1/18/2021

District Version 6.3.3
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:20-cv-00832-E

Alerts not yet Supported for this Docket

Sanchez et al v. Dallas County Sheriff et al Assigned to: Judge Ada Brown Cause: 28:2241 Petition for Writ of Habeas Corpus

Date Filed: 04/09/2020 Jury Demand: None Nature of Suit: 530 Prisoner Pet/Habeas Corpus: General Jurisdiction: Federal Question

Plaintiff Oscar Sanchez

represented by Andrea Woods American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212-549-2528 Email: awoods@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Adam Gasser Safwat Weil Gotshal & Manges LLP 2001 M Street NW, Ste. 600 Washington, DC 20036 202-682-7236 Fax: 202-857-0940 Email: adam.safwat@weil.com PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Adriana Cecilia Pinon ACLU Foundation of Texas Inc 5225 Katy Freeway Suite 350 Houston, TX 70007 713-942-8146 Fax: 346-998-1577 Email: apinon@aclutx.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Alison Johnston Grinter 9226 Snowberry Dr Frisco, TX 75035 214-704-6400

https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

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District Version 6.3.3
Bar Status: Admitted/In Good Standing
Amy B Fettig American Civil Liberties Union National Prison Project 915 15th St NW 7th Floor Washington, DC 20010 202-548-6608 Email: afettig@aclu.org TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura ACLU Foundation of Texas 5225 Katy Freeway Suite 350 Houston, TX 77007 713-325-7012 Email: asegura@aclutx.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett Susman Godfrey LLP 8115 Preston Road Suite 575 Dallas, TX 75225 866-754-1900 Fax: 713-654-6666 Email: bbarnett@susmangodfrey.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey American Civil Liberties Union 125 Broad St 18th Floor New York, NY 10004 212-284-7364 Fax: 212-549-2654 Email: bbuskey@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer ACLU of Texas PO Box 8306 Houston, TX 77288 713-942-8146 x1035 Fax: 713-942-8966 Email: bklosterboer@aclutx.org
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1/18/2021 https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi Civil Rights Corps 1601 Connecticut Ave. NW Suite 800 Washington, DC 20009 202-894-6142 Email: elizabeth@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill American Civil Liberties Union Foundation 201 W Main St Suite 402 Durham, NC 27701 704-512-1145 Email: hhill@aclu.org ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard Civil Rights Corps 1601 Connecticut Ave NW Ste 800 Washinton, DC 20009 202-894-6124 Fax: 202-609-8030 Email: katherine@civilrightscorps.org ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole K Cole Law PLLC 11450 US HWY 380 Suite 130 #189 Crossroads, TX 76227 214-702-2551 Fax: 972-947-3834 Email: KCOLE@kcolelaw.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik American Civil Liberties Foundation 915 15th St NW 7th Floor Washington, DC 20005 202-548-6618 Fax: 202-393-4931
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1/18/2021
Plaintiff Marcus White
https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
Email: lkuhlik@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais Susman Godfrey, LLP 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 310-789-3100 Fax: 310-789-3150 Email: mgervais@susmangodfrey.com PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi Weil, Gotshal & Manges LLP 2001 M Street NW, Ste. 600 Washington, DC 20036 202-682-7002 Fax: 202-857-0940 Email: sarah.choi@weil.com PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar ACLU Texas 5225 Katy Freeway Suite 300 Houston, TX 77007 956-374-4310 Email: skumar@aclutx.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach Weil Gotshal & Manges LLP 2001 M St NW #600 Washington, DC 20036 202-682-7003 Fax: 202-857-0940 Email: sophia.golvach@weil.com PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY
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1/18/2021 https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill
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Plaintiff Tesmond McDonald
https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
(See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address)
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1/18/2021 https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address)
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1/18/2021
Plaintiff Marcelo Perez
https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address)
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1/18/2021 https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED
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1/18/2021
Plaintiff Roger Morrison
https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address)
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1/18/2021 https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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1/18/2021
Plaintiff Keith Baker
https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE
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1/18/2021 https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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1/18/2021
Plaintiff Paul Wright
https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
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District Version 6.3.3
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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Plaintiff Terry McNickels

District Version 6.3.3
Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

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District Version 6.3.3
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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1/18/2021
Plaintiff Jose Munoz On Their Own and on Behalf of a Class of Similarly Situated Persons

District Version 6.3.3
Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

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District Version 6.3.3
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE
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Plaintiff Ideare Bailey

District Version 6.3.3
ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

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1/18/2021
Plaintiff Kiara Yarborough
https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address)
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District Version 6.3.3
LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
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Plaintiff Olivia Washington
https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?12110615374994-L_1_0-1

District Version 6.3.3
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Andrea Woods (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adam Gasser Safwat
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(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Adriana Cecilia Pinon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Alison Johnston Grinter (See above for address) Bar Status: Admitted/In Good Standing
Amy B Fettig (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE Bar Status: Not Admitted
Andre Segura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Barry C Barnett (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Brandon Buskey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Brian Klosterboer (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Elizabeth Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Henderson Hill (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Katherine Claire Hubbard
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(See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Kim Cole (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Lauren Kuhlik (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Michael Gervais (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sarah Sungha Choi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Savannah Kumar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Sophia Helen Golvach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

V. Defendant Marian Brown Dallas County Sheriff, in Her Ofﬁcial Capacity
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represented by J G Schuette Dallas County District Attorney Federal Litigation Division 411 Elm Street, 5th Floor Dallas, TX 75202 214-653-3692 Fax: 217-653-6134 Email: jason.schuette@dallascounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
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Ben Stephens Husch Blackwell LLP 600 Travis St Suite 2350 Houston, TX 77002 713-525-6263 Fax: 713-647-6884 Email: ben.stephens@huschblackwell.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Butrus Dallas County District Attorney Frank Crowly Courts Building 113 N. Riverfront Blvd, LB 19 Dallas, TX 75207 214-653-3691 Fax: 214-653-5774 Email: john.butrus@dallascounty.org TERMINATED: 09/30/2020 Bar Status: Admitted/In Good Standing
Katharine D David Husch Blackwell LLP 600 Travis St Suite 2350 Houston, TX 77002 713-525-6258 Fax: 713-647-6884 Email: kate.david@huschblackwell.com ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Nicholas David Stepp Husch Blackwell 600 Travis Street Suite 2350 Houston, TX 77002 713-525-6228 Fax: 713-647-6884 Email: nick.stepp@huschblackwell.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Russell H Roden Dallas County District Attorney's Ofﬁce 133 N. Riverfront Blvd., LB 19 Dallas, TX 75207 214-653-3600 Fax: 214-653-5774 Email: russell.roden@dallascounty.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
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Defendant Dallas County Texas
Defendant State of Texas TERMINATED: 10/27/2020
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represented by J G Schuette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Ben Stephens (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
John Butrus (See above for address) TERMINATED: 09/30/2020 Bar Status: Admitted/In Good Standing
Katharine D David (See above for address) ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Nicholas David Stepp (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Russell H Roden (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Adam Arthur Biggs Ofﬁce of the Texas Attorney General General Litigation Division PO Box 12548 Austin, TX 78711 512-320-2120 Fax: 512-320-0667 Email: adam.biggs@oag.texas.gov TERMINATED: 09/18/2020 Bar Status: Not Admitted
Rola Daaboul Ofﬁce of the Attorney General P.O. Box 12548 Capitol Station Austin, TX 78711 512-463-2120 Fax: 512-320-0667 Email: rola.daaboul@oag.texas.gov TERMINATED: 10/27/2020 Bar Status: Admitted/In Good Standing
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Defendant Governor Greg Abbott TERMINATED: 10/27/2020
Defendant Ken Paxton TERMINATED: 10/27/2020
Interested Party Emanuel Lewis
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Todd Alan Dickerson Ofﬁce of the Attorney General of Texas 300 W 15th Street 11th Floor Austin, TX 78701 512-475-4082 Fax: 512-320-0667 Email: todd.dickerson@oag.texas.gov TERMINATED: 10/27/2020 Bar Status: Not Admitted
represented by Adam Arthur Biggs (See above for address) TERMINATED: 09/18/2020 Bar Status: Not Admitted
Rola Daaboul (See above for address) TERMINATED: 10/27/2020 Bar Status: Admitted/In Good Standing
Todd Alan Dickerson (See above for address) TERMINATED: 10/27/2020 Bar Status: Not Admitted
represented by Adam Arthur Biggs (See above for address) TERMINATED: 09/18/2020 Bar Status: Not Admitted
Rola Daaboul (See above for address) TERMINATED: 10/27/2020 Bar Status: Admitted/In Good Standing
Todd Alan Dickerson (See above for address) TERMINATED: 10/27/2020 Bar Status: Not Admitted
represented by John C Eichman The Eichman Firm PLLC 1910 Paciﬁc Avenue Suite 6045 Dallas, TX 75201 972-863-9041 Email: john@eichmanﬁrm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
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Date Filed

# Docket Text

04/09/2020

1 PETITION for Writ of Habeas Corpus ﬁled by Paul Wright, Jose Munoz, Tesmond McDonald, Roger Morrison, Oscar Sanchez, Marcelo Perez, Terry McNickels, Marcus White. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the ﬁler that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of ﬁling. (Filing fee $5; receipt number 053910758526) Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership. If admission requirements are not satisﬁed within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Cover Sheet Supplement, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s)) (Barnett, Barry) (Entered: 04/09/2020)

04/09/2020

2 MOTION for Temporary Restraining Order Preliminary Injunction and Writ of Habeas Corpus ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright (Attachments: # 1 Proposed Order, # 2 Proposed Order) (Barnett, Barry) (Entered: 04/09/2020)

04/09/2020

3 Brief/Memorandum in Support ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright re 2 MOTION for Temporary Restraining Order Preliminary Injunction and Writ of Habeas Corpus (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s)) (Barnett, Barry) (Entered: 04/09/2020)

04/09/2020

4 Appendix in Support ﬁled by Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright re 3 Brief/Memorandum in Support of Motion, for Temporary Restraining Order, Preliminary Injunction and Writ of Habeas Corpus (Barnett, Barry) (Entered: 04/09/2020)

04/09/2020

CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright. (See Document 1 for Image) (oyh) (Entered: 04/10/2020)

04/09/2020

7 New Case Notes: A ﬁling fee has been paid. CASREF case referral set and case referred to Magistrate Judge Ramirez (see Special Order 3). Case received over counter/electronically. No prior sanctions found. (For court use only - links to the national and circuit indexes.) Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Ramirez). Clerk to provide copy to plaintiff if not received electronically. Motion(s) referred to Magistrate Judge Irma Carrillo Ramirez. (oyh) (Entered: 04/10/2020)

04/10/2020

5 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing for Attorney Andrea Woods (Filing fee $100; Receipt number 0539-10759228) ﬁled by Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright Attorney Andrea Woods added to party Tesmond McDonald(pty:pla), Attorney Andrea Woods added to party Terry McNickels(pty:pla), Attorney Andrea Woods added to party Roger Morrison(pty:pla), Attorney Andrea Woods added to party Jose Munoz(pty:pla), Attorney Andrea Woods added to party Marcelo Perez(pty:pla), Attorney Andrea Woods added to party Oscar Sanchez(pty:pla), Attorney

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04/10/2020
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District Version 6.3.3
Andrea Woods added to party Marcus White(pty:pla), Attorney Andrea Woods added to party Paul Wright(pty:pla) (Woods, Andrea) (Entered: 04/10/2020)
6 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing (Filing fee $100; Receipt number 0539-10759415) ﬁled by Oscar Sanchez Attorney Brandon Buskey added to party Oscar Sanchez(pty:pla) (Buskey, Brandon) (Entered: 04/10/2020)
8 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing (Filing fee $100; Receipt number 0539-10760073) ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright (Attachments: # 1 Exhibit(s) A - Certiﬁcate of Good Standing, # 2 Proposed Order)Attorney Elizabeth Rossi added to party Keith Baker(pty:pla), Attorney Elizabeth Rossi added to party Tesmond McDonald(pty:pla), Attorney Elizabeth Rossi added to party Terry McNickels(pty:pla), Attorney Elizabeth Rossi added to party Roger Morrison(pty:pla), Attorney Elizabeth Rossi added to party Jose Munoz(pty:pla), Attorney Elizabeth Rossi added to party Marcelo Perez(pty:pla), Attorney Elizabeth Rossi added to party Oscar Sanchez(pty:pla), Attorney Elizabeth Rossi added to party Marcus White(pty:pla), Attorney Elizabeth Rossi added to party Paul Wright(pty:pla) (Rossi, Elizabeth) (Entered: 04/10/2020)
9 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing (Filing fee $100; Receipt number 0539-10760102) ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright (Attachments: # 1 Certiﬁcate of Good Standing)Attorney Amy B Fettig added to party Keith Baker(pty:pla), Attorney Amy B Fettig added to party Tesmond McDonald(pty:pla), Attorney Amy B Fettig added to party Terry McNickels(pty:pla), Attorney Amy B Fettig added to party Roger Morrison(pty:pla), Attorney Amy B Fettig added to party Jose Munoz(pty:pla), Attorney Amy B Fettig added to party Marcelo Perez(pty:pla), Attorney Amy B Fettig added to party Oscar Sanchez(pty:pla), Attorney Amy B Fettig added to party Marcus White(pty:pla), Attorney Amy B Fettig added to party Paul Wright(pty:pla) (Fettig, Amy) (Entered: 04/10/2020)
10 ELECTRONIC ORDER granting 5 Application for Admission Pro Hac Vice of Andrea Woods. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 4/10/2020) (chmb) (Entered: 04/10/2020)
11 ELECTRONIC ORDER granting 8 Application for Admission Pro Hac Vice of Elizabeth Rossi. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 4/10/2020) (chmb) (Entered: 04/10/2020)
12 ELECTRONIC ORDER granting 9 Application for Admission Pro Hac Vice of Amy Fettig. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 4/10/2020) (chmb) (Entered: 04/10/2020)
13 ELECTRONIC ORDER granting 6 Application for Admission Pro Hac Vice of Brandon Buskey. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 4/10/2020) (chmb) (Entered: 04/10/2020)
14 ORDER: The Court orders an expedited brieﬁng schedule on the motion as follows:

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District Version 6.3.3
Responses due by 4/15/2020. Replies due by 4/17/2020. Motion Hearing set for 4/21/2020 10:00 AM before Judge Ada Brown. re: 2 MOTION for Temporary Restraining Order Preliminary Injunction and Writ of Habeas Corpus. Plaintiffs' counsel is ordered to immediately serve a copy of this Order, along with a copy of the Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief and a copy of the Motion for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus, on Defendants as soon as possible and to provide the Court with veriﬁcation that they have done so. (Ordered by Judge Ada Brown on 4/10/2020) (ykp) (Entered: 04/10/2020)
15 ELECTRONIC Notice of Hearing Telephone Conference (status Conference via phone) set for 4/14/2020 10:00 AM before Judge Ada Brown. Instructions will be sent out on Monday 4/13/2020. (chmb) (Entered: 04/10/2020)
16 NOTICE of Veriﬁcation of Service re: 14 Order Setting Deadline/Hearing ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright. (Barnett, Barry) (Entered: 04/10/2020)
17 MOTION to Certify Class ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Woods, Andrea) (Entered: 04/12/2020)
18 Brief/Memorandum in Support ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright re 17 MOTION to Certify Class (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2) (Woods, Andrea) (Entered: 04/12/2020)
Case referral to the magistrate judge terminated. (lrl) (Entered: 04/13/2020)
19 NOTICE of Attorney Appearance by Ben Stephens on behalf of Marian Brown, Dallas County Texas. (Filer conﬁrms contact info in ECF is current.) (Stephens, Ben) (Entered: 04/13/2020)
20 NOTICE of Attorney Appearance by Nicholas David Stepp on behalf of Marian Brown, Dallas County Texas. (Filer conﬁrms contact info in ECF is current.) (Stepp, Nicholas) (Entered: 04/13/2020)
21 NOTICE of Attorney Appearance by Katharine D David on behalf of Marian Brown, Dallas County Texas. (Filer conﬁrms contact info in ECF is current.) (David, Katharine) (Entered: 04/13/2020)
22 NOTICE of Attorney Appearance by Katharine D David for Russell H. Roden on behalf of Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 04/13/2020)
23 NOTICE of Attorney Appearance by Katharine D David for John Butrus on behalf of Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 04/13/2020)
24 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing (Filing fee $100; Receipt number 0539-10763349) ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright Attorney Michael Gervais added to party Keith Baker(pty:pla), Attorney Michael Gervais added to party Tesmond McDonald(pty:pla), Attorney Michael Gervais added to party Terry McNickels(pty:pla), Attorney Michael Gervais added to party Roger Morrison(pty:pla), Attorney Michael Gervais added to party Jose Munoz(pty:pla), Attorney Michael Gervais added to party Marcelo Perez(pty:pla), Attorney Michael Gervais added to party Oscar Sanchez(pty:pla), Attorney Michael Gervais added to party

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Marcus White(pty:pla), Attorney Michael Gervais added to party Paul Wright(pty:pla) (Gervais, Michael) (Entered: 04/13/2020)

04/13/2020

25 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing for Attorney Henderson Hill (Filing fee $100; Receipt number 0539-10763951) ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright (Attachments: # 1 Proposed Order) (Barnett, Barry) (Entered: 04/13/2020)

04/13/2020

26 MOTION to Intervene ﬁled by State of Texas, Greg Abbott, Ken Paxton (Attachments: # 1 Proposed Order). Party The State of Texas, Greg Abbott, Governor of the State of Texas, and Ken Paxton, Attorney General of Texas added.Attorney Adam Arthur Biggs added to party State of Texas(pty:intv), Attorney Adam Arthur Biggs added to party Greg Abbott(pty:intv), Attorney Adam Arthur Biggs added to party Ken Paxton(pty:intv) (Biggs, Adam) (Entered: 04/13/2020)

04/13/2020

27 Brief/Memorandum in Support ﬁled by Greg Abbott, Ken Paxton, State of Texas re 26 MOTION to Intervene (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4, # 5 Exhibit(s) 5, # 6 Exhibit(s) 6, # 7 Exhibit(s) 7, # 8 Exhibit(s) 8, # 9 Exhibit(s) 9, # 10 Exhibit(s) 10, # 11 Exhibit(s) 11, # 12 Exhibit(s) 12, # 13 Exhibit(s) 13, # 14 Exhibit(s) 14, # 15 Exhibit(s) 15) (Biggs, Adam) (Entered: 04/13/2020)

04/13/2020

28 NOTICE of Opposition re: 1 Petition for Writ of Habeas Corpus,,,,, ﬁled by Greg Abbott, Ken Paxton, State of Texas (Biggs, Adam) (Entered: 04/13/2020)

04/14/2020

29 ELECTRONIC Minute Entry for proceedings held before Judge Ada Brown: Telephone Conference held on 4/14/2020. Attorney Appearances: Plaintiff - Barry Barnett, Alison Grinter, Amy Fettig, Andrea Woods, Brian Klosterboer, Elizabeth Rossi, Henderson Hill, Michael Gervais; Defense - Kate David, Ben Stephens, John Butrus; Intervenor - Adam Biggs. (Court Reporter: Nikki Barr) (No exhibits) Time in Court - 01:01. (chmb) (Entered: 04/14/2020)

04/14/2020

30 ELECTRONIC ORDER granting 25 Application for Admission Pro Hac Vice of Henderson Hill. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 4/14/2020) (chmb) (Entered: 04/14/2020)

04/15/2020

31 NOTICE of Advisory of Ruling in Harris County Bail Case ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright (Barnett, Barry) (Entered: 04/15/2020)

04/15/2020

32 ELECTRONIC ORDER granting 24 Application for Admission Pro Hac Vice of Michael Gervais. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 4/15/2020) (chmb) (Entered: 04/15/2020)

04/15/2020

33 RESPONSE ﬁled by Greg Abbott, Ken Paxton, State of Texas re: 17 MOTION to Certify Class , 2 MOTION for Temporary Restraining Order Preliminary Injunction and Writ of Habeas Corpus (Attachments: # 1 Exhibit(s) 1, # 2 Proposed Order Denying Plaintiffs/Petitioners Motion for a Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus, and Plaintiffs Motion for Class Certiﬁcation, # 3 Proposed Order Granting State Intervenors Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6)) (Biggs, Adam) (Entered: 04/15/2020)

04/15/2020

34 RESPONSE ﬁled by Marian Brown, Dallas County Texas re: 2 MOTION for Temporary Restraining Order Preliminary Injunction and Writ of Habeas Corpus (Attachments: # 1

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Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C) (David, Katharine) (Entered: 04/15/2020)

04/15/2020

35 MOTION to Dismiss ﬁled by Marian Brown, Dallas County Texas (Attachments: # 1 Proposed Order) (David, Katharine) (Entered: 04/15/2020)

04/15/2020

36 Brief/Memorandum in Support ﬁled by Marian Brown, Dallas County Texas re 35 MOTION to Dismiss (Attachments: # 1 Exhibit(s) 1) (David, Katharine) (Entered: 04/15/2020)

04/15/2020

37 ADDITIONAL ATTACHMENTS to 1 Petition for Writ of Habeas Corpus,,,,, by Plaintiffs Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright. (Attachments: # 1 Exhibit(s) Ex A to Amended Grinter Dec, # 2 Exhibit(s) Ex B to Amended Grinter Dec, # 3 Exhibit(s) Ex C to Amended Grinter Dec, # 4 Exhibit(s) Ex D to Amended Grinter Dec) (Woods, Andrea) (Entered: 04/15/2020)

04/17/2020

38 NOTICE of re Plaintiff's First Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief ﬁled by Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Marcus White, Paul Wright (Attachments: # 1 Exhibit(s)) (Barnett, Barry) (Entered: 04/17/2020)

04/17/2020

39 First AMENDED Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief against All Defendants ﬁled by Jose Munoz, Keith Baker, Roger Morrison, Oscar Sanchez, Marcelo Perez, Terry McNickels, Paul Wright, Tesmond McDonald, Marcus White, Ideare Bailey, Olivia Yarborough, Olivia Washington. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership. If admission requirements are not satisﬁed within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Declaration(s), # 2 Declaration(s), # 3 Declaration(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Exhibit(s)) (Barnett, Barry) (Entered: 04/17/2020)

04/17/2020

40 ORDER: The Courts 4/21/2020, hearing on Doc. No. 2 will take place by video at 10:00 A.M. The parties have been instructed on how to participate in the video hearing. Members of the media or public may access audio of the hearing through the following link: http://76.187.100.68:8000. (Ordered by Judge Ada Brown on 4/17/2020) (chmb) (Entered: 04/17/2020)

04/17/2020

41 MOTION for Protective Order and HIPAA Qualiﬁed Protective Order ﬁled by Marian Brown, Dallas County Texas (Attachments: # 1 Exhibit(s) Protective Order, # 2 Exhibit(s) HIPAA Protective Order) (David, Katharine) (Entered: 04/17/2020)

04/17/2020

42 MOTION for Order Authorizing the Release of Criminal History Record Information ﬁled by Marian Brown, Dallas County Texas (David, Katharine) (Entered: 04/17/2020)

04/17/2020

43 NOTICE of Advisory of Preliminary Injunction in COVID-19 Case Against TDCJ ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Exhibit(s), # 2 Exhibit(s)) (Barnett, Barry) (Entered: 04/17/2020)

04/17/2020

44 RESPONSE ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 26 MOTION to Intervene (Barnett, Barry) (Entered: 04/17/2020)

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45 ***UNFILED per 49 Order*** MOTION for Leave to File Motion for Leave to File Brief in Excess of 10 Pages ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Barnett, Barry) Modiﬁed on 4/18/2020 (chmb). (Entered: 04/17/2020)

04/17/2020 04/18/2020
04/18/2020 04/18/2020

46 Brief/Memorandum in Support ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re 45 MOTION for Leave to File Motion for Leave to File Brief in Excess of 10 Pages (Barnett, Barry) (Entered: 04/17/2020)
47 REPLY ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 45 MOTION for Leave to File Motion for Leave to File Brief in Excess of 10 Pages, 2 MOTION for Temporary Restraining Order Preliminary Injunction and Writ of Habeas Corpus (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s)) (Barnett, Barry) (Entered: 04/18/2020)
48 ELECTRONIC ORDER granting 41 Motion for Protective Order; granting 42 Motion for Order Authorizing the Release of Criminal History Record Information. (Ordered by Judge Ada Brown on 4/18/2020) (chmb) (Entered: 04/18/2020)
49 ELECTRONIC Order Unﬁling 45 Motion for Leave to File Brief in Excess of 10 Pages. Plaintiff's 45 Motion for Leave to File Brief in Excess of 10 Pages does not comply with Northern District of Texas Civil Local Rule 7.1(b). The Court orders Plaintiffs to reﬁle a motion that complies with Rule 7.1(b) and which indicates whether the motion is opposed or unopposed. (Ordered by Judge Ada Brown on 4/18/2020) (chmb) (Entered: 04/18/2020)

04/18/2020 04/18/2020 04/18/2020

50 MOTION for Leave to File Brief in Excess of 10 Pages ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Barnett, Barry) (Entered: 04/18/2020)
51 ELECTRONIC ORDER granting 50 Motion for Leave to File Brief in Excess of 10 Pages. Reply brief ﬁled as docket entry 47 . (Ordered by Judge Ada Brown on 4/18/2020) (chmb) (Entered: 04/18/2020)
57 AGREED HIPAA QUALIFIED PROTECTIVE ORDER. (Ordered by Judge Ada Brown on 4/18/2020) (axm) (Entered: 04/20/2020)

04/18/2020

58 AGREED PROTECTIVE ORDER. (Ordered by Judge Ada Brown on 4/18/2020) (axm) (Entered: 04/20/2020)

04/19/2020
04/19/2020 04/19/2020

52 CERTIFICATE OF SERVICE by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough Regarding Service of Subpoena for April 21 Hearing (Attachments: # 1 Exhibit(s), # 2 Exhibit(s)) (Barnett, Barry) (Entered: 04/19/2020)
53 Amended MOTION to Dismiss ﬁled by Marian Brown, Dallas County Texas (Attachments: # 1 Proposed Order Granting Motion to Dismiss) (David, Katharine) (Entered: 04/19/2020)
54 Brief/Memorandum in Support ﬁled by Marian Brown, Dallas County Texas re 53

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District Version 6.3.3
Amended MOTION to Dismiss (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4) (David, Katharine) (Entered: 04/19/2020)
55 REPLY ﬁled by Greg Abbott, Ken Paxton, State of Texas re: 26 MOTION to Intervene (Biggs, Adam) (Entered: 04/19/2020)
56 AMENDED ELECTRONIC ORDER re: 40 Order. So the Parties will be able to fully present evidence during the hearing, the Court is changing the format for the remote participation of the attorneys and witnesses with speaking roles in the hearing. The VTC format does not allow for desktop sharing of documents, while the CMS system does. So the parties can show documents to the Court during the hearing and so the Court can view evidence the Parties wish to present during the hearing, the Court will have the Parties and witnesses with speaking roles participate by CMS rather than VTC. (There is no change to the time and date. The hearing will still take place on 4/21/2020 at 10:00 A.M.) (Ordered by Judge Ada Brown on 4/20/2020) (chmb) (Entered: 04/20/2020)
59 Sur-reply ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 26 MOTION to Intervene (Barnett, Barry) (Entered: 04/20/2020)
60 Motion for Leave to File Sur-reply ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 26 MOTION to Intervene (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Barnett, Barry) Modiﬁed event to match title on 4/20/2020 (chmb). (Entered: 04/20/2020)
61 MOTION for Leave to File Brief in Excess of 25 pagesre Plaintiffs' Omnibus Brief ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Proposed Order) (Barnett, Barry) (Entered: 04/20/2020)
62 Brief/Memorandum in Support ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re 61 MOTION for Leave to File Brief in Excess of 25 pagesre Plaintiffs' Omnibus Brief (Barnett, Barry) (Entered: 04/20/2020)
63 RESPONSE AND OBJECTION ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 53 Amended MOTION to Dismiss (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s)) (Barnett, Barry) (Entered: 04/20/2020)
64 MOTION to Strike Declarations of Dr. Robert L. Cohen, M.D. ﬁled by Marian Brown, Dallas County Texas (Attachments: # 1 Proposed Order) (Stephens, Ben) (Entered: 04/20/2020)
65 Brief/Memorandum in Support ﬁled by Marian Brown, Dallas County Texas re 64 MOTION to Strike Declarations of Dr. Robert L. Cohen, M.D. (Stephens, Ben) (Entered: 04/20/2020)
66 WAIVER of Physical Presence and Consent to Proceed in Hearing by Video Teleconference ﬁled by Ideare Bailey, Keith Baker, Marian Brown, Dallas County Texas, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Ken Paxton, Marcelo Perez, Oscar Sanchez, State of Texas, Olivia Washington, Marcus White, Paul

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Wright, Kiara Yarborough. (Attachments: # 1 Additional Page(s)) (chmb) (Entered: 04/20/2020)

04/20/2020

67 ELECTRONIC ORDER granting 60 Plaintiffs' Motion for Leave to File a Sur-reply. (Unless the document has already been ﬁled, clerk to enter the document as of the date of this order.) (Ordered by Judge Ada Brown on 4/20/2020) (chmb) (Entered: 04/20/2020)

04/20/2020

68 ADDITIONAL ATTACHMENTS to 47 Reply,, 3 Brief/Memorandum in Support of Motion, by Plaintiffs Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Barnett, Barry) (Entered: 04/20/2020)

04/20/2020

69 ELECTRONIC ORDER granting 61 Motion for Leave to File Brief in Excess of 25 pages. Response and Objection ﬁled as docket entry 63 . (Ordered by Judge Ada Brown on 4/20/2020) (chmb) (Entered: 04/20/2020)

04/20/2020

70 ORDER granting 26 Motion to Intervene. (Ordered by Judge Ada Brown on 4/20/2020) (chmb) (Main Document 70 replaced to add signature on 4/20/2020) (chmb). (Entered: 04/20/2020)

04/20/2020

71 ***VACATED PER 120 ORDER</b*** ELECTRONIC ORDER denying 35 ; 53 Motion to Dismiss. (Ordered by Judge Ada Brown on 4/20/2020) (chmb) Modiﬁed on 8/19/2020 (axm). (Entered: 04/20/2020)

04/21/2020

73 ELECTRONIC Minute Entry for proceedings held before Judge Ada Brown: Motion Hearing held on 4/21/2020 re 2 Motion for TRO, ﬁled by Jose Munoz, Terry McNickels, Oscar Sanchez, Paul Wright, Keith Baker, Tesmond McDonald, Marcelo Perez, Roger Morrison, Marcus White. Attorney Appearances: Plaintiff - Amy Fettig, Henderson Hill, Barry Barnett, Andrea Woods; Defense - Nicholas Stepp, Kate David, Ben Stephens, Adam Biggs. (Court Reporter: Nikki Barr) (Exhibits admitted - returned to party. See exhibit list.) Time in Court - 07:53. (chmb) Modiﬁed to add missing attorney on 4/23/2020 (chmb). (Entered: 04/22/2020)

04/21/2020

74 ELECTRONIC ORDER denying 64 Motion to Strike. (Ordered by Judge Ada Brown on 4/21/2020) (chmb) (Entered: 04/22/2020)

04/22/2020

72 AMENDED DOCUMENT by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. Amendment to 2 MOTION for Temporary Restraining Order Preliminary Injunction and Writ of Habeas Corpus. Amended Proposed Order. (Woods, Andrea) (Entered: 04/22/2020)

04/22/2020

75 ELECTRONIC Minute Entry for proceedings held before Judge Ada Brown: Motion Hearing held on 4/22/2020 re 2 Motion for TRO, ﬁled by Jose Munoz, Terry McNickels, Oscar Sanchez, Paul Wright, Keith Baker, Tesmond McDonald, Marcelo Perez, Roger Morrison, Marcus White. Attorney Appearances: Plaintiff - Amy Fettig, Henderson Hill, Barry Barnett, Andrea Woods; Defense - Nicholas Stepp, Kate David, Ben Stephens, Adam Biggs. (Court Reporter: Nikki Barr) (No exhibits) Time in Court - 06:53. (chmb) Modiﬁed to add a missing attorney on 4/23/2020 (chmb). (Entered: 04/22/2020)

04/22/2020

76 NOTICE of Supplemental Authority ﬁled by Greg Abbott, Ken Paxton, State of Texas (Attachments: # 1 Exhibit(s) 5th Circuit Op Valentine) (Biggs, Adam) (Entered: 04/22/2020)

04/23/2020

77 NOTICE of Advisory to the Court ﬁled by Marian Brown, Dallas County Texas (David, Katharine) (Entered: 04/23/2020)

04/23/2020

78 Transcript Order Form: transcript requested by Ken Paxton, State of Texas, Greg Abbott for Motion Hearing held 4/21/20 & 4/22/20 (Court Reporter: Nikki Barr.) Payment

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method: Private Funds - Requester has paid or will pay as directed by the reporter. Reminder to appellant: this document must also be ﬁled with the appeals court.. (Biggs, Adam) (Entered: 04/23/2020)

04/23/2020

79 ADDITIONAL ATTACHMENTS to 47 Reply, by Plaintiffs Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Barnett, Barry) (Entered: 04/23/2020)

04/23/2020

80 RESPONSE ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 76 Notice (Other) (Attachments: # 1 Proposed Order) (Barnett, Barry) (Entered: 04/23/2020)

04/23/2020

81 RESPONSE ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 76 Notice (Other) (Attachments: # 1 Exhibit(s)) (Barnett, Barry) (Entered: 04/23/2020)

04/23/2020

82 ELECTRONIC Minute Entry for proceedings held before Judge Ada Brown: Motion Hearing held on 4/23/2020 re 2 Motion for TRO. Attorney Appearances: Plaintiff - Amy Fettig, Henderson Hill, Barry Barnett, Andrea Woods, Adam Biggs; Defense - Nicholas Stepp, Kate David, Ben Stephens. (Court Reporter: Nikki Barr) (Exhibits admitted returned to party. See Exhibit List) Time in Court - 08:20. (chmb) (Entered: 04/24/2020)

04/24/2020

83 ELECTRONIC Minute Entry for proceedings held before Judge Ada Brown: Motion Hearing held on 4/24/2020 re 2 Motion for TRO, ﬁled by Jose Munoz, Terry McNickels, Oscar Sanchez, Paul Wright, Keith Baker, Tesmond McDonald, Marcelo Perez, Roger Morrison, Marcus White. Attorney Appearances: Plaintiff - Amy Fettig, Henderson Hill, Barry Barnett, Andrea Woods, Adam Biggs; Defense - Nicholas Stepp, Kate David, Ben Stephens. (Court Reporter: Nikki Barr) (Exhibits admitted - returned to party. See Exhibit List) Time in Court - 09:39. (chmb) (Entered: 04/24/2020)

04/26/2020

84 AMENDED DOCUMENT by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. Amendment to 2 MOTION for Temporary Restraining Order Preliminary Injunction and Writ of Habeas Corpus. Notice of Second Amended Proposed Order. (Attachments: # 1 Proposed Order Second Amended Proposed Order) (Woods, Andrea) (Entered: 04/26/2020)

04/27/2020

85 ORDER denying 2 Motion for TRO. (Ordered by Judge Ada Brown on 4/27/2020) (chmb) (Entered: 04/27/2020)

04/28/2020

86 NOTICE of Supplemental Authority ﬁled by Greg Abbott, Ken Paxton, State of Texas (Attachments: # 1 Exhibit(s) 5th Circuit Op Marlowe) (Biggs, Adam) (Entered: 04/28/2020)

04/28/2020

87 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing (Filing fee $100; Receipt number 0539-10799592) ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Exhibit(s)) (Pinon, Adriana) (Entered: 04/28/2020)

04/28/2020

88 ELECTRONIC ORDER granting 87 Application for Admission Pro Hac Vice of Adriana Cecilia Pinon. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 4/28/2020) (chmb) (Entered: 04/28/2020)

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89 NOTICE of Plaintffs' Advisory Regarding Statistical Reports by the Texas Commission on Jail Standards ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Proposed Order regarding Statistical Reports by the Texas Commission on Jail Standards) (Barnett, Barry) (Entered: 04/29/2020)
90 Notice of Filing of Ofﬁcial Electronic Transcript of TRO Proceedings held on 04-21-2020 before Judge Brown. Court Reporter/Transcriber Brooke Barr, Telephone number 2147532661. Parties are notiﬁed of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's ofﬁce. (214)753-2240 immediately. If the transcript contains personal identiﬁers that must be redacted under MO 61, Fed.R.Civ.P. 5.2 or Fed.R.Crim.P. 49.1, or if the transcript contains the name of a minor child victim or a minor child witness that must be redacted under 18 U.S.C. § 3509, ﬁle a Redaction Request - Transcript within 21 days. If no action is taken, the entire transcript will be made available through PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. (256 pages) Redaction Request due 5/22/2020. Redacted Transcript Deadline set for 6/1/2020. Release of Transcript Restriction set for 7/30/2020. (nbb) (Entered: 05/01/2020)
91 Notice of Filing of Ofﬁcial Electronic Transcript of TRO Proceedings held on 04-22-2020 before Judge Brown. Court Reporter/Transcriber Brooke Barr, Telephone number (214) 753-2661. Parties are notiﬁed of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's ofﬁce. (214)753-2240 immediately. If the transcript contains personal identiﬁers that must be redacted under MO 61, Fed.R.Civ.P. 5.2 or Fed.R.Crim.P. 49.1, or if the transcript contains the name of a minor child victim or a minor child witness that must be redacted under 18 U.S.C. § 3509, ﬁle a Redaction Request - Transcript within 21 days. If no action is taken, the entire transcript will be made available through PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. (251 pages) Redaction Request due 5/22/2020. Redacted Transcript Deadline set for 6/1/2020. Release of Transcript Restriction set for 7/30/2020. (nbb) (Entered: 05/01/2020)
92 Notice of Filing of Ofﬁcial Electronic Transcript of TRO Proceedings held on 04-23-2020 before Judge Brown. Court Reporter/Transcriber Brooke Barr, Telephone number (214) 753-2661. Parties are notiﬁed of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's ofﬁce. (214)753-2240 immediately. If the transcript contains personal identiﬁers that must be redacted under MO 61, Fed.R.Civ.P. 5.2 or Fed.R.Crim.P. 49.1, or if the transcript contains the name of a minor child victim or a minor child witness that must be redacted under 18 U.S.C. § 3509, ﬁle a Redaction Request - Transcript within 21 days. If no action is taken, the entire transcript will be made available through PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. (248 pages) Redaction Request due 5/22/2020. Redacted Transcript Deadline set for 6/1/2020. Release of Transcript Restriction set for 7/30/2020. (nbb) (Entered: 05/01/2020)
93 Notice of Filing of Ofﬁcial Electronic Transcript of TRO Proceedings held on 04-24-2020 before Judge Brown. Court Reporter/Transcriber Brooke Barr, Telephone number (214) 753-2661. Parties are notiﬁed of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's ofﬁce. (214)753-2240 immediately. If the transcript contains personal identiﬁers that must be redacted under MO 61, Fed.R.Civ.P. 5.2 or Fed.R.Crim.P. 49.1, or if the transcript contains the name of a minor child victim or a minor child witness that must be redacted under 18 U.S.C. § 3509, ﬁle a Redaction Request - Transcript within 21 days. If no action is taken, the entire transcript will be made available through PACER without redaction after 90 calendar

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District Version 6.3.3
days. The clerk will mail a copy of this notice to parties not electronically noticed. (333 pages) Redaction Request due 5/22/2020. Redacted Transcript Deadline set for 6/1/2020. Release of Transcript Restriction set for 7/30/2020. (nbb) (Entered: 05/01/2020)
94 Court's Exhibit and Witness List from TRO Motion Hearing held 4/21/2020-4/24/2020. (Attachments: # 1 Defendant's exhibit list, # 2 Interventor's exhibit list) (chmb) (Entered: 05/01/2020)
95 NOTICE of Supplemental Authority Regarding Habeas Relief ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Exhibit(s)) (Barnett, Barry) (Entered: 05/05/2020)
96 MOTION for Scheduling Conference ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Barnett, Barry) (Entered: 05/05/2020)
97 NOTICE of Attorney Appearance by Todd Alan Dickerson on behalf of Greg Abbott, Ken Paxton, State of Texas. (Filer conﬁrms contact info in ECF is current.) (Dickerson, Todd) (Entered: 05/07/2020)
98 NOTICE of State Court Litigation and New Authority ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Exhibit(s) Veriﬁed Petition, # 2 Exhibit(s) Cameron Opinion and Order, # 3 Exhibit(s) Seth Order) (Woods, Andrea) (Entered: 05/21/2020)
99 MEMORANDUM OPINION AND ORDER: Because Plaintiffs have not carried their burden, their request for preliminary injunctive relief was denied. (Ordered by Judge Ada Brown on 5/22/2020) (chmb) (Entered: 05/22/2020)
100 NOTICE of Advisory Re State Court Litigation ﬁled by Marian Brown, Dallas County Texas (Attachments: # 1 Exhibit(s) Exhibit A) (David, Katharine) (Entered: 05/27/2020)
101 NOTICE of Advisory Re State Court Litigation ﬁled by Marian Brown, Dallas County Texas (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B) (David, Katharine) (Entered: 06/04/2020)
102 ELECTRONIC ORDER granting 96 Plaintiff's Motion for Scheduling Conference. Telephone Conference set for 6/11/2020 at 02:00 PM before Judge Ada Brown. Instructions for accessing the conference will be provided to the parties by email. (Ordered by Judge Ada Brown on 6/8/2020) (chmb) (Entered: 06/08/2020)
103 MOTION Reset Scheduling Conference re 102 Order on Motion for Miscellaneous Relief, ﬁled by Greg Abbott, Ken Paxton (Attachments: # 1 Proposed Order) (Biggs, Adam) (Entered: 06/09/2020)
104 ELECTRONIC ORDER granting 103 Intervenors' Unopposed Motion to Reset Hearing. The Telephone Conference set for 6/11/2020 is reset to 10:00 AM that day. (Ordered by Judge Ada Brown on 6/9/2020) (chmb) (Entered: 06/09/2020)
105 ELECTRONIC ORDER: The telephone conference scheduled for 6/11/2020 is reset for 6/19/2020 at 10:00 AM. (Ordered by Judge Ada Brown on 6/10/2020) (chmb) (Entered: 06/10/2020)
106 ELECTRONIC ORDER: The telephone conference on 6/19/2020 is reset for 11:00 AM that day. (Ordered by Judge Ada Brown on 6/12/2020) (chmb) (Entered: 06/12/2020)

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107 MOTION to Withdraw as Attorney ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Proposed Order) (Fettig, Amy) (Entered: 06/12/2020)

06/13/2020

108 NOTICE of Designation of Counsel ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Woods, Andrea) (Entered: 06/13/2020)

06/15/2020

109 ELECTRONIC ORDER granting 107 Motion to Withdraw as Attorney. The Court permits Amy Fettig to withdraw as counsel for Plaintiffs. (Ordered by Judge Ada Brown on 6/15/2020) (chmb) (Entered: 06/15/2020)

06/19/2020

110 ELECTRONIC Minute Entry for proceedings held before Judge Ada Brown: Telephone Conference held on 6/19/2020. Attorney Appearances: Plaintiff - Andrea Woods; Defense - Kate David, Adam Biggs. (Court Reporter: Nikki Barr) (No exhibits) Time in Court :09. (chmb) (Entered: 06/19/2020)

06/29/2020

111 Proposal for contents of scheduling and discovery order by Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 06/29/2020)

06/30/2020

112 NOTICE of Attorney Appearance by Rola Daaboul on behalf of Greg Abbott, Ken Paxton, State of Texas. (Filer conﬁrms contact info in ECF is current.) (Daaboul, Rola) (Entered: 06/30/2020)

07/08/2020

113 NOTICE of Supplemental Authority ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Exhibit(s) Valentine Class Certiﬁcation Order, # 2 Exhibit(s) Dyer Opinion) (Woods, Andrea) (Entered: 07/08/2020)

08/07/2020

114 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing (Filing fee $100; Receipt number 0539-11059277) ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough Attorney Adam Gasser Safwat added to party Ideare Bailey(pty:pla), Attorney Adam Gasser Safwat added to party Keith Baker(pty:pla), Attorney Adam Gasser Safwat added to party Tesmond McDonald(pty:pla), Attorney Adam Gasser Safwat added to party Terry McNickels(pty:pla), Attorney Adam Gasser Safwat added to party Roger Morrison(pty:pla), Attorney Adam Gasser Safwat added to party Jose Munoz(pty:pla), Attorney Adam Gasser Safwat added to party Marcelo Perez(pty:pla), Attorney Adam Gasser Safwat added to party Oscar Sanchez(pty:pla), Attorney Adam Gasser Safwat added to party Olivia Washington(pty:pla), Attorney Adam Gasser Safwat added to party Marcus White(pty:pla), Attorney Adam Gasser Safwat added to party Paul Wright(pty:pla), Attorney Adam Gasser Safwat added to party Kiara Yarborough(pty:pla) (Safwat, Adam) (Entered: 08/07/2020)

08/07/2020

115 ANSWER to 39 Amended Complaint,,,, ﬁled by Marian Brown, Dallas County Texas. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership. If admission requirements are not satisﬁed within 21 days, the clerk will notify the presiding judge. (David, Katharine) (Entered: 08/07/2020)

08/07/2020

116 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing (Filing fee $100; Receipt number 0539-11060172) ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar

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District Version 6.3.3
Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Certiﬁcate of Good Standing, # 2 Proposed Order)Attorney Sarah Sungha Choi added to party Ideare Bailey(pty:pla), Attorney Sarah Sungha Choi added to party Keith Baker(pty:pla), Attorney Sarah Sungha Choi added to party Tesmond McDonald(pty:pla), Attorney Sarah Sungha Choi added to party Terry McNickels(pty:pla), Attorney Sarah Sungha Choi added to party Roger Morrison(pty:pla), Attorney Sarah Sungha Choi added to party Jose Munoz(pty:pla), Attorney Sarah Sungha Choi added to party Marcelo Perez(pty:pla), Attorney Sarah Sungha Choi added to party Oscar Sanchez(pty:pla), Attorney Sarah Sungha Choi added to party Olivia Washington(pty:pla), Attorney Sarah Sungha Choi added to party Marcus White(pty:pla), Attorney Sarah Sungha Choi added to party Paul Wright(pty:pla), Attorney Sarah Sungha Choi added to party Kiara Yarborough(pty:pla) (Choi, Sarah) (Entered: 08/07/2020)
117 ELECTRONIC ORDER granting 114 Application for Admission Pro Hac Vice of Adam Safwat. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 8/10/2020) (chmb) (Entered: 08/10/2020)
118 ELECTRONIC ORDER granting 116 Application for Admission Pro Hac Vice of Sarah Choi. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 8/10/2020) (chmb) (Entered: 08/10/2020)
119 Supplemental Document by Greg Abbott as to 111 Proposed Scheduling and Discovery Order Letter to Judge requesting clariﬁcation. (Daaboul, Rola) (Entered: 08/11/2020)
120 MEMORANDUM OPINION AND ORDER: The Court has reconsidered its rulings on those motions and VACATES its electronic order (Doc. No. 71 ). The Court now denies the 35 Motion to Dismiss as moot. Accordingly, the Court GRANTS the 53 Amended Motion to Dismiss in part as it relates to Plaintiffs' habeas action. The Court dismisses with prejudice Plaintiffs' petition for writ of habeas corpus. The Court DEFERS ruling on that portion of Defendants' motion directed to Plaintiffs' § 1983 claims. (Ordered by Judge Ada Brown on 8/19/2020) (axm) (Entered: 08/19/2020)
121 SCHEDULING ORDER: Joinder of Parties due by 9/8/2020. Amended Pleadings due by 9/8/2020. Responses due by 10/16/2020. Replies due by 10/28/2020. Fact Discovery due by 10/30/2020. Response due by 11/20/2020. Replies due by 12/4/2020. Expert Discovery due by 1/29/2021. Motions due by 2/19/2021. Trial set for three-week docket beginning 3/26/2021 before Judge Ada Brown. (Ordered by Judge Ada Brown on 8/20/2020) (mla) (Entered: 08/20/2020)
122 Unopposed MOTION to Withdraw as Attorney ﬁled by Greg Abbott, Ken Paxton, State of Texas (Attachments: # 1 Proposed Order) (Biggs, Adam) (Entered: 09/17/2020)
123 ELECTRONIC ORDER granting 122 Motion to Withdraw as Attorney. Attorney Adam Arthur Biggs is permitted to withdraw as counsel of record for Intervenors the State of Texas, Governor of Texas, and Attorney General of Texas. Rola Daaboul is designated as lead counsel for these parties. (Ordered by Judge Ada Brown on 9/18/2020) (chmb) (Entered: 09/18/2020)
124 ANSWER to 39 Amended Complaint,,,, ﬁled by Greg Abbott, Ken Paxton, State of Texas. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney

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09/24/2020 09/25/2020 09/25/2020 09/29/2020 09/30/2020 10/01/2020
10/02/2020 10/02/2020 10/02/2020 10/05/2020 10/15/2020 10/16/2020 10/16/2020

District Version 6.3.3
Information - Bar Membership. If admission requirements are not satisﬁed within 21 days, the clerk will notify the presiding judge. (Daaboul, Rola) (Entered: 09/24/2020)
125 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Greg Abbott, Ken Paxton, State of Texas. (Daaboul, Rola) (Entered: 09/24/2020)
126 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Marian Brown, Dallas County Texas with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (David, Katharine) (Entered: 09/25/2020)
127 Brief/Memorandum in Support ﬁled by Marian Brown, Dallas County Texas re 126 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Declaration(s)) (David, Katharine) (Entered: 09/25/2020)
128 MOTION to Withdraw as Attorney and substitute counsel ﬁled by Marian Brown, Dallas County Texas with Brief/Memorandum in Support. (Butrus, John) (Entered: 09/29/2020)
129 ORDER GRANTING 128 MOTION TO WITHDRAW AND SUBSTITUTE COUNSEL. Added attorney J G Schuette for Marian Brown,J G Schuette for Dallas County Texas. Attorney John Butrus terminated (Ordered by Judge Ada Brown on 9/30/2020) (oyh) (Entered: 09/30/2020)
130 Unopposed MOTION to Amend Protective Order and HIPPA Qualiﬁed Protective Order ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 58 HIPPA Qualiﬁed Protective Order, 57 Protective Order, 48 Order on Motion for Protective Order. (Attachments: # 1 Proposed Order) (Choi, Sarah) Modiﬁed text and linkage on 10/2/2020 (axm). (Entered: 10/01/2020)
131 NOTICE to Take Deposition of Chief Deputy Frederick Robinson by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Choi, Sarah) (Entered: 10/02/2020)
132 NOTICE to Take Deposition of Asst. Chief Deputy Jason Hartgraves by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Choi, Sarah) (Entered: 10/02/2020)
133 NOTICE to Take Deposition of Sheriff Marian Brown by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Choi, Sarah) (Entered: 10/02/2020)
134 ORDER re: 130 Motion to Amend Protective Order and HIPPA Qualiﬁed Protective Order. (Ordered by Judge Ada Brown on 10/5/2020) (axm) (Entered: 10/05/2020)
135 MOTION to Quash and For Protective Order ﬁled by Marian Brown, Dallas County Texas (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Proposed Order Order Granting Motion to Quash) (David, Katharine) (Entered: 10/15/2020)
136 ELECTRONIC ORDER: The Court expedites Plaintiffs' response to Defendant Sheriff Marian Brown's Motion to Quash and for Protective Order. Responses due by 10/20/2020. (Ordered by Judge Ada Brown on 10/16/2020) (chmb) (Entered: 10/16/2020)
137 RESPONSE ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus

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White, Paul Wright, Kiara Yarborough re: 126 MOTION to Dismiss for Lack of Jurisdiction (Segura, Andre) (Entered: 10/16/2020)

10/19/2020

138 MOTION to Modify Scheduling Order ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Attachments: # 1 Proposed Order, # 2 Declaration(s), # 3 Exhibit(s)) (Choi, Sarah) Modiﬁed event text and linkage on 10/24/2020 (axm). (Entered: 10/19/2020)

10/20/2020

139 ELECTRONIC ORDER: Plaintiffs' Motion to Modify Scheduling Order indicates that Defendants do not oppose the motion, but the State Intervenors do. The Court expedites the deadline for Intervenors to respond to the motion. Response due by 10/26/2020. (Ordered by Judge Ada Brown on 10/20/2020) (chmb) (Entered: 10/20/2020)

10/20/2020

140 (Document Restricted) Sealed Response to Motion to Quash (Sealed pursuant to motion to seal) ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Exhibit(s) SEALED Response to Motion to Quash, # 2 Exhibit(s) SEALED Declaration of A. Safwat, # 3 Exhibit(s) SEALED Exhibit 1 to Declaration of A. Safwat, # 4 Exhibit(s) SEALED Exhibit 2 to Declaration of A. Safwat, # 5 Exhibit(s) SEALED Exhibit 3 to Declaration of A. Safwat, # 6 Exhibit(s) Exhibit 4 to Declaration of A. Safwat, # 7 Exhibit(s) Exhibit 5 to Declaration of A. Safwat, # 8 Exhibit(s) Redacted Response to Motion to Quash, # 9 Exhibit(s) Proposed Order Denying Motion to Quash, # 10 Proposed Order) (Choi, Sarah) (Entered: 10/20/2020)

10/20/2020

141 Return of Service for Subpoena to Testify at a Deposition in a Civil Action with Notice of Intention to Take Oral and Videotaped Deposition served on Emanuel Lewis on 10/15/2020. (mjr) (Entered: 10/21/2020)

10/21/2020

142 ELECTRONIC ORDER denying 135 Defendant Sheriff Marian Brown's Motion to Quash and for Protective Order. The parties shall agree to a date for the deposition of Sheriff Marian Brown. (Ordered by Judge Ada Brown on 10/21/2020) (chmb) (Entered: 10/21/2020)

10/21/2020

143 ORDER granting sealed and/or ex parte motion to File Under Seal Plaintiffs' Response to Defendants' Motion to Quash and for Protective Order 140 . (Clerk to enter the sealed and/or ex parte document as of the date of this order.) (Ordered by Judge Ada Brown on 10/21/2020) (ykp) (Entered: 10/21/2020)

10/21/2020

144 (Document Restricted) Sealed Response to Motion re: 135 Motion to Quash ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (ykp) (Entered: 10/22/2020)

10/21/2020

145 (Document Restricted) Sealed Declaration of Adam Safwat in Support of 144 Sealed Response to 135 Motion to Quash ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (ykp) (Entered: 10/22/2020)

10/21/2020

146 (Redated) RESPONSE ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 135 MOTION to Quash and For Protective Order (Attachments: # 1 Proposed Order) (ykp) (Entered: 10/22/2020)

10/26/2020 147 Unopposed MOTION to Withdraw ﬁled by Greg Abbott, Ken Paxton, State of Texas with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Daaboul, Rola)

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10/27/2020
10/28/2020
10/28/2020 10/28/2020
10/29/2020 10/29/2020 10/30/2020 11/05/2020 11/09/2020 11/09/2020
11/09/2020 11/10/2020

(Entered: 10/26/2020)

District Version 6.3.3

148 NOTICE of Advisory regarding Plaintiff's Motion to Modify Scheduling Order ﬁled by Greg Abbott, Ken Paxton, State of Texas (Daaboul, Rola) (Entered: 10/26/2020)

149 ORDER granting 147 Motion to Withdraw as Intervenors. The Court ORDERS that Intervenors the State of Texas, the Governor of Texas, and the Attorney General of Texas are withdrawn from this case. (Ordered by Judge Ada Brown on 10/27/2020) (oyh) (Entered: 10/28/2020)

150 ORDER MODIFYING SCHEDULING ORDER: Discovery due by 1/15/2021. Amended Motion for Class Certiﬁcation due by 1/15/2021. Response to Amended Motion for Class Certiﬁcation due by 1/29/2021. Reply to Amended Motion for Class Certiﬁcation due by 2/12/2021. (Ordered by Judge Ada Brown on 10/27/2020) (oyh) Modiﬁed docket text on 10/28/2020 (oyh). (Entered: 10/28/2020)

151 NOTICE to Take Deposition of Dr. Ank Nijhawan by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Attachments: # 1 Exhibit(s) Notice of Deposition) (Choi, Sarah) (Entered: 10/28/2020)

152 REPLY ﬁled by Marian Brown, Dallas County Texas re: 126 MOTION to Dismiss for Lack of Jurisdiction (David, Katharine) (Entered: 10/28/2020)

153 MOTION to Compel Inspection ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough with Brief/Memorandum in Support. (Attachments: # 1 Brief in Support of Motion to Compel, # 2 Declaration(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Declaration(s), # 6 Exhibit(s), # 7 Proposed Order) (Choi, Sarah) (Entered: 10/28/2020)

154 MOTION to Quash or For Protective Order and Brief in Support ﬁled by Emanuel Lewis. Party Emanuel Lewis added.Attorney John C Eichman added to party Emanuel Lewis(pty:ip) (Eichman, John) (Entered: 10/29/2020)

155 Appendix in Support ﬁled by Emanuel Lewis re 154 MOTION to Quash or For Protective Order and Brief in Support (Eichman, John) (Entered: 10/29/2020)

156 ELECTRONIC ORDER: The Court expedites Defendants' response to non-party Emanuel Lewis's Motion to Quash (Doc. No. 154). Response due by 11/5/2020. (Ordered by Judge Ada Brown on 10/30/2020) (chmb) (Entered: 10/30/2020)

157 RESPONSE ﬁled by Marian Brown, Dallas County Texas re: 154 MOTION to Quash or For Protective Order and Brief in Support (Attachments: # 1 Appendix, # 2 Exhibit(s) A) (David, Katharine) (Entered: 11/05/2020)

158 REPLY ﬁled by Emanuel Lewis re: 154 MOTION to Quash or For Protective Order and Brief in Support (Eichman, John) (Entered: 11/09/2020)

159 REPLY ﬁled by Ideare Bailey, Keith Baker, Emanuel Lewis, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 154 MOTION to Quash or For Protective Order and Brief in Support (Choi, Sarah) (Entered: 11/09/2020)

160 Sur-reply ﬁled by Marian Brown, Dallas County Texas re: 154 MOTION to Quash or For Protective Order and Brief in Support (Attachments: # 1 Exhibit(s) A) (David, Katharine) (Entered: 11/09/2020)

161 ORDER granting 154 Motion to Quash or for Protective Order. (Ordered by Judge Ada

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Brown on 11/10/2020) (axm) (Entered: 11/10/2020)

11/10/2020

162 NOTICE to Take Deposition of Patrick Jones by Ideare Bailey, Keith Baker, Emanuel Lewis, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Attachments: # 1 Additional Page(s) Subpoena) (Choi, Sarah) (Entered: 11/10/2020)

11/18/2020

163 RESPONSE ﬁled by Marian Brown, Dallas County Texas re: 153 MOTION to Compel Inspection (Attachments: # 1 Proposed Order) (David, Katharine) (Entered: 11/18/2020)

11/20/2020

164 ORDER denying 153 Motion to Compel Inspection. (Ordered by Judge Ada Brown on 11/20/2020) (ndt) (Entered: 11/20/2020)

11/23/2020

165 NOTICE to Take Deposition of Marcus White by Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 11/23/2020)

11/23/2020

166 NOTICE to Take Deposition of Ideare Bailey by Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 11/23/2020)

11/30/2020

167 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing (Filing fee $100; Receipt number 0539-11396428) ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough Attorney Savannah Kumar added to party Ideare Bailey(pty:pla), Attorney Savannah Kumar added to party Keith Baker(pty:pla), Attorney Savannah Kumar added to party Tesmond McDonald(pty:pla), Attorney Savannah Kumar added to party Terry McNickels(pty:pla), Attorney Savannah Kumar added to party Roger Morrison(pty:pla), Attorney Savannah Kumar added to party Jose Munoz(pty:pla), Attorney Savannah Kumar added to party Marcelo Perez(pty:pla), Attorney Savannah Kumar added to party Oscar Sanchez(pty:pla), Attorney Savannah Kumar added to party Olivia Washington(pty:pla), Attorney Savannah Kumar added to party Marcus White(pty:pla), Attorney Savannah Kumar added to party Paul Wright(pty:pla), Attorney Savannah Kumar added to party Kiara Yarborough(pty:pla) (Kumar, Savannah) (Entered: 11/30/2020)

12/01/2020

168 ELECTRONIC ORDER granting 167 Application for Admission Pro Hac Vice of Savannah Kumar. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 12/1/2020) (chmb) (Entered: 12/01/2020)

12/02/2020 169 NOTICE to Take Deposition of Dr. Ank Nijhawan by Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 12/02/2020)

12/02/2020 170 NOTICE to Take Deposition of Patrick Jones by Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 12/02/2020)

12/02/2020

171 Unopposed MOTION for Protective Order re Jail Inspection ﬁled by Ideare Bailey, Keith Baker, Emanuel Lewis, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Attachments: # 1 Proposed Order) (Choi, Sarah) (Entered: 12/02/2020)

12/07/2020 172 STIPULATED ORDER REGARDING INSPECTION TOUR. (Ordered by Judge Ada Brown on 12/7/2020) (ndt) (Entered: 12/07/2020)

12/08/2020

173 MOTION to Compel Production of Documents ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough with Brief/Memorandum in Support. (Attachments: # 1 Brief ISO Motion to Compel, # 2

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District Version 6.3.3
Declaration(s) A. Safwat Declaration, # 3 Exhibit(s) Exhibit A to A. Safwat Declaration, # 4 Exhibit(s) Exhibit B to A. Safwat Declaration, # 5 Exhibit(s) Exhibit C to A. Safwat Declaration, # 6 Proposed Order) (Choi, Sarah) (Entered: 12/08/2020)

12/08/2020

174 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing for Attorney Lauren Kuhlik (Filing fee $100; Receipt number 0539-11421063) ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Additional Page(s) Certiﬁcate of Good Standing)Attorney Lauren Kuhlik added to party Ideare Bailey(pty:pla), Attorney Lauren Kuhlik added to party Keith Baker(pty:pla), Attorney Lauren Kuhlik added to party Tesmond McDonald(pty:pla), Attorney Lauren Kuhlik added to party Terry McNickels(pty:pla), Attorney Lauren Kuhlik added to party Roger Morrison(pty:pla), Attorney Lauren Kuhlik added to party Jose Munoz(pty:pla), Attorney Lauren Kuhlik added to party Marcelo Perez(pty:pla), Attorney Lauren Kuhlik added to party Oscar Sanchez(pty:pla), Attorney Lauren Kuhlik added to party Olivia Washington(pty:pla), Attorney Lauren Kuhlik added to party Marcus White(pty:pla), Attorney Lauren Kuhlik added to party Paul Wright(pty:pla), Attorney Lauren Kuhlik added to party Kiara Yarborough(pty:pla) (Kuhlik, Lauren) (Entered: 12/08/2020)

12/09/2020

175 ELECTRONIC ORDER granting 174 Application for Admission Pro Hac Vice of Lauren Kuhlik. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 12/9/2020) (chmb) (Entered: 12/09/2020)

12/09/2020

176 ELECTRONIC ORDER: The Court expedites Defendants' Response to 173 Plaintiffs' Motion to Compel Production of Documents. Response due by 12/18/2020. (Ordered by Judge Ada Brown on 12/9/2020) (chmb) (Entered: 12/09/2020)

12/11/2020

177 NOTICE to Take Deposition of Kiara Yarborough by Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 12/11/2020)

12/11/2020

178 NOTICE to Take Deposition of Keith Baker by Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 12/11/2020)

12/14/2020

179 NOTICE to Take Deposition of Dallas County by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Choi, Sarah) (Entered: 12/14/2020)

12/14/2020

180 NOTICE to Take Deposition of Barry-Lewis Harris by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Attachments: # 1 Exhibit(s) Notice of Deposition) (Choi, Sarah) (Entered: 12/14/2020)

12/14/2020

181 NOTICE to Take Deposition of Dianne Urey by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Attachments: # 1 Exhibit(s) Notice of Deposition) (Choi, Sarah) (Entered: 12/14/2020)

12/15/2020

182 Application for Admission Pro Hac Vice with Certiﬁcate of Good Standing (Filing fee $100; Receipt number 0539-11442718) ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Certiﬁcation of Good Standing, # 2 Proposed Order)Attorney Sophia Helen Golvach added to party Ideare Bailey(pty:pla), Attorney Sophia Helen Golvach added to party Keith Baker(pty:pla),

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Attorney Sophia Helen Golvach added to party Tesmond McDonald(pty:pla), Attorney Sophia Helen Golvach added to party Terry McNickels(pty:pla), Attorney Sophia Helen Golvach added to party Roger Morrison(pty:pla), Attorney Sophia Helen Golvach added to party Jose Munoz(pty:pla), Attorney Sophia Helen Golvach added to party Marcelo Perez(pty:pla), Attorney Sophia Helen Golvach added to party Oscar Sanchez(pty:pla), Attorney Sophia Helen Golvach added to party Olivia Washington(pty:pla), Attorney Sophia Helen Golvach added to party Marcus White(pty:pla), Attorney Sophia Helen Golvach added to party Paul Wright(pty:pla), Attorney Sophia Helen Golvach added to party Kiara Yarborough(pty:pla) (Golvach, Sophia) (Entered: 12/15/2020)

12/15/2020 12/16/2020

183 NOTICE to Take Deposition of Shelley Knight by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough. (Choi, Sarah) (Entered: 12/15/2020)
184 ELECTRONIC ORDER granting 182 Application for Admission Pro Hac Vice of Sophia H. Golvach. Important Reminder: Unless excused for cause, an attorney who is not an ECF user must register within 14 days of the date the attorney appears in a case pursuant to LR 5.1(f) and LCrR 49.2(g). (Ordered by Judge Ada Brown on 12/16/2020) (chmb) (Entered: 12/16/2020)

12/18/2020

185 Agreed MOTION for Protective Order of Amended HIPAA Qualiﬁed Protective Order ﬁled by Marian Brown, Dallas County Texas (Attachments: # 1 Exhibit(s) Exhibit A Amended Agreed HIPAA Protective Order, # 2 Exhibit(s) Exhibit B - Redline Amended Agreed HIPAA Protective Order) (Stephens, Ben) (Entered: 12/18/2020)

12/18/2020

186 AMENDED DOCUMENT by Dallas County Texas, Marian Brown. Notice of Intention To Take The Oral and Videotaped Deposition of Plaintiff Keith Baker. (Stephens, Ben) (Entered: 12/18/2020)

12/18/2020

187 AMENDED DOCUMENT by Dallas County Texas, Marian Brown. Notice of Intention to Take the Oral and Videotaped Deposition of Plaintiff Kiara Yarborough. (Stephens, Ben) (Entered: 12/18/2020)

12/18/2020 188 NOTICE to Take Deposition of Tesmond McDonald by Marian Brown, Dallas County Texas. (Stephens, Ben) (Entered: 12/18/2020)

12/18/2020 189 NOTICE to Take Deposition of Oscar Sanchez by Marian Brown, Dallas County Texas. (Stephens, Ben) (Entered: 12/18/2020)

12/18/2020 12/18/2020 12/18/2020 12/19/2020
12/22/2020 12/22/2020

190 NOTICE to Take Deposition of Olivia Washington by Marian Brown, Dallas County Texas. (Stephens, Ben) (Entered: 12/18/2020)
191 NOTICE to Take Deposition of Paul Wright by Marian Brown, Dallas County Texas. (Stephens, Ben) (Entered: 12/18/2020)
192 RESPONSE ﬁled by Marian Brown, Dallas County Texas re: 173 MOTION to Compel Production of Documents (Attachments: # 1 Exhibit(s) A) (David, Katharine) (Entered: 12/18/2020)
193 REPLY ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough re: 173 MOTION to Compel Production of Documents (Attachments: # 1 Declaration(s)) (Choi, Sarah) (Entered: 12/19/2020)
194 AGREED AMENDED HIPAA QUALIFIED PROTECTIVE ORDER. (Ordered by Judge Ada Brown on 12/22/2020) (mjr) (Entered: 12/22/2020)
195 ELECTRONIC ORDER denying 173 Plaintiffs' Motion to Compel Production of

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Documents. (Ordered by Judge Ada Brown on 12/22/2020) (chmb) (Entered: 12/22/2020)
196 NOTICE to Take Deposition of Marcelo Perez by Marian Brown, Dallas County Texas. (David, Katharine) (Entered: 12/31/2020)
197 NOTICE of Death ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Choi, Sarah) (Entered: 01/06/2021)
198 Joint MOTION to Modify Scheduling Order ﬁled by Ideare Bailey, Keith Baker, Tesmond McDonald, Terry McNickels, Roger Morrison, Jose Munoz, Marcelo Perez, Oscar Sanchez, Olivia Washington, Marcus White, Paul Wright, Kiara Yarborough (Attachments: # 1 Proposed Order) (Choi, Sarah) Modiﬁed event text on 1/7/2021 (hml). (Entered: 01/06/2021)
199 AMENDED SCHEDULING ORDER: Trial set for three-week docket beginning 5/25/2021 before Judge Ada Brown. Motions due by 4/20/2021. Fact Discovery due by 3/16/2021. Expert Discovery due by 3/30/2021 (Ordered by Judge Ada Brown on 1/7/2021) (oyh) Modiﬁed text on 1/8/2021 (mjr). (Entered: 01/07/2021)

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 Case 3:20-cv-00832-E Document 1 Filed 04/09/20 Page 1 of 44 PageID 1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. xx-cv---
Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief

Petitioners/Plaintiffs, v.
DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

IMMEDIATE RELIEF SOUGHT

Respondents/Defendants

INTRODUCTION

1. You are likely reading this Petition for Writ of Habeas Corpus and Class Action

Complaint for Injunctive and Declaratory Relief (Complaint) from self-isolation in your home.

Now imagine if someone sick with COVID-19 came into that home and sealed the doors and

windows behind them. That is what Dallas County has just done to more than 5,000 human beings

currently detained in the North, South, and West Towers of the Lew Sterrett Justice Center, where

more than two dozen COVID-19 cases have been confirmed by Dallas County and where

social/physical distancing for all but a small fraction of detainees is impossible. After Oscar

Sanchez requested a test for the disease which he could not obtain in the Dallas County Jail, a staff

member acknowledged the predicament, saying to Mr. Sanchez: “I don’t know what these people

want you to do. Die first?” Sanchez Dec. ¶ 17. Tesmond McDonald, who has COVID-19, recently

had such dangerously-low oxygen levels that “he thought he was going to die,” and faces the

prospect of going into critical condition without immediate transport to a hospital. McDonald Dec.

