equipment, but occasionally I see an officer who is not wearing any. They started wearing personal protective equipment around April 2, 2020, after the first person at Oakdale tested positive for coronavirus. They were not wearing any personal protective equipment before that.
10. Prison staff members are terrified. They usually try to stay away from the inmates. They lock themselves in the office and let the inmates fend for themselves.
11. I have not seen any members of prison staff sanitizing commonly touched objects like phones. I try to sanitize the phone before I use it.
12. The bathroom area is very dirty. The prison staff tries to keep it clean, but there are so many men sharing the same bathroom. Five to ten men use the bathroom facility every two minutes, so it is almost impossible to keep it clean. Prison staff cleans the bathrooms and showers once or twice a day.
13. I have access to a bar of soap for my personal use. The prison is distributing bars of soap to inmates for free. People leave used bars of soap all over the counters in the bathroom because they do not want to reuse the communal soap for fear of cross-contamination. I can afford to buy soap from the commissary, but many inmates cannot.
14. Prison staff have access to hand sanitizer, but the inmates do not.
2

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15. I filed several grievances in March and early April 2020. I have not received any responses. Prison staff members seem overloaded.
16. Some members of the prison staff refuse to come to my unit because there are people here infected with coronavirus. Many new staff members have been hired recently.
17. Family friends in Hillsdale, Louisiana have offered me a place to stay if I am released to home confinement. They also offered to come pick me up if I am released. I would be able to self-isolate in their home for 14 days and I would have access to medical care if I needed it. I would not require any additional services or programs (such as substance abuse counseling or mental health treatment) if I were released to home confinement.
I, April Rodriguez, certify that I reviewed the information contained in this declaration with Mr. Buswell by telephone on April 9, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
________________________________ April Rodriguez American Civil Liberties Union 125 Broad Street, 18th Floor, New York, NY 10004 212.284.7884 april.rodriguez@aclu.org
3

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EXHIBIT 4

Case 2:20-cv-00422-TAD-KK Document 9-6 Filed 04/13/20 Page 2 of 3 PageID #: 158
Declaration of Pio Alejandr Campos
1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons Register Number is 09314089. I previously plead guilty to conspiring to distribute heroin. I was sentenced to 140 months. I have seven years left of my sentence, but with my enrollment in a drug program, I most likely have 5.5 years left.
2. I am 46 years old. I have diabetes, sleep apnea, chronic sinus, and high bloodpressure. I receive insulin every day, but the medical staff has not issued me a sleep apnea mask yet. I have been waiting for a year.
3. I have personally been experiencing coughing, body aches, and headaches for the past three weeks. Medical staff told me it was an allergic reaction and gave me an allergy shot.
4. Prison officials perform temperature checks in my unit daily. They started these temperature checks around April 3rd.
5. We are housed in a dormitory of 130 men, with half on each side. Our bunk beds are around three feet apart. If you stretch out your hand, you can touch the person next to you. We share eight bathrooms.
6. Prison officials took away our personal spray bottles that we used for cleaning. Now they put just one on each side of the dormitory. The chemical solution in the spray bottle is watered down.
7. I have observed a lot of people coughing during the night. Guards will not test a person unless they have a temperature.
8. Guards are supposed to distribute mask during temperature checks, but you have to ask to get one.
9. Prison officials have been wearing masks and gloves since around April 2nd.

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10. Hand sanitizer is available to purchase at commissary, but it does not contain alcohol.
11. I have not filed a grievance with FCI Oakdale II, but I have filed an emergency furlough request. No one has responded. My case manager knows nothing about my release status.
12. Less than 20 prisoners have been released since the outbreak and they are only people who had upcoming release dates.
13. Two officers that formerly conducted background checks have recently left because they may have tested positive for the virus. Several of us, including myself, worked closely with them.
14. I can live with my sister in Laredo, Texas if I am released to home confinement. She can pick me up at Oakdale and drive me to Laredo if I am released. I would be able to selfisolate for 14 days and I would have access to medical care if I needed it. I would not require any additional services or programs (such as substance abuse counseling or mental health treatment) if I were released to home confinement.
I, April Rodriguez, certify that I reviewed the information contained in this declaration with Mr. Campos by telephone on April 9, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
________________________________ April Rodriguez American Civil Liberties Union 125 Broad Street, 18th Floor, New York, NY 10004 212.284.7884 april.rodriguez@aclu.org

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EXHIBIT 5

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Declaration of Daniel Collins
1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons Register Number is 12546035. I previously plead guilty to one charge of conspiring to distribute methamphetamine and one charge of possession of a firearm in relation to a drug trafficking offense. I was sentenced to serve 168 months in prison on the former charge, to run consecutively to a 60-month sentence on the latter charge, as well as five years on supervised release. I have 11 months left of my sentence.
2. I am 38 years old. I do not have any medical conditions. 3. We are housed in two cramped dormitories and our bunk beds are about three feet apart from each other. Around 130 men share eight toilets and five showers. We used to have more showers, but they ripped out the showers in the north dormitory and haven’t replaced them. They recently stopped all construction. 4. I have personally been in contact with several people who tested positive for coronavirus. 5. I am concerned that I experienced COVID-like symptoms starting on Tuesday, including cold sweats and aches. I have not been put in quarantine or isolation. 6. I am housed with several elderly prisoners and fear they may get sick. Prison staff are not putting them in quarantine or isolation. 7. Orderlies are not sanitizing the phones. I’m forced to use the phone right after someone else without it being cleaned. 8. We are given some cleaning supplies, but the spray bottles are often empty. They are filled with a pink chemical solution that seems diluted. The color is normally a darker shade of red.

Case 2:20-cv-00422-TAD-KK Document 9-7 Filed 04/13/20 Page 3 of 4 PageID #: 162
9. The prison staff is distributing small bars of white soap for free. We can also purchase soap at the commissary.
10. We can purchase hand sanitizer at the commissary, but the sanitizer does not have alcohol in it.
11. The prison staff is giving out masks inconsistently. They stopped for a few days, but recently started handing them out again.
12. Prison officials began taking prisoners’ temperature checks on Monday. Our temperatures are taken every morning.
13. I have observed several prisoners with serious symptoms, including coughing, aches, and pain.
14. I have not filed a grievance with FCI Oakdale II, but I have filed an emergency furlough request. Prison officials are not answering grievances right now.
15. If I were transferred to home confinement tomorrow, I can live at my mother’s house at 9960 Freedom's Way, Keithville, LA 70147. My mother can pick me up at Oakdale and drive me to Keithville. I could self-isolate myself there for 14 days and I would have access to medical care. I would not require any additional services or programs (such as substance abuse counseling or mental health treatment) if I were released to home confinement.
I, April Rodriguez, certify that I reviewed the information contained in this declaration with Mr. Collins by telephone on April 9, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.

Case 2:20-cv-00422-TAD-KK Document 9-7 Filed 04/13/20 Page 4 of 4 PageID #: 163
April Rodriguez American Civil Liberties Union 125 Broad Street, 18th Floor, New York, NY 10004 212.284.7884 april.rodriguez@aclu.org

Case 2:20-cv-00422-TAD-KK Document 9-8 Filed 04/13/20 Page 1 of 3 PageID #: 164
EXHIBIT 6

Case 2:20-cv-00422-TAD-KK Document 9-8 Filed 04/13/20 Page 2 of 3 PageID #: 165
Declaration of Dewayne Corbett 1. I am currently incarcerated at the Camp at FCI Oakdale I. My Bureau of Prisons Register Number is 21703171. 2. I am 58 years old and in chronic care. I have a respiratory disorder involving a 4by-5 millimeter nodule on my lungs for which I am awaiting a CT scan. I am feeling psychological stress from the inability to stay away from people who might make this condition worse. 3. Prison staff started daily temperature checks about a week ago. Staff took my temperature with a forehead applicator at about 9:00 a.m. on April 10, 2020. About a week ago we were also seen by a doctor who used the same gloves to touch multiple prisoners. 4. I sleep in a 10x15-foot cell with two other prisoners. When I wake up, I am faceto-face with them and have to slide by them to get out the door. 5. I have personally been in contact with at least one person who had COVID-19. 6. I have my own bar of soap. Staff just put hand sanitizer in the bathrooms, but it is watered down. 7. I filed a BP-8 grievance related to COVID-19 but was denied. I was told that, because I was not 60 years old and had “violence in past”—even though my charge is not violent— I was denied. 8. I do not know anyone who has been released. 9. If I am released to home confinement, I can live with daughter Natasha, who loves me. She can pick me up at Oakdale if I am released. I would have a room of my own at Natasha’s house and be able to self-isolate in her home for 14 days. I would have access to medical care if I needed it.
1

Case 2:20-cv-00422-TAD-KK Document 9-8 Filed 04/13/20 Page 3 of 3 PageID #: 166 I, Somil Trivedi, certify that I reviewed the information contained in this declaration with
Mr. Corbett by telephone on April 2 and 10, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge. ________________________________ Somil Trivedi American Civil Liberties Union 915 15th St., NW, Washington, D.C. 20005 202.715.080s strivedi@aclu.org
2

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EXHIBIT 7

Case 2:20-cv-00422-TAD-KK Document 9-9 Filed 04/13/20 Page 2 of 4 PageID #: 168
Declaration of Brandon Livas 1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons
Register Number is 3773604. I am a first-time, nonviolent offender serving a 15-month sentence for fraud that began on Dec. 2, 2019. 2. I am 35 years old and I have two serious medical conditions. I suffer from diabetes and acute pancreatitis, which was diagnosed about a year ago, in March 2019. I take medication regularly for these conditions, and I receive those medications here in the prison. 3. It is impossible for people in Oakdale to stay six feet away from each other. In the Camp, I live in barracks-style dorms with about 70 people per room where bunk beds are about 2.5 feet apart. In other words, I sleep with people to my left, to my right, and directly below me, all within six feet. 4. I am concerned that I have been exposed to the coronavirus, that I may already have the disease (COVID-19) caused by the coronavirus, or that I will get it very soon. I know that I came into contact with another person who has tested positive for COVID-19 by walking past him or nearby him. 5. Two prisoners in the Camp have tested positive for COVID-19. 6. In my unit, I am surrounded by people who exhibit symptoms of sickness. For example, many people are coughing throughout the night. 7. In the Camp, approximately 140 prisoners share eight showers and ten toilets, which are not clean. Diluted chemicals are used to clean them. 8. As part of my job duties at Oakdale, I am expected to clean about six offices. 9. I have never seen prison staff sanitizing or wiping down common areas or surfaces such as telephones.

Case 2:20-cv-00422-TAD-KK Document 9-9 Filed 04/13/20 Page 3 of 4 PageID #: 169
10. Although misstated in the Complaint, bars of soap are accessible to me—they are in the bathroom for general use. I have purchased my own bar of Suave soap from the commissary for about three dollars. I have no access to hand sanitizer. Laundry is done here once a week.
11. The prison staff wear personal protective equipment inconsistently—some of them wear a mask or gloves, but generally not both and not all the time.
12. About two weeks ago, I filed a grievance with the prison staff stating that I am in fear for my life and safety because of the threat of the coronavirus; I listed my health conditions. I have not received any response to the written grievance I submitted.
13. On the evening of April 1, I was told by one of the prison counselors that the entire prison staff had been exposed to the coronavirus and that the incarcerated population also had been exposed entirely. She informed us that if we get sick, we won’t get medical treatment unless circumstances are dire, and that we might die.
14. Prison staff began taking the temperatures of prisoners about a week ago. 15. At the end of last week, the prison staff began to hand out masks to prisoners. We are
now receiving new surgical-style masks every day. 16. If I were transferred to home confinement, I would stay with my girlfriend in New
Orleans, where I am from. She would come to the prison and pick me up if I were released, and I could isolate myself in her home for 14 days. I would have access to necessary medical care or medications there.

Case 2:20-cv-00422-TAD-KK Document 9-9 Filed 04/13/20 Page 4 of 4 PageID #: 170
I, Bruce Hamilton, certify that I reviewed the information contained in this declaration with Mr. Livas by telephone on April 9, 2020, and that he certified that the information contained in this declaration is true and correct to the best of his knowledge.
______________________________ Bruce Hamilton American Civil Liberties Union Foundation of Louisiana 1340 Poydras Street New Orleans, LA 70112

Case 2:20-cv-00422-TAD-KK Document 9-10 Filed 04/13/20 Page 1 of 3 PageID #: 171
EXHIBIT 8

Case 2:20-cv-00422-TAD-KK Document 9-10 Filed 04/13/20 Page 2 of 3 PageID #: 172

Declaration of Carlos Lorenzo Martin

1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons

Register Number is 15029043. I am serving a 13-month sentence as a result of a revocation of

supervised release. I am scheduled to be released to a halfway house on September 9, 2020.

2. I am 35 years old. I have compromised lungs due to childhood asthma.

3. Prison staff perform temperature checks daily, but we have to stand in line right

beside each other.

4. Two inmates were taken from my unit due to high temperatures. I worked near

them and have not been put in quarantine or in isolation.

5. I am an orderly and I clean the bathrooms on the south side of the dormitory once

a day in the morning. The gloves I am given to clean with tear easily. I use a pink chemical that is

watered down and occasionally I’m given Clorox spray. Our personal cleaning supplies were taken

away weeks ago.

6. The prison staff have been distributing masks for the past two weeks. Sometimes

the guards do not wear gloves when handing out masks.

7. The prison guards are absolutely not wearing masks at all times. Some come in with

masks and some don’t.

8. I have access to my own personal bar of soap that I purchased at the commissary.

As an orderly, I distribute small bars of soap and place them near the bathroom sinks. The

communal soap is being used by inmates right after each other. The medical staff told us not to

worry about it.

9.

Hand sanitizer is available for purchase at the commissary, but it does not contain

alcohol.

Case 2:20-cv-00422-TAD-KK Document 9-10 Filed 04/13/20 Page 3 of 3 PageID #: 173
10. Prisoners are housed in a dormitory and on each side there are about 70 bunk beds lined up in a row. I can reach out and touch my neighbor above me and next to me. About 130 men share six showers and eight toilets. The showers on the north side are not working. Prison staff informed the maintenance workers that finishing construction was not a priority and they were moved to complete showers for police officers at a bank next door.
I, April Rodriguez, certify that I reviewed the information contained in this declaration with Mr. Martin by telephone on April 10, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
________________________________ April Rodriguez American Civil Liberties Union 125 Broad Street, 18th Floor, New York, NY 10004 212.284.7884 april.rodriguez@aclu.org

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EXHIBIT 9

Case 2:20-cv-00422-TAD-KK Document 9-11 Filed 04/13/20 Page 2 of 3 PageID #: 175
Declaration of Hector Perez
1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons Register Number is 83897479. I previously plead guilty to a drug possession charge. I was sentenced to five years. I have three and a half years left of my sentence.
2. I am 50 years old. I have diabetes and high blood-pressure. I have a pain in my left lung, and it is difficult to breath. I have asked for medical treatment for my lung but have not received any.
3. Medical staff are not performing temperature checks every day and are not quick to answer medical treatment requests.
4. Prison staff occasionally clean high-touch areas like the phones, but I often use the phone after someone without it being sanitized. I try to clean the phone with my own handkerchief.
5. The prison staff in my unit started wearing masks and gloves about a week ago and are distributing masks on request.
6. I have access to my own personal bar of soap that I purchased at the commissary. The prison staff distributes small bars of soap to clean our hands, but we can’t use them to bathe ourselves.
7. Prison staff are not distributing cleaning supplies consistently. We do not have personal spray bottles anymore.
8. We are housed in dormitories that are dirty and crowded. There are 130 men sharing five showers. Our bunk beds are spaced three feet apart from each other. There is not enough space to distance yourself from people who are coughing and exhibiting symptoms.
9. Two inmates have been removed from my unit. One had a high fever and the other had diarrhea.

Case 2:20-cv-00422-TAD-KK Document 9-11 Filed 04/13/20 Page 3 of 3 PageID #: 176
10. If I were transferred to home confinement tomorrow, I can live at my family’s house in Fresno, Texas. My son could pick me up at Oakdale and drive me to Fresno. I would be able to self-isolate for 14 days and I would have access to medical care. I would not require any additional services or programs (such as substance abuse counseling or mental health treatment) if I were released to home confinement.
I, April Rodriguez, certify that I reviewed the information contained in this declaration with Mr. Perez by telephone on April 9, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
________________________________ April Rodriguez American Civil Liberties Union 125 Broad Street, 18th Floor, New York, NY 10004 212.284.7884 april.rodriguez@aclu.org

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EXHIBIT 10

Case 2:20-cv-00422-TAD-KK Document 9-12 Filed 04/13/20 Page 2 of 3 PageID #: 178
Declaration of Justin Scott
1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons Register Number is 07752095. I previously plead guilty to conspiring to distribute heroin. I was sentenced to 71 months. I have 58 days left until my halfway house release date. I have never been written up during my four years of imprisonment.
2. I am 36 years old. I was shot in 2008, which left me with one working lung. Only half of my other lung is functioning. I reminded the warden and my case manager of my medical condition last week and still have not received a response.
3. A prison official told me that I’m not a priority for release. 4. Prison staff are performing temperature checks every day, but they are not sanitizing the thermometer before they check the next person. We do not stand six feet apart during temperature checks. 5. I have personally been in contact with people who tested positive for coronavirus. I have not been put in quarantine or isolation. 6. Some spray bottles for cleaning are left by the phones, but they run out quickly. The cleaning solution is diluted and has been cut so many times, that it’s basically water. We have to take cleaning upon ourselves, since officers are not regularly doing it. 7. Guards have been distributing masks every other day since around April 2nd. They do not wear gloves when doing so. 8. Prisoner officials are not consistently wearing masks. 9. I know of one prison officer who recently quit because he was asked to work in a unit that included infected prisoners.

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10. Hand sanitizer is available to purchase at the commissary, but it does not contain alcohol.
11. If I were transferred to home confinement tomorrow, I can live at my parents’ house at 169 Oakwood Drive, Denham Springs, Louisiana. My father can pick me up at Oakdale and drive me to Denham Springs. I could self-isolate myself there for 14 days and I would have access to medical care. I would not require any additional services or programs (such as substance abuse counseling or mental health treatment) if I were released to home confinement.
I, April Rodriguez, certify that I reviewed the information contained in this declaration with Mr. Scott by telephone on April 9, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
________________________________ April Rodriguez American Civil Liberties Union 125 Broad Street, 18th Floor, New York, NY 10004 212.284.7884 april.rodriguez@aclu.org

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EXHIBIT 11

Case 2:20-cv-00422-TAD-KK Document 9-13 Filed 04/13/20 Page 2 of 4 PageID #: 181
Declaration of Johnny Smith 1. I am currently incarcerated at FCI Oakdale I. My Bureau of Prisons Register Number is
33172034. I am serving a 24.5-year sentence for a sex offense; I have served 9.5 years of that sentence. 2. I was a mortuary affairs specialist in the U.S. Army Reserves. I am 49 years old and I have two serious medical conditions. I suffer from hypertension and a thyroid condition, which was diagnosed about five months ago. I take medication regularly for these conditions, and I receive those medications here in the prison. 3. It is impossible for people in Oakdale to stay six feet away from each other. I live in a six-person dorm in which beds are spaced about 2.5 feet apart. My unit in FCI Oakdale I, known as Vernon 1, currently houses about 180 total men who share eight toilets, 12 urinals, 12-14 sinks, and 20 showers. The showers are separated by thin, plastic partitions so that water from one shower stall splashes the person in the next stall. The roof leaks, and I have seen mold on the walls. 4. Good sanitation is not practically possible because of the conditions here. The building is so congested that it cannot be effectively disinfected. The chemical used in FCI Oakdale I, Clean On The Go, requires 10 minutes between applications. I have never seen prison staff applying it to common areas between prisoners’ uses of those areas. 5. After we went into full lockdown, we ran out of disinfectant and none was available for more than a week. We have not had any now for 2-3 days. 6. I believe the infection rate inside the prison is 100 percent, and I am certain that I have already contracted COVID-19. I am now mostly asymptomatic, but for several weeks I lost my sense of taste and smell. I had a persistent cough from which I am recovering. Many prisoners are exhibiting symptoms of sickness.

Case 2:20-cv-00422-TAD-KK Document 9-13 Filed 04/13/20 Page 3 of 4 PageID #: 182
7. After the first prisoner here tested positive for COVID-19, the entire population of his housing unit was dispersed throughout other units, which doubled the population of my unit. We were crowded like sardines so that we had no choice but to be exposed to the virus. The next day, one of my friends began to exhibit symptoms of the virus, and he was removed for a 14-day quarantine. He was sent back into my housing unit yesterday.
8. I am worried for the health of a cellmate. He is 68 years old and has several health conditions, including COPD, asthma, hypertension, a heart valve, osteoarthritis. He had to be given medical attention last night when correctional officers used pepper-spray. His movement is restricted and he must use a walker known as a Rollator to get around.
9. Although prisoners here have soap, hand sanitizer is not available except for purchase at the commissary.
10. Prison officials began taking prisoners’ temperatures about a week and a half ago. Our temperatures are taken every morning.
11. Correctional officers used to wear masks in the prison, but they have largely stopped because they have apparently decided that it is futile.
12. Laundry is done once a week, which is insufficient because we are issued only four boxers, four shirts, and four pairs of socks.
13. About four weeks ago, I approached the infectious disease liaison for FCI Oakdale I and made a handwritten request, also known as a “copout,” for antibacterial wipes and gel, as well as personal protective equipment, including a face mask and latex gloves. The liaison said she would “look into it.” I received no response.