¶ ¶4–6.

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2. No one detained can protect themselves by leaving. Further, employees and
contractors who work in the Dallas County Jail are themselves at risk of contracting COVID-19
and spreading it to loved ones and the larger community outside. And the health care system in
Dallas County will be taxed beyond capacity by an outbreak originating in the Dallas County Jail
unless immediate steps are taken to get it under control. 3. We are in the midst of the most significant global pandemic in generations.1
COVID-19 is a highly contagious and deadly respiratory disease caused by a novel coronavirus
(SARS-CoV-2). No one is safe. The lethality rate of COVID-19 is estimated to be between one and six percent: several times more than the common flu that kills thousands a year.2 All age groups including some children have contracted the disease,3 and the World Health Organization estimates that one in five people who contract the disease require hospitalization.4 On March 13, 2020, the President declared a national state of emergency.5 As of April 7, 2020, confirmed cases of COVID-19 in the United States were more than double the number in any other country.6 On
the same day, Illinois, Louisiana, New Jersey, New York reported their highest daily death tolls
1 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).
2 As of April 7, 2020, there were 1,428,428 confirmed cases globally, with 82,020 deaths and 300,198 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; see also “Coronavirus disease 2019 (COVID-19)”, UpToDate, https://cutt.ly/GtJYSkj (as of April 4, 2020, estimated overall fatality rate of 2.3 percent globally).
3 Robert Verity, PhD., et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis, Lancet Infec Dis (March 30, 2020), 6.
4 World Health Organization, Q&A on Coronaviruses (COVID-19), “Should I Worry About COVID-19?,” https://cutt.ly/YtEyrxl.
5 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, (March 13, 2020), https://cutt.ly/EtJLZQZ.
6 Jennifer Calfas, Chong Koh Ping, and Drew Hinshaw, Global Coronavirus Death Toll Passes 81,000 as Some Lockdowns Tighten, The Wall Street Journal (Apr. 7, 2020), https://cutt.ly/ztJLM0q.
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from COVID-19.7 As of April 7, 2020, the Texas Health and Human Services reported 8,262
COVID-19 cases and 154 deaths from the disease state-wide,8 and Dallas County Health and
Human Services reported 1,261 COVID-19 cases with 19 deaths.9 The Dallas County Jail
accounted for 23—almost two percent—of the COVID-19 cases in Dallas County.10 On April 5,
2020, approximately 25 percent of all new confirmed COVID-19 cases in Dallas County were in
the Dallas County Jail.11
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.”12 Social distancing requires everyone to stay at least six feet away from all other
people to control the spread of the virus. This measure is particularly important because the virus
spreads aggressively, and people can infect others even if they do not feel sick or exhibit any
symptoms.13 The only effective way to curb the pandemic is through dramatically reducing contact
for all.14 Consequently, every American institution—from schools15 to places of worship,16 from
7 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.
8 Texas Health and Human Services, Texas Case Counts COVID-19, (Apr. 7, 2020), https://cutt.ly/rtJL7NJ. 9 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Summary at 1, (Apr. 7, 2020), https://cutt.ly/ztJZwXa. 10 Id. Table 4. 11 COVID-19 Live Updates, KERA News (quoting Director of Dallas County Health and Human Services on April 5, 2020 as saying “the jail has 24 cases, which includes 22 inmates and two detention officers,” presenting approximately 25% of all new cases in Dallas County that day), https://cutt.ly/itJSsiy. 12 World Health Organization, Coronavirus, https://cutt.ly/ztWyf7e (“At this time, there are no specific vaccines or treatments for COVID-19.”).”); Dawson v. Asher, 20-cv-409 (W.D. Wash.) at Doc. No. 4, Declaration of Dr. Robert B. Greifinger, MD, ¶ 8 (“Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19.”). 13 Center for Disease Control, How Coronavirus Spreads, https://cutt.ly/CtYRkkC. 14 Harry Stevens, Why Outbreaks Like Coronavirus Spread Exponentially, and how to “Flatten the Curve,” Wash. Post. (March 14, 2020), https://cutt.ly/etYRnkz. 15 Centers for Disease Control, Interim Guidance for Administrators of US K-12 Schools and Child Care Programs, https://cutt.ly/ItRPq5n. 16 Centers for Disease Control, 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.
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businesses17 to legislatures18—has been exhorted to reduce the number of people in close quarters, if not empty entirely. 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.19 These imperatives apply with special force to jails, where the government controls almost entirely a person’s ability to avoid others and to maintain adequate sanitation.
5. Yet jails have proven incapable of implementing many of these recommendations, and incarcerated people are exposed to this highly contagious and deadly virus as a result. For example, at the peak of the outbreak in Wuhan, China—the province where COVID-19 originated—over half of all reported COVID-19 cases were incarcerated people. On Rikers Island, the rate of infection among incarcerated people is over seven times the rate of infection in New York City generally, and 25 times higher than the rate in Wuhan, China.20
6. Despite the ubiquity of this guidance, the Texas Governor’s order requiring people to “minimize in-person contact with people who are not in the same household”,21 the stay at home order issued by the County Judge of Dallas County,22 and City of Dallas regulations implementing
17 Centers for Disease Control, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), https://cutt.ly/stRPvg4.
18 Nat’l Conf. of State Legislatures, Coronavirus and State Legislatures in the News, https://cutt.ly/4tRPQne.a 19 Centers for Disease Control, Cleaning and Disinfecting Your Facility, https://cutt.ly/atYE7F9. 20 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 March 30, 2020, 11:00 AM), https://cutt.ly/RtYTbWd. 21 Office of the Tex. Gov., Press Release: Governor Abbott Issues Executive Order Implementing Essential Services and Activities Protocols (March 31, 2020), https://cutt.ly/stJUKfc. 22 See Amended “Safer at Home” Order, (Apr. 6, 2020), https://cutt.ly/otJIl2m.
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the Texas and Dallas County orders,23 the Dallas County Jail has failed to provide these critical
safeguards. Known conditions in the Dallas County Jail include:
• a jump in a week’s time from five reported COVID-19 infections of detainees and Jail employees to almost 30 as of April 7, 2020,24
• a lack of COVID-19 testing for detainees at intake, during detention, or upon release,
• failure to begin “checking the temperatures of employees assigned to the jail” or asking detainees during the intake process “a set of preliminary questions recommended by Dallas County’s healthcare partners” until March 27, 2020,25
• a shortage of Jail employees to report for work;
• routine use by Jail employees of single-use disposable surgical masks for a week or more;
• failure to educate detainees about the virus and prevention methods;
• failure to institute appropriate social distancing practices, including in dorm bunk arrangements, waiting lines, staff gatherings, and meals;
• failure to segregate detainees with symptoms and illness from other detainees and guards;
• failure to provide staff with adequate personal protective equipment and to require the use and regular replacement of such equipment;
• failure to provide detainees with adequate PPE;
• failure to ensure sufficient stocks of hygiene and cleaning supplies and to provide detainees with no-cost access to these supplies.
23 See Shelter in Place: Stay Home Stay Safe, City of Dallas, https://cutt.ly/TtJIvcg. 24 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Table 4, (Apr. 7, 2020), https://cutt.ly/QtJZbmS; Editorial, COVID-19 spreads with close contact, so what do we do about those in jail?, The Dallas Morning News (Apr. 5, 2020), https://cutt.ly/8tJOi67 (“At the time of this writing, 20 inmates had tested positive for the virus, along with six detention officers and one deputy.”); Ashley Paredez, Confirmed COVID-19 cases at Dallas County Jail now up to 28, Fox 4 (April 4, 2020), https://cutt.ly/0tJSenr (“The number of coronavirus cases at the Dallas County jail has increased from five cases last week, to now a total of 28,” and “six [of those testing positive] are detention officers and two are clerks”); COVID-19 Live Updates, KERA News, supra note 11 (quoting Director of Dallas County Health and Human Services on April 5, 2020 as saying “the jail has 24 cases, which includes 22 inmates and two detention officers”). 25 Dallas County Sheriff’s Office, “COVID-19 Initiatives,” (March 27, 2020), https://cutt.ly/NtJO7zY.
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7. Jails are not hermetically sealed. By their nature, the people who enter jails—from correctional and medical staff, to those detained prior to trial, to those serving short sentences— typically come out in very short order. The failure of Dallas County Jail to prevent and mitigate the spread of COVID-19 endangers not only those within the institution, but the entire community. Hence, swift release of the most vulnerable to the disease and implementation of public health and education protocols in the jail, are is the only mitigation efforts that the Dallas County Jail can undertake to comport with public health guidance and to prevent a catastrophic outbreak at the facility.
8. Absent intervention from this Court to align the operation of the Dallas County Jail 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, jail staff, and the community.26 The outbreaks in detention facilities around the country, many with more resources, space, and sophisticated health delivery systems than the Dallas County Jail,27 prove the need for immediate and significant reductions in population. Case-by-case review is no match for exponential spread of the disease. Courts and executive branch officials elsewhere in the country have accepted this reality and begun broad-based, categorical releases from jails and prisons.28
26 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, (March 14, 2020 7:00 a.m.), https://cutt.ly/stYTDDk.
27 Sam Kelly, 134 inmates at Cook County Jail confirmed positive for COVID-19, CHICAGO SUN-TIMES (Mar. 30, 2020). https://cutt.ly/6tYTqi5.
28 See, e.g., Memorandum and Order, Thakker v. Doll, No. 20-CV-0480 (M.D. Pa. Mar. 31, 2020) (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), https://cutt.ly/mtYTyxd.
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9. Accordingly, Petitioners/Plaintiffs (hereinafter “Plaintiffs”)—classes of persons

incarcerated at the Dallas County Jail—bring this action and request immediate release of all

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

COVID-19, there is no time to spare.

I.

JURISDICTION AND VENUE

10. Plaintiffs bring this putative class action pursuant to 28 U.S.C. § 2241 and 42

U.S.C. § 1983 for relief from detention that violate their Eighth and Fourteenth Amendment rights

under the U.S. Constitution.

11. 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), and Article I, § 9, cl. 2 of the U.S.

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

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

because the Plaintiffs 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 Plaintiffs’ claims occurred in this district.

II.

PARTIES

13. Plaintiff Oscar Sanchez is detained in the Dallas County Lew Sterrett Jail West

Tower. He is a 28-year-old man. He has a history of severe chronic asthma, and has begun to show

symptoms that are consistent with COVID-19, and therefore may require immediate medical

attention. He has been incarcerated since March 10, 2020 and is being held pretrial on multiple

charges, some of which are indicted, some of which are not. His cases are not currently set for

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trial. His next court date is April 28, 2020 for an announcement setting. He is presumptively innocent of all charges.
14. Plaintiff Marcus White is a 37-year-old man who booked into the Dallas County Jail on November 27, 2019 and is held on $111,000 bond for multiple charges, mostly drug-related. He suffers from hypertension, for which he takes medication in the jail, as well as a serious seizure disorder for which he has not received his medication in the jail. Mr. White contracted and tested positive for COVID-19 in the jail and is being held on the 9th floor of the Dallas County Lew Sterrett West Tower Jail. He is presumptively innocent of all charges.
15. Plaintiff Tesmond McDonald is a 32-year-old man with asthma and high blood pressure who is being held (since September 27, 2019) in the Dallas County Jail, currently in the Lew Sterrett West Tower Jail 9th floor. He is being held pretrial for three Dallas County charges of aggravated robbery, possession with intent to deliver drugs, and evading arrest. Mr. McDonald contracted COVID-19 inside the jail, and learned on April 3 that he tested positive for the virus. His condition is very serious and he may require immediate medical attention. He is presumptively innocent of all charges.
16. Plaintiff Marcelo Perez is a 43-year-old man who has been held in the Dallas County Jail since January 7, 2020 on an allegation that he violated probation by committing a new drug offense. Mr. Perez is medically vulnerable in that he has hypertension and diabetes. He has been denied the ability to maintain social distancing, proper hygiene, and he is exposed continuously to people who show symptoms consistent with COVID-19.
17. Plaintiff Roger Morrison is a 49-year-old man, medically vulnerable to COVID-19 because of his pre-existing conditions of high blood pressure, hepatitis C, and cirrhosis of the liver among other issues. He was booked in on March 9, 2020 and is being held on drug possession and
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evading arrest charges in the Dallas County Jail South (Kays) Tower C3 medical pod. He has been unable to protect himself within the jail from exposure to other inmates and guards who have potentially been exposed to COVID-19. He has begun to exhibit flu-like symptoms.
18. Plaintiff Keith Baker is a 25-year-old man. He booked in on March 7, 2020 on an unindicted allegation of aggravated assault, as well as some misdemeanor offenses. He is currently detained in the Dallas County Lew Sterrett Jail West Tower, 9th floor. He has severe asthma and is being held adjacent to three people who have tested positive for COVID-19. Mr. Baker has developed symptoms consistent with COVID-19, but has not been tested for the virus. He is presumptively innocent of all charges.
19. Plaintiff Paul Wright is a 48-year old man who is being held in the Dallas County Jail South (Kays) Tower 3rd floor. He booked in on February 21,2020 and is being held awaiting transport to the Texas Department of Criminal Justice to serve the remainder of a two-year sentence for felony assault, a sentence for which he has backtime credit for 14 months. He has hepatitis C and has been unable to protect himself within the jail from exposure to other inmates and guards who have potentially been exposed to COVID-19.
20. Plaintiff Terry McNickles is a 58-year-old man being held in the Dallas County Jail South (Kays) Tower on a parole violation. He was booked into the jail on March 16, 2020. He was taken to a parole hearing, but the hearing was cancelled because of the pandemic, and he was not told when he might have a chance to have a new hearing date. Mr. McNickles is medically vulnerable because he had a kidney removed last year due to cancer. He has been unable to protect himself within the jail from exposure to other inmates and guards who have potentially been exposed to COVID-19.
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21. Plaintiff Jose Munoz is a 37-year-old man, detained in the Dallas County Jail South

(Suzanne Kays) Tower 3rd floor. He has been held since October 4, 2019. He is currently on

probation for drug possession but is awaiting transportation to a drug treatment facility in Wilmer,

Texas which was ordered as a condition of his probation. Because of the COVID-19 pandemic,

however, the facility is not taking new patients, so his wait in jail is indefinite. He has been unable

to protect himself from exposure to the COVID-19 virus through social distancing or protective

measures of any kind.

22. The Dallas County Sheriff, Marian Brown (“Sheriff Brown”), is a Dallas County

official, the head of the Dallas County Sheriff’s Department, and the administrator of the Dallas

County Jail. Sheriff Brown is the final policymaker for running and administering the jail in Dallas

County. Sheriff Brown is sued in her official capacity.

23. Dallas County, Texas (“Dallas County”) is a municipal corporation organized

under the laws of the State of Texas. Dallas County controls and operates the Jail, through Sheriff

Brown. Dallas County currently has immediate custody over Plaintiffs Sanchez, White,

McDonald, Perez, Morrison, Baker, Wright, McNickles, and Munoz and all other putative class

members. Among others, Sheriff Brown is a final policymaker for Dallas County.

III.

NOTICE OF RELATED CASE

24. Per Rule 3.3(b)(iii) of the Local Civil Rules of the U.S. District Court for the

Northern District of Texas, Plaintiff provide notice that this case arguably arises from a common

nucleus of operative fact with, and therefore may be a “related case” to, Daves v. Dallas County,

No. 3:18-cv-00154-N, pending before U.S. District Judge David Godbey.

IV.

FACTUAL ALLEGATIONS

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COVID-19 Poses a Significant Risk of Illness, Injury, or Death. 25. The novel coronavirus that causes COVID-19, has led to a global pandemic.29 As of April 8, 2020, there were more than 1.45 million reported COVID-19 cases throughout the world and more than 12,900 deaths in the United States.30 Projections indicate that as many as 240,000 people in the U.S. will die from COVID-19, accounting for existing interventions.31 26. COVID-19 is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.32 There is no vaccine against COVID-19, and there is no known medication to prevent or treat infection.33 Social distancing—deliberately keeping at least six feet of space between persons to avoid spreading illness34—and 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-19.35 Because the coronavirus spreads among people who do not show symptoms, maintaining a six foot distance from others is the best way to prevent contraction. In other words, everyone including officials at the Dallas County Jail has to act as is if everyone has the disease.
29 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, WALL ST. J. (Mar. 11, 2020, 11:59 PM), https://cutt.ly/UtEuSLC.
30 Johns Hopkins University COVID-19 Data Center, (Apr. 8, 2020), https://coronavirus.jhu.edu/. 31 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. 32 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. 33 Supra note 12. 34 Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine, https://cutt.ly/VtYYiDG. 35 Declaration of Dr. Robert L. Cohen, MD, In Support of Petitioners’ Motion for a Temporary Restraining Order and Preliminary Injunction, ¶ 9.
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27. 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, such as the heart and liver.36
28. People over the age of 50 face a greater risk of serious illness or death from COVID19.37 In a February 29, 2020 preliminary report, individuals age 50-59 had an overall mortality
rate of 1.3 percent; 60-69-year-olds had an overall 3.6 percent mortality rate, and those 70-79 years old had an 8 percent mortality rate.38
29. People of any age who suffer from certain underlying medical conditions, including
lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis
patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer,
HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma, also have an elevated risk.39 Early reports
estimate that the mortality rate for those with cardiovascular disease was 13.2 percent, 9.2 percent
for diabetes, 8.4 percent for hypertension, 8.0 percent for chronic respiratory disease, and 7.6 percent for cancer.40
36 Centers for Disease Control, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl
37 Xianxian Zhao, et al., Incidence, clinical characteristics and prognostic factor of patients with COVID-19: a systematic review and meta-analysis (March 20, 2020), https://cutt.ly/etRAkmt.
38 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ (data analysis based on WHOChina Joint Mission Report).
39 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.”).
40 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization
(Feb. 28, 2020), at 12, https://cutt.ly/xtEokCt (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”).
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30. 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.41 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.42 This level of care is not available in the Dallas County Jail.
31. 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 percent mortality rate.43 Even in non-ARDS cases, COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, cause permanent loss of breathing capacity.44 COVID-19 may also target the heart, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can reduce the heart’s ability to pump.45 This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work.
32. COVID-19 can also trigger an over-response of the immune system and result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury.46
41 Zhao, supra note 36. 42 Dawson, 20-cv-409 (W.D. Wash.) at Doc. No. 5, Declaration of Dr. Jonathan Louis Golob ¶ 6. 43 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. 44 Golob Dec., supra note 4235 at ¶ 7. 45 Id. 46 Id.
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33. 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
34. 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
35. 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 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 For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent.51
36. Patients who do not die from serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage, loss of digits, and loss of respiratory capacity.52
Persons Incarcerated in the Dallas County Jail Face Grave and Immediate Danger Due to COVID-19. 37. Beyond the general public health presented by the COVID-19 pandemic, persons incarcerated at the Dallas County Jail face a particularly acute threat of illness, permanent injury, and death.
47 CDC, Interim Clinical Guidance, supra note 36. 48 Golob Dec., supra note 42 at ¶ 5. 49 Id. at ¶ 4. 50 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM), https://cutt.ly/itEmi8j. 51 Golob Dec., supra note 42 at ¶ 4. 52 Id.
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38. As of April 7, 2020, there are 8,262 confirmed COVID-19 cases in Texas,53 with 1,261 of them in Dallas County.54 To date, there have been 154 confirmed deaths from COVID19 in Texas,55 with 19 in Dallas County.56 While there are more than 20 documented COVID-19 detainee cases and six detention officers from the Dallas County Jail, the true number is much likely higher given the limited and inadequate testing at the facility. See supra fn 24 (describing known reports of confirmed cases); White Dec. ¶ 2 (Plaintiff White describing how he was denied testing until more than 10 days after his presentation of symptoms, despite his close proximity to other detainees).
39. State and local officials have recognized the emergency situation posed by COVID19 in Texas and Dallas County. On March 31, 2020, Texas Governor Greg Abbott issued an order requiring people to “minimize in-person contact with people who are not in the same household”.57 Nine days earlier, County Judge Clay Jenkins ordered people in Dallas County to stay at home.58 The City of Dallas has promulgated regulations implementing the Texas and Dallas County orders.59
40. People in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already evidenced by
53 Texas Case Counts COVID-19, supra note 8. 54 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Summary at 1, (Apr. 7, 2020), https://cutt.ly/xtJXUH8. 55 Texas Case Counts COVID-19, supra note 8. 56 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Summary, supra note 54 at 1. 57 Tex. Gov. Abbott Executive Order Announcement, supra note 21. 58 “Safer at Home” Order, supra note 22. 59 See City of Dallas, Shelter in Place, supra note 23.
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the rapid spread of the virus in cruise ships60 and nursing homes.61 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. This is demonstrated by dramatic outbreaks in the Cook County Jail62 in Chicago and Rikers Island in New York City, where the transmission rate for COVID-19 is estimated to be the highest in the world.63 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.64
41. Epidemiologists65 caution that the spread of COVID-19 in a jail setting will be more rapid and more catastrophic than in the general population, and further, will contribute to worse outcomes for the broader population, as illustrated in the following graphs:
60 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.
61 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.
62 See supra note 27. 63 Supra note 20 64 How Coronavirus Spreads, Centers for Disease Control and Prevention, https://cutt.ly/jtEE9vG. 65 See Declaration of Eric Lofgren in Support of Petitioners’ Motion for a Temporary Restraining Order and Preliminary Injunction.
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42. 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.66
43. As the below chart illustrates, health conditions that make COVID-19 particularly dangerous are more prevalent in the incarcerated population than in the general public.67
66 Letter from Johns Hopkins Faculty, supra note 43; Velesaca v. Decker, 20-cv-1803 (S.D.N.Y.) at Doc. No. 42 (March 16, 2020) (Declaration of Dr. Jaimie Meyer) (noting, inter alia, that jails environments have reduced prevention opportunities, increased susceptibility, and are often poorly equipped to diagnose and manage outbreaks of infection disease).
67 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://cutt.ly/7tJXmlC.
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44. Correctional facilities house large groups of people together, and move people in groups to eat, recreate, and go to court.68 They frequently have insufficient medical care for the population even outside times of crisis.69 Hot water, soap, and paper towels are often in limited supply. Incarcerated people, rather than professional cleaners, are responsible for cleaning the facilities70 and often are not given appropriate supplies.
45. Outbreaks of tuberculosis and the flu regularly occur in jails, including during the H1N1 epidemic in 2009 in which jails and prisons dealt with a disproportionately high number of cases.71
68 See, e.g, Nathalie Baptiste, Correctional Facilities are the Perfect Incubators for the Coronavirus, (March 6, 2020), https://cutt.ly/GtRSi3e.
69 See, e.g., Steve Coll, the Jail Health-Care Crisis, The New Yorker (Feb. 25, 2019), https://cutt.ly/ftERHNg. 70 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, https://cutt.ly/jtERCbb (noting that cleaning the grounds and facilities is one of the jobs of incarcerated persons in North Carolina). 71 Declaration of Robert L. Cohen, M.D. (Cohen Dec.) ¶¶ 4–5. 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 (Feb. 15, 2010), https://cutt.ly/ytRSkuX.
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46. Numerous public health experts, including Dr. Gregg Gonsalves,72 Ross
MacDonald,73 Dr. Marc Stern,74 Dr. Oluwadamilola T. Oladeru and Adam Beckman,75 Dr. Anne
Spaulding,76 Homer Venters,77 Jaimie Meyer,78 the faculty at Johns Hopkins schools of nursing,
medicine, and public health,79 and Josiah Rich80 have all strongly cautioned that people booked
into and held in jails are likely to face serious, even grave, harm due to the outbreak of
COVID-19.
47. Because of the extraordinary danger that COVID-19 will spread in jails and prisons,
the Centers for Disease Control and Prevention (“CDC”) have issued specific guidance for dealing
with correctional and detention facilities, including local jails.81 The guidance was published on
March 23, 2020. It acknowledges that incarcerated people are forced to exist “within congregate
environments” that “heighten[] the potential for COVID-19 to spread once introduced,” especially
given that “[t]here are many opportunities for COVID-19 to be introduced into a correctional or
detention facility,” including “daily staff ingress and egress” as well as “high turnover” of
“admit[ted] new entrants.” In light of these concerns, the guidance recommends that detention
72 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror (March 11, 2020), https://cutt.ly/BtRSxCF.
73Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (March 19, 2020), https://cutt.ly/ptRSnVo.
74 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.
75 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, (March 10, 2020), https://cutt.ly/QtRSYNA.
76 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (March 9, 2020).
77 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (March 12, 2020), https://cutt.ly/jtRSPnk.
78 Meyer Dec., supra note 66. 79 See, supra note 43. 80 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. 81 Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), https://cutt.ly/atJPt5B.
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facilities “explore strategies to prevent over-crowding of correctional and detention facilities
during a community outbreak.” The guidance further recommends that the correctional facilities:
a. Post signage throughout the facility communicating COVID-19 symptoms and hand hygiene instructions, ensure such signage is understandable for non-English speaking people as well as those with low literacy, and provide clear information about the presence of COVID-19 cases within a facility and the need to increase social distancing and maintain hygiene precautions;
b. Ensure sufficient stocks of hygiene and cleaning supplies, including tissues; liquid soap where possible; hand drying supplies; alcohol-based hand sanitizer; cleaning supplies effective against the coronavirus; and recommended personal protective equipment like face masks, disposable medical gloves, and N95 respirators;
c. Provide incarcerated people no-cost access to soap (providing liquid soap where possible), running water, hand drying machines or disposable paper towels for hand washing, and tissues (providing no-touch trash receptacles for disposal);
d. Consider relaxing restrictions on allowing alcohol-based hand sanitizer where security concerns allow;
e. Provide a no-cost supply of soap sufficient to allow frequent hand washing, providing liquid soap where possible;
f. Suspend co-pays for incarcerated people seeking medical evaluation for respiratory symptoms;
g. Even if COVID-19 cases have not been identified locally or inside, implement “intensified cleaning and disinfecting procedures” that clean and disinfect high-touch surfaces and objects “[s]everal times per day,” and ensure adequate supplies to support intensified cleaning and disinfection practices”;
h. Perform pre-intake screening and temperature checks for all new entrants;
i. Adopt social distancing strategies to increase space between individuals, including rearranging bunking to ensure that beds are at a minimum six feet apart in all directions, increasing space in lines and waiting areas, staggering meals and rearranging seating during meals so that detainees are sitting on only one side of the table and are separated with adequate space;
j. Medically isolate confirmed and suspected cases and quarantine of contacts.
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48. Despite the fact that the CDC Guidelines have been available for weeks, the Dallas County Jail has not complied with the majority of these guidelines.
49. The Dallas County Jail has wholly failed to implement protective social distancing policies among detainees or staff. Many of the detainees sleep in shared bunk dorm “pods” with up to 64 beds. Sanchez Dec. ¶ 2 (all pods in the South Tower have 64 beds in a common room); Perez Dec. ¶ 3; McNickles Dec. ¶ 1. Even though the bunks are only between 1 and 4 feet apart, far closer than the recommended six or more feet, the shared bunk rooms have been almost full to capacity with between 48 and 60 men at any given time in the last few weeks in a single common dorm. Wright Dec. ¶ 6; Morrison Dec., ¶ 4, Munoz Dec., ¶ 8; Perez Dec. ¶ 3; Sanchez Dec. ¶. 2; McKnickles Dec. ¶¶ 1. 5. Neither the detainees nor the staff practice social distancing. Sanchez Dec. ¶ 7; McKnickles Dec. ¶ 4.
50. Social distancing is not possible during sleep, meals, or during distribution of medications under the current conditions. During meals the tables are crowded and the detainees sit so close that they are touching the persons seated next to them. Dec. Sanchez ¶ 9. The men line up for meals, commissary, clothing, and medication in close proximity, no more than one foot apart. Sanchez Dec. ¶ 10. The detention officers are also not practicing social distancing. McKnickles Dec. ¶ 4. They gather in groups, and on at least one occasion, a group of guards ate from a common bag of chips. Perez Dec.¶ 7.
51. The Dallas County Jail has neither implemented adequate testing nor adopted adequate procedures to isolate confirmed and suspected cases. Testing has been delayed or denied, even to detainees with symptoms. See White Dec. ¶ 2 (despite presenting with symptoms including coughing, congestion and body aches on March 21st, Plaintiff White was not moved from a group dorm until four days later, and COVID-19 testing was not offered until more than 10 days later,
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on April 2); Perez Dec. ¶ 3 (he has not been tested despite developing cough, and reporting other men in his pod who were coughing for weeks to the nurse, but no evaluation offered to them); Wright Dec. ¶ 4 (no one in his dorm has been tested for the virus). Men with symptoms are frequently denied medical treatment. Id.; McDonald Dec. ¶ 3 (jail staff denied Plaintiff McDonald’s request for evaluation and treatment when he experienced breathing problems even though he has severe asthma); Baker Dec. ¶ 2 (medical attention withheld for five hours to Plaintiff Baker during a severe asthma attack). Named plaintiff McDonald, who has tested positive for COVID-19 and has significant underlying medical conditions, has been denied basic hydration. McDonald Dec. at ¶ 7.
52. Detainees who tested positive remained in group dorms next to detainees who did not have symptoms and who had not been tested. See Baker Dec. ¶ 4 (describing Plaintiff Baker’s repeated requests to be moved when held next to individuals with confirmed cases of the virus). Even when the Dallas County Jail officials determined that positive cases required movement of exposed detainees, they transferred the individuals who had been exposed in closed proximity with persons with confirmed cases to different dorms without any testing. See Sanchez Dec. ¶ 3 (describing his transfer to from the dorm with a number of confirmed cases to a new dorm without testing); Baker Dec. ¶¶ 4-5 (describing being transferred to a new cell, connected to two other cells, after being in proximity with the confirmed cases and not receiving testing despite the fact that he had a sore throat and cough).
53. The Dallas County Jail has further failed to provide basic information about virus prevention recommended by the CDC to all detainees. Some of the plaintiffs have been left to try to discover how to protect themselves from intermittently available news coverage. See White Dec. ¶ 4 (“The jail staff never told Mr. White about how to avoid spreading the virus…he
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learned on the news that the virus is airborne and can stay on surfaces for several days. Mr. White no longer has access to the news); Morrison Dec. ¶ 3 (“The staff have not told [him] about COVID19. He knows he is high risk, but does not know how to prevent himself from getting the virus.”); Wright Dec. ¶ 9 (reporting that the jail staff have not provided information about the virus or how to prevent its spread).
54. Contrary to the CDC’s guidelines, the Dallas County Jail has failed to provide staff with adequate PPE and to require the use and regular replacement of such equipment. Most guards do not wear masks See Perez ¶7 (“Mr. Perez has seen only one out of every six guards wearing masks.”). Some guards even enter pods holding people known to have tested positive for COVID19 without any PPE. Wright ¶ 3. When guards do use PPE, they often do not follow the proper public health guidance required for the mask to be effective. See Baker ¶ 9 (“The staff in the West Tower wear masks, but they do not change them out between interactions with detainees who have the virus and those who don’t have the virus.”); Sanchez ¶ 5 (“The guards that wear facemasks do not change their masks when they go from dorm to dorm.”).
55. Detainees are generally denied access to any PPE, even upon request. See Perez ¶6 (“When Mr. Perez asked for a mask, he was told that the jail staff have to buy their own masks, so they would not give him one.”); Sanchez ¶ 5 (“When Mr. Sanchez asked guards for a facemask, he was told the only people that need masks are the guards.”); McKnickles ¶ 7 (“He also asked for face masks. The jail staff haven’t. . . given him any personal protective gear.”). See also, Morrison ¶5; Munoz ¶ 3; White ¶ 3. Those that are denied staff masks are also prevented from creating their own from materials they have access it in their cells. Perez ¶ 6 (“Some detainees tried wrapping bath towels around their heads to cover their faces, but the jail staff told them they were not allowed to do that.”). When detainees are given masks, they are expected to wear the same mask for the
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remaining period of their detention, regardless of how long. Baker ¶9 (““Mr. Baker was provided with a mask only after he asked for one. He has had to use the same one repeatedly because he was not given replacements.”). Most egregiously, when a detainee is removed from a pod because he is sick, the guards require his cellmates to collect the sick man’s belongings and clean his bunk without first providing them with any personal protective gear. Sanchez Dec. ¶ 3; Perez Dec. ¶ 9.
56. The Dallas County Jail has also fallen far short of ensuring sufficient stocks of hygiene and cleaning supplies or providing detainees with no-cost access to these supplies. Wright Dec. ¶8. (“Sometimes the guards just don’t have the soap and other cleaning agents.”) Some detainees are given 3-4 single use bars of soap once a week that don’t last one day. McDonald ¶ 11. Others are not given any soap at all. White ¶ 6. The only way to obtain additional soap is to purchase it through commissary, which is either irregularly available or shut down completely, depending on the Tower. McDonald ¶ 11; Baker ¶ 6; Sanchez 11. See Munoz ¶ 6, “Mr. Munoz requested soap today and was told that the detainees were using excessive soap. He did not want to argue with the guards, so he did not receive any soap.” As a result, detainees and the cells in which they are forced to live are anything but clean. See Morrison ¶ 6 (“The pod is filthy”); McDonald ¶ 10 (“The walls in his cell are so dirty that he is afraid to touch them.”). While some pods have access to shower daily, detainees in pods holding people who have either tested positive for COVID-19 or are suspected of exposure to COVID-19 have been denied showers for up to ten days in a row. Baker par 8. White ¶ 8. Sick detainees are therefore forced to either “take a bird bath in the sink” or forego bathing altogether. When they are finally allowed to take a shower, the water is cold. Baker ¶ 8.
57. The Dallas County Jail has failed to enforce adequate policies for disinfecting surfaces to prevent the spread of the virus. First, large numbers of detainees share a small number
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of phones, yet the phones are not regularly cleaned. Sanchez p7 (“All 60 men in both A and E pods share 8 phones, none of which are disinfected between use.”) Additionally, detainees themselves are responsible for cleaning the pods, including the toilets and showers. Volunteers are rewarded with larger portions of food regardless of the quality of their work. Because the jail has not adequately informed detainees about the virus and how to prevent its spread, cleaning volunteering often do an insufficient job which goes unchecked. Sanchez par 8. (“Mr. Sanchez started volunteering because his bunk is 3 feet from the toilets and the other volunteers usually do not clean properly.”).
58. The Dallas County Jail has denied detainees with adequate nutrition during the pandemic. Detainees on the 9th floor of West Tower, which holds both people who have been tested positive for COVID-19 and people who have not been tested, endure especially cruel conditions. Guard distribute meals to people on the 9th floor by “smashing the food and shoving it in the crack between the door and the ground.” Baker ¶7. Much of the food becomes inedible. As a result, some detainees have lost a significant amount of weight in a short period of time. Baker ¶7.
Existing Procedures and Protocols Will Not Be Sufficient to Ensure the Safety of Class Members or the General Public. 59. 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 from custody of people most vulnerable to COVID-19.82 Release protects the people with the
82 See Cohen Dec. at ¶¶ 30 – 31 (“Considerable downsizing is needed—less urgent action will not be sufficient.”; Meyer Dec., supra note 66 at ¶¶ 37–38 (noting that population reduction in jails will be “crucially important to reducing the level of risk both for those within [jail] facilities and for the community at large,” and that stemming the flow of intakes is a part of the necessary intervention); Greifinger Dec., supra note 12 at ¶ 13 (“In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.”); Dawson,
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greatest vulnerability to COVID-19 from transmission of the virus, and it also allows for greater
risk mitigation for people held or working in a jail and the broader community.83 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.
60. Jail administrators in Cuyahoga County, Ohio84; Los Angeles, California85; San
Francisco, California86; Jefferson County, Colorado87; Montgomery, Alabama88; and the State of
New Jersey,89 among others, have concluded that widespread jail release is a necessary and
appropriate public health intervention. New bookings into jails also must be reduced, as recognized
by statewide action in California directing judges to set bail at $0 in a wide range of cases.90
61. Notwithstanding efforts by the Dallas Sheriff’s Office to detect obvious symptoms
of COVID-19 infection and release some detainees, immediate release of medically vulnerable
Plaintiffs remains a necessary public health intervention.91 Release of the Medically-Vulnerable
20-cv-409 (W.D. Wash.) at Doc. No. 6, Declaration of Marc Stern at ¶¶ 9–10 (noting that release is “a critically important way to meaningfully mitigate” the risks of harm to persons who are at high risk of serious illness or death, as well as to support the broader community health infrastructure).
83 Id. 84 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. 85 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. 86 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. 87 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. 88 See In Re: Covid-19 Pandemic Emergency Response, Administrative Order No. 4, Montgomery County Circuit Court (March 17, 2020). 89 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. 90 Maura Dolan, In Uncharted Territory, California Court Leaders OK Urgent New Rules for Coronavirus, Los Angeles Times (April 6, 2020, 6:50 p.m.), https://cutt.ly/atJVHcI. 91 See Public Health Expert Declarations, supra note 82.
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Subclass Members is necessary both to prevent significant harm, but also to facilitate the social distancing needed to reduce transmission for all proposed Class Members and the wider public.92
62. The Dallas County Jail cannot handle the rapidly growing COVID-19 outbreak there, and thus the relief Plaintiffs seek is necessary to forestall the exponential spread of COVID19 from the Jail to the community at large. With more than 5,000 detainees in the North, South, and West Towers of the Lew Sterrett Justice Center, dozens of employees failing to report for work, the delay in starting to screen employees and detainees for COVID-19 until March 27, 2020, the general unavailability of COVID-19 test kits for detainees and employees, the shortage of N95 masks and other personal protective equipment (PPE) even for employees much less for detainees, the routine mingling of large groups of detainees (50 or more) within dozens of pods, and the impossibility of implementing social/physical distancing for detainees and employees, the Dallas County Jail has failed to protect the present population of detainees, employees, and the larger community against the racing spread of COVID-19.
63. Nor are the medical resources in Dallas County remotely adequate to deal with the looming repercussions of the outbreak in the Dallas County Jail. On April 5, 2020, the City of Dallas disclosed that 19 hospitals reported 772 intensive care unit (ICU) beds with 462 occupied and 865 ventilators with 302 in use.93 Between March 10, 2020 and April 6, 2020, 383 Dallas patients with COVID-19 have been hospitalized (30 percent of all COVID-19 cases), with 119 in ICUs and 72 on ventilators (19 percent of all COVID-19 cases).94 If the number of serious COVID-
92 Id. 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).
93 Fox 4, Dallas Hospitals Report having more than 2,000 beds, 563 ventilators available (Apr. 5, 2020) https://cutt.ly/ztJVCs1.
94 Dallas County Health and Human Services 2019 Novel Coronavirus (COVID-19) Summary, supra note 54 at Table 5.
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19 cases in Dallas County grows at a rate similar to the rate of increase since March 10, the number of ICU beds and ventilators available in the community will be grossly inadequate, and there will be no time to adjust to the emergency.95 The outbreak in the Dallas County Jail could easily overwhelm the scarce supply of ICU beds and ventilators for the entire Dallas community.
64. Further, the Dallas County Jail must respond to and manage the continued risk of harm posed by the COVID-19 outbreak by following CDC96 and other public health guidelines. This requires: (a) providing all incarcerated persons a six-foot radius (113 ft2) or more of distance between any other persons, as well as during meals, transportation, court sessions, recreation, counts, and all other activities; (b) instituting a safety plan to prevent a further COVID-19 outbreak in the Dallas County Jail in accordance with CDC guidelines; (c) making readily available access to sanitation solutions, without charge, for the purposes of cleaning cell, dormitory, laundry, and eating areas, including sufficient soap, and lifting any ban on alcohol-based hygiene supplies (e.g. hand sanitizer, cleaning wipes); (d) providing COVID-19 testing for all class members, jail staff, and visitors; (e) providing those incarcerated with personal protective equipment, including face masks; (f) providing persons incarcerated with updated information about COVID-19 and daily population statistics with respect to the jail itself; (g) ensuring sufficient access to quarantine and medical isolation space, while still providing adequate hygiene and basic necessities; (h) waiving all medical co-pays for those experiencing COVID-19 like symptoms; and (i) waiving all charges for medical grievances during the COVID-19 outbreak. Cohen Dec. ¶¶ 30–46.
95 This has occurred in other places with widespread outbreaks already. New York State is currently depending on 1,100 ventilators donated from Oregon State and China. Colin Dwyer, “This is a Big Deal: New York Hails Ventilator Deliveries from China and Oregon, N.Y. Times, (April 4, 2020), https://cutt.ly/jtJTmT4. New York City is asking veterinarians to donate ventilators. Miranda Bryant, New York Veterinarians Give Ventilators to ‘War Efforts’ Against Coronavirus, The Guardian, (Apr. 2, 2020), https://cutt.ly/utJTTQG.
96 Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), https://cutt.ly/atJPt5B.
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V.

CLASS ACTION ALLEGATIONS

65. Plaintiffs 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.

66. Plaintiffs Oscar Sanchez, Marcus White, Keith Baker, and Tesmond McDonald

seek to represent a class of all current and future detainees in pretrial custody, including alleged

violations of probation or parole, at the Jail (“Pre-Adjudication Class”), including a subclass of all

persons who, by reason of age or medical condition, the CDC has identified as particularly

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

Adjudication Subclass”). Plaintiffs Sanchez, Baker, and McDonald are also representatives and

members of this Medically-Vulnerable Pre-Adjudication Subclass.

67. Plaintiffs Marcelo Perez, Paul Wright, Jose Munoz, Roger Morrison, Terry

McNickles seek to represent a class of all current and future detainees in post-adjudication custody,

including those serving a term of incarceration pursuant to an adjudicated violation of probation

or parole, at the Jail (“Post-Adjudication 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 Post-Adjudication Subclass”). Plaintiffs Perez, Wright,

Morrison, and McNickles are also representatives and members of this Medically-Vulnerable Post-

Adjudication Subclass.

68. The “Medically-Vulnerable” subclasses are defined as all current and future

persons held at the Dallas County Jail over the age of 50, as well as all current and future persons

held at the Dallas County Jail 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 29

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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 (within the last two weeks) pregnancy.
69. 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).
70. Joinder is impracticable because (1) the classes and subclasses are numerous; (2) the classes and subclasses include future members, and (3) the classes and subclass members are incarcerated, rendering their ability to institute individual lawsuits limited.
71. Based on available information, there are at least 40 people in the proposed PreAdjudication Class, the proposed Post-Adjudication Class, and each proposed subclass. Everyone in the Dallas County Jail is a proposed class members. The April 6, 2020 daily population report for the Dallas County Jail listed 5,180 total persons, of which nearly 200 people were in custody for pending misdemeanor charges, over 1,000 for pending felony charges, 255 people for parole violation holds, and over 500 serving various sentences.97
72. Common questions of law and fact exist as to all members of the proposed classes: all are at unreasonable risk of serious harm from contracting COVID-19 due to the conditions in the Dallas County Jail and Defendants’ failure to take reasonable measures to assure their safety from the disease, and all have a right to receive adequate COVID-19 prevention, testing, and
97 Dallas County Criminal Justice Management Committee Information Statistics (April 6, 2020). The “serving various sentences” figure is based on an approximation including the categories with a Texas Dep’t of Corrections designation, “sentenced SJF,” “serving in county jail,” and/or “serving county fines and fees.”
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treatment. Questions of fact common to all proposed class members include whether the conditions in the Dallas County Jail expose them to heightened risk of contracting COVID-19, and questions common to all members of the subclass include whether the conditions in the Dallas County Jail expose them to heightened risk of serious illness, injury, or death. Questions of law common to all proposed class and subclass members include what relief is necessary to mitigate the risks posed by their confinement in the Dallas County Jail.
73. Plaintiffs’ claims are typical of the class and the subclass members’ claims. Defendants have placed them at significant risk of harm by failing to take appropriate steps to address the risk of contracting, and being rendered seriously ill or injured by, COVID-19 in the Dallas County Jail. Plaintiffs, like every person in the Jail, face heightened risk of contracting COVID-19 if they are not adequately protected by Defendants.
74. Named Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class. Plaintiffs have no interests adverse to the interests of the proposed class. Plaintiffs retained pro bono counsel with experience and success in the prosecution of civil rights litigation. Counsel for Plaintiffs know of no conflicts among proposed class members or between counsel and proposed class members.
75. Defendants have acted on grounds generally applicable to all proposed class members, and this action seeks declaratory and injunctive relief. Plaintiffs therefore seek class certification under Rule 23(b)(2).
76. In the alternative, the requirements of Rule 23(b)(1) are satisfied, because prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of contact for the party opposing the proposed classes.
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VI.

ARGUMENT

Plaintiffs’ Incarceration Amidst the Current COVID-19 Outbreak in the Dallas County Jail Violates their Right to Constitutional Conditions of Confinement.
77. Corrections officials have a constitutional obligation to provide for detainees’

reasonable safety and to address their serious medical needs. 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 received adequate food, clothing, shelter,

and medical care, and must take reasonable reassures to guarantee the safety of the inmates[.]” Id.

at 832 (internal quotation marks omitted).98 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, 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).

78. This obligation requires corrections officials to protect detainees 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

98 Plaintiffs and Class Members are both pretrial and post-conviction detainees. The Fourteenth Amendment’s Due Process Clause governs conditions-of-confinement claims like these for pretrial detainees, while the Eighth Amendment governs post-conviction detainees. While it is clear that pretrial detainees are presumed innocent and therefore merit greater protection, see Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979), the distinction is irrelevant here: the harms of actual and potential COVID-19 contraction alleged herein clearly satisfy the Eighth Amendment’s more restrictive standard.
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[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.”).
79. Jail 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 (holding that a prisoner “states a cause of action . . . by alleging that [corrections officials] have, with deliberate indifference, exposed him to conditions that pose an unreasonable risk of serious damage to future health”) (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)).
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80. Here, COVID-19 is “sure or very likely to cause serious illness,” and even waiting until “next week” to attempt mitigation efforts within the jail will be too long. See supra Part IV. The harmful “condition of confinement” is confinement itself. Moreover, jail officials have been on notice of the substantial threat that COVID-19 poses to detainees—including the putative class members—for weeks.
81. As outlined in the Declaration of Robert L. Cohen, M.D., Regarding the Spread of COVID-19 in and from the Dallas County Jail (Cohen Dec.) in support of Plaintiffs’ Motion for a Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus, there are no mitigation efforts that the Dallas County Jail could undertake that would better prevent the risk of contraction—and possible later spread to the non-jail community—than immediate release of the Medically-Vulnerable Subclass and others as needed. Cohen Dec. at ¶ 30–46.
82. In addition to the immediate release of all Medically-Vulnerable Class Members, the Dallas County Jail must implement the additional measures outlined by Dr. Cohen (e.g., physical distancing, testing, quarantine, hygiene, medical care, personal protective equipment, public health information, etc.) and other public health/CDC guidance. Efforts to date—starting to check the temperature of employees and relying on regular staff to evaluate existing detainees and ask COVID-19 screening questions to new detainees as of March 27, 2020, continuing only routine sanitation protocols, wearing surgical masks for up to a week rather than changing them daily, and assigning potentially infected detainees to “designated” cells within the Dallas County Jail itself99—are plainly deficient. Defendants’ failure to release particularly vulnerable people and sufficiently adopt protocols to protect those who remain incarcerated constitutes deliberate indifference. See, e.g., Hare v. City of Corinth, Miss., 74 F.3d 633, 644 (5th Cir. 1996) (“even
99 COVID-19 Initiatives, Dallas County Sheriff’s Office, supra note 25.
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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.”). As Dr. Cohen notes, the conditions in the Dallas County Jail “create a high risk of contributing to an outbreak of COVID-19,” as the jail is not operationalizing public health guidance and is not equipped to slow transmission of the disease. Cohen Dec. at ¶¶ 4, 13–22.
83. A related but distinct right of pretrial detainees—who are presumed innocent and therefore entitled to greater protection from unconstitutional conditions of confinement—is that their pretrial confinement cannot amount to punishment. Bell, 441 U.S. at 535 (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”); id. at n.16 (pretrial detainees retain greater protections than convicted counterparts); Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (ordering evidentiary hearing on whether transfer to more violent wing was punitive). Punishment—and therefore deliberate indifference—is established if the jailer’s conduct is either not rationally related to a legitimate, nonpunitive government purpose or excessive in relation to that purpose. Bell, 441 U.S. at 561; Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74 (2015); see also Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415 (5th Cir. 2017). Both elements are satisfied here. Even if the Dallas County Jail’s current spacing of detainees and provision of healthcare would serve the legitimate purpose of jail health and safety in normal times, those procedures, together with recent modifications, are now endangering health and safety in the wake of COVID-19 by keeping people in the jail. Hence, continuing to detain Plaintiffs and putative class members is not rationally related to the goal of health and safety (both the jail’s and the public’s) and is indeed excessive in relation to the course of conduct that would in fact achieve that goal: release with the support
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protections outlined herein. See Plata, 563 U.S. 493 (ordering release of inmates to correct overcrowding that violated Eighth Amendment); Memorandum and Order. Other courts to evaluate this question in light of the present COVID-19 pandemic have determined that the Eighth and Fourteenth Amendments require release of vulnerable persons. Thakker, No. 20-CV-0480 (M.D. Pa. Mar. 31, 2020) (categorically releasing petitioners who “suffer[] from chronic medical conditions and face[] an imminent risk of death or serious injury if exposed to COVID-19”); Fraihat v. Wolf, 20-cv-590 (TJH), (C.D. Cal. Mar. 30, 2020) (“This is an unprecedented time in our nation’s history, filled with uncertainty, fear, and anxiety. But in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings.”); Castillo v. Barr, 20-cv-605 (TJH) (AFM), Dkt. No. 32 (C.D. Cal. Mar. 27, 2020); Coronel, 2020 WL 1487274; Basank v. Decker, 20-cv-2518 (AT), Dkt. No. 11 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”); Jovel v. Decker, 12-cv308 (GBD), Dkt. No. 27 (S.D.N.Y. Mar. 26, 2020); Malam v. Adducci, No. 20-cv-10829 (E.D. Mich.) at Doc. No. 23 (granting similar motion for a temporary restraining order).
28 U.S.C. § 2241 is an Appropriate Vehicle to Remedy these Violations. 84. Section 2241(c)(3) allows this court to order the release of inmates like Plaintiffs who are held “in violation of the Constitution.” 28 U.S.C. 2241(c)(3);Boumediene v. Bush, 533 U.S. 723 (2008) (The federal constitution requires that the habeas privilege be available in the absence of suspension); 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,
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391 U.S. 54, 67 (1968) (Section 2241(c)(3) can afford immediate release for claims other than those challenging the sentence itself).100
85. While the Fifth Circuit has indicated that “conditions of confinement” claims may not sound in Section 2241, habeas remains the proper remedy under these circumstances. See Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976) (rejecting habeas petitioners’ request for an injunction pertaining to immigration work authorizations under § 2241, “habeas is not available to review questions unrelated to the cause of detention. Its sole function is to grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose.”). However, the Fifth Circuit has not addressed how Section 2241 would apply in the current context, where the “condition” is a lightning-fast pandemic that has already infected at least 28 inmates and guards at the Dallas County Jail. Because immediate release is the only medically and legally sound remedy, rather than mere mitigation and/or further proceedings, traditional arguments
104
against § 2241 as the proper vehicle are distinguishable. 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
100 Section 2241, rather than § 2254, is the appropriate vehicle for state prisoners seeking COVID-based discharge. Section 2254 is a set of rules about how convicted state prisoners challenge the lawfulness of the proceedings producing their convictions and sentences. A state prisoner does not litigate under § 2254 simply because that prisoner denominates a filing as a habeas challenge; the litigation falls under § 2241 if it contains challenges to ongoing custody having nothing to do with whether the original conviction and sentence were lawfully imposed. As the Tenth Circuit has noted, a “challenge to the validity of [petitioner’s] conviction and sentence” should “properly be brought under § 2254” but “an attack on the execution of his sentence” should be “pursuant to § 2241.” Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000) (holding that a state prisoner’s challenge to his interstate prison transfers was properly considered under § 2241). The instant petition is an attack on the execution of the petitioners’ sentences. It is a challenge to continued custody that is independent of the underlying conviction and sentence, which makes § 2241 the appropriate vehicle.
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purpose of habeas was to rectify systemic violations by state actors). Addressing the Sixth Circuit’s
prohibition against § 2241 challenges to “conditions,” one district court determined that challenges
to confinement itself in light of the COVID-19 pandemic are properly brought in § 2241 petitions:
Petitioner does not take issue with the steps taken at the [detention facility] to mitigate the risk of detainees contracting COVID-19. Rather, she says that no matter what steps are taken, due to her serious health conditions, there is no communal holding facility where she could be incarcerated during the COVID-19 pandemic that would be constitutional. Petitioner’s claim must therefore be considered as a challenge to the continued validity of confinement itself. Accordingly, Petitioner’s claim is properly brought under 28 U.S.C. § 2241, and the Court has jurisdiction.
Malam, No. 20-cv-10829 (E.D. Mich.) at Doc. No. 23 (Order granting motion for a temporary
restraining order).
86. Section 2241 contains no exhaustion requirement conceivably applicable to prisoners seeking COVID-based discharge.101 Plaintiffs are all therefore excused from 28 U.S.C. § 2241’s prudential exhaustion requirement.102 It is well settled that “exhaustion is not required
when the state procedures do not afford swift vindication.” Galtieri v. Wainwright, 582 F.2d 348,
354 n. 12 (5th Cir.1978). Plaintiffs will not receive a sufficiently swift resolution of their
constitutional claims if forced to exhaust all available remedies via state writs of habeas. Such
remedies would take months under normal circumstances, and certainly will now take longer in light of substantial court closures across the state in response to the COVID-19 emergency.103 See
101 Section 2241 does have provisions that impose some exhaustion-like constraints on litigation by military prisoners challenging their combatant status determinations. Those provisions are not relevant here.
102 To the extent that courts have imposed prudential exhaustion rules on § 2241 petitioners, those petitioners have been seeking modifications to confinement conditions rather than discharge. The concerns that animate such prudential restrictions—the existence of parallel statutes with exhaustion requirements—do not apply to those seeking discharge
103 Texas Courts, Current and Upcoming Closures, https://cutt.ly/VtJBR8w (listing dozens of state court closures due to the pandemic).
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Declaration of Alison Grinter (highlighting the extent, and unpredictability, of local state court

closures and noting that all local courts in Dallas “have slowed or suspended functions”).104

87. Given the severity and spread of COVID-19, hours matter; Plaintiffs’ case is one

of the rare circumstances in which “it is proper for federal courts to treat claims technically

unexhausted.” Galtieri, 582 F.2d at 354.

VII.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

Unconstitutional Conditions of Confinement in Violation of the Fourteenth Amendment to the U.S. Constitution
42 U.S.C. § 1983 / 28 U.S.C. § 2241 Pre-Adjudication Class versus All Defendants
88. Plaintiffs incorporate by reference each of the preceding paragraphs and allegations

as if fully set forth herein.

89. Under the Fourteenth Amendment, corrections officials are required to provide for

the reasonable health and safety of persons in pretrial custody. Youngberg v. Romeo, 457 U.S. 307,

315–16, 324 (1982) (the state has an “unquestioned duty to provide adequate . . . medical care” for

detained persons).

90. As part of the right, the government must provide incarcerated persons with

reasonable safety and address serious medical needs that arise in jail to at least the same degree of

persons in custody subsequent to a conviction. Deliberate indifference to the serious risk COVID-

19 poses to members of the Pre-Adjudication Class, and particularly members of the Medically-

Vulnerable Pre-Adjudication Subclass, violates this right.

104 See also Supreme Court of Texas, Court of Criminal Appeals of Texas, First Emergency Order Regarding the COVID-19 State of Disaster, (March 13, 2020), https://cutt.ly/1tL4MOc (authorizing all courts in Texas to, inter alia, “Modify and suspend any and all deadlines and procedures” until 30 days after the Governor’s state of disaster related to COVID-19 is lifted); Jolie McCullough, Coronavirus Pauses Many Texas Court Proceedings. For Some, that Means More Time in Jail, Texas Tribune (March 19, 2020, 11:00 a.m.), https://cutt.ly/StL4HEE.
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91. The Dallas County Jail has refused to comply with public health guidelines to manage an outbreak of COVID-19 and has not provided for the safety of the Pre-Adjudication Class. Defendants’ actions and inactions result in the confinement of members of the PreAdjudication Class in a jail where they do not test for, treat, or prevent COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate medical care.
92. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Dallas County and the Dallas County Jail have violated the rights of the Pre-Adjudication Plaintiff Class under the Fourteenth Amendment.
SECOND CLAIM FOR RELIEF Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.
Constitution 42 U.S.C. § 1983 / 28 U.S.C. § 2241 Pre-Adjudication Class versus All Defendants 93. Plaintiffs incorporate by reference each of the preceding paragraphs and allegations as if fully set forth herein. 94. Under the Fourteenth Amendment, persons in pretrial custody have greater due process protections than those convicted and therefore cannot be punished as part of their detention. Bell, 441 U.S. at 535 n.16. Punishment is established if the jailer’s conduct is either not rationally related to a legitimate, nonpunitive government purpose or excessive in relation to that purpose. 95. Even assuming that the Dallas County Jail’s spacing and provision of medical services inside the facility normally serves the legitimate, nonpunitive purpose of health and safety of detained persons, the Dallas County Jail has failed to comply with public health guidelines to manage an outbreak of COVID-19. Therefore, continuing to detain Pre-Adjudication Class
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members without making the Dallas County Jail compliant with COVID-19-specific guidance from public health experts is not rationally related to, and excessive in relation to, that purpose.
96. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Dallas County and the Dallas County Jail have violated the rights of the Pre-Adjudication Plaintiff Class under the Fourteenth Amendment.
THIRD CLAIM FOR RELIEF Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the
U.S. Constitution 42 U.S.C. § 1983 / 28 U.S.C. § 2241 Post-Adjudication Class versus All Defendants 97. Plaintiffs incorporate by reference each of the preceding paragraphs and allegations as if fully set forth herein. 98. 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 provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. See, e.g., Helling, 509 U.S. at 33; Estelle, 429 U.S. at 104; DeShaney, 489 U.S. at 200. Deliberate indifference to the serious risk COVID-19 poses to members of the Post-Adjudication Class, and particularly members of the Medically-Vulnerable Post-Adjudication Subclass, infringes on the protection from cruel and unusual punishment. Defendants violate this right by subjecting members of the Post-Adjudication Class to conditions of confinement that do not ensure their safety and health. 99. The Jail has failed to comply with public health guidelines to manage an outbreak of COVID-19 and cannot provide for the safety of the Post-Adjudication Class. 100. Defendants’ actions and inactions result in the confinement of members of the PostAdjudication Class in a jail where they do not have the capacity to test for, treat, or prevent COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate medical care.
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101. By operating the Jail without the capacity to test for, treat, or prevent a COVID-19

outbreak, Defendants, as supervisors, direct participants, and policy makers for Dallas County and

the Dallas County Jail have violated the rights of the Post-Adjudication Plaintiff Class under the

Eighth Amendment.

VIII.

REQUEST FOR RELIEF

102. Plaintiffs incorporate by reference each of the preceding paragraphs and allegations

as if fully set forth herein.

103. The outbreak of COVID-19 in the Dallas County Jail is creating a public health

crisis for detainees and employees as well as the community at large. To prevent unnecessary

disease, suffering, and deaths, Plaintiffs and Class Members respectfully request that the Court

order the following relief:

1. Certification of this action as a Class Action;

2. A temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Defendants to identify all MedicallyVulnerable Subclass Members in both the Pre-Adjudication and Post-Adjudication Classes within six (6) hours of the Court’s order and release—within twenty-four (24) hours of submission of the list—all such persons absent proof of judiciallyrecorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate;

3. A temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus 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;

4. Following immediate release of all Medically-Vulnerable Subclass Members, a plan, to be submitted to the Court in three (3) days and overseen by a qualified public health expert agreed upon by the parties or ordered by the Court pursuant to Fed. R. Evid. 706, which outlines:

a. 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;

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b. A housing and/or public support plan for any released Class or Subclass Members whose testing confirms have been exposed to or infected with COVID-19 and who do not readily have a place to self-isolate for the CDCrecommended period of time (currently 14 days).
c. An evaluation of whether the release of the Subclass Members permits adequate social distancing and whether other categories of prisoners must be released to provide for compliance with CDC guidelines.
5. 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 proof of judicially-recorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate;
b. Report weekly on the population of persons in the Dallas County Jail who are Medically-Vulnerable as defined in this action;
c. Follow the terms of the public health expert plan submitted pursuant to Fed. R. Evid. 706;
d. Release additional Class Members, including those not considered “Medically-Vulnerable,” as needed to ensure that all remaining persons incarcerated in the Dallas County Jail 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 six feet or more of space between them.
6. If immediate release is not granted on the basis of this Complaint alone, then expedited review of the Complaint, including oral argument, via telephonic or videoconference if necessary;
7. A declaration that jail’s policies violate the Fourteenth Amendment rights to reasonable safety and to be free from punishment prior to conviction with respect to the Pre-Adjudication Class;
8. A declaration that Dallas County Jail’s policies violate the Eighth Amendment right against cruel and unusual punishment with respect to the Post-Adjudication Class;
9. An award of Plaintiffs’ attorney fees and costs under 42 U.S.C. § 1988 and other applicable law; and
10. Any further relief to which Plaintiffs are entitled.
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Dated: April 9, 2020.

Respectfully submitted,

_____________________ AMERICAN CIVIL LIBERTIES FOUNDATION Andrea Woods* N.Y. Bar No. 5595509 Meredith Taylor Brown* N.Y. Bar No. 5678602 Brandon Buskey* 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org
Henderson Hill* N.C. Bar No. 18563 201 W. Main St. Suite 402 Durham, NC 27701 (919) 682-9563 hhill@aclu.org
Amy Fettig* D.C. Bar No. 484883 915 15th Street N.W., 7th Floor Washington, D.C. 20005 (202) 548-6608 afettig@aclu.org

_____________________ ACLU FOUNDATION OF TEXAS Brian Klosterboer Texas. Bar No. 24107833 Adriana Piñon** Texas Bar No. 24089768 Andre Segura Texas Bar No. 24107112 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146 Fax: (346) 998-1577
_____________________ CIVIL RIGHTS CORPS Katherine Hubbard* D.C. Bar No. 1500503 Elizabeth Rossi* D.C. Bar No. 1500502 1601 Connecticut Ave NW, Suite 800 Washington, D.C. 20009 (202) 894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org

__/s_/_B_a_r_r_y_B_a_r_n_e_tt_______ SUSMAN GODFREY L.L.P. Barry Barnett Texas Bar No. 01778700 8115 Preston Road, Suite 575 Dallas, TX 75225 (866) 754-1900 bbarnett@susmangodfrey.com
Michael Gervais* N.Y. Bar No. 5122890 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 789-3100 mgervais@susmangodfrey.com
_____________________ NEXT GENERATION ACTION NETWORK LEGAL ADVOCACY FUND Alison Grinter-Allen Texas Bar 24043476 Kim T. Cole Texas Bar No. 24071024 1808 South Good Latimer Expressway Dallas, TX 75226 (214) 704-6400 agrinter@thengan.com kcole@thengan.com

ATTORNEYS FOR PETITIONERS/PLAINTIFFS *pro hac vice application forthcoming **N.D. Texas admission application forthcoming

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

Oscar Sanchez, et al Plaintiff v.
Dallas County Sheriff Marian Brown, et al Defendant

Civil Action No.

CERTIFICATE OF INTERESTED PERSONS
(This form also satisfies Fed. R. Civ. P. 7.1)
Pursuant to Fed. R. Civ. P. 7.1 and LR 3.1(c), LR 3.2(e), LR 7.4, LR 81.1(a)(4)(D), and LR 81.2,
Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz

provides the following information:
For a nongovernmental corporate party, the name(s) of its parent corporation and any publicly held corporation that owns 10% or more of its stock (if none, state "None"): *Please separate names with a comma. Only text visible within box will print.
Not applicable

A complete list of all persons, associations of persons, firms, partnerships, corporations, guarantors, insurers, affiliates, parent or subsidiary corporations, or other legal entities that are financially interested in the outcome of the case: *Please separate names with a comma. Only text visible within box will print.
Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; American Civil Liberties Foundation, American Civil Liberties Union Foundation of Texas, Henderson Hill, Civil Rights Corps., Amy Fettig, Next Generation Network Action Legal Advocacy Fund,

Case 3:20-cv-00832-E Document 1-1 Filed 04/09/20 Page 2 of 2 PageID 46

Date: Signature: Print Name: Bar Number: Address: City, State, Zip: Telephone: Fax: E-Mail:

4/9/2020 /s/ Barry Barnett Barry Barnett 01778700 8115 Preston Road, Suite 575 Dallas, Texas 75225 866-754-1900
bbarnett@susmangodfrey.com

NOTE: To electronically file this document, you will find the event in our Case Management (CM/ECF) system, under Civil/Other Documents/Certificate of Interested Persons

Case 3:20-cv-00832-E Document 1-2 Filed 04/09/20 Page 1 of 4 PageID 47
Exhibit 1
Declaration of Amy Fly on behalf of Oscar Sanchez

Case 3:20-cv-00832-E Document 1-2 Filed 04/09/20 Page 2 of 4 PageID 48
Declaration of Amy Fly on behalf of Oscar Sanchez
My name is Amy Fly I am an attorney who is licensed to practice in the state of Pennsylvania. I spoke to a detainee in the Dallas County Jail named Oscar Sanchez (Bookin# 20011561) several times from April 3-7, 2020. Mr. Sanchez provided me with the following information:
1. Mr. Sanchez is 28 years old. He has been detained in five different locations within the Dallas County Jail since his incarceration began on March 9, 2020. He was transferred between the following units in this order: the 4th floor of the West Tower, E pod on the 3rd floor of the South Tower, H pod on the 1st floor of South Tower, a holding tank (where he was housed for 3 days with 6 other detainees waiting for new placement), and C pod of the 3rd floor of the South Tower (where he is currently detained as of the date of this declaration).
2. Each pod in the South Tower has 64 beds in one room and holds about 58-60 people at any given time. The beds are about 3-4 feet apart from each other.
3. Mr. Sanchez was moved to H pod on the 1st floor of South Tower after there were confirmed positive cases of COVID-19 in E pod. One man who tested positive spent 3-4 days vomiting before he was removed from the dorm. When the jailers escorted him out of the dorm, they gave a detainee in E pod a biohazard bag and made him collect the sick man’s belongings. The detainee was not given any protective gear when he cleaned the sick man’s bunk and he continued living in dorm E and interacting with Mr. Sanchez and the other 60 men in the pod. When more and more people in dorm E tested positive for the virus, the jailers split everyone in the dorm up and moved them to different pods. They did not check anyone’s temperature before moving detainees into new dorms. Mr. Sanchez was moved to the first floor of H pod, which had more people than E pod. Without explanation, Mr. Sanchez was moved back to the third floor of South Tower. He does not know whether the area was disinfected before he returned.
4. Mr. Sanchez has a history of chronic asthma that has been so severe that he was hospitalized. On April 5, 2020, he told a doctor he hard chest pains and difficulty breathing, and requested medical attention. The doctor told him there was nothing he could do about it because there was nothing in his file saying he is asthmatic. Before the pandemic, every time Mr. Sanchez told staff he was having respiratory problems, they would give him an emergency inhaler and then give him another inhaler when he saw a doctor. Now, Mr. Sanchez cannot get an inhaler unless he files a sick call and pays to be evaluated by a doctor.
5. When Mr. Sanchez asked guards for a facemask, he was told the only people that need masks are the guards. Some guards wear gloves and facemasks, but some do not. The guards that wear facemasks do not change their masks when they go from dorm to dorm.
6. All 60 men in both A and E pods must wear the same clothes 6 days in a row before they are given clean clothing.
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7. All 60 men in both A and E pods share 8 phones, none of which are disinfected between use.
8. All 60 men in both A and E pods share 6 showers, and 8 toilets. The entire dorm, including the showers and the toilets, are cleaned by three detainees who volunteer to clean for special privileges, like an additional tray of food. Mr. Sanchez started volunteering because his bunk is 3 feet from the toilets and the other volunteers usually do not clean properly.
9. All 60 men in both A and E pods eat meals together in the day room. There are not enough tables, so it is impossible for everyone to sit without touching the people sitting on either side of them. Many detainees even drink out of the same cup.
10. Several times a day, all the men in Mr. Sanchez’s dorm line up back to back to receive meals and medication. The men are no more than one foot apart. The same protocol is followed to receive clean clothes and commissary whenever it is delivered. The person distributing medication wears the same masks and gloves in every dorm. The person distributing food usually does not wear a masks at all.
11. On March 26, the jail no longer allowed detainees to purchase all items, including soap, from the commissary. The jail does not provide nearly enough soap to last the week.
12. On March 30, Mr. Sanchez started noticing the food portions getting smaller. There also seemed to be a shortage of blankets and clothes.
13. Recently Mr. Sanchez noticed more and more staff disappear from the jail. The jail has become so short staffed, they are now training people who worked in the kitchen and laundry room to be in the dorms.
14. Typically there are about 6-7 new people introduced to Mr. Sanchez’s dorm each week and 6-7 people transferred to a different dorm or released. This has not changed since the start of the pandemic. The newest detainees arrived as recently as April 2nd and 3rd.
15. On April 6, 2020, Mr. Sanchez asked the nurse on second shift if she could check his temperature because he felt feverish, and had a sore throat and cough, body chills, and a throbbing headache. The nurse responded that fever and sore throat are not symptoms of the coronavirus and he should stop worrying.
16. About 30 minutes later, the same nurse entered Mr. Sanchez’s dorm and made an announcement that they could avoid catching the virus by washing their hands, avoiding groups of 10 or more, not touching their face, and covering their mouths. She also put up a poster saying the same. This was the first time the jail told Mr. Sanchez anything about how to prevent the spread of the virus. When Mr. Sanchez asked how they avoid groups of 10 when they live in a group of 60, and how to wash their hands without soap, the
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nurse replied “I’m not here to have a debate. Don’t worry, you don’t have the virus” The next day, the same nurse made an announcement that 25% of people who have the virus don’t show symptoms and don’t even know they have it. When Mr. Sanchez tried to ask how they know no one in pod has the virus, she cut him off and said “I’m not here to answer questions.”
17. On April 7, 2020, Mr. Sanchez’s symptoms got worse and he explicitly asked to be tested for the coronavirus. The guard told him he informed his superiors that Mr. Sanchez was really sick and using the phones everyone else uses, so he needed to be tested. His supervisor responded that Mr. Sanchez could not be tested unless he put in a sick call, which costs $10. The guard relaying this information to Mr. Sanchez said “I don’t know what these people want you to do. Die first?” As of the date of this declaration, Mr. Sanchez has not been tested for the virus.

18. Mr. Sanchez was repeatedly denied grievance forms every time he requested them. On April 5, 2020, Mr. Sanchez filed an emergency grievance stating that he fears for his life under current conditions. Afterwards, a jailer told Mr. Sanchez he was being watched and warned him not to do anything outside of the rule book because other jailers are looking for an opportunity to retaliate against him. On April 6, 2020, Mr. Sanchez had not received a response to his emergency grievance, so he file an appeal. A jailer then came into his dorm, laughed at the detainees in the pod, and said “You think filing grievances is going to change anything?” The following morning, Mr. Sanchez tried using the kiosk to check the status of this grievance and appeal, but the application to file grievances and check their status was removed from the kiosk.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

_____s/ Amy Fly_______________ Amy Fly

3

Case 3:20-cv-00832-E Document 1-3 Filed 04/09/20 Page 1 of 3 PageID 51
Exhibit 2
Declaration of Amy Fly on behalf of Marcus White

Case 3:20-cv-00832-E Document 1-3 Filed 04/09/20 Page 2 of 3 PageID 52
Declaration of Amy Fly on behalf of Marcus White
My name is Amy Fly I am an attorney who is licensed to practice law in the state of Pennsylvania. I spoke to a detainee in the Dallas County Jail named Marcus White (Bookin# 19056720) on April 4th and 5th of 2020. Mr. White provided me with the following information:
1. Mr. White is 37 years old. He is incarcerated on an $111,000 bond that he cannot afford to pay. On April 4, 2020 was informed that he tested positive for COVID-19.
2. When Mr. White first arrived at the jail, he was detained in South Tower where 5 people were known to have tested positive for COVID-19. Around March 21st, Mr. White started showing symptoms of the virus, including coughing, congestion, body aches, and diarrhea. He continued interacting with other people in his 60-man dorm for four more days. On March 25th, he was moved to a single cell in dorm 7 on the 9th Floor of West Tower, where he is confined to his cell 24 hours a day. There, the staff checked his temperature daily, but did not test him for the virus until April 2nd.
3. The guards that moved Mr. White from South Tower to West Tower wore masks and suits, but detainees are not provided with any personal protective equipment.
4. The jail staff never told Mr. White about how to avoid spreading the virus. While in South Tower, he learned on the news that the virus is airborne and can stay on surfaces for several days. Mr. White no longer has access to the news in West Tower.
5. Mr. White suffers from grand mal seizures, which cause his him to lose consciousness and have violent muscle contractions. His seizures are often stress induced and require daily medication. He also takes daily medication for hypertension. Though the staff has given him access to his blood pressure medication, they are not giving him seizure medication.
6. As of the date of this declaration, Mr. White had not received any soap or cleaning supplies since he was moved to West Tower on March 25.
7. As of the date of this declaration, Mr. White has not received any clean laundry and continues to use to the same clothes and bed linen he had when he was in the South Tower.
8. Mr. White was denied a shower for a week.
9. Mr. White and four other men detained on the 9th floor of West Tower were denied grievance forms despite numerous requests. Mr. White made a sign demanding grievance forms and hung it on his cell. For a week, the men banged on their cell doors and refused to allow the nurses take their temperatures until they were given grievance forms. On
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March 23, the staff gave them the forms. Marcus wrote a grievance demanding release due to inhumane conditions and passed it around to the others so they could copy the language. As of the date of this declaration, all of those grievances are still sitting in the outboxes of the cells because the staff refuse to take them. The other men who tried filing grievances include Edgar Vgalde (Bookin# 19055847), Ladarius Johnson (Bookin# 20008887), Todd Whitfield (Bookin# 20011184), and Tesmond McDonald (Bookin# 19047475).
I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

_____s/ Amy Fly_______________ Amy Fly

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Case 3:20-cv-00832-E Document 1-4 Filed 04/09/20 Page 1 of 3 PageID 54
Exhibit 3
Declaration of Amy Fly on behalf of Tesmond McDonald

Case 3:20-cv-00832-E Document 1-4 Filed 04/09/20 Page 2 of 3 PageID 55
Declaration of Amy Fly on behalf of Tesmond McDonald
My name is Amy Fly and I am licensed to practice law in the State of Pennsylvania. On April 6, 2020, I spoke to a detainee in the Dallas County Jail named Tesmond McDonald (Bookin# 19047475) and he provided me with the following information:
1. Mr. McDonald is 32 years old. On April 3, 2020, he found out he tested positive for COVID-19.
2. Mr. McDonald has asthma and high blood, which he takes medication for.
3. The jail failed to give him adequate access to an asthma pump on several occasions. When he first arrived at the jail, he waited two weeks to be given his asthma pump. Refill request also took days.
4. Mr. developed body aches and began having trouble catching his breath. He started overusing his asthma pump in order to compensate, which made him jittery. He knew something was wrong. The nurse took his oxygen levels, which were dangerously low – 59 or 60 mm Hg. He was sent to the infirmary and given a new asthma pump. He did not have one at the time because he used up his old pump and the jail had not yet responded to his request for a new one. A week later, he was tested positive for COVID-19.
5. On one occasion, Mr. McDonald asked to go to a doctor because he could not breathe – he thought he was going to die. They told him they can’t do anything about it and that he needed to wait until tomorrow. Even then, he still never saw a doctor.
6. Someone comes around and takes his temperature and heart rate every day. He has a sore throat and diarrhea, but the jailers have not given him any medication for these symptoms. They are not even giving him enough water to stay hydrated.
7. When Mr. McDonald first arrived at the jail, he was places in South Tower 3A. When four people in his dorm tested positive for COVID-19, he was moved to the West Tower and placed on lock down in a single cell.
8. When Mr. McDonald first arrived at West Tower, it took him a week to get clean clothes.
9. The walls in his cell are so dirty that he is afraid to touch them.
10. Once a week, he and the other detainees in his dorm are given three pieces of soap 1/4th the size of a state ID. They are completely used up in one use. He does not have access to commissary to buy more soap.
11. He is only allowed to shower once a week, so he takes bird bathes in the sink. At one point, he was denied a shower for 10 days.

Case 3:20-cv-00832-E Document 1-4 Filed 04/09/20 Page 3 of 3 PageID 56

I declare under penalty of perjury that the forgoing is true and correct.

April 6, 2020 Dallas County

_/s/ Amy Fly________________________ Amy Fly

Case 3:20-cv-00832-E Document 1-5 Filed 04/09/20 Page 1 of 3 PageID 57
Exhibit 4
Declaration of Amy Fly on behalf of Marcelo Perez

Case 3:20-cv-00832-E Document 1-5 Filed 04/09/20 Page 2 of 3 PageID 58
Declaration of Amy Fly on behalf of Marcelo Perez
My name is Amy Fly I am an attorney who is licensed to practice in the state of Pennsylvania. I spoke to a detainee in the Dallas County Jail named Marcelo Perez (Bookin# 20001013) on April 7-8, 2020. Mr. Perez provided me with the following information:
1. Mr. Perez is 43 years old. He has been in the jail since January 7, 2020 because of drug charges and probation violations.
2. He has high blood pressure and is diabetic. When he first arrived at the jail, a nurse checked his sugar levels twice a day and gave him varying doses of metformin depending on his sugar levels. Now, the nurse doesn’t check his sugar levels at all and gives him a set dosage twice a day. The dose is often too high and keeps him awake all night.
3. Mr. Perez used to be detained on the second floor of South Tower in pod H. This pod held about 60 men, some of which were exhibiting clear signs of COVID-19. At least 2 or 3 of the men were coughing for several weeks. They were so sick that Mr. Perez told the nurse they needed to be checked out, but they were never evaluated and did not receive any medical treatment.
4. On March 22, 2020, Mr. Perez and two other detainees were moved to C pod on the 3rd floor as punishment for inappropriate laughter. No one took their temperatures or tested them for the virus before moving them. A week later, Mr. Perez developed a cough. He has still not been tested for the virus, though his cough has since subsided.
5. Detainees must pay $10 in order to be seen by a nurse. After payment is made, the detainee is not seen by the nurse for 2-3 weeks. Mr. Perez cannot make requests to see a nurse because he does not have any money on his account.
6. Mr. Perez has never seen a detainee wearing a mask. When Mr. Perez asked for a mask, he was told that the jail staff have to buy their own masks, so they would not give him one. Some detainees tried wrapping bath towels around their heads to cover their faces, but the jail staff told them they were not allowed to do that.
7. Mr. Perez has seen only one out of every six guards wearing masks. The guards are not practicing social distancing. He has seen them close together in large groups, and watched multiple guards share from a single bag of chips.
8. Mr. Perez filed an emergency grievance on April 6, 2020. He has not received a response. On April 7, 2020, he attempted to check the status of his emergency grievance on the kiosk, but the staff removed the grievance portal from the kiosk.
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9. Mr. Perez is in the same pod as Oscar Sanchez. On April 8, 2020, the jail staff called for Mr. Sanchez to go to the nurse’s station. He never returned. The guards then made his cellie, Fernando, clean Mr. Sanchez’s bunk and collect his belongings. They did not give Mr. Fernando any personal protective equipment before he followed this order.

I declare under penalty of perjury that the forgoing is true and correct.

April 8, 2020 Dallas County

_____s/ Amy Fly_______________ Amy Fly

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Exhibit 5
Declaration of Amy Fly on behalf of Roger Morrison

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Declaration of Amy Fly on behalf of Roger Morrison
My name is Amy Fly and I am licensed to practice law in the state of Pennsylvania. On April 8, 2020, I spoke to a detainee in the Dallas County Jail named Roger Morrison (Bookin# 20011453) and he provided me with the following information:
1. Mr. Morrison is 49 years old. He was admitted to the jail on March 9, 2020 for drug possession charges. Mr. Morrison has never been convicted of or charged with a violent offense.
2. Mr. Morrison is in the medical pod (South Tower, C3) because he suffers from severe allergies, high blood pressure, hepatitis C, and cirrhosis of the liver. Because of these ailments, he has a weak immune system. He takes several medications daily, including a pill for nerve pain stemming from the 12 screws in his back.
3. The staff have not told Mr. Morrison anything about COVID-19. He knows he is high risk, but does not know how to prevent himself from getting the virus. He cannot tell from looking at someone whether they have the virus. Some people in his pod look sick, but he does not know what they are sick with. He does not want to sit in jail and die.
4. Social distancing in the pod is impossible. They are packed in there like sardines. His bed is one foot from another bunk on one side and three feet from another bunk on the other side.
5. The guards sometimes wear masks, but sometimes they don’t. Detainees are not allowed to have masks.
6. The pod is filthy, and the detainees only have occasional access to hand soap.
7. Recently, Mr. Morrison has started sneezing and feeling nauseous.

I declare under penalty of perjury that the forgoing is true and correct.

April 8, 2020 Dallas County

_____s/ Amy Fly_______________ Amy Fly

Case 3:20-cv-00832-E Document 1-7 Filed 04/09/20 Page 1 of 3 PageID 62
Exhibit 6
Declaration of Amy Fly on behalf of Keith Baker

Case 3:20-cv-00832-E Document 1-7 Filed 04/09/20 Page 2 of 3 PageID 63
Declaration of Amy Fly on behalf of Keith Baker
My name is Amy Fly and I am licensed to practice law in Pennsylvania. On April 4, 2020, I spoke to a detainee in the Dallas County Jail named Keith Baker (Bookin#20011122) and he provided me with the following information:
1. Mr. Baker is 25 years old and is currently detained on the 9th floor of the West Tower in Tank #1 with 4 other detainees. Mr. Baker and the other men in Tank #1 have made several requests to be moved because they do not have COVID-19, but are held next to people who have tested positive for the virus. Tank #2, which is directly connected to Mr. Baker, holds three people who have tested positive.
2. Mr. Baker has severe asthma and used an inhaler on a regular basis before his detention at the jail. Around 9am on March 26, 2020 Mr. Baker suffered a severe asthma attack. A sergeant and two officers observed him unable to catch his breath and walked away without saying anything. The doctor came to his cell five and a half hours later. All he did was gave Mr. Baker a sleeping pill.
3. Mr. Baker was also denied medical treatment for a dislocated shoulder and headaches. He only received ibuprofen after 4 days of complaining of pain.
4. When Mr. Baker first arrived at the jail, he was originally detained in the South Tower. After five inmates and one guard from his pod tested positive for the virus, the jail moved Mr. Baker to a single cell in the West Tower without testing him first. While at the West Tower, Keith developed a sore throat and a cough and all they did was take his temperature. He has not been tested for the virus. As of the date of this declaration, he is still being held in the same Wing as people who tested positive.
5. Though Mr. Baker is in a cell by himself, he is not isolated. His cell is connected to two other cells and he is still has contact with other detainees. As one example, he has had to borrow toiletries, such as toothpaste, from those in the cells around him because the jail stopped allowing commissary purchases on March 26, 2020.
6. The jail provides detainees with 4 single use bars of soap and tissues once a week on Staurday, but it is not even enough for one day. The only other way detainees can get additional soap is to purchase it through commissary, they no longer have access to. As a result, Mr. Baker must go six days a week without any soap at all.
7. When Mr. Baker first arrived in West Tower, he was required to eat his meals in his cell. The jailers served him food by smashing the food and shoving it in the crack between the door and the ground. He lost a significant amount of weight because of the small portions and poor quality of food. Since April 4, Mr. Baker and the other 4 people in his tank eat lunch together in the day room. Of the 12 tanks on the 9th floor, the people in Mr. Baker’s tank are the only detainees permitted to use the day room.

Case 3:20-cv-00832-E Document 1-7 Filed 04/09/20 Page 3 of 3 PageID 64

8. Those on the 9th Floor of the West Tower do not have access to clean clothes. At one point, Mr. Baker was forced to wear the same jumpsuit every day for ten days straight. He was also not permitted to take a shower during that 10 day period. When he was finally allowed to take a shower, the water was cold.
9. Mr. Baker was provided with a mask only after he asked for one. He has had to use the same one repeatedly because he was not given replacements. The staff in the West Tower wear masks, but they do not change them out between interactions with detainees who have the virus and those who don’t have the virus.

I declare under penalty of perjury that the forgoing is true and correct.

April 4, 2020 Dallas County

_/s/ Amy Fly__________________ Amy Fly

Case 3:20-cv-00832-E Document 1-8 Filed 04/09/20 Page 1 of 3 PageID 65
Exhibit 7
Declaration of Adwoa Asante on behalf of Paul Wright

Case 3:20-cv-00832-E Document 1-8 Filed 04/09/20 Page 2 of 3 PageID 66
Declaration of Adwoa Asante on behalf of Paul Wright
My name is Adwoa Asante. I am an attorney who is licensed to practice in the state of Texas. On April 7, 2020, I spoke to a detainee in the Dallas County Jail named Paul Wright (Bookin# 20008591) and he provided me with the following information:
1. Mr. Wright will be 48 years old on April 11, 2020. He is located in South Tower on the 3rd floor in Pod C. He is awaiting transfer to the Texas Department of Corrections (TDC) for a two-year sentence. He has credit for 14 months of his time in county jail and would be eligible for parole and release if not for COVID-19 obstructing TDC pickups from the county jail.
2. Mr. Wright has Hepatitis C and a bad knee but no known other health conditions.
3. Mr. Wright heard a new guard was exposed to three detainees in a different pod who were confirmed to have COVID-19. She does wear a mask, but she engages in normal activities which requires her to interact with detainees. She touches surfaces and during breaks she takes her mask off and touches her face. The detainees she interacts with, including Mr. Wright, do not have any protective gear.
4. No one in Mr. Wright’s dorm has been tested for the virus.
5. Detainees can only see a nurse if they submit a sick call kite. Then it takes several days for the nurse to see them. They are also charged $10 for each visit to the nurse.
6. It is impossible to engage in social distancing. There are about 60 people in the dorm and the bunk beds are about 3 feet away. There are 3 toilets, 2 urinals, and 5 showers that all 60 people in the dorm have to share. They are cleaned about once a day and not after every use.
7. There are 5 regular phones and a video conference phone. Everyone in the tank shares them. They are not cleaned unless the detainees clean them themselves. They are supposed to be cleaned every shift change and it is usually a very brief cleaning. Sometimes it is not cleaned at all.
8. Sometimes the dorm gets a lot of soap, but sometimes they get none. They have to request more soap from the guards and they are sometimes denied. Sometimes the guards just don’t have the soap and other cleaning agents.
9. The jail staff have not provided Mr. Wright with information about the virus and how to prevent its spread. The only source of information on the virus is through the news.
10. It is incredibly difficult to file grievances and appeals because they do not have any paper, so they have to get the guards to print out the forms or give them something to

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write on. Sometimes the guards simply will not do it. The guards are not interested in getting them the papers to file the grievances.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

/s/ Adwoa Asante____
Adwoa Asante

Case 3:20-cv-00832-E Document 1-9 Filed 04/09/20 Page 1 of 2 PageID 68
Exhibit 8
Declaration of Alison Grinter on behalf of Terry McNickles

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Declaration of Alison Grinter on behalf of Terry McNickles
My name is Alison Grinter. I am an attorney who is licensed to practice in the Eastern District of Texas. On April 7, 2020, I spoke to a detainee in the Dallas County Jail named Terry McNickles (Bookin# 20012558) and he provided me with the following information:
1. Mr. McNickles, 58 years old, is an inmate in the Dallas County Jail, being held on a parole violation in the South tower, 3rd floor. His pod holds 64 beds and there are maybe 48 or 49 men there as of the date of this declaration.
2. His pod is the medical section. He had an operation for kidney cancer last year and has only one kidney. When they took out his kidney, the doctor said he would have to keep a special diet and make sure to wash his hands a lot because it would be very hard for him to fight off infections. He also takes medication for high blood pressure.
3. He does absolutely everything he can. He washes his hands constantly but he is very afraid.
4. Nobody in his pod is practicing social distancing, including the detention service officers. Sometimes they have masks on, sometimes they don’t. The only person who consistently wears a mask is the nurse when she passes out medicine to people in the pill line.
5. Everyone is bunched together in the pod. Even if a person did try to practice social distancing, when you sleep, it’s just three feet from the nearest person. When the inmates get their trays to eat and when they get medicine, they are packed in close.
6. Mr. McNickles is in bunk 42. The man in bunk 40 was coughing and sent to the hospital. The jail staff said that the man had heart trouble. But he was clearly sick because he was coughing.
7. Mr. McNickels has asked for instructions on how to stay safe. He also asked for face masks. The jail staff haven’t told him or given him any personal protective gear.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

_________________________ Alison Grinter

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Exhibit 9
Declaration of Adwoa Asante on behalf of Keith Baker

Case 3:20-cv-00832-E Document 1-10 Filed 04/09/20 Page 2 of 2 PageID 71

Declaration of Adwoa Asante on behalf of Jose Munoz
My name is Adwoa Asante. I am an attorney who is licensed to practice in the state of Texas. On April 7, 2020, I spoke to a detainee in the Dallas County Jail named Jose Munoz (Bookin# 19048523) and he provided me with the following information:

1. Mr. Jose Munoz is 37 years old. He is in jail for a drug possession charge, which he already pled guilty to and received 5 years of probation. He is currently waiting to go to a drug treatment facility, but is stuck in limbo because the facility is not picking up any detainees from the Dallas County Jail during the pandemic.
2. He has been in jail for six months and is currently located in South Tower 3C.
3. The guards are supposed to give the detainees personal protective equipment, but they have not received any masks or gloves.
4. Mr. Munoz has learned about the virus from the news, not from the jail staff. The guards sometimes they cover their mouths, but they generally pretend like nothing is going on.
5. There are 7 phones and 1 video conference booth that is shared amongst the entire dorm. The phones are cleaned every day by the detainees for their safety but not after every use. They use the chemicals for the restroom and for the tables.
6. They detainees are given soap irregularly and upon request. Mr. Munoz requested soap today and was told that the detainees were using excessive soap. He did not want to argue with the guards, so he did not receive any soap.
7. They are unable to engage in social distancing because of the climate and the structure of the jail. Mr. Munoz says that he cannot ask someone to move if they’re so close to him because he might be accused of being racist and this could lead to a physical altercation. He is very concerned about enforcing social distancing given the propensity for violence in the jail.
8. It is impossible to sleep 6 feet apart from each other because of the location of the bunks.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

/s/ Adwoa Asante_
Adwoa Asante

Case 3:20-cv-00832-E Document 1-11 Filed 04/09/20 Page 1 of 15 PageID 72

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. xx-cv---

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

DECLARATION OF ALISON GRINTER
I, ALISON GRINTER, DECLARE:
1. I am an attorney practicing almost exclusively criminal defense in the Dallas and Collin County Courts. I am Board Certified in Criminal Law. I serve as counsel for the plaintiffs and the putative class herein.
2. I make this declaration of my personal knowledge. 3. Prior to the COVID-19 outbreak, an individual petitioner seeking habeas relief in the Texas State Courts could expect his or her petition to remain pending for months, particularly if an appeal were taken. 4. Texas Courts, including those in Dallas, are issuing emergency closures and slowing their operations in response to the COVID-19 pandemic. 5. Attached hereto as Exhibit A is a true and correct copy of an email from K. Dickerson, Criminal District Courts Manager, March 24, 2020, re: Dallas County Criminal District Courts.

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6. Attached hereto as Exhibit B is a true and correct copy of an email from K. Dickerson, Criminal District Courts Manager, March 19, 2020, re: Criminal District Court 1 COVID-19 Protocol
7. Attached hereto as Exhibit C is an email from K. Dickerson, Criminal District Courts Manager, March 17, 2020, re: CDC 2 COVID-19 Protocol.
8. Attached hereto as Exhibit D is an email from K. Dickerson, Criminal District Courts Manager, March 16, 2020, re: CDC 5 COVID-19 Protocol.
9. As a criminal defense attorney practicing in Dallas County I received similar emails regarding COVID-19 protocols in many of the other Criminal District Courts.
10. Many of the Criminal District Courts have not adopted any specific written policies, but all have slowed or suspended functions. Policies and available services are often fluid and change daily depending on Court and staff availability.
11. As court staff have become exposed or have contracted the COVID-19, several courts have closed all or parts of the court operations for quarantine purposes.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 9th day of April, 2020.
Alison Grinter
Alison Grinter Texas Bar Number 24043476 6738 Old Settlers Way Dallas, Texas 75236 (214) 704-6400 alisongrinter@gmail.com agrinter@thengan.com

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Exhibit A to Grinter Declaration

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Exhibit B to Grinter Declaration

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Exhibit C to Grinter Declaration

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Exhibit D to Grinter Declaration

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 Case 3:20-cv-00832-E Document 2 Filed 04/09/20 Page 1 of 5 PageID 87

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;
Petitioners/Plaintiffs, v.
DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Civil Action No. 3:20-cv-00832
Plaintiffs’/Petitioners’ Motion for a Temporary Restraining Order, Preliminary Injunction and Writ of Habeas Corpus
Class Action
IMMEDIATE RELIEF SOUGHT

Respondents/Defendants

Plaintiffs/Petitioners (hereinafter “Plaintiffs”) respectfully move the Court for entry of a

writ of habeas corpus, temporary restraining order (“TRO”) and preliminary injunction under 28

U.S.C. § 2241, 42 U.S.C. § 1983, and Federal Rule of Civil Procedure 65. Plaintiffs are at grave

risk of contracting COVID-19, some with an imminent threat of dying if not provided medical

treatment, due to the unconstitutional conditions in the Dallas County Jail.

Plaintiffs seek an immediate, emergency TRO and writ of habeas corpus requiring

Defendants to: (1) identify and release all members of a subclass of medically vulnerable

individuals, (2) 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, and (3) to submit a plan implementing further public health protocols, to

be supervised by a qualified public health expert, to reduce the risk to class members of contracting

COVID-19.

Plaintiffs further seek a preliminary and/or permanent injunction and writ of habeas corpus

requiring that Defendants: (1) continue to release all current and future Medically-Vulnerable

subclass members, (2) report weekly on the population of persons in the Dallas County Jail who

are Medically-Vulnerable as defined in this action, (3) follow the terms of the public health expert

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plan submitted pursuant to Fed. R. Evid. 706, (4) and release additional Class Members, including those not considered “Medically-Vulnerable,” as needed to ensure that all remaining persons incarcerated in the Dallas County Jail 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 six feet or more of space between them.
As more fully presented in their brief in support of this motion and its accompanying evidentiary appendix, Plaintiffs state the following in support of their motion:
1. Plaintiffs are likely to succeed on the merits of their claims. Defendants’ deliberate indifference to the serious risk that COVID-19 poses to Plaintiffs and Class Members, and particularly members of the Medically Vulnerable Subclass, violates their rights under the Eighth and Fourteenth Amendments. Further, for Pre-Adjudication Class members, Defendants’ failures to ensure sufficient safety amounts to impermissible pretrial punishment in violation of the Fourteenth Amendment.
2. Without immediate injunctive relief from this Court, there is a substantial risk that Plaintiffs will suffer irreparable harm of serious illness and, in many cases, death.
3. Entry of an injunction poses no harm to Defendants and, indeed, will benefit Defendants because the currently prevailing conditions in the jail put jail staff at risk as well.
4. It is in the public interest to grant an injunction to prevent the spread of COVID-19 within the Dallas County Jail because an outbreak will have serious ramifications for people incarcerated in its walls, correctional and medical staff that carry the infection into their homes and communities, and Dallas County residents who will suffer from the ensuing rapid spread of this infectious disease through increased transmissions and the further taxing of local public health resources.
2

Case 3:20-cv-00832-E Document 2 Filed 04/09/20 Page 3 of 5 PageID 89 5. Plaintiffs respectfully request that the Court address their Motion on an emergency,
expedited basis, and grant the relief set forth in the enclosed Memorandum and Proposed Orders. 6. If immediate release is not granted on the basis of this Motion alone, then Plaintiffs
respectfully request expedited review of the Motion, including oral argument, via telephonic or videoconference if necessary.
3

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Dated: April 9, 2020.

Respectfully submitted,

_____________________ AMERICAN CIVIL LIBERTIES FOUNDATION Andrea Woods* N.Y. Bar No. 5595509 Meredith Taylor Brown* N.Y. Bar No. 5678602 Brandon Buskey* 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org
Henderson Hill* N.C. Bar No. 18563 201 W. Main St. Suite 402 Durham, NC 27701 (919) 682-9563 hhill@aclu.org
Amy Fettig* D.C. Bar No. 484883 915 15th Street N.W., 7th Floor Washington, D.C. 20005 (202) 548-6608 afettig@aclu.org

_____________________ ACLU FOUNDATION OF TEXAS Brian Klosterboer Texas. Bar No. 24107833 Adriana Piñon** Texas Bar No. 24089768 Andre Segura Texas Bar No. 24107112 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146 Fax: (346) 998-1577
_____________________ CIVIL RIGHTS CORPS Katherine Hubbard* D.C. Bar No. 1500503 Elizabeth Rossi* D.C. Bar No. 1500502 1601 Connecticut Ave NW, Suite 800 Washington, D.C. 20009 (202) 894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org

____________________ SUSMAN GODFREY L.L.P. Barry Barnett Texas Bar No. 01778700 8115 Preston Road, Suite 575 Dallas, TX 75225 (866) 754-1900 bbarnett@susmangodfrey.com
Michael Gervais* N.Y. Bar No. 5122890 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 789-3100 mgervais@susmangodfrey.com
_____________________ NEXT GENERATION ACTION NETWORK LEGAL ADVOCACY FUND Alison Grinter-Allen Texas Bar 24043476 Kim T. Cole Texas Bar No. 24071024 1808 South Good Latimer Expressway Dallas, TX 75226 (214) 704-6400 agrinter@thengan.com kcole@thengan.com

ATTORNEYS FOR PETITIONERS/PLAINTIFFS *pro hac vice application forthcoming **N.D. Texas admission application forthcoming
4

Case 3:20-cv-00832-E Document 2 Filed 04/09/20 Page 5 of 5 PageID 91 CERTIFICATE OF CONFERENCE
On April 9, 2020, I spoke by telephone and communicated by email with Kate David, counsel for defendants Dallas County Sheriff Marian Brown and Dallas County, Texas in Daves v. Dallas County, Texas, No. 3:18-cv-00154-N (N.D. Tex.), about the subject matter of and relief requested in this motion for temporary restraining order. Ms. David advised me that her clients are considering whether or not they will oppose the relief requested.
CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing was served via the Court’s CM/ECF system on all counsel registered with that system, and via email, on April 9, 2020. /s/ Barry Barnett Barry Barnett
5

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 3:20-cv-00832

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

The Plaintiffs’ Motion for Temporary Restraining Order is GRANTED:

1. It is ORDERED that within six hours of this order (by _______ [a.m./p.m.] today),

Defendants shall provide the Plaintiffs and this Court with a list of all individuals who are currently

detained at the Dallas County Jail who meet any of the following criteria:
• Have lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function;
• Have heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease;
• Have chronic liver or kidney disease (including hepatitis and dialysis patients);
• Have diabetes or other endocrine disorders;
• Have epilepsy;
• Have hypertension;
• Have a compromised immune system (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease);
1

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• Have blood disorders (including sickle cell disease); • Have inherited metabolic disorders; • Have a history of stroke; • Have a developmental disability; • Are now or have been pregnant within the last two weeks; • Are 50 years of age or older; and/or • Have any other condition identified either now or in the future as being a particular risk for
severe illness and/or death caused by COVID-19. 2. Within 24 hours after that list has been submitted (by _______ [a.m./p.m.] tomorrow), Defendants shall release the persons on the list absent proof of judicially-recorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate. The Court will schedule a hearing at _______ [a.m./p.m.] on ___________________, 2020 to resolve any disputes about whether certain listed individuals are entitled to release. 3. Defendants shall provide all persons on the list described in Paragraph 1 educational resources on COVID-19 including instructions that they should self-isolate for the CDC-recommended period of time (currently 14 days) following release. 4. Defendants remain free to voluntarily release any person or group of people currently incarcerated at the Dallas County Jail to the extent allowed by law. 5. Following immediate release of all Medically-Vulnerable Subclass Members, a plan, to be submitted to the Court in three (3) days from the date of this Order and overseen by a qualified public health expert agreed upon by the parties or ordered by the Court pursuant to Fed. R. Evid. 706, which outlines:
2

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a. 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;
b. A housing and/or public support plan for any released Class or Subclass Members whose testing confirms have been exposed to or infected with COVID-19 and who do not readily have a place to self-isolate for the CDC-recommended period of time (currently 14 days).
c. An evaluation of whether the release of the Subclass Members permits adequate social distancing and whether other categories of prisoners must be released to provide for compliance with CDC guidelines.
6. This Temporary Order is valid for a limited period of 14 days or until further order
of this Court, and the Court’s ruling is subject to change based on a more fully developed record
at preliminary injunction proceedings.
DONE AND ORDERED this ____ day of April 2020.

Copies furnished to: All Counsel of Record

United States District Judge

3

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 3:19-cv-00832

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION AND WRITS OF HABEAS CORPUS

The Plaintiffs’ Emergency Motion for a Preliminary Injunction is GRANTED: 1. The temporary restraining order/writs of habeas corpus of all Medically-Vulnerable
Subclass Members as provided for in this Court’s Order Granting Plaintiffs’ Motion for a Temporary Restraining Order will continue until a final ruling on the merits of the case.
2. Defendants are hereby ordered to release additional Class Members, including those not considered “Medically-Vulnerable” as defined in Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction, as needed to ensure that all remaining persons incarcerated in the Dallas County Jail 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 six feet or more of space between them.

1

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3. Defendants are hereby enjoined from confining more than one person in a cell until such time as the danger of contagion from COVID-19 recedes sufficiently to lift social distancing requirements.
4. Each Monday, no later than 1 pm. Central Time, Defendants must submit to Plaintiffs and the Court a list of any persons who are in custody of the Dallas County Jail who meet any of the following criteria, along with proof of judicially-recorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate:
• Have lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function;
• Have heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease;
• Have chronic liver or kidney disease (including hepatitis and dialysis patients); • Have diabetes or other endocrine disorders; • Have epilepsy; • Have hypertension; • Have a compromised immune system (such as from cancer, HIV, receipt of an organ or
bone marrow transplant, as a side effect of medication, or other autoimmune disease); • Have blood disorders (including sickle cell disease); • Have inherited metabolic disorders; • Have a history of stroke; • Have a developmental disability; • Are now or have been pregnant within the last two weeks; • Are 50 years of age or older; and/or
2

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• Have any other condition identified either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19. 5. Defendants are hereby ordered, for the pendency of this case, to adhere to the plan
submitted by a qualified public health expert agreed upon by the parties pursuant to Fed. R. Evid.
706 pursuant to this Court’s Order Granting Plaintiffs’ Motion for a Temporary Restraining Order,
including following:
a. 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;
b. A housing and/or public support plan for any released Class or Subclass Members whose testing confirms 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).
c. An evaluation of whether the release of the Subclass Members permits adequate social distancing and whether other categories of prisoners must be released to provide for compliance with CDC guidelines.
6. For the reasons explained in the attached opinion, the Court finds that the
preliminary injunctive relief requested by Plaintiffs is narrowly drawn, extends no further than
necessary to correct the harm this Court finds requires preliminary relief, and is the least intrusive
means necessary to correct the harm. Further, this Court has reached its conclusion after giving
substantial weight to any possible adverse impact on public safety and the operation of the criminal
legal system that could possibly be caused by preliminary relief.
DONE AND ORDERED this ____ day of April 2020.

Copies furnished to: All Counsel of Record

United States District Judge

3

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;
Petitioners/Plaintiffs, v.

Civil Action No. 3:20-cv-00832
Memorandum in Support of Motion for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus
Class Action

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

IMMEDIATE RELIEF SOUGHT

Respondents/Defendants

AMERICAN CIVIL LIBERTIES FOUNDATION Andrea Woods* Meredith Taylor Brown* Brandon Buskey* 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org
Henderson Hill* 201 W. Main St. Suite 402 Durham, NC 27701 (919) 682-9563 hhill@aclu.org
Amy Fettig* 915 15th Street N.W., 7th Floor Washington, D.C. 20005 (202) 548-6608 afettig@aclu.org

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS Andre Segura Adriana Pinon** Brian Klosterboer 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146
CIVIL RIGHTS CORPS Katherine Hubbard* Elizabeth Rossi* 1601 Connecticut Ave NW, Suite 800 Washington, D.C. 20009 (202) 894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org
NEXT GENERATION ACTION NETWORK Alison Grinter Kim T. Cole 1808 South Good Latimer Expressway Dallas, TX 75226 (214) 704-6400

SUSMAN GODFREY L.L.P. Barry Barnett State Bar No. 01778700 8115 Preston Road, Suite 575 Dallas, TX 75225 (866) 754-1900 bbarnett@susmangodfrey.com
Michael Gervais* 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 789-3100 mgervais@susmangodfrey.com
ATTORNEYS FOR PETITIONERS/PLAINTIFFS *pro hac vice application forthcoming **N.D. Texas admission application forthcoming

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TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1 I. CLASS DEFINITIONS .......................................................................................................3 II. THE FACTS THAT NECESSITATE THIS PETITION ....................................................4
A. COVID-19 Presents a Lethal Threat to Detainees in the Dallas County Jail. .................4 B. Without Immediate Intervention, the Dallas County Jail will Experience a Large-
Scale Outbreak of COVID-19 and Increase the Spread of COVID-19 in the Dallas Community. .....................................................................................................................8 C. Medically -Vulnerable Plaintiffs are at Extreme Risk of Harm Given the Likelihood of Exposure to COVID-10 in the Dallas County Jail; They Should be Immediately Released. ........................................................................................................................14 D. The Jail Is Not Taking Sufficient Precautions; an Uncontrolled Outbreak Is In Progress. .........................................................................................................................16 1. Physical and Social Distancing is not Possible..........................................................17 2. Insufficient Measures to Quarantine and Cohort Detainees. .....................................17 3. Insufficient Provide Personal Protective Equipment. ................................................18 4. Insufficient Hygienic and Cleaning Supplies. ...........................................................19 III. ARGUMENT .....................................................................................................................21 A. There is a Substantial Likelihood that Petitioners/Plaintiffs will Prevail on the Merits. ............................................................................................................................22 1. The Constitution is Violated by an Unreasonable Risk of Future Harm from
Contagious Disease. ...................................................................................................22 2. Defendants Have Shown Deliberate Indifference to the Medical Needs of Both
Pre- and Post-Adjudication Class Members. .............................................................23 3. Further, Defendants are Unconstitutionally Punishing Members of the Pre-
Adjudication Class. ....................................................................................................25 4. Faced with the Impossibilities of Safely Detaining Plaintiffs, a Temporary
Restraining Order Releasing Medically-Vulnerable Class Members and Further Injunctive Relief is the Only Option. .........................................................................26 B. A Substantial Threat Exists that Petitioners/Plaintiffs Will Suffer Substantial Irreparable Injury if the Court Does Not Issue the Requested Injunction. ....................28 C. The Threatened Injury to Plaintiffs/Petitioners and Class Members Outweighs the Potential Injury Posed by the Requested Injunction to Defendants, and the Public’s Interest Favors the Requested Injunction.......................................................................29 D. The Balance of Injuries and the Public Interest Favor the Immediate Release of the Medically Vulnerable Subclass Members. ....................................................................30
i

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Order Requiring the Defendants to Implement Constitutionally Sufficient Conditions at the Jail......................................................................................................32 F. The Balance of Injuries and the Public Interest Favor a Preliminary Injunction Requiring the Defendants to Implement Constitutionally Sufficient Conditions at the Jail. ...........................................................................................................................33 CONCLUSION ..............................................................................................................................34
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TABLE OF AUTHORITIES
Page(s)
Cases
In re Abbott, No. 20-50264 (5th Cir. Apr. 7, 2020) ....................................................................................5, 6
Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415 (5th Cir. 2017) .............................................................................................22, 25
Ball v. LeBlanc, 792 F.3d 584 (5th Cir. 2015) .............................................................................................24, 27
Bell v. Wolfish, 441 U.S. 520 (1979)...........................................................................................................22, 25
Brown v. Plata, 563 U.S. 493 (2011)...........................................................................................................23, 26
Byrum v. Landreth, 566 F.3d 442 (5th Cir. 2009) ...................................................................................................21
Callet v. Callaway, 496 F.2d 701 (5th Cir. 1974) ...................................................................................................21
Clark v. Prichard, 812 F.2d 991 (5th Cir. 1987) ...................................................................................................21
Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579 (5th Cir. 2013) ...................................................................................................21
Dawson v. Asher, 20-cv-409 (W.D. Wash.)..........................................................................................................28
DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989).................................................................................................................22
Estelle v. Gamble, 429 U.S. 97 (1976)...................................................................................................................23
Farmer v. Brennan, 511 U.S. 825 (1994)...........................................................................................................23, 24
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) ...........................................................................................25, 27
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Case 3:20-cv-00832-E Document 3 Filed 04/09/20 Page 5 of 42 PageID 102
Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) ...................................................................................................24
Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996) .....................................................................................................27
Hinojosa v. Livingston, 807 F.3d 657 (5th Cir. 2015) .............................................................................................24, 25
Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011) ...................................................................................................21
Johnson v. Epps, 499 F. App’x 583 (5th Cir. 2012) ................................................................................24, 25, 27
Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015) ........................................................................................................22, 25
Parker v. Carpenter, 978 F.2d 190 (5th Cir. 1992) ...................................................................................................25
Rhodes v. Chapman, 452 U.S. 337 (1981)...........................................................................................................25, 28
Thakker v. Doll, No. 20-CV-0480 (M.D.Pa. Mar. 31, 2020)..............................................................................26
United States v. Muniz, No. 4:09-CR-0199, 2020 WL 1540325 (S.D. Tex. Mar. 30, 2020).................................5, 7, 11
Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)...........................................................................................................21, 22
Velesaca v. Decker, 20-cv-1803 (S.D.N.Y.)...............................................................................................................8
United States Constitution; Statutes
U.S. Const., 8th Amd. ..................................................................................................22, 24, 25, 26
U.S. Const., 14th Amd. ..................................................................................................................22
United States Constitution Eighth and Fourteenth Amendments ..............................................2, 23
Other Authorities
Temporary Restraining Orders, 11A Federal Practice and Procedure § 2951 (3d ed. 2019) ..................................................................................................................................21
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In accordance with Rule 7.1 of the Local Civil Rules of the Northern District of Texas, Petitioners/Plaintiffs (hereinafter “Plaintiffs”) and Putative Class Members file this brief in support of their Petition for Habeas Corpus and Motion for Temporary Restraining Order and Preliminary Injunction, and would respectfully show the following:
INTRODUCTION Oscar Sanchez has a history of severe, chronic asthma that has required hospitalization in the past. Sanchez Dec. ¶ 4. On April 5, 2020 he reported hard chest pains and difficulty breathing to the medical staff at the Dallas County Jail and was told there was nothing to be done. Id. Several times a day, he comes into close contact with the dozens of other men housed in his pod at the Jail, and several new people are moved into his pod each week. ¶ 6–14. In the face of the highly contagious and deadly COVID-19 pandemic that is spreading in the Dallas County Jail, Mr. Sanchez’s health is at serious risk. Upon asking to be tested for COVID-19, Mr. Sanchez was told by Dallas County Jail staff that he would first have to put in a sick call costing $10: the staff member relaying this information commiserated with Mr. Sanchez by saying, “I don’t know what these people want you to do. Die first?” Id. at ¶ 17. Terry McNickles is a fifty-eight (58) year old man recovering from an operation for kidney cancer. McNickles Dec. ¶¶ 1–2. After his kidney removal surgery, his doctor told him he would have to take extra precautions to fight off infections—such as a special diet and increased handwashing—because his immune system had been compromised. Id. ¶ 2. Mr. McNickles is unable to protect himself from a highly-dangerous infection in the Dallas County Jail environment. Tesmond McDonald’s oxygen levels recently reached a dangerously low point and he has had such difficulty breathing that on at least one occasion “he thought he was going to die.” McDonald Dec. ¶¶ 4–6. Mr. McDonald’s condition is critical and he requires immediate medical intervention. Id.
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Defendant Sheriff Marian Brown (the “Sheriff”) of Dallas County, Texas (the “County”) is currently confining close to 5,300 people within the North, South, and West Towers of the Lew Sterrett Justice Center, Dallas County Jail (the “Jail”) in conditions that threaten their lives. As of the filing of the Petition for Temporary Restraining Order and Preliminary Injunction (Petition), at least 20 detainees and seven staff members in the Jail have tested positive for the novel coronavirus that causes COVID-19.
The Defendants are not taking reasonable, appropriate measures consistent with public health guidelines to halt the further spread of this deadly and highly contagious virus, putting the lives and health of thousands of people in the Jail, and countless others in the community, at risk. The Eighth and Fourteenth Amendments to the United States Constitution forbid this.
Because of the grave risk to health and life at stake, and the viable opportunity for a remedy is “a matter of days, not weeks,”1 Plaintiffs respectfully request the Court consider this Petition on an emergency basis and that the Court grant a temporary restraining order requiring the immediate release of all of the medically-vulnerable class members Plaintiffs seek to represent pending briefing and argument. Plaintiffs’ counsel emailed counsel for the Sheriff and the County on April 9, 2020 at 2:00 p.m. central time to alert them that an emergency filing is forthcoming and have already provided defense counsel with copies of this Petition and Plaintiffs’ Complaint. Plaintiffs’ counsel is prepared to appear by telephone immediately. Each day—indeed each hour—that passes risks the lives of the Plaintiffs and the lives of the putative class members. Absent immediate action by this Court, some will likely face the ultimate irreparable harm: death. This case cannot wait.
1 See Declaration of Eric Lofgren, Ph.D., App. 1-43, ¶ 34.
2

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I. CLASS DEFINITIONS Plaintiffs seek to represent two classes2 of all individuals jailed by the Sheriff. Plaintiffs
Oscar Sanchez, Marcus White, Keith Baker, and Tesmond McDonald seek to represent a class of all current and future detainees in pretrial custody, including alleged violations of probation or parole, at the Jail (“Pre-Adjudication Class”), including one subclass: (1) persons who, by reason of age or medical condition, the Centers for Disease Control and Prevention (CDC) and other public health experts have identified as particularly vulnerable to injury or death if they were to contract COVID-19 (“Medically-Vulnerable Pre-Adjudication Subclass”).
Plaintiffs Marcelo Perez, Paul Wright, Jose Munoz, Roger Morrison, Terry McNickles seek to represent a class of all current and future detainees in post-adjudication custody, including those serving a term of incarceration pursuant to an adjudicated violation of probation or parole, at the Jail (“Post-Adjudication 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 Post-Conviction Subclass”).
The “Medically-Vulnerable” subclasses are defined as all current and future persons held at the Jail over the age of 50, as well as all current and future persons held at the Jail 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
2 Plaintiffs’ Motion for Class Certification will be filed shortly. Plaintiffs file this Petition on behalf of the putative class members, but for ease of reference, describe them as “Class members” throughout this brief. Although this is a prototypical case for which the class action vehicle was created, the Court need not rule on Plaintiffs’ class certification motion or formally certify a class in order to issue the requested relief. See, e.g., Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed. 1990) (“Prior to the Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class suit.”).
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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.
II. THE FACTS THAT NECESSITATE THIS PETITION A. COVID-19 Presents a Lethal Threat to Detainees in the Dallas County Jail. Lives have been upended around the world by the unprecedented health emergency caused
by the rapid spread of COVID-19. The disease is highly contagious and deadly; it is thought to spread through respiratory droplets or by touching a surface or object that has the virus on it. There is no known cure, and development of a vaccine is likely at least 12 months away.3
On March 11, 2020, the World Health Organization announced that that the outbreak of COVID-19 is a pandemic. “[W]e are deeply concerned both by the alarming levels of spread and severity, and by the alarming level of inaction.”4 Current estimations are that between 20% and 80% of the world’s population will contract the virus. The current estimations of the rate of fatality fall between 1% and 6% of those who contract the virus—several times more fatal than the common flu that kills tens of thousands of Americans each year.5 The United States has officially declared a national emergency in the face of the COVID-19 pandemic,6 and the World Health
3 Saralyn Cruickshank, Experts Discuss Covid-19 and Ways to Prevent Spread of Disease, John Hopkins Mag. (Mar. 17, 2020), https://cutt.ly/VtKoV9N.
4 World Health Organization, Rolling updates on Coronavirus Disease (COVID-19) (updated April 7, 2020), https://cutt.ly/VtKoMRK .
5 As of April 8, 2020, there were 1,484,811 confirmed cases globally, with 88,0538 deaths and 329,876 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; see also “Coronavirus disease 2019 (COVID-19)”, UpToDate, https://cutt.ly/GtJYSkj (as of April 7, 2020, estimated overall fatality rate of 2.3 percent globally).
6 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, (March 13, 2020), https://cutt.ly/EtJLZQZ.
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Organization warned that the United States could well become the next global epicenter of the deadly virus7—a forecast that has unfortunately proved accurate. As of April 8, 2020, nearly 1.5 million people worldwide have confirmed diagnoses of COVID-19, including over 430,000 people in the United States.8 As of April 7, 2020, confirmed cases of COVID-19 in the United States were more than double the number in any other country.9 The Fifth Circuit noted on the same day that “‘Texas faces it[s] worst public health emergency in over a century.’” In re Abbott, No. 20-50264, at *4 (5th Cir. Apr. 7, 2020) (quoting district court).
The risk posed by COVID-19 is especially threatening to persons over 50 years of age, as well as persons of any age with certain underlying medical conditions, including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma. These and other health conditions make detainees “particularly vulnerable to severe illness from COVID-19.” United States v. Muniz, No. 4:09-CR-0199, 2020 WL 1540325, at *1 (S.D. Tex. Mar. 30, 2020) (granting compassionate release to federal prisoner suffering from renal disease, diabetes, and arterial hypertension); see CDC, Coronavirus Disease 2019 (COVID-19): At Risk for Severe Illness.10 These health conditions are more common among incarcerated persons11:
7 Kim Bellware, et al., White House asks everyone who left NYC area to self-quarantine for coronavirus; Trump pushes to ease restrictions by mid-April against expert advice, Wash. Post (March 24, 2020), https://cutt.ly/xtKpjpF.
8 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.
9 Jennifer Calfas, Chong Koh Ping, and Drew Hinshaw, Global Coronavirus Death Toll Passes 81,000 as Some Lockdowns Tighten, The Wall Street Journal (Apr. 7, 2020), https://cutt.ly/ztJLM0q.
10 Available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html. 11 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://cutt.ly/7tJXmlC.
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The spread of the virus is accomplished through both airborne mechanisms (sneezing), touching of surfaces that are contaminated, and most commonly through close contact with other humans carrying the virus. The virus can remain viable on surfaces like plastic or steel for two to three days. It then enters the body through the mouth, nose, or eyes and infects the respiratory system.12
There is currently no vaccine or cure. The most effective strategies to prevent spread is thorough hand washing and sanitizing with alcohol-based cleaners, avoiding touching of the face, and physical or “social distancing,” which requires all persons stay a minimum of six feet away from one another.13
“In Texas, the virus has spread rapidly over the past two weeks [as of April 7, 2020] and is predicted to continue spreading exponentially in the coming days and weeks.” In re Abbott, No. 20-50264, at *4. Nationally, the CDC projects that over 200 million people in the United States
12 Declaration of Dr. Robert L. Cohen In Support of Plaintiffs’ Motion for a Temporary Restraining Order, App. 44-59, at ¶¶ 9–11.
13 Id. at ¶¶ 2, 45.
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could be infected with COVID-19 over the course of the pandemic without effective public health
intervention, and that as many as 240,000 people in the U.S. will die from COVID-19 even accounting for interventions taken to date.14
Care around personal hygiene will not be enough to slow the spread of this disease. Public
health officials in Dallas County and across the country are asking that people engage in social and physical distancing to help “flatten the curve.”15 Social and physical distancing involves
avoiding human contact with all but a few other people. State and local leaders, as well as private
event organizers, are cancelling group events across the country. Colleges, universities, and local public schools are cancelling classes.16
The same factors that make cruise ships hotbeds17 for contagion spread, are present in jails:
many people living in a closed space, shared ventilation, common food preparation space,
communal living/bathing/toileting/eating, limited medical facilities, and limited ability to leave
the facility when symptomatic or after potential exposure to the virus. As Judge Keith Ellison
noted a week ago in granting compassionate release of a federal prisoner, “individuals housed
within our prison systems nonetheless are particularly vulnerable to infection” by COVID-19.
Muniz, No. 4:09-CR-0199, 2020 WL 1540325, at *1. Further, the jails face the additional challenge of “jail churn”18 where members of the community, including both detainees and jail
14 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.
15 Denise Chow and Jason Abbruzzese, What is ‘flatten the curve’? The chart that shows how critical it is for everyone to fight coronavirus spread (March 11, 2020, 2:15 pm.), https://cutt.ly/wtKayjh.
16 See, e.g., , Centers for Disease Control, Interim Guidance for Administrators of US K-12 Schools and Child Care Programs, https://cutt.ly/ItRPq5n.
17 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.
18 “The pathway for transmission of pandemic influenza between jails and the community is a two-way street. Jails process millions of bookings per year. Infected individuals coming from the community may be housed with healthy inmates and will come into contact with correctional officers, which can spread infection throughout a facility. On release from jail, infected inmates can also spread infection into the community where they reside.” Pandemic Influenza and Jail Facilities and Populations, American Journal of Public Health, October, 2009.
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staff, regularly move in and out of the facility bringing illnesses with them into the jail and then,
after infection, out to the community.
Numerous public health experts, including Dr. Gregg Gonsalves,19 Ross MacDonald,20 Dr.
Marc Stern,21 Dr. Oluwadamilola T. Oladeru and Adam Beckman,22 Dr. Anne Spaulding,23 Homer
Venters,24 Jaimie Meyer,25 the faculty at Johns Hopkins schools of nursing, medicine, and public
health,26 and Josiah Rich27 have all strongly cautioned that people booked into and held in jails are
likely to face serious, even grave, harm due to the outbreak of COVID-19. These experts are united
in their recommendation that jails like the Dallas County Jail significantly downsize its population
and reduce new incoming bookings.
B. Without Immediate Intervention, the Dallas County Jail will Experience a Large-Scale Outbreak of COVID-19 and Increase the Spread of COVID-19 in the Dallas Community.
The epidemiologist Eric Lofgren, Ph.D. describes the probability of massive COVID-19
infections and hundreds of deaths in the Dallas County Jail in the absence of immediate, emergency
intervention. Declaration of Dr. Eric Lofgren, Ph.D. App. 1-43, ¶¶ 7–9. Dr. Lofgren used, as a
model, a jail with approximately half the number of detainees as are presently confined in the
19 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror (March 11, 2020), https://cutt.ly/BtRSxCF.
20Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (March 19, 2020), https://cutt.ly/ptRSnVo.
21 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.
22 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, (March 10, 2020), https://cutt.ly/QtRSYNA.
23 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (March 9, 2020).
24 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (March 12, 2020), https://cutt.ly/jtRSPnk.
25 Velesaca v. Decker, 20-cv-1803 (S.D.N.Y.) at Doc. No. 42 (March 16, 2020) (Declaration of Dr. Jaimie Meyer).
26 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.
27 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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Dallas County Jail as the baseline. Id. ¶ 8. Dr. Lofgren provided a number of forecasts, based on (1) no intervention of any kind to slow the spread of COVID-19, (2) a community intervention of a shelter in place order, and (3) a shelter-in-place order plus a reduction in the jail population by reducing intakes by 25%. Id. at ¶ 10.
With a general shelter-in-place order in effect in the community but no intervention in the jail, Dr. Lofgren projects that a jail half the size of the Dallas County Jail would see 8,058 infections, 634 hospitalizations, and 186 deaths among incarcerated people over a six-month period. Lofgren Dec., Ex. B, App. 19-43. This would also yield 373 infections, 25 hospitalizations, and 3 deaths for jail staff. Id. Under this model, 486,193 infections, 25,579 hospitalizations, and 5,230 deaths would be realized in the surrounding community. With a shelter-in-place order and a reduction in the jail population by ceasing intakes for people eligible for bail (an approximately 25% reduction in intake), outcomes improve, but the results are still catastrophic: over six months, 6,273 incarcerated people would get infected (1,785 fewer), 508 would require hospitalization (126 fewer), and 149 would die (37 fewer). Id. Similar modest reductions would be seen among jail staff and the community. Id.
Put differently, a scenario of releasing bail-eligible arrestees without more would result in a 22.1 percent reduction in infections in the incarcerated population, and only a 2.7 percent reduction in infections within the community. Lofgren Dec. at ¶ 16, App. 4. Reducing jail admissions by approximately 25 percent will thus improve matters, but will not achieve the necessary public health intervention of downsizing and curbed jail admissions public health experts recommend: with “broader, more sweeping” deferrals of arrest and downsizing, far better outcomes will be achieved. Id. at ¶ 17 (noting that if jail admissions were reduced by approximately 83.4 percent, a 71.8 percent reduction in infections within the incarcerated
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Case 3:20-cv-00832-E Document 3 Filed 04/09/20 Page 15 of 42 PageID 112 population and a 12.1 percent reduction in infections in the community could be achieved, a 90 percent reductions in arrests would yield a 76.6 percent reduction in infections in the jail and a 13.7 percent reduction in infections in the community).
Dr. Lofgren’s projections are shown in the attached graphs:
Dr. Lofgren concludes that arrest deferral and release of detainees substantially improved outcomes for detainees, jail staff, and the community at large. Lofgren Decl. ¶¶ 33–35. Facilitating the release of persons who are medically vulnerable if they contract COVID-19 would also result in a 27.2 percent decrease in infections in a jail, and a 56.1 decrease in deaths in the jail. Id. at ¶ 17.
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There is no effective way for jails to accomplish the important task of creating the recommended social and physical distance between incarcerated people. In virtually all jails, including the Dallas County Jail, people are required to share sinks and toilets, and are very unlikely to be able to maintain the requisite six feet or more of physical distance from others, let alone wear face masks, in accordance with public health guidelines.28 While incarcerated people might have access to water, they may not have soap with which to wash their hands.29 Hand sanitizer is often considered prohibited contraband due to its alcohol content.30 While specifics vary by jail, the spread of COVID-19 is exacerbated by other common practices in jail administration, including: the use of communal showers and toilets; infrequent laundering of bedsheet and clothes, or laundering with water and no soap; poor ventilation and/or heat; shared cells or other over-capacity issues; or limitations on access to toilet paper, tissues, and other sanitary supplies. See Muniz, No. 4:09-CR-0199, 2020 WL 1540325, at *1 (pointing to “densely populated living conditions, dearth of soap, hand sanitizer, and protective gear, and impossibility of maintaining safe distance between inmates and guards as reasons prisoners are at particular risk of infection” by novel coronavirus).
None of the critical measures for mitigating the spread of COVID-19 is available for persons confined in the Dallas County Jail. The Jail is a congregate environment, in which people are confined in close proximity to one another and to Jail staff.31 Proper hygiene, as urgently recommended by the CDC, cannot be practiced in the absence of soap, cleaning materials, and
28 See, e.g., Nathalie Baptiste, Correctional Facilities are the Perfect Incubators for the Coronavirus (March 6, 2020), https://cutt.ly/XtKsSRu.
29 Id. 30 Id. 31 One report indicates that the highest known person-to-person transmission rate for COVID-19 to date took place in similar congregate environments: a skilled nursing home facility in Kirkland, Washington, and in the Cook County Jail in Chicago. Coronavirus in the U.S.: Latest Map and Case Count, NY TIMES (last visited April 8, 2020, 1:00 PM), https://cutt.ly/LtK2Xnv.
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hand sanitizer. Many of those detained suffer from underlying health conditions, including, among many others, asthma, diabetes, and hypertension, that place them at elevated risk for contracting and dying from COVID-19.32 The dangers COVID-19 presents to persons in the Dallas County Jail are illustrated by the rate of transmission in other U.S. jails once the virus was present in the jail environment: on Rikers Island in New York City, the rate of infection among incarcerated people is over seven times the rate of infection in New York City generally, and 25 times higher than the rate in Wuhan, China.33 Reports indicate that the Cook County Jail in Chicago is currently the largest known source of U.S. infections.34
The Dallas County Jail consists of the North Tower Detention Facility, the West Tower Detention Facility, and the Suzanne Lee Kays (South Tower) Detention Facility.35 They respectively hold up to 3,292, 1,530, and 2,304 detainees. The North Tower has 188 single cells, and the West Tower contains 25.36 Each tower houses dozens of “tanks” in which multiple detainees routinely mix and use common facilities. Single cells are rare.
Dr. Robert L. Cohen, an expert in public health in jails and prisons, notes in support of this motion, “the current conditions in the Dallas County Jail create a high risk of contributing to an outbreak of COVID-19… Everyone who lives and works in a jail is at the highest risk.” See Declaration of Robert L. Cohen, M.D., Regarding the Spread of COVID-19 in and from the Dallas County Jail (Cohen Dec. ¶ 4-5, App. 46). This is due to a number of factors, including, among
32 See Are You at Higher Risk for Severe Illness?, Centers for Disease Control (Mar. 20, 2020), https://cutt.ly/stKs4ty.
33 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 March 30, 2020, 11:00 AM), https://cutt.ly/RtYTbWd.
34 NBC Chicago, Report: Cluster of COVID-19 Cases at Cook County Jail the Largest in the Nation, (April 7, 2020 4:40 p.m.), https://cutt.ly/HtLmMDs.
35 See Dallas County Sheriff: Detention Centers, https://cutt.ly/mtKdwj2. 36 Id.
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others, the inability to engage in physical distancing inside the jail, the inability to isolate and
manage known and suspected cases of COVID-19, and the endemic problems of hygiene and sanitation that universally plague contemporary U.S. jails and prisons. Id. ¶¶ 6–10, 19, 27–28.37
As a result of these stark realities, the CDC has issued Guidance on the Management of
COVID-19 in Correctional and Detention Facilities, specifying steps that must be taken in light of
the “unique challenges for control of COVID-19 transmission” that are present in correctional and detention settings.38 These steps include, among many others, specified actions to ensure sanitation
of frequently touched surfaces, the provision of protective gear to staff and to infected persons,
screening of those entering the facility, isolation of those with COVID-like symptoms, and quarantine of those who are known to be infected.39 The Guidance states that “adequate levels of
custody and healthcare staffing must be maintained to ensure safe operation of the facility.” Id.
These steps are by no means the equivalent of the precautions recommended for those in
the free community. They are the absolute bare minimum that must be done to prevent a severe
outbreak of contagion within the Jail. The Guidance recognizes the well-known facts that options
for medical isolation of COVID-19 patients are “limited” in a carceral setting and the ability to
sanitize is compromised. Id. at 2. Further, as Drs. Cohen and Lofgren emphasize, these measures
37 See also Matthew Impelli, Alcohol-Free Sanitizer Given to Prisoners to Prevent Them from Making ‘Moonshine,’ Newsweek (Mar. 16, 2020), https://cutt.ly/0tKdQoX (reproducing comments of Sherif Sultan, president of the International Society of Vascular Surgery); Jennifer Gonnerman, A Rikers Island Doctor Speaks Out to Save Her Elderly Patients from Coronavirus, New Yorker (Mar. 20, 2020), https://cutt.ly/ttKdW16; Amanda Klonsky, Opinion, An Epicenter of the Pandemic Will Be Jails and Prisons, If Inaction Continues (Mar. 16, 2020), https://cutt.ly/VtKdTeA (“The pathway for transmission of pandemic influenza between jails and the community is a two-way street. Jails process millions of bookings per year. Infected individuals coming from the community may be housed with healthy inmates and will come into contact with correctional officers, which can spread infection throughout a facility. On release from jail, infected inmates can also spread infection into the community where they reside.”); Pandemic Influenza and Jail Facilities and Populations, American Journal of Public Health, October, 2009; see also Dr. Anne Spaulding, Coronavirus and the Correctional Facility: for Correctional Staff Leadership, Mar. 9, 2020, https://cutt.ly/ztKdY6B.
38 Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), https://cutt.ly/atJPt5B.
39 Id., at 9-22, e.g.
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must be taken in addition to a downsizing of jail populations, including at the Dallas County Jail: no intervention will be effective without the release of the Medically-Vulnerable Subclass Members and additional persons as needed to achieve physical distancing. Cohen Dec. at ¶¶ 30– 31, App. 55 (noting that “less urgent action” than “considerable downsizing” will not be sufficient); Lofgren Dec. at ¶¶ 29 – 34, App. 8-9 (noting that immediate decrease of population density, as well as reduced intake, is “both necessary and urgent”).
Any outbreak within the Jail cannot be confined to those incarcerated there. Jails are not— and cannot become—isolated facilities. Each day, jail staff enter the facility, touch detained individuals or surfaces which detained individuals have touched, and return home to their families and communities. See Lofgren Dec. ¶ 35, App. 9. A sudden influx of serious COVID-19 cases from the Jail risks overwhelming the County’s public hospital. The outbreak in the Jail cannot be contained. And it puts the wider community at risk.
C. Medically -Vulnerable Plaintiffs are at Extreme Risk of Harm Given the Likelihood of Exposure to COVID-10 in the Dallas County Jail; They Should be Immediately Released.
Seven of the nine Named Plaintiffs are at high risk of injury or death if exposed to COVID19 due to their medical-vulnerability.
Oscar Sanchez has a history of severe, chronic asthma that has required hospitalization in the past. Sanchez Dec. ¶ 4. On April 5, 2020 he reported hard chest pains and difficulty breathing to the medical staff at the Dallas County Jail and was told there was nothing to be done. Id. Mr. Sanchez’s condition could become very serious in the coming day.
Tesmond McDonald has tested positive for COVID-19 and should be released immediately to receive proper medical care. McDonald Dec. ¶ 5. Mr. McDonald suffers from asthma and high blood pressure, and his COVID-19 symptoms are extremely serious. ¶ 2. Mr. McDonald recently developed body aches, has difficulty breathing and on multiple occasions had
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so much trouble catching his breath that he “thought he was going to die.” ¶ 6. His oxygen levels were recently tested at a dangerously low level. ¶ 5.
Marcelo Perez has high blood pressure and diabetes. Perez Dec. ¶ 2. He has not had his sugar levels tested recently, and his metformin doses now keep him awake at night. Id.
Roger Morrison suffers from severe allergies, high blood pressure, hepatitis C, and cirrhosis of the liver. Morrison Dec. ¶ 2. These conditions cause Mr. Morrison to have a weakened immune system. Id. Mr. Morrison knows that he is at a high risk if he were to contract COVID-19 but does not know how to prevent himself from getting the virus while incarcerated in the Dallas County Jail. Id. ¶ 3.
Keith Baker suffers from severe asthma and required frequent use of an inhaler prior to his incarceration and the outbreak of COVID-19. Baker Dec. ¶ 2. On March 26, 2020, Mr. Baker suffered a severe asthma attack and could not breathe. Id. The only assistance the jail staff offered Mr. Baker was a sleeping pill. Id.
Paul Wright will turn forty-eight years old in two days, April 11, 2020. Wright Dec. ¶ 1. He has Hepatitis C, and comes into frequent contact with numerous people each day who increase his risk of illness through the coronavirus, including staff that has been in contact with detainees with confirmed COVID-19 cases. Id. ¶ 3.
Terry McNickles is a fifty-eight (58) year old man recovering from an operation for kidney cancer. McNickles Dec. ¶¶ 1–2. After his kidney removal surgery, his doctor told him he would have to take extra precautions to fight off infections—such as a special diet and increased handwashing—because his immune system had been compromised. Id. ¶ 2.
In support of this motion, Plaintiffs also submit declarations from others—proposed class members—detained in the Dallas County Jail. Their stories further illustrate the urgency of
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identifying and releasing all Medically-Vulnerable Subclass Members. See, e.g., Yarborough Dec.,
App. 76-78, (Detainee susceptible to kidney infections housed in the South Tower of the Dallas
County Jail); Hinojosa Dec., App. 61-62 (Detainee with high blood pressure, compromised kidney
housed in the South Tower).
D. The Jail Is Not Taking Sufficient Precautions; an Uncontrolled Outbreak Is In Progress.
There is an escalating public health emergency in the Jail. Despite the public health
guidelines issued by the national, state, and local government to prevent widespread transmission
of COVID-19, the Jail has failed to take sufficient precautions to safeguard the Plaintiffs or
putative class members and they face an immediate risk of harm as a result. Known conditions in
the Dallas County Jail include a jump in a week’s time from five reported COVID-19 infections of detainees and Jail employees to almost 30 as of April 7, 2020,40 a general lack of testing for COVID-19 infection of detainees during detention or upon release,41 failure to begin “checking
the temperatures of employees assigned to the jail” or asking detainees during the intake process
“a set of preliminary questions recommended by Dallas County’s healthcare partners” until March 27, 2020,42 failure of Jail employees to report for work, and routine use by Jail employees of
single-use disposable surgical masks for a week or more. The number of known infections will
40 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Table 4 (Apr. 7, 2020), https://cutt.ly/ztJZwXa. Editorial, COVID-19 spreads with close contact, so what do we do about those in jail?, The Dallas Morning News (Apr. 5, 2020), https://cutt.ly/8tJOi67 (“At the time of this writing, 20 inmates had tested positive for the virus, along with six detention officers and one deputy.”); Ashley Paredez, Confirmed COVID-19 cases at Dallas County Jail now up to 28, Fox 4 (April 4, 2020), https://cutt.ly/0tJSenr (“The number of coronavirus cases at the Dallas County jail has increased from five cases last week, to now a total of 28” and noting that “six [of those testing positive] are detention officers and two are clerks”); COVID-19 Live Updates, KERA News (quoting Director of Dallas County Health and Human Services on April 5, 2020 as saying “the jail has 24 cases, which includes 22 inmates and two detention officers,” presenting approximately 25% of all new cases in Dallas County that day), https://cutt.ly/itJSsiy.
41 Dallas County Sheriff’s Office, “COVID-19 Initiatives,” (March 27, 2020), https://cutt.ly/NtJO7zY (stating that “COVID-19 tests are administered after meeting the Dallas County Health and Human Services criteria” but not at intake or release and apparently only if potentially infected person comes to attention of “health care professionals”).
42 Id.
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continue to rise. Indeed, there are likely now many more infections in the Jail than are known because of the limited availability of COVID-19 tests.
Staff are also falling ill. At least six detention officers and one deputy have tested positive for COVID-19.43 As infections continue to rise in the Jail, the CDC COVID Prison Guidance is not being implemented, and it will continue to become increasingly ignored.
1. Physical and Social Distancing is not Possible The Jail is failing in its responsibility to enable social distancing. The Jail continues to house detainees in dormitory-style settings (or “tanks”) and in multiple-person cells where detainees are in close physical contact with one another. Many of the detainees sleep in shared bunk dorm “pods” with up to 64 beds. Sanchez Dec. ¶ 2 (all pods in the South Tower have 64 beds in a common room); Perez Dec. ¶ 3; McNickles Dec. ¶ 1. Even though the bunks are only between 1 and 4 feet apart, far closer than the recommended six or more feet, the shared bunk rooms have been almost full to capacity with between 48 and 60 men at any given time in the last few weeks in a single common dorm. Wright Dec. ¶ 6; Morrison Dec., ¶ 4, Munoz Dec., ¶ 8; Perez Dec. ¶ 3; Sanchez Dec. ¶. 2; McKnickles Dec. ¶¶ 1. 5. Neither the detainees nor the staff practice—or are able to practice—social distancing. Sanchez Dec. ¶ 7; McKnickles Dec. ¶ 4.
2. Insufficient Measures to Quarantine and Cohort Detainees. There are also multiple reports that the Jail’s system for quarantine and medical isolation is flawed. Detainees who tested positive remained in group dorms next to detainees who did not have symptoms and who had not been tested. See Baker Dec. ¶ 4 (describing Plaintiff Baker’s repeated requests to be moved when held next to individuals with confirmed cases of the virus). Even when the Dallas County Jail officials determined that positive cases required movement of
43 Dallas County HHS, 2019 Novel Coronavirus (COVID-19), supra note 40 at Table 4. Dallas Morning News Editorial, supra note 40; Paredez, supra note 40; KERA News Updates, supra note 40.
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exposed detainees, they transferred the individuals who had been exposed in closed proximity with persons with confirmed cases to different dorms without any testing. See Sanchez Dec. ¶ 3 (describing his transfer to from the dorm with a number of confirmed cases to a new dorm without testing); Baker Dec. ¶¶ 4-5 (describing being transferred to a new cell, connected to two other cells, after being in proximity with the confirmed cases and not receiving testing despite the fact that he had a sore throat and cough).
3. Insufficient Provide Personal Protective Equipment. Further, the Jail has no functioning system to enable prisoners to protect themselves from exposure. See Perez ¶ 6 (“When Mr. Perez asked for a mask, he was told that the jail staff have to buy their own masks, so they would not give him one.”); Sanchez ¶ 5 (“When Mr. Sanchez asked guards for a facemask, he was told the only people that need masks are the guards.”); McKnickles ¶ 7 (“He also asked for face masks. The jail staff haven’t. . . given him any personal protective gear.”). See also, Morrison ¶5; Munoz ¶ 3; White ¶ 3. Those that are denied staff masks are also prevented from creating their own from materials they have access it in their cells. Perez ¶ 6 (“Some detainees tried wrapping bath towels around their heads to cover their faces, but the jail staff told them they were not allowed to do that.”). When detainees are given masks, they are expected to wear the same mask for the remaining period of their detention, regardless of how long. Baker ¶ 9 (“Mr. Baker was provided with a mask only after he asked for one. He has had to use the same one repeatedly because he was not given replacements.”). Most egregiously, when a detainee is removed from a pod because he is sick, the guards require his cellmates to collect the sick man’s belongings and clean his bunk without first providing them with any personal protective gear. Sanchez Dec. ¶ 3; Perez Dec. ¶ 9.
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4. Insufficient Hygienic and Cleaning Supplies. The Dallas County Jail has also fallen far short of ensuring sufficient stocks of hygiene and cleaning supplies or providing detainees with no-cost access to these supplies. Wright Dec. ¶8. (“Sometimes the guards just don’t have the soap and other cleaning agents.”) Some detainees are given 3-4 single use bars of soap once a week that don’t last one day. McDonald ¶ 11. Others are not given any soap at all. White ¶ 6. The only way to obtain additional soap is to purchase it through commissary, which is either irregularly available or shut down completely, depending on the Tower. Mcdonald ¶ 11; Baker ¶ 6; Sanchez 11. See Munoz ¶6, “Mr. Munoz requested soap today and was told that the detainees were using excessive soap. He did not want to argue with the guards, so he did not receive any soap.” As a result, detainees and the cells in which they are forced to live are anything but clean. See Morrison ¶6 (“The pod is filthy”); McDonald ¶10 (“The walls in his cell are so dirty that he is afraid to touch them.”). While some pods have access to shower daily, detainees in pods holding people who have either tested positive for COVID-19 or are suspected of exposure to COVID-19 have been denied showers for up to ten days in a row. Baker par 8. White ¶8. Sick detainees are therefore forced to either “take a bird bath in the sink” or forego bathing altogether. When they are finally allowed to take a shower, the water is cold. Baker ¶8. The Dallas County Jail has failed to enforce adequate policies for disinfecting surfaces to prevent the spread of the virus. First, large numbers of detainees share a small number of phones, yet the phones are not regularly cleaned. Sanchez p7 (“All 60 men in both A and E pods share 8 phones, none of which are disinfected between use.”) Additionally, detainees themselves are responsible for cleaning the pods, including the toilets and showers. Volunteers are rewarded with larger portions of food regardless of the quality of their work. Because the jail has not adequately informed detainees about the virus and how to prevent its spread, cleaning volunteering often do
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an insufficient job which goes unchecked. Sanchez par 8. (“Mr. Sanchez started volunteering because his bunk is 3 feet from the toilets and the other volunteers usually do not clean properly.”).
In the face of this dysfunction, COVID-19 will continue its unrelenting spread through the Jail. Lofgren Dec. ¶¶ 22–28, App. 6-8. Under accepted standards of medical care and the CDC COVID Prison Guidance, quarantine will be necessary for greater and greater numbers of detainees. As this happens, it will become more and more difficult to separate those who are infected (or might be infected) from those who are not. Cohen Dec. ¶ 22, App. 52. Necessary monitoring of the temperature and other symptoms of those who are or are suspected to be infected will become overwhelming. To the extent that medical management of these quarantined individuals is not already impossible, it will soon become so. See Cohen Decl. ¶¶ 17, 23, 28, App. 50, 53-55.
All of these problems are magnified by the risks to the health and safety of medical workers in the Jail, which will limit the Jail’s ability to manage and monitor those who are in quarantine and those in medical isolation. Cohen Dec. ¶¶ 5, 21, App. 46, 52. As the virus spreads and healthcare staff are increasingly infected, Dallas County’s public healthcare system will be stretched to its breaking point.44 The Jail has limited facilities for isolating and caring for acutely ill detainees. The urgent necessity of focusing on the spread of COVID-19 and the treatment of those who are infected will limit the Jail’s ability to provide medication and other needed treatment to non-COVID-19 patients. Cohen Dec. ¶ 21–22, App. 52. If immediate action is not taken, Plaintiffs and members of the putative class, jail staff, and members of the broader Dallas County community may die as a result.
44 See e.g., Fox 4, Dallas Hospitals Report having more than 2,00 beds, 563 ventilators available (Apr. 5, 2020) https://cutt.ly/ztJVCs1.
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III. ARGUMENT A preliminary injunction is warranted if the movant demonstrates: (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 an injunction will not disserve the public interest. Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). The same factors apply to a motion for temporary restraining order (TRO). Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). Plaintiffs satisfy each of these requirements. Moreover, where circumstances are such that even the time needed to hear a request for a preliminary injunction is too long to prevent irreparable harm, a TRO may issue while a court considers a request for a preliminary injunction. See Charles Alan Wright, et al., Temporary Restraining Orders, 11A Federal Practice and Procedure § 2951 (3d ed. 2019); see also Callet v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974) (Courts are authorized to enter habeas relief pending a full disposition on the merits of a petition). Such is true here – as Dr. Lofgren notes, the critical window to prevent both disastrous medical fallout and a violation of proposed Class Members’ constitutional rights is “a matter of days, not weeks.” Lofgren Dec. ¶ 34, App. 9. Because the “purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held,” and “given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). “A party thus is not required to prove his case in full at a preliminary-injunction hearing.” Id. (citation omitted). Instead, to “show a likelihood of success, the plaintiff must present a prima facie case”—“not prove that he is entitled to summary judgment.” Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d
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579, 582 (5th Cir. 2013). Indeed, the U.S. Supreme Court has cautioned against “improperly
equat[ing] “likelihood of success” with “success” when considering requests for preliminary
injunctions. See Camenisch, 451 U.S. at 394.
A. There is a Substantial Likelihood that Petitioners/Plaintiffs will Prevail on the Merits.
1. The Constitution is Violated by an Unreasonable Risk of Future Harm from Contagious Disease.
The government has an affirmative duty to provide conditions of reasonable health and
safety to the people it holds in its custody. As the Supreme Court has made clear,
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being . . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment . . . .
DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989).45 Conditions
that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition against
cruel and unusual punishment, even if that harm has not yet come to pass.
That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is “reasonable safety.” . . . . 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.
45 Many of the cases discussed in the Motion involve the protections of the Eighth Amendment, which applies to convicted prisoners. As explained below, members of the Pre-Adjudication Class are entitled to even greater protection; as pretrial detainees they may not be punished at all, and are protected by the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”); id. at n.16 (pretrial detainees retain greater protections than convicted counterparts); Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473-74 (2015) (requiring pretrial detainees need only show the objective prong of the “deliberate indifference” test in excessive force context); Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415 (5th Cir. 2017) (concurring opinion suggesting that Kingsley should be extended to all pretrial detainee medical claims). Because the legal protections for the Pre-Adjudication Class are stronger, as a practical mater if they too satisfy the Eighth Amendment test outlined here, Pre-Adjudication Plaintiffs will have necessarily also met their burden under the Fourteenth Amendment.
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Helling, 509 U.S. at 33 (quoting DeShaney, 489 U.S. at 200). The Court in Helling specifically recognized that the risk of contracting a communicable disease could constitute such an “unsafe, life-threatening condition”:
In Hutto v. Finney, 437 U.S. 678, 682 (1978), we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed . . . . Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms. Id. at 33; see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, “the mingling of inmates with serious contagious diseases with other prison inmates”). In this case, Plaintiffs and the Medically-Vulnerable Subclass members they seek to represent are at serious risk of severe illness or death from COVID-19. Non-Medically-Vulnerable Class members are at risk of serious illness, injury, death, and/or transmission to family members and loved ones.
2. Defendants Have Shown Deliberate Indifference to the Medical Needs of Both Pre- and Post-Adjudication Class Members.
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 both the Eighth and Fourteenth Amendments, jail 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 detainees’ serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Brown v. Plata,
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563 U.S. 493, 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).
This obligation requires corrections officials to protect incarcerated people from infectious diseases like COVID-19; officials may not wait until a petitioner tests positive for the virus and an outbreak further spreads. Helling, 509 U.S. at 33-34; 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.”).
Government 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 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”
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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, 501 F.2d at 1300-03 (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)).
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 Part II(D) (describing the Dallas County Jail’s failures to implement social distancing, quarantining, and hygienic practices thus far). COVID-19 is a “serious, communicable disease,” Epps, 499 F. App’x at 58992 that is already present in the Dallas County Jail, and spreading as the Court reads this brief. The risk to the health and lives of Plaintiffs and Class Members is “open and obvious.” Hinojosa, 807 F.3d at 667.
3. Further, Defendants are Unconstitutionally Punishing Members of the Pre-Adjudication Class.
In the case of the Pre-Adjudication Class, Defendants’ inaction further constitutes unconstitutional punishment. See, e.g., Bell, 441 U.S. at 535 (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”); id. at n.16 (pretrial detainees retain greater protections than convicted counterparts); Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (ordering evidentiary hearing on whether transfer to more violent wing was punitive). Punishment—and therefore deliberate indifference—is established if the jailer’s conduct is either not rationally related to a legitimate, nonpunitive government purpose or excessive in relation to that purpose. Bell, 441 U.S. at 561; Kingsley, 135 S. Ct. at 2473–74; see also Alderson, 848 F.3d at 424. Both elements are satisfied here. Even if the
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Jail’s current spacing of detainees and provision of healthcare would serve the legitimate purpose of jail health and safety in normal times, those procedures, are now endangering health and safety in the wake of COVID-19 by keeping people in the Jail. Hence, continuing to detain Plaintiffs and putative class members is not rationally related to the goal of health and safety (both the Jail’s and the public’s) and is indeed excessive in relation to the course of conduct that would achieve that goal: release with any necessary supports identified according to a public health expert’s plan . See Plata, 563 U.S. at 531-32 (ordering release of inmates to correct overcrowding that violated Eighth Amendment); Memorandum and Order, Thakker v. Doll, No. 20-CV-0480 (M.D.Pa. Mar. 31, 2020) (categorically releasing petitioners who “suffer[] from chronic medical conditions and face[] an imminent risk of death or serious injury if exposed to COVID-19).
4. Faced with the Impossibilities of Safely Detaining Plaintiffs, a Temporary Restraining Order Releasing Medically-Vulnerable Class Members and Further Injunctive Relief is the Only Option.
As outlined in both the Cohen and Lofgren declarations, there are no mitigation efforts that the Jail could undertake that would better prevent the risk of contraction—and possible later spread to the non-jail community—than immediate release of the Medically-Vulnerable Subclass and additional Class Members to ensure physical distancing is maintained for those who remain in the Dallas County Jail. Cohen Dec., App. 44-59, at ¶ 30 – 31 (“less urgent action will not be sufficient”); Lofgren Dec., App. 1-43, at ¶ 34. In addition to the immediate release of all Medically-Vulnerable Class Members, the Jail must provide the additional conditions outlined by Dr. Cohen and the CDC (e.g., physical distancing, testing, quarantine, hygiene, medical care, personal protective equipment, public health information, etc.); including granting further release for additional class members to ensure sufficient physical distancing, if public health expertise so requires.
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With more than 5,000 detainees in the North, South, and West Towers of the Lew Sterrett Justice Center, dozens of employees failing to report for work, the delay in starting to screen employees and detainees for COVID-19 until March 27, 2020, the general unavailability of COVID-19 test kits for detainees and employees, the shortage of N95 masks and other personal protective equipment (PPE) even for employees much less for detainees, the routine mingling of large groups of detainees (50 or more) within dozens of pods, and the impossibility of implementing social and physical distancing for detainees and employees, the Dallas County Jail cannot do the things necessary to protect detainees, employees, and the larger community against the racing spread of COVID-19. Thus, (1) immediate release of the most medically vulnerable persons, followed by (2) frequent reporting, improved health protocols, and—if public health still mandates—(3) further release of additional Class Members, are the necessary and least intrusive means of vindicating Class Members’ constitutional rights and preventing grave irreparable harm for the proposed Classes and the Dallas community.
Despite the unquestionable risk posed by COVID-19 to Plaintiffs and Class Members— and by extension, the public at large and its healthcare providers who will be required to care for more and more detainees who become seriously ill from COVID-19—Defendants have not taken such steps. These facts easily support “an inference of deliberate indifference.” Id.; Ball, 792 F.3d at 594; Epps, 499 F. App’x at 589-92; Hare v. City of Corinth, Miss., 74 F.3d 633, 644 (5th Cir. 1996) (“[E]ven 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.”); Gates, 501 F.2d at 1300-03 (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
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unsanitary and inhumane conditions, “constitute[d] cruel and unusual punishment”) (cited with approval in Rhodes, 452 U.S. at 352 n. 17). As Dr. Cohen notes, the conditions in the Dallas County Jail “create a high risk of contributing to an outbreak of COVID-19,” as the jail is not operationalizing public health guidance and is not equipped to slow transmission of the disease. Cohen Dec. at ¶¶ 4, 13–22, App. 46, 49-52.
B. A Substantial Threat Exists that Petitioners/Plaintiffs Will Suffer Substantial Irreparable Injury if the Court Does Not Issue the Requested Injunction.
Failing to grant Petitioners/Plaintiffs their requested injunction would result in a substantial threat of irreparable injury to them (and by extension, the public at large in north Texas)). As Dr. Lofgren notes, continuing to book, process, and incarcerated Class Members into the Dallas County Jail in the usual course of business, without releasing Class Members, will yield substantial additional cases of COVID-19 and deaths in the Dallas County over a six month period. Lofgren Dec. at ¶ 22–23, App. 6-7.
The need for immediate relief to prevent irreparable harm could not be clearer. Plaintiffs allege injuries that are irreparable and, therefore, not suitable for resolution in the ordinary course of litigation. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States, 549 F.3d 1079 (7th Cir. 2008). Injuries do not get more paradigmatically irreparable—that is any more truly beyond repair—than death. And even in non-fatal cases, COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, cause permanent loss of breathing capacity.46 COVID-19 may also target the heart, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can reduce the heart’s ability
46 Dawson v. Asher, 20-cv-409 (W.D. Wash.) at Doc. No. 5, Declaration of Dr. Jonathan Louis Golob ¶ 7.
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to pump.47 This reduction can lead to rapid or abnormal heart rhythms in the short term, and longterm heart failure that limits exercise tolerance and the ability to work.
Courts across the country, accordingly, have recognized that risk of exposure to the coronavirus constitutes an irreparable harm. See Petition/Complaint at ¶ 40 (collecting examples of jails responding to the COVID-19 crisis with emergency release of incarcerated people).
Further, the status quo deprives Plaintiffs and Class Members of an established liberty interest without procedural and substantive due process. The record clearly indicates that this constitutional deprivation is ongoing and wide-spread. Those currently detained under the current conditions in the Jail risk severe illness and the potential loss of their life. Without an injunction, the risk of these injuries will continue and likely increase, as discussed above.
C. The Threatened Injury to Plaintiffs/Petitioners and Class Members Outweighs the Potential Injury Posed by the Requested Injunction to Defendants, and the Public’s Interest Favors the Requested Injunction.
Plaintiffs and Class Members seek relief to limit the spread of COVID-19 between and among them. The Jail is not an isolated environment. It cannot be contained or separated from the community at large. Moreover, it is in both the Defendants’ and the broader public interest to provide the remedies Plaintiffs seek. Uncontrolled infection within the Jail therefore risks the health and safety of every person connected directly or indirectly to the many correctional officers, healthcare workers and other necessary staff who enter and leave the Jail environment on a daily basis. Therefore, any remedy that will protect the Petitioners/Plaintiffs and Class Members benefits the wider community as well and serves the public interest.
47 Id.
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D. The Balance of Injuries and the Public Interest Favor the Immediate Release of the Medically Vulnerable Subclass Members.
The members of the Medically Vulnerable Subclasses all have conditions that render them exceptionally vulnerable to death or serious harm if exposed to COVID-19. Because of their medical vulnerability, there is no practicable way to ensure that they receive reasonable medical treatment48 within the Jail and, therefore, their continued detention violates the U.S. Constitution and they must be released.
Each class member faces a heightened risk of contracting a deadly virus merely because they are incarcerated, and additionally they face a heightened risk of dying if they do. Early reports estimate that the mortality rate for those with cardiovascular disease was 13.2 percent, 9.2 percent for diabetes, 8.4 percent for hypertension, 8.0 percent for chronic respiratory disease, and 7.6 percent for cancer. Cohen Dec. ¶ 26, App. 53. The World Health Organization estimates that one in five people who do require hospitalization.49 and older people and those with underlying medical conditions, such as lung disease, heart disease, or diabetes, are more likely to develop serious illness.50 In a February 29, 2020 preliminary report, individuals age 50-59 had an overall mortality rate of 1.3 percent; 60-69-year-olds had an overall 3.6 percent mortality rate, and those 70-79 years old had an 8 percent mortality rate.51
The number of cases and deaths from COVID-19 is increasing exponentially. This exponential growth is straining the health care system, which is struggling to care for the current and imminent influx of serious COVID-19 patients. An outbreak in the Jail will spread rapidly and
48 As explained above, Plaintiffs need not show that the Defendants acted with deliberate indifference to their needs. But there can be no dispute that the Defendants are aware that an uncontrolled outbreak is threatening the jail and that people within it may die imminently as a result.
49 World Health Organization, Q&A on Coronaviruses (COVID-19), “Should I Worry About COVID-19?,” https://cutt.ly/YtEyrxl.
50 World Health Organization, Q&A on coronaviruses (COVID-19) (Mar. 9, 2020), https://cutt.ly/WtKhCcO. 51 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ (data analysis based on WHOChina Joint Mission Report).
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further strain health care resources, resulting in a catastrophic loss of life, making it more likely that even people who may have ordinarily recovered from the virus will die.52 Lofgren Dec. ¶¶ 22; Cohen Dec. ¶¶ 23, 26, App. 53.
As a practical matter, there is no way to constitutionally confine Medically Vulnerable Subclass members in the Jail under present conditions. Cohen Dec. ¶ 17, 21, 30–31, App. 50, 52, 55. It is not possible for a jail to implement the social-distancing, sterilization, and other protective practices that the CDC requires in a jail without sufficiently reducing its population density and flow of new intakes. Cohen Dec. ¶ 30 – 31, App. 55; Lofgren Dec. ¶¶ 21–34, App. 6-9. While there are, in theory, a number of methods the Jail could take to adopt these measures, and some preliminary release requests have been granted, the Medically Vulnerable Subclass members are so vulnerable to death and serious injury from the disease that there is no time to await alternate methods to those measures now. And regardless, as explained below and in the contemporaneously filed Petition/Complaint, the Defendants have failed to implement those procedures to date. The Medically Vulnerable Subclass members, then, are jailed in conditions that will inevitably threaten their lives at least in the near term. They must be removed from those conditions.
For these reasons, in recent weeks, courts across the country have granted emergency habeas petitions ordering the release of medically vulnerable people from confinement. See, e.g., Hernandez v. Wolf, 20-cv-617 (TJH), Dkt. No. 17 (C.D. Cal. Apr. 1, 2020); Thakker v. Doll, No. 20-cv-480 (JEJ), Dkt. No. 47 (M.D. Pa. Mar. 31, 2020) (“Social distancing and proper hygiene are the only effective means by which we can stop the spread of COVID-19. Petitioners have shown that, despite their best efforts, they cannot practice these effective preventative measures in the
52 Sarah Kliff, There Aren’t Enough Ventilators to Cope With the Coronavirus (Mar. 18, 2020), https://cutt.ly/htKhNOK; Austin Frakt, Who Should Be Saved First? Experts Offer Ethical Guidance (Mar. 24, 2020), https://cutt.ly/XtKh12y.
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Facilities. Considering, therefore, the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces.”); Fraihat v. Wolf, 20-cv-590 (TJH), (C.D. Cal. Mar. 30, 2020) (“This is an unprecedented time in our nation’s history, filled with uncertainty, fear, and anxiety. But in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings.”); Castillo v. Barr, 20-cv-605 (TJH)(AFM), Dkt. No. 32 (C.D. Cal. Mar. 27, 2020); Coronel, 2020 WL 1487274; Basank v. Decker, 20-cv-2518 (AT), Dkt. No. 11 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”); Jovel v. Decker, 12-cv-308 (GBD), Dkt. No. 27 (S.D.N.Y. Mar. 26, 2020).
E. The Balance of Injuries and the Public Interest Favor a Temporary Restraining Order Requiring the Defendants to Implement Constitutionally Sufficient Conditions at the Jail.
In addition to their request for a Temporary Restraining Order and Writ of Habeas Corpus requiring Defendants to immediately release all Medically-Vulnerable Subclass Members in both the Pre- and Post-Adjudication Classes, Plaintiffs and proposed class members seek a TRO requiring a plan be submitted to the Court in three (3) days and overseen by a qualified public health expert appointed by the Court under Fed. R. Evid. 706. This plan should outline:
a. 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;
b. A housing and/or public support plan for any released Class or Subclass Members whose testing confirms have been exposed to or infected with COVID-19 and who do not readily have a place to self-isolate for the CDC-recommended period of time (currently 14 days).
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c. An evaluation of whether the release of the Subclass Members permits adequate social distancing and whether other categories of prisoners must be released to provide for compliance with CDC guidelines.
F. The Balance of Injuries and the Public Interest Favor a Preliminary Injunction Requiring the Defendants to Implement Constitutionally Sufficient Conditions at the Jail.
Finally, Plaintiffs and proposed Class Members seek a preliminary injunction:
a. Requiring the continued release of any Medically-Vulnerable Subclass Members, including future members, during the pendency of this litigation;
b. Requiring Defendants to release additional Class Members, including those not considered “Medically-Vulnerable” as defined in Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction, as needed to ensure that all remaining persons incarcerated in the Dallas County Jail are under conditions consistent with CDC and public health guidance to prevent the spread of COVID19, including requiring that all persons be able to maintain six feet or more of space between them;
c. Enjoining Defendants from configuring more than one person in a cell in the Dallas County Jail during the period of time in which contagion of COVID-19 presents a danger;
d. Requiring Defendants to maintain the actions set forth in the medical expert plan described above; and
e. Requiring Defendants to regularly report to Plaintiffs and the Court the numbers of Medically-Vulnerable Subclass Members in the Dallas County Jail and their justification for continuing to detain them.
All Class members are currently at imminent risk of death or serious injury from exposure
to COVID-19, and they are accordingly entitled to relief imminently. If this litigation is decided
in the ordinary course, many Class members may die before final judgment is entered, and
countless others will suffer severe pain or permanent lung damage. Class members are highly
likely to succeed on their claims because, through the operation of the Jail under current conditions
in the midst of the COVID-19 pandemic, the County and the Sheriff are knowingly exposing
Plaintiffs to a severe risk of harm.
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These steps are neither more nor less than what is required to mitigate the spread of
COVID-19 within the Jail. Because the Jail is not an isolated environment—infections within the
Jail can and will spread beyond the Jail’s walls—implementing these steps is essential to mitigate
the spread of the Coronavirus and serves the public interest. As the Court has noted previously, “it
is always in the public interest to prevent the violation of a party’s constitutional rights.”53
CONCLUSION
For the foregoing reasons, this Court should grant the Classes’ Petition for writs of habeas
corpus; grant the Classes’ request for a temporary restraining order and a preliminary injunction
against Defendants and those in active concert or participation with them, and grant the following
relief:
1. Certification of this action as a Class Action;
2. A temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Defendants to identify all Medically-Vulnerable Subclass Members in both the Pre- and Post-Adjudication Classes within six (6) hours of the Court’s order and release within twenty-four (24) hours after that all such persons absent proof of judiciallyrecorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate;
3. A temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Defendants to provide all persons released with educational resources on COVID-19 including instructions that they should self-isolate for the CDCrecommended period of time (currently 14 days) following release;
4. Following immediate release of all Medically-Vulnerable Subclass Members, a plan, to be submitted to the Court in three (3) days and overseen by a qualified public health expert agreed upon by the parties or ordered by the Court pursuant to Fed. R. Evid. 706, which outlines:
a. 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;
b. A housing and/or public support plan for any released Class or Subclass Members whose testing confirms have been exposed to or infected with COVID-19 and who
53 Court’s Memorandum Opinion and Order in Daves v. County of Dallas, Case No. 3:18-CV-00154-N, at 14 (citing ODonnell v. Harris Cty., 251 F. Supp. 3d 1052, 1159 (S.D. Tex, 2018).
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do not readily have a place to self-isolate for the CDC-recommended period of time (currently 14 days). c. An evaluation of whether the release of the Subclass Members permits adequate social distancing and whether other categories of prisoners must be released to provide for compliance with CDC guidelines. 5. 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 proof of judicially-recorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate; b. Report weekly on the population of persons in the Dallas County Jail who are Medically-Vulnerable as defined in this action; c. Follow the terms of the public health expert plan submitted pursuant to Fed. R. Evid. 706; d. Release additional Class Members, including those not considered “MedicallyVulnerable,” as needed to ensure that all remaining persons incarcerated in the Dallas County Jail 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 six feet or more of space between them. 6. If immediate release is not granted on the basis of this Motion alone, then expedited review of the Motion, including oral argument, via telephonic or videoconference if necessary; 7. Any further relief to which Plaintiffs and Class Members may be entitled.
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Dated: April 9, 2020