Case 2:20-cv-00422-TAD-KK Document 9-13 Filed 04/13/20 Page 4 of 4 PageID #: 183
14. About 10 days ago, I submitted another written request with no response. I then submitted a BP-8, known as an “informal resolution,” to my unit team. I still have not received a response.
15. The prison began handing out masks to prisoners about a week and a half ago. We were told to re-use the masks. We recently received new masks.
I, Bruce Hamilton, certify that I reviewed the information contained in this declaration with Mr. Smith by telephone on April 9, 2020, and that he certified that the information contained in this declaration is true and correct to the best of his knowledge.
Bruce Hamilton American Civil Liberties Union Foundation of Louisiana 1340 Poydras Street New Orleans, LA 70112

Case 2:20-cv-00422-TAD-KK Document 9-14 Filed 04/13/20 Page 1 of 3 PageID #: 184
EXHIBIT 12

Case 2:20-cv-00422-TAD-KK Document 9-14 Filed 04/13/20 Page 2 of 3 PageID #: 185
Declaration of John Sposato 1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons Register Number is 13468018. I previously plead guilty to a wire fraud charge. I was sentenced to 84 months of imprisonment. I have one year left of my sentence. 2. I am 69 years old. I have diabetes and a heart condition. 3. Prison staff are supposed to take temperature checks every day, but they are not consistent. We do not stand six feet apart during temperature checks. 4. We were told yesterday that the virus has now spread from FCI Oakdale I to FCI Oakdale II. 5. Guards that work in infected units move back and forth among the units and the hospital. They are spreading the virus to inmates with their movements. This is a ticking time bomb waiting to go off. 6. Prisoners in quarantine are rioting because they are being sent to infected facilities where the outbreak started. 7. There are around 120 men in my dormitory who share six showers. The showers are not cleaned after each use. The bunk beds in the dormitory are spaced about two and half feet apart from each other. 8. Prison staff told us they would resupply the cleaning supplies, but they have yet to do so. They took away our personal spray bottles a couple of weeks ago. The spray bottles are filled with a diluted pink chemical. 9. Hand sanitizer is available to purchase at the commissary, but it is completely worthless because it does not contain alcohol.

Case 2:20-cv-00422-TAD-KK Document 9-14 Filed 04/13/20 Page 3 of 3 PageID #: 186
10. I have access to my own personal bar of soap that I purchased at the commissary. The liquid antibiotic soap at the hand washing stations has been out for months.
11. The kitchen has been shut down and we are eating out of boxed food trays. We must stand in line for food about 12 inches apart.
12. If I were transferred to home confinement tomorrow, I can live at a family friend’s house in Picayune, Mississippi. My family friend could pick me up at Oakdale and drive me to Picayune. I would be able to self-isolate for 14 days and I would have access to medical care. I would not require any additional services or programs (such as substance abuse counseling or mental health treatment) if I were released to home confinement.
I, April Rodriguez, certify that I reviewed the information contained in this declaration with Mr. Sposato by telephone on April 9, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
April Rodriguez American Civil Liberties Union 125 Broad Street, 18th Floor, New York, NY 10004 212.284.7884 april.rodriguez@aclu.org

Case 2:20-cv-00422-TAD-KK Document 9-15 Filed 04/13/20 Page 1 of 4 PageID #: 187
EXHIBIT 13

Case 2:20-cv-00422-TAD-KK Document 9-15 Filed 04/13/20 Page 2 of 4 PageID #: 188
Declaration of Arthur Wammel 1. I am currently incarcerated at the Camp at FCI Oakdale II. My Bureau of Prisons Register Number is 27498078. 2. I am 47 years old and I have asthma and hypertension. 3. Prison staff are performing daily temperature checks. Inmates are lined up right next to each other, not six feet apart, while we wait for our temperature to be taken. 4. I have personally been in contact with at least one person who tested positive for coronavirus. 5. We are housed in a crowded dormitory and our bunks are lined up in long rows. There are around 125 inmates in one area. There are no cubicles to separate us from each other. All 125 of us share the same showers and ten urinals. 6. Many of the inmates in my unit are coughing frequently. I estimate that around 60 men are coughing all night long. 7. Prison staff has started cleaning more frequently this week. The showers are usually cleaned once or sometimes twice a day. There are no cleaning products in the bathrooms for us to use. The communal phones are not being sanitized by prison staff so inmates try to sanitize the phones themselves. The guards have access to bleach, but inmates are only given spray bottles with some kind of pink chemical inside. Two staff members at Oakdale told me they have stopped testing prisoners under the assumption that anyone who is sick has COVID-19 already. Staff are also attempting to return prisoners from quarantine back into their old cells. 8. Inmates are offered a new mask once a day. 9. Correctional officers started wearing masks and gloves around April 6 or 7, 2020.
1

Case 2:20-cv-00422-TAD-KK Document 9-15 Filed 04/13/20 Page 3 of 4 PageID #: 189
10. I purchased a bar of soap for my personal use. The prison is distributing small bars of soap to inmates for free. We do not have access to hand sanitizer.
11. I filed a grievance around April 4 or 5, 2020. I have not received a response. 12. I know of only one or two Oakdale inmates who have been released to home confinement because of COVID-19. 13. I know of two or three correctional officers who retired recently because of the coronavirus outbreak at Oakdale. 14. I can live with my girlfriend in Houston, Texas if I am released to home confinement. She can pick me up at Oakdale if I am released. I would be able to self-isolate in her home for 14 days and I would have access to medical care in Houston if I needed it. I would not require any additional services or programs (such as substance abuse counseling or mental health treatment) if I were released to home confinement.
I, April Rodriguez, certify that I reviewed the information contained in this declaration with Mr. Wammel by telephone on April 9, 2020, and that he certified that the information contained in this declaration was true and correct to the best of his knowledge.
________________________________ April Rodriguez American Civil Liberties Union 125 Broad Street, 18th Floor, New York, NY 10004 212.284.7884 april.rodriguez@aclu.org
I, Somil Trivedi, certify that I reviewed the information contained in the final two sentences of paragraph 7 of this declaration with Mr. Wammel by telephone on April 9, 2020, and he certified that the information contained in those sentences was true and correct to the best of his knowledge.
2

Case 2:20-cv-00422-TAD-KK Document 9-15 Filed 04/13/20 Page 4 of 4 PageID #: 190 ________________________________ Somil Trivedi American Civil Liberties Union 915 15th St., NW, Washington, D.C. 20005 202.715.080s strivedi@aclu.org
3

Case 2:20-cv-00422-TAD-KK Document 9-16 Filed 04/13/20 Page 1 of 1 PageID #: 191

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

BRANDON LIVAS, RICHARD BUSWELL, DEWAYNE CORBETT, JOHNNY SMITH, CARLOS LORENZO MARTIN, and GAINES ANDREWS, on behalf of themselves and those similarly situated,

Civil Action No. 2:20-CV-00422 Judge Terry A. Doughty

Petitioners, v.

Magistrate Judge Kathleen Kay

RODNEY MYERS, warden of Oakdale Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Respondents.

[PROPOSED] ORDER Considering the foregoing Emergency Motion For Release of Vulnerable And Low-Risk Prisoners From Oakdale, it is ordered that the motion is GRANTED.
Signed in Monroe, Louisiana, this ____ day of April, 2020.
_____________________________________________________________ UNITED STATES DISTRICT JUDGE TERRY A. DOUGHTY

 
 Case 2:20-cv-00422-TAD-KK Document 10 Filed 04/13/20 Page 1 of 4 PageID #: 192

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. VERSUS RODNEY MYERS, ET AL.

CIVIL ACTION NO. 2:20-CV-00422 JUDGE TERRY A. DOUGHTY MAG. JUDGE KATHLEEN KAY

MEMORANDUM ORDER Plaintiffs filed a Complaint in the above-referenced matter on April 6, 2020. In that Complaint, they raised time-sensitive claims and requested injunctive relief. As a result, the Court set a telephone conference for April 7, 2020, at 2:00 p.m. As a result of that status conference, Defendants provided the name of four inmates who were previously identified for removal from Oakdale. [Doc. No. 7]. However, only one of those inmates appears slated for release. Additionally, on April 10, 2020, Defendants filed its “BOP’S Covid-19 Inmate Review Update” [Doc. No. 8]. As instructed, Defendants provided information on the framework or guidance under which decisions are being made as to the release, removal, or furlough of prisoners. Defendants also provided the history of the Attorney General’s memos and their actions thereunder, as well as information on the conditions at the Oakdale facilities. Plaintiffs’ counsel had previously indicated that they would review the provided information before making a decision to file a motion for injunctive relief.

Case 2:20-cv-00422-TAD-KK Document 10 Filed 04/13/20 Page 2 of 4 PageID #: 193
Today, April 13, 2020, Plaintiffs filed an “Emergency Motion for Release of Vulnerable
and Low-Risk Prisoners from Oakdale [Doc. No. 9]. Along with the motion, Plaintiffs filed a
memorandum and accompanying evidence. Plaintiffs seek the following relief:
(1) A temporary restraining order and/or preliminary injunction requiring Defendants to identify all Medically-Vulnerable Subclass Members within forty-eight (48) hours of the Court’s order:
a. For any Medically-Vulnerable Subclass Member whose release Defendants would like to challenge, Defendants must also present evidence within the same forty-eight (48) hour period that such individual presents such a serious risk of flight or imminent physical danger to others, even during home confinement and while Louisiana’s stay-at-home order remains in place, that no other conditions can mitigate that risk;
b. Following this submission, the Magistrate Judge in this action will determine within forty-eight (48) hours whether Defendants have shown by clear and convincing evidence that Defendants’ evidence of a serious risk of flight or imminent physical danger, even during home confinement and while Louisiana’s stay-at-home order remains in place, substantially outweighs the risk of COVID-19 contraction at Oakdale;
c. The Court will immediately release all such persons for whom Defendants have not made the required showing;
(2) A temporary restraining order and/or preliminary injunction requiring Defendants to provide all persons released with educational resources on COVID-19 including instructions that they should self-isolate for the CDC-recommended period of time (currently 14 days) following release;
(3) A preliminary injunction, permanent injunction,and/or writ of habeas corpus requiring Defendants to:
a. Continue to release all current and future Medically-Vulnerable Subclass members absent the showing described above in paragraph (1);
b. Report weekly on the population of persons in Oakdale who are MedicallyVulnerable as defined in this action;
c. Release additional Class Members, including those not considered MedicallyVulnerable, as needed to ensure that all remaining persons incarcerated at Oakdale are under conditions consistent with CDC and public health guidance to prevent the spread of COVID-19, including requiring that all persons be able to maintain social distancing; and
2

Case 2:20-cv-00422-TAD-KK Document 10 Filed 04/13/20 Page 3 of 4 PageID #: 194
(4) A declaration that Oakdale’s policies violate the Eighth Amendment right against cruel and unusual punishment with respect to the Class Members.
[Doc. No. 9-1, p. 25]. To the extent that Plaintiffs move for a temporary restraining order (“TRO”), Defendants
have since been provided notice of the Complaint and allegations set forth and have been actively participating in this case. The Court finds, at this point, Plaintiffs seek a preliminary injunction. Accordingly,
IT IS ORDERED that any motion for a TRO is DENIED AS MOOT. To the extent that Plaintiffs seek expedited consideration of their request for a preliminary injunction, IT IS ORDERED that the motion for emergency or expedited consideration is GRANTED. However, in order to fully consider Plaintiffs’ request for a preliminary injunction and determine whether a hearing on the preliminary injunction is necessary, the Court seeks a response from Defendants. Therefore, IT IS ORDERED that Defendants must file a response to Plaintiffs’ motion for a preliminary injunction no later than April 15, 2020. IT IS FURTHER ORDERED that Defendants file an additional response providing an update, if there is any, to the information provided on April 9 and 10, 2020, no later than noon on April 16, 2020. The Court particularly seeks an update on the projected release of medically vulnerable prisoners (under the criteria identified by the CDC) and of prisoners age 65 or older (with or without identified pre-existing health conditions).1 Finally,
1 The Court is aware that Plaintiffs have identified the requisite age as 50; however, the Court seeks information on prisoners age 65 or older, as that class has been identified as higher risk by the CDC.
3

Case 2:20-cv-00422-TAD-KK Document 10 Filed 04/13/20 Page 4 of 4 PageID #: 195 IT IS FURTHER ORDERED that a telephone status conference is set for April 16, 2020,
at 3:00 P.M. Counsel shall call the conference line at the appointed line and enter the pass code previously provided. Counsel shall be prepared to provide immediate dates for a hearing and to provide input on how best to address the evidentiary issues which may arise during any such hearing.
MONROE, LOUISIANA, this 13th day of April, 2020.
TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE
4

 
 Case 2:20-cv-00422-TAD-KK Document 12 Filed 04/15/20 Page 1 of 1 PageID #: 200

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. VERSUS RODNEY MYERS, ET AL.

) CIVIL ACTION NO. 20-cv-00422 ) ) JUDGE DOUGHTY ) ) MAGISTRATE JUDGE KAY )

RESPONDENTS= MOTION TO DISMISS NOW COME Respondents1, Rodney Myers, Warden of Oakdale Federal Correctional

Institutions and Michael Carvajal, Federal Bureau of Prisons Director, in their official capacities,

by and through David C. Joseph, United States Attorney for the Western District of Louisiana, and

Karen J. King, Assistant United States Attorney, and respectfully move this Court to dismiss the

Petitioners’ original Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief, for

lack of subject matter jurisdiction, or alternatively, for failure to state a claim, pursuant to

Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and as more fully explained in the Memorandum in Support

filed simultaneously herewith.

Respectfully Submitted,

DAVID C. JOSEPH UNITED STATES ATTORNEY

BY: s/ Karen J. King

KAREN J. KING (#23508)

Assistant United States Attorney

800 Lafayette Street, Suite 2200

Lafayette, Louisiana 70501

Telephone: (337) 262-6618

Facsimile: (337) 262-6693

Email:

karen.king@usdoj.gov

1 As April 15, 2020, Counsel for Respondents has been unable to verify that service of the petition has been properly made pursuant to Rule 4(i), FED.R.CIV.P.

Case 2:20-cv-00422-TAD-KK Document 12-1 Filed 04/15/20 Page 1 of 33 PageID #: 201

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. VERSUS RODNEY MYERS, ET AL.

) CIVIL ACTION NO. 20-cv-00422 ) ) JUDGE DOUGHTY ) ) MAGISTRATE JUDGE KAY )

MEMORANDUM IN SUPPORT OF RESPONDENTS’ MOTION TO DISMISS

Case 2:20-cv-00422-TAD-KK Document 12-1 Filed 04/15/20 Page 2 of 33 PageID #: 202
TABLE OF CONTENTS Page(s)
TABLE OFAUTHORITIES .......................................................................................................... iii INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................2
A. STATUTORY FRAMEWORK.....................................................................................2 B. THE PETITION AND ALLEGED FACTS ..................................................................3 STANDARD OF REVIEW .............................................................................................................5 A. LACK OF SUBJECT MATTER JURISDICTION .......................................................5 B. FAILURE TO STATE A CLAIM .................................................................................6 ARGUMENT ...................................................................................................................................7 A. THE COURT LACKS SUBJECT MATTER JURISDICTION TO HEAR
PETITIONERS’ CLAIMS.............................................................................................7 1. The Court is jurisdictionally barred from reviewing the Bureau of Prisons’
discretionary classification and placement of Petitioners ........................................7 2. Petitioners cannot establish jurisdiction pursuant to 28 U.S.C. § 1651 ...................9 3. The Suspension Clause does not confer subject matter jurisdiction in this case .....9 4. 28 U.S.C. § 1331 does not waive the United States’ sovereign immunity, and
therefore, does not permit the Court to hear Petitioners’ claims ...........................11 B. ADDITIONALLY, PETITIONERS FAIL TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED ...................................................................................11 1. Petitioners’ Eighth Amendment claims, challenging their conditions of
confinement, are not cognizable under 28 U.S.C. § 2241 .....................................11 2. The Petitioners have not alleged sufficient facts to state a constitutional violation
with regard to their conditions of confinement ......................................................15 a. Petitioners’ confinement is lawful ...................................................................15
i

Case 2:20-cv-00422-TAD-KK Document 12-1 Filed 04/15/20 Page 3 of 33 PageID #: 203
TABLE OF CONTENTS (continued) Page(s)
b. The Petitioners fail to present a case or controversy as they have suffered no injury ................................................................................................................16
c. Petitioner’s direct constitutional claims seeking release are not cognizable ...17 d. Petitioners have failed to state an Eighth Amendment deliberate indifference
claim .................................................................................................................18 i. Petitioners’ pleaded facts fail to establish objective deliberate
indifference ................................................................................................19 ii. Petitioners cannot show the requisite subjective element of deliberate
indifference ................................................................................................21 iii. Petitioners’ claims amount to a non-cognizable medical difference of
opinion claim .............................................................................................22 CONCLUSION ..............................................................................................................................24
ii

Case 2:20-cv-00422-TAD-KK Document 12-1 Filed 04/15/20 Page 4 of 33 PageID #: 204
TABLE OF AUTHORITIES
Federal Cases
Page(s)
Alexander v. Trump, 753 F. App’x 201 (5th Cir. 2018) ........................................................................................... 17
Anderson v. United States, 229 F.2d 675 (5th Cir. 1956) ....................................................................................................11
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................................. 6
Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972) ..................................................................................................11
Bell v. Wolfish, 441 U.S. 520 (1979) ........................................................................................................ 7-8, 18
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................................. 6
Boumediene v. Bush, 553 U.S. 723 (2008) ............................................................................................................... 10
Brauner v. Coody, 793 F.3d 493 (5th Cir. 2015) ....................................................................................................23
Brittingham v. Commissioner, 451 F.2d 315 (5th Cir. 1971) .................................................................................................... 9
Creager v. Chapman, No. 4:09-cv-713, 2010 WL 1062610 (N.D. Tex. Mar. 22, 2010) .......................................... 8-9
Divine v. United States, 328 F.2d 305 (5th Cir. 1964) ....................................................................................................11
Estelle v. Gamble, 429 U.S. 97 (1976) ............................................................................................................ 19-20
FDIC v. Meyer, 510 U.S. 471 (1994) ............................................................................................................... 15
Farmer v. Brennan, 511 U.S. 825 (1994) .........................................................................................18, 19, 20, 21, 22
Flowers v. Dent, 21 F.3d 1109, 1994 WL 171707 (5th Cir. 1994) ......................................................................20
iii

Case 2:20-cv-00422-TAD-KK Document 12-1 Filed 04/15/20 Page 5 of 33 PageID #: 205
TABLE OF AUTHORITIES
Federal Cases (continued)
Page(s)
Fullenwiley v. Wiley, 1999 WL 33504428 (N.D.N.Y Oct. 5, 1999) ........................................................................... 9
Gibbs v. Grimmette, 254 F.3d 545 (5th Cir. 2001) ............................................................................................. 21-22
Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019) ....................................................................................................23
Grisham v. United States, 103 F.3d 24 (5th Cir. 1997) ...................................................................................................... 6
Hall v. Hodgkins, 305 F. App’x 224 (5th Cir. 2008) ............................................................................................. 6
Hamdi v. Rumsfield, 542 U.S. 507 (2004) ............................................................................................................... 10
Helling v. McKinney, 509 U.S. 25 (1993) ..................................................................................................................20
Hernandez v. Estelle, 788 F.2d 1154 (5th Cir. 1986) .................................................................................................23
Hernandez v. Garrison, 916 F.2d 291 (5th Cir. 1990) .................................................................................................. 12
Holt v. Fleming, 2003 WL 23109785 (N.D. Tex. Dec. 22, 2003) ............................................................... 16-17
Ingram v. Wright, 430 U.S. 651 (1977) .................................................................................................................18
Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986) .................................................................................................... 6
Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977) ..................................................................................................................7
Kentucky v. Graham, 473 U.S. 159 (1985) ............................................................................................................... 15
Kline v. Republic of El Salvador, 603 F. Supp. 1313 (D.C. 1985) ............................................................................................... 15
Laswell v. Brown, 683 F.2d 261 (8th Cir. 1982) .................................................................................................. 15 iv

Case 2:20-cv-00422-TAD-KK Document 12-1 Filed 04/15/20 Page 6 of 33 PageID #: 206
TABLE OF AUTHORITIES
Federal Cases (continued)
Page(s)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................................................................... 16
McCord v. Maggio, 910 F.2d 1248 (5th Cir. 1990) .................................................................................................16
McKune v. Lile, 536 U.S. 24 (2002) ....................................................................................................................8
Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) .................................................... 15, 16
Morales-Corbala v. United States, No. P-11-CV-00025-RAJ, 2011 WL 13185995 (W.D. Tex. July 19, 2011) aff’d 498 F. App’x 467 (5th Cir. 2012) ................................................................................... 14
Mortensen v. First Federal Savings and Loan Association, 549 F.2d 844 (3rd Cir. 1977) .................................................................................................... 5
Northup v. Thaler, 2012 WL 4068676 (S.D. Tex. Aug. 7, 2012), rep. & rec. adopted, 2012 WL 4068997 (S.D. Tex. Sept. 14, 2012) ..................................... 12
Norton v. Dimazana, 122 F.3d 286 (5th Cir. 1997) .................................................................................19, 20, 21, 22
Pell v. Procunier, 417 U.S. 817 (1974) ..................................................................................................................8
Pierre v. United States, 525 F.2d 933 (5th Cir. 1976) .................................................................................................. 11
Poree v. Collins, 866 F.3d 235 (5th Cir. 2017) .................................................................................................. 12
Preiser v. Rodriguez, 411 U.S. 475 (1973) ............................................................................................................... 10
Procunier v. Martinez, 416 U.S. 396 (1974) ..................................................................................................................7
Public Citizen, Inc. v. Bomer, 274 F.3d 212 (5th Cir. 2001) .................................................................................................. 16
Rhodes v. Chapman, 452 U.S. 337 (1981) ..........................................................................................................19, 20
v

Case 2:20-cv-00422-TAD-KK Document 12-1 Filed 04/15/20 Page 7 of 33 PageID #: 207
TABLE OF AUTHORITIES
Federal Cases (continued)
Page(s)
Rivera Rosa v. McAleenan, 2019 WL 5191095 (S.D. Tex. Oct. 15, 2019) ........................................................................ 12
Sacal-Micha v. Longoria, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020) ................................................................. 14, 15
Sacal-Micha v. Longoria, 2020 WL 1815691 (S.D. Tex. Apr. 9, 2020) .............................................................. 13, 14, 17
Sarres Mendoza v. Barr, 2019 WL 1227494 (S.D. Tex. Mar. 15, 2019) ................................................................. 12, 14
Schipke v. Van Buren, 239 F. App’x 85 (5th Cir. 2007) ....................................................................................... 12, 14
Shepherd v. Dallas City, 591 F.3d 445 (5th Cir. 2009) .................................................................................................. 17
Spector v. L Q Motor Inns, Inc., 517 F.2d 278 (5th Cir. 1975) .................................................................................................... 5
Spencer v. Bragg, 310 F. App’x 678 (5th Cir. 2009) ..................................................................................... 12, 14
Spina v. Aaron, 821 F.2d 1126 (5th Cir. 1987) ................................................................................................ 14
Stanley v. Central Intelligence Agency, 639 F.2d 1146 (5th Cir. 1981) .................................................................................................. 5
Taylor v. United States, 2008 WL 4218770 (5th Cir. 2008) ...........................................................................................11
Thornburgh v. Abbott, 490 U.S. 401 (1989) ..................................................................................................................7
Turner v. Safley, 482 U.S. 78 (1987) ..............................................................................................................7, 22
United States v. Gould, No. 7:05-CR-020-O, 2018 WL 3956941 (N.D. Tex. Jan. 17, 2018) .........................................8
vi