Respectfully submitted,

_____________________ AMERICAN CIVIL LIBERTIES FOUNDATION Andrea Woods* Meredith Taylor Brown* 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org
Henderson Hill* 201 W. Main St. Suite 402 Durham, NC 27701 (919) 682-9563 hhill@aclu.org
Amy Fettig* 915 15th Street N.W., 7th Floor Washington, D.C. 20005 (202) 548-6608 afettig@aclu.org

_____________________ ACLU FOUNDATION OF TEXAS Brian Klosterboer Texas. Bar No. 24107833 Adriana Piñon** Texas Bar No. 24089768 Andre Segura Texas Bar No. 24107112 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146 Fax: (346) 998-1577
_____________________ CIVIL RIGHTS CORPS Katherine Hubbard* Elizabeth Rossi* 1601 Connecticut Ave NW, Suite 800 Washington, D.C. 20009 (202) 894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org

_/_s_/_B_a_r_ry__B_a_r_n_e_tt_______ SUSMAN GODFREY L.L.P. Barry Barnett State Bar No. 01778700 8115 Preston Road, Suite 575 Dallas, TX 75225 (866) 754-1900 bbarnett@susmangodfrey.com
Michael Gervais* 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 789-3100 mgervais@susmangodfrey.com
_____________________ NEXT GENERATION ACTION NETWORK Alison Grinter Texas Bar 24043476 Kim T. Cole Texas Bar No. 24071024 1808 South Good Latimer Expressway Dallas, TX 75226 (214) 704-6400 agrinter@thengan.com kcole@thengan.com

ATTORNEYS FOR PETITIONERS/PLAINTIFFS *pro hac vice application forthcoming **N.D. Texas admission application forthcoming
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CERTIFICATE OF CONFERENCE

On April 9, 2020, I spoke by telephone and communicated by email with Kate David, counsel

for defendants Dallas County Sheriff Marian Brown and Dallas County, Texas in Daves v. Dallas County,

Texas, No. 3:18-cv-00154-N (N.D. Tex.), about the subject matter of and relief requested in this motion

for temporary restraining order. Ms. David advised me that her clients are considering whether or not they

will oppose the relief requested.

/s/ Barry Barnett Barry Barnett

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing was served

via the Court’s CM/ECF system on all counsel registered with that system, and via email, on

April 9, 2020.

/s/ Barry Barnett Barry Barnett

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Exhibit 1
Declaration of Eric Lofgren, Ph.D.

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 2 of 43 PageID 141
Declaration of Eric T. Lofgren, MSPH PhD
I. Background and Qualifications
1. My name is Eric T. Lofgren and I am an Assistant Professor at Washington State University in Paul G. Allen School for Global Animal Health. My research focuses on the computational and mathematical modeling of infectious diseases, with a focus on hospital epidemiology as well as emerging pathogens.
2. I have worked for the past fifteen years as a researcher of infectious diseases and epidemiology and hold both MS and PhD-degrees in Epidemiology from the University of North Carolina at Chapel Hill.
3. I was heavily involved in the response to the 2014 West African Ebola epidemic as well as the initial outbreak of Middle East Respiratory Syndrome (MERS), another novel coronavirus. This included leading the creation of a position paper on the role of modeling in public health response and working closely with federal agencies including the Defense Threat Reduction Agency (DTRA) and the Biomedical Advanced Research and Development Authority (BARDA). Additionally, my research group is one of five in the nation funded by the Centers for Disease Control and Prevention (CDC) to model the spread of healthcare-associated infections, and we have been actively working on COVID-19 related research.
4. My C.V., attached as Exhibit A, includes a full list of my honors, experience, and publications.
5. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
6. I have not previously testified as an expert at trial or by deposition.
II. Materials Reviewed and Methodology
7. In forming the opinions expressed in this report, I rely on a mathematical model that I designed to explore the epidemiological consequences of allowing standard intake and unaltered within-jail operational dynamics to be maintained during the ongoing COVID-19 pandemic, and contrast this with proposed interventions to reduce the burden of negative health outcomes. The paper describing this model and the results is attached as Exhibit B.
8. This model was built to simulate an urban city and the accompanying jail and court systems. The size of the community population (1.2 million people) and the size of the jail (2500 people) were based on data from Allegheny County, PA. While different cities will necessarily have different raw numbers based on the size of the 1

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 3 of 43 PageID 142
community, the size of their jail, city-specific arrest rates, etc. the results of this model in terms of trends, patterns, and which interventions are most applicable are broadly generalizable.
9. The paper provides estimates of the infection risks, and likely loss of life, that arise from current incarceration practices. It also provides estimates for in-custody deaths and show how the within-jail dynamics lead to spill-over risks, not only affecting the incarcerated people, but increasing the exposure, infection, and death rates for both corrections officers with whom they interact within the jail system, and the broader community beyond the justice system.
10. We modeled the following scenarios: a. “Business as usual” – an unmitigated COVID-19 outbreak b. “Shelter in place” in the community – a COVID-19 outbreak where the community is under a “shelter in place” order, but no interventions are performed in the jail itself c. “Shelter in place” in the community plus arrest reductions (from 25-90% reductions in number of bookings i. Not admitting any bond-eligible arrestees into the jail (estimated 25% of bookings bond eligible). ii. Not admitting into the jail anyone charged with only a low-level offense – that is, those offenses not against persons (estimated 50-70% of bookings). iii. Not admitting into the jail anyone at high risk for averse outcomes from COVID-19 (i.e. anyone over 65 years of age, anyone who is immunocompromised, has underlying comorbid conditions, etc., estimated at 40% of bookings). iv. 90% reduction in admissions. d. Increased rate of release from jail e. Getting jail population closer to “social distancing” seen in the public. f. Allowing the jail population greater access to medical care for serious COVID-19 cases.
11. Our model shows that, given a typical jail-community dynamic, operating in a business as usual way will result in significant and rapid loss of life. Large scale reductions in arrest and speeding of releases are likely to save the lives of incarcerated people, staff and the community at large.
III. Opinion
12. From an epidemiologic perspective, it is my opinion that individuals who can safely and appropriately remain in the community not be placed in the Dallas jail at this time. I am also of the opinion that individuals who are already in those facilities should be evaluated for release, and that a careful evaluation of procedural and housing guidance is created for those who remain in the facilities during the “stay at home” mandate, and possibly until the epidemic is contained. These steps could 2

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substantially reduce the number of COVID-19 infections in both the jail and the surrounding community.
IV. Results of the Model
13. The model shows that, given the epidemiological dynamics of COVID-19, absent any intervention, there is a substantial outbreak in the community, causing 926,402 infections (both symptomatic and asymptomatic) as well as requiring over 50,000 hospitalizations and ultimately resulting in over 12,000 fatalities over the 180 days of the simulation, with the peak of infections occurring 83 days after the first infective case appeared in the population.
14. Among those incarcerated, the outbreak is considerably more severe, causing a cumulative 5,311 cases requiring 449 hospitalizations and 134 deaths in a population 0.2% the size of the unincarcerated population. The peak of this within-jail epidemic is also earlier, occurring 30 days after the first infective case appeared in the community.
15. Given the dominant approach to controlling COVID-19 in the community and the widespread calls to “flatten the curve,” for the remaining results we assumed the presence of a shelter-in-place order or similar social distancing intervention in the community. In line with the experience of communities undergoing such distancing interventions, this decrease in overall contacts results in a substantially delayed epidemic, with slightly less than 500,000 infections in the community as well as far lower burdens in terms of both hospitalizations and fatalities. In contrast, the early dynamics of the COVID-19 outbreak within the incarcerated population are identical, while in the latter half of the simulation the outbreak dynamics in the incarcerated population are worse, resulting in 8,058 infections after 180 days and proportionately more hospitalizations and COVID-19 related fatalities. Shelter-in-place orders had no discernable impact on the health outcomes of staff of the jail.
16. All four considered arrest deferral scenarios had substantial impacts on the course of the epidemic in the incarcerated population, while also lessening the impact of the epidemic on the community and, to a lesser extent, the jail’s staff. Discontinuing the incarceration of bail-eligible individuals, which corresponds to an approximately 25% reduction of admissions into the jail, resulted in a 22.1% reduction in infections in the incarcerated population, and a 2.7% reduction in infections within the community.
17. Broader, more sweeping arrest deferral programs resulted in correspondingly larger impacts in both the incarcerated population and the community. The discontinuation of arresting individuals for low-level offenses (~83.4% reduction) and the blanket reduction of arrests by 90% resulted in a 71.8% and 76.6% reduction in infections within the incarcerated population (with correspondingly fewer hospitalizations and deaths) respectively. These strategies also resulted in the greatest decrease in infections among staff (2.4% and 3.5%) and in the community at large (12.1% and 13.7%). Finally, a strategy built on deferring the incarceration of individuals at high 3

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risk of developing COVID-19 related complications by 90%, tailoring the intervention to groups of epidemiological importance rather than the nature of their offense, resulted in a 27.2% decrease in infections within the incarcerated population and a 56.1% decrease in deaths among the same population.
18. In comparison, a strategy deferring the same number of people with no regard to their underlying risk (~36.5%), resulted in a 6.8% decrease in overall infections within the incarcerated population, but a 61.7% increase in deaths among incarcerated persons compared to the scenario specifically targeting those at greatest risk of averse outcomes for deferred incarceration. The deferral strategy targeting individuals for high risk outcomes caused 4,095 more infections in the community compared to the same proportionately large but broader strategy, and the decreased number of deaths among persons in jail was partially offset by this increase, with the targeted strategy resulting in a combined number of COVID-19 fatalities in both the population of persons in jail and in the community of 5,001 compared to 4,969 fatalities under a broader strategy. It is therefore more effective to reduce the intake rate across the entire population than to attempt to single out particular categories of individuals due to their likely susceptibility to severe morbidity or mortality from infection. The larger the reduction in overall intake, the greater the reduction in disease achieved for all populations (incarcerated people, the broader community, and jail staff, in decreasing proportion of effect). These broader interventions are also likely to be relatively straightforward to implement administratively, without knowledge of an individual’s underlying comorbidities, if any.
19. Pairing increased arrest deferral with a more rapid release of persons who were already incarcerated enhanced the impact of those interventions, reducing infections, hospitalizations, and deaths among the incarcerated—as well as the staff of the jails— as the rate of release increased. The one exception to this was the outcomes in the wider community, which, when paired with less aggressive incarceration deferral scenarios, experienced a slight increase in the number of infections, hospitalizations and deaths at lower levels of accelerated release schedules. This phenomenon peaks at a release rate 1.5 times faster than the default release rate, which a 0.3% increase in community infections. At rates faster than this, the effect is considerably reduced, with a release rate twice as fast as the default release rate resulting in a 0.02% increase in community infections.
20. When accompanied by a deferred arrest of bail-eligible individuals to reduce the incarcerated population, supplementary measures to reduce transmission among incarcerated persons have a marked benefit in both reducing the amplitude of the epidemic curve in incarcerated people and jail staff, as well as shifting the overall community epidemic curve later. These interventions may be thought of as either measures to reduce mixing --- such as allowing greater space between individuals in common areas or the staggering of the use of shared facilities --- or the provision of supplies such as soap and hand sanitizer that reduces the level of viral contamination of patient's hands, physical surfaces, etc. Compared to the baseline mixing rate among persons in jail, a reduction to an equivalent level of mixing as the community while
4

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 6 of 43 PageID 145 sheltering in place reduced would reduce infections in this population by 10.9\% as well as delay the peak of the epidemic by close to two weeks
21. An increase in the detection of severe COVID-19 cases among incarcerated persons also had a pronounced positive benefit. Compared to missing one-in-twenty severe cases, a jail that successfully identifies all severe COVID-19 cases and routes them to appropriate treatment had a 72.2% decrease in fatalities within the model.
V. Discussion of the Results 22. The models clearly demonstrate that, in the absence of community mitigation such as strict social distancing, we can expect 2,886 infections among incarcerated people, resulting in nine in-custody deaths. When contrasted with a baseline model of the general population without interaction with a jail, we see that the existence of jaildriven disease dynamics increase the total number of cases in the population by 922 and the total number of deaths by 301. 5

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23. These results follow from the features of the jail system themselves. While only 1% of the population entering into the jail system are elderly, incarceration in jail itself degrades the health of incarcerated people, leaving them more vulnerable to infection and severe outcomes from infection. As individual robustness to disease decreases, the epidemiological result is the increased vulnerability of the whole jail population.
24. Beyond the direct implications for the health of incarcerated people, jail populations have high rates of re-entry into the general community and they depend on people who regularly mix with the outside community. This level of porousness means the health of persons in jail and the health of the rest of the community are inherently and inextricably linked.
25. Jails with disease prevalence higher than the general populations they serve will therefore act as sources of infection, re-seeding infection into communities that may be striving to contain or mitigate ongoing outbreaks, or even reintroducing infection into otherwise disease-free populations. This would happen even if no one were released given the volume of people coming in and out of jails in staff and vendor roles, so should therefore not be construed as an implication that releases should be suspended or impeded.
26. New arrests of people of unknown disease status may be regularly brought into jails, increasing the likely severity of outbreaks both by the plausible continuous introduction of new sources of infection and by the maintenance of higher rates of contact among susceptible incarcerated people due to the density and structure of jail housing arrangements.
27. Critically, the factors that cause these outbreak dynamics and drive the resulting efficacy of proposed interventions are features implicit in the nature of the jail system itself. The living conditions within the jail foster disease spread. Incarcerated people are shuttled back and forth to court or, where court proceedings are halted due to this pandemic, forced to remain in their cells or dorms. Incarcerated people occupy shared spaces in which physical distancing is impossible either due to space, overcrowding, or the requirement of constant supervision. Incarcerated people are often not provided with the means to practice good personal hygiene or disinfect their surroundings. Improved facility sanitation, access to free personal hygienic care, such as warm water, free soap, free hand sanitizer, and free cleaning products, increased time spent outside, increased physical/social distancing measures, decreased population density achieved by releasing people, increased access to free medical care, and improved nutrition are all factors with instant and obvious resulting improvements in individual health outcomes for people incarcerated within the jail system.
28. Alterations to function and practice of the jail system that can correct for these challenges are unlikely to occur quickly enough or substantially enough to improve the epidemiological risks for the incarcerated people living within the jail system. As our results have shown, even when the within-jail transmission rates are improved by interventions such as reduction in intake from new arrests leading to a decrease in the 6

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size of the incarcerated population, we cannot effectively reduce the outbreak of infection in either the staff or incarcerated people down to the levels of the broader community.
VI. Conclusion and Recommendations
29. For the reasons above, it is my professional judgment that reducing admissions into the Dallas jail and increasing rates of return home for individuals currently incarcerated in the Dallas jail could substantially reduce the number of COVID-19 infections in both the jail and the surrounding community.
30. If Dallas County reduces its jail intake by a significant percentage, our models demonstrate that it will meaningfully reduce the disease incidence in the incarcerated population. Moreover, these same strategies also clearly produced a reduction in the source of risk to incarcerated people’s families and the broader community. These strategies could be enacted in a number of ways, such as replacing misdemeanor arrests with citations, avoiding recommendations for jail time or prohibitive terms for bail conditions, or refusing to detain anyone for nonpayment of fines or fees during the course of the outbreak.
31. In addition to reducing rates of intake into the jail system, another obvious, concrete step Dallas officials might take to reduce disease risks for everyone is to increase the rate of release from jails. This should be coupled with a decreased rate of intake rather than enacted in isolation, since increasing only release rates can simply turn jails into more efficient engines of disease exposure, increasing infection risks for incarcerated people, the staff who work at the jails and court systems, and the broader community. This may even still occur when expedited release is coupled with decreased rates of intake if the rate of release is insufficient. Again, our results clearly demonstrate that the greater the proportion of the incarcerated population we can include in such a policy, the more effective the intervention is at mitigating the outbreak.
32. To be maximally effective, each of these interventions should anticipate, rather than react to, widespread infection incidence in jail populations.
33. Conditions within jails must be immediately improved to decrease the probabilities of disease transmission and support better health for incarcerated people to protect not only themselves, but also jail staff and the community at large. Decreasing population density both directly decreases disease exposure, interrupting transmission dynamics, and also facilitates many other interventions. It is a natural result of reduced intake. We can achieve/enable many desired benefits with just that one, simple action, but to achieve maximal benefits to society, preventing the greatest burden from disease both within the jails and without, broad actions that include alterations to both intake and release and also many of the within-jail strategies for improving the individual means to enact personal hygiene, protection through social distancing, and access to medical care are all needed. 7

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34. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks.
35. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.
I declare under penalty of perjury that the foregoing is true and correct to the best of my ability.

Eric Lofgren MSPH, PhD Name

April 6, 2020 Date

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Exhibit A to Lofgren Declaration

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 11 of 43 PageID 150
Eric T. Lofgren, MSPH PhD
Eric.Lofgren@gmail.com • (509) 335-4022
Research Interests Computational and mathematical modeling of infectious diseases, with a focus on hospital epidemiology as well as emerging, enteric, and respiratory pathogens.
Education Virginia Tech, Virginia Bioinformatics Institute, Blacksburg, Virginia Network Dynamics and Simulation Science Laboratory Postdoctoral Associate: September 2013 to December 2015 Supervisor: Dr. Stephen Eubank
University of North Carolina at Chapel Hill, UNC Gillings School of Global Public Health, Chapel Hill, North Carolina Department of Epidemiology PhD: May 2013 Advisor: Dr. David Weber MSPH: December 2009 Advisor: Dr. Jennifer Smith
Tufts University, Medford, Massachusetts BA: January 2007 Major: Biology with Highest Thesis Honors
Professional Appointments Assistant Professor, Washington State University, Paul G. Allen School for Global Animal Health. December 2015 to present.
Postdoctoral Research, Virginia Tech, Virginia Bioinformatics Institute, Network Dynamics and Simulation Science Lab. September 2013 to December 2015.
Research Assistant, UNC Gillings School of Global Public Health, Department of Epidemiology. January 2009 to May 2009 and August 2011 to May 2013.
Teaching Assistant, UNC Gillings School of Global Public Health, Department of Epidemiology. August to December 2008, August to May 2010.
Summer Lab Manager, Rutgers University, Center for Discrete Mathematics and Theoretical Computer Science. Fefferman Lab. May 2008 to August 2013.
Research Assistant, Tufts University, Initiative for the Modeling and Forecasting of Infectious Disease. August 2005 to July 2007.

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 12 of 43 PageID 151
Teaching Experience
Instructor, College of Veterinary Medicine, Washington State University. 2018 to present.
− VetPath 571: Methods of Analysis in Epidemiology − VetClin 570: Infectious Disease Journal Club
Session Organizer, “A gentle introduction to mathematical modeling: Lessons from the living-dead”, American Public Health Association Annual Meeting Learning Institute. November 2011, 2012 and 2014.
Teaching Assistant, UNC Gillings School of Global Public Health, Department of Epidemiology. 2008 – 2010.
− EPID 722: Epidemiologic Analysis of Time-to-Event Data − EPID 750: Fundamentals of Public Health Surveillance
Publications
C.S. Short, M.S. Mietchen, E.T. Lofgren. 2020. Assessing the Potential Impact of a Longacting Skin Disinfectant in the Prevention of Methicillin-resistant Staphylococcus aureus Transmission. Int. J. Environ. Res. Public Health, 17(5): 1500
Suarez, G., O. Udiani, B. Allan, C. Price, S. Ryan, E. Lofgren, A. Coman, C. Stone, L. Gallos, N. Fefferman. 2020. A generic arboviral model framework for exploring trade-offs between vector control and environmental concerns. Journal of Theoretical Biology, 490: 110161
Chowdhury, A., E.T. Lofgren, R.W. Moehring, S. Broschat. 2020. Identifying Predictors of Antimicrobial Exposure in Hospitalized Patients Using a Machine Learning Approach. Journal of Applied Microbiology, 128(3): 688-96
Madhobi, K., M. Kamruzzaman, A. Kalyanaraman, E. Lofgren, R. Moehring, B. Krishnamoorthy. 2019. A Visual Analytics Framework for Analysis of Patient Trajectories. Proc. ACM Conference on Bioinformatics, Computational Biology and Health Informatics (ACM-BCB’19).
Herbert, S., E.T. Lofgren, K. Keyloun. 2019. Long-Acting Antibiotic Pathways Improve ED Metrics Versus Standard Care for Acute Bacterial Skin and Skin Structure Infection Treatment: A Discrete-Event Simulation. Journal of Medical Economics, 22(7):652-661
Halloran, M.E., K. Auranen, S. Baird, N.E. Basta, S.E. Bellan, R. Brookmeyer, B.S. Cooper, V. DeGruttola, J.P. Hughes, J. Lessler, E.T. Lofgren, I.M. Longini, J-P. Onella, B. Özler, G.R. Seage, T.A. Smith, A. Vespignani, E. Vynnycky, M. Lipsitch. 2017. Simulations for Designing and Interpreting Intervention Trials in Infectious Diseases. BMC Medicine, 15:223
Lofgren, E.T. 2017. Estimating the impact of past randomization changes in staff behavior in infection prevention trials: a mathematical modeling approach. BMC Infectious Diseases, 17:539

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 13 of 43 PageID 152
Omulo, S.*, E.T. Lofgren, M. Mugoh et al. 2017. The impact of fecal sample processing on prevalence estimates for antibiotic-resistant Escherichia coli. Journal of Microbiological Methods, 136: 71-77.
Lofgren, E.T., A.M. Egizi, N.H. Fefferman. 2016. Patients as Patches: Ecology and Epidemiology in Healthcare Environments. Infection Control and Hospital Epidemiology, 37(12): 1507-1512.
Lofgren, E.T. 2016. Unlocking the black box: teaching mathematical modeling with popular culture. FEMS Microbiology Letters, 363(20): 1-3.
Dicks, K.V., E.T. Lofgren, S.S. Lewis, R.W. Moehring, D.J. Sexton, D.J. Anderson. 2016. A Multicenter Pragmatic Interrupted Time Series Analysis of Chlorhexidine Gluconate Bathing in Community Intensive Care Units. Infection Control and Hospital Epidemiology, 37(17): 791-7.
Lofgren, E.T., K.M. Collins, T.C. Smith, R.A. Cartwright. 2016. Equations of the End: Teaching Mathematical Modeling using the Zombie Apocalypse. Journal of Microbiology & Biology Education, 17(1):137-142
Rivers, C.M., M.S. Majumder, D.N. Fisman, E.T. Lofgren. Risk of Death and Severe Disease in Patients with MERS-CoV, 2012 to 2016. American Journal of Epidemiology, 184(6): 460-464
Lofgren, E.T. 2015. Pools versus Queues: The Variable Dynamics of Stochastic “Steady States”. PLoS One, 10(6): e0130574.
Lofgren, E.T. et al. 2014. Mathematical Models: A Key Tool for Ebola Outbreak Response. Proceedings of the National Academy of Sciences, 111(51): 18095-18096.
Fisman, D.N., C.M. Rivers, E.T. Lofgren, Majumder,M.S. 2014. Estimation of MERSCoronavirus Reproductive Number and Case Fatality Rate for the Spring 2014 Saudi Arabia Outbreak: Insights from Publically Available Data. PLoS Currents Outbreaks.
Rivers, C.M. et al. 2014. Ebola: Models Do More Than Forecast. Nature, 515(7528): 492.
Halloran, M.E. et al. 2014. Ebola: Mobility data. Science, 346(6208): 433. K.A. Alexander et al. 2014. What factors might have led to the emergence of Ebola in West Africa? PLoS Neglected Tropical Diseases.
Rivers, C.M., E.T. Lofgren, M. Marathe, S. Eubank, B.L. Lewis. 2014. Modeling the Impact of Interventions on an Epidemic of Ebola in Sierra Leone and Liberia. PLoS Currents Outbreaks.
Lofgren, E.T., S.R. Cole, D.J. Weber, D.J. Anderson, R.W. Moehring. 2014. Estimating Allcause Mortality and Length of Stay in Incident, Healthcare Facility-associated Clostridium difficile Cases Using Parametric Mixture Models. Epidemiology, 25(4): 570575.

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 14 of 43 PageID 153
Lofgren, E.T., R.W. Moehring, D.J. Weber, D.J. Anderson, N.H. Fefferman. 2014. A Mathematical Model to Evaluate the Routine Use of Fecal Transplantation to Prevent Incident and Recurrent Clostridium difficile Infection. Infection Control and Hospital Epidemiology, 35(1):18-27.
Moehring, R.W., E.T. Lofgren, D.J. Anderson. 2013. Impact of Change to Molecular Testing for Clostridium difficile Infection on Healthcare Facility-Associated Incidence Rates. Infection Control and Hospital Epidemiology, 34(10): 1055-1061.
Lofgren, E.T. 2012. Visualizing Results from Transmission Models: A Case Against “Confidence Intervals”. Epidemiology, 23(5): 738-741.
Chu, H., E.T. Lofgren, M.E. Halloran, P.F. Kuan, M. Hudgens, S.R. Cole. 2011. Performance of Rapid Influenza H1N1 Diagnostic Tests: a Meta-analysis. Influenza and Other Respiratory Viruses, 6(2): 80-86.
Lofgren, E.T., J.B. Wenger, N.H. Fefferman, D. Bina, S. Gradus, S. Bhattacharyya, Y.N. Naumov, J. Gorski, E.N. Naumova. 2010. Disproportional Effects in Populations of Concern for Pandemic Influenza: Insights from Seasonal Epidemics in Wisconsin, 19672004. Influenza and Other Respiratory Viruses, 4(4): 205-12.
Lofgren, E.T., J. Rogers, M. Senese, N.H. Fefferman. 2008. Pandemic Preparedness Strategies for School Systems: Is Closure Really the Only Way? Annales Zoologici Fennici, 44(6): 449-458.
Lofgren, E.T. and N.H. Fefferman. 2007. The Untapped Potential of Virtual Game Worlds to Shed Light on Real World Epidemics. The Lancet Infectious Diseases, 7(9):625629.
Lofgren, E.T., N.H. Fefferman, Y.N. Naumov, J. Gorski, E.N. Naumova. 2007. Influenza Seasonality: Underlying Causes and Modeling Theories. Journal of Virology, 81(11):5429-5436.
Lofgren, E.T., N.H. Fefferman, M. Doshi, E.N. Naumova 2007. Assessing Seasonal Variation in Multisource Surveillance Data: Annual Harmonic Regression. Lecture Notes in Computer Science. BioSurveillance 2007. Eds D. Zeng et al. 4506:114-123.
Book Chapters Lofgren, E.T. 2017. Systems Dynamics Models. In Systems Science and Population Health. El- Sayed and Galea, eds. Oxford University Press : Oxford. pp. 77-85.
Submitted Manuscripts E.T. Lofgren, M.S. Mietchen, C.S. Short, K.V. Dicks, R.W. Moehring, D.A. Anderson. Estimating the Per-use Effectiveness of Chlorhexidine Gluconate and Mupirocin in Methicillin-resistant Staphylococcus aureus Decolonization in Intensive Care Units. In submission. Preprint available at: medrxiv.org/content/10.1101/19012732v1

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 15 of 43 PageID 154
C.S. Short, M.S. Mietchen, E.T. Lofgren. Transient Dynamics of Infection Transmission in a Simulated Intensive Care Unit. In submission. Preprint available at: arxiv.org/abs/1909.11878
Mietchen, M.S., C.S. Short, M. Samore, E.T. Lofgren. 2019. Population Structure Drives Differential Methicillin-resistant Staphylococcus aureus Colonization Dynamics in ICUs. In submission. Preprint available at medrxiv.org/content/10.1101/19002402v2.
Slayton, R.B., J.J. O’Hagan, S. Barnes, S. Rhea, R. Hilscher, M. Rubin, E. Lofgren, B. Singh. Modeling Infectious Diseases in Healthcare Network Framework for Describing Multidrug Resistant Organism and Healthcare-Associated Infections Agent Based Modeling Methods. In submission.
Myers, K., E.T. Lofgren, N.H. Fefferman. 2018. 30 Relaxed Fit vs. 32 Slim Cut: Structural Nonidentifiability in Outbreak Models. In submission.
Omulo, S.*, E.T. Lofgren, S. Lockwood, et al. 2017. Saturated prevalence of antimicrobial resistance in an informal urban community. In submission.
Invited Talks Synthesizing the Clinical Literature using Approximate Bayesian Computation. 2019. SIAM Conference on Computational Science and Engineering. Spokane, WA.
Meet the Professor: Building a Virtual Laboratory to Inform Improved Infection Control with Facility-Level Mathematical Modeling. 2018. IDWeek, San Francisco, CA.
The Patient-Patch: Hospital Epidemiology as an Ecology Problem. 2017. National Institute for Mathematical and Biological Synthesis, University of Tennessee, Knoxville, TN.
Adventures in Modeling for Policy. 2017. University of Utah, Salt Lake City, UT.
Agent-based Models and Population Health. 2016. Center for Health and Society at the University of Copenhagen, Copenhagen, Denmark.
Beyond Forecasting: Modeling for Decision Support, Policy and Translational Research. 2015. Society for Vector Ecology, Albuquerque, NM.
Epidemiology on Networks: Human and Otherwise. 2014. Department of Mathematics, Tulane University, New Orleans, LA.
Mathematical Modeling of In-Hospital Transmission of Infectious Diseases. 2013. Infectious Disease Grand Rounds, Duke University School of Medicine, Durham, NC.
Defining Epidemics: Detection, Behavior, and Intervention. 2011. Department of Homeland Security US-Sweden Workshop “A Visualization and Analytics Approach to Flooding and Pandemics”. Norrköping, Sweden.
The Plagues of Azeroth: Outbreaks and Epidemiology in Virtual Worlds. 2011. UNC Gillings School of Global Public Health, Chapel Hill, NC.

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 16 of 43 PageID 155

Funding

U01CK000533-01

Lofgren, Eric T. (PI)

08/01/17 – 07/31/20

Centers for Disease Control and Prevention

Model-driven Surveillance and Intervention Evaluation in Highly Stochastic Healthcare

Settings

Role: PI

200-2018-96423

Lofgren, Eric T. (WSU PI) 01/01/2018 – 06/30/19

Centers for Disease Control and Prevention

Identifying Predictors of Antimicrobial Exposure for Application in the Standardized

Antimicrobial Administration Ratio Risk Adjustment Strategy

Role: PI of WSU Subcontract from Duke University

1UO1GH002143-01 Njenga, M. Kariuki (PI) 09/30/16-09/29/21 Centers for Disease Control and Prevention Conducting Communicable Disease Research in Kenya Role: Co-I

WSU College of Veterinary Medicine Lofgren, Eric (PI)

07/01/16 – 06/30/17

Intramural Award

Modeling Emerging Infections in Frontline Veterinary Care Settings

Role: PI

Awards and Honors 2007 University Merit Assistantship, UNC Gillings School of Global Public Health 2017 Finalist, Society for Healthcare Epidemiology of America Epi Project Competition

Professional Memberships 2010 - Member, Society for Epidemiological Research 2017 – Membership Committee 2010 - Member, Society for Industrial and Applied Mathematics 2012 - Member, Society for Healthcare Epidemiology of America 2017 – Journal Club 2018 – Research Committee 2015 - Member, Association for Computing Machinery 2017 - Member, American Association for the Advancement of Science

Other Experience and Service
Manuscript Referee: Epidemiology, American Journal of Epidemiology, Infection Control and Hospital Epidemiology, BMJ, BMJ Open, Environmental Health Perspectives,

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 17 of 43 PageID 156
Scientific Data, BMC Infectious Diseases, Clinical Infectious Diseases, Bulletin of Mathematical Biology, PLoS One, PLoS Computational Biology among others.
Editorial Boards: Epidemiology U.S. Research Delegate: DHS US-Sweden Workshop ‘A Visualization and Analytics Approach to Flooding and Pandemics’. Norrköping, Sweden. 2010.
Press Coverage Television: BBC World News, CBS News, Canada Television, Discovery Channel Radio: BBC UK News, National Public Radio, North Carolina Public Radio Print/Online News: ABC News, ABS CBN News, Canadian Press, The Economist, Forbes, Fox News, New Scientist, Science News, Reuters, TIME, The Washington Post

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 18 of 43 PageID 157
Exhibit B to Lofgren Declaration

Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 19 of 43 PageID 158

9, 2020

The Epidemiological Implications of Incarceration Dynamics in Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19
Eric Lofgren1Y, Kristian Lum2Y, Aaron Horowitz3, Brooke Madubuowu3, Nina Fefferman4,5*,
1 Paul G. Allen School for Global Animal Health, Washington State University, Pullman, WA USA 2 Department of Computer and Information Science, University of Pennsylvania, Philadelphia, PA, USA 3 ACLU Analytics, American Civil Liberties Union, New York, NY USA 4 Department of Mathematics, University of Tennessee, Knoxville, TN, USA 5 Department of Ecology and Evolutionary Biology, University of Tennessee, Knoxville, TN, USA
YThese authors contributed equally to this work. * nfefferm@utk.edu

Abstract
COVID-19 challenges the daily function of nearly every institution of society. It is the duty of any society to be responsive to such challenges by relying on the best tools and logic available to analyze the costs and benefits of any mitigative action. We here provide a mathematical model to explore the epidemiological consequences of allowing standard intake and unaltered within-jail operational dynamics to be maintained during the ongoing COVID-19 pandemic, and contrast this with proposed interventions to reduce the burden of negative health outcomes. In this way, we provide estimates of the infection risks, and likely loss of life, that arise from current incarceration practices. We provide estimates for in-custody deaths and show how the within-jail dynamics lead to spill-over risks, not only affecting the incarcerated people, but increasing the exposure, infection, and death rates for both corrections officers with whom they interact within the jail system, and the broader community beyond the justice system. We show that, given a typical jail-community dynamic, operating in a business as usual way will result in significant and rapid loss of life. Large scale reductions in arrest and speeding of releases are likely to save the lives of incarcerated people, staff and the community at large.

Introduction

1

As the COVID-19 pandemic sweeps the globe, one of the critical functions of

2

epidemiology is to consider how society can transform current practice to increase the 3

health and safety of the public. The widespread risk of infection and the high case

4

fatality rates, especially in older or medically compromised populations, mean that we, 5

as a society, must be willing to consider structural reforms to our institutions to

6

promote an overall greater good. To these ends, we have already seen systemic shifts in 7

institutional practices that would be unthinkable under normal conditions:

8

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shelter-in-place orders closing businesses and restricting freedom of individual

9

movement [1], school closures to limit transmission compromising the ongoing education 10

of children [2], etc. Another clearly important institution that affects a substantial

11

portion of the public directly [3] and an even greater portion indirectly [4–7], is our

12

criminal legal system. It would be unpardonable to allow the ongoing function of this 13

institution to continue unchanged without performing rigorous analyses of the costs and 14

benefits to society, including incarcerated people and their families, inherent in

15

maintaining current practices. We therefore explore the epidemiological costs associated 16

with our current system’s functions as a necessary part of the policy conversation that 17

must ensue to decide whether or not they should be maintained or altered in response 18

to a growing global crisis. Analyzing incarcerated populations poses a unique

19

epidemiological problem. The population experiences high rates of movement and

20

turnover [8, 9] , incarcerated people are responsible for purchasing their own hygiene

21

products with limited resources, [10, 11] it is difficult or impossible for incarcerated

22

people to practice CDC recommendations such as social distancing [12], the

23

incarcerated population has a higher expected rate of existing health conditions than 24

the community from which they come [13–15], jails are dependent completely on a

25

workforce that moves in and out of the jail and the community including vendors,

26

lawyers, corrections officers, medical staff, etc., and there is strong evidence that

27

incarceration itself has profound adverse effects on the health of incarcerated

28

people [16–18]. These descriptors make jails highly likely not only to place detained

29

people at increased risk of infection and resulting severe outcomes, but also to function 30

as a driver for increased infectivity, adversely impacting attempts to contain and

31

mitigate disease spread in the broader communities in which jails are located. To study 32

the dynamics of this system and provide quantitative metrics for risk to incarcerated 33

populations and the populations with which incarcerated people necessarily interact, we 34

construct and tailor a epidemiological model of COVID-19 transmission, and then use 35

that model to consider how some possible reforms to the system (i.e. reduction in arrest 36

intake, increased rates of returning incarcerated people to their homes, and

37

improvement of conditions within the jails) will alter these baseline risks.

38

Model/Methods

39

Transmission Model

40

We begin by tailoring a standard SEIR model to the specific dynamics of COVID-19. 41

We first split our total population into four categories of risk: Children under 18

42

(denoted with the subscript K), Low-risk adults (denoted with the subscript L),

43

High-risk adults (denoted with the subscript H), and Elderly adults (denoted with the 44

subscript E). We also designate a separate population category for jail staff, O (note: 45

while O was the selected notation, it is meant to capture all staff working at the jail, not 46

only the corrections officers). These populations are then assigned into disease-related 47

health status compartments: Susceptible (S), Exposed (in which individuals are

48

presymptomatic, but do already produce low levels of infection transmission to others, 49

E), Infected (in which individuals are both symptomatic themselves and fully infectious 50

to others, I), Medically Treated (those infectious individuals whose disease severity and 51

healthcare access results in removal from the population into a medical care facility that 52

prevents any further transmission of infection back into the population, M ), and

53

Removed (those who have either recovered from the infection and are now immune or 54

those who have died, R). We also allow for the possibility that an Infected person with 55

sufficient disease severity to warrant medical treatment is unable to obtain care, and 56

designate rates associated with this case, U . For clarity of the results, we do not

57

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consider death from any non-COVID-19 cause; this is done to highlight the

58

COVID-19-specific dynamics. Additionally, as a simplifying assumption due to their low 59

rates of both infections and complications, we do not model hospitalizations or deaths 60

in children. Similarly, once hospitalized, patients are assumed not to spread COVID-19 61

further, as additionally modeling the impact of healthcare-associated COVID-19 cases is 62

well beyond the scope of this model. Lastly, we split our population into segments

63

depending on the subsection of the community or jail system in which they are

64

currently functioning: the community at large, C, the processing system for the jail, P , 65

the court system T , and the jail system, J.

66

A schematic for this model can be seen in 1, and the differential equations

67

comprising the model are in SI Appendix 1. The model was implemented in R 3.6.3

68

using the deSolve package, with the visualization of results primarily using ggplot2.

69

Statistical analysis of one parameter (see below) was done using the flexsurv package. 70

Community

Children

S

E

I

R

Low Risk, High Risk and Elderly Adults

S

E

I

RS

E

M

I

R Jail Staff

M

Processing and Court

Low Risk, High Risk and Elderly Adults

S

E

I

R

M

Jail

Low Risk, High Risk and Elderly Adults

S

E

I

RS

E

I

R Jail Staff

M

M

Fig 1. Schematic for a mathematical model of COVID-19 in a linked urban community - jail system. The population is represented in one of five possible compartments: Suseptible (S), Exposed (E), Infected (I), Needing Medical Care (M) and Recovered/Removed (R). Additionally, the population is divided into five distinct sub-populations: Children under 18 years of age, Elderly Adults over 65 years of age, Low Risk Adults between 18 and 65, High Risk Adults between 18 and 65 and Jail Staff (assumed to be between 18 and 65 years of age). Arrested adults move between the Community, Processing and the Court System and Jail, while Jail Staff move between the Community and Jail. Children are assumed not to be eligible for arrest.

Population Movement Into, Within, and Out Of the Jail System 71
Our model captures movement between the community (denoted with subscript, C), 72 processing (P ),jail (denoted with subscript, J), and court appointments (denoted with 73 T for trial, though this is meant to encompass all court appointments). It assumes staff 74
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move only between the community and jail; they are not arrested in our model. We

75

base the parameters of movement into, within, and out of the jail on Allegheny County, 76

Pennsylvania, where detailed data on the jail population and facilities are available,

77

including an automatically updating dashboard giving statistics for the jail population.1 78

In Allegheny County, the population at large is approximately 1.2 million people. The 79

size of the jail population hovers around 2,500. We use these population figures to

80

initialize our model.

81

In our model, individuals in the community are arrested at a rate of approximately 82

100 people per day.2 Arrested individuals are brought to processing. From processing, 83

individuals can either be released back into the community (60%) or taken to jail (40%)3. 84

This results in an in-flow to the jail of approximately 40 individuals per day, which is 85

consistent with Allegheny County’s reporting. While in jail, individuals transition back 86

and forth between the jail and court appointments. The number of movements between 87

jail and court appointments is described as “well over 100” on the jail’s website. We 88

assume movement of approximately 150 people per day between the jail and court. For 89

each court appointment, we assume individuals spend half a day on average at the court 90

facility. Importantly, we also assume that there is mixing in the court facility between 91

those who are there for processing after arrest and those that are present there for court 92

appointments. From the jail, individuals are released back into the community at a rate 93

that is consistent with the reported 62 day average length of stay. One limitation of our 94

model is that we do not account for post-jail destinations that are not the community, 95

i.e. we do not model people moving from jail to prison. According to [19], the yearly 96

number of admissions to prison is about 600,000 while the yearly number of admissions 97

to jail is around 10.6 million. So, assuming that all prison admissions first had one jail 98

admissions, around 95% of all jail admissions do not go on to prison; they are released 99

back into the community as in our model. Thus, we expect that the omission of prison 100

from our model does not substantially impact the overall findings.

101

An online database of public employees salaries in Allegheny County shows a

102

population of 384 people whose job title is corrections officer, whose job location is the 103

jail, and who are listed as active. Although this is certainly an underestimate of the 104

total number of the jail’s staff, which includes other types of employees, we think this is 105

a useful approximation to the total number of staff. We use this figure as the number of 106

staff members moving between community and jail. Staff transition between community 107

and jail at a rate that assumes 8 hour shift lengths in the jail per day with the

108

remaining 16 hours per day spent in the community.

109

Estimation Population Mixing and Contact Rates

110

We estimate parameters that describe the relative rate of transmission between each of 111

the community categories: Children, Low-risk adults, High-risk adults, and Elderly

112

adults from other studies. We use

C⇤ qr

to

denote

the

relative

rate

of

transmission

to

113

category q from category r. We estimate this as

114

C⇤ qr

=

mqr cq pq

1 tq .

mqr is the number of times a person in category q is in contact with a person in

115

category r. We use the category-category contact rates given in [20]. cq is the

116

proportion of COVID-19 cases that occurred for people in category q and pq is the

117

proportion of the total population in category q. The ratio of these two terms, cqpq 1, is 118

meant to capture the relative proclivity for people in group q to be infected by the virus. 119

1https://perma.cc/93RG-4WZ8 2https://perma.cc/K992-KHCH 3https://perma.cc/93RG-4WZ8

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We use case counts and population information for South Korea as reported by

120

Statista.45 ti is the number of daily contacts for individuals in category q, as reported 121

in [21]. The ⇤s are normalized such that the Child-Child transmission is equal to one. 122

The resulting values of C⇤ is shown in Table 1.

123

child adult elderly child 1.00 0.51 0.08 adult 0.57 2.43 1.05 elderly 0.02 0.30 0.49
Table 1. Relative transmission rates of COVID-19, scaled so that the Child-Child rate is one.

Within the jail and processing, we assume that mixing patterns are not

124

category-dependent. We set

J⇤ =

J⇤ qr

=

LCL⇤cj and

P⇤ =

P⇤ qr

=

C⇤ LL

cp,

where

C⇤ LL

is

125

the low risk adult to low risk adult base transmission rate in the community and cj and 126

cp are factors that denotes how times more contacts per day a person in jail or

127

processing, respectively, has than a person in the community. We set these values to be 128

cj = 3 and cp = 6, corresponding to an assumption of three and six times more contact 129

in jail and processing, respectively, than take place in the community.

130

The ⇤s are defined on an arbitrary scale. To get simulations that resemble the real 131

spread of the virus, we calibrated the model. We set

= , C

c0

C⇤ qr

qr

nc

J

=

, c0 J⇤
nj

and

132

P

=

, c0 P ⇤
np

where

nc

=

1, 200, 000,

nj

=

2, 600,

and

np

=

250

is

the

size

of

the

133

population in the community, jail, and processing, respectively, and c0 is a calibration 134

parameter. Scaling each of the terms in the model by the population sizes amounts to 135

the assumption that transmission is contact-based. This assumption leads to

136

conservative estimates of the speed of the spread in the jail system relative to a

137

fomite-based transmission model. To calibrate the model, we then find a c0 such that 138

approximately 80% of the population is ultimately infected by the time the spread dies 139

out in our model. We selected an 80% final infection rate for consistency with

140

predictions of the spread of COVID-19 under the assumption of no mitigation measures 141

in place from an influential micro-simulation model [22].

142

Estimation of Other Model Parameters

143

Parameters concerning the natural history of COVID-19, patient progression, etc. were 144

primarily obtained from existing estimates in the modeling literature, where possible 145

using estimates from as close to the modeled catchment area as possible (i.e. CHIME 146

from UPenn Medicine, https://penn-chime.phl.io/). Citations for specific parameter 147

values may be found in Table 2.

148

In one case, ˆ, or the asymptomatic period 1, the original source reported that their 149

estimate was likely an underestimation due to censoring. However, given that the

150

authors provided the data within their manuscript [23], the data was re-estimated to 151

account for censoring using a parametric survival model assuming an exponential

152

distribution (the distribution typically implied by the uniform hazard of transitioning 153

from one compartment to another within a compartmental model). The fit for this

154

exponential model may be found in SI Appendix 2.