Case 2:20-cv-00422-TAD-KK Document 12-1 Filed 04/15/20 Page 8 of 33 PageID #: 208
TABLE OF AUTHORITIES Federal Cases (continued) Page(s)
United States v. Smith, 393 F.2d 318 (5th Cir. 1968) ....................................................................................................11
United States v. Yates, No. 15-40063-01-DDC, 2019 WL 1779773 (D. Kan. Apr. 23, 2019) .......................................8
V.N.A. of Greater Tift County, Inc. v. Heckler, 711 F.2d 1020 (11th Cir. 1983), cert. denied, 466 U.S. 936 (1984) ........................................ 9
Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991) ....................................................................................................22
Villela v. Hinojosa, 730 F. Supp. 2d 624 (W.D. Tex. 2010) .................................................................................. 11
Whitley v. Albers, 475 U.S. 312 (1986) ...........................................................................................................18, 19
Whitmore v. Arkansas, 495 U.S. 149 (1990) ............................................................................................................... 16
Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), cert. denied, 454 U.S. 897 (1981) ............................................ 5
Wilson v. Budney, 976 F.2d 957 (5th Cir. 1992) .................................................................................................. 16
Wilson v. Seiter, 501 U.S. 294 (1991) ...........................................................................................................18, 19
vii

Case 2:20-cv-00422-TAD-KK Document 12-1 Filed 04/15/20 Page 9 of 33 PageID #: 209

TABLE OF AUTHORITIES Federal Statutes

Page(s)

18 U.S.C. § 3621 ............................................................................................................................ 2

18 U.S.C. § 3621(b) ................................................................................................................... 8, 9

18 U.S.C. § 3621(b)(5) .................................................................................................................. 3

18 U.S.C. § 3621(c) ....................................................................................................................... 2

18 U.S.C. § 3624(c) ....................................................................................................................... 2

18 U.S.C. § 3625 ............................................................................................................................ 9

18 U.S.C. § 3582 ............................................................................................................................ 2

18 U.S.C. § 3582(c)(1)(A) ............................................................................................................. 2

18 U.S.C. § 4205(g) ....................................................................................................................... 2

28 U.S.C. § 1331 ...................................................................................................................... 3, 11

28 U.S.C. § 1343 .......................................................................................................................... 11

28 U.S.C. § 1651 ........................................................................................................................ 3, 9

28 U.S.C. § 2201 .......................................................................................................................... 11

28 U.S.C. § 2241 ...................................................................................................................... 3, 11

Federal Rules

Fed. R. Civ. P. 12(b)(1) .................................................................................................................. 5

Fed. R. Civ. P. 12(b)(6) .................................................................................................................. 6

Fed. R. Civ. P. 23 ........................................................................................................................... 4

Other Authorities

Article I, Section 9, Clause 2 of the U.S. Constitution .............................................................. 3, 9

Article III, Section 2, Clause 1 of the U.S. Constitution ............................................................. 16

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. VERSUS RODNEY MYERS, ET AL.

) CIVIL ACTION NO. 20-cv-00422 ) ) JUDGE DOUGHTY ) ) MAGISTRATE JUDGE KAY )

MEMORANDUM IN SUPPORT OF RESPONDENTS’ MOTION TO DISMISS

Respondents, Rodney Myers, Warden of Oakdale Federal Correctional Institutions and

Michael Carvajal, Federal Bureau of Prisons Director, in their official capacities, by and through

David C. Joseph, United States Attorney for the Western District of Louisiana, and Karen J. King,

Assistant United States Attorney, respectfully move the Court to dismiss Petitioners’ Petition for

Writ of Habeas Corpus, Injunctive, and Declaratory Relief and Petitioners’ Emergency Motion for

Release of Vulnerable and Low-Risk Prisoners from Oakdale.

INTRODUCTION

Petitioners filed a Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief

on April 6, 2020. Doc. 1. Additionally, Petitioners seek class certification. Id. The petition should

be dismissed as Petitioners have failed to establish a jurisdictional basis for the Court to hear this

matter. The Court is barred from reviewing Respondents’ decisions regarding classification and

placement of inmates. Further, Petitioners are unable to establish the court’s jurisdiction under

either the All Writs Act, the Suspension Clause, or the general federal question statute.

Additionally, the petition fails to state a claim for relief. Petitioners cannot invoke habeas corpus

to challenge their conditions of confinement. Moreover, Petitioners have not alleged sufficient

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facts to state a constitutional violation related to their conditions of confinement. They are unable to show that their confinement is unlawful, or that Respondents have acted with deliberate indifference to Petitioners’ medical needs or safety. 1
BACKGROUND A. STATUTORY FRAMEWORK The BOP is charged with the care, custody, and control of incarcerated individuals and is not empowered to reduce or modify criminal sentences imposed by courts, or to unilaterally release inmates. Congress has left such decisions, to modify or reduce inmates’ sentences, to their original sentencing courts. See 18 U.S.C. § 3582. The BOP’s role in sentence reduction or modification proceedings involves the potential to move the sentencing court for a reduction in sentence on an inmate’s behalf in certain circumstances. 18 U.S.C. § 3582(c)(1)(A). BOP has set forth the guidelines under which it will make such a motion in its Program Statement 5050.50, “Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g).” (Available at https://www.bop.gov/policy/progstat/5050_050_EN.pdf). Although the BOP is not empowered to modify an inmate’s sentence, Congress has provided the Attorney General and Bureau of Prisons with wide discretion in determining where to confine inmates. See 18 U.S.C. § 3621. Both placement in a Residential Reentry Center (“RRC,” also called a halfway house) and home confinement are forms of confinement, not actual releases from custody. See 18 U.S.C. § 3624(c). Placement in a halfway house and/or home confinement is discretionary. See 18 U.S.C. § 3621(c) (“Such conditions may include a
1 Respondents respectfully request a stay of Petitioners’ request for class certification until the Court adjudicates Respondents’ Motion to Dismiss Petitioners’ Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief. Accordingly, Respondents will file their motion seeking such stay.
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community correctional facility” and “[t]he authority under this subsection may be used to place a prisoner in home confinement.”) (emphasis added). While providing a framework of factors to consider in inmate placement, Congress also affirmed the breadth of the agency’s discretion in such matters, noting that even sentencing court orders regarding inmate placement in a community correction facility “shall have no binding effect,” and that “a designation of a place of imprisonment under this subsection is not reviewable by any court.” 18 U.S.C. § 3621(b)(5).
B. THE PETITION AND ALLEGED FACTS Petitioners have filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking relief, “from detention that violates their Eighth Amendment right under the U.S. Constitution.” Doc. 1, ¶¶ 12-13. Petitioners allege that this Court has subject matter jurisdiction over their claims pursuant to: (1) §2241 (habeas corpus), (2) 28 U.S.C. § 1651 (All Writs Act), (3) Article I, Section 9, Clause 2 of the U.S. Constitution (Suspension Clause), and (4) 28 U.S.C. § 1331 (general federal question). Id. at ¶ 13. Petitioners are six inmates detained at the FCC – Oakdale Complex. Doc. 1, ¶¶ 15-20. They allege various and differing medical conditions.2 Petitioners allege that all inmates detained at FCC – Oakdale face “a particularly acute threat of illness, permanent injury, and death[,]” beyond the health concerns presented within the general public due to COVID-19. Doc. 1, ¶ 33. They note that it is “virtually impossible for people who are confined in prisons, jails, and detention centers to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission.” Id. at ¶ 35. Petitioners allege that the action or inaction of Federal Defendants by not complying with public health guidelines
2 Petitioners allege the following medical conditions: Petitioner Livas (diabetes and acute pancreatitis); Petitioner Buswell (asthma, hypertension, and sleep apnea); Petitioner Smith (hypertension and “a thyroid condition”); Petitioner Martin (childhood asthma); Petitioner Corbett (“a respiratory disorder” due to a lung nodule); and Petitioner Andrews (asthma). Doc. 1, ¶¶ 15-20.
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of social distancing and personal hygiene, and treating or preventing outbreaks and deaths related
to COVID-19 violate their right to treatment and adequate medical care, and therefore constitute
cruel and unusual punishment. Id. at ¶¶ 75-7. Further, Petitioners allege that the release of inmates
who are “vulnerable to COVID-19” will: (1) protect these inmates from transmission of the virus;
(2) mitigate risk of infection for other inmates and staff; (3) mitigate risk of infection to the
community; and (4) reduce the burden on the community’s health care infrastructure. Id. at ¶ 40.
Petitioners also seek class certification pursuant to Rule 23, Fed.R.Civ.P. Doc. 1, ¶ 56.
Petitioners seek to represent a class of “all current and future people in post-conviction custody at
Oakdale” and a subclass of “persons who, by reason of age or medical condition, are medically
vulnerable. Id. at ¶ 57. Petitioners define the subclass as:
[A]ll current and future persons incarcerated at Oakdale over the age of 50, as well as all current and future persons incarcerated at Oakdale of any age who experience: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease.
Id. at ¶ 58. Petitioners estimate that there are 1,871 inmates in the proposed Class and 748 inmates
in the proposed Medically-Vulnerable Subclass. Id. at ¶ 62. Petitioners conclude that their action
“satisfies the numerosity, commonality, typicality, and adequacy requirement for maintaining a
class action[.]” Id. at ¶ 60.
Petitioners ultimately seek an order directing Respondents to immediately release all
proposed subclass members, create a preventative plan for all remaining class members, and create
a housing plan for released class members who have either been exposed or tested positive for 4

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COVID-19. Id. at ¶ 79. Petitioners also seek a declaration that FCC – Oakdale’s policies “violate the Eighth Amendment right against cruel and unusual punishment with respect to the Class[.]” Id.
STANDARD OF REVIEW A. LACK OF SUBJECT MATTER JURISDICTION A motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1), may be treated as either a facial or factual challenge to the court’s jurisdiction. Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981) cert. denied, 454 U.S. 897 (1981). Facial attacks, which question the sufficiency of the pleadings, require the court to consider the allegations in the complaint as true. See Spector v. L Q Motor Inns, Inc., 517 F.2d 278, 281 (5th Cir. 1975). During factual challenges to subject matter jurisdiction, courts are allowed to look outside of the pleadings and no presumptive truthfulness attaches to the allegations in the complaint. Williamson, 645 F.2d at 413 (citing Mortensen v. First Federal Savings and Loan Association, 549 F.2d 844, 891 (3rd Cir. 1977)). The district court has the ability to dismiss a complaint for lack of subject matter jurisdiction based on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Williamson, 645 F.2d at 413. If dismissal is sought for a jurisdictional defect that centers upon the lack of congressional waiver of the government’s sovereign immunity, resolution is never appropriate byway of summary judgment, but must be resolved by way of a motion to dismiss for lack of subject matter jurisdiction. Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1156-57 (5th Cir. 1981).
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B. FAILURE TO STATE A CLAIM A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim “tests the legal sufficiency of claims stated in the complaint.” Jackson v. Procunier, 789 F.2d 307, 309-10 (5th Cir. 1986). A complaint may be dismissed for failure to state a claim where it appears that no relief could be granted under any set of facts that can be proven. Grisham v. United States, 103 F.3d 24, 25-26 (5th Cir. 1997). When considering a motion for failure to state a claim, the court must take factual allegations of the complaint as true and resolve any ambiguities or doubts regarding the sufficiency of the claim in favor of Plaintiff; however, conclusory allegations masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a Rule 12(b)(6) motion to dismiss, the complaint must allege enough facts to “raise a right to relief above the speculative level” and “state a claim that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). In ruling on a Rule 12(b)(6) motion to dismiss, the court cannot look beyond the pleadings, however, the court may also consider matters of which it can take judicial notice, like matters of public record. Hall v. Hodgkins, 305 F. App’x 224, 227 (5th Cir. 2008).
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ARGUMENT A. THE COURT LACKS SUBJECT MATTER JURISDICTION TO HEAR
PETITIONERS’ CLAIMS. Petitioners bear the burden of establishing the Court’s jurisdiction. Petitioners have failed to allege a sufficient basis to invoke the Court’s jurisdiction over the subject matter.
1. The Court is jurisdictionally barred from reviewing the Bureau of Prisons’ discretionary classification and placement of Petitioners.
The operation of a federal prison involves a wide range of social and economic considerations. Social concerns and considerations for a prison are markedly different from concerns in operating any other organization. See Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (1977). The Supreme Court has long recognized that broad deference should be given to prison administrators in adopting and executing policies and practices which address the day-to-day problems in operating a corrections facility. See Procunier v. Martinez, 416 U.S. 396, 404-06 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 409 (1989) (prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating the inmates placed in their custody, so courts are ill equipped to deal with the urgent problems of prison administration and reform); Thornburgh v. Abbott, 490 U.S. 401, 408 (1989) (this Court has afforded considerable deference to the determinations of prison administrators, who in the interest of security, regulate the relations between prisoners and the outside world) (citation omitted); Turner v. Safley, 482 U.S. 78, 84-85 (1987) (running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment or resources, all of which are peculiarly within the province of the legislative and executive branches of government); Bell v.
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Wolfish, 441 U.S. 520, 547 (1979) (prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel); Pell v. Procunier, 417 U.S. 817, 826-27 (1974) (the ‘normal activity’ to which a prison is committed – the involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violence – necessarily requires that considerable attention be devoted to the maintenance of security).
The decisions made by prison officials necessarily involve balancing limited prison resources with the overriding concern of institution security. In determining inmate placement and transfers, the BOP must consider five factors:
(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement of the court that imposed the sentence…; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28. 18 U.S.C. § 3621(b). Thus classification and placement of inmates is committed to the discretion of the BOP and once that discretion is exercised, “a designation of a place of imprisonment under this subsection is not reviewable by any court.” 18 U.S.C. § 3621(b). Other than determining whether the BOP exceeded its authority in reaching its decision, the ultimate outcome is beyond the purview of the court. See, e.g., McKune v. Lile, 536 U.S. 24, 39 (2002) (“It is well settled that the decision where to house inmates is at the core of prison administrators’ expertise.”); United States v. Yates, No. 15-40063-01-DDC, 2019 WL 1779773, at *4 (D. Kan. Apr. 23, 2019) (“[I]t is BOP—not the courts—who decides whether home detention is appropriate.”); United States v. Gould, No. 7:05-CR-020-O, 2018 WL 3956941, at *1 (N.D. Tex. Jan. 17, 2018) (“[T]he BOP is in the best position to determine whether RRC/halfway house placement would be of benefit to [the defendant] and to society in general.”); Creager v. Chapman, No. 4:09-cv-713, 2010 WL
8