155

4COVID-19 case proportions: https://www.statista.com/statistics/1102730/south-korea-coronavirus-
cases-by-age/ 5.

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Parameter Value

Description

1

0.50

Percent reduction in transmission during

asymptomatic period (compared to symp-

2

1

3 ˆ1

4

1

5

1 Discharge

6

1 Death

7

1 DeathU

8 !L 1

5.1 days 6.7 days 10 days 9 days
4.2 days
4.2 days-1
5.9 days * 0.0625

tomatic) [24] Incubation Period [25] Asymptomatic Period [23] Symptomatic Period [24] Hospitalization Length of Stay (Discharged Alive) [26]6 Hospitalization Length of Stay (Discharge Dead) [26] Time to Death for Unhospitalized Critical Cases Time from Symptom Onset to Hospitalization * Probability of Needing Hospitaliza-

9 !H1

5.9 days * 0.118

tion (low risk) [26, 27] Time from Symptom Onset to Hospitalization * Probability of Needing Hospitaliza-

tion (high risk) [26, 27]

10 ⌫

95%

Hospitalized Case Survival Rate (low risk)

[28]

11 ⌫H

66.6%

Hospitalized Case Survival Rate (high risk) [28]

12 ⌫U

0.0%

Unhospitalized Critical Case Survival Rate (low risk)

13 ⌫UH

0.0%

Unhospitalized Critical Case Survival Rate (high risk)

14 ↵L

3.57e-06

Per Capita Hourly Arrest Rate (low risk). Equates to 60 arrests per day.

15 ↵E

7.35e-06

Per Capita Hourly Arrest Rate (elderly). Equates to 1 arrest per day.

16 ↵H

17

1 C

1.11e-03 12 hours*0.60

Per Capita Hourly Arrest Rate (high risk). Equates to 40 arrests per day. Processing Time from Arrest to Returning to Community * Probability of Release Af-

18

1 J

12 hours*0.40

ter Arrest Processing Time from Arrest to Jail * Probability of Jail After Arrest

19 

2.60e-03

Per Capita Hourly Probability of Scheduled

Court Appearance

20 ⌧

12 hours

Time from Scheduled Court Appearance to

21 ⇢ 1
22 µC1 23 µJ 1 24 ⇣

62 days 8 hours 16 hours 1.00

Return to Jail Length of Stay in Jail 7 Shift Length for Jail Staff Time Spent in the Community for Jail Staff Probability an Incarcerated Person Needing

Treatment Will Receive It

25 pop

1.22 million people Population of Jail Catchment Area

Table 2. Parameter values, meanings and sources for a community-jail transmission

model of COVID-19.

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Modeled Scenarios and Interventions

156

We represented the effects of several policy interventions or failures as changes to various 157

parameters in this model. We consider four categories of scenarios that could vary the 158

rate of spread: in addition to modeling shelter-in-place (reduced mixing) conditions in 159

the community, we modeled scenarios related to reductions in arrest rates, increases in 160

release rates, and changes to within-jail conditions. These scenarios are detailed below 161

in Table 3. Most scenarios are additive; that is, all arrest reduction interventions

162

assume a baseline scenario of shelter-in-place in the community. The scenarios involving 163

faster release of individuals in jail all assume both shelter-in-place in the community, 164

and were each run under each of the ”Arrest Reduction” scenarios to determine the 165

cumulative effects of arrest reduction, increased release rates, and community

166

shelter-in-place conditions. The mixing reduction scenario in the jail assumes

167

shelter-in-place in the community as well as a 25% reduction in arrests (equivalent to 168

the ”Bail Eligible” Arrest Reduction scenario), as it is unlikely that jails will be able to 169

effectively reduce contact rates without reducing their average daily population. Finally, 170

in the reduced detection scenario, we assume shelter-in-place, but vary the likelihood 171

that serious cases of COVID-19 is caught and treated in a timely manner.

172

Below, vulnerable populations are defined as individuals over the age of 65 or at

173

increased risk of complications form COVID-19 due to other co-morbidities. We

174

estimate that 40% of the jail population is vulnerable by this definition, according to 175

information from the Bureau of Justice Statistics [29]. We estimate that around 25% of 176

those arrested are bail eligible, based on information from Allegheny county that cash 177

bail was used in 28% of cases between February and June of 2019 [30].

178

Results

179

Unsurprisingly given the epidemiological dynamics of COVID-19, absent any

180

intervention there is a substantial outbreak in the community, causing 926,402 infections 181

(both symptomatic and asymptomatic) as well as requiring 51,578 hospitalizations and 182

ultimately resulting in 12,161 fatalities over the 180 days of the simulation, with the 183

peak of infections occurring 83 days after the first infective case appeared in the

184

population. Among those incarcerated, the outbreak is considerably more severe,

185

causing a cumulative 5,311 cases requiring 449 hospitalizations and 134 deaths among 186

those incarcerated, the 2500 person jail being 0.2% the size of the wider community (Fig 187

2). The peak of this within-jail epidemic is also considerably earlier, with the peak of 188

the epidemic occurring 30 days after the first infective case appeared in the community. 189

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Scenario Name

Parameters Multiplier Scenario Description

of Baseline

Shelter in Place

C ⇤

0.625

Effective contact rate in the community is reduced

by a factor of 1/1.65.

Arrest Reduction

Bail Eligible

↵L, ↵H , ↵E 0.75

Divert all bail-eligible arrests (estimated at 25% of

all arrests)

Vulnerable Only

↵H , ↵E

0.10

Divert arrests of 90% of vulnerable populations. [9]

Low Level

↵L, ↵H , ↵E 0.17

Divert all low-level arrests (estimated at 83% of ar-

rests).

Arrest Fewer People ↵L, ↵H , ↵E 0.10

Divert 90% of current arrests.

Faster Release

Increase Release Speed ⇢ 1

2

Vulnerable Only

⇢H1

2

2x rate of release from jail 2x rate of release for vulnerable only

In-Jail Scenarios

Mixing Reduction

T , P , J 0.625

Reduction of baseline contact rates in jails by the

same factor as the commu-

nity under shelter-in-place

Reduced Detection

⇣

0.99,0.95,0.90 Reduction in infection de-

tection and timely hospi-

talization in jails by 1-⇣

Table 3. Scenarios and parameter adjustments for a number of policy-based

interventions to curtail COVID-19 in jail and the community.

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Fig 2. Epidemic curves from a simulated COVID-19 epidemic in an urban community (right) and the connected population of persons in a jail (left). The magnitude of the peak in the population in jail is much higher and shifted a full 63 days earlier.

Given the dominant approach to controlling COVID-19 in the community and the 190

widespread calls to ”flatten the curve”, for the remaining results we assume the presence 191

of a shelter-in-place order or similar social distancing intervention only in the community 192

as the comparator scenario, represented as a halving in the mixing frequency of all age 193

groups in the community. In line with the experience of communities undergoing such 194

distancing interventions, this decrease in overall contacts results in a substantially

195

delayed epidemic, with 486,193 infections in the community as well as far lower burdens 196

in terms of both hospitalizations and fatalities. In contrast, the early dynamics of the 197

COVID-19 outbreak within the incarcerated population are identical, while in the latter 198

half of the simulation the outbreak dynamics in the incarcerated population are

199

markedly worse, resulting in 8058 infections after 180 days and proportionately more 200

hospitalizations and COVID-19 related fatalities (Fig 3). Shelter-in-place orders had no 201

discernible impact on the health outcomes of the staff of the jail.

202

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Fig 3. Cumulative infections, hospitalizations and deaths in the community (first column), among persons in jail (second column) and among jail staff (third column) for scenarios with (green) and without (orange) a shelter-in-place social distancing intervention. Such social distancing dramatically reduces the burden of infections and resulting adverse outcomes in the community, but results in a larger and more prolonged outbreak among persons in jail.

All of the four considered arrest deferral scenarios had substantial impacts on the 203

course of the epidemic in the incarcerated population, while also lessening the impact of 204

the epidemic on the community and, to a lesser extent, the jail’s staff. Discontinuing 205

the arrest of bail-eligible individuals, which corresponds to a ⇡25% reduction of

206

admissions into the jail, resulted in a 22.1% reduction in infections in the incarcerated 207

population, and a 2.4% reduction in infections within the community.

208

Broader, more sweeping arrest deferral programs resulted in correspondingly larger 209

impacts in both the incarcerated population and the community as a whole. The

210

discontinuation of arresting individuals for low level offenses (⇡83.4% reduction) and 211

the blanket reduction of arrests by 90% resulted in a 71.8% and 76.6% reduction in

212

infections within the incarcerated population (with correspondingly fewer

213

hospitalizations and deaths) respectively. These strategies also resulted in the greatest 214

decrease in infections among staff (2.4% and 3.5%) and in the community at large

215

(12.1% and 13.7%). Finally, a strategy built off deferring the arrest of individuals at 216

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high risk of developing COVID-19 related complications by 90%, tailoring the

217

intervention to groups of epidemiological importance rather than the nature of their 218

offense, resulted in a 27.2% decrease in infections within the incarcerated population 219

and a 56.1% decrease in deaths among the same population.

220

In comparison, a strategy deferring the same number of people with no regard to 221

their underlying risk (⇡36.5%), resulted in a 6.8% decrease in overall infections within 222

the incarcerated population, but a 61.7% increase in deaths among incarcerated persons 223

compared to the scenario specifically targeting those at greatest risk of averse outcomes 224

for deferred arrest (Fig 4). The deferral strategy targeting individuals for high risk

225

outcomes caused 4095 more infections in the community compared to the same

226

proportionately large but broader strategy, and the decreased number of deaths among 227

persons in jail was partially offset by this increase, with the targeted strategy resulting 228

in a combined number of COVID-19 fatalities in both the population of persons in jail 229

and in the community of 5001 compared to 4969 fatalities under the broader strategy. 230

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Fig 4. Cumulative infections, hospitalizations and deaths in the community (first row), among persons in jail (second row) and among jail staff (third row) for several incarceration deferment scenarios. More aggressive scenarios, such as a 90% decrease in all incarcerations or discontinuing incarceration for low level offenses result in large improvements in the epidemic within the jail, with a smaller impact among staff and the community. Deferring incarceration for people particularly at risk for adverse outcomes results in a markedly pronounced decrease in deaths among persons in jail.

Pairing increased arrest deferral with a more rapid release of persons who were

231

already incarcerated enhanced the impact of those interventions, reducing infections, 232

hospitalizations and deaths among the incarcerated — as well as the staff of the jails — 233

as the rate of release increased (Fig 5). The one exception to this was the outcomes in 234

the wider community, which, when paired with less aggressive arrest deferral scenarios, 235

experienced a slight increase in the number of infections, hospitalizations and deaths at 236

lower levels of accelerated release schedules. This phenomenon peaks at a release rate 1.5 237

times faster than the default release rate, with a 0.3% increase in community infections. 238

At rates faster than this, the effect is considerably reduced, with a release rate twice as 239

fast as the default release rate resulting in a 0.02% increase in community infections. 240

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Fig 5. Cumulative infections, hospitalizations and deaths in the community (first row), among persons in jail (second row) and among jail staff (third row) for several combinations of incarceration deferment and accelerated release. Negative outcomes among persons in jail as well as staff improve with faster levels of release, while the community experiences slightly higher rates of negative outcomes, especially in moderate release scenarios, peaking at a release rate 1.5 times normal.

When accompanied by the deferred arrest of bail-eligible individuals to reduce the 241

incarcerated population, supplementary measures to reduce transmission among

242

incarcerated persons have a marked benefit in both reducing the amplitude of the

243

epidemic curve in incarcerated people and jail staff, as well as shifting the overall

244

community epidemic curve later (Fig 6). These interventions may be thought of as

245

either measures to reduce mixing — such as allowing greater space between individuals 246

in common areas or the staggering of the use of shared facilities — or the provision of 247

supplies such as soap and hand sanitizer that reduces the level of viral contamination of 248

patient’s hands, physical surfaces, etc. Compared to the baseline mixing rate among 249

persons in jail, a reduction to an equivalent level of mixing as the community while

250

sheltering in place would reduce infections in this population by 10.9% as well as delay 251

the peak of the epidemic by close to two weeks.

252

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Fig 6. Epidemic curves for the community (top panel), persons in jail (middle panel) and jail staff (bottom panel) under a shelter in place order as well as the deferment of bail-eligible persons. The curves show the impact of increased reduction in mixing (e.g. from the ability to physically distance persons in jail while in common areas) from baseline (dark blue) to identical to the community’s shelter-in-place order (green). This shifts the epidemic curve in the community slightly, and results in both a shifted and decreased curve among persons in jail as well as staff.

An increase in the detection of severe COVID-19 cases among incarcerated persons 253

from 95% to 100% (equivalent to the same detection of the need for medical treatment 254

available in the community) unsurprisingly increased the number of hospitalizations, as 255

5 out of every 100 incarcerated persons needing hospitalization were no longer missed, 256

either for lack of access to care, insufficient diagnostic capacity, or other reasons.

257

Similarly, owing to the vast reduction in the case fatality rate between hospitalized

258

(CFR = 5% for low risk and 33.3% for high risk) severe cases and unhospitalized severe 259

cases (CFR = 100% for both groups), the number of deaths dropped by 72.2% when the 260

detection of severe cases rose to the same level as the community. Between these

261

scenarios, the number of infections rose slightly with better detection, increasing by 262

0.6% (Fig 7). This is likely due to the slightly longer time an untreated severe case

263

spends in the incarcerated population before they are removed due to death vs. when a 264

treated case is transferred for hospitalization. This effect will only be present if the level 265

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of viral shedding is constant (or increasing) over the course of a clinical infection. If 266

instead the mechanism by which a severe COVID-19 patient dies is a cytokine storm or 267

other process not involving the virus overwhelming the immune system, we would not 268

expect this effect to be observed. However, even in the pessimistic case wherein viral 269

shedding is constant throughout the clinical course of infection, the slight rise in

270

infections is offset by the decrease in the number of COVID-19 related fatalities.

271

9, 2020

Fig 7. Infections, hospitalizations and deaths from COVID-19 among incarcerated persons under three scenarios of the probability that a severe case will be detected and receive adequate medical care. Increasing this probability results in more hospitalizations, dramatically reduced deaths, and a slight rise in the number of infections among incarcerated persons.

Discussion

272

Failure to adequately protect jail populations will have a profound impact on the health 273

of incarcerated people, corrections officers, workers in the judicial system, and members 274

of the general population. Our models clearly demonstrate that, in the absence of

275

community mitigation such as strict social distancing, by only 30 days after the

276

introduction of the first infection to the community, we can expect 2886 infections

277

among incarcerated people, resulting in eight in-custody deaths. When contrasted with 278

a baseline model of the general population without interaction with a jail, we see that 279

the existence of jail-driven disease dynamics increase the total number of cases in the 280

population by 922 and the total number of deaths by 301.

281

These results clearly follow from the features of the jail system themselves in

282

challenging ways. While only 1% of the population entering into the jail system are

283

elderly [31], incarceration in jail itself degrades the health of incarcerated people [16–18], 284

leaving them more vulnerable to infection and severe outcomes from infection [32]. As 285

individual robustness to disease decreases, the epidemiological result is the increased 286

vulnerability of the whole jail population.

287

Beyond the direct implications for the health of incarcerated people, jail populations 288

have high rates of re-entry into the general community and they depend on people who 289

regularly mix with the outside community. Jail populations are largely composed of 290

individuals who have not been convicted of a crime, and therefore will be released

291

quickly back into the general community rather than to further incarceration within the 292

carceral system. Jails with disease prevalence higher than the general populations they 293

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serve will therefore act as sources of infection, re-seeding infection into communities that 294

may be striving to contain or mitigate ongoing outbreaks, or even reintroducing

295

infection into otherwise disease-free populations. It is important to note that this would 296

happen even if no one were released given the volume of people coming in and out of 297

jails in staff and vendor roles, so should therefore not be construed as an implication 298

that releases should be suspended or impeded.

299

We are not helpless to effect change. Some obvious potential courses of action

300

suggest themselves immediately. New arrests of people of unknown disease status may 301

be regularly brought into jails, increasing the likely severity of outbreaks both by the 302

plausible continuous introduction of new sources of infection and by the maintenance of 303

higher rates of contact among susceptible incarcerated people due to the density and 304

structure of jail housing arrangements. If jurisdictions across the country reduce their 305

intake by significant percentages, our models demonstrate that we will meaningfully 306

directly reduce the disease incidence in the incarcerated population (as seen in Fig 4). 307

Moreover, these same strategies also clearly produced a reduction in the source of risk 308

to incarcerated people’s families and the broader community (Fig 4). These strategies 309

could be enacted in a number of ways, such as (but not limited to) replacing

310

misdemeanor arrests with citations, avoiding recommendations for jail time or

311

prohibitive terms for bail conditions, or refusing to detain anyone for nonpayment of 312

fines or fees during the course of the outbreak.

313

Having considered these potential strategies for categorical reduction in intake into 314

jails, we also considered the case in which the categorical consideration for reduction in 315

intake stemmed instead from the health of the arrested person. In this case, we get the 316

expected reduction in the within-jail outbreak that would have been associated with a 317

general reduction of the same percent intake (⇡36.9%, allowing for a small number of 318

incarcerations in these groups), but we fail to achieve any significant reduction in

319

disease burden in the broader community by taking this action. It is therefore more 320

effective to reduce the intake rate across the entire population than to attempt to single 321

out particular categories of individuals due to their likely susceptibility to severe

322

morbidity or mortality from infection. The larger the reduction in overall intake, the 323

greater the reduction in disease achieved for all populations (incarcerated people, the 324

broader community, and jail staff, in decreasing proportion of effect). These broader 325

interventions are also likely to be relatively straightforward to implement

326

administratively, without knowledge of an individual’s underlying comorbidities, if any. 327

In addition to reducing rates of intake into the jail system, another obvious, concrete 328

step we might take to reduce disease risks for everyone is to increase the rate of release 329

from jails. This should clearly be coupled with a decreased rate of intake rather than 330

enacted in isolation, since increasing release rates while maintaining the same rate of 331

intake would increase infection risks for incarcerated people, the staff who work at the 332

jails and court systems, and the broader community. This may even still occur when 333

expedited release is coupled with decreased rates of intake if the rate of release is

334

insufficient; see Fig 5. Again, our results clearly demonstrate that the greater the

335

proportion of the incarcerated population we can include in such a policy, the more

336

effective the intervention is at mitigating the outbreak.

337

To be maximally effective, each of these interventions should anticipate, rather than 338

react to, widespread infection incidence in jail populations.

339

Critically, the factors that cause these outbreak dynamics and drive the resulting 340

efficacy of proposed interventions are features implicit in the nature of the jail system 341

itself. The living conditions foster disease spread. Incarcerated people are shuttled back 342

and forth to court or, where court proceedings are halted due to this pandemic, forced 343

to remain in their cells or dorms. Incarcerated people occupy shared spaces in which 344

physical distancing is impossible either due to space, overcrowding, or the requirement 345

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of constant supervision. Incarcerated people are often not provided with the means to 346

disinfect their surroundings or practice all of the hygiene guidelines suggested by the 347

CDC. Improved facility sanitation, access to free personal hygienic care, such as warm 348

water, free soap, free hand sanitizer, and free cleaning products, increased time spent 349

outside, increased physical/social distancing measures, decreased population density 350

achieved by releasing people, increased access to free medical care, and improved

351

nutrition are all factors with instant and obvious resulting improvements in individual 352

health outcomes for people incarcerated within the jail system. Alterations to function 353

and practice of the jail system that can correct for these challenges are unlikely to occur 354

quickly enough or substantially enough to improve the epidemiological risks for the

355

incarcerated people within the jail system. As our results have shown, even when the 356

within-jail transmission rates are improved by interventions such as reduction in intake 357

from new arrests leading to a decrease in the size of the incarcerated population, we 358

cannot effectively reduce the outbreak of infection in either the staff or incarcerated 359

people down to the levels of the broader community.

360

As with all models, the conclusions of this study depend on an accurate

361

representation of the flow of individuals between the jail system and the wider

362

community, either due to arrests or due to their employment as jail staff, as well as the 363

values of the parameters used to determine how swiftly this flow occurs. The inherent 364

nature of emerging epidemics makes both of these things uncertain — the clinical and 365

biological aspects of the pathogen might not be fully understood, and the data needed 366

to parameterize these models is often sparse and incomplete. This problem is especially 367

acute in models of this sort, which seek to present a ”what-if” scenario to stave off a 368

public health crisis, rather than analyze how that crisis unfolded after the fact.

369

Nevertheless, while the exact projected magnitudes may be sensitive to these unknowns, 370

in truth, the greatest utility of models such as these in in determining best courses of 371

action and likely magnitudes of the effects that can be gained from those actions, rather 372

than exact predictions of precise numbers of individuals [33]. Due to the logical nature 373

of the processes studied, so long as errors in the parameters used are consistent across 374

scenarios, they will not impact the understanding that results from our projections

375

about which courses of action achieve the best outcomes, even if those errors would alter 376

our understanding of the precise amount of effect achieved by each intervention.

377

Conclusion

378

Conditions within jails must be immediately improved to decrease the probabilities of 379

disease transmission and support better health for incarcerated people to protect not 380

only themselves, but also jail staff and the community at large. Decreasing population 381

density both directly decreases disease exposure, interrupting transmission dynamics, 382

and also facilitates many other interventions. It is a natural result of reduced intake. 383

We can achieve/enable many desired benefits with just that one, simple action, but to 384

achieve maximal benefits to society, preventing the greatest burden from disease both 385

within the jails and without, broad actions that include alterations to both intake and 386

release and also many of the within-jail strategies for improving the individual means to 387

enact personal hygiene, protection through social distancing, and access to medical care 388

are all needed.

389

Acknowledgments

390

EL was supported by the CDC Cooperative Agreement RFA-CK-17-001-Modeling

391

Infectious Diseases in Healthcare Program (MInD-Healthcare).

392

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Supporting information

SI Appendix 1. According to the logic presented in the Model/Methods section 1 define the following system of equations to capture the epidemiological dynamics of our system:
Within the Broader Community:

dSKC = dt

C K

K

SKC

IKC +CK

C KE

SKC

IEC +CE

KC LSKC ILC + IOC +

C KH

SKC

IHC +CH

ELC + EOC

dEKC = dt

C KK

SKC

IKC +

EKC

+

KL +

KH SKC

IHC +

EHC

EKC ˆEKC

dIKC = dt

EKC

IKC

dRKC = dt

IKC + ˆEKC

dSLC = dt

C LK

SLC

IKC +CK

C LL

SLC

ILC + IOC +

ELC + EOC

C LE

SLC

IEC +

EEC

C LH

SLC

IHC +

EHC

↵LSLC +

C SLP + ⇢SLJ

dELC = dt

C LK

SLC

IKC +

EKC

+

LCLSLC

ILC + IOC +

+

C LE

SLC

IEC +

EEC

+

C LH

SLC

IHC +

EHC

ELC + EOC ELC ˆELC

↵LELC + C ELP + ⇢ELJ

dILC = dt

ELC

ILC !ILC ↵LILC + C ILP + ⇢ILJ

dMLC dt

= !ILC

Discharge ⌫ MLC

Death(1 ⌫)MLC

dRLC = dt

ILC + ˆELC +

Discharge⌫MLC +

Death(1

+ ⇢RLJ

⌫ )MLC

↵LRLC +

C RLP

dSEC = dt

C EK

SEC

IKC +CK

ECLSEC ILC + IOC + ELC + EOC

C EE

SEC

IEC +

EEC

C EH

SEC

IHC +

EHC

↵E SEC +

C SEP + ⇢SEJ

dEEC = dt

C EK

SEC

IKC +CK

+

+

C EH

SEC

IHC +CH

C EL

SEC

ILC + IOC +

ELC + EOC +

C E

ˆEEC

↵E EEC + C EEP + ⇢EEJ

C EE

SEC

IEC +CE

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9, 2020

dIEC = dt

EEC

IEC !H IEC ↵E IEC + C IEP + ⇢IEJ

dMEC dt

=CE

Discharge⌫M MEC

Death(1 ⌫H )ME

dREC = dt

IEC + ˆEEC +

Discharge⌫H MEC +

Death(1

⇢RLJ

⌫H )MEC

↵LRLC +

C RLP +

dSHC = dt

C HK

SHC

IKC +

EKC

C EH

SHC

IEC +

EEC

C H

L

SHC

ILC + IOC +

C HH

SHC

IHC +

EHC

ELC + EOC ↵H SHC +

C SHP + ⇢SHJ

dEHC = dt

C H

K

SHC

IKC +CK

+

C H

LSHC

+

C H

H

SHC

IHC +

EHC

C H

ILC + IOC +

ELC + EOC

+

C EH

SHC

ˆEHC ↵H EHC + C EHP + ⇢EHJ

IEC +CE

dIHC = dt

EHC

IHC !H IHC ↵H IHC + C IHP + ⇢IHJ

dMHC dt

= !H IHC

Discharge⌫H MHC

Death(1 ⌫H )MHC

dRHC = dt

IHC + ˆEHC +

Discharge⌫H MHC +

Death(1

+ ⇢RHJ

⌫H )MHC ↵H RHC +

C RHP

dSOC = dt

C OK

SOC

IKC +CK

C OH

SOC

IHC +CH

C OL

SOC

ILC + IOC +

µJ SOC + µC SOJ

ELC + EOC

C OE

SOC

IEC +CE

dEOC = dt

C OK

SOC

IKC +

EKC

+

OCLSOC

ILC + IOC +

ELC + EOC

+

C OH

SOC

IEC +

EEC

+

C OH

SOC

IHC +

EHC

EOC ˆEOC

µJ EOC + µC EOJ

dIOC = dt

EOC

IOC !IOC µJ IOC + µC IOJ

dMOC dt

=!

IOC

+I

J O

Discharge ⌫ MOC

Death(1 ⌫)MOC

dROC dt

=CO

+ˆEOC

+

Discharge⌫MOC +

Death(1

⌫)MOC µJ

µJ ROC + µC ROJ

Within the Processing System:

dSLP = dt

P LL

SLP

ILP + ILT +

P LH

SLP

IHP + IHT +

ELP + ELT EHP + EHT

P LE

SLP

IEP + IET +

+ ↵LSLC

C SLP

EEP + EET J SLP

dELP = dt

LPLSLP

ILP + ILT +

ELP + ELT +

+

P LH

SLP

IHP + IHT +

EHP + EHT

P LE

SLP

IEP + IET +

ELP + ↵LELC

EEP + EET

C ELP

J ELP

dILP = dt

ELP

ILP + ↵LILC

C ILP

J ILP

dRLP dt

=

↵LRLC

C RLP

J RLP + ILP

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9, 2020

dSEP = dt

EPLSEP ILP + ILT +

P EH

SEP

IHP + IHT +

ELP + ELT EHP + EHT

P EE

SEP

IEP + IET +

+ ↵E SEC

C SEP

EEP + EET J SEP

dEEP = dt

EP L SEP

ILP + ILT +

+

P EH

SEP

IHP + IHT +

ELP + ELT EHP + EHT

+

P EE

SEP

IEP + IET +

EEP + EET

EEP + ↵E EEC

C EEP

J EEP

dIEP = dt

EEP

IEP + ↵E IEC

C IEP

J IEP

dREP dt

=

↵E REC

C REP

J REP + IEP

dSHP = dt

HP LSHP ILP + ILT +

P HH

SHP

IHP + IHT +

ELP + ELT EHP + EHT

P H

E

SHP

IEP + IET +

+ ↵H SHC

C SHP

EEP + EET J SHP

dEHP = dt

P H

L

SHP

ILP + ILT +

ELP + ELT +

+

P H

H

SHP

IHP + IHT +

EHP + EHT

P HE

SHP

EHP

IEP + IET +

EEP + EET

dIHP = dt

EHP

IHP +↵H IHC

C IHP

J IHP

dRHP dt

=

↵H

RHC

C RHP

J RHP + IHP

Within the Trial System:

dSLT = dt

T LL

SLT

ILP + ILT +

T LH

SLT

IHP + IHT +

ELP + ELT EHP + EHT

T LE

SLT

IEP + IET +

+ ⌧ SJL SLT

EEP + EET

dELT = dt

LTLSLT

ILP + ILT +

ELP + ELT +

+

T LH

SLT

IHP + IHT +

EHP + EHT

T LE

SLT

IEP + IET +

EEP + EET

ELT + ⌧ ELJ ELT

dILT = dt

ELT

ILT + ⌧ ILJ ILT

dRLT dt

= ⌧ RLJ

RLT + ILT

dSET = dt

T EL

SET

ILP + ILT +

T EH

SET

IHP + IHT +

ELP + ELT EHP + EHT

T EE

SET

IEP + IET +

+

⌧

S

J E

SET

EEP + EET

dEET = dt

ET LSET

ILP + ILT +

ELP + ELT +

+

T E

H

SET

IHP + IHT +

EHP + EHT

T E

E

SET

IEP + IET +

EEP + EET

EET + ⌧ EEJ EET

dIET = dt

EET

IET + ⌧ IEJ IET

dRLT dt

= ⌧ REJ

RET + IET

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9, 2020

dSHT = dt

HT LSHT ILP + ILT +

T HH

SHT

IHP + IHT +

ELP + ELT EHP + EHT

T H

E

SHT

IEP + IET +

+

⌧

S

J H

SHT

EEP + EET

dEHT = dt

T H

L

SHT

ILP + ILT +

ELP + ELT +

+

T H

H

SHT

IHP + IHT +

EHP + EHT

T HE

SHT

IEP + IET +

EEP + EET

EHT + ⌧ EHJ EHT

dIHT = dt

EHT

IHT + ⌧ IHJ IHT

dRLT dt

= ⌧ RHJ

RHT + IHT

Within the Jail System:

dSLJ = dt

J LL

SLJ

ILJ +

ELJ

J LE

SLJ

IEJ +

EEJ

J LH

SLJ

IHJ +

EHJ

J LO

SLJ

IOJ +

EOJ

+

J SLP

⌧ SLJ

⇢SLJ + SLT

dELJ = dt

LJ L SLJ

ILJ +

ELJ

+

+

J LO

SLJ

IOJ +

EOJ

J LE

SLJ

IEJ +

EEJ

ELJ + J ELP

+

J LH

SLJ

IHJ +

EHJ

⌧

E

J L

⇢ELJ + ELT

dILJ = dt

ELJ

J ILP

ILJ

!⇣

I

J L

(1

⌫U ) (1

⌧

I

J L

⇢ILJ + ILT

⇣)

DeathU

I

J L

⌫U (1

⇣) DischargeILJ +

dMLJ dt

=

!⇣

I

J L

Discharge ⌫ MLJ

Death(1 ⌫)MLJ

dRLJ = dt

ILJ +

Discharge⌫MLJ +

Death(1

⌫)MLJ + DeathU (1

⌫)(1

+ Discharge⌫U (1 ⇣) ILJ + J RLP ⌧ RLJ ⇢RLJ + RLT

⇣

)I

J L

dSEJ = dt

J EL

SEJ

ILJ +

ELJ

J EE

SEJ

IEJ +

EEJ

J E

H

SEJ

IHJ +

EHJ

J EO

SEJ

IOJ +

EOJ

+

J SEP

⌧ SEJ

⇢SEJ + SET

dEEJ = dt

J EL

SEJ

ILJ +

ELJ

+

+

J EO

SEJ

IOJ +

EOJ

J EE

SEJ

IEJ +

EEJ

EEJ + J EEP

+

J EH

SEJ

IHJ +

EHJ

⌧

E

J E

⇢EEJ + EET

dIEJ = dt

EEJ

J IEP

IEJ

!H

⇣

I

J E

(1

⌫UH ) (1

⌧

I

J E

⇢IEJ + IET

⇣)

DeathU

I

J E

⌫UH (1

⇣) DischargeIEJ +

dMEJ dt

=

!H

⇣

I

J E

Discharge⌫H MEJ

Death(1 ⌫H )MEJ

dREJ = dt

IEJ +

Discharge⌫H MEJ +

Death(1

+ Discharge⌫UH (1 ⇣) IEJ + J REP

⌫H )MEJ + ⌧ REJ

DeathU (1 ⌫UH )(1 ⇢REJ + RET

⇣

)I

J E

dSHJ = dt

HJ LSHJ ILJ + ELJ

J H

E

SHJ

IEJ +

EEJ

J H

H

SHJ

IHJ +

EHJ

J HO

SHJ

IOJ +

EOJ

+

J SHP

⌧ SHJ

⇢SHJ + SHT

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Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 42 of 43 PageID 181

dEHJ = dt

J H

L

SHJ

ILJ +

ELJ

+

+

J H

O

SHJ

IOJ +

EOJ

J H

E

SHJ

IEJ +

EEJ

EHJ + J EHP

+

J HH

SHJ

IHJ +

EHJ

⌧ EHJ EHJ + EHT

dIHJ = dt

EHJ

J IHP

IHJ

!H

⇣

I

J H

(1

⌫UH ) (1

⌧ IHJ ⇢IHJ + IHT

⇣)

DeathU

I

J H

⌫UH (1

⇣)

Discharge

I

J H

+

dMHJ dt

=

!H

⇣

I

J H

Discharge⌫H MHJ

Death(1 ⌫H )MHJ

dRHJ = dt

IHJ +

Discharge⌫H MHJ +

Death(1

+ ⌫H (1 ⇣) DischargeIHJ + J RHP

⌫H )MHJ + DeathU (1 ⌫H ) (1 ⌧ RHJ ⇢RHJ + RHT

⇣) IHJ

dSOJ = dt

J

J OL

S
O

µC SOJ

ILJ + IEJ + IHJ +

ELJ + EEJ + EHJ

J OO

SOJ

IOJ +

EOJ

+ µJ SOC

dEOJ = dt

OJ LSOJ

ILJ + IEJ + IHJ +

+ µJ EOC µC EOJ

EOJ

ELJ + EEJ + EHJ

+

J OO

SOJ

IOJ +

EOJ

dIOJ dt

=

µJ IOC

µC IOJ + EOJ

IOJ !IOJ

dROJ dt

=

µJ ROC

µC ROJ + IOJ

SI Appendix 2. The exponential survival model fit to Hu et al., 2020 estimated a mean asymptomatic shedding period of 11.79 days (95% CI: 7.86, 18.61), which is indeed a higher estimate than that found in the original manuscript, which did not account for censoring. As 5.1 of those days are already accounted for in the original estimate for 1, this yielded an estimate for ˆ 1 of 6.7 days. Compared to a Kaplan-Meier fit of the available data, the exponential model fit well, and adequately models underlying survival function (Fig 8).

9, 2020

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Case 3:20-cv-00832-E Document 3-1 Filed 04/09/20 Page 43 of 43 PageID 182

Fig 8. Proportion of patients with viral shedding among a cohort of asymptomatic COVID-19 patients in China. Original data from Hu et al., 2020. Dashed black line depicts a non-parameteric Kaplan-Meier fit, while the solid blue line depicts the fit of an exponential survival function.

9, 2020

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Case 3:20-cv-00832-E Document 3-2 Filed 04/09/20 Page 1 of 16 PageID 183
Exhibit 2
Declaration of Dr. Robert L. Cohen, M.D.

Case 3:20-cv-00832-E Document 3-2 Filed 04/09/20 Page 2 of 16 PageID 184
Declaration of Robert L. Cohen, M.D., Regarding the Spread of COVID-19 in and from the Dallas County Jail Professional Background 1. I am an internist. I received my M.D. degree from Rush Medical College at Rush University. I have worked as a physician, administrator, and expert in the care of prisoners and persons with HIV infection for more than thirty years. I was Director of the Montefiore Rikers Island Health Services from 1981 to 1986. In 1986, I was Vice President for Medical Operations of the New York City Health and Hospitals Corporation. In 1989, I was appointed Director of the AIDS Center of St. Vincent’s Hospital. I represented the American Public Health Association (APHA) on the Board of the National Commission for Correctional Health Care for 17 years. I have served as a federal court monitor overseeing efforts to improve medical care for prisoners in Florida, Ohio, New York State, and Michigan. I have been appointed to oversee the care of all prisoners living with AIDS in Connecticut, and I also serve on the nine-member New York City Board of Corrections. Coronavirus of 2019 Poses a Significant Threat in the Dallas County Jail 2. Coronavirus disease of 2019 (COVID-19) is a pandemic. COVID-19 is caused by a novel coronavirus (SARS-CoV-2) for which there is no established curative medical treatment and no vaccine. UpToDate1 reports an overall case mortality rate from the disease of 2.3 percent, though the rate ranges in different geographies, from 0.9 percent in South Korea to 7.2 percent in Italy.
1 See “Coronavirus disease 2019 (COVID-19)”, UpToDate, https://cutt.ly/GtJYSkj. UpToDate is an online medical reference resource widely used in hospitals and health organizations and by private physicians. The 2.3 percent figure is from an update on April 4, 2020.

Case 3:20-cv-00832-E Document 3-2 Filed 04/09/20 Page 3 of 16 PageID 185
3. The numbers of COVID-19 cases in Dallas County and Texas are rising rapidly, resulting in a public health crisis. Texas was declared a disaster area due to COVID-19 by Governor Greg Abbott on March 13, 2020. Cases in Dallas County increased from one as of March 10, 2020 to 921 as of April 2, 2020.2 Cases in Texas rose from five on March 6, 2020 to 6,110 on April 3, 2020.3 As of the date I am executing this declaration, there are 8,264 confirmed COVID19 cases in Texas, and 1,155 in Dallas County.4
4. The current conditions in the Dallas County Jail create a high risk of contributing to an outbreak of COVID-19. Jails and prisons are long known to rapidly spread air-borne respiratory infection like COVID-19 because they house large number of persons held in cramped conditions with inadequate air flow. Tuberculosis, for example, is a bacterium that is significantly less transmissible than COVID-19 yet has been responsible for numerous outbreaks of illness in prisons and jails over the years. For this reason, the Centers for Disease Control and Prevention (CDC) recommend universal screening for tuberculosis in all jails and prisons. The intensity of tuberculosis screening in prisons and jails depends on the inmate population, their length of stay, and the prevalence of tuberculosis in the population that live in and work in the jail.5
5. Everyone is at risk for COVID-19 infection, and the danger of transmission presented by COVID-19 in jails and prisons thus requires more intense screening and testing than tuberculosis. Everyone who lives and works in a jail is at the highest risk.
2 See Dallas County Health and Human Services 2019 Novel Coronavirus (COVID-19) Summary, Fig. 2, (Apr. 3, 2020), https://cutt.ly/ptJUtCt. 3 See Texas Department of State Health Services, “Texas Case Counts COVID-19” (accessed April 7, 2020), https://cutt.ly/YtJUaXJ.
4 Id. 5 Centers for Disease Control, Prevention and Treatment of Tuberculosis in Correctional and Detention Facilities, (July 2006), https://cutt.ly/HtJUIqu.

Case 3:20-cv-00832-E Document 3-2 Filed 04/09/20 Page 4 of 16 PageID 186
6. Jails promote the spread of respiratory illnesses because large groups of strangers are forced suddenly into crowded congregate housing arrangements. Normal civilian recommendations that are made with the expectation that individuals can safely shelter in place are not relevant to a jail where congregate living is forced on all who enter. This situation is complicated by the fact that custody and other personnel who care for detainees live in the community and can carry the virus into a jail with them and, just as concerning, out into the community at large.
7. At a time when (a) the President’s task force on COVID-19 recommends limiting gatherings to no more than 10 persons, (b) the President has declared a national emergency, (c) the Centers for Disease Control and Prevention (CDC) recommend wearing a face mask in public settings where social distancing is difficult to maintain, and (d) there is a stay-at-home order in Texas through at least April 30, 2020, Dallas County is forcing over 5,000 people to live in congregate living conditions at the Dallas County Jail with a continuing influx of new bookings every day. Because of the structure of the jail and manner in which daily activities occur in a jail, incarcerated persons intermingle, and it is not possible to limit gatherings to less than 10 individuals or engage in social distancing required by public health guidance. The conditions in the Dallas County Jail are contrary to the President’s recommendation, to the Texas Governor’s order requiring people to “minimize in-person contact with people who are not in the same household”,6 to the stay at home order by Dallas County,7 to City of Dallas regulations implementing the Texas and Dallas County orders,8 and to current public health recommendations.
6 Office of the Tex. Gov., Press Release: Governor Abbott Issues Executive Order Implementing Essential Services and Activities Protocols (March 31, 2020), https://cutt.ly/stJUKfc. 7 See Amended “Safer at Home” Order, (Apr. 6, 2020), https://cutt.ly/otJIl2m. 8 See Shelter in Place: Stay Home Stay Safe, City of Dallas, https://cutt.ly/TtJIvcg.

Case 3:20-cv-00832-E Document 3-2 Filed 04/09/20 Page 5 of 16 PageID 187
These circumstances will result in the spread of disease both within the Dallas County Jail and to the broader community.
8. Indeed, there are already confirmed cases of COVID-19 in the Dallas County Jail: On March 25, 2020, Dallas County Sheriff Marian Brown announced during a news conference at the Frank Crowley Courthouse that a Dallas County Jail inmate, a man in his 40s, who tested positive for the novel coronavirus had been in custody for at least three months, since December 2019.9 Sheriff Brown said on April 1, 2020 that it was unclear how he contracted the virus while in custody.10
9. Medical care for COVID-19 focuses on prevention, which emphasizes physical distancing, handwashing, respiratory hygiene, and the wearing of masks. Currently, severe cases of the disease can be treated only with supportive care including respiratory isolation, oxygen, and mechanical ventilation.
10. COVID-19 is transmitted by infected people when they sneeze or cough. Droplets of respiratory secretions infected with the virus can survive as an aerosol for up to three hours.11 Droplets can be directly transmitted by inhalation to other individuals in close proximity. Droplets can land on surfaces and be picked up by the hands of another person who can then become infected by contacting a mucous membrane (eyes, mouth, or nose) with their hand. Infected droplets can remain viable on surfaces for variable lengths of time, ranging from up to three hours on copper, 24 hours on cardboard, and two to three days on plastic and stainless steel.12
9 Editorial, COVID-19 spreads with close contact, so what do we do about those in jail?, The Dallas Morning News (Apr. 5, 2020), https://cutt.ly/8tJOi67. 10 Id. 11 National Institute of Health, New Coronavirus Stable for Hours on Surfaces (March 17, 2020), https://cutt.ly/BtJOaia. 12 Id.

Case 3:20-cv-00832-E Document 3-2 Filed 04/09/20 Page 6 of 16 PageID 188
11. There is now evidence that COVID-19 can be transmitted by asymptomatic individuals, and it is estimated that approximately six percent of infections are transmitted by asymptomatic persons.13 This is critical in a jail because persons coming into the jail or already in jail and newly infected may be asymptomatic, are confined in close quarters, and are passing the infection without being aware.
12. Infected individuals become symptomatic with COVID-19 in a range of 2.5 to 11.5 days with 97.5 percent of infected individuals becoming symptomatic within 11.5 days. Typically, an infected individual becomes symptomatic around day five of their infection. The total incubation period for COVID-19 is thought to extend up to 14 days. Thus, persons coming into jails can be asymptomatic at intake only to become symptomatic later during incarceration. For that reason, a comprehensive correctional intake screening test for COVID-19, including COVID19 testing is essential. Despite Positive Steps Taken to Address COVID-19 in the Dallas County Jail, Considerably More Must be Done to Protect Incarcerated Persons and the Community
13. At the Dallas County Jail, an incoming detainee receives a screening test for COVID-19 only if intake personnel refer the detainee to health care professionals at the jail and they determine the detainee meets “Dallas County Health and Human Services criteria.”14 Others are not routinely tested.
14. There are three types of groups cohorted in the Dallas County Jail with respect to the COVID-19 pandemic under CDC guidelines.15
13 Wycliffe Wei, et al., Presymptomatic Transmission of SARS-CoV-2 Singapore, January 23-March 16, 2020, Morbidity and Mortality Weekly Report, Vol. 69, (April 1, 2020), https://cutt.ly/utJPq7f. 14 Dallas County Sheriff’s Office, “COVID-19 Initiatives,” (March 27, 2020), https://cutt.ly/NtJO7zY. 15 Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (March 23, 2020), https://cutt.ly/atJPt5B.

Case 3:20-cv-00832-E Document 3-2 Filed 04/09/20 Page 7 of 16 PageID 189
15. The first group are “persons quarantined” and includes those who may have been exposed or those who have unknown status, such as new inmates coming into the jail. Persons newly booked into the Dallas County Jail should be housed separately from any other group for a sufficient period of time after booking to reduce further transmission. Further, to reduce transmission, Dallas County officials should take every measure to admit and book as few new people into the jail as possible, as other cities have done in response to the COVID-19 crisis.
16. The second group are persons suspicious for COVID-19, which includes those who are symptomatic but whose tests have not been done or are pending, or who are otherwise highly likely to have the virus; this group is called “persons-under-investigation” (PUI).
17. The third group are persons known to be COVID-19 positive. These groups should be screened daily or multiple times daily for symptoms and fever. The known COVID-19 positive cases need to also be regularly checked for their oxygen levels to ensure they are not deteriorating. Persons known to be positive for COVID-19 should be housed separately from the rest of the jail. While testing positive for COVID-19 is not an independent reason to release someone from custody as a matter of public health, if someone positive for COVID-19 is medically vulnerable, sick, or incarcerated on a technical probation violation, a pretrial bond, or on a sentence with less than one year remaining, their positive status should not be a bar to releasing them so long as an adequate self-quarantine option for them exists.
18. As of April 4, 2020, according to The Dallas Morning News, 5,300 inmates remained in the Dallas County jail, down from 5,900.16 At least 20 of them had tested positive for the novel coronavirus, as had at least six detention officers and one or two deputies, up from five
16 Id. That number compares with 4,661 detainees at the Cook County jail in Chicago as of April 3. See Sheriff’s Daily Report, https://cutt.ly/4tJAv9r.

Case 3:20-cv-00832-E Document 3-2 Filed 04/09/20 Page 8 of 16 PageID 190
the week before.17 These numbers represent a more than 5x increase from the week before.18 The
number has almost certainly grown over the intervening days.
19. Detainees are still being admitted into Dallas County Jail. According to its website,
the Dallas Sheriff’s Office did not begin “checking the temperatures of employees assigned to the
jail” or asking detainees during the intake process “a set of preliminary questions recommended
by Dallas County’s healthcare partners” until March 27, 2020.19 Known or suspected cases of
COVID-19 require isolation from others, but the housing units at the Dallas County Jail are not set
up for mass quarantine or isolation. The Dallas County Sheriff’s Office reports that “[i]nmates that
need quarantining are being housed in separate cells.”20 According to the Dallas County website,
there are fewer than 220 single cells in the North and West Towers of the principal Dallas County
Jail facilities (at the Lew Sterrett Justice Center, a few blocks west of downtown Dallas) and an
unknown number in the South Tower.21
20. Because inmates continue to be incarcerated in the Dallas County Jail, invariably,
this will result in a significant portion of the Dallas County Jail dedicated to quarantine. Because
the recommended number of days for quarantine is 14 days,22 if any individual in a cohort becomes
COVID-19 positive, the entire group should be quarantined for another 14 days. As the number of
persons in quarantine grows, managing them clinically becomes unsustainable. As of April 6,
17 Editorial, supra note 9 (“At the time of this writing, 20 inmates had tested positive for the virus, along with six detention officers and one deputy.”); Ashley Paredez, Confirmed COVID-19 cases at Dallas County Jail now up to 28, Fox 4 (April 4, 2020), https://cutt.ly/0tJSenr (“The number of coronavirus cases at the Dallas County jail has increased from five cases last week, to now a total of 28,” and “six [of those testing positive] are detention officers and two are clerks”); COVID-19 Live Updates, KERA News (quoting Director of Dallas County Health and Human Services on April 5, 2020 as saying “the jail has 24 cases, which includes 22 inmates and two detention officers,” presenting approximately 25% of all new cases in Dallas County that day), https://cutt.ly/itJSsiy. 18 Paredez, supra note 17. 19 Sheriff’s office COVID-19 Initiatives, supra note 14. 20 Id. 21 Dallas County Sheriff, Detention Centers, https://cutt.ly/AtJSO2A. 22 See Interim Guidance, supra note 15.

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2020, more than half of the incarcerated persons in New York City’s jails, over 2500, are in asymptomatic “quarantine status.” 23
21. Keeping people with confirmed COVID-19 cases in the same, quarantined cohort is a correct intervention. However, this can only be done as staff and physical capacity limits allow. For persons who are sick, vulnerable to serious illness, or whose reason for incarceration is less serious—for instance, a technical probation violation, a pretrial bond, or a criminal sentence with less than one year left—release should remain the default public health intervention, notwithstanding an individual’s positive COVID-19 status. In cases where a person positive with COVID-19 should be released, jail and other officials should confirm that the individual can be released to self-quarantine at home or in a temporary socially distant housing option such as a vacant hotel room.24
22. Negative room pressure is an isolation technique used to prevent crosscontamination from room to room of airborne contagious diseases, such as COVID-19. While, if operating properly, they can be effective, there are only a limited number of negative pressure isolation rooms at the Jail, and the known numbers of COVID-19 patients and persons suspicious for infection likely already exceeds the number of isolation beds. Based on available information regarding the characteristics of the Dallas County Jail’s three towers, there are an inadequate number of negative pressure rooms, and thus the conditions there create a high risk of transmission to both staff and other inmates. Increasingly it is difficult to separate suspected and infected persons from the uninfected, and therefore infections will rise. The continuing rise in positive COVID-19 cases at the Dallas County Jail demonstrate that this is already occurring.
23 These persons are not being tested for COVID-19 in New York, though it is my opinion that they should be.
24 See, e.g., Updates: COVID-19 in Washington State, KUOW (Apr. 3, 2020) https://cutt.ly/ftJDdzd (discussing, inter alia, the use of vacant hotels to provide temporary housing for those who need to practice social distancing but do not have a stable option on their own).

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23. Incarcerated persons in quarantine or in isolation for suspicion or known infection must be monitored. Persons in quarantine should be monitored daily for symptoms and temperature. Individuals in isolation require multiple daily temperatures and monitoring of blood oxygen levels to ensure stability. The required monitoring has had an effect – severely stressing or overwhelming-- on staffing in facilities with significant infections. The COVID-19 pandemic has had a similar effect on staffing in most hospital settings.
24. Newer tests with a turn-around time of one day (“rapid COVID-19 test”) are still being rationed. These tests need to be made available to screen inmates quarantined in order to reduce transmission to newly incarcerated inmates in their arrest quarantine cohort. All incoming inmates into the jail should be screened for COVID-19.
25. Most persons being discharged from the jail have uncertain COVID-19 status. If a person of unknown COVID-19 status is discharged from quarantine or from PUI isolation they can infect persons they come into contact with in the community. For this reason, persons being discharged from the jail who have uncertain status need to be tested with a rapid COVID-19 test prior to discharge and given appropriate instructions on protecting themselves and others. However, testing should not be used to delay release.
26. An individual’s immune system is the primary defense against this infection. As a result, people over 50 years of age and persons with impaired immunity, including chronic diseases, have a higher probability of death if they are infected. It is important to note that the older a person is, the higher likelihood of death; this is thought to be due to impaired immunity with aging. Persons of any age with a number of health conditions including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease),

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blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, severe obesity, and asthma, also have an elevated risk.25 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.26 Persons with severe mental illness in jails and prisons are also, in my opinion, at increased risk of acquiring and transmitting infection because of likely inability or impaired ability to communicate.
27. The current CDC recommendations for social distancing and frequent handwashing measures, which are the only measures available to protect against infection, are extremely unlikely to be adequately enforced in the current correctional environment at the Dallas County Jail. The mandatory cleaning and sanitizing of all surfaces multiple times each day, in bathrooms, toilets, showers, tables, and all surfaces will be extremely difficult to assure. Adequate cleaning supplies and necessary personal protective equipment for all persons must be provided.
28. A large number of employees work in jails and prisons. These individuals have frequent contact with incarcerated persons, which often requires them to break the recommended CDC guidelines for social distancing. Frequent handwashing is not easily available for inmates or staff. Their risk is considerable. At least seven employees at the Dallas County Jail tested positive for COVID-19 as of April 3, 2020, and the number of infected employees will undoubtedly be larger when this Declaration is filed. These employees return to the community and can and will transmit the infection to others in their family and community. In this sense, jails act as incubators
25 World Health Organization, Coronavirus disease (COVID-19) advice for the public: Myth busters, https://cutt.ly/dtEiCyc (“Older people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to becoming severely ill with the virus.”); see Centers for Disease Control, Groups at Higher Risk of Severe Illness, https://cutt.ly/AtJDxSv. 26 World Health Organization, Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), at 12 (Feb. 28, 2020) https://cutt.ly/xtEokCt) (finding fatality rates for patients with COVID19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”).

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of respiratory infectious disease. COVID-19 is experiencing a rapid and dramatic spread within the Dallas County Jail and this ongoing outbreak is inevitably resulting in spread to the community. All staff entering the jail should be screened daily for temperature and symptoms, and should be sent home if they cannot pass the screen.
29. Currently, there is limited screening and very little protective housing for all inmates in the Dallas County Jail. Opinions and Recommendations
30. Given current conditions in the jail, it is my opinion that steps should immediately be taken to release any inmate who is over the age of 50 or otherwise medically vulnerable as described in Paragraph 23 above to protect them from a serious risk of death. No less intrusive intervention will adequately address the public health risk posed by COVID-19 in the Dallas County Jail environment.
31. I also believe anyone in jail for a technical parole violation or less than one year left on a sentence should be removed from the Dallas County Jail. Considerable downsizing is needed—less urgent action will not be sufficient.
32. In addition to release, it is my opinion that the following steps must be taken to protect those in the Dallas County Jail, and that they too are necessary in order to address the threat posed by COVID-19. These additional necessary measures cannot replace the release required as described in Paragraphs 30 and 31.
33. It is my opinion that at this time, testing for COVID-19 must be expanded to all incoming inmates and all inmates about to be discharged. These tests need to be done as rapidly as possible due to problems with potential for transmission in the quarantined population and the need to discharge people quickly. Rapid COVID-19 testing also needs to be expanded for as many

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people as possible because of the ongoing continuing rise in cases and continuing transmission within the jail. This recommendation is made to protect both the inmate population and the civilian population who will be exposed to employees who work within the jail.
34. It is my opinion that persons under investigation (PUI) for COVID-19 need to be housed in separate housing and not in cells on tiers with other inmates.
35. It is my opinion that—to the extent, for any reason, they are not immediately released—any incarcerated person over 50, or with severe mental illness, or a medical vulnerability as set forth in paragraph 23, along with all persons in quarantine or who have potentially been exposed to the virus should, immediately, have a daily symptom and temperature screening. Any positive symptom or temperature should require respiratory isolation and testing for COVID-19. All PUI and known COVID-19 positive detainees need to have monitoring every shift with at least vital signs including temperature and pulse oximeter testing.
36. It is my opinion that all persons anticipated being discharged who have uncertain status need to be tested with a rapid COVID-19 test prior to discharge.
37. All symptomatic persons requiring discharge planning services to assure safe transition back to their community must have access to these services, including temporary housing. The need for such services should not be treated as a bar to release.
38. It is my opinion, and the CDC recommendation, that all inmates and staff should wear a face mask. Employees interacting with potentially positive inmates (most inmates at this time) must wear CDC recommended personal protective equipment.
39. It is my opinion that all inmates in the Jail should receive full and free access to sanitation supplies (including soap, cleaning supplies, paper supplies and sanitizer with at least 60 percent alcohol) and adequate advice, orally and in writing, by appropriately trained personnel,

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regarding the relevant symptoms to look for, the urgency of the social distancing, and appropriate use of PPE.
40. Jail administration should document that cleaning supplies are available to persons working and living in the jail, that all surfaces in all housing and living areas are cleaned. This information should be published.
41. It is my opinion that all persons housed in the Jail should receive information, both verbally and in writing, about the latest CDC and public health guidance about the COVID-19 disease, including best practices and updated protocols as they emerge.
42. It is my opinion that statistics reflecting the state of the pandemic in Dallas County Jail be published daily and provided to the community, including those who live and work in the jail. This data is essential to assure that current pandemic management plans are working, and to provide timely evidence if they are not, so that plans can be changed.
43. Elements of this daily published report must include: a. Number of patients with confirmed COVID-19 b. Number of patients tested each day c. Number of positive and number of negative results received each day d. Number of Correction Staff with Confirmed COVID-19 positive (cumulative) e. Number of Jail Health Staff with Confirmed COVID-19 (cumulative) f. Total Population in Custody g. Total New Admissions h. Total Pretrial i. Total Sentenced j. Total held on Technical Parole Violation

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k. Total 50+ l. Total in Infirmary Status (Mens and Womens infirmary) m. Total Pregnant Women in Custody n. Number in Quarantine Status
i. Admission ii. Exposed, not tested o. Number of Persons Under Investigation (PUI) p. Number COVID-19 in cohorted housing q. Total Hospitalized i. Daily Hospital Admissions ii. Daily Hospital Discharges iii. Daily Number of Patients on Ventilators iv. Deaths (daily and cumulative) 44. It is my opinion that all persons hosed in the Jail should receive clean, laundered sheets and clothing at least twice a week, and showers with soap once per day, and at least one hour of large muscle recreation 45. It is my opinion that sufficient physical distancing must be implemented throughout the Jail, including allowing for six feet of distance between inmates, in addition to the measures outlined above for those who are positive or PUI. People should be released from the jail until it can be run in a manner that ensures sufficient social distancing at all times, beginning with persons over 50 and the medically vulnerable, as I set forth above. 46. It is my opinion that inmates must continue to have access to timely and emergency medical and mental health care as this virus continues to spread.

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Declaration of Eduardo Hinojosa

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Declaration of Eduardo Hinojosa
My name is Eduardo Hinojosa and I was detained in the Dallas County Jail for four months until I was released on April 3, 2020. My Bookin# was 19060903.
1. When I was detained at the Dallas County Jail, I was a resident of South Tower (KT 1C). I was one of 61 detainees housed in Tank 1-C of the first floor of the South Tower. There are nine Tanks on this floor. There are four people within each bunk area, and the bunk areas are separated by less than six feet. It is my understanding that at least two detainees in South Tower had the virus, and at least two officers tested positive as well. The detainees who were sick were removed from South Tower. At this point, we all started to panic and were very afraid.
2. I was never removed from South Tower and remained there until I was released. Even though we were exposed to the virus, most of us were never quarantined or tested. I never showed any symptoms of the virus, and the jail was only testing people who showed symptoms.
3. I have high blood pressure, and my prostate and kidney are compromised, so I am especially vulnerable to the virus, but this was not taken into consideration by the jail at all. When I was at the jail, I was only given medication for my blood pressure. When I asked about other ailments, I was advised to seek treatment when I was released.
4. Starting in February, we started to receive instructions that we should be maintaining six feet of distance from each other and washing our hands frequently. This instruction was not official, but rather provided by certain guards who were concerned for our safety and their own safety. Not everyone listened to this advice. Additionally, this was impossible advice to follow given the amount of people in each cell and the way the bunks were organized.
5. I was provided a mask for the first time on April 3, my last day at the jail, and then only because I worked in the kitchen. The only detainees given masks were those who worked in the kitchen, and that only started on April 3.
6. We had access to very small amounts of free soap. I thought that soap was not enough and of poor quality. To get body wash or additional soap, you need to buy from the commissary. There are six showers available daily for approximately 60 people.
7. It is only very recently that the jail staff have started wearing personal protective equipment. Staff would sometimes have masks and gloves, but it was not consistent. The correction officers would sometimes try to put physical barriers, like chairs, between themselves and inmates to keep six feet of distance between them. The staff seemed just as scared and panicked as the inmates did.
1

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8. I did not file a grievance form because there is a long history of retaliation against those who file grievances at the jail and I feared the consequences. I was in a good position as a Trustee working in the kitchens. I did not want to jeopardize that placement.
9. I was released on April 3, 2020 because I had been awaiting placement in a treatment program. My sister and my girlfriend collected petitions and advocated for my release with the District Attorney due to the threat from this pandemic. It is only because of their actions that I was able to get released.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

/s/ Eduardo Hinojosa_________________ Eduardo Hinojosa

2

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Declaration of David Jones

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Declaration of Amy Fly on behalf of Jesus Mandujano

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Declaration of Amy Fly on behalf of Jesus Mandujano
My name is Amy Fly and I am licensed to practice law in the State of Pennsylvania. On April 5, 2020, I spoke to a detainee in the Dallas County Jail named Jesus Mandujano (Bookin# 19057642) and he provided me with the following information:
1. Mr. Mandujano is 20 years old. He is incarcerated on a $27,500 bond that he cannot afford to pay.
2. Mr. Mandujano has been detained on the 3rd floor of South Tower in C pod since January. The pod has 64 beds, and all but 6 are occupied. The bunks are right next to each other. Some of the men in his pod are clearly sick but have not been tested for COVID-19. One of the men who was coughing and sneezing was given a mask, but no replacement masks. The sick man wore the mask for three days until it became too dirty to wear anymore.
3. Mr. Mandujano started trying to clean the pod because the detainees responsible for cleaning do not do a good job. There are nats everywhere. The jail staff have not educated the detainees about the virus, so they do not take it seriously. Everyone keeps asking Mr. Mandujano why he keeps cleaning everything. Mr. Mandujano only recently started wiping down the phones before he used them because they are never cleaned and his girlfriend told him the virus could spread by using the phone.
4. The jail operations have not seemed to change much since the pandemic began. For example, they still only receive clean clothes once every six days. The only noticeable difference is that they are no longer allowed to have in person visitations.
5. Mr. Mandujano helps pass out meal trays to everyone in the pod. He is given gloves and a hair net, but not a face mask.

I declare under penalty of perjury that the forgoing is true and correct.

April 5, 2020 Dallas County

_/s/ Amy Fly________________________ Amy Fly

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Declaration of Alison Grinter on behalf of Gloria Nelson

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Declaration of Alison Grinter on behalf of Gloria Nelson
My name is Alison Grinter. I am an attorney who is licensed to practice in the Eastern District of Texas. On April 7, 2020, I spoke to a detainee in the Dallas County Jail named Gloria Nelson (Bookin# 19045805) and she provided me with the following information:

1. Gloria Nelson is 31 years old, and is housed in the Dallas County Jail South Tower (also known as Kays Tower) as a federal inmate. She is being held for the federal court for a charge of money laundering for which she has already entered a plea and is awaiting sentencing. She has been in the Dallas County Jail since September 18, 2019.

2. About two weeks ago she became very sick. Her symptoms included sore throat, shortness of breath, and coughing.

3. One night she got up at about 3AM and told the guards that she was sick and in distress. guards brought a nurse to the pod, who checked her heartrate, said she was fine, and told her to put in a sick call request.

4. Ms. Nelson put in a sick call, and it took three days before someone saw her in response. When she saw finally received help, the provider looked in her mouth, checked her temperature, heartrate, pulse oxygenation, and blood pressure. That was the extent of the examination. The provider did not swab her nose or look at her throat with a light. She was given 10 mg of loratadine, Mucinex, and ibuprofen and sent back to the pod.

5. Ms. Nelson is still sick and has taken all of the Mucinex she was given, she has a few remaining loratadine.

6. Ms. Nelson is very worried about the COVID-19 pandemic, since she believes a woman in her pod was tested positive and quarantined about a week and a half ago.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

_________________________ Alison Grinter

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Declaration of Alison Grinter on behalf of Olivia Washington

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Declaration of Alison Grinter on behalf of Olivia Washington
My name is Alison Grinter. I am an attorney who is licensed to practice in the Eastern District of Texas. On April 7, 2020, I spoke to a detainee in the Dallas County Jail named Olivia Washington (Bookin# 20006098) and she provided me with the following information:
1. Ms. Washington was booked into the Dallas County Jail on February 6, 2020. She is currently being held awaiting transport to the Substance Use Felony Punishment Facility (or SAFP) in the special needs unit.
2. Ms. Washington was friends with a fellow inmate, Amanda Martin, who was sick. Ms. Washington commented that Ms. Martin didn’t look or sound too good. Ms. Martin said that the jail had not responded to her sick call kites. When they finally did respond, they just gave her Mucinex.
3. Then one day early last week in the middle of the night or early in the morning when everyone was asleep, they took Ms. Martin and sprayed down her bunk with a white substance that smelled bad.
4. People around the pod have been coughing. The jailers have told the inmates “put in a kite, it’s the same process as usual.” The process requires a sick inmate to pay ten dollars to make a sick call notice. The timing of a response depends on how busy the medical center is. It takes between a few days and a week be seen by a doctor.
5. There are a lot of people who don’t put in a sick call because they don’t have the money. If you don’t have the money on your books, it sends your account negative, and a lot of inmates don’t want to waste their commissary money.
6. The pod has been getting clean laundry every six days. Usually it’s every three days, but delays started in March.
7. Ms. Washington has seen the guards begin to wear masks, but the inmates are fed by inmate trustees that aren’t given masks or gloves when they go from pod to pod passing out food. The inmates eat in the dayroom, shoulder to shoulder.
8. The inmates have asked for masks, but they have not been given anything. Commissary service has also stopped, so no additional hygiene items are available.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

_________________________ Alison Grinter

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Declaration of Amy Fly on behalf of Todd Whitfield

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Declaration of Amy Fly on behalf of Todd Whitfield
My name is Amy Fly I am an attorney who is licensed to practice in the state of Pennsylvania. I spoke to a detainee in the Dallas County Jail named (Bookin# 20011184) on April 5, 2020. Mr. Whitfield provided me with the following information:
1. Mr. Whitfield is 28 years old. He is incarcerated on a $40,000 bond that he cannot afford to pay.
2. He has tested positive for COVID-19.
3. The staff told detainees that those who tested positive for the virus would be housed in the infirmary, which is located in the basement of the North Tower. Mr. Whitfield is currently detained on the 9th floor of the West Tower, where both people who have tested positive for COVID-19 and those who have not are housed together. He spent 7 or 8 days here before he was tested.
4. Mr. Whitfield was housed near a man with Hepatitis who was clearly very sick and running a very high fever. The man was eventually removed from the floor, but Mr. Whitfield does not know where he was taken.
5. When one man in Mr. Whitfield’s pod was transported to the infirmary, the jailers put a sign on the door of his cell that said it was closed for cleaning. As of the date of this declaration, it has been 6 days and the cell has not been cleaned.
6. Every day Mr. Whitfield tells the staff that his body is in pain and his temperature is checked. He has had fevers ranging from 101 -106 degrees Fahrenheit. But he has not has not been transferred to the infirmary or received any medical treatment besides Tylenol.
7. Mr. Whitfield and the other detainees who tested positive are locked in their cell 24 hours a day. They are not even allowed to send mail. There is one jailer who goes out of her way to let them use the phones to tell their loved ones they are still alive. Generally they are not allowed to use the phones. When the phones are used, they are not wiped down.
8. The jailers do not use the slot in the door to deliver meals. Instead, they shove food under the door.
9. The jailers only supplied Mr. Whitfield with one mask that he must reuse every day.
10. Mr. Whitfield spent a week in West Tower before he was given any soap.
1

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11. Mr. Whitfield, who has the virus, shared a pod with two men who were not tested for 910 days. The two men were then moved to a pod of other people who had not been tested. Many people refuse to take the tests because they do not want to be locked in their cells for 24 hours a day.
12. Everyone in his pod made an attempt to file grievances at the same time. It took 7 days for staff to bring them grievance forms. The detainees filled out the forms, but the staff will not collect them from the outboxes.

I declare under penalty of perjury that the forgoing is true and correct.

April 5, 2020 Dallas County

_____s/ Amy Fly_______________ Amy Fly

2

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Declaration of Alison Grinter on behalf of Kiara Yarborough

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Declaration of Alison Grinter on behalf of Kiara Yarborough

My name is Alison Grinter. I am an attorney who is licensed to practice in the Eastern District of Texas. On April 7-8, 2020, I spoke to a detainee in the Dallas County Jail named Kiara Yarborough (Bookin# 19060031) and she provided me with the following information:
1. Ms. Yarborough is an inmate in the Dallas County Jail, in the South (Kays) Tower 4th floor pod D. She has been in the jail since December 19, 2019 and is currently being held awaiting transport to the Intermediate Sanction Facility (ISF), a special treatment program run by the Texas prison system.

2. Ms. Yarborough is susceptible to pyelonephritis, a kidney infection, and has struggled with it for much of her life. She also suffers from sciatica, nerve pain in her lower back. Before she was incarcerated, she took medications for high blood pressure, but she is not receiving those medications in the jail.

3. Her pod has a maximum capacity of 64 detainees. Currently 53 beds are filled.

4. A woman in her pod, Amanda Martin, put in sick calls for a week before a nurse saw her. Afterwards, she was removed from the pod and put into quarantine in the middle of the night while other detainees were asleep. Jail staff then sprayed her bunk with something Ms. Yarborough had never seen used in the jail before. It left a strange residue. Another detainee Suzette Williams was moved into Amanda Martin’s old bunk.

5. No one else from the pod was quarantined – not even those who sleep right next to her. Of the three detainees who slept closest to her, one moved pods (Jessica Campbell) and the other two were released from the jail about three days later.

6. Ms. Yarborough was nervous because her bunk is positioned about three yards away from Ms. Martin’s old bunk. Her bunk is right by the showers and the phones, so it is impossible to keep any distance from the other women in the pod.

7. Clean laundry arrives only every 6 days, and the women are given a limited amount of soap. Commissary doesn’t come around very often and the last few times it did, there was no soap.

8. Some of the guards wear masks, but one never does. The guard prays with the women, which is heartening to Ms. Yarborough because, as she says, “The only one protecting us now is God.”

9. On April 8, 2020 a guard told Ms. Yarborough that the staff had been instructed to deny all requests for grievance forms.

I declare under penalty of perjury that the forgoing is true and correct.

April 8, 2020

_________________________

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Dallas County

Alison Grinter

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;
Petitioners/Plaintiffs, v.

Civil Action No. 3:20-cv-00832
Appendix in Support of Motion for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

IMMEDIATE RELIEF SOUGHT

Respondents/Defendants

Pursuant to Local Rule 56.6, Plaintiffs submit the following appendix in support of their

Motion for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus:

No. Description

Appendix Page

Numbers

1. Declaration of Dr. Eric Lofgren, Ph.D., dated April 6, 2020 APP 001 – APP 043

2. Declaration of Robert L. Cohen, M.D., dated April 7, 2020 APP 044 – APP 059

3. Declaration of Eduardo Hinojosa, dated April 7, 2020

APP 060 – APP 062

4. Declaration of David Jones, dated April 5, 2020

APP 063 – APP 066

5. Declaration of Jesus Mandiujano, dated April 5, 2020 6. Declaration of Gloria Nelson, dated April 7, 2020 7. Declaration of Olivia Washington, dated April 7, 2020

APP 067 – APP 068 APP 069 – APP 070 APP 071 – APP 072

8. Declaration of Todd Whitfield, dated April 5, 2020

APP 073 – APP 075

9. Declaration of Kiara Yarborough, dated April 8, 2020

APP 076 – APP 078

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Dated: April 9, 2020.