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1062610, at *3 (N.D. Tex. Mar. 22, 2010) (stating that “nothing in the Second Chance Act of 2007, or 18 U.S.C. § 3621(b) entitles ... any prisoner to placement in a residential reentry center”); see also, Fullenwiley v. Wiley, 1999 WL 33504428, at *1 (N.D.N.Y Oct. 5, 1999) (“[D]iscretionary decisions by the BOP made pursuant to its authority under § 3621(b) are not subject to judicial review”); see also 18 U.S.C. § 3625. Thus the BOP’s classification and placement of Petitioners is not subject to judicial review.
2. Petitioners cannot establish jurisdiction pursuant to 28 U.S.C. § 1651. Petitioners also assert jurisdiction under the All Writs Act, 28 U.S.C. § 1651. While the All Writs Act may provide the basis for authority to issue an injunction, it does not provide a basis of jurisdiction. V.N.A. of Greater Tift County, Inc. v. Heckler, 711 F.2d 1020, 1024 n.5 (11th Cir. 1983), cert. denied, 466 U.S. 936 (1984)(citing Brittingham v. Commissioner, 451 F.2d 315, 317 (5th Cir. 1971)(“It is settled that …the All Writs Act, by itself, creates no jurisdiction in the district courts. It empowers them only to issue writs in aid of jurisdiction…acquired on some other independent ground.”) Thus, the Court lacks jurisdiction to hear Petitioners’ claims on this basis.
3. The Suspension Clause does not confer subject matter jurisdiction in this case.
Petitioners allege subject matter jurisdiction exists in this matter pursuant to the Suspension Clause, found at Article I, § 9, cl. 2, of the Constitution. The Suspension Clause provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.” No further explanation, nor any argument is provided by Petitioners concerning how the Suspension Clause is applicable in this matter, let alone how it confers this Court with subject matter jurisdiction in this case.
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The Suspension Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have the writ of Habeas Corpus, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. Hamdi v. Rumsfield, 542 U.S. 507, 536 (2004). The Suspension Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody”). At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest. Boumediene v. Bush, 553 U.S. 723, 783 (2008) provided an analytical template for evaluating a Suspension Clause challenge: at step one, the Court must examine whether the Suspension Clause applies to the petitioner; and, if so, at step two, we examine whether the substitute procedure provides review that satisfies the Clause.
In the current matter, there is no challenge within the complaint filed in this matter to the legality of the incarceration of any Petitioner. It appears instead that the Petitioners are alleging that their continued incarceration would instead constitute cruel and unusual punishment due to the alleged inability of the BOP staff and personnel at FCC Oakdale to contain the spread of COVID19. There is no argument that there is now, or that there has been, any suspension of Petitioners’ right to file a writ of habeas corpus. The Suspension Clause does not concern itself with the issues raised in this Complaint. Consequently, these petitioners are unable to demonstrate how the Suspension Clause applies to this lawsuit as a whole and more importantly how it
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constitutes a basis for subject matter jurisdiction. It is not applicable and must be disregarded as a basis for jurisdiction.
4. 28 U.S.C. § 1331 does not waive the United States’ sovereign immunity, and therefore, does not permit the Court to hear Petitioners’ claims.
Section 1331 is a general jurisdictional statute providing the district court with jurisdiction for “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. General jurisdictional statutes do not independently waive the Government’s sovereign immunity. Taylor v. United States, 2008 WL 4218770, at *3-4 (5th Cir. 2008) (unpublished); Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972); Divine v. United States, 328 F.2d 305 (5th Cir. 1964) (no waiver under 28 U.S.C. § 1343).
Also, the Declaratory Judgment Act, 28 U.S.C. § 2201, does not waive the United States’ sovereign immunity as the Act merely provides additional remedies where jurisdiction otherwise exists. United States v. Smith, 393 F.2d 318, 320-21 (5th Cir. 1968); Anderson v. United States, 229 F.2d 675, 677 (5th Cir. 1956).
B. ADDITIONALLY, PETITIONERS FAIL TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED. 1. Petitioners’ Eighth Amendment claims, challenging their conditions of confinement, are not cognizable under 28 U.S.C. § 2241.
Petitioners challenge the constitutionality of their conditions of confinement and seek release through habeas corpus. However, habeas corpus is not a means by which to challenge conditions of confinement. The “sole function” of habeas is to “grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose.” Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976); Villela v. Hinojosa, 730 F. Supp. 2d 624, 627 (W.D. Tex. 2010). In other words, “[h]abeas petitions can only ‘grant relief from unlawful imprisonment
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or custody’ and cannot be used to challenge ‘conditions of confinement.’” Rivera Rosa v. McAleenan, 2019 WL 5191095, at *18 (S.D. Tex. Oct. 15, 2019) (citing Schipke v. Van Buren, 239 F. App’x 85, 85–86 (5th Cir. 2007)).
The Fifth Circuit, and district courts within this Circuit, have long recognized that habeas corpus actions are the proper vehicle to “challenge the fact or duration of confinement,” whereas allegations that challenge an individual’s “conditions of confinement” are “properly brought in civil rights actions.” E.g., Schipke, 239 F. App’x at 85–86; Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) (noting the “instructive principle [is] that challenges to the fact or duration of confinement are properly brought under habeas, while challenges to the conditions of confinement are properly brought under [civil rights actions]”) (citations omitted); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (holding that claims of overcrowding, denial of medical treatment, and access to an adequate law library were not proper subjects of a habeas corpus petition); Sarres Mendoza v. Barr, 2019 WL 1227494, at *2 (S.D. Tex. Mar. 15, 2019) (denying Honduran detainee’s motion for leave to amend because proposed claims concerning “conditions of confinement may not be brought in a habeas corpus proceeding, and are actionable, if at all, in a civil rights action”).
Even when a petitioner alleges that inadequate conditions of confinement create the risk of serious physical injury, illness, or death, a petition for a writ of habeas corpus is not the proper vehicle for such a claim. See, e.g., Spencer v. Bragg, 310 F. App’x 678, 679 (5th Cir. 2009) (unpublished) (affirming the lower court’s dismissal of petitioner’s habeas claim even though he alleged that the conditions of confinement endangered his life); Northup v. Thaler, 2012 WL 4068676, at *2 (S.D. Tex. Aug. 7, 2012), rep. & rec. adopted, 2012 WL 4068997 (S.D. Tex. Sept. 14, 2012) (dismissing petitioner’s habeas claim based on alleged risk of abuse by other inmates).
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Here, Petitioners challenge the conditions of their confinement, not the lawfulness of their incarceration. (See, e.g., Doc. 1, ¶48 (“[P]hones [are] two feet apart…There are eight working sinks, eight dirty toilets, and five or six working showers for approximately 125 men[.] There is no liquid soap…we only have access to communal bar soap, which is filthy. We do not have access to hand sanitizer or clean hand towels.”); id. at ¶48 (“He and his team do not have enough personal protective equipment. We are able to get masks… but they are not N95 masks.”); id. at ¶ 54 (“[T]here is not sufficient personal protective equipment and the layout of the prison makes social distancing physically impossible.”); id. at ¶ 75 (“Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution”); id. at ¶ 78 (“By failing to implement controls necessary to contain the COVID-19 outbreak and stop preventable deaths at Oakdale, Defendants have violated the Eighth Amendment rights of the Class[.]”)) See also SacalMicha v. Longoria, 2020 WL 1815691, at *4 (S.D. Tex. Apr. 9, 2020) (Rodriguez, J.) (“A detention facility’s protocols for isolating individuals, controlling the movement of its staff and detainees, and providing medical care are part and parcel of the conditions in which the facility maintains custody over detainees.”).
Petitioners cite no controlling decision in a habeas corpus case where a court has ordered the release of an individual from detention because of allegedly unlawful detention conditions. Petitioners do not ask the Court to order improved conditions at FCC Oakdale. (See Doc. 1, ¶ 74 (“Therefore immediate release is the only medically and legally sound remedy, rather than mere mitigation and/or further proceedings.”) Rather, they seek the precise relief unavailable to them: release to cure allegedly unconstitutional conditions.
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Respondents are unaware of any court in this district that has granted a habeas petition seeking release due to conditions of confinement related to COVID-19. See Sacal-Micha v. Longoria, 2020 WL 1518861, at *8 (S.D. Tex. Mar. 27, 2020). “[The Fifth Circuit has not recognized] habeas corpus as a permissible avenue for relief from alleged inadequate conditions of confinement.” Sacal-Micha, 2020 WL 1815691, at *5 n. 6. Petitioners rely on a handful of cases that reference the purpose of habeas corpus to protect liberty interests from unlawful restraint. However, none of the cases extend habeas relief to conditions of confinement claims, nor were those courts called upon to examine this issue. See Doc. 1, ¶ 74.
“[A]llegations that challenge rules, customs, and procedures affecting conditions of confinement are properly brought in civil rights actions.” Schipke, 239 F. App'x at 85-6 (citing Spina v. Aaron, 821 F.2d 1126, 1127–28 (5th Cir. 1987)). District courts have applied these principles to deny habeas relief based solely on alleged inadequate conditions of detention. See, Sarres Mendoza, 2019 WL 1227494, at * 2; Morales-Corbala v. United States, No. P-11-CV00025-RAJ, 2011 WL 13185995, at * 3 (W.D. Tex. July 19, 2011), aff'd, 498 F. App'x 467 (5th Cir. 2012) (explaining that a habeas petition was improper as the plaintiff was not challenging the “constitutionality of his detention and [did] not ask the Court to release him from [the defendant's] custody”). Even when a petitioner alleges that inadequate conditions of confinement create the risk of serious physical injury, illness, or death, a petition for a writ of habeas corpus is not the proper vehicle for such a claim. See, e.g., Spencer, 310 F. App'x at 679 (affirming the lower court's dismissal of petitioner's habeas claim even though he alleged that the conditions of confinement endangered his life); Sacal-Micha, 2020 WL 1815691, at * 6 (ICE detainee seeking release due to the conditions of confinement experienced in the wake of COVID-19 cannot rely on a petition for
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writ of habeas corpus to obtain the relief he seeks, thus the claim should be dismissed for failure to state a claim).
In the end, because Petitioners challenge the conditions of their confinement, they cannot rely on a petition for a writ of habeas corpus to obtain the relief they seek. Sacal-Micha, 2020 WL 1518861, at *4. Their remedy, if any, is a civil rights action. 3 The court does not have authority to resolve these matters via a habeas petition. Thus, the petition and the attendant Motion for Preliminary Injunction should be dismissed for lack of subject matter jurisdiction and failure to state a claim.
2. The Petitioners have not alleged sufficient facts to state a constitutional violation with regard to their conditions of confinement. a. Petitioners’ confinement is lawful.
As discussed supra, habeas corpus applies to unlawful confinement. Petitioners’ confinement here is lawful.4 All six petitioners were convicted of federal offenses, sentenced, and remanded to the custody of the BOP. As they are still serving their sentences, their confinement remains lawful. Moreover, as argued supra, “[t]he decision where to house inmates is at the core of prison administrators’ expertise.” See, Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976).
3 To the extent that Petitioners have a civil rights action, they have not plead such. Also, Petitioners appear to have sued Respondents in their official capacities. As such, Respondents have not requested and undersigned counsel has not been approved to represent them in their individual capacities. Suing a government official in his or her official capacity is the same as asserting a claim against the United States itself. See, Kentucky v. Graham, 473 U.S. 159, 166 (1985). Moreover, a Bivens action may not be maintained against a federal agency. FDIC v. Meyer, 510 U.S. 471, 485 (1994). The United States has not waived its sovereign immunity with respect to constitutional claims. Kline v. Republic of El Salvador, 603 F. Supp. 1313, 1317 (D.C. 1985); Laswell v. Brown, 683 F.2d 261, 267-68 (8th Cir. 1982). 4 Petitioners do not allege that their confinement is unlawful.
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Further, it is well settled that inmates have neither a protectable property nor liberty interest to any particular housing assignment or custodial classification. Meachum, 427 U.S. at 224 (the Constitution does not require that the State have more than one prison for convicted felons, nor does it guarantee that the convicted prisoner will be placed in any particular prison); Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992) (a prison inmate does not have a protectable liberty or property interest in his custodial classification); McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir. 1990) (classification of prisoners is a matter left to the discretion of prison officials) (citation omitted).
b. The Petitioners fail to present a case or controversy as they have suffered no injury.
Under Article III of the United States Constitution, federal courts are confined to adjudicating actual “cases” or “controversies.” U.S. Const. art. III, § 2, cl. 1. Standing, one of the doctrines arising under the case and controversy requirement, requires a plaintiff “to demonstrate: they have suffered an ‘injury in fact’; the injury is ‘fairly traceable’ to the defendant’s actions; and the injury will ‘likely . . . be redressed by a favorable decision.’” Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The injury must be “actual or imminent, not ‘conjectural or hypothetical.’” Lujan, 504 U.S. at 560 (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). The party invoking federal jurisdiction bears the burden of establishing these elements. Lujan, 504 U.S. at 561.
In the instant case, Petitioners have failed to allege any injury resulting from the alleged conditions at FCC Oakdale. The Petitioners’ lack of any injury whatsoever, requires that their petition be dismissed with prejudice. See, e.g., Holt v. Fleming, 2003 WL 23109785, *2 (N.D. Tex. Dec. 22, 2003)(“All of Holt's allegations center on the possibility that he could have suffered adverse
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consequences from the absence of emergency call boxes and no legal materials. These speculative claims do not rise to the level of a constitutional issue.”) Respondents certainly do not make light of the current pandemic. However, Petitioners speculate regarding whether they have been exposed to COVID-19 as a result of their confinement, but fail to allege, much less prove, any actual harm. The Fifth Circuit has held that “isolated examples of illness, injury, or death, standing alone, cannot prove that conditions of confinement are constitutionally adequate. Nor can the incidence of diseases or infections, standing alone . . . since any densely populated residence may be subject to outbreaks.” Shepherd v. Dallas City, 591 F.3d 445, 454 (5th Cir. 2009). A detainee does not establish a case simply by alleging that the detention center has disease or infection present. “Rather, a detainee . . . must demonstrate a pervasive pattern of serious deficiencies in providing for his basic human needs.” Id. Petitioners do not allege that Respondents have not provided them with any medical care. Rather, their allegations focus on the fact that they are detained with others in typical detention-facility conditions and cannot exercise social distancing.
c. Petitioners’ direct constitutional claims seeking release are not cognizable.
To the extent Petitioners’ bring direct constitutional claims, federal circuits, and this Circuit in particular, have been hesitant to find causes of action arising directly from the Constitution. See Alexander v. Trump, 753 F. App’x 201, 206 (5th Cir. 2018)(rejecting a freestanding constitutional complaint against the FBI). Recognizing a cause of action directly under the Eighth Amendment to order Petitioners’ release would be a departure from Fifth Circuit precedent. See Sacal-Micha, 2020 WL 1815691, at *5-6.
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d. Petitioners have failed to state an Eighth Amendment deliberate indifference claim.
Even if a direct constitutional claim seeking release were cognizable in this Circuit, Plaintiffs have not pled it. To satisfy the Eighth Amendment, prison officials “must provide humane conditions of confinement,” specifically they “must ensure that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Inmates alleging Eighth Amendment violations based on unsafe prison conditions must demonstrate that prison officials were deliberately indifferent to their health or safety by subjecting them to a substantial risk of serious harm. Id., at 834. Prison officials display a deliberate indifference to an inmate’s well-being when they consciously disregard an excessive risk of harm to the inmate’s health or safety. Id., at 838-40.
It is only “‘the unnecessary and wanton infliction of pain’ … [which] constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (citing Ingram v. Wright, 430 U.S. 651 (1977)). “[I]f a particular condition or restriction … is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’” Bell v. Wolfish, 441 U.S. at 539. “[T]he effective management of a detention facility … is a valid objective that may justify imposition of conditions” that are discomforting and restrictive, without the inference that such restrictions are intended as punishment. Id. at 540. Moreover, “[it] is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishment Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Wilson v. Seiter, 501 U.S. 294, 299 (1991).
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Among the essentials of an Eighth Amendment claim are both objective and subjective elements. The objective component of an Eighth Amendment claim requires that the deprivation must be “sufficiently serious.” Farmer, 511 U.S. at 833. “[O]nly those deprivations denying ‘the minimal civilized measure of life’s necessities’ … are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The subjective component relates to the defendant’s state of mind, and requires deliberate indifference. Farmer, 511 U.S. at 833. To avoid dismissal, a prisoner must not only allege he was subjected to unconstitutional conditions, he must allege facts sufficient to indicate that the officials were deliberately indifferent to his complaints. Id. The subjective prong or second requirement that must be shown before an Eighth Amendment violation can be found is that the prison official must have a “sufficiently culpable state of mind.” Id. “To be cruel and unusual, a punishment must involve more than an ordinary lack of due care for the prisoner’s interests or safety.” Whitley, 475 U.S. at 319. “In prison-conditions cases, that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 833 (citing Wilson, 501 U.S. at 302-303) (other citations deleted). To demonstrate that a prison official was deliberately indifferent to a serious threat to the inmate’s safety, the prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to inmate.” Id. at 837. In this case, Petitioners fail to state facts which could establish any of these elements, much less all of them.
i. Petitioners’ pleaded facts fail to establish objective deliberate indifference.
Deliberate indifference does not cover all medical care or all harms, but rather “encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind.” Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997) (citing Estelle v. Gamble, 429
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U.S. 97, 105–06 (1976)). “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 105–06. “[O]nly such indifference that can offend ‘evolving standards of decency” can show a violation of the Eighth Amendment. Id. In the context of exposing prisoners to risk of communicable disease, a claim must be dismissed if it does not reach the law’s threshold of a threat that is so severe that it would be “contrary to current standards of decency for anyone to be so exposed.” See Flowers v. Dent, 21 F.3d 1109, 1994 WL 171707, at *2 (5th Cir. 1994) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). In other words, “conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “A prison official's duty under the Eighth Amendment is to ensure ‘reasonable safety,’ a standard that incorporates due regard for prison officials' unenviable task of keeping dangerous men in safe custody under humane conditions.” Farmer, 511 U.S. at 844–45.
The conditions Petitioners complain of here are: shared living spaces with bunk beds, communal restroom facilities, telephones and computers in close proximity to each other, and the general inability to practice social distancing “because of the ‘barracks-style’ housing.” See Doc. 1, at 18-20. There can be no reasonable suggestion that requiring convicted criminals to live in “barracks-style” housing would obviously result in the “unnecessary and wanton infliction of pain,” especially not such that it would be “repugnant to the conscience of mankind.” Norton, 122 F.3d at 291. Current community norms allow these same conditions to continue in various settings, such as the military and first responders, even with the threat of COVID-19. See e.g. USNI News, COVID-19 Threat Reshapes Marine Boot Camp; Celebrations Will Have to Wait (April 3, 2020), available at: https://news.usni.org/2020/04/03/covid-19-threat-reshapes-marine-boot-camp-
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celebrations-will-have-to-wait (acknowledging modified operations regarding visiting and leave, but noting military training continues with close proximity among members); NBC 12 News, Scottsdale Fire practices social distancing during Coronavirus pandemic (March 22, 2020) available at: https://www.12news.com/article/news/local/valley/scottsdale-fire-practices-socialdistancing-during-coronavirus-pandemic/75-b5422f36-650c-46be-9cdb-1d42f6e54a19 (Fire department continues with modified operations, provision of masks and repeated cleaning of communal spaces, “continually keeping the fire station kitchen, bunk rooms and day rooms as clean as possible.”). To the extent many non-criminals are exposed to substantially similar conditions throughout this country, they are clearly not “repugnant to the conscience of mankind,” and thus cannot be the basis for an Eighth Amendment violation. See Norton, 122 F.3d at 291.
ii. Petitioners cannot show the requisite subjective element of deliberate indifference
To demonstrate the subjective portion of a deliberate indifference claim, a prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to inmate.” Farmer, 511 U.S. at 837. Deliberate indifference requires Plaintiff to prove Defendants had a sufficiently culpable mental state, “‘[s]ubjective recklessness,’ as used in the criminal law.” Norton, 122 F.3d at 291 (citing Farmer, 511 U.S. at 838–40). Here, Petitioners fail to provide any facts suggesting that Respondents Myers or Carvajal meet the mental state requirement, or that they disregarded anything at all. Rather, the record in this case is full of actions taken by Myers’ and Carvajal’s subordinates, attempting to mitigate COVID-19 impacts on the Petitioners. Petitioners simply contend that the many mitigation attempts are insufficient, perhaps even negligent, though Respondents deny this, as well. They fail to acknowledge that “[d]eliberate indifference is more than mere negligence.” Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001). Petitioners’
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“disagreement” with the measures taken by Respondents cannot support a deliberate indifference claim. Id. (citing Norton, 122 F.3d at 292.). To support this element of a deliberate indifference claim, Petitioner would need to have pleaded facts “from which it can be inferred that the defendant-officials were… knowingly and unreasonably disregarding an objectively intolerable risk of harm, and that they will continue to do so.” Farmer, 511 U.S. at 846. No facts supporting such a conclusion were pled.
iii. Petitioners’ claims amount to a non-cognizable medical difference of opinion claim
Mere disagreement with the course of treatment does not state a claim for Eighth Amendment deliberate indifference. See Norton, 122 F.3d at 292; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (In the context of disagreement with medical treatment, neither “[u]nsuccessful medical treatment” nor “mere negligence, neglect or medical malpractice” can establish a deliberate indifference claim.).
Petitioners’ claim boils down to the core idea that any prison conditions which do not allow for 100% inmate adherence to the CDC’s social distancing recommendations for the general public automatically violate the Eighth Amendment. See Doc. No. 9-1, at 13 (“Indeed, unless and until the population at Oakdale is reduced to such a level that the prisoners who remain can engage in social distancing, there is no set of mitigating actions that will reduce or eliminate the unconstitutional risk of harm to all prisoners in the facility.”)5 This is despite acknowledging daily
5 In demanding the indiscriminate transfer to home confinement of hundreds of prisoners, without careful individual review, Petitioners are asking the Court to tread where the Supreme Court has urged judicial restraint. Turner v. Safley, 482 U.S. 78, 85 (1987) (“Prison administration is, moreover, a task that has been committed to the responsibility of those [executive and legislative] branches and separation of powers concerns counsels a policy of judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.”). Such evaluation takes time, as officials must balance many competing interests, including the most important, public safety.
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medical checks, limitations on movement, distribution of surgical masks to inmates, increased cleaning, and many other mitigation attempts. Id., at 12. The many steps taken by the Respondents prove there is no indifference to the risks of COVID-19. Petitioners’ assertion that the actions, led by Dr. Griffin, FCC Oakdale’s Clinical Director, are insufficient is precisely the kind of mere disagreement with medical treatment that is proscribed as the basis for a deliberate indifference claim.
Moreover, CDC’s social distancing recommendations cannot be the basis for an Eighth Amendment claim. Failure of prison officials to follow their own regulations does not establish an Eighth Amendment violation. See Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). Neither does refusal to abide by novel and unsettled medical recommendations. See Gibson v. Collier, 920 F.3d 212, 221-222 (5th Cir. 2019). Even if the Bureau of Prisons was acting against the recommendations of the Centers of Disease Control in its calculated response to the COVID19 pandemic, which it is not, this would still not form the basis for an Eighth Amendment claim.
In the context of this circumstance, a medically-led response to a pandemic, to meet his burden in establishing deliberate indifference, a plaintiff “must show that the officials ‘refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.’ ” Brauner v. Coody, 793 F.3d 493, 498 (5th Cir. 2015). At best, Petitioners have simply stated facts which support their disagreement with the treatment choices being made by the Bureau of Prisons.
Petitioners have failed to state an Eighth Amendment claim because they have not pleaded any facts which could support the necessary conclusions that conditions at Oakdale are of the sort that would be “repugnant to the conscience of mankind,” or that officials have shown any
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indifference, much less deliberate indifference, to the risks posed by COVID-19. Instead, they have merely shown that they disagree with BOP’s approach to treating this medical crisis. As such, they have failed to state an Eighth Amendment claim, and this matter should be dismissed.
CONCLUSION For the foregoing reasons, the Court should dismiss Petitioners’ Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief and Petitioners’ Emergency Motion for Release of Vulnerable and Low-Risk Prisoners from Oakdale.

Respectfully submitted,

DAVID C. JOSEPH United States Attorney

BY: s/ Karen J. King

KAREN J. KING (#23508)

KATHERINE W. VINCENT (#18717)

Assistant United States Attorney

800 Lafayette Street, Suite 2200

Lafayette, Louisiana 70501

Telephone: (337) 262-6618

Facsimile: (337) 262-6693

Email:

karen.king@usdoj.gov

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. VERSUS RODNEY MYERS, ET AL.

) CIVIL ACTION NO. 20-cv-00422 ) ) JUDGE DOUGHTY ) ) MAGISTRATE JUDGE KAY )

RESPONDENTS’ MEMORANDUM IN OPPOSITION TO PETITIONERS’ MOTION FOR PRELIMINARY INJUNCTION

Respondents, Rodney Myers, Warden of Oakdale Federal Correctional Institutions and Michael Carvajal, Federal Bureau of Prisons Director, in their official capacities, by and through David C. Joseph, United States Attorney for the Western District of Louisiana, and Karen J. King, Assistant United States Attorney file this response in opposition to Petitioners’ Emergency Motion for Release of Vulnerable and Low-Risk Prisoners from Oakdale. Doc. 9.

INTRODUCTION Petitioners filed a Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief on April 6, 2020. Doc. 1. Additionally, Petitioners seek class certification. Id. On April 13, 2020, Petitioners filed an Emergency Motion for Release of Vulnerable and Low-Risk Prisoners from Oakdale seeking a temporary restraining order and/or a preliminary injunction. Doc. 9. Petitioners’ Motion for a TRO was denied as moot. Doc. 10. However, the Court granted Petitioners’ request for expedited consideration of their request for preliminary injunction. Federal Respondents were ordered to respond to the motion for preliminary injunction by April 15, 2020. Id. Respondents filed a Motion to Dismiss Petitioners’ Petition for Writ of Habeas