Respectfully submitted,

_____________________ AMERICAN CIVIL LIBERTIES FOUNDATION Andrea Woods* N.Y. Bar No. 5595509 Meredith Taylor Brown* N.Y. Bar No. 5678602 Brandon Buskey* 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org
Henderson Hill* N.C. Bar No. 18563 201 W. Main St. Suite 402 Durham, NC 27701 (919) 682-9563 hhill@aclu.org
Amy Fettig* D.C. Bar No. 484883 915 15th Street N.W., 7th Floor Washington, D.C. 20005 (202) 548-6608 afettig@aclu.org

_____________________ ACLU FOUNDATION OF TEXAS Brian Klosterboer Texas. Bar No. 24107833 Adriana Piñon** Texas Bar No. 24089768 Andre Segura Texas Bar No. 24107112 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146 Fax: (346) 998-1577
_____________________ CIVIL RIGHTS CORPS Katherine Hubbard* D.C. Bar No. 1500503 Elizabeth Rossi* D.C. Bar No. 1500502 1601 Connecticut Ave NW, Suite 800 Washington, D.C. 20009 (202) 894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org

_____________________ SUSMAN GODFREY L.L.P. Barry Barnett Texas Bar No. 01778700 8115 Preston Road, Suite 575 Dallas, TX 75225 (866) 754-1900 bbarnett@susmangodfrey.com
Michael Gervais* N.Y. Bar No. 5122890 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 789-3100 mgervais@susmangodfrey.com
_____________________ NEXT GENERATION ACTION NETWORK LEGAL ADVOCACY FUND Alison Grinter-Allen Texas Bar 24043476 Kim T. Cole Texas Bar No. 24071024 1808 South Good Latimer Expressway Dallas, TX 75226 (214) 704-6400 agrinter@thengan.com kcole@thengan.com

ATTORNEYS FOR PETITIONERS/PLAINTIFFS *pro hac vice application forthcoming
**N.D. Texas admission application forthcoming

2

Case 3:20-cv-00832-E Document 4 Filed 04/09/20 Page 3 of 3 PageID 220 CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was served via the Court’s CM/ECF system on all counsel registered with that system, and via email, on April 9, 2020. /s/ Barry Barnett Barry Barnett
3

 
 Case 3:20-cv-00832-E Document 17 Filed 04/12/20 Page 1 of 5 PageID 246

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 3:20-cv-00832-E-BH Motion for Class Certification

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs respectfully move this Court to certify a class and appoint undersigned counsel as class counsel under Rule 23 of the Federal Rules of Civil Procedure. For the reasons stated in the Brief in Support of the Motion for Class Certification, filed contemporaneously herewith in accordance with Local Civil Rule 7.1, Plaintiffs respectfully request that the Court grant their Motion by entering the undersigned as class counsel and certifying the following classes and subclasses:

1. “Pre-Adjudication Class”: All current and future detainees in pretrial custody at the Dallas County Jail, including alleged violations of probation or parole, at the Jail; a. “Medically-Vulnerable Pre-Adjudication Subclass”: All persons who are in pretrial custody at the Dallas County Jail, including alleged violations of probation or parole, and who, by reason of age or medical condition, meet the CDC criteria for being as particularly vulnerable to injury or death if they were to contract COVID-

Case 3:20-cv-00832-E Document 17 Filed 04/12/20 Page 2 of 5 PageID 247
19. A person shall be deemed “Medically-Vulnerable” if the person is over the age of 50, and/or has or experiences (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 (within the last two weeks) pregnancy; 2. “Post-Adjudication Class”: All current and future detainees in post-adjudication custody at the Dallas County Jail, including those serving a term of incarceration pursuant to an adjudicated violation of probation or parole; a. “Medically-Vulnerable Post-Adjudication Subclass”: All current and future detainees in post-adjudication custody at the Dallas County Jail, including those serving a term of incarceration pursuant to an adjudicated violation of probation or parole. A person shall be deemed “Medically-Vulnerable” if the person is over the age of 50, and/or has or experiences (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)

Case 3:20-cv-00832-E Document 17 Filed 04/12/20 Page 3 of 5 PageID 248
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 (within the last two weeks) pregnancy.
Dated: April 12, 2020
Respectfully submitted,
/s/ Andrea Woods AMERICAN CIVIL LIBERTIES UNION FOUNDATION Andrea Woods Meredith Taylor Brown** Brandon Buskey 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org
Henderson Hill 201 W. Main St. Suite 402 Durham, NC 27701 (919) 682-9563 hhill@aclu.org
Amy Fettig** 915 15th Street N.W., 7th Floor Washington, D.C. 20005 (202) 548-6608 afettig@aclu.org
/s/ Barry Barnett SUSMAN GODFREY L.L.P. Barry Barnett State Bar No. 01778700

Case 3:20-cv-00832-E Document 17 Filed 04/12/20 Page 4 of 5 PageID 249
8115 Preston Road, Suite 575 Dallas, TX 75225 (866) 754-1900 bbarnett@susmangodfrey.com
Michael Gervais* 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 789-3100 mgervais@susmangodfrey.com /s/ Alison Grinter-Allen NEXT GENERATION ACTION NETWORK Alison Grinter-Allen Texas Bar 24043476 Kim T. Cole Texas Bar No. 24071024 1808 South Good Latimer Expressway Dallas, TX 75226 (214) 704-6400 agrinter@thengan.com kcole@thengan.com
/s/ Elizabeth Rossi CIVIL RIGHTS CORPS Katherine Hubbard* Elizabeth Rossi 1601 Connecticut Ave NW, Suite 800 Washington, D.C. 20009 (202) 894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org
/s/ Andre Segura ACLU FOUNDATION OF TEXAS Brian Klosterboer Texas. Bar No. 24107833 Adriana Piñon** Texas Bar No. 24089768 Andre Segura Texas Bar No. 24107112 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146

Case 3:20-cv-00832-E Document 17 Filed 04/12/20 Page 5 of 5 PageID 250
Fax: (346) 998-1577
ATTORNEYS FOR PETITIONERS/PLAINTIFFS *pro hac vice application forthcoming
**N.D. Texas admission application forthcoming
CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing was served via the Court’s CM/ECF system on all counsel registered with that system, and via email, on April 12, 2020. /s/Andrea Wood_______________ Andrea Woods

Case 3:20-cv-00832-E Document 17-1 Filed 04/12/20 Page 1 of 3 PageID 251

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 3:20-cv-00832-E-BH

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;
Respondents/Defendants

CLASS ACTION

[PROPOSED] ORDER GRANTING CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL

Upon consideration of Plaintiffs’ Motion for Class certification and Appointment of Class Counsel, and for the reasons stated in Plaintiffs’ memorandum of Law in Support thereof, the Motion for Class Certification and Appointment of Class Counsel is GRANTED, the action is hereby CERTIFIED as a class action on behalf of the following classes and subclasses:
1. “Pre-Adjudication Class”: All current and future detainees in pretrial custody at the Dallas County Jail, including alleged violations of probation or parole, at the Jail; a. “Medically-Vulnerable Pre-Adjudication Subclass”: All persons who are in pretrial custody at the Dallas County Jail, including alleged violations of probation or parole, and who, by reason of age or medical condition, meet the CDC criteria for being as particularly vulnerable to injury or death if they were to contract COVID19. A person shall be deemed “Medically-Vulnerable” if the person is over the age

Case 3:20-cv-00832-E Document 17-1 Filed 04/12/20 Page 2 of 3 PageID 252
of 50, and/or has or experiences (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 (within the last two weeks) pregnancy; 2. “Post-Adjudication Class”: All current and future detainees in post-adjudication custody at the Dallas County Jail, including those serving a term of incarceration pursuant to an adjudicated violation of probation or parole; a. “Medically-Vulnerable Post-Adjudication Subclass”: All current and future detainees in post-adjudication custody at the Dallas County Jail, including those serving a term of incarceration pursuant to an adjudicated violation of probation or parole. A person shall be deemed “Medically-Vulnerable” if the person is over the age of 50, and/or has or experiences (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)

Case 3:20-cv-00832-E Document 17-1 Filed 04/12/20 Page 3 of 3 PageID 253
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 (within the last two weeks) pregnancy. Counsel listed in Plaintiffs’ Motion as counsel for the class is hereby APPOINTED.
SO ORDERED this _____ day of ___________________, 2020
_______________________ U.S. District Judge Ada Brown

Case 3:20-cv-00832-E Document 18 Filed 04/12/20 Page 1 of 28 PageID 254

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 3:20-cv-00832-E-BH
Memorandum in Support of Motion for Class Certification

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger

Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz hereby move this Court

to certify this case as a class cation under Federal Rules of Civil Procedure 23(a) and 23(b)(2).

I. INTRODUCTION

This case is about Defendants’ failure to act to protect the lives of people detained in the

Dallas County Jail from novel coronavirus and its resulting disease, COVID-19. Defendants have

failed to respond to the urgent threat posed to people confined in the jail by this growing pandemic,

making it impossible for these individuals to observe the precautionary steps necessary to keep

themselves safe, such as social distancing, increased personal hygiene, sanitizing one’s

environment, access to testing, and wearing protective clothing. Defendants’ disregard of the

known risks of illness and death exposes jail detainees to a highly fatal, infectious disease in

violation of their rights under the Eighth and Fourteenth Amendments. Named Plaintiffs challenge

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these unconstitutional conditions and now move for class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(2). Named Plaintiffs also move for appointment of the undersigned as class counsel under Rule 23(g).
II. CLASS DEFINITION Plaintiffs propose the following classes and sub-classes:
1. “Pre-Adjudication Class”: All current and future detainees in pretrial custody at the Dallas County Jail, including alleged violations of probation or parole, at the Jail; a. “Medically-Vulnerable Pre-Adjudication Subclass”: All persons who are in pretrial custody at the Dallas County Jail, including alleged violations of probation or parole, and who, by reason of age or medical condition, meet the CDC criteria for being as particularly vulnerable to injury or death if they were to contract COVID-19. A person shall be deemed “Medically-Vulnerable” if the person is over the age of 50, and/or has or experiences (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 (within the last two weeks) pregnancy;
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2. “Post-Adjudication Class”: All current and future detainees in post-adjudication custody at the Dallas County Jail, including those serving a term of incarceration pursuant to an adjudicated violation of probation or parole; a. “Medically-Vulnerable Post-Adjudication Subclass”: All current and future detainees in post-adjudication custody at the Dallas County Jail, including those serving a term of incarceration pursuant to an adjudicated violation of probation or parole. A person shall be deemed “Medically-Vulnerable” if the person is over the age of 50, and/or has or experiences (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 (within the last two weeks) pregnancy.
III. STATEMENT OF FACTS A. Plaintiffs’/Petitioners Challenge Defendants’ Inadequate Policies and Practices to Combat the COVID-19 Virus which Places all Putative Class Members at Serious Risk in Violation of the Constitution.
Texas and the nation are in the midst of the most significant global pandemic in generations.1 COVID-19 is a highly contagious and deadly respiratory disease caused by a novel
1 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
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coronavirus (SARS-CoV-2). No one is safe. The lethality rate of COVID-19 is estimated to be
between one and six percent: several times more than the common flu that kills thousands a year.2
All age groups including some children have contracted the disease,3 and the World Health
Organization estimates that one in five people who contract the disease require hospitalization.4
On March 13, 2020, the President declared a national state of emergency.5 As of April 7,
2020, confirmed cases of COVID-19 in the United States were more than double the number in
any other country.6 On the same day, Illinois, Louisiana, New Jersey, New York reported their
highest daily death tolls from COVID-19.7 As of April 7, 2020, the Texas Health and Human
Services reported 8,262 COVID-19 cases and 154 deaths from the disease state-wide,8 and Dallas
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).
2 As of April 7, 2020, there were 1,428,428 confirmed cases globally, with 82,020 deaths and 300,198 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; see also “Coronavirus disease 2019 (COVID-19)”, UpToDate, https://cutt.ly/GtJYSkj (as of April 4, 2020, estimated overall fatality rate of 2.3 percent globally).
3 Robert Verity, PhD., et al., Estimates of the Severity of Coronavirus Disease 2019: A ModelBased Analysis, Lancet Infec Dis (March 30, 2020), 6.
4 World Health Organization, Q&A on Coronaviruses (COVID-19), “Should I Worry About COVID-19?,” https://cutt.ly/YtEyrxl.
5 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, (March 13, 2020), https://cutt.ly/EtJLZQZ.
6 Jennifer Calfas, Chong Koh Ping, and Drew Hinshaw, Global Coronavirus Death Toll Passes 81,000 as Some Lockdowns Tighten, The Wall Street Journal (Apr. 7, 2020), https://cutt.ly/ztJLM0q.
7 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.
8 Texas Health and Human Services, Texas Case Counts COVID-19, (Apr. 7, 2020), https://cutt.ly/rtJL7NJ.
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County Health and Human Services reported 1,261 COVID-19 cases with 19 deaths.9 The Dallas
County Jail accounted for 23—almost two percent—of the COVID-19 cases in Dallas County.10
On April 5, 2020, approximately 25 percent of all new confirmed COVID-19 cases in Dallas
County were in the Dallas County Jail.11
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.”12 Social distancing requires everyone to stay at least six feet away from all other
people to control the spread of the virus. This measure is particularly important because the virus
spreads aggressively, and people can infect others even if they do not feel sick or exhibit any
symptoms.13 The only effective way to curb the pandemic is through dramatically reducing contact
for all.14 Consequently, every American institution—from schools15 to places of worship,16 from
9 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Summary at 1, (Apr. 7, 2020), https://cutt.ly/ztJZwXa.
10 Id. Table 4. 11 COVID-19 Live Updates, KERA News (quoting Director of Dallas County Health and Human Services on April 5, 2020 as saying “the jail has 24 cases, which includes 22 inmates and two detention officers,” presenting approximately 25% of all new cases in Dallas County that day), https://cutt.ly/itJSsiy. 12 World Health Organization, Coronavirus, https://cutt.ly/ztWyf7e (“At this time, there are no specific vaccines or treatments for COVID-19.”).”); Dawson v. Asher, 20-cv-409 (W.D. Wash.) at Doc. No. 4, Declaration of Dr. Robert B. Greifinger, MD, ¶ 8 (“Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19.”). 13 Center for Disease Control, How Coronavirus Spreads, https://cutt.ly/CtYRkkC. 14 Harry Stevens, Why Outbreaks Like Coronavirus Spread Exponentially, and how to “Flatten the Curve,” Wash. Post. (March 14, 2020), https://cutt.ly/etYRnkz. 15 Centers for Disease Control, Interim Guidance for Administrators of US K-12 Schools and Child Care Programs, https://cutt.ly/ItRPq5n. 16 Centers for Disease Control, 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.
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businesses17 to legislatures18—has been exhorted to reduce the number of people in close quarters,
if not empty entirely. 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.19 These imperatives apply with
special force to jails, where the government controls almost entirely a person’s ability to avoid
others and to maintain adequate sanitation.
The impact of COVID-19 on the Dallas County Jail is dire and a clear public health
emergency. In just a week’s time the number of people infected by COVID-19 in the jail jumped
from 5 infections of detainees and Jail employees to almost 30 as of April 7, 2020,20 Yet the
Defendants have failed to implement adequate policies and practices to combat the virus and
prevent unacceptable risk of contracting the disease for the entire putative class, including
medically vulnerable prisoners and detainees and the entire jail population. Because of the
Defendants’ failed policies and practices no one can protect themselves adequately from the
disease in the Dallas County Jail and preventable deaths will occur. These enormous harms and
17 Centers for Disease Control, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), https://cutt.ly/stRPvg4.
18 Nat’l Conf. of State Legislatures, Coronavirus and State Legislatures in the News, https://cutt.ly/4tRPQne.a
19 Centers for Disease Control, Cleaning and Disinfecting Your Facility, https://cutt.ly/atYE7F9.
20 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Table 4, (Apr. 7, 2020), https://cutt.ly/QtJZbmS; Editorial, COVID-19 spreads with close contact, so what do we do about those in jail?, The Dallas Morning News (Apr. 5, 2020), https://cutt.ly/8tJOi67 (“At the time of this writing, 20 inmates had tested positive for the virus, along with six detention officers and one deputy.”); Ashley Paredez, Confirmed COVID-19 cases at Dallas County Jail now up to 28, Fox 4 (April 4, 2020), https://cutt.ly/0tJSenr (“The number of coronavirus cases at the Dallas County jail has increased from five cases last week, to now a total of 28,” and “six [of those testing positive] are detention officers and two are clerks”); COVID-19 Live Updates, KERA News, supra note 11 (quoting Director of Dallas County Health and Human Services on April 5, 2020 as saying “the jail has 24 cases, which includes 22 inmates and two detention officers”).
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risks are a direct result of Defendants’ failure to implement adequate policies and practices to
address the virus through prevention and treatment -- despite the ubiquity of clear guidance on
how to combat the virus, the Texas Governor’s order requiring people to “minimize in-person
contact with people who are not in the same household”,21 the stay at home order issued by the
County Judge of Dallas County,22 and City of Dallas regulations implementing the Texas and
Dallas County orders.23 Through its policies and practices the Dallas County Jail has failed to
provide critical safeguards to prevent the spread of COVID-19, including:
• failure to release medically vulnerable individuals despite the known lethal risks of COVID-19 for these individuals and the need to lower the jail population to allow for greater social distancing; Compl. ¶¶ 59-64; Declaration of Dr. Robert Cohen, 4/9/20 ¶¶ 30–31 (Doc. 3-2).
• a lack of COVID-19 testing for detainees at intake, during detention, or upon release, Compl. ¶51; Cohen Dec. ¶¶ 33, 35.
• failure to begin “checking the temperatures of employees assigned to the jail” or asking detainees during the intake process “a set of preliminary questions recommended by Dallas County’s healthcare partners” until March 27, 2020.24
• a shortage of Jail employees to report for work; Compl. ¶ 62; Cohen Dec. ¶ 23.
• routine use by Jail employees of single-use disposable surgical masks for a week or more; Compl. ¶¶ 6, 54; Cohen Dec. ¶ 38.
• failure to educate detainees about the virus and prevention methods; Compl. ¶ 53; Cohen Dec. ¶¶ 40–41.
21 Office of the Tex. Gov., Press Release: Governor Abbott Issues Executive Order Implementing Essential Services and Activities Protocols (March 31, 2020), https://cutt.ly/stJUKfc.
22 See Amended “Safer at Home” Order, (Apr. 6, 2020), https://cutt.ly/otJIl2m. 23 See Shelter in Place: Stay Home Stay Safe, City of Dallas, https://cutt.ly/TtJIvcg. 24 Dallas County Sheriff’s Office, “COVID-19 Initiatives,” (March 27, 2020), https://cutt.ly/NtJO7zY; see also Cohen Dec. at ¶¶ 12, 15, 29.
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• failure to institute appropriate social distancing practices, including in dorm bunk arrangements, waiting lines, staff gatherings, and meals; Compl. ¶¶ 49-50; Cohen Dec. ¶ 45.
• failure to segregate detainees with symptoms and illness from other detainees and guards; Compl. ¶ 52; Cohen Dec. ¶¶ 20–21, 24.
• failure to provide staff with adequate personal protective equipment and to require the use and regular replacement of such equipment; Compl. ¶ 54; Cohen Dec. ¶¶ 27, 38.
• failure to provide detainees with adequate PPE; Compl. ¶ 55; Cohen Dec. ¶¶ 27, 38.
• failure to ensure sufficient stocks of hygiene and cleaning supplies and to provide detainees with no-cost access to these supplies. Compl. ¶¶ 56-57; Cohen Dec. ¶¶ 27, 39–40.
These unified policies and practices apply to all members of the putative class and sub-classes and put all of them at risk of serious harm and even death.
The failure of Dallas County Jail to prevent and mitigate the spread of COVID-19 endangers not only all those within the institution, but the entire community. See Declaration of Dr. Eric Lofgren, Ph.D., 4/9/20 ¶¶ 22–28 (Doc. 3-1) (discussing increased infections, hospitalizations, and deaths among incarcerated persons, jail staff, and broader community if sufficient measures not taken at the jail). Hence, swift release of the most vulnerable to the disease and implementation of public health and education protocols in the jail, are the only mitigation efforts that the Dallas County Jail can undertake to comport with public health guidance and to prevent a catastrophic outbreak at the facility that will also endanger the community at large. Lofgren Dec. ¶¶ 29–31; Cohen Dec. ¶¶ 30–32.
B. The Petitioner/Plaintiffs The Petitioners/Plaintiffs are:
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Petitioner Oscar Sanchez is detained in the Dallas County Lew Sterrett Jail West Tower. He is a 28-year-old man. He has a history of severe chronic asthma and has begun to show symptoms that are consistent with COVID-19. He has been incarcerated since March 10, 2020 and is being held pretrial on multiple charges, some of which are indicted, some of which are not. His cases are not currently set for trial. His next court date is April 28, 2020 for an announcement setting. He is presumptively innocent of all charges. Compl. ¶ 13.
Petitioner Marcus White is a 37-year-old man who booked into the Dallas County Jail on November 27, 2019 and is held on $111,000 bond for multiple charges, mostly drug-related. He suffers from hypertension, for which he takes medication in the jail, as well as a serious seizure disorder for which he has not received his medication in the jail. Mr. White contracted and tested positive for COVID-19 in the jail and is being held on the 9th floor of the Dallas County Lew Sterrett West Tower Jail. He is presumptively innocent of all charges. Compl. ¶ 14.
Petitioner Tesmond McDonald is a 32-year-old man with asthma and high blood pressure who is being held (since September 27, 2019) in the Dallas County Jail, currently in the Lew Sterrett West Tower Jail 9th floor. He is being held pretrial for three Dallas County charges of aggravated robbery, possession with intent to deliver drugs, and evading arrest. Mr. McDonald contracted COVID-19 inside the jail and learned on April 3 that he tested positive for the virus. His condition is very serious and he may require immediate medical attention. He is presumptively innocent of all charges. Compl. ¶ 15.
Petitioner Marcelo Perez is a 43-year-old man who has been held in the Dallas County Jail since January 7, 2020 on an allegation that he violated probation by committing a new drug offense. Mr. Perez is medically vulnerable in that he has hypertension and diabetes. He has been
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denied the ability to maintain social distancing, proper hygiene, and he is exposed continuously to people who show symptoms consistent with COVID-19. Compl. ¶ 16
Petitioner Roger Morrison is a 49-year-old man, medically vulnerable to COVID-19 because of his pre-existing conditions of high blood pressure, hepatitis C, and cirrhosis of the liver among other issues. He was booked in on March 9, 2020 and is being held on drug possession and evading arrest charges in the Dallas County Jail South (Kays) Tower C3 medical pod. He has been unable to protect himself within the jail from exposure to other inmates and guards who have potentially been exposed to COVID-19. He has begun to exhibit flu-like symptoms. Compl. ¶ 17.
Petitioner Keith Baker is a 25-year-old man. He booked in on March 7, 2020 on an unindicted allegation of aggravated assault, as well as some misdemeanor offenses. He is currently detained in the Dallas County Lew Sterrett Jail West Tower, 9th floor. He has severe asthma and is being held adjacent to three people who have tested positive for COVID-19. Mr. Baker has developed symptoms consistent with COVID-19 but has not been tested for the virus. He is presumptively innocent of all charges. Compl. ¶ 18.
Petitioner Paul Wright is a 48-year old man who is being held in the Dallas County Jail South (Kays) Tower 3rd floor. He booked in on February 21,2020 and is being held awaiting transport to the Texas Department of Criminal Justice to serve the remainder of a two-year sentence for felony assault, a sentence for which he has backtime credit for 14 months. He has hepatitis C and has been unable to protect himself within the jail from exposure to other inmates and guards who have potentially been exposed to COVID-19. Compl. ¶ 19.
Petitioner Terry McNickles is a 58-year-old man being held in the Dallas County Jail South (Kays) Tower on a parole violation. He was booked into the jail on March 16, 2020. He was taken to a parole hearing, but the hearing was cancelled because of the pandemic, and he was not told
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when he might have a chance to have a new hearing date. Mr. McNickles is medically vulnerable because he had a kidney removed last year due to cancer. He has been unable to protect himself within the jail from exposure to other inmates and guards who have potentially been exposed to COVID-19. Compl. ¶ 20.
Petitioner Jose Munoz is a 37-year-old man, detained in the Dallas County Jail South (Suzanne Kays) Tower 3rd floor. He has been held since October 4, 2019. He is currently on probation for drug possession but is awaiting transportation to a drug treatment facility in Wilmer, Texas which was ordered as a condition of his probation. Because of the COVID-19 pandemic, however, the facility is not taking new patients, so his wait in jail is indefinite. He has been unable to protect himself from exposure to the COVID-19 virus through social distancing or protective measures of any kind. Compl. ¶ 21.
C. The Defendants The Defendants in this action, sued in their official capacities, are the Dallas County Sheriff, Marian Brown and Dallas County, Texas (“Dallas County”) is a municipal corporation organized under the laws of the State of Texas. Compl. ¶¶ 22-23 IV. LEGAL ARGUMENT Plaintiffs’ suit for injunctive relief under the Fourteenth Amendment, and the Medically Vulnerable Subclasses’ petition for habeas corpus, arise from Defendants’ failure to protect them from the severe risk of death or serious physical harm. Those risks affect each Class and Subclass member identically. This Court should, therefore, certify the Classes and the Medically-Vulnerable Subclasses. The claims of the Classes and Subclasses are ideally suited to proceed as a class action under Federal Rule of Civil Procedure 23(b)(2) and as an analogous class habeas proceeding. See,
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e.g. Ibrahim v. Acosta, 326 F.R.D. 696, 699 (S.D. Fla. 2018) (certifying class of plaintiffs seeking habeas relief). Rule 23(c)(5) further allows for a class to be divided into subclasses, where the subclasses are treated as a class under Rule 23. Defendants are subjecting Named Plaintiffs and putative Class and Subclass members to the same injury: confinement in conditions that they know present a high risk of infection of a deadly disease in violation of Class members’ rights under the Eighth and Fourteenth Amendments. The Named Plaintiffs and the proposed Class and Subclass meet Rule 23(a)’s prerequisites for class certification: joinder of all proposed class members in this numerous and transient class is impracticable; the questions of law and fact necessary for resolution of this claim are common to all members of the proposed classes; the Named Plaintiffs’ claims are typical of the classes; and the Named Plaintiffs and their counsel are dedicated to vindicating the constitutional rights of the proposed classes. Additionally, as Rule 23(b)(2) requires, Defendants’ unconstitutional acts apply to every member of the Class and Subclass, such that the requested final declaratory and injunctive relief is appropriate for the class as a whole.
D. The Requirements of Rule 23(a) Are Satisfied Plaintiffs seeking class certification must meet four factors under Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). These class action prerequisites, known respectively as numerosity, commonality, typicality, and adequacy, are each met in this case.
1. Numerosity Plaintiffs’ proposed Classes are sufficiently numerous to make joinder impracticable. Fed. R. Civ. P. 23(a)(1). There is no fixed number of class or subclass members required for a finding of numerosity. Instead, the key question is “whether joinder of all members is practicable in view
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of the numerosity of the class and all other relevant factors.” Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981). These other relevant factors include “the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff’s claim.” Id.; William B. Rubenstein, Newberg on Class Actions § 3:12 (5th ed.). Courts also consider “judicial economy arising from the avoidance of a multiplicity of actions.” Id. Finally, “the fact that the class includes unknown, unnamed future members also weighs in favor of certification.” Pederson v. La. State Univ., 213 F.3d 858, 868 n.11 (5th Cir. 2000). The Fifth Circuit has held that “[t]he general rule encouraging liberal construction of civil rights class actions applies with equal force to the numerosity requirement of Rule 23(a)(1).” Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975), abrogated by Gardner v. Westinhouse Broad Co., 437 U.S. 478 (1978). Joinder is presumptively impracticable when a class consists of forty members or more. Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (citing Newberg on Class Actions § 3.05 (3d ed.)
Joinder of the proposed members of each Class is impracticable. The Dallas County Jail’s Daily Jail Population Statistics show that on April 2, 2020, 5309 people were detained in the jail, all of whom are members of a proposed Class. This number will likely increase as additional people are arrested in the future and detained in the jail. Because the proposed Classes contain well over forty members, they satisfy the numerosity requirement. See Ex. 1, Dallas County Criminal Justice Management Committee Information Statistics, Detention Early Warning Report, 4/2/20.
Moreover, because the proposed Classes include future members, traditional joinder is not practicable. Future Class Members will suffer the same injury absent injunctive relief from Defendants’ deliberate indifference to the unsafe conditions in the jail. Class relief targeting these unconstitutional conditions is therefore appropriate because, regardless of the size of the Class,
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traditional joinder is not practicable. See Phillips v. Joint Legislative Comm. on Performance & Expenditure Review of State of Miss., 637 F.2d 1014, 1022 (5th Cir. 1981) ([T]he alleged class includes future and deterred applicants, necessarily unidentifiable. In such a case the requirement of Rule 23(a)(1) is clearly met, for ‘joinder of unknown individuals is certainly impracticable.’” (citation omitted); Moore’s Federal Practice—Civil § 23.22(f) (“Class-action plaintiffs seeking injunctive or declaratory relief frequently seek to define a class to include people who might be injured in the future. Courts in these cases often find that joinder of separate suits would be impracticable because those who have not yet been injured, or who do not know that they have been injured, are unlikely to join a lawsuit.”); Newberg on Class Actions § 25:4 (4th ed.) (“Even a small class of fewer than 10 actual members may be upheld if an indeterminate number of individuals are likely to become class members in the future or if the identity or location of many class members is unknown for good cause.”); see also Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986) (finding impracticability of non-class joinder for a class including future members, who necessarily could not yet be identified). In such cases, the numerosity requirement is satisfied because the putative class seeks declaratory and injunctive relief against an ongoing policy, a resolution will affect numerous people in the future, and the composition of the class is fluid and unknown. Jones, 519 F.2d at 1100 (granting liberal construction of numerosity prong in a case seeking injunctive relief on behalf of future class members because “[t]he general rule encouraging liberal construction of civil rights class actions applies with equal force to the numerosity requirement of Rule 23(a)(1).”); see also, e.g., Walker v. City of Calhoun, Georgia, No. 4:15-cv-170-HLM, 2016 WL 361580, at *6 (N.D. Ga. Jan. 28, 2016) (“[T]here is a future stream of class members who would suffer the same injury absent injunctive relief. Under those circumstances, the Court agrees with Plaintiff that joinder is impracticable.”).
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The proposed Subclasses also easily meet the numerosity threshold. The MedicallyVulnerable Subclasses are comprised of people who are medically vulnerable to COVID-19 because of underlying medical conditions—a person shall be deemed “Medically-Vulnerable” if the person is over the age of 50, and/or has or experiences (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 (within the last two weeks) pregnancy. The WHO-China Joint Mission Report indicates that the mortality rate from COVID-19 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.25
According to one study, “asthma prevalence is 30%–60% higher among individuals with a history of incarceration as compared with the general population.”26 One study estimates that up to 15% of people who are in custody have asthma, 10% of people in custody live with a heart condition that requires medical care, 10% live with diabetes, and 30% have hypertension.27 Based
25 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://cutt.ly/atBJsEW; Cohen Dec. ¶26. 26 Elizabth M. Vigilanto et al., Mass Incarceration and Pulmonary Health: Guidance for Clinicians, 15 Ann. Am. Thoracic Soc. 409, 409 (2019). 27 Laura M. Marushack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, U.S. Dept. of Justice (2014).
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on these estimates and assuming some overlap in these diagnoses, a fair estimate of the number of people who live with one or more of these medical vulnerabilities exceeds one thousand.
A class action does not present any insurmountable difficulties in management—the Classes and Subclasses are easily ascertainable from records in the Defendants’ possession and are limited in geographic scope, as opposed to a nationwide, multi-district class of millions. Requiring separate individual lawsuits against Defendants would likely result in far greater manageability problems, such as duplicative discovery (including numerous depositions of the same County officials and repetitive production of documents), repeated adjudication of similar controversies in this Court (with the resultant risk of inconsistent judgments), and excessive costs for all involved.
In sum, the number of potential and future Class and Subclass members, the difficulty in immediately identifying these potential Class and Subclass members, and the addition of future, unknown Class and Subclass members make joinder impracticable. Additionally, judicial economy will be significantly better served by resolving the central factual and legal issues concerning the unconstitutional conditions of confinement, as opposed to requiring multiple proceedings as Defendants continue to detain individuals in unsafe conditions. Rule 23(a)(1) is thus satisfied.
2. Commonality The claims asserted on behalf of the proposed Classes and Subclasses include “questions of law or fact common to the class” that satisfy Rule 23(a)(2). Commonality requires that the class members’ claims “depend on a common contention” such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The threshold for satisfying the commonality
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prerequisite is “not demanding.” Mullen, 186 F.3d at 625; Lightbourn v. Cty. of El Paso, Tex., 118 F.3d 421, 426 (5th Cir. 1997). “To satisfy the commonality requirement under Rule 23(a)(2), class members must raise at least one contention that is central to the validity of each class member’s claims.” In re Deepwater Horizon, 739 F.3d 790, 810 (5th Cir. 2014). Courts generally “find[] common questions of law to be at a high level of generality . . . and questions of fact similarly broad . . . .” Newberg on Class Actions § 3:19 (5th ed.) (citations omitted). Commonality also requires these common questions “to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (emphasis in original) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009) ). These “common answers” may be answers about the “defendant’s injurious conduct.” Deepwater Horizon, 739 F.3d at 811. Traditionally, the Rule asks whether the disputed questions are capable of class-wide proof or resolution, and claims need not be identical to satisfy this requirement. Simms v. Jones, 296 F.R.D. 485, 497 (N.D. Tex. 2013) (“Even a single common question of law or fact can suffice.”) (citing Dukes, 564 U.S. at 359); Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 n.14 (11th Cir. 2000).
Although there need only be common issues of law or fact under Rule 23(a), this case presents numerous issues of both law and fact that are common to the Classes and Subclasses. Among the most important common questions of fact are:
• what measures Defendants implemented in the Dallas County Jail in response to the COVID-19 crisis;
• whether the conditions in the Dallas County Jail comply with the Centers for Disease Control and Prevention’s guidelines for preventing the spread of COVID-19;
• whether Defendants’ practices during the COVID-19 pandemic exposed people jailed at the Dallas County Jail to a substantial risk of serious harm;
• whether Defendants knew of and disregarded a substantial risk of serious harm to the safety and health of the class; and
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• whether COVID-19 presents a risk of harm so severe to some people that the only constitutionally permissible way to protect them is to release them from custody immediately.
Among the most important common questions of law are: • whether Defendants are liable under the Eighth and Fourteenth Amendments for their
deliberate indifference to conditions of confinement that create a risk of serious illness, needless suffering, and death. This case exemplifies the Supreme Court’s explanation of commonality in Wal-Mart Stores, Inc. v. Dukes. The Court clarified that it is not just the existence of hypothetical common questions that justify class treatment. Id. at 349–50. Rather, there must be common answers that resolve the factual or legal claims presented by the plaintiffs. Id. at 350. In this case, the answers to the fundamental common questions of fact and law listed above are dispositive in determining Defendants’ liability to all Class and Subclass members. If the conditions in the Dallas County Jail expose people jailed therein to a substantial risk of serious harm, then this litigation turns on whether Defendants knew of and disregarded such a risk. Although there may be factual variations in some details of Classes and Subclass Members’ cases, such as whether they are pretrial or sentenced, these differences are immaterial to the merits and “will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.” Bynum v. District of Columbia, 214 F.R.D. 27, 33 (D.D.C. 2003); see also Dukes, 564 U.S. at 350 (commonality satisfied if one can resolve an issue central to Plaintiffs’ claims “in one stroke.”). The claims raised by the Class and Subclass Members are independent of issues like specific arrest charges; instead, the claims are based solely on the conditions to which each and every person detained in the jail are subjected.
3. Typicality
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The named Plaintiffs in this case have claims typical of people who are subject to Defendants’ post-arrest policies and practices. “[T]he test for typicality is not demanding.” Mullen, 186 F.3d at 625. To meet the typicality requirement, the named plaintiffs’ claims must be “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3) . “Typicality does not require a complete identity of claims.” James v. Dallas, Tex., 254 F.3d 551, 571 (5th Cir. 2001), abrogated on other grounds in In re Rodriguez, 695 F.3d 360 (5th Cir. 2012). In analyzing typicality, “the critical inquiry is whether the class representative’s claims have the same essential characteristics of those of the putative class. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.” Id. (citing Moore’s Federal Practice § 23.24[4] (3d ed. 2000)).
Here, the Named Plaintiffs’ legal claims are the same as the legal claims of the other members of the proposed Classes and Subclasses they represent. The Named Plaintiffs and Class and Subclass Members they represent are all injured in the same way: Defendants are keeping them in conditions of confinement that put them at substantial risk of serious harm. For the Subclasses, each person claims that she must be released because her health is at imminent and immediate risk from the same virus and same policy failures as each other person in the Subclasses. Thus, the ongoing and future injury of the Classes and the Classes’ representatives arise from the same policy and practice. See Newberg on Class Actions § 23:4 (4th ed.) (“[T]he typicality requirement is generally satisfied when the representative plaintiff is subject to the same statute, regulation, or policy as class members.”). The claims of the Named Plaintiffs also rely on the same legal theories as the claims of all other Class and Subclass members concerning whether Defendants’ deliberate indifference to the risk of serious harm is unconstitutional. See Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001) (“The typicality requirement may be satisfied
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despite substantial factual differences . . . when there is a ‘strong similarity of legal theories.’” (citation omitted). The proof concerning whether Defendants have acted with deliberate indifference in the face of the COVID-19 pandemic and the legal argument about whether this inaction is unlawful are critical for each Class and Subclass member in this case to establish the liability of Defendants.
Thus, if the Named Plaintiffs succeed in proving that Defendants’ deliberate indifference to the risk of severe harm as alleged in the Complaint is unlawful, then that ruling will necessarily benefit every other member of the Class and Subclass. That is the essence of Rule 23(a)’s typicality requirement.
4. Adequacy It is clear that the class representatives will “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy analysis encompasses two separate inquiries: (1) whether the named Plaintiffs have common interests with the other class members, and (2) whether the representatives will adequately prosecute the action through qualified counsel. Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 130 (5th Cir. 2005); Paxton v. Union Nat’l Bank, 688 F.2d 552, 562–63 (8th Cir. 1982). “Differences between named plaintiffs and class members render the named plaintiffs inadequate representatives only if those differences create conflicts between the named plaintiffs’ interests and the class members’ interests.” Mullen, 186 F.3d at 625– 26. The Fifth Circuit has specified that, while courts should consider class representatives’ “willingness and ability . . . to take an active role in and control the litigation,” the representatives “need not be legal scholars and are entitled to rely on [class] counsel.” Feder, 429 F.3d at 130-132 n.4. “The representative class members are entitled to work with, and rely upon, their counsel in pursuing their claims and navigating the complicated legal and factual issues associated with”
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complex litigation. Stoffels v. SBC Commc’ns, Inc., 238 F.R.D. 446, 455 (W.D. Tex. 2006). An example of an adequate class representative is one with “commendable familiarity with the complaint and with the concept of a class action.” Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 484 (5th Cir. 1982).
Regarding the first inquiry, the Named Plaintiffs are adequate representatives of the Classes they represent because their interests in the vindication of the legal claims that they raise are completely aligned with, and are not antagonistic to, the interests of the other Class Members. The Named Plaintiffs, like other Class Members, have a strong interest in no longer being detained in unsafe conditions. The Named Plaintiffs who represent the Medically-Vulnerable Subclass share the Subclass’s interest in release because of the particular danger that the virus presents for them. There are no known conflicts of interest among Members of the proposed Class and Subclass, all of whom have a similar interest in vindicating their constitutional rights in the face of their unlawful treatment by Defendants. Moreover, the declaratory and injunctive relief sought by Named Plaintiffs will benefit the entire class equally.
Regarding the second inquiry, the Named Plaintiffs also meet the requirement that they will adequately prosecute the action. They are represented in this case by highly qualified and experienced civil rights attorneys who are able and willing to conduct this litigation on behalf of the class. Plaintiffs’ counsel from Susman Godfrey L.L.P., the ACLU, the ACLU of Texas Foundation, Civil Rights Corp, and Next Generation Action Network collectively have extensive experience litigating complex class action cases and civil rights cases. As discussed in greater detail below, infra Part III, Plaintiffs’ counsel are qualified and experienced counsel with a history of zealous advocacy on behalf of their clients, and Rule 23(a)(4)’s adequacy requirement is thus met.
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E. The Requirements of Rule 23(b)(2) Are Met28
In addition to satisfying the requirements of Rule 23(a), the proposed Classes and
Subclasses satisfies Rule 23(b)(2). A putative class action must meet the requirements of either
Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). See Amchem Prod., Inc. v. Windsor, 521 U.S. 591,
614 (1997). Rule 23(b)(2) provides for class certification when “the party opposing the class has
acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b)(2). . “This is a simple inquiry in most cases.” Newberg on Class Actions § 4:28 (5th ed.) .
The requirement of a generally applicable set of actions “ensures that the class’s interests are
related in a manner that makes aggregate litigation appropriate . . . and therefore efficient.” Id.
Thus, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide
relief to each member of the class.” Dukes, 564 U.S. at 360.
As the Supreme Court has recognized, “[c]ivil rights cases against parties charged with
unlawful, class-based discrimination are prime examples” of cases in which class certification is
proper under Rule 23(b)(2). Amchem, 521 U.S. at 614; see also Holmes v. Cont’l Can Co., 706
28 At least with respect to a Damages Class under Rule 23(b)(3) (Plaintiffs do not seek to certify a Damages class because they have not brought a damages claim), courts have held that “ascertainability” is, in essence, a fifth Rule 23 prerequisite. A class must be “adequately defined and clearly ascertainable.” De Bremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970). “In other words, the class must meet a minimum standard of definiteness which will allow the trial court to determine membership in the proposed class[,]” although “‘it is not necessary that the members of the class be so clearly identified that any member can be presently ascertained.’” Earnest v. GMC, 923 F. Supp. 1469, 1473 & n.4 (N.D. Ala. 1996) (quoting Carpenter v. Davis, 424 F.2d 257, 260 (5th Cir. 1970)). Although it is doubtful that such a requirement should exist with respect to a purely injunctive class under Rule 23(b)(2), see, e.g., Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 592–93 (3d Cir. 2012) (noting that the rule has been applied to Rule 23(b)(3) damages classes), that requirement is easily met here. The Defendants already have in their possession the identity of each and every person in the class. Also, by necessity, the Defendants will come to know the identity of each future person detained in the jail.
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F.2d 1144, 1152 (11th Cir. 1983) (“Civil rights class actions . . . are generally treated under subsection (b)(2) of Rule 23.”); Newberg on Class Actions, supra, § 1:3 (“Rule 23(b)(2) . . . . is typically employed in civil rights cases and other actions not primarily seeking money damages. The (b)(2) class action is often referred to as a ‘civil rights’ or ‘injunctive’ class suit.”). This is because “[t]he key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Dukes, 564 U.S. at 360 (citation omitted). Thus, “Rule 23(b)(2) has been liberally applied in the area of civil rights, including suits challenging conditions and practices at various detention facilities.” Braggs v. Dunn, 317 F.R.D. 634, 667 (M.D. Ala. 2016) (citation omitted).
This case is exactly the kind of class action that Rule 23(b)(2) is meant to capture. Id.; see also Newberg on Class Actions § 4:40 (5th ed.) (“While civil rights cases are often maintained against public and private defendants under civil rights statutes, many (b)(2) class actions challenge government actions on constitutional grounds as well.”) (emphasis in original). The Classes’ interests are sufficiently related to warrant aggregate litigation, as are the interests of the members of the Subclasses. The Defendants have acted on grounds that apply generally to the Classes and Subclasses. Injunctive and declaratory relief are appropriate to the Classes and Subclasses precisely because the only adequate relief is enjoining Defendants’ unconstitutional policies.
Furthermore, it is far more efficient for this court to grant injunctive and declaratory relief protecting all of the class members than to extend that relief piecemeal through individual suits. Because the putative Classes and Subclasses challenge the Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the
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class, Rule 23(b)(2) is appropriate and necessary. In re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002) (“ Rule 23(b)(2) certification is appropriate where plaintiffs seek declaratory or injunctive relief for class-wide injury).”29 As the Supreme Court explained recently:
When a class seeks an indivisible injunction benefiting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident.
Dukes, 564 U.S. at 362-363. In Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), the Fifth Circuit stated that the underlying premise of a Rule 23(b)(2) class action is that class “members suffer from a common injury which is properly addressed by class-wide relief.” Id. at 413. “Thus, if the plaintiffs [seek] only injunctive and declaratory relief, [the] case [can] readily be certified as a class action under Rule 23(b)(2).” Id. at 411. As the Fifth Circuit recognized, “[s]uch relief may often be awarded without requiring a specific or time-consuming inquiry into the varying circumstances and merits of each class member’s individual case.” Id. at 414.
This case falls squarely within this requirement of the appropriateness of declaratory or injunctive relief to the class as a whole, because Defendants have acted with deliberate indifference to the health and safety of all members of the Classes by failing to take the necessary action to avoid an outbreak of COVID-19 in the jail. The only way to remedy the injury to the Classes is to enjoin Defendants’ conduct as to all of the class members.
29 Rule 23(b)(2) arose out of experience “in the civil rights field,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (citation omitted), in which the government typically treats a whole class in an unconstitutional manner based on law or government policy. “Rule 23(b)(2) was promulgated in 1966 essentially as a tool for facilitating civil rights actions.” Moore’s Federal Practice § 23.43; see also Newberg on Class Actions § 1:3 (5th ed.) (“ Rule 23(b)(2) authorizes a class action when a party has taken or refused to take action with respect to a class, and final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole. This category is typically employed in civil rights cases and other actions not primarily seeking money damages. The (b)(2) class action is often referred to as a ‘civil rights’ or ‘injunctive’ class suit.”).
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The Classes and Subclasses therefore seek declaratory and injunctive relief to require Defendants to take the necessary steps to prevent an outbreak of COVID-19 in the jail. The relief sought—a declaration that Defendants violate Class Members’ constitutional rights by failing to adequately safeguard their health and safety in the midst of a potential outbreak of a deadly infectious disease and an injunction requiring them to release the Subclasses and take the steps necessary to prevent such an outbreak—would apply equally to the all members of the Classes and Subclasses. See Holmes, 706 F.2d at 1155 (Rule 23(b)(2) applies to “claims resting on the same grounds and applying more or less equally to all members of the class.”). Therefore, certification under Rule 23(b)(2) is appropriate. See Allison, 151 F.3d at 411 (stating that the requirements of Rule 23(b)(2) are satisfied because “the predominant relief sought is injunctive or declaratory.”); Baby Neal, 43 F.3d at 58 (noting that the requirements of Rule 23(b)(2) are “almost automatically satisfied in actions primarily seeking injunctive relief” for common legal claims.).
F. Undersigned Counsel Should Be Appointed Class Counsel Under Rule 23(g)
Federal Rule of Civil Procedure 23(g) requires that the court appoint class counsel for any class that is certified. Fed. R. Civ. P. 23(g)(1). Class counsel must “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). In determining whether this requirement is met, courts must consider: (1) “the work counsel has done in identifying or investigating potential claims in the actions;” (2) “counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;” (3) “counsel’s knowledge of the applicable law;” and (4) “the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A).
Undersigned Counsel satisfy these four requirements. The Plaintiffs and proposed Classes are represented by attorneys who have experience litigating complex civil rights matters and class
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action lawsuits in federal court and extensive knowledge of both the conditions in the jail and the relevant constitutional law. See Declaration of Amy Fettig, April 12, 2020 (Ex. 2). Class Counsel have conducted an extensive investigation into the conditions in Dallas County Jail and the sanitation and social distancing requirements that are necessary to prevent an outbreak of COVID19. See Fettig Dec. ¶ 6. In addition, Class counsel has sufficient financial and human resources to litigate this matter. Id. In sum, Plaintiffs’ attorneys are experienced advocates; possess “sufficient vigor” along with sufficient resources, to adequately represent the Class and prosecute this action; and are appropriate counsel for the matter. See Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987) (citations omitted).
V. CONCLUSION For the reasons stated above, the Named Plaintiffs respectfully asks this Court to certify
the Classes and Subclasses described in this Motion.

Dated: April 12, 2020
/s/ Andrea Woods____________________ AMERICAN CIVILLIBERTIES FOUNDATION Andrea Woods N.Y. Bar No. 5595509 Meredith Taylor Brown* N.Y. Bar No. 5678602 Brandon Buskey 125 Broad Street, 18th Floor New York, NY 10004 (212)549-2528 awoods@aclu.org
Henderson Hill N.C. Bar No. 18563 201 W. Main St. Suite 402 Durham, NC 27701 (919)682-9563 hhill@aclu.org

Respectfully submitted, 26

Case 3:20-cv-00832-E Document 18 Filed 04/12/20 Page 27 of 28 PageID 280
Amy Fettig D.C. Bar No. 484883 915 15th Street N.W.,7th Floor Washington, D.C. 20005 (202)548-6608 afettig@aclu.org
ACLU FOUNDATION OF TEXAS Brian Klosterboer Texas. Bar No. 24107833 Adriana Piñon** Texas Bar No. 24089768 Andre Segura Texas Bar No. 24107112 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146 Fax: (346) 998-1577
CIVIL RIGHTS CORPS Katherine Hubbard* D.C. Bar No. 1500503 Elizabeth Rossi D.C. Bar No. 1500502 1601 Connecticut Ave NW,Suite 800 Washington, D.C. 20009 (202)894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org
SUSMAN GODFREY L.L.P. Barry Barnett Texas Bar No. 01778700 8115 Preston Road, Suite 575 Dallas, TX 75225 (866)754-1900 bbarnett@susmangodfrey.com
Michael Gervais* N.Y. Bar No. 5122890 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310)789-3100 mgervais@susmangodfrey.com
NEXT GENERATION ACTION NETWORK LEGAL ADVOCACY FUND Alison Grinter-Allen Texas Bar 24043476
27

Case 3:20-cv-00832-E Document 18 Filed 04/12/20 Page 28 of 28 PageID 281 Kim T. Cole Texas Bar No. 24071024 1808 South Good Latimer Expressway Dallas, TX 75226 (214)704-6400 agrinter@thengan.com kcole@thengan.com ATTORNEYS FOR PETITIONERS/PLAINTIFFS *pro hac vice application forthcoming **N.D. Texas admission application forthcoming
CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing was served via the Court’s CM/ECF system on all counsel registered with that system, and via email, on April 12, 2020. /s/Andrea Wood_______________ Andrea Woods
28

Case 3:20-cv-00832-E Document 18-1 Filed 04/12/20 Page 1 of 3 PageID 282
Exhibit 1

DCAaLsLeA3S:2C0O-UcvN-T0Y08C3R2I-MEINDAoLcJuUmSTenICt E18M-1ANFAiGleEdM0E4N/1T2C/2O0MMPIaTgTeEE2 IoNf F3ORPMaAgeTIIDON28S3TATISTICS
DETENTION EARLY WARNING REPORT

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

489 688 1,759 277 257 290
35 14 84
1 17 52 144
2 27 22
1 55 238 223 295 194 83
1 1 0 0 10 0 0 0 51 5,310 5,309

21.63 227

99

47

35

22

36.50 67 117 146 114 101

171.58

23

37

75

46

83

77.32

9

24

32

17

21

39.28

64

43

36

26

28

154.94

1

9

32

19

22

121.11

4

0

3

0

4

268.33

0

0

0

1

0

84.45

3

8

11

8

8

194.00

0

0

0

0

0

39.50

1

3

4

3

1

3.68 50

0

2

0

0

43.20

32

30

25

15

7

37.33

0

0

0

1

0

49.18

1

5

5

3

2

42.09

0

4

7

2

4

37.00

0

0

0

0

0

55.02

9

9

7

6

2

75.14

32

31

36

17

15

86.50

3

8

19

15

32

90.25 12

4

23

29

19

200.41

1

1

4

6

8

192.39

3

0

1

0

2

10.50

0

0

1

0

0

74.00

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

91.64

0

0

2

2

1

0.00

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

46.52 36

1

4

2

0

106.60

578

433

522

367

382

17

16

26

9.21%

61

32

50

12.96%

89 110 1,296

33.13%

19

35

120

5.22%

15

9

36

4.84%

13

17

177

5.46%

3

1

20

0.66%

0

0

13

0.26%

7

6

33

1.58%

0

0

1

0.02%

1

2

2

0.32%

0

0

0

0.98%

4

2

29

2.71%

0

0

1

0.04%

1

2

8

0.51%

1

1

3

0.41%

0

0

1

0.02%

6

2

14

1.04%

11

4

92

4.48%

32

21

93

4.20%

26

21

161

5.56%

9

6

159

3.65%

3

1

73

1.56%

0

0

0

0.02%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

0

0

5

0.19%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.00%

1

1

6

0.96%

319

289 2,420

100%

4/2/2020 7:00:30 AM

DCAaLsLeA3S:2C0O-UcvN-T0Y08C3R2I-MEINDAoLcJuUmSTenICt E18M-1ANFAiGleEdM0E4N/1T2C/2O0MMPIaTgTeEE3 IoNf F3ORPMaAgeTIIDON28S4TATISTICS
DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 1 of 25 PageID 285
Exhibit 2

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 2 of 25 PageID 286

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 20-cv—832-E

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

DECLARATION OF AMY FETTIG IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
I, AMY FETTIG, DECLARE:

1. I am an attorney admitted to practice before courts of the District of Columbia and the state of New York and am admitted pro hac vice as counsel in this matter. I am a Deputy Director of the ACLU’s National Prison Project. I make this Declaration based on my personal knowledge and based on a review of the records maintained by my office and the office of my co-counsel in the ordinary course of business.
2. I have nearly twenty years of complex, class action experience, including over fifteen years serving as counsel in class action prisoner rights cases in federal courts. A true and correct copy of my curriculum vitae is attached hereto as Exhibit A.
3. The ACLU has nearly five decades of experience in complex prisoner rights class actions and has represented prisoners in five cases before the U.S. Supreme Court. Since its

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 3 of 25 PageID 287
founding, the ACLU has litigated challenges to conditions of confinement in almost every U.S. state, as well as the District of Columbia. The ACLU is one of a handful of offices in the nation that litigate prisoners’ rights cases such as this action. Litigating prisoners’ rights cases requires specialized knowledge and skills as well as considerable resources. Federal courts have long recognized the special expertise of ACLU staff. See, e.g., Plyler v. Evatt, 902 F.2d 273, 278 (4th Cir. 1990); Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir. 1983); Duvall v. O'Malley, No. CV ELH-94-2541, 2016 WL 3523682, at *9 (D. Md. June 28, 2016); Dockery v. Fischer, 253 F. Supp. 3d 832, 856 (S.D. Miss. 2015); Riker v. Gibbons, No. 3:08-CV-00115-LRH, 2010 WL 4366012, at *4 (D. Nev. Oct. 28, 2010); Diaz v. Romer, 801 F. Supp. 405, 410 (D. Colo. 1992), aff'd, 9 F.3d 116 (10th Cir. 1993). ACLU counsel on this case also includes Andrea Woods and Henderson Hill. Both Ms. Woods and Mr. Hill have considerable experience with criminal and civil law. Ms. Woods is a Staff Attorney for the ACLU’s Criminal Law Reform Project and litigates extensively in pretrial civil matters. A true and correct copy of her curriculum vitae is attached hereto as Exhibit B. Mr. Hill is a Senior Counsel for the ACLU Capital Punishment Project. He has decades of experience representing clients in criminal and civil rights litigation. A true and correct copy of his curriculum vitae is attached hereto as Exhibit C.
4. I attach a true and correct copy of the public profile of Barry Barnett, a Partner at Susman Godfrey L.L.P. in Dallas, Texas, as Exhibit D. Mr. Barnett is a Fellow in the American College of Trial Lawyers, for example, an Elected Member of the American Law Institute, and an honors graduate of Yale University and Harvard Law School. With three decades of trial work representing both plaintiffs and defendants in complex litigation matters, including antitrust, energy, or intellectual property. Mr. Barnet is class counsel in this case.
5. I attach a true and correct copy of the public profile of Michael Gervais, a Partner at

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 4 of 25 PageID 288
Susman Godfrey L.L.P. in Los Angeles, California, as Exhibit E. Mr. Gervais has extensive litigation experience as counsel for both plaintiffs and defendants in complex litigation. In the field of criminal justice he worked alongside Civil Rights Corp and the Texas Fair Defense Project in a landmark case challenging the money bail scheme in Harris County, Texas that secured a sweeping preliminary injunction in federal court.
6. Class Counsel have conducted an extensive investigation into the conditions in Dallas County Jail and the sanitation and social distancing requirements that are necessary to prevent an outbreak of COVID-19. In addition, Class counsel has sufficient financial and human resources to litigate this matter.
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 12, 2020 at Washington, DC.
_/s Amy Fettig________________ Amy Fettig

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 5 of 25 PageID 289
Exhibit 2-A

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 6 of 25 PageID 290
AMY FETTIG
2120 Vermont Ave., NW #309, Washington, D.C. 20001 202-360-5316; amyfettig@yahoo.com
WORK EXPERIENCE
American Civil Liberties Union, National Prison Project, Washington, D.C. Deputy Director: June 2016 – present; Director, Stop Solitary Campaign: January 2011 – present; Senior Staff Counsel: April 2011 – June 2016; Staff Counsel: January 2007 – March 2011; Litigation Fellow: October 2001 – January 2004.
• Manage and oversee work of attorneys, experts, consultants, fellows, law clerks, paralegals and support staff in all aspects of litigation, legislative and policy advocacy and public education/research.
• Target strategic prisoner rights cases for jurisprudential development nationwide. Investigate prison, jail and juvenile detention conditions and file impact litigation cases in federal court. Draft, edit and argue briefs, motions, reports, and other pleadings.
• Found, direct, and lead nation-wide Stop Solitary campaign to reduce the use of solitary confinement in prisons, jails and juvenile detention centers through a blend of litigation and non-litigation tools, including public education, research and report writing, policy reform, coalition-building, legislative action and strategic case filing. Oversee campaigns in 15 states and work with advocacy leaders in several other jurisdictions. Oversee federal level campaign for youth and adults.
• Design and implement campaign strategic planning process. Establish campaign priorities and overall vision. Spearhead strategic communications planning.
• Build and oversee diverse coalitions supporting Stop Solitary reform efforts. • Responsible for catalyzing national discourse on solitary confinement reform through engagement with
multiple governmental and non-governmental stakeholders and the media. • Fundraise for Stop Solitary campaign. Engage with ACLU donors and support affiliate fundraising
opportunities. • Serve on founding Steering Committee of the Unlock the Box campaign and its Jurisdiction-Based
Fund, a grant-giving mechanism to support local solitary confinement reform campaigns nationwide with an emphasis on investing in survivor and impacted community leadership and engagement. • Facilitate and manage collaborative work across departments and disciplines within and outside the ACLU, including federal level advocacy work with executive agencies and the U.S. Congress. • Spearhead and lead the ACLU’s national and state-level work to end the practice of shackling pregnant women prisoners, including successful passage of over 17 state laws; develop legislative and policy reform models; and provide ongoing technical assistance to affiliates monitoring implementation of anti-shackling laws and policies. • Serve as counsel for class of all prisoners in Arizona state prisons (approximately 33,000 people in 9 facilities); monitor implementation of court order covering medical, mental health, dental, and isolation housing provisions, including specific provisions for individuals with serious mental illness. • Served as counsel for all detained and adjudicated youth in Rhode Island; monitored conditions and compliance with consent decree; successfully negotiated with State leaders to implement population reduction mechanisms, adopt best practice standards, and eliminate lock-down unit. • Provide technical assistance and training to lawyers and advocates on legal and policy issues in criminal and juvenile justice reform nationwide, specializing in juvenile justice, solitary confinement, sexual violence in detention settings, LGBT prisoners, mental health issues, youth in adult prisons, and the incarceration of women and girls. • Serve as ACLU spokesperson for prison reform issues and engage in extensive public speaking and media work with the New York Times, Washington Post and other major news outlets.

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 7 of 25 PageID 291
James & Hoffman, Washington, D.C. Associate Attorney: January 2004 – January 2007.
• Litigated cases in federal and state courts, and before arbitral bodies and government agencies, such as the Equal Employment Opportunity Commission (EEOC).
• Represented and counseled labor organizations and labor leaders under federal, state, and local laws governing collective bargaining, organizing, contract enforcement, working conditions, and internal union affairs.
Women’s Law and Public Policy Fellow, Georgetown University, Washington, D.C. National Association of Women Judges: May 2001 – September 2001.
• Participated in intensive gender training and advocacy post-graduate fellowship. • Developed training materials and coordinated training sessions for judges on the impact of the Violence
Against Women Act (VAWA) on immigrant and undocumented women and the potential impact of genetic research advances on discrimination cases.
Legal Aid Society, Special Litigation Unit, New York, New York Summer Associate: June 2000 – August 2000.
• Developed legal strategies and drafted state law complaints for individual incarcerated children’s cases. • Conducted investigatory tour of youth facility and co-wrote report on facility conditions.
Koob & Magoolahan, New York, New York Summer Associate: June 1999 – August 1999.
• Researched legal issues and wrote memos for civil rights law firm specializing in prisoners’ rights and other civil rights cases. Assisted in client interviews, expert depositions, discovery review, and trial preparation.
• Evaluated potential new cases and presented cases to legal team for review.
Women’s Prison Association, New York, New York Program Development Associate: November 1996 – August 1998.
• Managed foundation and corporate fundraising campaign; wrote grant proposals and reports. Strategized funding approaches; prepared annual campaign goals; and monitored project performance. Facilitated donor meetings.
• Worked in conjunction with field staff and administration to develop new projects and monitor achievement of goals for existing programs. Developed monitoring and evaluation tools. Co-managed full-scale evaluation of $1.3 million family reunification program.
United Nations Development Fund for Women, New York, New York Monitoring and Evaluation Intern: May 1995 - December 1995.
• Researched, co-wrote and edited paper on the evolution of UNIFEM’s development approach for the Fourth World Conference on Women.
• Assisted in the preparations for comprehensive evaluation of UN agency. Created data matrix to facilitate access to project information. Evaluated projects for use of participatory methodologies in monitoring of project impact on grassroots women.
Center for the Study of Human Rights, New York, New York Program Coordinator, China and Constitutionalism Project: September 1994 - May 1995.
• Oversaw logistical implementation of joint Center, Law School, and East Asian Institute project at Columbia University.

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 8 of 25 PageID 292
• Worked with Chinese dissidents, scholars, lawyers, judges, and Communist Party members and coordinated joint constitutionalism workshops, Annual Spring Conference, and graduate seminar.
Institute of International Education, Washington, D.C. Program Associate, Professional Exchange Program: September 1993 - August 1994.
• Assisted in the research, design and implementation of short-term educational and cross-cultural exchange projects for the USIA International Visitor Program.
• Acted as liaison between international grantees, local networks and government agencies. • Developed and wrote project proposals for competitive USIA/USAID grants.
TEACHING EXPERIENCE
Georgetown University Law School, Washington, D.C. Adjunct Professor of Law: Spring 2007; Spring 2008.
• Taught Public Interest Advocacy seminar course for second and third-year law students geared to help students build entrepreneurial problem-solving skills to address social problems through strategic legal advocacy.
VOLUNTEER EXPERIENCE
Free Minds Book Club & Writing Workshop, Washington, D.C. Board Chair/Member: April 2015 – present.
• Serve as board chair for local agency serving young men and youth charged as adults during detention, after conviction, and upon re-entry to the community.
• Responsible for governance, policy development, financial review and budgeting, executive director review, fundraising, and program monitoring and evaluation.
• Spearheading Racial Equity Evaluation and Strategic Planning process for board and organization.
Our Place, DC, Washington, D.C. Board Member: March 2010 – October 2013.
• Served as board member for local agency serving women prisoners, returned citizens, and their families.
• Spearheaded fundraising, hiring of new executive director, and budget review.
EDUCATION
Georgetown University Law School, Washington, D.C. Juris Doctor (2001). New York State Bar (2002). District of Columbia Bar (2004).
• Awarded 1 of 8 competitive fellowships in the Public Interest Law Scholars Program. • Participated in year-long Criminal Defense Clinic representing indigent misdemeanor clients. • Founding Board Member and Symposium Editor, Georgetown Journal of Gender and the Law.
Columbia University, School of International and Public Affairs, New York, New York Masters of International Affairs, Concentration in Human Rights and Humanitarian Affairs (1996).
• Awarded academic fellowship (1995 – 96).
Carleton College, Northfield, Minnesota Bachelor of Arts in Political Science and East Asian Studies (1993).
• Awarded Distinction in the major and for senior thesis. • Doshisha University, Kyoto, Japan, (September 1991 – May 1992).

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 9 of 25 PageID 293
Exhibit 2-B

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 10 of 25 PageID 294
ANDREA WOODS
2310 41st Ave Apt. 4J Long Island City, NY 11101 | (425) 205-1969 | andrea.woods.aw@gmail.com
EDUCATION
UNIVERSITY OF WASHINGTON SCHOOL OF LAW | Seattle, Washington | Juris Doctor, 2014 GPA: 3.91, top 5% of class (high honors), individually ranked #5 in graduating class Selected Honors: Gates Public Service Law Scholar (full tuition for three years; awarded annually to five students) Vivian Carkeek Award for Outstanding Contribution to the Washington Law Review 2L/3L Mock Trial Competition Champion and 3rd Place Best Speaker Award Student Service Award for Leadership and Service to the Law School Selected by Peers as Commencement Speaker CALI Awards for top grades in Civil Procedure, Contracts, Criminal Procedure, Law and Economics, and Post-Conviction Review Activities: President, Student Bar Association Managing Editor, Washington Law Review President, Innocence Project Northwest Student Chapter
GONZAGA UNIVERSITY | Spokane, Washington |B.A., English and Psychology, summa cum laude, May 2009 Selected Honors: Rhodes Scholarship Finalist| Ignatian Spirit Award given by Student Life VP to top graduate Concerto & Aria competition winner, flute | Top Sophomore academic award |Washington Scholar Award Member of University Honors Program (24 students selected)
OXFORD UNIVERSITY | Oxford, UK Completed studies in English Literature and Social Behavior
LEGAL EXPERIENCE
AMERICAN CIVIL LIBERTIES UNION CRIMINAL LAW REFORM PROJECT | Sept. 2016-present | New York, NY Staff Attorney (Sept. 2018-present): Staff attorney supporting anti-mass incarceration litigation, specifically on issues related to bail and pretrial practice. Involved at all levels of several pieces of complex federal litigation. Served as class counsel in four matters: Mock v. Glynn (18-cv-25, S.D.Ga.) (as lead counsel); Daves v. Dallas (18-cv-154, N.D. Tex.), Schultz v. State, 17-cv-270 (N.D. Ala.); and Edwards v. Cofield, 17-cv-321 (M.D. Ala).
Equal Justice Works Fellowship Attorney (Sept. 2016-2018): As a fellow, working full time on bail reform issues. Responsibilities included assisting in litigation, consulting on policy-related advocacy, and workshopping questions related to pretrial justice within ACLU Nationwide. Facilitated a nationwide bail reform working group, drafted strategic vision documents, and led the organization’s work on algorithmic pretrial risk assessments and racial equity.
CHAMBERS OF HON. JOHN C. COUGHENOUR | October 2014–August 2016| Seattle, WA Law Clerk: Assisted Judge Coughenour with one third of his civil and criminal caseload, supervised law students, and managed daily administrative tasks as one of three law clerks.
METROPOLITAN PUBLIC DEFENDER| January–March 2014 | Portland, OR Certified Law Student: Worked as part of the misdemeanor unit with a small caseload. Assisted with trials, motions, and hearings as needed. Represented a client at a jury trial from investigation through sentencing.
ALASKA PUBLIC DEFENDER AGENCY | June 2013–September 2013 | Anchorage, AK Criminal Defense Intern: Represented clients at bail hearings, arraignments, and change of plea hearings. Assisted with trials and cases throughout the summer. Successfully collected data and lobbied the bench to change a portion of its bail-setting procedures.

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 11 of 25 PageID 295
INNOCENCE PROJECT NORTHWEST | September 2012–June 2014 | Seattle, WA Clinic Member: Worked with a partner on a client’s case for post-conviction relief. Workload included client visits, investigation, research, document review, and motion drafting.
U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIVISION | June 2012–September 2012 | Washington, DC Housing and Civil Enforcement Intern: Assisted at various stages of litigation. Tasks included legal research, client interviews, and drafting memoranda (including a “J-Memo” reviewed by the Assistant Attorney General).
OTHER WORK EXPERIENCE
JOSEPH’S HOUSE | August 2010–September 2011 | Washington, DC Companion/Assistant (as Jesuit Volunteer): Cared for formerly homeless men and woman terminal with AIDS or cancer by cooking meals, administering medication, assisting with bathing and other basic needs.
WITNESS TO INNOCENCE | August 2009–July 2010 | Philadelphia, PA Program Assistant (as Jesuit Volunteer): Organizer for exonerated ex-death row survivors within the antideath penalty movement: by coordinating speaking events, arranging semi-annual retreats for organization members, and collaborating with other activist organizations and legislative campaigns.
GONZAGA UNIVERSITY | May 2008–May 2009 | Spokane, Washington Student Body President: Hired, trained, and managed a staff of 27 student employees. Served as the student representative to administrators, trustees, and staff members. Successfully implemented an anti-bottled water campaign and created an advisory council for ‘stewardship and sustainability.’