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Corpus, Injunctive, and Declaratory Relief and Emergency Motion for Release of Vulnerable and
Low-Risk Prisoners from Oakdale. Doc. 12.
I. OBJECTIONS
Respondents object to portions of the exhibits attached to Petitioners’ motion on
the following grounds:
1. Respondents object to statements that are not relevant to the instant matter. FRE 401, 402;
2. Respondents also object to purported factual statements made by the declarants that do not appear to be based upon personal knowledge, lack foundation, and are speculative. FRE 602;
3. Respondents object to declarant statements that offer an improper lay opinion. FRE 701
4. Respondents object to declarant statements that offer opinions the declarant has not demonstrated that he is qualified to render based upon his knowledge, skill, experience, training, or education. FRE 702; and
5. Respondents also object to any statements that contain hearsay. FRE 801, 802.
A complete list of Respondents objections with references is attached hereto as Exhibit 1.
II. RELIEF SOUGHT AND FACTS ALLEGED Petitioners seek relief, “from detention that violates their Eighth Amendment right under
the U.S. Constitution.” Doc. 1, ¶¶ 12-13. Petitioners allege that this Court has subject matter
jurisdiction over their claims pursuant to: (1) §2241 (habeas corpus), (2) 28 U.S.C. § 1651 (All
Writs Act), (3) Article I, Section 9, Clause 2 of the U.S. Constitution (Suspension Clause), and
(4) 28 U.S.C. § 1331 (general federal question). Id. at ¶ 13. Petitioners are six inmates detained
at the FCC – Oakdale Complex. Doc. 1, ¶¶ 15-20. They allege to have various and differing
medical conditions.1
1 Petitioner Livas (diabetes and acute pancreatitis); Petitioner Buswell (asthma, hypertension, and sleep apnea); Petitioner Smith (hypertension and “a thyroid condition”); Petitioner Martin (childhood asthma); Petitioner Corbett (“a respiratory disorder” due to a lung nodule); and Petitioner Andrews (asthma). Doc. 1, ¶¶ 15-20.
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Petitioners allege that all inmates detained at FCC – Oakdale face “a particularly acute threat of illness, permanent injury, and death[,]” beyond the health concerns presented within the general public due to COVID-19. Doc. 1, ¶ 33. Noting that it is “virtually impossible for people who are confined in prisons, jails, and detention centers to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission.” Id. at ¶ 35. Petitioners allege that the action or inaction of Federal Defendants by not complying with public health guidelines of social distancing and personal hygiene, and treating or preventing outbreaks and deaths related to COVID-19 violate their right to treatment and adequate medical care, and therefore constitute cruel and unusual punishment. Id. at ¶¶75-7. Further, Petitioners allege that the release of inmates who are “vulnerable to COVID-19” will: (1) protect these inmates from transmission of the virus; (2) mitigate risk of infection for other inmates and staff; (3) mitigate risk of infection to the community; and (4) reduce the burden on the community’s health care infrastructure. Id. at ¶ 40.
Petitioners also seek class certification pursuant to Rule 23, Fed.R.Civ.P. Doc. 1, ¶ 56. Petitioners seek to represent a class of “all current and future people in post-conviction custody at Oakdale” and a subclass of “persons who, by reason of age or medical condition, are medically vulnerable. Id. at ¶ 57. Petitioners define the subclass as:
[A]ll current and future persons incarcerated at Oakdale over the age of 50, as well as all current and future persons incarcerated at Oakdale of any age who experience: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; severe obesity (defined as a body mass index of 40 or
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higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease. Id. at ¶ 58. Petitioners estimate that there are 1,871 inmates in the proposed Class and 748 inmates in the proposed Medically-Vulnerable Subclass. Id. at ¶ 62. Petitioners conclude that their action “satisfies the numerosity, commonality, typicality, and adequacy requirement for maintaining a class action[.]” Id. at ¶ 60. Petitioners ultimately seek an order directing Federal Respondents to immediately release all proposed subclass members, create a preventative plan for all remaining class members, create a housing plan for released class members who have either been exposed or tested positive for COVID-19. Id. at ¶ 79. Petitioners also seek a declaration that FCC – Oakdale’s policies “violate the Eighth Amendment right against cruel and unusual punishment with respect to the Class[.]” Id. In their emergency motion, Petitioners include the declarations of six additional inmates and request additional injunctive relief. Petitioners now seek an order from the Court directing Respondents to identify Subclass members within forty-eight hours of the Order and to provide any challenges to the release of all inmates in the Subclass within the same forty-eight hours. Doc. 9 at 2. Then, Petitioners seek to have the Court determine, within forty-eight hours, whether these inmates may be released. Id.
III. CONDITIONS AT OAKDALE Respondents previously updated the Court on the conditions at FCC Oakdale. Docs. 7-8. Respondents are scheduled to provide additional updates to the Court on April 16, 2020. Doc. 10. Most recently, the Clinical Director of FCC Oakdale, Dr. Richard Griffin, M.D. has provided an update on the status of the Health Services at FCC Oakdale. See Declaration of Dr. Griffin,
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attached hereto as Exhibit 2. Dr. Griffin details the screening and monitoring that are being done within the facility, as well as the measures that are being taken to treat symptomatic inmates. Id. at 2-3. Further, the BOP invited officials from the Centers for Disease Control and Prevention (CDC) and the Louisiana Department of Health to tour the complex. After the survey, four recommendations were made by the reviewers, which FCC Oakdale staff immediately began the process of implementing. Id. at 3. Additionally, Dr. Griffin reviewed the medical records of the six Petitioners and advised that none of the named Petitioners have exhibited, or reported to medical staff, any symptom consistent with COVID-19. Moreover, none even meet the criteria for COVID-19 testing. Griffin Decl., ¶¶ 13-19. Dr. Griffin also confirmed that Petitioners Andrews and Martin do not have any of the underlying or pre-existing medical conditions that may increase their risk of serious COVID-19 infection. Id. at 4.
IV. STANDARD OF REVIEW A TRO or preliminary injunction is an “extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (emphasis added). A party seeking a TRO must show: (1) a “substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted; and (4) that the grant of the injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011) (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)). “ [A] movant must demonstrate ‘at least some injury’ for a preliminary injunction to issue.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).
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Plaintiffs’ request a mandatory injunction, as it requires Defendants to take action. The burden is on the party seeking a mandatory injunction increases and courts apply a heightened standard of review. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976); Exhibitors Poster Exch. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir. 1971). “[W]here an injunction is mandatory – that is, where its terms would alter, rather than preserve, the status quo by commanding some positive act – the moving party must meet a higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or that extreme or very serious damage will result from the denial of the injunction.” Elec. Privacy Info. Ctr., 15 F. Supp. 3d 32, 39; see also, Martinez, 554 F.2d at 1243.
“The same standard applies to both temporary restraining orders and to preliminary injunctions.” Council on Am.-Islamic Relations v. Gaubatz, 667 F. Supp. 2d 67, 74 (D.D.C. 2009) (quoting Chaplaincy, 599 F. Supp. 2d 1, 3, n. 2 (D.D.C. 2009)).
V. ARGUMENT A. Petitioners have not established a substantial likelihood of success on the merits of their
claim2 Petitioners are unlikely to succeed on the merits of their claims. Respondents filed a a Motion to Dismiss Petitioners’ claims as the Court lacks subject matter jurisdiction and the Petition fails to state a claim upon which relief may be granted. Doc. 12. The Court is jurisdictionally barred from reviewing the BOP’s discretionary classification and placement of Petitioners. 18 U.S.C. § 3621(b). Further, Petitioners cannot establish jurisdiction under the All Writs Act (28 U.S.C. § 1651), the Suspension Clause (Art. I, § 9, cl.2 of the Constitution), or the
2 Respondents fully briefed this argument in their Motion to Dismiss and supporting memorandum and will only summarize those arguments here. See Motion to Dismiss, Doc. 12.
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federal question statute (28 U.S.C. § 1331). See Doc. 12-1, 7-11. Additionally, Petitioners Eighth Amendment claims, challenging their conditions of confinement, are not cognizable under § 2241. Doc. 12-1, 11-15. Petitioners also have not alleged sufficient facts to state a constitutional violation regarding their conditions of confinement where: (1) Petitioners’ confinement is lawful (Doc. 12-1, 15-16); (2) Petitioners have suffered no injury and therefore, fail to present a case or controversy (Doc. 12-1, 16-17); (3) Petitioners are unable to pursue direct constitutional claims seeking release (Doc. 12-1, 17); and (4) Petitioners fail to state an Eighth Amendment deliberate indifference claim (Doc. 12-1, 18-24). B. Petitioners have not established a substantial threat of irreparable injury
The Supreme Court’s “frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. at 22 (emphasis in original). “To seek injunctive relief, the plaintiff must show a real and immediate threat of future or continuing injury apart from any past injury.” Aransas Project v. Shaw, 775 F.3d 641, 648 (5th Cir. 2014). “Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant.” Hurley v. Gunnels, 41 F.3d 662 (5th Cir. 1994) (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)). A petitioner “cannot carry [his] burden simply by arguing that the status quo is not guaranteed.” Rosa v. McAleenan, 2019 WL 5191095, at *24 (S.D.Tex. Oct. 15, 2019).
Dr. Griffin has confirmed that none of the named Petitioners have exhibited, or reported to medical staff, any symptom consistent with COVID-19. Moreover, none even meet the criteria
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for COVID-19 testing. Griffin Decl., ¶¶ 13-19. At this stage, whether Petitioners may be exposed to COVID-19 is entirely speculative. C. An injunction usurping defendants’ statutory discretion concerning inmate housing is not
in the public interest. Concern for potential exposure to COVID-19 is shared by all, but releasing inmates subject to mandatory detention because of their criminal histories, or releasing inmates without following established processes is against the public interest. As Associate Warden Segovia previously notified this court, Petitioners Livas, Martin, Andrews, and Corbett all have PATTERN risk recidivism scores above minimum, which would remove them from priority consideration for home confinement.3 Doc. 8, Segovia Decl., ¶ 22. Moreover, Inmate Smith is ineligible for consideration due to his current offenses, which involve the production and possession of child pornography. Id. Of the six Petitioners, only Inmate Buswell is eligible for and will receive priority review for home consideration. Id. The public interest is also best served by allowing the order, medical processes and protocols implemented by government professionals to remain in place. See Youngberg v. Romeo, 457 U.S. 307, 322–23 (1982) (urging judicial deference and finding presumption of validity regarding decisions of medical professionals concerning conditions of confinement); see also, Thornburgh v. Abbott, 490 U.S. 401, 408 (1989) (this Court has afforded considerable deference to the determinations of prison administrators, who in the interest of security, regulate
3 The BOP’s processes for review prior to release to home confinement or furlough protect the public interest. To be sure, Inmate Martin was previously released and violated his parole. He was also arrested on new charges, Possession of a Controlled Substance. See U.S. v. Martin, No. 2:12-cr-00010, Dkt. 57 (S.D.N.Y.); see also, <https://www.usatoday.com/story/news/nation/2020/04/15/florida-man-released-jail-amid-coronavirus-arrestedmurder/5135887002/>(Florida inmate, released due to COVID-19 as a low-level, non-violent offender, arrested one day after his release on second-degree murder charges.)
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the relations between prisoners and the outside world) (citation omitted). FCC Oakdale is reviewing the cases of all inmates who meet the requisite criteria for home confinement to determine whether release is appropriate, and FCC Oakdale has taken significant steps to reduce the likelihood that its inmates and staff will be exposed to COVID-19. See Segovia Decl., Doc. 8; Griffin Decl. As previously discussed, FCC Oakdale has discontinued social visitation and screens all staff and required visitors. It screens all incoming detainees for potential illness and segregates and monitors those with potential exposure. These steps show that FCC Oakdale is proactively seeking to protect its population and to address needs as they arise.
CONCLUSION
For the foregoing reasons, Respondents respectfully request that the Court deny Emergency Motion for Release of Vulnerable and Low-Risk Prisoners from Oakdale (Doc. 9).
Respectfully submitted, DAVID C. JOSEPH United States Attorney BY: s/ Karen J. King KAREN J. KING (#23508) KATHERINE W. VINCENT (#18717) Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, Louisiana 70501 Telephone: (337) 262-6618 Facsimile: (337) 262-6693 Email: karen.king@usdoj.gov
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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. VERSUS RODNEY MYERS, ET AL.

) CIVIL ACTION NO. 20-cv-00422 ) ) JUDGE DOUGHTY ) ) MAGISTRATE JUDGE KAY )

OBJECTIONS TO EXHIBITS

Respondents object to Petitoners’ exhibits as follows:

A. Declaration of Joe Godenson, MD (Doc. 9-3, Ex. 1)

Federal Respondents object to Dr. Godenson’s declaration to the extent that it contains opinions that Dr. Godenson has not demonstrated that he is qualified to render based upon his knowledge, skill, experience, training, or education. FRE 702; Doc. 9-3, ¶¶26, 27-8, 33 . Federal Respondents also object to purported factual statements made by Dr. Godenson that are not based upon his personal knowledge, lack foundation, and are speculative. FRE 602; Doc. 9-3, ¶¶ 15, 19, 22, 24-6, 30, 35. Finally, Federal Respondents object to statements that are not relevant to the instant matter. FRE 401, 402; Doc. 9-3, ¶¶ 16, 18, 20.
B. Declaration of Gaines Andrews (Doc. 9-4, Ex. 2)

Federal Respondents object to Inmate Andrews’ declaration to the extent that it offers an

improper lay opinion. FRE 701; Doc. 9-4, ¶¶ 2-3, 5. Federal Respondents also object to Inmate

Andrews’ statements that are either not based on his personal knowledge, lack foundation, or are

speculative. FRE 602; Doc. 9-4, ¶¶ 7-11, 14, 16.

GOVERNMENT EXHIBIT
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C. Declaration of Richard Buswell (Doc. 9-5, Ex. 3) Federal Respondents object to Inmate Buswell’s declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-5, ¶¶ 4, 5. Federal Respondents also object to Inmate Buswell’s statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-5, ¶¶ 3-4, 7-10, 12-13, 15-17. Federal Respondents also object to any statements that contain hearsay. FRE 801, 802; Doc. 9-5, ¶17. D. Declaration of Pio Alejandr Campos (Doc. 9-6, Ex. 4) Federal Respondents object to Inmate Campos’ declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-6, ¶¶ 13. Federal Respondents also object to Inmate Campos’ statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-6, ¶¶ 6-8, 11, 14. Federal Respondents also object to any statements that contain hearsay. FRE 801, 802; Doc. 9-6, ¶ 3. Federal Respondents object to Inmate Campos’ testimony to the extent that he seeks relief and is not a named defendant. Such relief is premature. E. Declaration of Daniel Collins (Doc. 9-7, Ex. 5) Federal Respondents object to Inmate Collins’ declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-7, ¶¶ 4-5. Federal Respondents also object to Inmate Collins’ statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-7, ¶¶ 3-4, 6-8, 11, 14-15. Federal Respondents object to Inmate Collins’ testimony to the extent that he seeks relief and is not a named defendant. Such relief is premature.

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F. Declaration of Dewayne Corbett (Doc. 9-8, Ex. 6) Federal Respondents object to Inmate Corbett’s declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-8, ¶¶ 2, 5. Federal Respondents also object to Inmate Corbett’s statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-8, ¶¶ 3-6, 9. Federal Respondents also object to any statements that contain hearsay. FRE 801, 802; Doc. 9-8, ¶ 7. G. Declaration of Brandon Livas (Doc. 9-9, Ex. 7) Federal Respondents object to Inmate Livas’ declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-9, ¶¶ 4-6. Federal Respondents also object to Inmate Livas’ statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-9, ¶¶ 3-7, 11, 14. Federal Respondents also object to any statements that contain hearsay. FRE 801, 802; Doc. 9-9, ¶ 13. H. Declaration of Carlos Lorenzo Martin (Doc. 9-10, Ex. 8) Federal Respondents object to Inmate Martin’s declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-10, ¶¶ 2-6. Federal Respondents also object to Inmate Martin’s statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-10, ¶¶ 4-8. Federal Respondents also object to any statements that contain hearsay. FRE 801, 802; Doc. 9-10, ¶ 8, 10. I. Declaration of Hector Perez (Doc. 9-11, Ex. 9) Federal Respondents object to Inmate Perez’s declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-11, ¶¶ 2, 8-9. Federal Respondents also object to Inmate Perez’s statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-11, ¶¶ 1, 3-4, 6-7, 9-10. Federal Respondents object to Inmate

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Perez’s testimony to the extent that he seeks relief and is not a named defendant. Such relief is premature.
J. Declaration of Justin Scott (Doc. 9-12, Ex. 10) Federal Respondents object to Inmate Scott’s declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-12, ¶¶ 2, 5. Federal Respondents also object to Inmate Scott’s statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-12, ¶¶ 4-9, 11. Federal Respondents also object to any statements that contain hearsay. FRE 801, 802; Doc. 9-12, ¶ 3. Respondents object to Inmate Perez’s testimony to the extent that he seeks relief and is not a named defendant. Such relief is premature. K. Declaration of Johnny Smith (Doc. 9-13, Ex. 11) Federal Respondents object to Inmate Smith’s declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-13, ¶¶ 6-8. Federal Respondents also object to Inmate Smith’s statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-13, ¶¶ 3-8, 11-12. Federal Respondents also object to any statements that contain hearsay. FRE 801, 802; Doc. 9-13, ¶ 13, 15. L. Declaration of John Sposato (Doc. 9-14, Ex. 12) Federal Respondents object to Inmate Sposato’s declaration to the extent that it offers an improper lay opinion. FRE 701; Doc. 9-14, ¶¶ 5. Federal Respondents also object to Inmate Sposato’s statements that are either not based on his personal knowledge, lack foundation, or are speculative. FRE 602; Doc. 9-14, ¶¶ 1, 3, 5-7, 9-12. Federal Respondents also object to any statements that contain hearsay. FRE 801, 802; Doc. 9-13, ¶ 4, 8. Federal Respondents object to

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Inmate Sposato’s testimony to the extent that he seeks relief and is not a named defendant. Such
relief is premature.
M. Declaration of Arthur Wammel (Doc. 9-15, Ex. 13)
Federal Respondents object to Inmate Wammel’s declaration to the extent that it offers an
improper lay opinion. FRE 701; Doc. 9-15, ¶¶ 4, 6. Federal Respondents also object to Inmate
Wammel’s statements that are either not based on his personal knowledge, lack foundation, or
are speculative. FRE 602; Doc. 9-15, ¶¶ 3-4, 9, 14. Federal Respondents also object to any
statements that contain hearsay. FRE 801, 802; Doc. 9-13, ¶7. Federal Respondents object to
Inmate Wammel’s testimony to the extent that he seeks relief and is not a named defendant. Such
relief is premature.
Respectfully submitted,
DAVID C. JOSEPH United States Attorney
BY: s/ Karen J. King KAREN J. KING (#23508) KATHERINE W. VINCENT (#18717) Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, Louisiana 70501 Telephone: (337) 262-6618 Facsimile: (337) 262-6693 Email: karen.king@usdoj.gov

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GOVERNMENT EXHIBIT
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 Case 2:20-cv-00422-TAD-KK Document 14 Filed 04/16/20 Page 1 of 4 PageID #: 252

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, RICHARD BUSWELL, DEWAYNE CORBETT, JOHNNY SMITH, CARLOS LORENZO MARTIN and GAINES ANDREWS, on behalf of themselves and those similarly situated
VERSUS
RODNEY MYERS, Warden of Oakdale Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities

) CIVIL ACTION NO. 20-cv-00422 ) ) ) ) ) ) JUDGE DOUGHTY ) ) ) MAGISTRATE JUDGE KAY ) ) ) )

BOP’S SECOND COVID-19 INMATE REVIEW UPDATE Pursuant the Court’s April 13 Memorandum Order (Doc. 10), the Bureau of Prisons (“BOP”) provides the following update to their April 9 (Doc. 7) and April 10 (Doc. 8) notices regarding the review of inmates for release, removal, or furlough at the Federal Correctional Complex-Oakdale (“FCC Oakdale”):

Conditions at FCC Oakdale FCC Oakdale continues to take numerous steps to mitigate the spread of COVID-19 at each of its facilities as most recently discussed by its Clinical Director, Dr. Richard Griffin, M.D. See Declaration of Dr. Richard Griffin, M.D., Doc. 13, Ex. 2. There are currently thirty-two (32) ACTIVE confirmed cases of COVID-19. See Declaration of Associate Warden Juan A. Segovia (“Segovia Decl. II”), attached

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hereto as Exhibit 1. Fourteen (14) inmates have been determined to be medically cleared or determined to be recovered, and have been removed from isolation. Id. at ¶ 2. There remain no cases at FCI Oakdale II. Id. There has been one additional death, inmate Michael Lilley, who was previously transferred to an outside hospital on March 24, 2020. Id. at ¶ 3.
Release or Transfer of Inmates The BOP continues to review inmates for release as appropriate under its guidelines. On April 15, 2020, additional guidance was received regarding furlough and home confinement. Segovia Decl. II at ¶ 5. The new guidance confirms the factors to be used when reviewing and referring inmates for home confinement: (1) Primary or prior offense is not violent; (2) Primary or prior offense is not sex offense; (3) Primary or prior offense is not terrorism; (4) No detainer; (5) Mental Health Care Level is less than IV; (6) PATTERN (BOP’s risk and needs assessment tool) score is Minimum; (7) No Incident Reports in the past 12 months; (8) U.S. Citizen; and (9) Have a viable release plan. Id. Currently twenty-seven (27) inmates have met the criteria and have been referred for further home confinement processing and review. Six (6) inmates have now been approved for early home confinement transfer. All of these inmates have been placed in pre-transfer quarantine. Id. at ¶ 7. Further, of the sixty-eight (68) inmates at FCC Oakdale that are aged 65 or older, fifty-three (53) are ineligible for home confinement review because they have sex offenses, detainers, or exceed the minimum PATTERN recidivism score. Two
2

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remain pending review for home confinement, and eight were denied after received individual review. Of the remaining five, one was given a date for transfer to a halfway house, three were approved for home confinement and are pending transfer, and one is pending a reduction in sentence motion with his sentencing court.1 Id. at ¶ 8.
Moreover, rather than remove medical professionals from their front line duties to review the medical records of over 1,800 inmates assigned to FCC Oakdale, BOP staff have been reviewing all inmates who potentially qualify for home confinement under the factors identified above. Additionally, BOP staff examined rosters for those inmates classified as severely medically impaired, requiring daily nursing care, and those requiring frequent clinical contacts, and/or who may require some assistance with activities of daily living.
Based upon that review, eighteen (18) inmates were identified as fitting into these parameters. Of those, one is pending a halfway house referral, and one is pending transfer to a BOP medical facility. The remaining sixteen are ineligible for the home confinement review because they have sex offenses, detainers, or exceed the minimum PATTERN recidivism score.
Respectfully submitted, DAVID C. JOSEPH United States Attorney BY: s/ Karen J. King KAREN J. KING (#23508)
1 At least eight (8) FCC Oakdale inmates have successfully pursued reductions in sentence with their sentencing court and have since been released. Id. at ¶ 4.
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KATHERINE W. VINCENT (#18717)

Assistant United States Attorney

800 Lafayette Street, Suite 2200

Lafayette, Louisiana 70501

Telephone: (337) 262-6618

Facsimile: (337) 262-6693

Email:

karen.king@usdoj.gov

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U.S. Department of Justice Memorandum Federal Bureau of Prisons

Correctional Programs Branch

Central Office 320 First Street, N. W Wash ington, DC 20534

MEMORANDUM FOR CORRECTIONAL PROGRAM ADMINISTRATORS

FROM :

~ ~~n-g"'-S~e~n-vi-o~rE/'Deputy Assistant Director

SUBJECT :

Furlough and Home Confinement Additional Guidance

The following guidance is provided from information contained in the CARES Act , memoranda from Attorney General Barr , and the Bureau of Prisons. This memorandum rescinds guidance previously provided .
Furlough The current pandemic is considered an urgent situation that may warrant an emergency furlough under 570 . 32(b) (1) and 570 . 33(b) . These regulations authorize a non-transfer emergency furlough if the inmate is otherwise deemed appropriate , even if he/she has been submitted for Home Confinement (HC) . Effective April 16 , 2020 , all inmates referred for an emergency furlough due to the Covid-19 pandemic should be submitted and keyed as FURL CRI .
Inmates who have been referred for a release planning furlough based on guidance issued prior to April 16 , 2020 , do not require a new application . These inmates should be keyed out of the facility as FURL REL . Furlough applications completed on or after April 16 , 2020 , should follow the updated guidance . Inmates within 12 months of his/her Projected Release Date (PRO) , or those who have received Home Confinement placement and have a PRO exceeding one year , should be reviewed for furlough.
Home Confinement In an effort to alleviate concerns and questions , the following criteria should be met when reviewing and referring inmates for HC :
• Primary or prior offense is not violent

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• Primary or prior offense is not a sex offense • Primary or prior offense is not terrorism • No detainer • Mental Health Care Level is less than CARE - MH 4 • PATTERN risk score is Minimum (R- MIN) • No incident reports in the past 12 months (regardless of
severity level) • U. S . Citizen • Viable Release Plan
If the inmate meets the criteria above , the following factors should be noted, but are not a reason for denial :
• Age • Projected Release Date • Percentage of time served • Medical Care Level • Victim Witness Program • Arrival dated (ARSD)
Any concerns regarding an inmate ' s suitability for HC placement should be noted in Section 11 of the BP-210 , Institutional Referral for CCC Placement . It is strongly encouraged to refer inmates currently housed in a facility with active Covid- 19 cases .
For inmates requesting relocation , a release plan must be submitted to the USPO prior to HC referral submission . The USPO approval letter must be forwarded to the RRM , once received . Institution staff should contact the Health Service Specialist in the RRM ' s office with questions regarding HC placement for inmates with medical concerns.
If you have any questions, please contact David Brewer , Acting Senior Deputy Assistant Director , Correctional Programs Division , at (20 2 )353 - 3638.

 
 Case 2:20-cv-00422-TAD-KK Document 17 Filed 04/17/20 Page 1 of 2 PageID #: 263

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. VERSUS RODNEY MYERS, ET AL.

) CIVIL ACTION NO. 20-cv-00422 ) ) JUDGE DOUGHTY ) ) MAGISTRATE JUDGE KAY )

RESPONDENTS’ MOTION TO STAY CONSIDERATION OF CLASS CERTIFICATION PENDING ADJUDICATION OF RESPONDENTS’ MOTION TO DISMISS
PETITIONERS’ PETITION AND EMERGENCY MOTION

Respondents Rodney Myers, Warden of Oakdale Federal Correctional

Institutions and Michael Carvajal, Federal Bureau of Prisons Director, in their

official capacities (collectively “Respondents”), by and through David C. Joseph,

United States Attorney for the Western District of Louisiana, and Karen J. King,

Assistant United States Attorney, respectfully move to stay consideration of

Petitioners Brandon Livas, Richard Buswell, Dewayne Corbett, Johnny Smith,

Carlos Lorenzo Martin, and Gaines Andrews (collectively “Petitioners”) request for

class certification (Docs. 1, 9) pending the adjudication of Respondents’ Motion to

Dismiss. Doc. 12. The grounds for this motion are more particularly set forth in the

accompanying memorandum of law.

Counsel for Respondents, AUSA Karen J. King, sought consent from Counsel

for Petitioners, Bruce Hamilton and Somil Trivedi, on April 16, 2020, via e-mail to

seek such stay. On the same date, Mr. Hamilton responded that Petitioners oppose

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Respondents’ request. Dated: April 17, 2020.

Respectfully Submitted,

DAVID C. JOSEPH UNITED STATES ATTORNEY

BY: s/ Karen J. King

KAREN J. KING (#23508)

KATHERINE W. VINCENT (#18717)

Assistant United States Attorneys

800 Lafayette Street, Suite 2200

Lafayette, Louisiana 70501

Telephone: (337) 262-6618

Facsimile: (337) 262-6693

Email:

karen.king@usdoj.gov

2

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. VERSUS RODNEY MYERS, ET AL.

) CIVIL ACTION NO. 20-cv-00422 ) ) JUDGE DOUGHTY ) ) MAGISTRATE JUDGE KAY )

RESPONDENTS’ MEMORANDUM IN SUPPORT OF MOTION TO STAY CONSIDERATION OF CLASS CERTIFICATION PENDING ADJUDICATION OF RESPONDENTS’ MOTION TO DISMISS
PETITIONERS’ PETITION AND EMERGENCY MOTION

Respondents, Rodney Myers, Warden of Oakdale Federal Correctional

Institutions and Michael Carvajal, Federal Bureau of Prisons Director, in their

official capacities, respectfully move the Court to stay consideration of Petitioners’

request for class certification (Docs. 1, 9) pending the adjudication of Respondents’

Motion to Dismiss Petitioners’ Petition for Writ of Habeas Corpus, Injunctive, and

Declaratory Relief and Emergency Motion for Release of Vulnerable and Low-Risk

Prisoners from Oakdale. Doc. 12.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioners filed a Petition for Writ of Habeas Corpus, Injunctive, and

Declaratory Relief on April 6, 2020. Doc. 1. Additionally, Petitioners seek class

certification. Id. On April 13, 2020, Petitioners filed an Emergency Motion for

Release of Vulnerable and Low-Risk Prisoners from Oakdale seeking a temporary

restraining order and/or a preliminary injunction. Doc. 9. Petitioners’ Motion for a

TRO was denied as moot. Doc. 10. However, the Court granted Petitioners’ request

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for expedited consideration of their request for preliminary injunction. Federal Respondents were ordered to respond to the motion for preliminary injunction by April 15, 2020. Id. Respondents filed a Motion to Dismiss Petitioners’ Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief and Emergency Motion for Release of Vulnerable and Low-Risk Prisoners from Oakdale. Doc. 12. Respondents also filed an opposition to Petitioners’ Emergency Motion. Doc. 13.
Following a status conference with the Court, Petitioners’ have been ordered to respond to the jurisdictional issues in Respondents’ motion to dismiss by April 20, with Respondents’ reply to any such response due April 21. Pending the Court’s determination of jurisdiction, a hearing on Petitioners’ motion for preliminary injunction has been set for April 23 and the Court has reserved its ruling on Respondents’ motion to dismiss for failure to state a claim under Rule 12(b)(6), FED.R.CIV.P. Doc. 15.
ARGUMENT Respondents ask the Court to stay consideration of Petitioners’ request for class certification (Docs. 1, 9), and any hearing related thereto, until after the Court adjudicates Respondents’ Motion to dismiss, Doc. 12. Respondents seek such a stay not for purposes of delay, but rather to preserve resources and advance the interest of judicial economy. “‘The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants . . . [this] calls for the exercise of
2

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judgment, which must weigh competing interests and maintain an even balance.’” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936). The class action is a procedural device that serves two primary purposes. First, class actions increase judicial economy by avoiding multiple suits. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983); American Pipe & Const. Co. v. Utah, 414 U.S. 538, 553 (1974). Second, class actions provide a method of protecting the rights of those who would not otherwise bring individual claims for practical reasons such as cost or ignorance. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985). While these primary goals require the district court to decide the issue of class certification “as soon as practicable,” Fed. R. Civ. P. 23(c)(1), the Fifth Circuit, as well as a majority of other circuits, have held that dispositive motions may be considered prior to ruling on a motion for class certification. See, e.g. Floyd v. Bowen, 833 F.2d 529, 534–35 (5th Cir.1987) (noting that the rule in several circuits is that class action litigation may be halted by a Rule 12 motion to dismiss or a Rule 56 motion for summary judgment); see also, Pharo v. Smith, 621 F.2d 656, 663–64 (5th Cir.), on rehearing aff'd in part, remanded in part on other grounds, 625 F.2d 1226 (1980) (affirming summary judgment for a defendant where no ruling has been made as to the class). “Ruling on a dispositive motion prior to addressing class certification issues may be appropriate where there is sufficient doubt regarding the likelihood of success on the merits of a plaintiff’s claims, where inefficiency would result, or where neither plaintiffs nor members of the putative class would be prejudiced.” Thornton v. Mercantile Stores Co., Inc., 13 F.Supp.2d 1282, 1289 (M.D.
3

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Ala. 1998). In this case, Respondents’ Motion to Dismiss is dispositive of all Petitioners’
claims. As such, named Petitioners Brandon Livas, Richard Buswell, Dewayne Corbett, Johnny Smith, Carlos Lorenzo Martin, and Gaines Andrews cannot represent the proposed class because they do not bring any claims over which this Court has jurisdiction or for which relief can be granted. See Resps’. Mot. to Dism., Doc. 12. For the same reasons, Petitioners cannot establish a likelihood of success on the merits, see generally, Resps’. Opp. to Mot. for Prelim. Inj., Doc. 13 and Resps’. Mot. to Dism., Doc. 12. Thus, were the Court to adjudicate the class certification motion in favor of Plaintiff and then make a favorable ruling on Respondents’ Motion to Dismiss, the result would be one where there is no named Petitioner to represent a certified class. This would result in further motions practice from the parties related to the class certification issue—perhaps even an interlocutory appeal—during which the Court may also have to stay all further proceedings. Accordingly, “inefficiency would result” and should be avoided “where neither plaintiffs nor members of the putative class would be prejudiced.” Thornton v. Mercantile Stores Co., Inc., 13 F.Supp.2d at 1289; see Fed. R. Civ. P. 1 et seq. (establishing that the purpose of the Federal Rules is “to secure the just, speedy, and inexpensive determination of every action and proceeding”); see also Chief Justice John Roberts, 2016 Year–End Report on the Federal Judiciary at 6, Supreme Court of the United States, available at http://www.supremecourt.gov/publicinfo/year- end/year-endreports.aspx (“2016
4

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Year–End Report”) (noting “Litigation is costly, and everyone benefits if disputes can be resolved efficiently with minimal expense and delay.”). Where, as here, the controlling issues are purely questions of law that can be resolved via dispositive motion, “[i]n those situations, the district judge has the responsibility—always in the first instance, and frequently in the last—‘to say what the law is,’” thereby resolving the dispute as early as possible. Id. at 7.
A stay would not prejudice Petitioners. Staying certification of a class while the Court considers Respondents’ Motion to Dismiss, which may dispose of the entire case, will not cause any discernable prejudice to the six named Petitioners. With respect to any proposed class members who are confined at FCC Oakdale or who may someday be so confined, Respondents submit they are receiving adequate review through: (1) seeking compassionate release from their sentencing courts, (2) seeking habeas relief via Zadvydas, or (3) the BOP’s home confinement or nontransfer furlough process. See generally Resps’. Second Update on Inmate Review, Doc. 14.
Accordingly, Respondents respectfully request the Court grant their motion to stay consideration of class certification pending adjudication of their Motion to Dismiss.

Dated: April 17, 2020.

Respectfully Submitted,
DAVID C. JOSEPH UNITED STATES ATTORNEY
BY: s/ Karen J. King KAREN J. KING (#23508) KATHERINE W. VINCENT (#18717) Assistant United States Attorneys
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800 Lafayette Street, Suite 2200

Lafayette, Louisiana 70501

Telephone: (337) 262-6618

Facsimile: (337) 262-6693

Email:

karen.king@usdoj.gov

6

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. VERSUS RODNEY MYERS, ET AL.

) CIVIL ACTION NO. 20-cv-00422 ) ) JUDGE DOUGHTY ) ) MAGISTRATE JUDGE KAY )

[PROPOSED] ORDER

Considering Respondents’ Motion to Stay Consideration of Class Certification Pending Adjudication of Respondents’ Motion to Dismiss Petitioners’ Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief and Emergency Motion for Release of Vulnerable and Low-Risk Prisoners from Oakdale, and good cause having been shown,
IT IS ORDERED that the motion is GRANTED.

Monroe, Louisiana, this day of April, 2020.

HONORABLE TERRY A. DOUGHTY UNITED STATES DISTICT JUDGE

 
 Case 2:20-cv-00422-TAD-KK Document 19 Filed 04/20/20 Page 1 of 15 PageID #: 273

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

BRANDON LIVAS, RICHARD BUSWELL, DEWAYNE CORBETT, JOHNNY SMITH, CARLOS LORENZO MARTIN, and GAINES ANDREWS, on behalf of themselves and those similarly situated,

Case No. 2:20-cv-00422
Judge Terry A. Doughty Magistrate Judge Kathleen Kay

Petitioners, v.
RODNEY MYERS, warden of Oakdale Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Class Action IMMEDIATE RELIEF SOUGHT

Respondents.

PETITIONERS’ OPPOSITION TO RESPONDENTS’ MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISIDCTION
Pursuant to this Court’s April 16, 2020 Order, Dkt. No. 15, Petitioners submit this Opposition to portions of Respondents’ Motion to Dismiss that challenge this Court’s jurisdiction to hear Petitioners’ suit.1 For the reasons below, Respondents’ Motion should be denied to the extent that it challenges this Court’s subject-matter jurisdiction to hear Petitioners’ claim for relief under 28 U.S.C. § 2241.
INTRODUCTION The federal judiciary has subject-matter jurisdiction over prisoners’ claims that the government is violating their constitutional rights. Petitioners seek injunctive relief from this

1 This roughly corresponds to Parts A.1-4 and B.1 of the Argument section of Respondents’ Memorandum in Support of Respondents’ Motion to Dismiss (“Memo”), Dkt. No. 12-1. Respondents’ Memo characterizes Part B.1—regarding the availability of 28 U.S.C § 2241 to address Respondents’ Eighth Amendment violations—as a failure to state a claim upon which relief can be granted. Memo at 11-15. Petitioners believe this question is jurisdictional; indeed, as shown below, § 2241 clearly confers subject-matter jurisdiction upon this Court. Accordingly, Petitioners address the issue in this Opposition.