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 12 of 25 PageID 296
Exhibit 2-C

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 13 of 25 PageID 297

EDUCATION
EMPLOYMENT November 2019 to Present April 2019 to Present
May 2014 to March 2019

HENDERSON HILL
8119 Anzack Lane, Charlotte, NC 28269 (H) 704-947-9145 (C) 704-502-1145 hhill3663@gmail.com
Harvard Law School J.D., 1981
John F. Kennedy School of Government Harvard University [M.P.P.] (course work completed; thesis outstanding)
Lehman College, City University of New York B.A., Economics, 1977
Senior Counsel, ACLU Capital Punishment Project 201 W. Main Street, Suite 402, Durham, N.C. 27701
Co-director, RedressNC, Charlotte, N.C. http://redressnc.org/ Start-up initiative to encourage collaboration with reform-minded prosecutors in North Carolina (using post-conviction remedies and community engagement, to seek the early release of prisoners from extreme sentences issued during the decades of NC administration of mass-incarceration policies.)
Executive Director, 8th Amendment Project, Center for Death Penalty Litigation, Durham, N.C.
Provide strategic leadership to the national campaign to abolish the death penalty. Lead a small staff and a larger circle of grantees and consultants (policy advocates, litigation offices, organizers, communications experts and legal and social science researchers.)

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 14 of 25 PageID 298

September 2011 to January 2014
1996 to 2011

Executive Director, Federal Defenders of Western North Carolina Charlotte, NC -- Led a staff of 15 attorneys and 34 total full time employees in providing indigent representation in the four federal courthouses in the Western District of North Carolina. -- Managed budget of $7 million.
Ferguson Stein Chambers Gresham & Sumter, P.A. Charlotte, NC -- Partner in general litigation practice with concentration in criminal defense, capital post-conviction, civil rights litigation, and civil litigation.

1995 to 1996

Director, Center for Death Penalty Litigation Durham, NC -- Founded non-profit law office providing direct representation and consultation services in capital defense at trial, postconviction and federal habeas corpus stages.

1991 to 1995
1981 to 1991 TEACHING POSITIONS 1991 to 1997

Director, North Carolina Resource Center Office of the Appellate Defender Durham, NC -- Director of state agency receiving state funds and federal Criminal Justice Act grants to provide direct and consultation services in capital cases throughout North Carolina, at the trial, post-conviction and federal habeas corpus stages.
Public Defender Service, District of Columbia Washington, DC -- Positions included Staff Attorney, Special Litigation Counsel, Special Litigation Counsel, Deputy Chief, Appellate Division, and Training Director.
Adjunct Assistant Professor University of North Carolina School of Law Chapel Hill, NC -- Taught trial advocacy course.

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 15 of 25 PageID 299

1998 2011 2018 2019

Lecturer Duke University School of Law Durham, NC -- Taught death penalty seminar
Practitioner-in-Residence Thelton E. Henderson Center for Social Justice Berkeley School of Law University of California—Berkely Ruth Chance Lecture: The North Carolina Racial Justice Act and the Georgia Execution of Troy Davis
Witness in Residence University of North Carolina-Charlotte -- week long series of class lectures and public talks regarding the death penalty throughout the university.
Faculty, Makwanyane Institute, Franschoek, South Africa Center on the Death Penalty World-wide, Cornell Law School --Training the trainers program; teaching trial and policy advocacy skills to practitioners from Common Law countries engaged in capital defense.

RELATED PROFSSIONAL ACTIVITIES

2009 to Present

Member, Advisory Board, Common Justice, Brooklyn, NY

2009 to 2012

Member, Steering Committee (Funders)

2009

Member, American College of Trial Lawyers, State Committee

2008 to 2012

Commissioner, NC Indigent Defense Services Commission

2008 to 2012

Member, Board of Directors, Center for Death Penalty Litigation

2007

Fellow, American College of Trial Lawyers

2004

Member, Mecklenburg County Bar, Federal Judiciary Recognition Committee

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 16 of 25 PageID 300

2003 to 2006

Member Mecklenburg County Bar, Grievance Committee

2003 to 2004

Member, North Carolina Bar Association, Tort Reform Committee

2001 to 2003

President, John S. Leary Bar Association, Charlotte, NC

2001 to 2003

Member, ABA Advisory Committee on Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases

1998 to 2002

Member, Board of Governors, NC Academy of Trial Lawyers

1998 to 2001

Member, Board of Directors, Community Justice Development Center, Raleigh, NC

1996 to 2003

Member, Board of Directors, Center for Death Penalty Litigation

1992 to 1998

Member, Board of Directors, Carolina Justice Policy Center, Durham, NC

1992 to 1998

Faculty,

NITA-based Trial Advocacy Training, Black Lawyers

Association, Johannesburg, South Africa

1992 to 1996

Member, All Bar Conference on Death Penalty Representation, Raleigh, NC

COMMUNITY ACTIVITIES

2011 to Present

Member, Board of Directors, Supportive Housing Communities, Charlotte, NC

2007 to Present

Founder, Neighborhood Advocacy Center, Charlotte, NC -- Non-profit organization established to provide parent representation in Abuse, Neglect and Dependency matters in Mecklenburg County. -- Established clinical program with Charlotte School of Law and Johnson C. Smith University (Social Work) to involve clinical students in therapeutic law practice.

2000

Convener, The Great Aunt Stella Center, Conference on Restorative Justice, Charlotte, NC

1999 to Present

Founder, Charlotte Coalition for Community Justice (formerly

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 17 of 25 PageID 301

"Charlotte Coalition for Moratorium Now") -- Grassroots non-profit organized to advocate for restorative, effective and humane solutions to the dangers and stresses in our community, such as poverty, crime, homelessness, and mental illness.

AWARDS

2010 to Present

North Carolina Super Lawyer

2009

Award, Outstanding Legal Services Award, National Coalition to Abolish the Death Penalty, Harrisburg, PA

2000

Paul Green Award, ACLU and the Paul Green Foundation

1999

Lawyer of the Year, North Carolina Association of Black Lawyers

1996

Lawyer of the Year, George H. White Bar Association, Durham, NC

LECTURES & CLE PRESENTATIONS

Lecture widely on trial advocacy skills, criminal defense, the death penalty, and restorative justice. Keynote speaker and frequent presenter at the Life in the Balance Seminars, NAACPLDF's Airlie House Conferences, and the California Association of Criminal Defense Attorneys' Monterey Conferences.

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 18 of 25 PageID 302
Exhibit 2-D

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 19 of 25 PageID 303
Barry Barnett
Partner
Houston (713) 653-7891 bbarnett@susmangodfrey.com
Overview
An “incredibly gifted lawyer” (Chambers and Partners), Barry Barnett is the go-to choice of sophisticated business clients facing high-stakes business disputes. Colleagues call him “magic in the courtroom” (Who’s Who Legal) and in 2017 and 2019 voted him the Best Lawyers Lawyer of the Year for Bet-the-Company Litigation in Houston. With offices in Dallas, Houston, and New York, he has successfully navigated complex matters across the United States for more than three decades.
Trial counsel
Barnett’s credentials match his knowledge and skill. He is a Fellow in the American College of Trial Lawyers, for example, an Elected Member of the American Law Institute, and an honors graduate of Yale University and Harvard Law School. With three decades of trial work representing both plaintiffs and defendants, he is master strategist in commercial litigation. Barnett focuses on complex matters, especially ones involving antitrust, energy, or intellectual property. He has represented major corporations like Alaska Airlines, Cisco Systems, KKR, Neiman Marcus Group, and Texas Instruments. He’s also battled for clients against behemoths like Abbott Labs, Apple, AT&T, Comcast, JPMorgan Chase, Samsung, and Visa. Barnett projects a compelling courtroom presence. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a patent infringement trial called him “one of the best” and his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.
Complete package
Barnett can handle a case from start to finish. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and even (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States. Barnett is a sought-after public speaker, serving on panels and talking on topics like the hottest claims, trial of class actions, and techniques for streamlining litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared on Frontline.
Page 1 of 4

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Hard-graders
Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.
“Barry Barnett was magnificent in trying this case,” said Energy Future Holdings’ general counsel after Barnett led a trial team that defeated $500 million claims relating to power plants, a lignite mine, and an aluminum smelter. “We couldn’t ask for more able trial counsel.”
A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.”
Chambers and Partners calls him “an incredibly gifted lawyer” who earns “widespread praise from peers””, “particularly [for] his notable courtroom skills.” Who’s Who Legal says he does “a fantastic job for his clients”. And Best Lawyers named him the 2017 and 2019 Lawyer of the Year for Bet-the-Company Litigation in Houston.

Keeping perspective
Barnett appreciates that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their legitimate goals. He also strives to foster trust and to make working with him a pleasure. Winning makes that easier.

Superb clients
A wide range of business clients have entrusted their critical matters to Barnett, including the ones you see below.

Public Companies:
• Alaska Airlines • Cisco Systems • EMC • Encana Oil & Gas • International Securities Exchange • KKR & Co.

• Neiman Marcus • Trammell Crow Company • Texas Instruments • Vistra Energy • Whiting Petroleum

Private Companies:

• • • • • • • •

Duane Reade Energy Future Holdings Firth Rixson Innovative Sonic Insight Equity INVeSHARE Luminant Generation Mewbourne Oil & Gas

• • • • • • •

Morris & Dickson Co. Oak Hill Capital Olympia Minerals RainTree Oncology TXU Energy Valor Equity Wagner & Brown

Personal
Barnett knows how to get along with all sorts of people. A son of a roughneck and a Texas native, he grew up in Nacogdoches, the oldest town in Texas. While co-captaining his high school varsity football team, he also served as the Editor of Key Club’s Texas-Oklahoma District and sang in the East Texas All Region Choir. His wide-ranging experience helps him connect with clients, judges, jurors, witnesses, and even opposing counsel.
Page 2 of 4

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 21 of 25 PageID 305
Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career – 34 years. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works in Houston, and their son is a student at Columbia Law School. As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for The Game in November. And he knows how important fighting until the end is. On his last play from scrimmage, during the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble. Yale won, 14-0.
Education
Yale University (B.A., Economics and History (honors), magna cum laude, 1981) Harvard Law School (J.D., cum laude, 1984).
Clerkship
Law Clerk to The Honorable Jerre S. Williams, United States Court of Appeals, Fifth Circuit (1984-85).
Trials
To see a list of the cases Barnett has tried and get contact information for judges, arbitrators, and opposing counsel, click on this List of Trials.
Honors and Distinctions
Academy of American Legal Writers, Board Member (2012-2019). American College of Trial Lawyers, Fellow (2014-2019). American Law Institute, Elected Member (2007-2019). The Best Lawyers in America, Lawyer of the Year in Bet-the-Company Litigation (2017 and 2019), Bet-theCompany Litigation (2010-2019), Class Actions (2015-19), Commercial Litigation (2003-2019), Litigation – Antitrust (2012-2019), Litigation – Intellectual Property (2012-2019), and Litigation – Patent (2012-2019) (Copyright by Woodward White Inc.). Chambers USA: America’s Leading Lawyers for Business in Antitrust and General Commercial Litigation (2007-2019). Martindale-Hubbell AV (highest) rating (1995-2016). Texas Super Lawyer in Business Litigation, Antitrust Litigation, Class Action/Mass Torts, and Energy & Natural Resources (variously 2003-2019), Law & Politics Magazine (Thomson Reuters).
Articles and Speeches
Barry Barnett — NPR “Marketplace” Report Oral argument in Comcast Corp. v. Behrend
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Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 22 of 25 PageID 306
Articles
Creator and blogger-in-chief, The Contingency, one of the top 10 law blogs in LexBlog. Interviews by and articles for NPR’s “Marketplace” report, Law Blogof The Wall Street Journal, Texas Lawyer, ABA Journal, business torts “Hot Topics” by the Litigation Section of the Texas Bar Association, Global Competition Review, Kansas City Business Journal, The Dallas Morning News, Blawg Review, Texas Cable News, D CEO, and Dallas Business Journal. Author and speaker at continuing legal education seminars, including “The Hottest Oil & Gas Claims” at the 66th Annual Oil & Gas Law Conference, Current Issues in Multidistrict Litigation and Class Actions” at the Third Circuit Judicial Conference; “Daubert in Class Certification Hearings: The Standard After Comcast” for ABA Section of Antitrust Law; and “Current Developments in Business Litigation”, American Bar Association.
Professional Associations and Memberships
Bar Memberships
State Bar of New York. State Bar of Texas. Bar of the Supreme Court of the United States of America. Bars of the United States Courts of Appeals for the Third, Fifth, and Tenth Circuits. Bars of the United States District Courts for the Northern, Eastern, Southern, and Western Districts of Texas; the Eastern and Southern Districts of New York; the District of Arizona; and the District of Colorado.
Professional and Civic Associations
American Bar Association; Section of Litigation and Section of Antitrust Law; American Association for Justice; Dallas Bar Association; Federal Bar Association Houston Bar Association. Center for American and International Law, Executive Committee (2016-19) and Trustee (2011-2019). Yale Club of Dallas; Harvard Club of Dallas; Yale Club of New York City. Greenhill School, Addison, Texas, Trustee (2007-2013). New-York Historical Society, Trustee (2016-2019) and Chairman’s Council (2012-2019). Life Fellow, American Bar Foundation, Texas Bar Foundation, Dallas Bar Foundation, and Houston Bar Foundation.
Page 4 of 4

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 23 of 25 PageID 307
Exhibit 2-E

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 24 of 25 PageID 308
Michael Gervais
Partner
Los Angeles (310) 789-3130 mgervais@susmangodfrey.com
Overview
Michael Gervais is a skilled and accomplished trial lawyer who represents both plaintiffs and defendants in all types of high stakes commercial litigation. Gervais has amassed an impressive collection of litigation victories and favorable settlements for clients who vary from Fortune 500 industry leaders to classes of unfairly treated plaintiffs in several national high profile lawsuits. Gervais worked alongside Managing Partner, Neal Manne, Partner Lexie White, and Partner Joseph Grinstein representing a class of indigent misdemeanor arrestees pro bono in a landmark case to challenge the money bail scheme in Harris County, Texas. Along with Civil Rights Corps and the Texas Fair Defense Project, Gervais’s work helped secure a sweeping preliminary injunction from a Houston federal judge, who struck down Harris County, Texas’ money bail system. The decision focused national attention on the countrywide practice of jailing poor people because they are unable to afford bail when arrested for minor offenses and has been covered by national outlets such as The New York Times, The Houston Chronicle, and Lawdragon. In another high profile class action, Gervais worked alongside Partners Kalpana Srinivasan, Steven Sklaver and Steve Morrissey representing Flo & Eddie, members of the 1960’s rock group The Turtles, in addition to a class of copyright owners in a case against Sirius XM. In this landmark case it was established under California law, that these owners of sound recordings from before 1972 have the exclusive right to perform those recordings. Under a groundbreaking settlement, Sirius XM agreed to pay at least $25.5 million (over $16 million after fees and expenses) and royalties under a 10-year license that is valued up to $62 million (over $41 million after fees and expenses) as compensation for publicly performing without a license Pre-1972 sound recordings. The settlement was approved by the Court, and has received widespread media coverage from publications such as The New York Times, Billboard, The Hollywood Reporter, Law360, Rolling Stone, Variety, Reuters and Managing IP. Before joining Susman Godfrey, Gervais served as a clerk at both the Supreme Court of the United States and in the Ninth Circuit U.S. Court of Appeals. These experiences have given him a unique perspective and a valuable background that supports the success he brings his clients in federal, district and state courts as well as in arbitration and at every level of litigation.
Admitted only in New York; not admitted in California. Practicing under the supervision of the partnership of Susman Godfrey L.L.P.
Page 1 of 2

Case 3:20-cv-00832-E Document 18-2 Filed 04/12/20 Page 25 of 25 PageID 309
Education
Yale Law School (J.D.) American University (B.A., International Studies, summa cum laude)
Clerkship
Law Clerk to the Honorable Stephen Breyer, Supreme Court of the United States Law Clerk to the Honorable Alex Kozinski, United States Court of Appeals for the Ninth Circuit
Honors and Distinctions
Senior Editor, Yale Journal of International Law Research Assistant to Professor W. Michael Reisman
Current Representations
ODonnell et al. v. Harris County, et al. In this landmark constitutional case coming out of Harris County, Texas, Gervais was part of a team that won a landmark ruling in 2017, and was later affirmed in 2018, by the U.S. Court of Appeals for the Fifth Circuit, that the system of cash bail used in Harris County, Texas, violated the Due Process and Equal Protection rights of the thousands of misdemeanor arrestees. Gervais served on this case pro bono and was an active and critical part of the team leading up to and during trial. PDVSA US Litigation Trust v. Lukoil Pan Americas LLC et al. Along with Neal Manne, Alex Kaplan and Michael Kelso, Gervais is currently defending energy-trading companies Vitol Inc. and Vitol S.A. against statutory claims brought by the PDVSA US Litigation Trust.
Previous Representations
Flo & Eddie v. Sirius XM Gervais served on a team from Susman Godfrey that was co-lead counsel to Flo & Eddie (the founding members of 70’s music group, The Turtles) along with a class of owners of pre-1972 sound recordings for copyright violations by music provider Sirius XM. Flo & Eddie settled with Sirius XM on behalf of the class in a deal worth up to $73 million and approved by the Court in May 2017.
Professional Associations and Memberships
New York State Bar
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 Case 3:20-cv-00832-E Document 26 Filed 04/13/20 Page 1 of 3 PageID 325

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD, §

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL §

WRIGHT, TERRY MCNICKELS,

§

AND JOSE MUNOZ; On Their Own §

And On Behalf Of A Class Of

§

Similarly Situated Persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, In Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Case No. 3:20-cv-00832

MOTION TO INTERVENE BY THE STATE OF TEXAS, GOVERNOR OF TEXAS,
AND ATTORNEY GENERAL OF TEXAS
The State of Texas, the Honorable Greg Abbott, Governor of Texas, and the Honorable Ken Paxton, Attorney General of Texas (“State Intervenors”), by and through the Attorney General of Texas, and pursuant to Federal Rule of Civil Procedure 24, move to intervene as defendants in the above-captioned action. In support of this Motion, the State Intervenors rely on the following contemporaneously filed documents:
1. Memorandum in Support of State Intervenors’ Motion to Intervene; 2. [Proposed] Order Granting State Intervenors’ Motion to Intervene; and 3. State Intervenors’ Notice of Opposition.

1

Case 3:20-cv-00832-E Document 26 Filed 04/13/20 Page 2 of 3 PageID 326
For the reasons stated in this Motion and accompanying documents, State Intervenors respectfully request that the Court grant this Motion to Intervene.
Respectfully submitted. KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief for General Litigation Division /s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Attorney-in-Charge Special Litigation Counsel1 Texas Bar No. 24077727 General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 adam.biggs@oag.texas.gov COUNSEL FOR THE STATE OF TEXAS, THE GOVERNOR OF TEXAS, AND THE ATTORNEY GENERAL OF TEXAS
1 Exempted from admission to practice requirement pursuant to Local Rule 83.11.
2

Case 3:20-cv-00832-E Document 26 Filed 04/13/20 Page 3 of 3 PageID 327 CERTIFICATE OF CONFERENCE
I hereby certify that on April 13, 2020, I conferred with counsel for Plaintiffs and Defendants via email regarding the substance of the foregoing instrument. Plaintiffs stated that they are opposed to this motion. Defendants stated they are unopposed to this motion.
/s/Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel CERTIFICATE OF SERVICE I hereby certify that on April 13, 2020, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record. /s/Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel
3

Case 3:20-cv-00832-E Document 26-1 Filed 04/13/20 Page 1 of 1 PageID 328

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, et al.,

§

Petitioners/Plaintiffs,

§

§

V.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, In Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Case No. 3:20-cv-00832

[PROPOSED] ORDER GRANTING OPPOSED MOTION TO INTERVENE BY THE STATE OF TEXAS, GOVERNOR OF TEXAS, AND ATTORNEY GENERAL OF TEXAS
Before the Court is the Motion to Intervene by the State of Texas, Governor of Texas, and Attorney General of Texas (“State Intervenors”). The motion is meritorious and should be GRANTED.
It is therefore ordered that the Motion to Intervene by the State of Texas, Governor of Texas, and Attorney General of Texas is GRANTED.
It is further ordered that the State Intervenors are granted leave to intervene as of right under Federal Rule of Civil Procedure 24.
SO ORDERED this the _________ day of ________________, 2020.

HONORABLE ADA BROWN UNITED STATES DISTRICT JUDGE

Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 1 of 21 PageID 329

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD, §

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL §

WRIGHT, TERRY MCNICKELS,

§

AND JOSE MUNOZ; On Their Own §

And On Behalf Of A Class Of

§

Similarly Situated Persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, In Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Case No. 3:20-cv-00832

MEMORANDUM IN SUPPORT OF PARTIALLY OPPOSED MOTION TO INTERVENE BY THE STATE OF TEXAS, GOVERNOR OF TEXAS, AND ATTORNEY GENERAL OF TEXAS

Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 2 of 21 PageID 330
TABLE OF CONTENTS Table of Authorities ....................................................................................................... ii Introduction ................................................................................................................... 1 Argument ....................................................................................................................... 3
I. The Court Should Permit the State Intervenors to Intervene Under Civil Rule 24(a)(2). .............................................................................................. 3 A. The State Intervenors have important interests that relate to the subject of this action................................................................................ 4 B. Disposition of this action will impair the State Intervenors’ interests. ........................................................................................................ 7 C. The current parties cannot show that they adequately represent the State Intervenors’ interests. ................................................................. 10 D. The request to intervene is timely. ............................................................. 12
II. Alternatively, the Court Should Permit the State Intervenors to Intervene Under Civil Rule 24(b)(1)(B)............................................................ 12
Conclusion .................................................................................................................... 14 Certificate of Conference ............................................................................................. 16 Certificate of Service.................................................................................................... 16
i

Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 3 of 21 PageID 331
TABLE OF AUTHORITIES
Cases Addington v. Tex.,
441 U.S. 418 (1979) .................................................................................................. 5 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982) .............................................................................................. 4, 5 Atlantis Dev. Corp. v. United States,
379 F.2d 818 (5th Cir. 1967) .............................................................................. 7, 10 Brumfield v. Dodd,
749 F.3d 339 (5th Cir. 2014) .................................................................................. 11 City of El Cenizo v. Tex.,
890 F.3d 164 (5th Cir. 2018) .................................................................................. 10 City of Safety Harbor v. Birchfield,
529 F.2d 1251 (5th Cir. 1976) .................................................................................. 7 Ford v. City of Huntsville,
242 F.3d 235 (5th Cir. 2001) .................................................................................... 4 Gamble v. United States,
139 S. Ct. 1960 (2019) .............................................................................................. 5 Hundall v. UTEP,
No. EP-13-CV-00365-DCG, 2013 WL 12090655 (W.D. Tex. 2013)......................... 6 In re Abbott,
___ F3d. ___, 2020 WL 1685929 (5th Cir. 2020) ..................................................... 6 In re Lease Oil Antitrust Litig.,
570 F.3d 244 (5th Cir. 2009) .................................................................................... 4 Int’l Mortg. & Inv. Corp. v. Von Clemm,
301 F.2d 857 (2d Cir. 1962).................................................................................... 12 Jacobson v. Commonwealth of Mass.,
197 U.S. 11 (1905) .................................................................................................... 5 John Doe No. 1 v. Glickman,
256 F.3d 371 (5th Cir. 2001) .................................................................................. 11 Kelly v. Robinson,
479 U.S. 36 (1986) .................................................................................................... 5 Louisiana v. Texas,
176 U.S. 1 (1900) ...................................................................................................... 5 LULAC v. Clements,
884 F.2d 185 (5th Cir. 1989) ................................................................................... 13
ii

Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 4 of 21 PageID 332
Marketfare (St. Claude), L.L.C. v. United Fire & Cas. Co., Nos. 06-7232, 06-7641, 06-7639, 06-7643, 06-7644, 2011 WL 3349821 (E.D. La. Aug. 3, 2011) ............................................................ 13
Mass. v. EPA, 549 U.S. 497, 520 & n.17 (2007) .............................................................................. 5
Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967) ................................................................................ 10
Pyle-Nat’l Co. v. Amos, 172 F.2d 425 (7th Cir. 1949) .................................................................................. 12
Russell v. Harris County, No. 4:19-cv-00226 (S.D. Tex).............................................................................. 3, 10
Sierra Club v. City of San Antonio, 115 F.3d 311 (5th Cir. 1997) .................................................................................... 5
Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994) .................................................................................. 12
Stadin v. Union Elec. Co., 309 F.2d 912 (8th Cir. 1962) .................................................................................. 11
TCDLA v. Abbott, No. D-1-GN-20-002034 (459th Judicial District Court, Travis County,
Tex.). ......................................................................................................................... 10 Trbovich v. United Mine Workers,
404 U.S. 528 (1972) ................................................................................................ 11 United States v. LULAC,
793 F.2d 636 (5th Cir. 1986) .................................................................................. 13 Va. House of Delegates v. Bethune-Hill,
139 S. Ct. 1945 (2019) .............................................................................................. 4 Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n,
834 F.3d 562 (5th Cir. 2016) .............................................................................. 4, 12 Statutes 18 U.S.C. § 3626(a)(3)(F) ............................................................................................... 3 TEX. CODE CRIM. PROC. art. 2.251 ................................................................................. 6 TEX. CONST. art. IV, § 22 ............................................................................................... 7 TEX. GOV’T CODE § 402.021............................................................................................ 7 TEX. GOV’T CODE § 402.023............................................................................................ 7 TEX. GOV’T CODE § 418.004(1)........................................................................................ 6 TEX. GOV’T CODE § 418.014............................................................................................ 6
iii

Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 5 of 21 PageID 333 TEX. GOV’T CODE § 418.016(a) ....................................................................................... 6 TEX. GOV’T CODE § 418.017(a) ....................................................................................... 6 TEX. GOV’T CODE § 418.018(c) ........................................................................................ 6 TEX. GOV’T CODE § 508.254............................................................................................ 6 TEX. GOV’T CODE § 752.053............................................................................................ 6 TEX. GOV’T CODE § 752.053(b)(3) ................................................................................. 11 Other Authorities 7C Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE &
PROCEDURE § 1909 (3d ed.) ...................................................................................... 12 Rules FED. R. CIV. P. 24(a) ................................................................................................. 4, 12 Fed. R. Civ. P. 24(a)(2)............................................................................................... 3, 7 Fed. R. Civ. P. 24(b)(1)(B).................................................................................. 3, 12, 13
iv

Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 6 of 21 PageID 334
INTRODUCTION Plaintiffs would have the Court order injunctive or “habeas” relief releasing a class of individuals defined as “[e]veryone in the Dallas County Jail.”1 Their requested relief covers killers, rapists, arsonists, and armed robbers. Plaintiffs want this Court to empty the jail and in the process ignore (1) state court judgments imposing custodial sentences; (2) detainer and transfer requests from other sovereign governments; and (3) state court bail orders. And they ask for this extraordinary relief without certifying a class or trying to satisfy any of the Prison Litigation Reform Act’s requirements. The effect of Plaintiffs’ ask is extraordinary. It would include Billy Chemirmir, possibly “one of the state’s most prolific serial killers.”2 Chemirmir is accused of murdering 12 women—all between ages 75 and 94—by smothering them to death and making off with their jewelry. A state court judge set secured bail at $13.6 million.3 The federal government, moreover, has filed an immigration detainer with the Dallas County Jail, which means Chemirmir will be deported in the very unlikely event he ever steps foot outside of jail again.4 And now Plaintiffs ask this Court to consider

1 ECF No. 1 ¶ 71.

2 Antonia Noori Farzan, A Jewelry Box Led Police to Revisit Hundreds of Deaths. They May Have

Found a Serial Killer, WASH. POST (May 20, 2019), https://wapo.st/2wxTJpJ.

3

Chemirmir’s

booking

information

is

available

at

https://www.dallascounty.org/jaillookup/defendant_detail?recno=8701479E-2A8F-4A79-8F26-

00343043A503&bookinNumber=18013860&bookinDate=1521653460000&dob=1972-12-

08&lastName=CHEMIRMIR&firstName=BILLY&sex=Male&race=Black; Charles Scudder, Dallas

DA Seeks Death Penalty Against Serial Killer Suspect Billy Chemirmir, DALLAS MORNING NEWS (July

24, 2019), https://bit.ly/3cbtjcy.

4 ICE Files Immigration Detainer on Suspected Serial Killer Billy Chemirmir, NBCDFW (Oct. 10,

2019), https://bit.ly/2ybl8hm.

1

Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 7 of 21 PageID 335
setting him free because he, and others like him, might possibly be exposed to COVID-
19. It is obvious that releasing Chemirmir, and other violent felons, threatens the
public’s safety, something echoed by law enforcement and victim’s rights advocates.5
That alone demonstrates the State’s interest in this case.6
The release of more than 5,000 prisoners during a state-wide pandemic not
only places law-abiding citizens at risk of re-offenses, but also imperils the State’s
efforts to effectively protect the public health in response to the spread of COVID-19
because the added strain that it would place on law enforcement.
The State of Texas, the Governor of Texas, and the Attorney General of Texas
(“State Intervenors”) seek to intervene to defend the continued custody of Plaintiffs’
would-be class. Because this case implicates State law at every turn, the State
Intervenors have an interest in the outcome. They also have an interest in protecting
the public’s health and safety in the wake of the coronavirus pandemic. These
interests are unrepresented in this case.
5 The following declarations were filed in the Southern District of Texas in another case where a federal court was asked to release all the felons from the Harris County jail. The cause number may be different, but the sentiment is the same: flooding the streets with felons during a pandemic endangers public safety, places victims right back in harms way, and taxes law enforcement resources to their breaking point. See Ex. 1 Declaration of Houston Chief of Police Art Acevedo; Ex. 2 Declaration of Allen Police Chief Brian Harvey; Ex. 3 Declaration of Arlington Police Chief Will Johnson; Ex. 4 Declaration of Police Chief Derick Miller; Ex. 5 Declaration of Deer Park Chief of Police Gregg Grigg; Ex. 6 Declaration of Frisco Police Chief David Shilson; Ex. 7 Declaration of Fort Worth Police Chief Edwin Kraus; Ex. 8 March 31, 2020 Letter from Garland Police Department; Ex. 9 Declaration of Daniel Scesney; Ex. 10 Declaration of Irving Police Chief Jeff Spivey; Ex. 11 Declaration of Lewisville Police Chief Kevin Deaver; Ex. 12 Declaration of Pearland Police Chief Johnny Spires; Ex. 13 Declaration of Plano Police Chief Ed Drain; Ex. 14, Declaration of Former Plano Police Chief Gregory W. Rushin; Ex 15 Declaration of Andy Kahan, Crime-stoppers of Houston. 6 See, e.g., Gabrielle Banks, Harris County Judge Releases Murder Suspect After the Inmate Said He Feared Coronavirus in Jail, HOUSTON CHRON. (Mar. 23, 2020), https://bit.ly/2y8K7lx.
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The Court’s recent order also highlights the need for intervention here. On April 9, 2020, the Court ordered Plaintiffs to address “the applicability and effect of 18 U.S.C. § 3626.”7 One “effect” is that the State Intervenors must be permitted to participate: Section 3626(a)(3)(F) provides that no court may order release unless “[a]ny State or local official” is permitted “to intervene in any proceeding relating to such relief.” Mandatory intervention under Civil Rule 24(a)(2) is therefore appropriate.8 State Intervenors are permissible intervenors under Civil Rule 24(b)(1)(B).
For all these reasons, State Intervenors respectfully request that this Court allow them to intervene in this action to defend the State from this short-sighted and legally defective empty-the-jails effort.
ARGUMENT I. The Court Should Permit the State Intervenors to Intervene Under
Civil Rule 24(a)(2). Under the Federal Rules of Civil Procedure, a non-party must be allowed to intervene (1) when it has an interest relating to the subject of the action and (2) disposing of the action may practically “impair or impede” that interest, (3) unless the parties “adequately represent” that interest.9 The State Intervenors may intervene as of right in this matter because they satisfy all three requirements.
7 ECF No. 14 at 1. 8 See, e.g., Russell v. Harris County, No. 4:19-cv-00226, ECF No. 46 (S.D. Tex. Mar. 30, 2020) (ordering mandatory intervention). 9 FED. R. CIV. P. 24(a)(2)v.
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A. The State Intervenors have important interests that relate to the subject of this action.
The Fifth Circuit has said before that courts may not define the requisite interest for intervention purposes “too narrowly.”10 The State Intervenors have a “direct, substantial, legally protectable interest.”11 And those interests are related to “the subject of the action”—the wide-scale release of 5,000 prisoners confined pursuant to final judgments of conviction, detainer requests, and secured bail orders, all of which are designed to protect the public and ensure operation of the State’s criminal justice system.12 An interest “ is sufficient if it is of the type that the law deems worthy of protection, even if the intervenor does not have an enforceable legal entitlement or would not have standing to pursue her own claim.”13
Together the State of Texas, the Governor of Texas, and the Attorney General of Texas have an interest in the enforcement of State laws, the orderly operation of the State’s criminal justice system, the public’s safety from recidivism, and the public health in the face of a rapidly developing pandemic. Although the State Intervenors do not need Article III standing to intervene as defendants, their interests at stake here would nevertheless suffice to meet Article III standing’s higher bar.14
The State of Texas unquestionably has a parens patriae interest in the wellbeing of her citizens.15 That includes an interest in keeping the public safe from
10 Ford v. City of Huntsville, 242 F.3d 235, 240 (5th Cir. 2001). 11 In re Lease Oil Antitrust Litig., 570 F.3d 244, 250 (5th Cir. 2009) (quotation omitted). 12 FED. R. CIV. P. 24(a). 13 Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562, 566 (5th Cir. 2016) (quotation omitted). 14 Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1952 (2019). 15 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982) (“[A] State has a
4

Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 10 of 21 PageID 338
crime.16 It also includes an interest in keeping the public healthy in the face of
disease. A State “has the right to protect itself against an epidemic of disease which
threatens the safety of its members.”17
The State of Texas also has a sovereign interest in the enforcement of its own
laws.18 As the Fifth Circuit put it, “[t]he state qua state has an important sovereign
interest” in ensuring that its own statutory schemes are “properly enforced.”19 And
like every sovereign, Texas has an interest in overseeing its own criminal justice
system.20 Plaintiffs’ requested relief would require this Court to invalidate legal state
court orders issued pursuant to the Code of Criminal Procedure and require the
Sheriff to ignore blue warrants (parole violation) and immigration detainers in
violation of Texas law.21
The Governor of Texas and the Attorney General of Texas are both tasked with
important responsibilities to further these interests. Chapter 418 of the Texas
Government Code, for example, furnishes the Governor with sweeping authority to
quasi-sovereign interest in the health and well-being—both physical and economic—of its residents in general.”); see also Mass. v. EPA, 549 U.S. 497, 520 & n.17 (2007) (noting States are entitled to “special solicitude in [Article III standing] analysis” because of their parens patriae status); Louisiana v. Texas, 176 U.S. 1, 19 (1900). 16 See, e.g., Addington v. Tex., 441 U.S. 418, 426 (1979). 17 Jacobson v. Commonwealth of Mass., 197 U.S. 11, 27-28 (1905); cf. Sierra Club v. City of San Antonio, 115 F.3d 311, 315 (5th Cir. 1997). 18 Alfred L. Snapp & Son, Inc., 458 U.S. at 601 (“the power to create and enforce a legal code” is one “easily identified” example of sovereign interest). 19 Sierra Club, 115 F.3d at 315. 20 See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (noting “the States’ interest in administering their criminal justice systems free from federal interference”); cf. Gamble v. United States, 139 S. Ct. 1960, 1968 (2019). 21 See TEX. GOV’T CODE § 508.254 (detention under parole warrant); TEX. GOV’T CODE § 752.053 (detainer requirement under the sanctuary cities law); TEX. CODE CRIM. PROC. art. 2.251 (duties related to immigration detainer requests).
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protect the public from disasters like the coronavirus pandemic, which presents an “imminent threat of widespread or severe damage, injury, or loss of life.”22
That authority includes the power to declare a state of disaster; to use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster;” to control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area; and to suspend the operation of certain laws.23 Notably, Governor Abbott recently exercised this power via Executive Order GA 13, which would curtail the mass releases of suspected and known violent offenders currently incarcerated. And the Attorney General “has general and constitutional authority to represent the state and its officials in all actions in which the state is interested,” like this one.24
In sum, the State Intervenors have important interests in the public safety and public health, the implementation of the State’s criminal justice system, and the enforcement of state laws.25
This suit, which seeks to undermine entirely lawful custody orders with a view to setting loose dangerous criminals and arrestees, implicates each of those interests. It also has state-wide implications, which further demonstrates why the State Intervenors should be permitted to intervene. Local officials, like the Defendants,
22 TEX. GOV’T CODE § 418.004(1). 23 Id. §§ 418.014; 418.017(a); 418.018(c); 418.016(a); see also Proclamation, Office of Tex. Governor (March 13, 2020). 24 Hundall v. UTEP, No. EP-13-CV-00365-DCG, 2013 WL 12090655, at *3 (W.D. Tex. 2013) (citing TEX. CONST. art. IV, § 22 and TEX. GOV’T CODE §§ 402.021, 402.023). 25 See, e.g., In re Abbott, ___ F3d. ___, 2020 WL 1685929, at *5-7, 12 (5th Cir. 2020) (recognizing Texas’s paramount interest and its sweeping “authority to craft measures responsive to [the present] public health emergency”).
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cannot represent the State’s interests because local governments are “not endowed with the same prerogatives in representing the interests of its residents as is the state in protecting the interests of its citizens, particularly where, as here, city and state level interests may be in conflict.”26
B. Disposition of this action will impair the State Intervenors’ interests.
The State Intervenors must also show “that disposing of the action may as a practical matter impair or impede” their interests.27 That does not require a wouldbe intervenor to demonstrate that a judgment in the action would have binding effect on the would-be intervenor. All that matters is whether the judgment “may” have a “practical” impact on the would-be intervenor’s interest.28 A decision awarding the relief plaintiffs seek here—a temporary restraining order, a preliminary injunction, or a “class-wide writ of habeas corpus” releasing more than 5,000 prisoners—will undoubtedly do that.29 Granting that request will practically impair every interest detailed above.
Injunctive relief will imperil the State’s interest in public safety. Plaintiffs’ Motion asks for the release of any person detained in Dallas County Jail: “Everyone in the Dallas County Jail is a proposed class member.”30 That includes both pre-trial detainees,31 and convicted criminals.32 In other words, Plaintiffs ask this Court to
26 City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1256 n.7 (5th Cir. 1976). 27 FED. R. CIV. P. 24(a)(2). 28 See Atlantis Dev. Corp. v. United States, 379 F.2d 818, 828-29 (5th Cir. 1967). 29 ECF No. 1 ¶ 71. 30 Id. (emphasis added). 31 Id. ¶ 66 (“Pre-Adjudication Class”). 32 Id. ¶ 67 (Post-Adjudication Class”)
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Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 13 of 21 PageID 341
order the release more than 5,000 prisoners, including those arrested and convicted for felony charges—including murder, rape, burglary, and domestic violence.
That includes people like Chemirmir, described above. But it includes many others as well. Synthia Franklin, David McKinney, and Shane Wright robbed and murdered a father of two.33 Jonathan Alexander Gonzalez-Rosales, an active member of a violent transnational gang, stabbed a 17-year-old boy to death.34 And Talyle Meaderds raped five different women.35 They are all in Plaintiffs’ would-be class.
It’s not just murderers and rapists that pose a risk to society. A recent study conducted by a former federal judge shows that the unsecured pretrial release of arrestees pursuant to bail-reform efforts in Chicago, Illinois, has already led to an increase in violent crime there.36
Recent events in this State—indeed in this County—confirm what this new study suggests. Just last month, Jacques Dshawn Smith murdered two people one week after beating his ex-girlfriend and having his bail set in Dallas County, pursuant to a criminal-friendly system that allowed him to walk after posting only
33 See Dana Branham, 3 Suspects Face Capital Murder Charges After Police Say They Set Up Fatal Robbery in Lake Highlands, DALLAS MORNING NEWS (Apr. 9, 2020), https://bit.ly/2Vexu04; Booking information for Franklin and Wright is available at https://bit.ly/34ASbrC (Franklin) and https://bit.ly/2XEsh4T (Wright). 34 See U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, ICE Dallas Arrests Salvadoran Gang Member Wanted for Capital Murder (Apr. 7, 2020), https://bit.ly/3b7PjFa; Gonzalez-Rosales’s booking information is available at https://bit.ly/2V2gCL6. 35 See Marjorie Owens, Ride-Share Driver Suspected in Series of Dallas Rapes, WFAA (Nov. 4, 2019), https://bit.ly/3e7jYnI; Meaderd’s booking information is available at https://bit.ly/2xlG3hT. 36 See Paul G. Cassell & Richard Fowles, Does Bail Reform Increase Crime? (Univ. of Utah Coll. of Law, Research Paper No. 349, Mar. 2, 2020) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3541091; Paul Cassell, Bail Reform in Chicago Appears to Have Increased Crime, Volokh Conspiracy (Feb. 19, 2020), https://bit.ly/3b3eRm9.
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$1,500.37 Plaintiffs here seek to use the current health crisis not to modify the bail
system, but simply obviate it—by an unprecedented mass release that defies reason
and the history of our justice system.
The threat to public safety is particularly acute for victims of domestic violence.
Plaintiffs that this Court orders released would be required to stay at home under
existing shelter-in-place orders. That will expose domestic violence victims—a
spouse, a child, an elderly relative—to further violence at the hands of the same
attacker. That tragic story is already playing out across the world.38
Even non-violent offenders may pose real risks. Fraudsters will be presented
with new opportunities to prey on Texans, especially the elderly, during this
pandemic.39 Likewise burglars, regarded incorrectly by some as non-violent; habitual
drunk drivers; and even those who have committed intoxication manslaughter, would
be free to roam the streets under the Plaintiffs’ requested relief.40 And while Plaintiffs
may propose that this large group of felons could be closely monitored while on the
streets, there are simply not enough ankle monitors in the world to guarantee that
this group won’t reoffend.
37 Editorial Board, Two-time felon, accused in A&M Commerce killings, walked out of jail for as little as $1,500, DALLAS MORNING NEWS (Feb. 6, 2020), https://www.dallasnews.com/opinion/editorials/2020/02/06/two-women-at-texas-am-commerce-mightbe-alive-if-their-alleged-killer-wasnt-out-on-bond/. 38 See Emma Graham Harrison, et al., Lockdowns Around the World Bring Rise in Domestic Violence, GUARDIAN (Mar. 28, 2020), https://bit.ly/2xsxyBs; Marissa J. Lang, Domestic Violence Will Increase During Coronavirus Quarantines and Stay-at-Home Orders, Experts Warn, WASH. POST (Mar. 27, 2020), https://wapo.st/2QRVOn4. 39 Zack Friedman, Beware These Coronavirus Scams, FORBES (Mar. 20, 2020), https://bit.ly/2xzJT6B. 40 It is worth pointing out that Plaintiffs not only seek the release of those currently in the jail, but also those that will be arrested during the life of the Court’s order. ECF No. 1 ¶¶ 66-67v (“all current and future detainees”). This is alarming because it is simply impossible to know exactly what kind of individuals will be brought into the Dallas County Jail and then promptly released.
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This lawsuit matters to our fellow citizens and potentially impacts the State Intervenors’ institutional and legal interests.41 Releasing over 5,000 criminals and arrestees would violate Texas law. State criminal judgments, of course, are final adjudications under state law. And state law establishes an orderly process for releasing pre-trial arrestees. State law, likewise, requires local governments to comply with federal immigration detainer requests and parole warrants from the Texas Department of Criminal Justice, all of which would fall to the wayside if Plaintiffs get their way.42
Moreover, any decision here might impact other cases where the State or its officials are parties. That interest alone suffices.43 Any decision here may impact ongoing proceedings in federal and state court.44 The State Intervenors are parties in those lawsuits and Plaintiffs in those cases have similarly requested emergency relief ordering the release of a large class of prisoners.
C. The current parties cannot show that they adequately represent the State Intervenors’ interests.
The next question is whether the existing parties adequately represent the State Intervenors’ interests. Arguably, the burden of persuasion on that question belongs to the parties.45 But even if the State Intervenors shoulder it, their burden is
41 See Nuesse v. Camp, 385 F.2d 694, 700v (D.C. Cir. 1967) (noting “a state official directly concerned in effectuating the state policy has an ‘interest’ in a legal controversy involving the Comptroller which concerns the nature and protection of the state policy”). 42 See TEX. GOV’T CODE § 752.053(b)(3); see also City of El Cenizo v. Tex., 890 F.3d 164, 173 (5th Cir. 2018) (upholding the law against various constitutional challenges). 43 Atlantis Dev. Corp., 379 F.2d at 828-29. 44 See, e.g., Russell v. Harris County, No. 4:19-cv-00226, ECF No. 46 (S.D. Tex. Mar. 30, 2020); TCDLA v. Abbott, No. D-1-GN-20-002034 (459th Judicial District Court, Travis County, Tex.). 45 See 7C Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 1909 (3d ed.).
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“not a substantial one.”46 Then-Judge Blackmun summarized three scenarios when inadequate representation obviously exists—namely, when the party sought to be replaced (1) may be colluding with the opposing party, (2) takes a position adverse to the would-be intervenor, or (3) fails to diligently pursue the would-be intervenor’s interests.47 “ ‘The potential intervener need only show that the representation may be inadequate.’ ”48
At this point, State Intervenors do not know how (or if) the Defendants intend to defend against this action. But public reports indicate the Dallas County Sheriff “has tried to limit the jail population.”49 Indeed, over a ten-day period last month, the Dallas County Jail released 400 inmates.50
State Intervenors do not mean to suggest that Defendants are colluding with the plaintiffs or affirmatively taking an adverse position. But these reports nevertheless demonstrate that the defendants’ representation “may be” inadequate.51 This is especially true considering that Defendants stand to save money if they depopulate the jail, e.g. avoiding medical costs.
Where an existing party and the would-be intervenor have a unity of interests, representation is inadequate where the existing party fails to diligently pursue those
46 Brumfield v. Dodd, 749 F.3d 339, 345 (5th Cir. 2014). 47 Stadin v. Union Elec. Co., 309 F.2d 912, 919 (8th Cir. 1962). 48 John Doe No. 1 v. Glickman, 256 F.3d 371, 380 (5th Cir. 2001) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)) (emphasis added). 49 Cassandra Jaramillo et al., After Five Dallas County Inmates Test Positive for COVID-19, Here’s How Officials Responded, Dallas Morning News (Mar. 25, 2020), https://bit.ly/2VpyM8V. 50 Id. 51 Glickman, 256 F.3d at 380.
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interests.52 That may be true here. Intervention imposes no significant burden to the Court or the parties, but serves a crucial purpose: ensuring that Texas’s interests are zealously represented before the Court by the elected officials entrusted with defending the state’s interests.
D. The request to intervene is timely. Finally, this motion to intervene is “timely.”53 The Fifth Circuit has noted that Rule 24’s timeliness inquiry “is contextual; absolute measures of timeliness should be ignored.”54 Plaintiffs filed this case on April 9, 2020.55 The State Intervenors have sought to intervene at the earliest possible moment. The State Intervenors, therefore, seek intervention well “before discovery [has] progressed” and they do not “not seek to delay or reconsider phases of the litigation that ha[ve] already concluded.”56 II. Alternatively, the Court Should Permit the State Intervenors to Intervene Under Civil Rule 24(b)(1)(B). If the Court does not grant the State Intervenors intervention as of right— which it should—it should grant for permissive intervention because the State Intervenors’ position and this suit have a common question of law or fact.57
52 Int’l Mortg. & Inv. Corp. v. Von Clemm, 301 F.2d 857, 861 (2d Cir. 1962) (noting existing parties “have shown a conspicuous disinterest in asserting the rights of” the would-be intervenor); Pyle-Nat’l Co. v. Amos, 172 F.2d 425, 427 (7th Cir. 1949) (permitting intervention where plaintiffs “arranged a settlement with the defendants for exactly one-half of the sum contended by the suit to be due”). 53 FED. R. CIV. P. 24(a). 54 Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). 55 ECF No. 1. 56 Wal-Mart Stores, 834 F.3d at 565. 57 See FED. R. CIV. P. 24(b)(1)(B) (“On timely motion, the court may permit anyone to intervene who . . . (B) has a claim or defense that share with the main action a common question of law or fact.”).
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To obtain permissive intervention under Rule 24, the State Intervenors must demonstrate that: (1) the motion to intervene is timely; (2) their claim or defense has a question of law or fact in common with the existing action; and (3) intervention will not delay or prejudice adjudication of the existing parties’ rights.58 The State Intervenors satisfy each of these factors.
First, as stated above, the State Intervenors’ motion is timely.59 Second, because the State Intervenors have filed the motion before the due date for the responsive pleadings this Court has requested, granting the Motion will not cause any delay or prejudice to the existing parties’ rights to litigate the case.60 Third, the State Intervenors share common questions of law and fact with the main action. Jails across the State are undertaking efforts to combat and contain the spread of coronavirus in jail. The Plaintiffs’ lawsuit will call into question prisoners’ custody everywhere. Only the State Intervenors will provide a state-wide perspective.
In considering whether to grant permissive intervention, the Court may also consider “(1) whether an intervenor is adequately represented by other parties; and (2) whether intervention is likely to contribute significantly to the development of the underlying factual issues.”61
58 Idv.; see United States v. LULAC, 793 F.2d 636, 644 (5th Cir. 1986) (“Although the court erred in granting intervention as of right, it might have granted permissive intervention under Rule 24(b) because the intervenors raise common questions of law and fact.”). 59 See supra Part I.D. 60 See ECF No. 14 at 1. 61 Marketfare (St. Claude), L.L.C. v. United Fire & Cas. Co., Nos. 06-7232, 06-7641, 06-7639, 06-7643, 06-7644, 2011 WL 3349821, at *2 (E.D. La. Aug. 3, 2011) (citing LULAC v. Clements, 884 F.2d 185, 189 (5th Cir. 1989)).
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Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 19 of 21 PageID 347 These factors provide additional support for granting permissive intervention
in this case. As already discussed, the State Intervenors have a significant interest in protecting the public and overseeing the state criminal justice system.62 These interests will not be adequately represented by Defendants.63 And the State Intervenors’ ability to address these interests will contribute significantly to the just and equitable resolution of the constitutional questions presented.
Thus, even if the Court concludes that the State Intervenors are not entitled to intervene as of right, it should grant their request for permissive intervention.
CONCLUSION The Court should grant the State Intervenors’ motion to intervene as of right or, alternatively, to intervene permissively, and grant them all the same rights and responsibilities as a party to the lawsuit.
62 See supra Part I.A. 63 See supra Part I.C.
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Respectfully submitted. KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General RYAN L. BANGERT Deputy First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief for General Litigation Division /s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Attorney-in-Charge Special Litigation Counsel64 Texas Bar No. 24077727 General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 adam.biggs@oag.texas.gov COUNSEL FOR THE STATE OF TEXAS, THE GOVERNOR OF TEXAS, AND THE ATTORNEY GENERAL OF TEXAS
64 Exempted from admission to practice requirement pursuant to Local Rule 83.11.
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Case 3:20-cv-00832-E Document 27 Filed 04/13/20 Page 21 of 21 PageID 349 CERTIFICATE OF CONFERENCE
I hereby certify that on April [13], 2020, I conferred with counsel for Plaintiffs and Defendants via email regarding the substance of the foregoing instrument. Plaintiffs stated that they are opposed to this motion. Defendants stated they are unopposed to this motion
/s/Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel CERTIFICATE OF SERVICE I hereby certify that on April 13, 2020, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record. /s/Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel
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Case 4:19-cv-00226 Document 54-2 Filed on 04/01/20 in TXSD Page 1 of 4 Case 3:20-cv-00832-E Document 27-1 Filed 04/13/20 Page 1 of 4 PageID 350

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF HOUSTON CHIEF OF POLICE ART ACEVEDO

1. My name is Art Acevedo. I currently serve as Chief of the Houston Police Department. I have served in this role since November 30, 2016.

2. I lead a department of 5,300 sworn law enforcement officers and 1,000 civilian support personnel. In addition to my role as Chief of Police, I am the President of the Major Cities Chiefs Association (“MCCA”). MCCA is a professional association of Chiefs and Sheriffs representing the largest cities in the United States and Canada. MCCA membership is comprised of Chiefs and Sheriffs of the sixty-nine largest law enforcement agencies in the United States and nine largest in Canada.

3. It is my understanding that the Plaintiffs in this lawsuit are seeking an extraordinary and unprecedented order from this Court to release over 4,000 felons from the Harris County Jail.

4. It is also my understanding that they seek to release all inmates age 55 or older regardless of the crimes for which he or she is charged or consideration of prior criminal history. This specific population includes extremely violent individuals whose release would pose a serious threat to their victims, victims’ families, and the extended community. A representative sample of the crimes and number of individuals charged per category is as follows:

 Murder

16

 Aggravated assault with a deadly weapon

96

 Aggravated assault of a family member

44

Exhibit 1

Case 4:19-cv-00226 Document 54-2 Filed on 04/01/20 in TXSD Page 2 of 4 Case 3:20-cv-00832-E Document 27-1 Filed 04/13/20 Page 2 of 4 PageID 351

 Aggravated assault of a peace officer

16

 Aggravated sexual assault of a child under 14

24

 Assault of family member with previous conviction

27

 3rd time DWI

37

 Failure to comply sex offender

21

 Felon in possession of a firearm

16

 Indecent sexual contact with a child

17

5. Based on my training, experience, and understanding of the current circumstances on the ground, I believe that such a mass release of felons would not only fail to serve the public interests, but furthermore make our streets less safe. This would put additional strain on already limited law enforcement resources and divert them from aiding with the pandemic control efforts. This strain will not only be felt in Houston, but also throughout the entire State of Texas and nation because Plaintiffs’ request does not include safeguards for ensuring these suspects and felons remain in Houston after their release.
6. We are in an unprecedented time for our country, state and Harris County. The men and women that serve on the police department here have risked their lives to protect and serve during these trying times. The police department is working on limited resources. As of this draft, 11 Houston Police Department officers have tested positive for COVID-19 related to their duties, with close to 50 more awaiting test results. If Harris County releases high-level offenders from jail, our resources will be stretched even further. We should all be concerned about the wholesale release of individuals charged with violent crimes. There is a high likelihood that some actors that are released will subsequently commit more crimes. We must prevent this from occurring. We will not be able to keep up with demand and the high likelihood of repeat offenses.
7. It is my understanding that low-level, non-violent offenders have already been released from jail and that the jail is already close to empty of these offenders, which only leaves the violent and pervasive offenders. Thousands of persons charged with serious felony offenses remain behind bars and that is appropriate. These are the people that Plaintiffs want to release without a proper judicial risk assessment balancing the alleged risk of harm to them due to the coronavirus versus the risk of harm to public safety if they are released or the consideration of other alternatives like testing and isolation of positive inmates within the jail or the opening of another jail facility.
8. Those who remain are awaiting trial for violent crime or are habitual offenders. These offenders must not be released without a assessment by a judge to ensure that we weigh the risks posed to public safety and security on an individual case-by-case basis. The last thing our community needs are decisions that further exacerbate public anxiety and risk to the people we serve. Releases of persons charged with high-level offenses place the community in grave danger and must be prevented. Violent and habitual offenders (especially burglars) need to remain in quarantine in jail. With many

Exhibit 1

Case 4:19-cv-00226 Document 54-2 Filed on 04/01/20 in TXSD Page 3 of 4 Case 3:20-cv-00832-E Document 27-1 Filed 04/13/20 Page 3 of 4 PageID 352
businesses closed due to the Harris County mandated shutdown, the last thing these businesses need is the release of habitual burglars to a target rich environment.
9. There are some public officials who believe no one should be in jail pre-trial. Using the pandemic to advance that agenda is wrong, and counter-productive to legitimate criminal justice reform efforts and public safety.
10. For example, it is my understanding that David Cruz, a man charged with murder, was recently released on a PR bond solely due to the current COVID-19 concerns in the jail population. This is extremely disturbing. Imagine how the victim’s family members and witnesses feel, not to mention the unnecessary anxiety caused to the general public on hearing that murder suspects are being released without proper consideration for its safety. We cannot forget about the plaintiffs that are not in this lawsuit, the victims.
11. As illustrated above, release orders based solely on the amount of bail would place the public at risk. I agree with Plaintiffs that generally people should not be held behind bars simply because of their inability to post a bail. Instead, an assessment of the risk to public safety, risk of reoffending, and risk of flight, should be the determining factors. In Harris County, it is common knowledge that too often magistrates and judges fail to assess these risk factors and arbitrarily assign PR and low bond in cases where the individuals are facing charges for violent crimes, have previous convictions for violent crimes, and/or are habitual offenders.
12. Likewise, releasing felons accused of domestic violence and forcing them under the shelter in place order to stay in their homes with their victim(s) is not only dangerous, but also cruel. This is especially true at this moment in time, when we are experiencing an uptick in domestic violence; sadly, domestic violence is a significant driver of homicides.
13. The danger is not limited to violent offenders. Take for example felony DWI offenses. Putting people accused of habitual drunk driving or intoxication manslaughter on the roads where they are free to drink and drive again places everyone at risk. I find it important to note that our city, county, and state are tragically already national leaders in DWI injury and fatal crashes.
14. In closing, I respectfully urge the Court to require a process which is transparent, includes all of the aforementioned considerations, and also includes these measures: testing for COVID-19 to ensure that we are not spreading the virus unwittingly by releasing infected individuals out of a controlled and isolated environment; assurance of housing for those being released; and appropriate supervision. I would also urge that Harris County review alternatives to a mass release of dangerous persons as requested by the Plaintiffs, such as activating a standalone jail facility for isolation purposes. COVID-19 is not the only infectious disease that afflicts county jails. The type of drastic measures requested by the Plaintiffs should not be granted without first considering other options.
Exhibit 1

Case 4:19-cv-00226 Document 54-2 Filed on 04/01/20 in TXSD Page 4 of 4 Case 3:20-cv-00832-E Document 27-1 Filed 04/13/20 Page 4 of 4 PageID 353

I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability.

Date: ____________________

_________________________________ Art Acevedo Houston Police Chief Houston Police Department

Exhibit 1

Case 3:20-cv-00832-E Document 27-2 Filed 04/13/20 Page 1 of 3 PageID 354

Case 3:20-cv-00832-E Document 27-2 Filed 04/13/20 Page 2 of 3 PageID 355

Case 3:20-cv-00832-E Document 27-2 Filed 04/13/20 Page 3 of 3 PageID 356

Case 4:19-cv-00226 Document 54-4 Filed on 04/01/20 in TXSD Page 1 of 3 Case 3:20-cv-00832-E Document 27-3 Filed 04/13/20 Page 1 of 3 PageID 357
EXHIBIT 3

Case 4:19-cv-00226 Document 54-4 Filed on 04/01/20 in TXSD Page 2 of 3 Case 3:20-cv-00832-E Document 27-3 Filed 04/13/20 Page 2 of 3 PageID 358
EXHIBIT 3

Case 3:20-cv-00832-E Document 27-3 Filed 04/13/20 Page 3 of 3 PageID 359

Case 4:19-cv-00226 Document 54-5 Filed on 04/01/20 in TXSD Page 1 of 2 Case 3:20-cv-00832-E Document 27-4 Filed 04/13/20 Page 1 of 2 PageID 360
EXHIBIT 4

Case 3:20-cv-00832-E Document 27-4 Filed 04/13/20 Page 2 of 2 PageID 361

Case 3:20-cv-00832-E Document 27-5 Filed 04/13/20 Page 1 of 4 PageID 362

Case 4:19-cv-00226 Document 54-6 Filed on 04/01/20 in TXSD Page 2 of 4 Case 3:20-cv-00832-E Document 27-5 Filed 04/13/20 Page 2 of 4 PageID 363
EXHIBIT 5

Case 4:19-cv-00226 Document 54-6 Filed on 04/01/20 in TXSD Page 3 of 4 Case 3:20-cv-00832-E Document 27-5 Filed 04/13/20 Page 3 of 4 PageID 364
EXHIBIT 5

Case 4:19-cv-00226 Document 54-6 Filed on 04/01/20 in TXSD Page 4 of 4 Case 3:20-cv-00832-E Document 27-5 Filed 04/13/20 Page 4 of 4 PageID 365
EXHIBIT 5

Case 4:19-cv-00226 Document 54-7 Filed on 04/01/20 in TXSD Page 1 of 3 Case 3:20-cv-00832-E Document 27-6 Filed 04/13/20 Page 1 of 3 PageID 366
EXHIBIT 6

Case 4:19-cv-00226 Document 54-7 Filed on 04/01/20 in TXSD Page 2 of 3 Case 3:20-cv-00832-E Document 27-6 Filed 04/13/20 Page 2 of 3 PageID 367
EXHIBIT 6

Case 3:20-cv-00832-E Document 27-6 Filed 04/13/20 Page 3 of 3 PageID 368

Case 4:19-cv-00226 Document 54-8 Filed on 04/01/20 in TXSD Page 1 of 3 Case 3:20-cv-00832-E Document 27-7 Filed 04/13/20 Page 1 of 3 PageID 369

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF FORT WORTH POLICE CHIEF EDWIN KRAUS

1. My name is Edwin Kraus. I currently serve as Chief of the Fort Worth Police Department, and I have served in this role since May, 2019.
2. I lead a department of 1,712 sworn law enforcement officers and 512 civilian support personnel.
3. As the number of coronavirus cases explodes across the nation, an increasing number of police departments around the country are experiencing shortages in staffing and resources, as police ranks become sick with or exposed to the coronavirus. This concerning trend raises the issue of how Texas police agencies may hold steadfast to safeguard their communities, even as the virus spreads among law enforcement officers whose work puts them at increased risk of infection.
4. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons on personal recognizance bonds from the Harris County Jail.
5. Pursuant to Governor Greg Abbott’s executive order issued on March 29th, 2020, I understand that no authority may release any person, who is arrested or previously convicted of a crime that involves physical violence or the threat

EXHIBIT 7

Case 4:19-cv-00226 Document 54-8 Filed on 04/01/20 in TXSD Page 2 of 3 Case 3:20-cv-00832-E Document 27-7 Filed 04/13/20 Page 2 of 3 PageID 370
of physical violence, on personal bond, and I believe low-level, non-violent inmates have already been released from the Harris County Jail, leaving only the violent and pervasive felony offenders.
6. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such releases would strain already limited law enforcement resources and pose a danger to all Texans.
7. Even though this pandemic is unprecedented, the release of potentially dangerous felons at a time when law enforcements agencies are limited in staffing and resources does not appropriately serve the public at large.
8. I believe these felons, if released, would endanger their communities and further stretch the limited resources of police departments, putting a bigger strain on the local population. In my twenty-seven years of experience in law enforcement, I know that the unsecured pretrial release of individuals without any bond conditions, especially those accused of serious felonies, directly leads to an increase in violent crime within surrounding communities. For example, in February of 2020, Jacques Dshawn Smith murdered two people and injured an infant in the Dallas Fort Worth metroplex, within one week after being released on bail in Dallas County.
9. Protecting local Texas communities from recidivistic crime is paramount during this time in which members of the public are particularly vulnerable, including the elderly, victims of domestic violence and burglaries, given that food, shelter, and essential items to carry on a normal quality of life, such as vehicles and money, are limited during this rapidly developing pandemic. Priority safety considerations must also be given to the victims and witnesses of these arrested suspects and convicted offenders, since the unrestricted release of these inmates directly jeopardizes their wellbeing.
10. The release of felons, who were arrested or convicted of domestic violence, inevitably forces victims to shelter in place within the same homes as their abusers, leading to dangerous escalations in life-safety issues for a multitude of victims as well as their minor children.
11. Upon their release, arrested or convicted felons of non-violent offenses, such as burglaries of habitation, building, or vehicle, are provided with a target-rich environment in the Dallas Fort Worth metroplex, since many, if not all, nonessential business operations are presently suspended and unmanned.
12. The general Dallas Fort Worth population is susceptible to new online or telephone scams involving the coronavirus, since residents around the
EXHIBIT 7

Case 4:19-cv-00226 Document 54-8 Filed on 04/01/20 in TXSD Page 3 of 3 Case 3:20-cv-00832-E Document 27-7 Filed 04/13/20 Page 3 of 3 PageID 371
metroplex are currently under sheltering in place orders at home. Released fraudsters are, therefore, presented with new opportunities to prey on these Texans, in particular the elderly, during this epidemic.
13. The personal recognizance bond release of felons from the Harris County Jail, who were arrested or convicted of either violent or non-violent crimes, severely compromises the orderly operation of the Texas criminal justice system and wholly contradicts the requirements established by the Code of Criminal Procedure, which mandates bond conditions must be imposed for certain crimes. Such a release also threatens the safety of Texas communities with recidivistic crimes and unjustly disregards the wellbeing of crime victims and witness.
14. For these reasons, I believe releasing felons into the community would not serve the best interest of the public in our current environment and endangers the public, further straining already limited resources.

March 31, 2020

Chief Edwin Kraus Fort Worth Police Department

EXHIBIT 7

Case 4:19-cv-00226 Document 54-9 Filed on 04/01/20 in TXSD Page 1 of 2 Case 3:20-cv-00832-E Document 27-8 Filed 04/13/20 Page 1 of 2 PageID 372

Garland Police Department
1891 Forest Lane Garland, Texas 75042
972-485-4846

Jeff Bryan Chief of Police

March 31, 2020
TO THE HONORABLE JUDGE LEE H. ROSENTHAL,
I am writing this letter in support of Chief Art Acevedo of the Houston Police Department. It is my understanding that there is a lawsuit pending in the United States District Court Southern District of Texas, Houston Division in Case No. 4:19-cv-00226 (Class Action) seeking to release over 4,000 felons from the Harris County Jail.
Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such release would strain the already limited law enforcement resources and pose a danger to Texans. I believe if released, these felons would endanger their communities that stretch the limited resources of police departments, putting a bigger strain on the community. The strain will not only be felt in Houston. Historically our jurisdiction has been impacted by organized crime crews from Houston and Harris County traveling to our community committing jugging offenses, burglaries and burglaries from motor vehicles, theft offenses, and a wide range of organized criminal activities. The release of inmates in Harris County will ultimately have an adverse impact on our community and throughout Texas, because the request does not include safeguards for ensuring these suspects and felons remain in Houston after their release.
We are in unprecedented times and the men and women serving in the police department have risked their lives to protect and serve during these trying times. Police departments are working on limited resources. If these high-level offenders are released, the resources will be stretched even further. There is a high likelihood that some of the prisoners that are released will subsequently commit more crimes. We must prevent this from occurring. We will not be able to keep up with demand and the high likelihood of repeat offenses.
The offenders that remain in the jail should not be released without an individual judicial risk assessment balancing the alleged risk of harm to the offender due to the Coronavirus versus the risk of
EXHIBIT 8

Case 4:19-cv-00226 Document 54-9 Filed on 04/01/20 in TXSD Page 2 of 2 Case 3:20-cv-00832-E Document 27-8 Filed 04/13/20 Page 2 of 2 PageID 373 harm to public safety if they are released or the consideration of other alternatives like testing and isolation of positive inmates within the jail or the opening of another jail facility. We urge the Court to require a process which is transparent, includes all of the aforementioned considerations, and includes measures for testing inmates for COVID-19 to avoid spreading the virus unwittingly by releasing infected individuals out of a controlled and isolated environment. We urge the Court to review alternatives to a mass release of dangerous persons as requested by this lawsuit, such as activating a standalone jail facility for isolation purposes. The type of drastic measures requested by the Plaintiffs in this lawsuit should not be granted without first considering other options. Thank you for your consideration,
Jeff Bryan Chief of Police Garland Police Department
Garland, Texas 1891 Forest Lane Office (972) 205-2011
Email: bryanj@garlandtx.gov
EXHIBIT 8

Case 4:19-cv-00226 Document 54-10 Filed on 04/01/20 in TXSD Page 1 of 3 Case 3:20-cv-00832-E Document 27-9 Filed 04/13/20 Page 1 of 3 PageID 374
EXHIBIT 9

Case 4:19-cv-00226 Document 54-10 Filed on 04/01/20 in TXSD Page 2 of 3 Case 3:20-cv-00832-E Document 27-9 Filed 04/13/20 Page 2 of 3 PageID 375
EXHIBIT 9

Case 3:20-cv-00832-E Document 27-9 Filed 04/13/20 Page 3 of 3 PageID 376

Case 3:20-cv-00832-E Document 27-10 Filed 04/13/20 Page 1 of 2 PageID 377

Case 3:20-cv-00832-E Document 27-10 Filed 04/13/20 Page 2 of 2 PageID 378

Case 4:19-cv-00226 Document 54-12 Filed on 04/01/20 in TXSD Page 1 of 3 Case 3:20-cv-00832-E Document 27-11 Filed 04/13/20 Page 1 of 3 PageID 379

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF LEWISVILLE POLICE CHIEF KEVIN DEAVER

1. My name is Kevin Deaver. I currently serve as Chief of the Lewisville Police Department, and I have served in this role since August 2018.
2. I lead a department of 175 sworn law enforcement officers and 81 civilian support personnel. In addition to my role as Police Chief, I am a member of the Texas Police Chiefs Association and the International Association of Chiefs of Police, along with other local civic groups.
3. As the number of coronavirus cases explodes across the nation, an increasing number of police departments around the country are experiencing shortages in staffing and resources, as police ranks become sick with or exposed to the coronavirus. This concerning trend raises the issue of how Texas police agencies may hold steadfast to safeguard their communities, even as the virus spreads among law enforcement officers whose work puts them at increased risk of infection.
4. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons on personal recognizance bonds from the Harris County Jail.