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Court to halt Respondents’ ongoing violation of Petitioners’ Eighth Amendment right to be free from cruel and unusual punishment. Indeed, Respondents’ deliberate indifference to Petitioners’ health and safety has already resulted in seven confirmed inmate deaths and dozens of additional confirmed COVID-19 infections at Oakdale. Because staff enter and exit every day, that indifference also has created an untenable risk to the broader community.
The crisis at Oakdale is many things, including a public-health emergency and a humanitarian crisis. But, fundamentally, it is a large-scale, ongoing violation of the constitutional rights of the more than 1,800 Class members who entirely depend on the government to protect them from serious physical harm or death. For the hundreds of Medically-Vulnerable Subclass members, it is life-or-death. As explained below, this Court has subject-matter jurisdiction to adjudicate these constitutional claims.
Respondents attempt to strip the Court of its jurisdiction by asserting that remediating this crisis at Oakdale is solely within BOP’s administrative purview. That assertion has no support in the law. In fact, the Supreme Court has made clear that just the opposite is true: “courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511 (2011). Respondents also attempt to rewrite Petitioners’ own lawsuit as a mere attempt to improve the conditions inside Oakdale. But Petitioners properly seek redress under § 2241, because the very fact of their confinement creates the constitutional violation at issue. Therefore, only transfer from the prison—coupled with responsible controls to monitor prisoners and ensure the social distancing that is impossible inside it—will cure the problem. It also will save lives.
The Court need not and must not defer to Respondents when such fundamental
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constitutional questions are at issue. Nor are Respondents immune from the injunctive relief that Petitioners seek to immediately remediate the imminent threat to their health and safety.
ARGUMENT I. Respondents Cannot “Bar” this Court from Addressing Constitutional Violations
This Court has jurisdiction over Petitioners’ constitutional claims, regardless of whether the potential remedy would involve administrative action by Respondents. Respondents’ assertion that the constitutional violations that Petitioners allege are not subject to judicial review has no support in the law. When the federal Bureau of Prisons incarcerates an individual, it removes that person’s ability to provide for their own needs. See Brown, 563 U.S. at 510. In the context of the COVID-19 pandemic, BOP incarceration has taken away prisoners’ ability to protect themselves from a lethal virus. Federal prisoners today depend on BOP and prison administrators not just for food, clothing, and medical care, but also for protection from the risk of COVID-19. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison administrators therefore have a constitutional obligation to protect prisoners from the substantial risk of serious harm that COVID-19 presents—they cannot wait until defenseless prisoners actually contract the disease. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition.”).
Where prison authorities fail to meet that prophylactic constitutional obligation—as in Oakdale, where seven men have already died of COVID-19 and dozens more prisoners and staff are sick with it—the courts not only may step in. They must. The Supreme Court has clearly set out the role of the federal judiciary in these circumstances:
If government fails to fulfill [its constitutional] obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation. Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.
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Courts nevertheless must not shrink from their obligation to enforce the constitutional rights of all persons, including prisoners. Brown, 563 U.S. at 510-11 (internal citations and quotation marks omitted). Respondents point to no authority immunizing their actions and failures to act from judicial review. While each of Respondents’ cited cases recognizes judicial deference to prison administrators in some circumstances, see Memo at 16-17 (collecting cases), no court has held that such deference extends to constitutional claims. To the contrary, each of these cases affirms the appropriateness of judicial review—and the need for judicial action—in the face of constitutional violations. See, e.g., Procunier v. Martinez, 416 U.S. 396, 405-06 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989) (“But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.”); Thornburgh, 490 U.S. at 414-19 (reaffirming that “prison walls do not form a barrier separating prison inmates from the protections of the Constitution” and applying in-depth judicial review to ensure prison regulations did not unduly infringe on plaintiffs’ First Amendment rights) (internal quotation marks and alteration omitted); Turner v. Safley, 482 U.S. 78, 84 (1987) (“Because prisoners retain [constitutional] rights, ‘[w]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.’”) (quoting Procunier, 416 U.S. at 405-06); Bell v. Wolfish, 441 U.S. 520, 545 (1979) (reaffirming that “[t]here is no iron curtain drawn between the Constitution and the prisons of this country” and employing extensive judicial review of a series of jail regulations) (quoting Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974)); Pell v. Procunier, 417
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U.S. 817, 827 (1974) (“Courts cannot, of course, abdicate their constitutional responsibility to delineate and protect fundamental liberties.”).
Respondents’ reliance on 18 U.S.C. § 3621(b) is equally misplaced and overbroad. See Memo at 8. First, Respondents’ characterization of the Petition as merely challenging Respondents’ “classification and placement of inmates” is questionable at best.2 Id.; see Royer v. Fed. Bureau of Prisons, 933 F. Supp. 2d 170, 181 (D.D.C. 2013) (“Even assuming that BOP’s decision was made under 18 U.S.C. § 3621, the Court is not reviewing the merits of BOP’s decision as to where [plaintiff] is housed, but the constitutionality of the conditions of confinement it places on him regardless of where he is housed.”). Second, even assuming this narrow statute has any application here, nothing in it indicates that constitutional violations are beyond judicial review. Indeed, the cases that Respondents cite do not stand for the proposition that they advance in their motion to dismiss, i.e. that the Court does not have subject-matter jurisdiction over Petitioners’ claims. See, e.g., United States v. Yates, No. 15-40063-01-DDC, 2019 WL 1779773, at *4 (D. Kan. Apr. 23, 2019) (dismissing challenge to computation of good time credits based on grounds other than § 3621(b)); United States v. Gould, No. 7:05-CR-020O, 2018 WL 3956941, at *1 (N.D. Tex. Jan. 17, 2018) (same); Creager v. Chapman, No. 4:09cv-713, 2010 WL 1062610, at *3 (N.D. Tex. Mar. 22, 2010) (same).
Indeed, courts that have considered 18 U.S.C. § 3621(b) in light of constitutional challenges have found that BOP’s “discretion is not unbridled” and is still “subject to review for compliance with federal law [and] the U.S. Constitution.” Washington v. Fed. Bureau of Prisons, No. CV 5:16-3913-BHH, 2018 WL 6061039, at *3 (D.S.C. Nov. 20, 2018). Accordingly, courts
2 This characterization is also disingenuous, considering Respondents’ multiple submissions regarding medical treatment, hygiene, and timing thereof—untimely and insufficient as they may be.
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maintain “the authority”—in other words, the jurisdiction—“to remedy unconstitutional conduct, even when that authority infringes upon BOP’s general discretion over inmate housing and medical treatment.” Id.; cf. Woody v. United States Bureau of Prisons, No. CV 16-862 (DWF/BRT), 2016 WL 7757523, at *3 (D. Minn. Nov. 22, 2016), report and recommendation adopted by, No. CV 16-862 (DWF/BRT), 2017 WL 150505 (D. Minn. Jan. 13, 2017) (considering analogous provision in 18 U.S.C. § 3625 and holding, “Congress has not explicitly precluded review of constitutional claims based on these or similar decisions.”) (emphasis in original); Royer, 933 F. Supp. 2d at 181 (same).3 II. The Court Has Jurisdiction to Hear Petitioners’ Claims Under 28 U.S.C. § 2241,
Which is the Proper Vehicle for Petitioners’ Claims This Court has 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); Immig. & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 298 (2001) (recognizing 28 U.S.C. § 2241 as a jurisdictional statute); see also Vazquez Barrera v. Wolf, No. 4:20-cv-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020) (court “has jurisdiction to rule on Plaintiffs’ petition for habeas corpus” based on medical vulnerability to COVID-19 infection). Because Petitioners assert that the very fact of their confinement in the face of the COVID-19 outbreak at Oakdale violates their Eighth Amendment rights, this Court has jurisdiction over the petition. Indeed, Respondents do not challenge the Court’s subject-matter jurisdiction to hear habeas petitions generally, and do not deny that Petitioners expressly invoked habeas jurisdiction in their
3 Petitioners are aware that the All Writs Act and the Suspension Clause, cited in the Petition under the heading “Jurisdiction and Venue,” do not independently grant this Court jurisdiction to hear Petitioners’ claims. Memo at 9-11. Rather, alongside 28 U.S.C. §§ 1331 and 2241, they describe the combination of statutory and Constitutional authority under which this Court may order the necessary relief in this case. This belt-and-suspenders approach seems particularly appropriate in light of Respondents’ attempt to “jurisdictionally bar[]” the Court from even reviewing potential constitutional violations by high-ranking executive branch officials.
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Petition. See Pet. For Writ of Habeas Corpus, Dkt. No. 1 (“Pet.”) at ¶ 13 (“This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 2241 (habeas corpus)”).4 Nor could they.
Instead, Respondents attempt to reframe Petitioners’ claim as one that merely challenges their conditions of confinement, which Respondents deem “not cognizable” under 28 U.S.C. § 2241. Respondents deliberately misread Petitioners’ claims. Petitioners do not challenge just the conditions of their confinement—they challenge the very fact of their confinement, and the remedy they seek is release. See Pet. at ¶ 11 (“Petitioners . . . request immediate release of all Petitioners and Class Members, coupled with appropriate support and conditions upon release, as informed by public health expertise”); ¶ 79 (seeking an order “requiring Defendants to immediately release all Medically-Vulnerable Subclass Members, with supports to ensure social distancing and other expert-recommended measures to prevent the spread of coronavirus”); see also Petitioner’s Emergency Mot. for Release of Vulnerable and Low-Risk Prisoners from Oakdale, Dkt. No. 9 (“Emergency Mot.”) at 1-2 (requesting the entry of “[a] preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Defendants to: (a) Continue to release all current and future Medically-vulnerable Subclass members […] (c) Release additional Class Members, […] as needed to ensure that all remaining persons incarcerated at Oakdale are under conditions consistent with CDC and public health guidance”). Petitioners detail conditions like the impossibility of social distancing at Oakdale to illustrate that
4 Notwithstanding the absence of a jurisdictional challenge on these grounds, Petitioners address the issue here in light of courts’ treatment of this issue as jurisdictional.
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those conditions are so dire, and have been for so long, that “immediate release is the only medically and legally sound remedy.” See Pet. at ¶ 74.5
Not only does the Court have jurisdiction over Petitioners’ constitutional challenge to the fact of their confinement, this is precisely the sort of claim contemplated by § 2241. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973) (where an individual is “challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release,” the action fell within “the heart of habeas corpus” and was properly asserted under § 2241). Indeed, as this Court recently explained, where a prisoner “challenges [ ] general prison conditions, but [ ] seeks an accelerated release from prison, [it] is properly asserted as a habeas action, not as a civil rights action.” VanDyke v. La. Dep’t of Corrs., CV 20-0448, 2020 WL 1869016, at *1 (W.D. La. Apr. 13, 2020) (Doughty, J.) (“Simply put, habeas claims involve someone’s liberty, rather than mere civil liability”) (quoting Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998); citing Preiser, 411 U.S. at 489; Cook v. Tex. Dep’t of Criminal Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994)). Where, like here, Petitioners “seek immediate release from detention because there are no conditions of confinement that are sufficient to prevent irreparable constitutional injury given the facts presented in their individual cases,” they are “‘challenging the very fact or duration of [their] physical imprisonment’” and “the proper remedy is a writ of habeas corpus.” Vazquez Barrera, 2020 WL 1904497, at *4 (quoting Preiser, 411 U.S. at 500); compare, e.g., Newton v. La. Dep’t. of Corrs., CV 20-0447, 2020 WL 1869018, at *1 (W.D. La. Apr. 13, 2020) (“Newton indeed
5 Of course, Petitioners also seek improved conditions within Oakdale for those prisoners who are not immediately released. See Pet. at ¶¶ 79(3)(i), 79(4); Emergency Mot. at ¶ 3(c). But this is not the primary relief requested; it only takes hold if and when sufficient numbers of Class and Subclass Members have been transferred, and it is only to ensure basic social distancing and safety from infection for those who remain.
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challenges the general prison conditions [related to COVID-19], but he seeks an accelerated
release from prison, which is properly asserted as a habeas action, not as a civil rights action.”) (Doughty, J.).6
In recent weeks, federal courts across the country have applied this well-settled
understanding of habeas to the COVID-19 context and determined that habeas is an appropriate
jurisdictional avenue. See, e.g., Vazquez Barrera, 2020 WL 1904497, at *3-4; Malam v. v.
Adducci, Case No. 20-10829, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020) (though “the
application appears to concern Petitioner’s conditions of confinement . . . 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”); Money v. Pritzker, Nos. 20-cv-
2093 & 20-cv-2094, 2020 WL 1820660, at *8 (N.D. Ill. Apr. 10, 2020) (“[t]he unique context in
which litigation over COVID-19 arises may cast some doubt on th[e] seemingly obvious
proposition [that Eighth Amendment claims are appropriate for § 1983 because they relate to
conditions,] because the sudden threat to mortality from the spread of the virus in a congregate
setting may affect the fact or duration of confinement”); Mays v. Dart, No. 20-cv-2134, 2020
WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020) (holding that § 2241 could be an appropriate avenue
6 Respondents drastically overstate the case when they assert that “habeas corpus is not a means by which to challenge conditions of confinement.” Indeed, the Supreme Court has left the door open to so-called “conditions of confinement” challenges under the habeas regime. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017) (“we have left open the question whether [detainees] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus”); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“we leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”); Preiser, 411 U.S. at 499 (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the constraints making custody illegal”); see also Coleman v. Dretke, 409 F.3d 665, 669-70 (5th Cir. 2005) (granting habeas relief over dissent arguing case involved conditions of confinement and noting that “neither the Supreme Court nor this court has held that certain claims must be brought under § 1983 rather than habeas”).
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for relief because “plaintiffs’ claims, as they have framed them, do bear on the duration of their confinement (they contend, ultimately, that they cannot be held in the Jail consistent with the Constitution’s requirements), and they are not the sort of claims that are, or can be, appropriately addressed via a claim for damages”) (emphasis in original); Bent v. Barr, No. 19-cv-6123, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020) (habeas petition challenging continued detention during COVID-19 pandemic challenges validity of confinement, not conditions of confinement); Coreas v. Bounds, No. TDC-20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020) (“[A]lthough the grounds on which they seek release relate to their conditions of confinement, Petitioners seek complete release from confinement, which is ‘the heart of habeas corpus’”); Thakkar v. Doll, No. 20-cv-480, 2020 WL 1671563, at *2 (M.D. Pa. Mar. 31, 2020) (petitioners seeking release from ICE detention due to COVID-19 threat “appropriately invoked th[e] court’s jurisdiction through a 28 U.S.C. § 2241 petition for writ of habeas corpus”); Amaya-Cruz v. Adducci, No. 1:20-cv-789, 2020 WL 1903123, at *2-3 (N.D. Ohio Apr. 18, 2020) (granting petitioner’s habeas petition and motion for temporary restraining order for immediate release from immigration detention, in part because “everything possible should be done to release highrisk persons from penal institutions at this unique time both to protect them, the remaining detainees, and the staff”); Fofana v. Albence, No. 20-10869, 2020 WL 1873307, at *6-12 (E.D. Mich. Apr. 15, 2020) (granting medically vulnerable petitioner’s habeas petition and temporary restraining order releasing him from immigration detention); Jeferson V.G. v. Decker, No. 20-cv3644, 2020 WL 1873018, at *5 (D.N.J. Apr. 15, 2020) (“[U]nder 28 U.S.C. § 2241, a district court may exercise jurisdiction over a habeas petition when the petitioner is in custody and alleges that his custody violates the constitution, laws, or treaties of the United States”); United States v. Brady, Nos. 3:17-cr-60, 3:20-cv-623, 2020 WL 1865486, at *1 (M.D. Pa. Apr. 14,
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2020) (“No doubt that a habeas petition under § 2241 is the proper vehicle for an inmate to challenge ‘the fact or length of confinement’, […] or the ‘execution’ of her confinement […] [w]hen a petitioner seeks immediate release from custody, the ‘sole federal remedy’ lies in habeas corpus.”) (internal quotations omitted); Valenzuela Arias v. Decker, No. 20-cv-2802, 2020 WL 1847986, at *2-10 (S.D.N.Y. Apr. 10, 2020) (granting a temporary restraining order requiring the release of three immigration detainees pursuant to their multi-party habeas petition); Barbecho v. Decker, No. 20-cv-2821, 2020 WL 1876328, at *5, *9 (S.D.N.Y. Apr. 15, 2020) (granting the immediate release of three immigration detainees as a result of their habeas petitions because, among other factors, the three detainees were high-risk as defined by the CDC and the Government’s failure to “alleviate the specific, serious, and unmet medical needs of the high-risk detainees” amounted to deliberate indifference and thus violated the Eighth Amendment).7
The core of habeas has always been to release those being held in unconstitutional confinement, and it has always been unconstitutional to subject defenseless prisoners to the substantial risk of a deadly disease. Federal courts’ recent application of these principles to COVID-19 is perfectly logical, and the logic should apply to Petitioners’ claims as well.
7 This Court could also establish jurisdiction under 42 U.S.C. § 1983; during the COVID-19 pandemic in particular, many courts and commentators have found any jurisdictional distinction between Section 1983 and Section 2241 largely inapplicable, particularly in the context of preliminary injunctive relief. See, e.g., Money, 2020 WL 1820660, at *9 (court hearing prisoner claims for temporary release during jail COVID-19 outbreak “will consider Petitioners’ habeas claim after assessing Plaintiffs’ request for the same relief under Section 1983”); Declaration of Judith Resnik, Money, 2020 WL 1820660, Dkt. No. 24-3 at 7-8 (“COVID-19 cases may be predicated both on habeas corpus petitions and on §1983” or even an “enlargement” theory); Newton, 2020 WL 1869018, at *1 (assuming arguendo that claims for release based on COVID-19 could be asserted “under Section 1983 or habeas”).
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III. Respondents are Not Entitled to Sovereign Immunity
Respondents assert that this Court cannot hear Petitioners’ claims because the
Government has not waived sovereign immunity, and Defendants do not consent to being sued.
Memo at 11. But sovereign immunity poses no bar to Petitioners’ challenge.
It is well established that sovereign immunity does not bar claims seeking solely
injunctive relief to prevent future violations of federal law by federal officials. See, e.g., United
States v. Lee, 106 U.S. 196, 220-23 (1882) (suits against federal officers alleging
unconstitutional takings of property not barred by sovereign immunity); Ex Parte Young, 209
U.S. 123, 160 (1908) (“The state has no power to impart to [an official] any immunity from
responsibility to the supreme authority of the United States.”); Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 697-99 & nn.18-19 (1949).8 As the Supreme Court has
explained: “we have long held that federal courts may in some circumstances grant injunctive
relief against state officers who are violating, or planning to violate, federal law. But that has
been true not only with respect to violations of federal law by state officials, but also with respect
8 See also Erwin Chemerinsky, Federal Jurisdiction § 9.1, at 588 (4th ed. 2003) (“[T]he Supreme Court long has held that federal officers may be sued for injunctive relief.”); James E. Pfander, The Limits of Habeas Jurisdiction and the Global War on Terror, 91 CORNELL L. REV. 497, 528-29 (2006) (“[H]igh government officials in Washington, D.C. cannot invoke the doctrine of official immunity against constitutional challenges to government action” even outside the habeas context) (footnotes omitted); Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, Immunity, and Judicial Independence, 35 GEO. WASH. INT’L L. REV. 521, 524 n. 8 (“[T]he [Supreme] Court’s reliance on habeas practice in both Young and Lee better accords with the view that sovereign immunity was understood simply as no bar to a range of claims against government officers in connection with their official duties.”); compare, e.g., Brennan v. Stewart, 834 F.2d 1248, 1255 (5th Cir. 1988) (“When the basis of federal jurisdiction is intertwined with the plaintiff’s federal cause of action, the court should assume jurisdiction over the case and decide it on the merits. Jurisdiction over a claim for equitable relief under Ex parte Young grounded on the federal question statute 28 U.S.C. § 1331 is usually intertwined with the merits. Therefore, unless the suit clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or wholly insubstantial and frivolous, a federal court always has jurisdiction of a suit seeking to enjoin state officials from violating federal law. If the officials are not violating federal law, judgment should be entered for the defendants on the merits.”) (internal quotations and citations omitted) (emphasis added).
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to violations of federal law by federal officials.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326-27 (2015) (citations omitted). “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and [it] reflects a long history of judicial review of illegal executive action, tracing back to England.” Id. at 327.
Section 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, also operates as a waiver of sovereign immunity in non-monetary claims against federal agencies and their officers sued in their official capacity, as Petitioners have done here. See 5 U.S.C. § 702, 90 Stat. 2721 (1976) (“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.”); see also Rothe Dev., Inc. v. U.S. Dep't of Def., 666 F.3d 336, 338 (5th Cir. 2011) (the APA waives immunity to the extent a party adversely affected by agency action seeks relief other than money damages); M.J. Farms, Ltd. v. U.S. Fish & Wildlife Serv., 593 F. Supp. 2d 907, 910 (W.D. La. 2008) (APA waiver permits suit by parties suffering legal wrong because of agency action); see also Chemerinsky, supra, at 616 (“The [APA] is clear: The United States has waived its sovereign immunity in suits requesting other than monetary relief.”).9
9 The Fifth Circuit has held that sovereign immunity is waived under § 702 when there has been “agency action” as that term has been defined in § 551(13). Doe v. United States, 853 F.3d 792, 799 (5th Cir. 2017), as revised (Apr. 12, 2017). The statute defines the term to include the whole or part of an agency “rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Here, Oakdale and the Bureau of Prisons are both agencies whose failure to act has waived sovereign immunity under § 702. They have failed to protect Petitioners from an unconstitutional risk of harm, and they have failed to provide relief from exposure to the coronavirus and its spread within the prison.
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CONCLUSION For the reasons stated above, this Court should deny Respondents’ Motion to Dismiss to the extent it seeks dismissal based on lack of subject-matter jurisdiction. As such, the parties should move to the scheduled Preliminary Injunction hearing and address the immediate need for habeas relief at Oakdale.

Respectfully submitted this 20th day of April, 2020. Respectfully submitted by:

/s/ Bruce Hamilton Bruce Hamilton, La no. 33170 Katie Schwartzmann, La no. 30295
ACLU-F of Louisiana P.O. Box 56157
New Orleans, La 70156 (504) 522-0628
kschwartzmann@laaclu.org bhamilton@laaclu.org
David Luger* Hannah O. Koesterer* KATTEN MUCHIN ROSENMAN LLP
525 W. Monroe St. Chicago, IL 60661 david.luger@katten.com hannah.koesterer@katten.com
Ryan J. Meyer* KATTEN MUCHIN ROSENMAN LLP
2121 Pearl St., Ste. 1100 Dallas, TX 75201
ryan.meyer@katten.com *pro hac vice applications forthcoming

Somil Trivedi** Jennifer Wedekind** AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 915 15th St., NW Washington, DC 20005 **admitted pro hac vice
Andrea Woods* Brandon Buskey* Meredith Taylor Brown*
Gabriel Arkles* AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad St.
New York, NY 10004 Tel. (212) 549-2500 awoods@aclu.org
*pro hac vice applications forthcoming

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Case 2:20-cv-00422-TAD-KK Document 19 Filed 04/20/20 Page 15 of 15 PageID #: 287 CERTIFICATE OF SERVICE
I hereby certify that on April 20, 2020, a copy of the foregoing was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the court’s electronic filing system.
I further certify that copies of all pleadings and other papers filed in the action to date or to be presented to the Court at the hearing, have been furnished to the Defendants’ attorneys, who have already made an appearance in this matter.
/s/ Bruce Hamilton Bruce Hamilton, La. Bar No. 33170
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL.

CIVIL ACTION NO. 2:20-CV-00422

VERSUS

JUDGE TERRY A. DOUGHTY

RODNEY MYERS, ET AL.

MAG. JUDGE KATHLEEN KAY

RULING

Petitioners Brandon Livas, Richard Buswell, Dewayne Corbett, Johnny Smith, Carlos

Martin, and Gaines Andrews have filed a Petition for Writ of Habeas Corpus, Injunctive, and

Declaratory Relief against Respondents Rodney Myers (“Warden Myers”), Warden of Oakdale

Federal Correctional Institutions, and Michael Carvajal (“Director Carvajal”), Federal Bureau

of Prisons Director, in their official capacities, pursuant to 28 U.S.C. § 2241. Petitioners, acting

on behalf of themselves and a prospective class and sub-class have since filed an Emergency

Motion for Release of Vulnerable and Low-Risk Prisoners from Oakdale (“Emergency Motion”)

[Doc. No. 9].

On April 15, 2020, in addition to filing a memorandum in opposition to this Emergency

Motion [Doc. No. 13], Respondents filed a Motion to Dismiss [Doc. No. 12]. Respondents move

the Court to dismiss Petitioners’ Petition for Writ of Habeas Corpus, Injunctive, and Declaratory

Relief and Petitioners’ Emergency Motion on two alternative bases: (1) lack of subject-matter

jurisdiction and (2) failure to state a claim as a matter of law.

Because of the expedited nature of the relief sought by Petitioners, on April 16, 2020, the

Court held a status conference with counsel. At that time, the Court ordered Petitioners to

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respond to the first basis for the motion, subject-matter jurisdiction, no later than Monday, April 20, 2020.1 Respondents were ordered to file a reply by Tuesday, April 21, 2020.
For the following reasons, Respondents’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART AS MOOT. I. BACKGROUND
Three months ago, most people had never heard of COVID-19 or the coronavirus. As of the date of this Ruling, however, it would be difficult to imagine any person in the United States—or indeed globally--who has not felt the effects of the global pandemic caused by the rapid spread of this previously unheard of virus.
COVID-19 is an infectious disease caused by this novel coronavirus. The coronavirus outbreak, which began in Wuhan, China, and was first confirmed in December 2019, has expanded globally at an alarming rate. See https://www.nytimes.com/article/coronavirustimeline.html (last visited 04/22/2020). According to the Centers for Disease Control (“CDC”), the “wide range” of symptoms may include fever, cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell. https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited 04/21/2020).
Most people infected with the COVID-19 virus will experience mild to moderate respiratory illness and recover without requiring special treatment. In some cases, however, COVID-19 causes severe respiratory issues. Because COVID-19 is a new disease, there is limited information regarding risk factors for severe disease. At this
1 “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

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time, based on the available information and clinical expertise, the CDC has issued guidance that older adults, 65 years of age and older, and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19. The CDC cautions that persons with these underlying medical conditions, particularly if not well controlled, are at higher risk:
(1) chronic lung disease or moderate to severe asthma; (2) serious heart conditions; (3) the immunocompromised, which can be caused by many conditions,
including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; (4) severe obesity (body mass index of 40 or higher) (5) diabetes; (6) chronic kidney disease undergoing dialysis; (7) liver disease.
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited 04/21/2020).
Currently, there are no vaccines or proven, effective treatments for COVID-19. The virus spreads primarily through droplets of saliva or discharge from the nose when an infected person coughs or sneezes, although there is evidence that persons who are asymptomatic may infect others. To mitigate the spread of the disease, the CDC and other public health agencies have recommended social distancing, a requirement that persons remain at least six feet from each other, to employ good hygiene practices, and to avoid touching your eyes, nose, and mouth

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with unwashed hands. https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html (last visited 04/21/2020).
In the period between January 21, 2020, when the first COVID-19 case was officially diagnosed in the United States2 and April 21, 2020, there have been 802,583 cases and 44,575 deaths.3 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited 04/22/2020).
In Louisiana, as in many states, Governor John Bel Edwards has issued a stay-athome order, in an effort to “flatten the curve,” i.e., to prevent the number of cases from overwhelming the health care systems. There have been 22,258 reported cases in Louisiana and 1,473 deaths. http://ldh.la.gov/Coronavirus/ (last visited 04/22/2020). Among those deaths are seven (7) prisoners who were housed at the Oakdale correctional facilities. https://www.kplctv.com/2020/04/16/seventh-inmate-oakdale-federal-prison-dies-coronavirus/.
II. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY Petitioners, represented by attorneys for the American Civil Liberties Union (“ACLU”), filed the instant lawsuit on April 6, 2020. [Doc. No. 1]. Petitioners seek to represent themselves and members of a class, comprised of persons presently and in the future residing at Federal
2 https://abcnews.go.com/Health/timeline-coronavirus-started/story?id=69435165 (last visited 04/21/2020).
3 As the CDC acknowledges, the exact number of COVID-19 illnesses, hospitalizations, and deaths are unknown, for a variety of reasons, including the fact that some persons have either been asymptomatic or had only mild illness, there are delays in reporting and testing, not everyone who is infected gets tested or seeks medical care, and there may be differences in how states and territories confirm numbers in their jurisdictions. Id.

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Correctional Institute (“FCI”) Oakdale I and FCI Oakdale II, which includes the Camp (collectively “Oakdale”).4
Petitioners assert that they “bring this putative class action pursuant to 28 U.S.C. § 2241 for relief from detention that violates their Eighth Amendment rights under the U.S. Constitution” and that the “Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 2241 (habeas corpus), 28 U.S.C. § 1651 (All Writs Act), Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause), and 28 U.S.C. § 1331 (federal question jurisdiction).” [Doc. No. 1, ¶¶ 12-13].
Petitioner Brandon Livas, BOP No. Register 37736034, is detained in the satellite camp at Oakdale (FCI Oakdale II). He alleges as follows:
He is 35 years old. He is diabetic and suffers from acute pancreatitis. He has no access to hot water and soap, and he cannot practice social distancing—he lives in a dorm-style barracks with a bed that is less than three feet away from his nearest neighbor. As part of his job duties at Oakdale, he is expected to clean about six prison offices. He is serving a 15-month sentence for fraud that began on December 2, 2019. He is a first-time, nonviolent offender. [Doc. No. 1, ¶ 15]. Petitioner Richard Joseph Buswell, BOP Register No. 15618035, is detained at Oakdale (FCI Oakdale II). He alleges as follows: He is 51 years old. He has access to communal bars of soap that are filthy; they are shared by about 125 people at four sinks; those 125 people share six showers and eight filthy toilets. He suffers from asthma, hypertension, and sleep apnea; he sleeps with a CPAP device. He is serving a 10-year sentence for conspiracy to commit securities fraud and an 8-year concurrent sentence for distribution of synthetic marijuana.
4 FCI Oakdale I has a population of approximately 917. FCI Oakdale II has a population of approximately 900, including 760 at the prison and 140 at the camp. See https://www.bop.gov/locations/institutions/oak/; https://www.bop.gov/locations/institutions/oad/.

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[Doc. No. 1, ¶ 16].
Petitioner Johnny Smith, BOP Register No. 33172034, is detained at Oakdale (FCI
Oakdale I). He alleges as follows:
He is 49 years old and suffers from hypertension and a thyroid condition.
[Doc. No. 1, ¶ 17].
Petitioner Carlos Lorenzo Martin, BOP Register No. 15029043, is detained at Oakdale
(FCI Oakdale II). He alleges as follows:
He is 35 years old and has compromised lungs due to childhood asthma. He is housed in a room which sleeps 72 prisoners in bunks arranged in rows, such that when he sleeps he can reach out and touch the person next to him on either side. He was convicted of a drug charge and is slated for release in eight months.
[Doc. No. 1, ¶ 18].
Petitioner Dewayne Corbett, BOP Register No. 21703171, is detained at Oakdale (FCI
Oakdale I). He alleges as follows:
He is 58 years old and in chronic care. He has a respiratory disorder involving a 9 4-by-5-millimeter nodule on his lung and is awaiting a CT scan, so he feels he needs to socially distance but cannot.
[Doc. No. 1, ¶ 19].
Petitioner Gaines Andrews, BOP No. Register 44677379, is detained in the satellite camp
at Oakdale (FCI Oakdale II). He alleges as follows:
He is 39 years old and suffers from asthma. He is the head of maintenance and frequently makes deliveries to FCI Oakdale I. As part of his job duties at Oakdale, he is helping construct tent camps in the prison recreation yard along with bunk houses and showers for prison staff. He pleaded guilty to a single count of conspiracy to distribute methamphetamine and received a 10-year sentence; he is scheduled for release on October 28, 2022.
[Doc. No. 1, ¶ 20].

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Petitioners allege that all inmates at Oakdale face “a particularly acute threat of illness, permanent injury, and death.” [Doc. No. 1, ¶ 33]. This is so because it is “virtually impossible for people who are confined in prisons, jails, and detention centers to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission.” Id.at ¶ 35. Petitioners further allege that Respondents’ action or inaction in failing to comply with public health guidelines of social distancing and personal hygiene, and treating or preventing outbreaks and deaths related to COVID-19 violate their right to treatment and adequate medical care, and therefore constitute cruel and unusual punishment. Id. at ¶¶ 75-77.
Accordingly, Petitioners “seek to represent a class of all current and future people in post-conviction custody at Oakdale (‘Class’), including a subclass of persons who, by reason of age or medical condition, are particularly vulnerable to injury or death if they were to contract COVID-19 (‘Medically-Vulnerable Subclass’).” [Doc. No. 1, ¶ 57]. Petitioners contend that the “‘Medically-Vulnerable’ Subclass is defined as all current and future persons incarcerated at Oakdale over the age of 50, as well as all current and future persons incarcerated at Oakdale of any age who experience: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease.”5 [Doc. No. 1, ¶ 58]. Petitioners contends that they can represent the class because they are “currently housed at
5Petitioners allege that there are approximately 748 inmates in the proposed MedicallyVulnerable Subclass.

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Oakdale” and can represent the subclass “because each Petitioner is over the age of 50 and/or
suffers from one of the conditions listed in the definition of the Subclass above.” [Doc. No. 1, ¶
59].
In their Request for Relief, Petitioners request that the Court order the following:
1. Certification of this Petition as a Class Action;
2. A temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Defendants to immediately release all Medically-Vulnerable Subclass Members, with supports to ensure social distancing and other expert-recommended measures to prevent the spread of coronavirus;
3. Following immediate release of all Medically-Vulnerable Subclass Members, a plan, to be immediately submitted to the Court and overseen by a qualified public health expert pursuant to Fed. R. Evid. 706, which outlines:
i. Specific mitigation efforts, in line with CDC guidelines, to prevent, to the degree possible, contraction of COVID-19 by all Class Members not immediately released;
ii. A housing and/or public support plan for any released Class or Subclass Members for whom testing confirms exposure to or infection with COVID-19 and who do not readily have a place to self-isolate for the CDC-recommended period of time (currently 14 days).
4. All further action required to release Class Members outside the MedicallyVulnerable Subclass to ensure that all remaining persons are incarcerated in Oakdale under conditions consistent with CDC guidance to prevent the spread of COVID-19, including requiring that all persons be able to maintain six feet or more of space between them;
5. If immediate release is not granted on the basis of this Petition alone, then expedited review of the Petition, including oral argument, via telephonic or videoconference if necessary6;
6. A declaration that Oakdale’s policies violate the Eighth Amendment right against cruel and unusual punishment with respect to the Class; and
7. Any further relief this Court deems appropriate.
6To this extent, the Court has already undertaken expedited review.

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[Doc. No. 1, ¶ 79]. Respondents move to dismiss the Complaint for lack of subject-matter jurisdiction. They
argue that the Complaint should be dismissed as Petitioners have failed to establish a jurisdictional basis for the Court to hear this matter. They further argue that the Court is barred from reviewing Respondents’ decisions regarding classification and placement of inmates. Further, Petitioners are unable to establish the court’s jurisdiction under either the All Writs Act, the Suspension Clause, or the general federal question statute.
Petitioners respond that the Court has jurisdiction under 28 U.S.C. §2241, the proper vehicle for their claims, and that Respondents are not entitled to sovereign immunity.
The arguments on subject-matter jurisdiction are fully briefed.7 III. LAW AND ANALYSIS
A. Standard of Review “Federal courts must resolve questions of jurisdiction before proceeding to the merits.” Ashford v. United States, 463 F. App'x 387, 391-92 (5th Cir. 2012) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998); USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274, 283 & n.6 (5th Cir. 2011), and Jasper v. FEMA, 414 F. App'x 649, 651 (5th Cir. 2011)). “It is incumbent on all federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking. This is the first principle of federal jurisdiction.” Stockman v. FEC, 138 F.3d 144, 151 (5th Cir. 1998) (quotation and citation omitted). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff
7 Although Respondents also argue that the Complaint fails to state a claim for relief, the Court has limited briefing to the jurisdiction question.

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constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001)(citations omitted).
B. Jurisdiction
Respondents make a facial attack on the sufficiency of the Petitioners’ allegations to
support subject-matter jurisdiction in this case. Thus, the Court accepts those allegations as true
for purposes of this Ruling and considers whether jurisdiction exists.8
In their Complaint, Petitioners assert that this Court has subject-matter jurisdiction over
their claims as a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241; the All Writs
Act, 28 U.S.C. § 1651; the Suspension Clause in Article I, § 9, cl. 2 of the United States
Constitution; and 28 U.S.C. §1331, the general jurisdictional statute. Respondents have
presented arguments as to why the Court lacks subject-matter jurisdiction under each of these
bases. However, in their opposition memorandum, Petitioners concede that “the All Writs Act
and Suspension Clause . . . do not independently grant this Court jurisdiction to hear Petitioners’
claims.”9 [Doc. No. 19, p. 6 n.3]. Rather, Petitioners contends that the All Writs Act and the
8See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981) (“Our first consideration is the distinction between a “facial attack” and a “factual attack” upon the complaint under Fed. R. Civ. Proc. 12(b)(1). . . Simply stated, if the defense merely files a Rule 12(b)(1) motion, the trial court is required merely to look to the sufficiency of the allegations in the complaint because they are presumed to be true. If those jurisdictional allegations are sufficient the complaint stands. If a defendant makes a ‘factual attack’ upon the court’s subject matter jurisdiction over the lawsuit, the defendant submits affidavits, testimony, or other evidentiary materials. In the latter case a plaintiff is also required to submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction.). To be sure, the Court has required Respondents to provide updated information about the efforts taken at Oakdale to combat the spread of COVID-19, but such evidence is not necessary for this Ruling. No one disputes, indeed Attorney General Barr’s memorandum is a concession, that COVID-19 has had serious affects at certain facilities, including Oakdale.
9While no detailed analysis is required given Petitioners’ concession, it is clear on its fact that the All Writs Act, 28 U.S.C. § 1651(a), merely allows courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of

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Suspension Clause work “alongside 28 U.S.C. §§ 1331 and 2241,” to “describe the combination of statutory and Constitutional authority under which this Court may order the necessary relief.” Id. Instead, Petitioners argue that the Court has jurisdiction under § 2241 and that sovereign immunity does not bar the Court from exercising authority in this case under § 1331.
Given these concessions, the focus of the parties’ memoranda, and the expedited nature of these proceedings, the Court thus limits its analysis to these arguments.
A. Petition for Writ of Habeas Corpus, 28 U.S.C. §2241 On the face of the Complaint, Petitioners allege that “the government must protect incarcerated persons from a substantial risk of serious harm to their health and safety.” [Doc. No. 1, ¶75]. Petitioners further allege that “[t]he Fifth Circuit recognizes that ‘[s]ection 2241 is the proper habeas remedy if a prisoner challenges the execution of his sentence rather than the validity of his conviction and sentence.’” Id. at p. 27, n. 104 (citing Carter v. Sawyer, 54 Fed. App’x. 406 (5th Cir. 2002) (unpublished)) (other citations omitted). As part of their support for their § 2241 Petition, Petitioners also cite to Fifth Circuit case law providing that “‘sole function’ of habeas is to ‘grant relief from unlawful imprisonment or custody.’” Id. (quoting United States v. Pierre, 525 F.2d 933, 935-936 (5th Cir. 1976)). However, Respondents move for dismissal because the Court is jurisdictionally barred from reviewing the BOP’s discretionary classification and placement of Petitioners under § 2241. The BOP is charged with the care, custody, and control of incarcerated individuals,
law.” The “All Writs Act does not confer jurisdiction on the federal courts.” See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33, 123 S. Ct. 366, 370 (2002). Likewise, no cause of action arises under the Suspension Clause itself.

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but is not empowered to reduce or modify criminal sentences imposed by courts, or to unilaterally release inmates. Rather, only the original sentencing courts have the power to modify or reduce inmates’ sentences. See 18 U.S.C. § 3582. Both the BOP and individual inmates have the authority to move the sentencing court for a sentence reduction or modification in certain circumstances, including compassionate release. 18 U.S.C. § 3582(c)(1)(A).
On the other hand, authority and discretion are placed in the BOP to determine where to confine inmates. See 18 U.S.C. § 3621. Both placement in a Residential Reentry Center (“RRC”) (more commonly known as a halfway house) and on home confinement are within the BOP’s discretion. See 18 U.S.C. § 3624(c); 18 U.S.C. § 3621(c) (“Such conditions may include a community correctional facility” and “[t]he authority under this subsection may be used to place a prisoner in home confinement.”). Under Section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (H.R. 748), enacted on March 27, 2020, if the Attorney General finds that emergency conditions will materially affect the functioning of the BOP, the Director of the BOP may lengthen the maximum amount of time for which he is authorized to place a prisoner in home confinement under the first sentence of 18 U.S.C. § 3624(c)(2).
Indeed, both before and after the passage of the CARES Act, the Attorney General exercised his authority and issued memoranda to the Director of the BOP addressing exactly these concerns. It is a matter of public record, that the BOP began preparing for the coronavirus in January 2020 by obtaining guidance from its Health Services Division regarding the disease, existing outbreaks, and best practices to mitigate transmission. See Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp. On March 26, 2020, the Attorney General issued a memorandum to the BOP directing, where

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appropriate, that the BOP utilize home confinement “to protect the health and safety of BOP personnel and the people in our custody.” [Doc. No. 8, Exhibit 2]. The Attorney General directed the BOP to “prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.” Id. However, the Attorney General noted that many inmates would be safer in BOP facilities due to the controlled population and access to medical care. Id. The prioritization of home confinement was conditioned upon careful, individualized determinations made by BOP staff to include certain discretionary factors such as: (1) age and vulnerability to COVID-19; (2) facility security level; (3) prison conduct; (4) minimum PATTERN score; (5) demonstrated and verifiable re-entry plan to prevent recidivism and maximize public safety (lower risk of contracting COVID-19 upon release, than at BOP facility); and (6) crime of conviction and risk posed by the inmate to the community. Id.
Additionally, on April 3, 2020, after the passage of the CARES Act, the Attorney General made a finding of emergency conditions which are materially affecting the function of the BOP. [Doc. No. 8, Exhibit 3]. This finding allowed the Attorney General to expand the cohort of inmates who can be considered for home confinement. Id. Thus, all at-risk inmates could now be considered for home confinement, rather than just inmates who were previously eligible for transfer (inmates with 10 percent of prison term remaining or 6 months). Id. The Attorney General also recognized that indiscriminately releasing inmates, “would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses.” Id. As of the date of this Ruling, the BOP has placed 1,440 inmates on home confinement. https://www.bop.gov/coronavirus/(last visited 04/22/2020).

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As Respondents point out, decisions made by BOP (or any prison officials) “necessarily involve balancing limited prison resources with the overriding concern of institution security.” [Doc. No. 12-1, p. 8]. See 18 U.S.C. § 3621(b) (Statutorily requiring the BOP to consider five factors: (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement of the court that imposed the sentence...; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28). Thus classification and placement of inmates is committed to the discretion of the BOP and once that discretion is exercised, “a designation of a place of imprisonment under this subsection is not reviewable by any court.” 18 U.S.C. § 3621(b). Absent a review of whether the BOP has exceeded its statutory authority, the ultimate outcome of that classification is beyond the purview of the court. See, e.g., McKune v. Lile, 536 U.S. 24, 39 (2002) (“It is well settled that the decision where to house inmates is at the core of prison administrators’ expertise.”); United States v. Yates, No. 15-40063-01-DDC, 2019 WL 1779773, at *4 (D. Kan. Apr. 23, 2019) (“[I]t is BOP—not the courts—who decides whether home detention is appropriate.”); United States v. Gould, No. 7:05-CR-020-O, 2018 WL 3956941, at *1 (N.D. Tex. Jan. 17, 2018) (“[T]he BOP is in the best position to determine whether RRC/halfway house placement would be of benefit to [the defendant] and to society in general.”); Creager v. Chapman, No. 4:09-cv-713, 2010 WL 1062610, at *3 (N.D. Tex. Mar. 22, 2010) (stating that “nothing in the Second Chance Act of 2007, or 18 U.S.C. § 3621(b) entitles . . . any prisoner to placement in a residential reentry center”); see also, Fullenwiley v. Wiley, 1999 WL 33504428, at *1 (N.D.N.Y Oct. 5, 1999) (“[D]iscretionary decisions by the BOP made pursuant to its authority under § 3621(b) are not subject to judicial review”); see also 18 U.S.C. § 3625.

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Petitioners do not challenge their classification or initial placement at Oakdale, but still seek “release” under § 2241 because of the extraordinary conditions caused by COVID-19. They bring this action under § 2241, which is the proper vehicle for challenging “the fact or length of confinement.” Preiser v. Rodriquez , 411 U.S. 475, 494 (1973). However, the “sole function” of habeas is to “grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose.” Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976). In this case, Petitioners do not and cannot contend that their imprisonment or custody itself is unlawful; they are all convicted of certain crimes, were properly sentenced to serve terms of imprisonment, and then were assigned by the BOP to serve those terms of imprisonment at Oakdale.
Citing to the Supreme Court decisions in Preiser, supra; Bell v. Wolfish, 441 U.S. 520, 527 (1979); and Ziglar v. Abbasi, 137 S. Ct. 1843, 1862–63 (2017), Petitioners assert that the “Supreme Court has left the door open to so-called ‘conditions of confinement’ challenges under the habeas regime.” [Doc. No. 19, p. 9, n. 6]. However, the availability of habeas relief for challenges of conditions of confinement was not before any of the cited courts. See Preiser, 411 U.S. at 499-500 (In a case involving the release of a state prisoner by a federal district judge without requiring him to exhaust his administrative remedies, the Supreme Court stated in dicta: “When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal. . . . But we need not in this case explore the appropriate limits of habeas corpus as an alternative remedy to a proper action under §1983. That question is not before us. What is involved here is the extent to which § 1983 is a permissible alternative to the traditional remedy of habeas corpus.”); Bell v. Wolfish, 441 U.S. at 527 (In a case brought by pretrial detainees

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challenging the constitutionality of numerous conditions of confinement and practices in a federally operated short-term custodial facility, the Supreme Court stated in dicta that “we leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.”) (citing Preiser, 411 at 499-500); Abbasi, 137 S. Ct. at 1862 (In a Bivens action by alien detainees held on immigration violations in wake of the September 11, 2001 terrorist attacks, the Supreme Court stated in dicta that “we have left open the question whether they might be able to challenge their confinement conditions via a petition for a writ of habeas corpus.”) (citing Bell 441 U.S. at 526, n. 6; Preiser, 411 U.S. at 499).
As recently noted by another court, these cases, “reveal neither a ringing endorsement nor an outright prohibition.” Money v. Pritzker, ---F.Supp. 3d ---, Nos. 20-cv-2093 & 20-cv-2094, 2020 WL 1820660, at *9 (N.D. Ill. Apr. 10, 2020). Neither party nor this Court found a single precedential case in the Fifth Circuit interpreting this dicta and allowing conditions of confinement claims to be brought under § 2241.
Moreover, even if it is theoretically possible to bring conditions of confinement claims under § 2241 because petitioners seek “release” from confinement, such is not the case here.10 In
10The Court has reviewed the decisions of two sister federal district courts. In United States v. Brady, 2020 WL 1865486, at *1 (M.D. Pa. Apr. 14, 2020), Brady, who is confined in Connecticut, filed a pro se motion for release to home confinement in his sentencing court in Pennsylvania. When the government responded to the complaint as a request for compassionate release, the court, acting sua sponte, and without briefing from the government, converted the motion to a petition under § 2241, relying on Preiser.
In another decision, Wilson v. Williams, Civil Action No. 4:20-cv-00794 (N.D. Ohio April 22, 2020), a federal district judge in the Northern District of Ohio certified the class of prisoners at the Federal Correctional Institute at Elkton, Ohio. Applying Sixth Circuit case law, that court determined that § 2241 is the proper vehicle for asserting this type of claim, acknowledging that claims of the prisoners, almost identical to those in this case, “evade easy classification.”

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actuality, Petitioners do not seek release from custody because they have, for example, overserved their sentence, but seek to force this Court to order BOP to assign them to home confinement or to some other lesser form of detention, without regard to the BOP’s own classification process, because of the unique circumstances caused by the COVID-19 virus.11 See [Petitioners’ Emergency Motion, Doc. No. 9-1 n.3, (“The term ‘release,’ as used throughout this memorandum, refers to discharge of incarcerated persons from the physical confines of Oakdale, not necessarily release from custody. Release options may include, but are not limited to: release to parole or community supervision; transfer furlough (as to another facility, hospital, or halfway house); or non-transfer furlough, which could entail a released person’s eventual return to Oakdale once the pandemic is over and the viral health threat is abated. Any releases would include requirements for testing, care, and social distancing, as informed by the Rule 706 expert that Petitioners have requested.”). Such a designation and/or classification falls squarely within BOP’s authority and outside the purview of this Court.12 To rule otherwise would make this Court a de facto “super” warden of Oakdale.
This Court respectfully disagrees with those decisions. 11 While not pertinent to this Ruling, the Court notes that the BOP has also undertaken a number of other demonstrable steps at Oakdale to improve hygiene and better protect inmates and staff who remain at the facilities. See [Doc. No. 13-2, affidavit of Dr. Richard Griffin, Oakdale Medical Director; Doc. No. 14 (detailing steps taken)]. 12 The Court is certainly aware and has considered cases cited by Petitioners in other jurisdictions where courts have permitted petitioners to seek habeas relief based upon COVID19. See Vazquez Barrera, 2020 WL 1904497, at *3-4; Malamv. v. Adducci, Case No. 20-10829, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020); Money, 2020 WL 1820660, at *8; Mays v. Dart, No. 20-cv-2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020); Bent v. Barr, No. 19cv-6123, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020); Coreas v. Bounds, No. TDC-200780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020); Thakkar v. Doll, No. 20-cv-480, 2020 WL 1671563, at *2 (M.D. Pa. Mar. 31, 2020); Amaya-Cruzv. Adducci, No. 1:20-cv-789, 2020 WL 1903123, at *2-3 (N.D. Ohio Apr. 18, 2020); Fofana v. Albence, No. 20-10869, 2020 WL

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B. Waiver of Sovereign Immunity under 28 U.S.C. §1331 Petitioners also assert that the Court has jurisdiction over this case pursuant to the general jurisdictional statute, 28 U.S.C. § 1331. However, Respondents further contend that the Court lacks subject-matter jurisdiction under § 1331 because the United States has not waived sovereign immunity. Section 1331 is a general jurisdictional statute providing the district court with jurisdiction for “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. General jurisdictional statutes do not independently waive the Government’s sovereign immunity. Taylor v. United States, 2008 WL 4218770, at *3-4 (5th Cir. 2008); Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972); Divine v. United States, 328 F.2d 305 (5th Cir. 1964) (no waiver under 28 U.S.C. § 1343). Having found that exercise of subject-matter jurisdiction is not otherwise proper in this matter, the Court cannot rely on the general jurisdictional statute to fill that void. C. Appropriateness of Dismissal at this Juncture Finally, the Court is aware that under Federal Rule of Civil Procedure 15(a)(1)(A), Petitioners “may amend [their] pleading once as a matter of course within . . . 21 days after serving it.” Both parties have cited to cases relating to the litigation of prison conditions under
1873307, at *6-12 (E.D.Mich. Apr. 15, 2020); Jeferson V.G. v. Decker, No. 20-cv-3644, 2020 WL 1873018, at *5 (D.N.J. Apr. 15, 2020); Valenzuela Arias v. Decker, No. 20-cv-2802, 2020 WL 1847986, at *2-10 (S.D.N.Y. Apr. 10, 2020); Barbecho v. Decker, No. 20-cv-2821,2020 WL 1876328, at *5, *9 (S.D.N.Y. Apr. 15, 2020); see also [Doc. No. 19, pp. 9-11 (collecting cases)].
However, eight of these cases involve immigration detainees and one involves pre-trial detainees, both categories of persons who are subject to a different review and for whom habeas relief has routinely been acknowledged as the appropriate vehicle for detainees to challenge their custody. See Braden v. 30th Judicial Cir. Ct. of Kentucky, 410 U.S. 484, 488 (1973); Chin Yow v. U.S., 208 U.S. 8, 13 (1908); Zadvydas v. Davis, 533 U.S. 678, 688 (2001).

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Prison Litigation Reform Act (“PLRA”), 18 U.S.C. §3626. See Brown v. Plata, 563 U.S. 493 (2011) (addressing Eighth Amendment violations of prison conditions in California state prisons under the PLRA and its specific requirements, including a 3-judge panel); see also Money, supra (addressing the safety and well-being of state court prisoners housed by the Illinois Department of Corrections during the COVID-19 pandemic). However, to the extent that Petitioners would move to amend their Complaint to assert a claim for injunctive or other prospective relief under the PLRA,13 such amendment would be futile where there are no factual allegations that Petitioners have exhausted their administrative remedies, nor have the other requirements for the “release” of prisoners been met. See 18 U.S.C. § 3626(a)(2)-(3).
IV. CONCLUSION For the foregoing reasons, Respondents’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART AS MOOT. To the extent that Respondents move to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, the motion is GRANTED, and Petitioners’ Complaint is DISMISSED WITH PREJUDICE. To the extent that Respondents moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, the Court has not reached those arguments, and the motion is DENIED AS MOOT. MONROE, LOUISIANA, this 22nd day of April, 2020.
TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE
13The PLRA defines “the term ‘prison’” to include “any Federal . . . facility that incarcerates or detains . . . . adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law.” 18 U.S.C. §3626(g)(5). The “term ‘prospective relief’ means all relief other than compensatory monetary damages[.]” Id. at § 3626(g)(6).