EXHIBIT 11

Case 4:19-cv-00226 Document 54-12 Filed on 04/01/20 in TXSD Page 2 of 3 Case 3:20-cv-00832-E Document 27-11 Filed 04/13/20 Page 2 of 3 PageID 380
5. Pursuant to Governor Greg Abbott’s executive order issued on March 29th, 2020, I understand that no authority may release any person, who is arrested or previously convicted of a crime that involves physical violence or the threat of physical violence, on personal bond, and I believe low-level, non-violent inmates have already been released from the Harris County Jail, leaving only the violent and pervasive felony offenders.
6. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such releases would strain already limited law enforcement resources and pose a danger to all Texans.
7. Even though this pandemic is unprecedented, the release of potentially dangerous felons at a time when law enforcements agencies are limited in staffing and resources does not appropriately serve the public at large.
8. I believe these felons, if released, would endanger their communities and further stretch the limited resources of police departments, putting a bigger strain on the local population. In my 32 years of experience in law enforcement, I know that the unsecured pretrial release of individuals without any bond conditions, especially those accused of serious felonies, directly leads to an increase in violent crime within surrounding communities. For example, in February of 2020, Jacques Dshawn Smith allegedly murdered two people and injured an infant in the Dallas Fort Worth metroplex, within one week after being released on bail in Dallas County.
9. Protecting local Texas communities from recidivistic crime is paramount during this time in which members of the public are particularly vulnerable, including the elderly, victims of domestic violence and burglaries, given that food, shelter, and essential items to carry on a normal quality of life, such as vehicles and money, are limited during this rapidly developing pandemic. Priority safety considerations must also be given to the victims and witnesses of these arrested suspects and convicted offenders, since the unrestricted release of these inmates directly jeopardizes their wellbeing.
10. The release of felons, who were arrested or convicted of domestic violence, inevitably forces victims to shelter in place within the same homes as their abusers, leading to dangerous escalations in life-safety issues for a multitude of victims as well as their minor children.
11. Upon their release, arrested or convicted felons of non-violent offenses, such as burglaries of habitation, building, or vehicle, are provided with a target-rich environment in the Dallas Fort Worth metroplex, since many, if not all, nonessential business operations are presently suspended and unmanned.
EXHIBIT 11

Case 4:19-cv-00226 Document 54-12 Filed on 04/01/20 in TXSD Page 3 of 3 Case 3:20-cv-00832-E Document 27-11 Filed 04/13/20 Page 3 of 3 PageID 381
12. The general Dallas Fort Worth population is susceptible to new online or telephone scams involving the coronavirus, since residents around the metroplex are currently under sheltering in place orders at home. Released fraudsters are, therefore, presented with new opportunities to prey on these Texans, in particular the elderly, during this epidemic.
13. The personal recognizance bond release of felons from the Harris County Jail, who were arrested or convicted of either violent or non-violent crimes, severely compromises the orderly operation of the Texas criminal justice system and wholly contradicts the requirements established by the Code of Criminal Procedure, which mandates bond conditions must be imposed for certain crimes. Such a release also threatens the safety of Texas communities with recidivistic crimes and unjustly disregards the wellbeing of crime victims and witness.
14. For these reasons, I believe releasing felons into the community would not serve the best interest of the public in our current environment and endangers the public, further straining already limited resources.

Date: __M__a_r_c_h__3_1_,_2_0_2_0_____

_________________________________ [Signature]

EXHIBIT 11

Case 4:19-cv-00226 Document 54-13 Filed on 04/01/20 in TXSD Page 1 of 2 Case 3:20-cv-00832-E Document 27-12 Filed 04/13/20 Page 1 of 2 PageID 382
EXHIBIT 12

Case 3:20-cv-00832-E Document 27-12 Filed 04/13/20 Page 2 of 2 PageID 383

Case 4:19-cv-00226 Document 54-14 Filed on 04/01/20 in TXSD Page 1 of 2 Case 3:20-cv-00832-E Document 27-13 Filed 04/13/20 Page 1 of 2 PageID 384
EXHIBIT 13

Case 3:20-cv-00832-E Document 27-13 Filed 04/13/20 Page 2 of 2 PageID 385

Case 4:19-cv-00226 Document 54-15 Filed on 04/01/20 in TXSD Page 1 of 3 Case 3:20-cv-00832-E Document 27-14 Filed 04/13/20 Page 1 of 3 PageID 386
EXHIBIT 14

Case 4:19-cv-00226 Document 54-15 Filed on 04/01/20 in TXSD Page 2 of 3 Case 3:20-cv-00832-E Document 27-14 Filed 04/13/20 Page 2 of 3 PageID 387
EXHIBIT 14

Case 4:19-cv-00226 Document 54-15 Filed on 04/01/20 in TXSD Page 3 of 3 Case 3:20-cv-00832-E Document 27-14 Filed 04/13/20 Page 3 of 3 PageID 388
EXHIBIT 14

Case 4:19-cv-00226 Document 54-20 Filed on 04/01/20 in TXSD Page 1 of 3 Case 3:20-cv-00832-E Document 27-15 Filed 04/13/20 Page 1 of 3 PageID 389

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF Andy Kahan
1. My name is Andy Kahan, I currently serve as Director of Victim Services and Advocacy for Crime Stoppers of Houston. I have served in this role since June 2018. Prior to that I was the Victim Advocate for the Mayor of Houston and the Houston Police Department from 1992-2018. During my tenure I have enacted over 20 Legislative Bills to enhance victims’ rights and public safety. I have been recognized for my work as a Victim Advocate from the United States Department of Justice-Office for Victims of Crime as the first recipient of The Ronald Reagan Public Policy Award. I have also been the recipient of The Foundation for Improvement for Justice Award, The National Office of Victim Assistance Office-The Marlene Young Distinguished Leadership Award and The National Organization of Parents of Murdered Children Allied Professional Award.
2. My primary job responsibilities at Crime Stoppers are to assist victims of crime navigate through the criminal justice system, advocate on their behalf in regards to parole reviews and bring attention to unsolved cases utilizing Crime Stoppers tip line.
3. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons from the Harris County Jail.
4. Crime Stoppers focus is on public safety, justice and the rights of crime victims. During the COVID-19 crisis regarding the potential ‘compassionate’ release of thousands of accused offenders not once has there been any input sought by the powers to be from victim service providers and or advocates regarding the rights of crime victims and how such a massive release would no doubt jeopardize their safety in a myriad of ways.

EXHIBIT 15 EXHIBIT 19

Case 4:19-cv-00226 Document 54-20 Filed on 04/01/20 in TXSD Page 2 of 3 Case 3:20-cv-00832-E Document 27-15 Filed 04/13/20 Page 2 of 3 PageID 390
5. I believe that such releases would have a harmful effect on victims and in particular domestic violence victims who have courageously sought and received protective orders only to discover the offender has been released on a PR bond. You can’t imagine the emotional turmoil a majority of our law-abiding citizens are undergoing as a result of this national pandemic only to be compounded with the potential release of thousands of felons.
6. The Texas Code of Criminal Procedure Chapter 56 Article 56.02 titled Crime Victims Rights specifically states (a) (2) the right to have a magistrate take the safety of the victim and or their family into consideration as an element in fixing the amount of bail for the accused in addition to the right to be informed by the District Attorney’s Office of relevant court proceedings. A mass release would no doubt potentially violate the above and place an undoable burden on the criminal justice system to try to enforce Crime Victims Rights as per the Texas Code of Criminal Procedure.
7. Releasing offenders who have been charged with cases directly implicated in Domestic Violence will undoubtably and inevitably result in re-victimization for segments of our population. The Montgomery County District Attorney’s Office reports an approximately 35% increase in Domestic Violence cases filed in March 2020 compared to March 2019. No doubt the rise may be due to increased stress and more access to victims by offenders.
8. Crime Stoppers has uncovered numerous examples of Felony Violent Offenders being released on PR Bonds within the last week. In some cases, offenders were already on PR Bonds for other cases, yet were inexplicably granted another PR Bond. One case was an offender charged with Murder that was released on a PR Bond strictly due to fear of contacting COVID-19. Adam Campuzano was granted a Felony PR Bond for Felon in Possession of a Weapon (firearm) and Evading Arrest on March 23. Believe it or not he was already on a PR Bond for Harboring a Runaway Child and has 3 prior Felony Convictions of which 2 resulted in being sent to prison. Chaison Turner was granted Deferred Adjudication for Assault with Bodily Injury. While on deferred probation he was granted a PR Bond for Carrying a Handgun in January 2020. He was again given a PR Bond March 20th, for Aggravated Assault of a Peace Officer. Somehow, he still remains on Deferred Adjudication for Assault with Bodily Injury. Other examples can be provided upon request.
9: The definition of non-violent offender needs to be clarified. Burglary of a Habitation, Burglary of a Building, Burglary of a Motor Vehicle, Unauthorized use of a Motor Vehicle, DWI, Theft and a multitude of other offenses wreck more havoc on a community than most violent crimes. Several months ago, an overflow room of business owners packed a Heights neighborhood meeting with police officials complaining about being repeatedly victimized by the same offenders who were often released before the paperwork was even filed. By releasing offenders who are classified as ‘Non-Violent’ would be simply to invite more victimization of the law-abiding public.
10: Crime Stoppers is of the firm believe a mass release of felons from prison would continue to wreak havoc on our community, especially considering the turmoil all of us are under based upon COVID-19. During the past year, Felony District Court Judges have taken the
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Misdemeanor Bond Reform of which we totally support and have used the Federal Court decision to grant PR Bonds to repeat felons who in some cases have continued their criminal career. Some of these decisions have led to the death of our citizens. We are respectfully requesting on behalf of our constituents, i.e. the public that a mass release of felons will simply endanger lives and put us all at risk. 11: We firmly believe elected District Judges should be able to look at each case in their domain to determine suitability for release back to the community. To remove discretion is not in the interest of public safety and certainly not in the best interest of those who have been victimized by offenders now considered for release by this edict. 12: Crime Stoppers of Houston mission is to solve and prevent serious crime in Harris County in partnership with residents, media and law enforcement. We are the nations largest and most successful public safety/crime prevention non-profit nationally. We strongly believe the mass release of felons back into the community, especially under the current circumstances would not be in the best interest of public safety. 13: The community is already on edge about the prospect of looters and becoming a victim of a crime of opportunity (burglars (habitation, building, and vehicle) fraudsters). Releasing these type of offenders will only increase the anxiety of the community possibly creating tragic “stand your ground” situations. 14: A mass release of felons without an assessment by a judge and input by victim advocates will undoubtedly put victims at future risk and will create future victims. I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability.
Andy Kahan Director of Victim Services and Victim Advocacy Crime Stoppers of Houston 713-923-5601
EXHIBIT 15 EXHIBIT 19

 
 Case 3:20-cv-00832-E Document 33 Filed 04/15/20 Page 1 of 40 PageID 406

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS WHITE, §

TESMOND MCDONALD, MARCELO §

PEREZ, ROGER MORRISON, KEITH

§

BAKER, PAUL WRIGHT, TERRY

§

MCNICKELS, AND JOSE MUNOZ; ON §

THEIR OWN AND ON BEHALF OF A

§

CLASS OF SIMILARLY SITUATED

§

PERSONS;

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF MARIAN BROWN, IN HER OFFICIAL CAPACITY; DALLAS COUNTY, TEXAS,

§ §

Respondent/Defendant.

§

Case No. 3:20-cv-00832

STATE INTERVENORS’ (1) MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6); (2) OPPOSITION TO PLAINTIFFS’/PETITIONERS’ MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND WRIT OF HABEAS
CORPUS; AND (3) OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 3:20-cv-00832-E Document 33 Filed 04/15/20 Page 2 of 40 PageID 407
TABLE OF CONTENTS Table of Authorities ....................................................................................................... ii Introduction ................................................................................................................... 1 Procedural Background ................................................................................................. 3 Argument ....................................................................................................................... 4
I. Plaintiffs § 1983 Claims Should be Dismissed as they are Subject to the PLRA’s Restrictions and as Plaintiffs did Not Follow the PLRA’s Required Procedure for Obtaining a Prisoner Release Order................................................................................................. 4
II. Plaintiffs Failed to Exhaust Their Available Remedies As Required By the PLRA and 28 U.S.C. § 2241............................................... 6 A. Plaintiffs were Required to Exhaust Available Remedies Before Filing Their § 1983 Claims. .................................................... 6 B. Plaintiffs were Required to Exhaust Available Remedies Before Filing Their Habeas Petition. ................................................. 8
III. Plaintiffs Cannot Challenge the Conditions of Their Confinement Through a Habeas Petition. .................................................. 11
IV. Plaintiffs’ Motion for Class Certification Should be Denied Because a Mass Prisoner Release Order Inherently Hinges on Individualized Determinations About Which Prisoners Should be Released and on what Conditions Release is Appropriate.................... 15
V. Three Recent COVID-19-Related Prisoner Cases Highlight the Fatal Flaws in Plaintiffs’ Action. ................................................................ 21
VI. Releasing Felons During a Time of Crisis Endangers Public Safety and is Not in the Public Interest. .................................................... 28
Conclusion .................................................................................................................... 30 Certificate of Service.................................................................................................... 33
i

Case 3:20-cv-00832-E Document 33 Filed 04/15/20 Page 3 of 40 PageID 408
TABLE OF AUTHORITIES
Cases Adderly v. Wainwright,
272 F. Supp. 530 (M.D. Fla. 1967).......................................................................... 18 Barrientos v. Dallas Cty. Dist. Attorney's Office,
No. 3:12-CV-4753-O-BN, 2013 WL 1499382 (N.D. Tex. Jan. 18, 2013), report and recommendation adopted, No. 3:12-CV-4753-O-BN, 2013 WL 1501623 (N.D. Tex. Apr. 12, 2013) ................ 10 Booth v. Churner, 532 U.S. 731 (2001) ................................................................................................... 6 Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973) ................................................................................................. 21 Brown v. Plata, 563 U.S. 493 (2011) ................................................................................................... 5 Calderon v. Ashmus, 523 U.S. 740 (1998) ................................................................................................. 19 Califano v. Yamasaki, 442 U.S. 682 (1979) ................................................................................................. 15 Carafas v. LaVallee, 391 U.S. 234 (1968) ................................................................................................. 21 Coleman v. Newsom, No. 01-CV-01351-JST, 2020 WL 1675775, (E.D. Cal. Apr. 4, 2020) ............... 26, 27 Coleman v. Thompson, 501 U.S. 722 (1991) ......................................................................................... passim Comcast Corp. v. Behrend, 5 69 U.S. 27 (2013) ..................................................................................................... 18 Cook v. Hanberry, 596 F.2d 658 (5th Cir. 1979) ................................................................................... 11 Cruson v. Jackson Nat’l Life Ins. Co., 954 F.3d 240, 2020 WL 1443531 (5th Cir. Mar. 25, 2020) ................................... 15 Day v. McDonough, 547 U.S. 198 (2006) ................................................................................................. 13 Dickerson v. State of La., 816 F.2d 220 (5th Cir. 1987) ............................................................................... 9, 21 Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010) ................................................................................. 6, 8
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Ex parte Royall, 117 U.S. 241 (1886) ................................................................................................. 21
Ex parte Tom Tong, 108 U.S. 556 (1883) ................................................................................................. 11
Fuller v. Rich, 11 F.3d 61 (5th Cir. 1994) ..................................................................... 9 Gallegos-Hernandez v. United States,
688 F.3d 190 (5th Cir. 2012) ..................................................................................... 9 Gardner v. Sch. Bd. Caddo Par.,
958 F.2d 108 (5th Cir. 1992) ..................................................................................... 9 Gibbs v. Grimmette,
254 F.3d 545 (5th Cir. 2001) ................................................................................... 16 Glaus v. Anderson,
408 F.3d 382 (7th Cir. 2005) ................................................................................... 11 Gomez v. United States,
899 F.2d 1124 (11th Cir. 1990) ............................................................................... 11 Gonzalez v. Crosby,
545 U.S. 524 (2005) ................................................................................................. 13 Gonzalez v. Seal,
702 F.3d 785 (5th Cir. 2012) ................................................................................. 6, 8 Harris v. Nelson,
394 U.S. 286 (1969) ........................................................................................... 11, 13 Heck v. Humphrey,
512 U.S. 477 (1994) ........................................................................................... 13, 14 Hill v. McDonough,
547 U.S. 573 (2006) ................................................................................................. 14 Hilton v. Braunskill,
481 U.S. 770 (1987) ................................................................................................. 11 Hinojosa v. Horn,
896 F.3d 305 (5th Cir. 2018) ..................................................................................... 9 Holiday v. Johnson,
313 U.S. 342 (1941) ................................................................................................. 13 Holland v. Fla.,
560 U.S. 631 (2010) ................................................................................................. 21 Jennings v. Rodriguez,
138 S. Ct. 830 (2018) ............................................................................................... 20 Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) ..................................................................................... 6
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Jones v. Bock, 549 U.S. 199 (2007) ................................................................................................... 6
Mayle v. Felix, 545 U.S. 644 (2005) ................................................................................................. 13
McQuiggin v. Perkins, 569 U.S. 383 (2013) ................................................................................................. 21
Money v. J.B. Pritzker, No. 20-CV-2093, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020) ................................ 22
Montano v. Tex., 867 F.3d 540 (5th Cir. 2017) ................................................................................. 8, 9
Murray v. Carrier, 477 U.S. 478 (1986) ................................................................................................. 21
Nelson v. Campbell, 541 U.S. 637 (2004) ............................................................................................. 4, 14
Nettles v. Grounds, 830 F3d 922 (9th Cir. 2016) .............................................................................. 11, 14
Norton v. Parke, 892 F.2d 476 (6th Cir. 1989) ................................................................................... 20
Palma-Salazar v. Davis, 677 F.3d 1031 (10th Cir. 2012) ............................................................................... 11
Phillips v. Sheriff of Cook Cty., 828 F.3d 541 (7th Cir. 2016) ................................................................................... 17
Picard v. Connor, 404 U.S. 270 (1971) ................................................................................................... 9
Pierre v. United States, 525 F.2d 933 (5th Cir. 1976) ................................................................................... 26
Porter v. Nussle, 534 U.S. 516 (2002) ................................................................................................... 6
R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941) ................................................................................................. 28
Rose v. Lundy, 455 U.S. 509 (1982) ................................................................................................. 21
Ross v. Blake, 136 S. Ct. 1850 (2016) ............................................................................................... 6
Rouse v. Michigan, No. 2:17-CV-12276, 2017 WL 3394753 (E.D. Mich. Aug. 8, 2017) ........................ 20
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Russell v. Harris Cty., No. H-19-226, 2020 WL 1866835 (S.D. Tex. Apr. 14, 2020) .................................. 29
Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 WL 1815691 (S.D. Tex. Apr. 9, 2020) ........................... 25, 26
Schall v. Martin, 467 U.S. 253, 281 (1984) ......................................................................................... 19
Skinner v. Switzer, 562 U.S. 521 (2011) ................................................................................................. 14
Spina v. Aaron, 821 F.2d 1126 (5th Cir. 1987) ................................................................................. 14
Thomas v. Collins, 919 F.2d 333 (5th Cir. 1990) ................................................................................... 10
United States ex rel. Bowe v. Skeen, 107 F. Supp. 879 (N.D. W.Va. 1952)....................................................................... 20
United States v. Frady, 456 U.S. 152 (1982 .................................................................................................. 13
United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018) ............................................................................................. 19
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ..................................................................................... 15, 16, 18
Whitmore v. Arkansas, 495 U.S. 149, 161-66 (1990) .................................................................................... 19
Wilkinson v. Dotson, 544 U.S. 74 (2005) ................................................................................................... 14
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008 ................................................................................................ 28, 30
Wright v. Hollingsworth, 260 F.3d 357-59 (5th Cir 2001) ............................................................................. 6, 8
Yates v. Collier, 868 F.3d 354 (5th Cir. 2017) ................................................................................... 17
Statutes 18 U.S.C. § 3626......................................................................................................... 4, 5 18 U.S.C. § 3626(a)(3)(A) ............................................................................................... 5 18 U.S.C. § 3626(a)(3)(B) ............................................................................................... 5 18 U.S.C. § 3626(a)(3)(C)-(D)......................................................................................... 5 18 U.S.C. § 3626(a)(3)(E) ............................................................................................... 5
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18 U.S.C. § 3626(g)(2) .................................................................................................... 4 18 U.S.C. § 3626(g)(4) ................................................................................................ 4, 5 28 U.S.C. § 1331..................................................................................................... 14, 15 28 U.S.C. § 2241............................................................................................. 1, 7, 10, 14 28 U.S.C. § 2242........................................................................................................... 14 28 U.S.C. § 2244..................................................................................................... 22, 24 28 U.S.C. § 2244(d)(2) .................................................................................................. 24 28 U.S.C. § 2254............................................................................................... 15, 23, 25 28 U.S.C. § 2254(b)(1)(A) ............................................................................................. 24 28 U.S.C. § 2254(b)(1)(B) ............................................................................................. 24 28 U.S.C. § 2254(c)....................................................................................................... 24 28 U.S.C. §§ 2261-66.................................................................................................... 21 42 U.S.C. § 1983............................................................................................................. 1 42 U.S.C. § 1997e(a)....................................................................................................... 7 Other Authorities Brandon L. Garrett, Aggregation in Criminal Law, 95 CAL. L. REV. 383
(2007) .................................................................................................................. 21, 22 Rules Fed. R. Civ. P. 3 ........................................................................................................... 14 Fed. R. Civ. P. 7(a) ....................................................................................................... 14 Fed. R. Civ. P. 8 ........................................................................................................... 14 Fed. R. Civ. P. 10(a) ..................................................................................................... 14 Fed. R. Civ. P. 12(b)(6)................................................................................................... 1 Fed. R. Civ. P. 14 ......................................................................................................... 14 Fed. R. Civ. P. 23(a) ............................................................................................... 18, 27 Fed. R. Civ. P. 81(a)(4)................................................................................................. 15 Fed. R. Civ. P. 81(a)(4)(B)............................................................................................ 23
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The State of Texas, Governor of Texas, and Attorney General of Texas (“State Intervenors”) move to dismiss Plaintiffs’/Petitioners’ (“Plaintiffs”) Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief (“Complaint”) (ECF 1) under Fed. R. Civ. P. 12(b)(6) due to Plaintiffs’ failure to exhaust their available remedies.
In the alternative, the State Intervenors oppose (1) Plaintiffs’ Motion for a Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus (ECF 2-4), and (2) Plaintiffs’ Motion for Class Certification (ECF 17-18). Specifically, State Intervenors oppose all portions of these motions pertaining to the mass release of prisoners from Dallas County Jail.
INTRODUCTION Plaintiffs’ three claims—all brought under 42 U.S.C. § 1983 and 28 U.S.C. § 2241 (the writ of habeas corpus portion of their claims)—revolve around their argument that the conditions in Dallas County Jail violate the U.S. Constitution. The State Intervenors’ combined motion to dismiss and oppositions to Plaintiffs’ requests for emergency injunctive relief and class certification is limited to Plaintiffs’ attempt to depopulate Dallas County Jail via a mass release of prisoners. It is hoped that the Defendants, who are presumptively more knowledgeable about the innerworkings of their facilities, will write separately to respond to the merits of Plaintiffs’ action. But, as shown below, the Court need not reach the merits as Plaintiffs’ suit is rife with errors and other insurmountable procedural problems. First, Plaintiffs’ § 1983-based request for a prisoner release order is subject to the Prison Litigation Reform Act (“PLRA”)’s restrictions. But Plaintiffs did not follow
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the PLRA’s mandatory procedure for obtaining such relief. Nor has a three-judge court been convened to hear this issue, which is the only court with authority to enter such a prisoner release order under the PLRA.
Second, Plaintiffs must exhaust their available remedies before filing their § 1983 and habeas claims in federal court. Yet Plaintiffs made no meaningful attempt to bring their claims through the Dallas County Jail’s grievance procedures. Nor have Plaintiffs attempted to file their claims in Texas state court. Plaintiffs’ claims should be dismissed as they failed to exhaust their available remedies, which is a mandatory prerequisite to this suit.
Third, the sole function of a habeas petition is to grant release from imprisonment or custody. Yet Plaintiffs’ action, at its core, challenges the allegedly unlawful conditions at Dallas County Jail due to COVID-19. Binding precedent holds that an inmate cannot challenge his or her conditions of confinement via a habeas petition.
Fourth, Plaintiffs’ request for class relief in the form of a mass prisoner release inherently hinges on individualized determinations about which prisoners should be released and on what conditions release is appropriate. A person-by-person assessment would be necessary to avoid unleashing thousands of dangerous prisoners—many of whom, according to Plaintiffs, were likely recently exposed to COVID-19—upon Texas’ law-abiding citizens. These individualized issues overwhelm any common questions of law or fact and make this action particularly ill-suited to class-wide resolution.
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Fifth, three recent federal COVID-19 prisoner cases, Money v. J.B. Pritzker, Socal-Micha v. Longoria, and Coleman v. Newsom, confirm the State Intervenors’ position and highlight the fatal flaws in Plaintiffs’ action. The Illinois district court’s decision in Money v. J.B. Pritzker is particularly apt as the court analyzed effectively the exact same action presented here—a joint § 1983 civil complaint and a habeas petition seeking class certification and a mass prisoner release due to allegedly unconstitutional conditions in Illinois prisons brought upon by COVID-19. The Illinois court thoroughly rejected the lawsuit as both procedurally and substantively improper. The same conclusion is warranted here.
Finally, Plaintiffs’ request that the Court release all criminals from the jail— including murders, rapists, and gang members—during a time of public crisis endangers public safety. Thus, this request is not in the public interest.
PROCEDURAL BACKGROUND On April 13, 2020, the State Intervenors filed a motion to intervene in this action on the grounds that this suit impacts the State’s interests in, among other things, protecting its citizens from a largescale release of prisoners and protecting the public from the spread of COVID-19.1 During the next day’s telephone conference, the Court authorized the State Intervenors to file response papers by the April 15th deadline previously set for the Defendants,2 despite the fact that the State Intervenors’ motion to intervene would likely still be pending at that time.
1 See ECF 26–27. 2 ECF 14.
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ARGUMENT
I. Plaintiffs § 1983 Claims Should be Dismissed as they are Subject to the PLRA’s Restrictions and as Plaintiffs did Not Follow the PLRA’s Required Procedure for Obtaining a Prisoner Release Order.
The PLRA significantly limits the issuance of preliminary and permanent
injunctive relief for “civil action[s] with respect to prison conditions” like this one.3
The PLRA states that any award of preliminary or prospective relief must: (1) be
narrowly drawn; (2) extend no further than necessary to correct the violation of the
Federal right; and (3) be the least intrusive means necessary to correct the violation
of the Federal right.4 Further, before awarding such relief, the court must “give
substantial weight to any adverse impact on public safety or the operation of a
criminal justice system caused by the relief.”5
The PLRA also restricts a court’s ability to issue a prisoner release order6 and
specifies that the following procedure must be met before such an order is entered:
• Step #1: The presiding federal judge must: (1) issue an order for “less intrusive relief”; (2) give the defendant a “reasonable amount of time to comply with the . . . order[]”; and (3) find that this order “failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order.”7
3 See 18 U.S.C. § 3626; id. at § 3626(g)(2) (defining “civil action with respect to prison conditions” to mean “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison”); see also Nelson v. Campbell, 541 U.S. 637, 650 (2004). 4 18 U.S.C. § 3626(a)(1)–(a)(2). 5 Id. 6 The PLRA broadly defines a “prisoner release order” to cover “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” Id.at § 3626(g)(4). 7 Id. at § 3626(a)(3)(A).
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• Step #2: Once step #1 is met, either the party requesting relief or the presiding judge can request the convening of a three-judge court to determine whether a prisoner release order should be entered.8
• Step #3: The three-judge court then determines whether a prisoner release order should be entered, based on clear and convincing evidence that “(1) crowding is the primary cause of the violation of a Federal right[,] and (2) no other relief will remedy the violation of the Federal right.”9
In a federal civil action with respect to prison conditions, only a three-judge court can issue a prisoner release order.10 As the Supreme Court explained in Brown v. Plata, “[t]he authority to order release of prisoners . . . is a power reserved to a three-judge district court, not a single-judge district court.11
Plaintiffs’ motion for injunctive relief seeks the “release [of] all members of a subclass of medically vulnerable individuals” and the “release [of] additional Class Members . . . as needed to ensure that remaining persons incarcerated in the Dallas County Jail are under conditions consistent with CDC and public health guidance to prevent the spread of COVID-19.”12 But, only a three-judge court can award such relief under the PLRA‘s clear language and binding Supreme Court precedent. Thus, Plaintiffs’ request for a mass prisoner release should be denied.
8 Id. at § 3626(a)(3)(C)–(D). 9 Id.at § 3626(a)(3)(E). 10 Id. at § 3626(a)(3)(B). 11 563 U.S. 493, 500 (2011) (citing 18 U.S.C. § 3626(a)); see also id. at 511 (“By its terms, the PLRA restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population.’”) (quoting 18 U.S.C. § 3626(g)(4)). 12 ECF 2, 1–2.
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II. Plaintiffs Failed to Exhaust Their Available Remedies As Required By the PLRA and 28 U.S.C. § 2241. A. Plaintiffs were Required to Exhaust Available Remedies Before Filing Their § 1983 Claims. Under the PLRA, “no action shall be brought with respect to prison conditions
under section 1983 . . . by a prisoner confined in any jail . . . until such administrative
remedies as are available are exhausted.”13 “[T]he PLRA’s exhaustion requirement
applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some
other wrong.”14 Exhaustion is a mandatory prerequisite to filing suit.15
The Fifth Circuit requires inmates to fully exhaust the applicable prison
grievance procedures before filing a suit in federal court.16 Courts have no discretion
to excuse an inmate’s failure to properly exhaust the prison grievance process, even
to take “special circumstances” into account.17
The Dallas County Jail’s Inmate Handbook sets out the grievance procedure
applicable to Plaintiffs’ claims.18 Per the Handbook, Inmates have various methods
13 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007); Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). 14 Porter v. Nussle, 534 U.S. 516, 532 (2002). 15 Booth v. Churner, 532 U.S. 731, 739 (2001). 16 Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (“It is irrelevant whether exhaustion is achieved during the federal proceeding. Pre-filing exhaustion is mandatory, and the case must be dismissed if available administrative remedies were not exhausted.”); Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010) (finding that mere “substantial compliance” with administrative procedures is insufficient exhaustion); see also Johnson, 385 F.3d at 515; Wright v. Hollingsworth, 260 F.3d 357, 358–59 (5th Cir 2001). 17 Ross v. Blake, 136 S. Ct. 1850, 1856–57 (2016); Gonzalez, 702 F.3d at 788. 18 Ex. 1 at 12-14. Information about how to submit a grievance can also be found at multiple electronic kiosks located throughout the prison and on channel 3 of Inmate TV. Id. at 12.
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of submitting a grievance.19 Once submitted, the Inmate Grievance Board reviews
the grievance and provides a status response to the inmate.20 The Board has 15 days
to submit its initial status response and 60 days to submit a final response.21 An
inmate who has not received a timely response from the Board can submit a written
request for the response.22 The Handbook specifies that all emergency grievances
“will be handled immediately.”23
An inmate who disagrees with the Board’s response may appeal.24 The first
level of appeal is to the Quality Assurance Commander.25 The Commander has 15
days to respond.26 If this does not occur, the inmate can request a response.27
If the inmate disagrees with the Commander’s response, the inmate can file a
second appeal, this time to the Assistant Chief Deputy for the Special Services
Bureau.28 The Assistant Chief Deputy has 30 days to render a decision, which is
final.29 It is only at this point that the grievance process has been fully exhausted.30
As the Handbook explicitly states:
IF YOU DO NOT RECEIVE A RESPONSE TO YOUR GRIEVANCE, FIRST LEVEL APPEAL, AND/OR SECOND LEVEL APPEAL WITHIN THE TIME LIMITS SET FORTH ABOVE, YOU MUST PROCEED TO THE NEXT STEP OF THE GRIEVANCE
19 Id. at 12 (noting that a prisoner can submit a grievance: (1) via the jail visitation kiosks located throughout every facility; (2) through a written grievance form provided by jail staff; or (3) by any other written means). 20 Id. at 13. 21 Id. 22 Id. 23 Id. 24 Id. at 13–14. 25 Id. 26 Id. 27 Id. at 14. 28 Id. 29 Id. 30 See id. at 12–14.
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PROCESS IN ORDER TO FULLY EXHAUST YOUR ADMINISTRATIVE REMEDIES.31
Here, Plaintiffs’ declarations confirm that they failed to fully exhaust
administrative remedies prior to filing this suit.32 Plaintiffs Morrison, Baker, Wright,
Munoz, and McNickles made no attempt to go through the Dallas County Jail’s
grievance procedures.33 And while Plaintiffs Sanchez, White, MacDonald, and Perez
possibly began the grievance process, they filed suit before the process concluded and
present no evidence suggesting otherwise.34 Thus, none of the Plaintiffs have shown
that they exhausted their administrative remedies as the PLRA requires.35 This is
fatal to their § 1983 claims.36 And this result should not shock Plaintiffs’ counsel from
the ACLU whose own PLRA practice guide warns “[i]f you file a lawsuit in federal
court before taking your complaints through every step of your prison’s grievance
procedure, it will almost certainly be dismissed.”37
B. Plaintiffs were Required to Exhaust Available Remedies Before Filing Their Habeas Petition.
Plaintiffs bring their habeas petition under 28 U.S.C. § 2241.38 It is well settled
that petitioners must exhaust their administrative and state court remedies before
filing a federal habeas petition based upon this provision.39 The exhaustion
31 Id. at 14. 32 See ECF 1.2–1.11. 33 See ECF 1.6–1.10. 34 See ECF 1.1–1.5. 35 See Gonzalez, 702 F.3d at 788; Dillon, 596 F.3d at 268; Wright, 260 F.3d at 358–59. 36 See id. 37 American Civil Liberties Union, Know Your Rights: The Prison Litigation Reform Act (PLRA), available at https://www.aclu.org/sites/default/files/images/asset_upload_file79_25805.pdf) (last visited Apr. 14, 2020). 38 ECF 1, ¶ 10. 39 Montano v. Tex., 867 F.3d 540, 542 (5th Cir. 2017) (“[I]it has long been settled that a section 2241 petitioner must exhaust available state court remedies before a federal court will entertain a
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requirement is vital to “preserv[ing] the respective roles of state and federal
governments and avoid[ing] unnecessary collisions between sovereign powers.”40
Exceptions to the exhaustion rule apply where (1) “the available
administrative remedies either are unavailable or wholly inappropriate to the relief
sought” or (2) “the attempt to exhaust such remedies would itself be a patently futile
course of action.”41 A petitioner bears the burden of demonstrating that an exception
to the exhaustion rule is warranted.42
As explained above, Plaintiffs failed to exhaust their administrative
remedies.43 Nor have they attempted to argue that an exception to the exhaustion
rule for administrative remedies applies. This is fatal to their habeas petition.44
Further, Plaintiffs made no discernable effort to bring their claims in state
court.45 Plaintiffs’ sole argument for an exception is that, in their minds, state courts
are just too slow to afford a “sufficiently swift resolution of their constitutional
challenge to state detention.”); Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012) (“We have held that a federal prisoner filing a § 2241 petition must first pursue all available administrative remedies.”); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (“A prisoner. . . is required to exhaust his administrative remedies before seeking habeas relief in federal court under 28 U.S.C. § 2241.”); Dickerson v. State of La., 816 F.2d 220, 225 (5th Cir. 1987) (“[A]lthough section 2241 establishes jurisdiction in the federal courts to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner.”). 40 Montano, 867 F.3d at 546; cf. Picard v. Connor, 404 U.S. 270, 275-76 (1971). 41 Hinojosa v. Horn, 896 F.3d 305, 314 (5th Cir. 2018) (per curiam) (quoting Fuller, 11 F.3d at 62). 42 Fuller, 11 F.3d at 62 (citing Gardner v. Sch. Bd. Caddo Par., 958 F.2d 108, 112 (5th Cir. 1992)). 43 Supra, Part II.A. 44 See Gallegos-Hernandez, 688 F.3d at 194; Fuller, 11 F.3d at 62. 45 For just one example, Art. 11.25 of the Texas Code of Criminal Procedure provides that when a judge, upon investigation, is satisfied “that a person in legal custody is afflicted with a disease which will render a removal necessary for the preservation of life, an order may be made for the removal of the prisoner to some other place where his health will not be likely to suffer; or he may be admitted to bail when it appears that any species of confinement will endanger his life.” Plaintiffs have not availed themselves of this, or the many other, state court remedies or procedures at their disposal.
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claims.”46 Plaintiffs’ sole “evidence” on this point is a declaration from one of
Plaintiffs’ attorneys in which she states that, prior to COVID-19, a habeas petition
may take months to run through the Texas state courts and that some Texas courts
are “slowing their operations in response to the COVID-19 pandemic.”47 Yet a state
court’s adjudication of habeas petition pre-COVID-19 is not comparable to their
adjudication of habeas petitions post-COVID-19. The State Intervenors’ counsels’
experience has been that both federal and state courts have been willing to move
heaven and earth to quickly resolve COVID-19 cases such as this one (often at the
expense of counsels’ sleep schedules).48
Plaintiffs were required to exhaust all available remedies before filing a habeas
petition in federal court. They failed to do so, and they present no meaningful
evidence that an exception to the exhaustion requirement applies. This failure
warrants the dismissal of Plaintiffs’ § 2241 claims.49
46 ECF 1, ¶ 86. 47 ECF 1.11, ¶¶ 3–4. 48 For example, the rapid pace of Texas Criminal Defense Lawyers Assoc., et al. v. Greg Abbott, et al.— a Texas state court case in which both the undersigned and Mr. Segura of the ACLU are counsel— clearly displays that state judges are hearing COVID-19 related issues quickly. On April 8, 2020, the plaintiffs filed a petition and motion for retraining order challenging Governor’s Abbott’s Executive Order GA 13 limiting the release of violent felons during the pandemic. On April 10, 2020, the trial court held an emergency hearing on the motion. Several hours later, the trial court enjoined GA 13. The very next day, after an application from the State defendants, the Texas Supreme Court stayed the trial court’s restraining order. Another example is Ex part Luis Arroyo which was filed on April 14, 2020. In that case, a pre-trial inmate filed a writ of habeas corpus directly before the Court of Criminal Appeals challenging his pretrial release as it related to GA 13 and COVID-19. The Court of Criminal Appeals accepted the application that same day. These examples just highlight that Texas courts are open for business and moving quickly to resolve all claims, especially those related to COVID-19. The State Intervenors can provide exhibits to support this point upon request. 49 See, e.g., Barrientos v. Dallas Cty. Dist. Attorney's Office, No. 3:12-CV-4753-O-BN, 2013 WL 1499382, at *1 (N.D. Tex. Jan. 18, 2013) (“A federal habeas petition that contains unexhausted claims must be dismissed in its entirety), report and recommendation adopted, No. 3:12-CV-4753-O-BN, 2013 WL 1501623 (N.D. Tex. Apr. 12, 2013) (citing Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990).
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III. Plaintiffs Cannot Challenge the Conditions of Their Confinement Through a Habeas Petition. In their Petition, Plaintiffs argue that current conditions in the Harris County
Jail violate the Eighth and Fourteenth Amendments.50 But that kind of claim is not cognizable in habeas.51 The Fifth Circuit held long ago that the appropriate remedy for a condition-of-confinement violation “would be to enjoin continuance of any practices or require correction of any conditions.”52 It “would not . . . entitle[] [a prisoner] to release from prison.”53 Plaintiffs therefore may not work around the PLRA defects described above by dressing up their civil claims (under 42 U.S.C. § 1983) in the garb of habeas corpus relief (under 28 U.S.C. § 2241).54
Civil actions and habeas corpus review are two entirely distinct proceedings.55 A habeas corpus proceeding is neither civil56 nor criminal.57 “Essentially, the [habeas] proceeding is unique.”58 A habeas petitioner may not file a habeas petition in a criminal case; he likewise may not file a habeas application in a civil action. Plaintiffs therefore may not circumvent the PLRA’s limits on civil actions by manufacturing this “hybrid” action that purports to seek habeas relief.
50 See ECF 1, ¶¶ 77, 79–80, 82–83, 85, 88–92. 97–101. 51 See, e.g., Nettles v. Grounds, 830 F3d 922, 927–34 (9th Cir. 2016) (en banc); Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012); Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005). 52 Cook v. Hanberry, 596 F.2d 658, 660 (5th Cir. 1979) (per curiam) 53 Id. 54 ECF 1, ¶¶ 10, 84–87. 55 Hilton v. Braunskill, 481 U.S. 770, 776 n.5 (1987) (noting “the differences between general civil litigation and habeas corpus proceedings”). 56 Harris v. Nelson, 394 `U.S. 286, 293–94 (1969). 57 Ex parte Tom Tong, 108 U.S. 556, 559 (1883). 58 Harris, 394 U.S. at 293–94.
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Federal law makes clear that civil actions and habeas review, despite their
similarities, remain different proceedings. Consider, for example, the initial filing
that sets a proceeding in motion. Habeas review commences with the filing of an
“application.”59 And the federal habeas statute provides specific rules that prescribe
what a habeas corpus application must contain.60 “A civil action,” by contrast, “is
commenced by filing a complaint.”61 Elsewhere, the federal rules likewise provide
specific rules that govern the filing of complaints.62
Civil Rule 7, which provides an exhaustive list of authorized pleadings,
hammers the point home. “Only these pleadings are allowed” in a civil action:
(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.63
Conspicuously absent from this list is a habeas corpus application. In this case,
Plaintiffs filed a “Class Action Complaint” under 28 U.S.C. § 1331. Section 1331, in
turn, provides district courts with “original jurisdiction of all civil actions.”64 Because
this is a civil action, a habeas corpus application is not “allowed.”
Other provisions confirm what the plain text of Rule 7 suggests. Civil Rule 81
provides that the Federal Rules of Civil Procedure “apply to proceedings for habeas
59 28 U.S.C. § 2241(b), (d). 60 28 U.S.C. § 2242. 61 Fed. R. Civ. P. 3. 62 See, e.g., Fed. R. Civ. P. 8, 10(a), 14. 63 Fed. R. Civ. P. 7(a) (emphasis added). 64 ECF 1, ¶ 11 (citing 28 U.S.C. § 1331).
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corpus . . . to the extent that the practice in those proceedings: (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has previously conformed to the practice in civil actions.”65 And Habeas Rule 12 provides that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”66 The only reason a habeas proceeding needs to borrow rules from a civil action is because it is an entirely distinct proceeding. And even then, habeas procedure often diverges from civil procedure.67
Supreme Court precedent confirms this view. In Heck v. Humphrey68 the Supreme Court established that a proceeding is either a civil action (under § 1983) or a habeas proceeding (under § 2241)—not both. The Court recognized that § 1983 and § 2241 are both capacious enough to cover “claims of unconstitutional treatment at the hands of state officials.”69 That meant a creative prisoner who opted to sue under § 1983 could effectively evade requirements unique to habeas corpus review, like the exhaustion rule.70 To prevent that workaround, the Court held a prisoner who necessarily “call[s] into question the lawfulness of conviction or confinement” must
65 Fed. R. Civ. P. 81(a)(4) (emphases added). 66 28 U.S.C. § 2254, Habeas Rule 12 (emphasis added). 67 See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 529–31 (2005) (motion for relief from judgment under FRCP 60(b)); Day v. McDonough, 547 U.S. 198, 207–09 (2006) (forfeiture of limitations defense under FRCP 8(c), 12(b), 15(a)); Mayle v. Felix, 545 U.S. 644, 654–56 (2005) (notice pleading under FRCP 8(a)); United States v. Frady, 456 U.S. 152, 164–66 & n.15 (1982) (plain error review under FRCP 52); Harris, 394 U.S. at 294–98 (discovery and interrogatories under FRCP 26(b), 33); Holiday v. Johnson, 313 U.S. 342, 353 (1941) (reference to a master under FRCP 53). 68 512 U.S. 477 (1994). 69 Id. at 480. 70 Id. at 480–81.
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proceed in habeas, not in a civil action.71 Because the prisoner in Heck challenged his confinement, the Court held he should have sought relief in habeas.
If Plaintiffs were correct that a civil action like this one could be combined with a habeas proceeding, then the prisoner in Heck should have been permitted to amend his pleadings. But that is not what the Supreme Court said. It held that “dismissal of the action was correct.”72 Heck could pursue only one route in a given case—either a civil action or a habeas proceeding—and he chose the wrong one.
The Supreme Court has reaffirmed the Heck rule countless times.73 And its principle dividing the world between challenges to custody and challenges to conditions of confinement applies here too. A prisoner cannot use § 1983 to avoid the strictures of the federal habeas statute. A prisoner likewise cannot use the habeas statute to avoid the strictures of the PLRA.74 Plaintiffs’ complaint about “conditions of confinement” in Dallas County Jail is simply not cognizable in habeas corpus. And their § 1983 claims likewise fail. This should be the end of this case.
71 Id. at 483; see id. at 481 (“challenges [to] the fact or duration of his confinement and seek[ing] immediate or speedier release” (emphases added)), 483 (challenges “call[ing] into question the lawfulness of the plaintiff's continuing confinement” (emphasis added)), 486 (challenges that “require the plaintiff to prove the unlawfulness of his conviction or confinement” (emphasis added)); see also Spina v. Aaron, 821 F.2d 1126, 1128 (5th Cir. 1987) (“Congress has chosen habeas corpus as the appropriate avenue to challenge the fact or duration of a prisoner's confinement.”). 72 Heck, 512 U.S. at 490. 73 See, e.g., Skinner v. Switzer, 562 U.S. 521 (2011); Hill v. McDonough, 547 U.S. 573 (2006); Wilkinson v. Dotson, 544 U.S. 74 (2005); Nelson, 541 U.S. 637, 637. 74 Skinner, 562 U.S. at 535 (noting that a prisoner whose claim that falls outside of the habeas bucket and into the civil action bucket is subject to the “series of controls on prisoner suits” Congress established in the PLRA); Nettles, 830 F3d at 927–34 (same).
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IV. Plaintiffs’ Motion for Class Certification Should be Denied Because a Mass Prisoner Release Order Inherently Hinges on Individualized Determinations About Which Prisoners Should be Released and on what Conditions Release is Appropriate. Even setting aside the various procedural defects described above, this Court
cannot grant class certification or class-wide relief. No matter how the Court
characterizes this Janus-faced suit, class action treatment remains inappropriate.
If the Court treats Plaintiffs’ pleadings as a § 1983 action challenging
conditions of confinement, Plaintiffs have not satisfied Rule 23’s prerequisites. A
plaintiff must “affirmatively demonstrate his compliance with” Rule 23,75 in order to
justify a departure from “the usual rule that litigation is conducted by and on behalf
of the individual named parties only.”76 Just three weeks ago, the Fifth Circuit
“cautioned that a district court must conduct a rigorous analysis of the rule 23
prerequisites before certifying a class.”77
Under Rule 23(a), Plaintiffs must show:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.78
Two of those requirements are pertinent here—namely, commonality and typicality.
Plaintiffs boast that they have raised common questions, like “[W]hat
measures [have] Defendants implemented in the Dallas County Jail in response to
75 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348–50 (2011). 76 Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979). 77 Cruson v. Jackson Nat’l Life Ins. Co., 954 F.3d 240, 2020 WL 1443531, at *7 (5th Cir. Mar. 25, 2020). 78 Fed. R. Civ. P. 23(a).
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the COVID-19 crisis?”79 They add that the “the most important common question” is “whether Defendants are liable under the Eighth and Fourteenth Amendments for their deliberate indifference to conditions of confinement.”80 In other words, Plaintiffs say they have identified the common question of whether Dallas County has been deliberately indifferent across the board.
The Supreme Court rejected this theory of commonality in Wal-Mart, in part based on the recognition that different actors may perpetrate the same violation of law in different ways.81 Considering the underlying “merits contention,” Plaintiffs are “unable to show that all [prisoners’ deliberate indifference] claims will in fact depend on the answers to common questions.”82 To establish a violation, Plaintiffs must show that “state official[s] knew of and disregarded an excessive risk to the inmate’s health or safety.”83 But that kind of violation may befall prisoners in different ways. Some officers are allegedly reusing masks.84 Some dorm rooms are allegedly unsanitary.85 Some prisoners have allegedly been kept in shared spaces with prisoners exhibiting symptoms.86 Some prisoners have been denied testing, while others have had testing delayed.87 Some prisoners are healthy, while others are not.88
79 ECF 18, 17. 80 Id. at 18. 81 Wal-Mart, 564 U.S. at 350 (commonality “does not mean merely that they have all suffered a violation of the same provision of law”). 82 Id. at 356. 83 Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001). 84 ECF 1, ¶ 54. 85 Id. at ¶ 56. 86 Id. at ¶ 52. 87 Id. at ¶ 51. 88 Compare id. at ¶¶ 17, 19, with id. at ¶¶ 13, 16.
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These are just a few easy examples. Subjective indifference to the healthy inmate may look different from indifference to an inmate with a respiratory issue. Other circuits have repeatedly rejected putative class-actions pressing deliberate indifference claims for just this reason.89 To be sure, some courts have found commonality for “systemic indifference.” But plaintiffs have not actually presented evidence of “a gross and systemic deficiency that applies to the entire class. Instead, the[y] bring a series of individual claims of deliberate indifference.”90 They cannot point to a set temperature for the entire jail91 or a memo from Dallas County officials formally setting a policy of making every effort not to provide care for inmates during an unprecedented public health challenge.
There are more than mere “factual variations in some details of” the putative class members’ custodial status.92 The face of Plaintiffs’ pleadings shows factual variations in the way that prison officials have allegedly been indifferent to the Plaintiffs’ health needs.
Separately, the Plaintiffs must also satisfy one of the requirements listed in Rule 23(b). Plaintiffs purport to cram their certification motion into Rule 23(b)(2). But as Plaintiffs themselves admit, “the key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such
89 See, e.g., Phillips v. Sheriff of Cook Cty., 828 F.3d 541 (7th Cir. 2016). 90 Phillips, 828 F.3d at 558. 91 Yates v. Collier, 868 F.3d 354 (5th Cir. 2017). 92 ECF 18, 18.
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that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.”93 The relief Plaintiffs seek here is obviously not of that character.
Cases enjoining prison officials to protect prisoners from excessive heat provides a helpful comparator. An injunction ordering prison officials to set prison temperatures at 88º is “indivisible.” It automatically benefits every member. But it should be obvious that release is different. A court may choose to release some, but not others. (Indeed, that is why habeas proceedings seeking relief proceed on an individual basis.) Moreover, Plaintiffs seem to recognize that release of some may obviate the need to release others. Some of their pleadings note that County officials could possibly address the problem by reducing the jail population and then using newly vacated facilities to space out remaining prisoners.94
Accordingly, Plaintiffs must proceed under Rule 23(b)(3), which is “even more demanding.”95 And because they have not identified a common question, they certainly cannot show a non-existent question “predominates” over all others.96
If the Court treats Plaintiffs’ pleading as a § 2241 application seeking release from custody, class-wide relief ordering release is still inappropriate. For starters, class action relief is simply unavailable in habeas corpus proceedings. No court ever purported to entertain that departure from the historic office of the Great Writ until “the late 1960s.”97 Then, after having its day in the sun, habeas class actions
93 Id. at 23 (quoting Wal-Mart, 564 U.S. at 360) (emphasis added). 94 ECF 1, ¶ 103(4)-(5). 95 Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013). 96 Wal-Mart, 564 U.S. at 359. 97 Brandon L. Garrett, Aggregation in Criminal Law, 95 CAL. L. REV. 383, 404 (2007) (collecting cases); Adderly v. Wainwright, 272 F. Supp. 530, 532 (M.D. Fla. 1967).
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“vanished.”98 That is due in large part to the Supreme Court’s decision in Calderon v. Ashmus.99 There a putative class of death-row inmates brought suit seeking a declaration that California did not qualify for expedited capital habeas review under AEDPA’s opt-in provisions.100 The Supreme Court held the prisoners’ challenge to the fact of their confinement “must be brought under the habeas sections of Title 28.”101 And it recognized that each putative class member must first “exhaust state remedies before bringing his claim to a federal court.”102 Naturally, that decision “made habeas corpus class actions impossible.”103
That jives with what the Supreme Court has said elsewhere. For instance, in Schall v. Martin, the Court pointed to state habeas procedures “on a case-by-case basis” as the appropriate avenue for challenging pre-trial detention.104 In Whitmore v. Arkansas, the Supreme Court rejected one prisoner’s attempt to utilize the carefully-circumscribed “next friend” application on behalf of another prisoner.105 And just last year in United States v. Sanchez-Gomez, the Supreme Court cautioned that lower courts “may not recognize a common-law kind of class action or create de facto class actions at will” on behalf of pre-trial detainees.106
98 Id. at 408. 99 523 U.S. 740 (1998). 100 28 U.S.C. §§ 2261–66. 101 Ashmus, 523 U.S. at 747. 102 Id. at 748. 103 Garrett, 95 CAL. L. REV. at 410. There were also good policy reasons for scrapping the class-action habeas application: A class application, combined with AEDPA’s limits on second or successive habeas applications, could have the effect of precluding a prisoner from later seeking habeas relief in an individual application. See 28 U.S.C. § 2244. 104 467 U.S. 253, 281 (1984). 105 495 U.S. 149, 161–66 (1990). 106 138 S. Ct. 1532, 1540 (2018).
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The class action has no place in habeas corpus proceedings. Accordingly, importing Rule 23 to the habeas context would violate Civil Rule 81. The “practice in [habeas] proceedings” has not “previously conformed to the practice in civil actions” with respect to class action.107 Habeas Rule 2(e), for example, provides that “[a] petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court.108 In other words, the same petitioner is obligated to file a separate action to challenge a different judgment. There is no way different petitioners can challenge different judgments in a single case. Unsurprisingly, the handful of federal courts that have explicitly addressed this question agree that habeas petitioners may not seek class-wide habeas relief.109
But even if that is wrong, and something like a class action is available in habeas proceedings, all of the same problems above would plague the request for class-wide relief. And surely any habeas class action is not less demanding than Rule 23. The nature of habeas review, moreover, highlights a plethora of typicality problems: Was this member of the putative class in custody at the time the
107 Fed. R. Civ. P. 81(a)(4)(B). 108 28 U.S.C. § 2254 Rule 2(e). 109 See Norton v. Parke, 892 F.2d 476, 478 (6th Cir. 1989); Rouse v. Michigan, No. 2:17-CV-12276, 2017 WL 3394753, at *1 (E.D. Mich. Aug. 8, 2017) (“It is improper for different petitioners to file a joint habeas petition.”); United States ex rel. Bowe v. Skeen, 107 F. Supp. 879, 881 (N.D. W.Va. 1952) (“Several applicants can not join in a single petition for a writ of habeas corpus.”). Perhaps that is why Justice Thomas and Justice Gorsuch took for granted that a class of plaintiffs that (like this one) “seeks a declaration and an injunction that would provide relief for both present and future class members, including future class members not yet detained” “do not seek habeas relief, as understood by our precedents.” Jennings v. Rodriguez, 138 S. Ct. 830, 858 (2018) (concurring in part and concurring in the judgment).
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application was filed?110 What kind of custody is he in?111 Is he being held pre-trial? Or on a life sentence for murder? Is he subject to a detainer request from another sovereign government? If he’s subject to multiple forms of custody, which one is he challenging?112 Would his habeas application be timely under AEDPA’s statute of limitations?113 Is he entitled to statutory tolling?114 What about equitable tolling?115 Perhaps a miscarriage-of-justice exception?116 Has he exhausted his state-court remedies?117 Before trial?118 After conviction?119 If not, is there some reason why his failure to exhaust does not matter?120 Even if he exhausted, is his claim procedurally defaulted?121 Can he supply cause and prejudice to excuse any default?122
Frankly, it’s hard to imagine a more dissimilarly situated group of individuals than Plaintiffs’ putative class. V. Three Recent COVID-19-Related Prisoner Cases Highlight the Fatal
Flaws in Plaintiffs’ Action. Three recent cases confirm the State Intervenors’ position and highlight the fatal flaws in Plaintiffs’ action.
110 Carafas v. LaVallee, 391 U.S. 234, 238 (1968); 28 U.S.C. §§ 2241(c)(3), 2254(a). 111 Dickerson, 816 F.2d at 224. 112 Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973). 113 28 U.S.C. § 2244(d)(1). 114 Id. at § 2244(d)(2). 115 Holland v. Fla., 560 U.S. 631 (2010). 116 McQuiggin v. Perkins, 569 U.S. 383 (2013). 117 28 U.S.C. § 2254(b)(1)(A), (c). 118 Ex parte Royall, 117 U.S. 241, 245 (1886). 119 Rose v. Lundy, 455 U.S. 509 (1982). 120 28 U.S.C. § 2254(b)(1)(B). 121 Murray v. Carrier, 477 U.S. 478, 489–90 (1986). 122 Coleman v. Thompson, 501 U.S. 722, 750 (1991).
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The Illinois district court’s decision in Money v. J.B. Pritzker,123 is the most significant of the three cases as it analyzed an action practically identical to this one.
In Money, ten individuals convicted of a range of felonies and serving sentence in various Illinois Department of Corrections (“IDOC”) facilities brought two class action
lawsuits “seeking release of prisoners from IDOC facilities in light of the COVID-19 pandemic.”124 One suit was brought under § 1983; the other was a petition for writs
of habeas corpus under 28 U.S.C. § 2254.125 As the court summarized: The foundation of each suit is essentially the same: Plaintiffs argue that the prison setting makes them (and other purported class members) especially vulnerable to COVID-19, that the state government’s responses to the danger are insufficient or not fast enough or both, and that the only way to solve the problem is moving prisoners out of prisons.126
Plaintiffs claimed that “reducing the prison population is the only meaningful way to prevent the harms posed by COVID-19 in the prison setting.”127 Plaintiffs sought to release at least 12,000 Illinois-based inmates due to COVID-19.128
Plaintiffs filed motions for class certification and emergency injunctive relief in both actions.129 Plaintiffs sought to certify classes consisting of subsets of inmates
who were medically vulnerable, convicted of lower-level offenses, or near the end of their prison sentence.130
123 No. 20-CV-2093, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020). 124 Id. at *2. 125 Id. 126 Id. 127 Id. at *5. 128 Id. at *1. 129 Id. at *6. 130 Id.
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At the outset, the court questioned whether it was “even proper to bring a
Section 1983 action and a petition for writ of habeas corpus at the same time on the
same facts seeking the same remedy[.]”131 The court, expressing significant doubt on
the issue, assumed the answer was yes and continued its analysis.132
The court found that the plaintiffs’ § 1983 claims were subject to the PLRA’s
limitations.133 The court analyzed whether the plaintiffs were seeking a “prisoner
release order” that would need to be decided by a three-judge panel under the
PLRA.134 During the lawsuit, the plaintiffs walked-back their original request for
release and claimed they were now only seeking “a process through which subclass
members eligible for medical furlough will be identified and evaluated based on a
balancing of public safety and public health needs, and transferred accordingly.”135
The court found that even this watered-down request was effectively a request for a
prisoner release order as it was intended to further the lawsuits’ main purpose—
which was to reduce or limit the IDOC’s prison population.136 The court held that,
under the PLRA’s specific procedures regarding prisoner release orders and due to
131 Id. at *8. 132 Id. (“As explained below, the answer (though not without doubt) seems to be yes.”); id. at *9 (“[I]t is abundantly clear that Plaintiffs may proceed on their claims under Section 1983 and at least plausible—though far less certain—that they also have a right to seek habeas relief as well.”). 133 Id. at *10-14. 134 Id. 135 Id. at *12 (quotations omitted). 136 See, e.g., id. at *12 (“There is no doubt that Plaintiffs’ request—even if couched in terms of a process—would have the purpose and the effect of reducing the population in Illinois prisons.”); id. at 13 (“Reducing the prison population is not just a die effect of the case—it is the whole point.”); id. (“[I]n asking that inmates be physically transferred from inside the prison to outside of it on the basis of [living conditions in the prisons,] Plaintiffs plainly are implicating ‘crowding’ as the primary cause of their concern. If prisons could be reconfigured to permit social distancing and observance of the CDC’s hygiene recommendations, Plaintiffs would have no claim.”).
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the sweeping relief being requested, it could not grant the plaintiffs’ § 1983-based request for prisoner release.137
The court noted additional problems with the plaintiffs’ § 1983 claims. The court found that the plaintiffs could not satisfy Fed. R. Civ. P. 23(a)(2)’s “commonality” requirement due to the individualized determinations inherent in a request for a mass prisoner release order.138 The court found that, “for the safety of the inmate, the inmate’s family, and the public at large,” any release order would need to consider the “inmate’s suitability for release” and on what conditions the inmate should be released.139 For instance, “any inmate who is exhibiting symptoms of infection, may be more suitable for quarantine or even transfer to a hospital.”140 For the inmate’s family, an inmate may be ill-suited for release if he or she had been recently exposed to someone with COVID-19, “particularly if the inmate’s proposed destination is a residence already occupied by someone equally or more vulnerable.”141 And the public has an interest in being protected from the release of inmates convicted of serious crimes and in the significant resources their government would need to expend to safely monitor the released prisoners.142
The court aptly summarized the problems with plaintiffs’ motion for class certification as follows:
Each putative class member comes with a unique situation—different crimes, sentences, outdates, disciplinary histories, age, medical history,
137 Id. at *14. 138 Id. at *14–17. 139 Id. at *14. 140 Id. 141 Id. 142 Id.
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places of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of transmitting the virus to someone at home detention, likelihood of violation or recidivism, and danger to the community. As Plaintiffs point out, commonality “does not require perfect uniformity.” But it does require more uniformity that these Plaintiffs would have on the only matter “apt to drive the resolution of the litigation”—namely, which class members should actually be given a furlough? . . . Simply put, there is no way to decide which inmates should stay, and which inmates should go, without diving into an inmate-specific inquiry.143
Further, the court found that there were “serious separation of powers
concerns” inherent in plaintiffs’ actions “because running and overseeing prisons is
traditionally the province of the executive and legislative branches.”144 The court
explained that the judiciary is “ill-equipped” to manage tens of thousands of inmates,
particularly in the context of “an ongoing, fast moving public health emergency.”145
Finally, turning to the merits of the habeas petition, the court found that the
plaintiffs failed to exhaust their remedies as they did not give Illinois state courts a
meaningful opportunity to consider their claims before turning to the federal courts
for relief.146 Ultimately, the court denied their habeas petition because “Plaintiffs
have not made a satisfactory showing that the state court system was not every bit
as available as the federal courts, if not more so.”147
In Sacal-Micha v. Longoria, the District Court for the Southern District of
Texas found that a writ of habeas corpus was not a proper vehicle for challenging an
143 Id. at *15 (citations omitted). 144 Id. at *16. 145 Id. 146 Id. at *20–22. 147 Id. at *21.
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inmate’s conditions of confinement due to COVID-19.148 In Sacal-Micha, the petitioner was an “elderly man with serious underlying medical conditions” who filed a habeas petition seeking immediate release from the immigration detention center in which he was being held.149 The petitioner sought release due to the “possibility of a COVID-19 outbreak within the detention center . . and the Respondents’ alleged inability to protect him from contracting the virus or providing him with adequate medical attention.”150 Specifically, the petitioner claimed that the respondents had not implemented sufficient social distancing measures, the universal use of mask and gloves, and various other measures to protect against the spread of COVID-19.151
The court noted that the “‘sole function‘ of a habeas petition is to ‘grant relief from unlawful imprisonment or custody’”152 and that “[d]istrict courts have . . . den[ied] habeas relief based solely on alleged inadequate conditions of detention.”153 The court found that the petitioner’s lawsuit was “[a]t its core” challenging his conditions of confinement and that habeas relief is unavailable in such a suit.154 Thus, the court held that the petition should be dismissed under Fed. R. Civ. P. 12(b)(6).155
In Coleman v. Newsom, a three-judge federal court based in California clarified how the PLRA’s limits applied to COVID-19-based claims for a prisoner release
148 No. 1:20-CV-37, 2020 WL 1815691 (S.D. Tex. Apr. 9, 2020). 149 Id. at *1. 150 Id. 151 Id. at *2. 152 Id. at *3 (quoting Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976)). 153 Id. 154 Id. at *4 (“Given that Sacal challenges the conditions of his confinement at PIDC, he cannot rely on a petition for writ of habeas corpus to obtain the relief he requests.”). 155 Id. at *6.
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order.156 The presiding three-judge court was established in 2007 under the PLRA to consider whether a prisoner release was warranted due to structural failures in California’s prison system.157 Recently, two classes of inmates incarcerated in California state prisons filed a motion asking the court to order the release of a significant number of prisoners “so that the prison population can be reduced to a level sufficient to allow physical distancing to prevent the spread of COVID-19.”158
The three-judge court rejected the new plaintiffs’ motion.159 The court noted that the “PLRA places significant restrictions on a federal court’s authority to order the release of prisoners as a remedy for a constitutional violation.”160 The court found that the plaintiffs likely could not satisfy the PLRA’s requirements “at this point because there have not yet been any orders requiring Defendants to take measures short of release to address the threat of the virus; nor have Defendants had a reasonable time in which to comply.”161
These three cases, Money v. J.B. Pritzker, Sacal-Micha v. Longoria, and Coleman v. Newsom, confirm the State-Intervenors’ position and highlight the reasons why Plaintiffs’ request for a prisoner release should be denied.
156 No. 01-CV-01351-JST, 2020 WL 1675775, (E.D. Cal. Apr. 4, 2020). 157 Id. at *1. 158 Id. 159 Id. 160 Id. at *4. 161 Id.
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VI. Releasing Felons During a Time of Crisis Endangers Public Safety and is Not in the Public Interest. “The history of equity jurisdiction is the history of regard for public
consequences in employing the extraordinary remedy of the injunction.”162 Accordingly, federal courts often consider two factors—the balance of the equities and the public interest—together.163 Public safety is a paramount public interest. And Plaintiffs’ requested injunctive relief here—releasing a class of individuals defined as “[e]veryone in the Dallas County Jail”—will imperil public safety.164
As explained in detail in the Motion to Intervene, Plaintiffs’ attempt to free inmates is not limited to non-violent offenders, but also includes murderers, rapists, and violent gang members.165 And it even includes Billy Chemirmir, possibly “one of the state’s most prolific serial killers.”166
But the risks posed to the public is not limited to those arrestees with a history for violence. And communities are “being repeatedly victimized by the same offenders who were often released before the paperwork was even filed.”167 Under Plaintiffs’ requested relief, burglars and other felons would be free to roam the streets

162 R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941).

163 See, e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 26–31 (2008.

164 To avoid duplicative briefing, State Intervenors hereby incorporate the arguments included in the

Motion to Intervene and accompanying exhibits. See Dkt. 27, Exs. 1-15.

165 See ECF No. 27, at 1-2; 7–8.

166 Antonia Noori Farzan, A Jewelry Box Led Police to Revisit Hundreds of Deaths. They May Have

Found a Serial Killer, WASH. POST (May 20, 2019), https://wapo.st/2wxTJpJ; Chemirmir’s booking

information

is

available

at

https://www.dallascounty.org/jaillookup/defendant_detail?recno=8701479E-2A8F-4A79-8F26-

00343043A503&bookinNumber=18013860&bookinDate=1521653460000&dob=1972-12-

08&lastName=CHEMIRMIR&firstName=BILLY&sex=Male&race=Black ; Charles Scudder, Dallas

DA Seeks Death Penalty Against Serial Killer Suspect Billy Chemirmir, DALLAS MORNING NEWS (July

24, 2019), https://bit.ly/3cbtjcy.

167 Ex. 15, Kahan Dec. ¶ 9; Ex. 14, Rushin Dec. ¶ 7.

28

Case 3:20-cv-00832-E Document 33 Filed 04/15/20 Page 36 of 40 PageID 441
committing numerous offenses. Releasing such individuals during the coronavirus pandemic presents a “target rich environment” for criminals to exploit as businesses are closed pursuant to governmental mandates and proprietors are encouraged to stay home with a diminished ability to monitor their closed storefronts.168
Likewise, released fraudsters will be presented with new opportunities to prey on Texans, especially the elderly, during this pandemic.169 And habitual DWI offenders certainly endanger the public through intoxicated driving.170
Plaintiffs’ requested relief would further threaten public safety by placing additional strain on already limited law enforcement resources and divert them from aiding pandemic control efforts.171 The risk of this harm is compounded by the likelihood that law enforcement officers will contract COVID-19 by having to apprehend recidivists released from a jail population who are alleged to have been likely exposed to the virus. The general population would likewise face a heightened risk of infection by the hasty mass release requested by Plaintiffs. The requested injunction will also disserve the public interest by releasing arrestees without proper consideration of the safety, wellbeing, and legal rights of victims.172 Just recently, the danger a largescale prisoner release poses to society was a significant factor in a federal court’s decision to deny a set of plaintiffs’ request for injunctive relief in the form of a mass release of Harris County felony arrestees due to COVID-19 issues.173
168 See Ex. 1, Acevedo Dec. ¶ 8. 169 Zack Friedman, Beware These Coronavirus Scams, FORBES (Mar. 20, 2020), https://bit.ly2xzJT6B. 170 Ex. 1, Acevedo Dec. ¶ 12. 171 See id. at ¶ 5; Ex. 3, Johnson Dec. ¶ 3; Ex. 4, Miller Dec. ¶ 3. 172 Ex. 11, Deaver Dec. ¶ 9. 173 Russell v. Harris Cty., No. H-19-226, 2020 WL 1866835 (S.D. Tex. Apr. 14, 2020) (finding that the public interest and balance of equities weighed in favor of denying plaintiffs’ request to release many
29

Case 3:20-cv-00832-E Document 33 Filed 04/15/20 Page 37 of 40 PageID 442
In sum, the State Intervenors have grave concerns about the increased risk of harm to the public and the additional burden on already-strained law enforcement resources. This is especially concerning since Dallas saw a dramatic increase in both murder and other violent crime during the past year.174
It is no response to say that these “concerns about the preliminary injunction [are] ‘speculative.’”175 As the Supreme Court has noted, this kind of uncertainty in uncharted waters “is almost always the case when a plaintiff seeks injunctive relief to alter a defendant’s conduct.”176 Instead, this Court should “defer to [the state] officers’ specific, predictive judgments about how the preliminary injunction” would impact public health, public safety, law enforcement, and State’s criminal justice system.177 As a result, the Court should deny the requested injunctive relief.
CONCLUSION For the reasons discussed above, the State Intervenors respectfully request that the Court dismiss this action under Fed. R. Civ. P. 12(b)(6). In the alternative,

felony arrestees partly because “[t]here is the threat of releasing on a personal bond those who should

not be released because of risks such as not only failure to appear, but also of new offenses”).

174 See Troy Closson, Dallas' sudden spike in homicides has officials perplexed. And not everyone agrees

that state troopers are helping, TEXAS TRIBUNE (Aug. 15, 2019), available at

https://www.texastribune.org/2019/08/15/Dallas-crime-murder-rate-rises-state-troopers-resident-

complaints/ (last visited Apr. 14, 2020); Editorial Board, What’s causing Dallas crime to spike?, DALLAS

MORNING

NEWS

(Feb.

13,

2020),

available

at

https://www.dallasnews.com/opinion/editorials/2020/02/13/is-bail-reform-the-cause-of-dallas-

climbing-crime/ (last visited Apr. 14, 2020); Numbers Show Spike in Dallas Crime in Past Year, DPD

Says

There’s

More

to

the

Data,

NBCDFW.COM,

available

at

https://www.nbcdfw.com/news/local/numbers-show-spike-in-dallas-crime-in-past-year-dpd-says-

theres-more-to-the-data/2239161/) (last visited Apr. 14, 2020).

175 WinterError! Bookmark not defined., 555 U.S. at 27.

176 Id.

177 Id.

30

Case 3:20-cv-00832-E Document 33 Filed 04/15/20 Page 38 of 40 PageID 443
with respect to Plaintiffs’ requests for emergency injunctive relief and class certification, the State Intervenors respectfully request an order ruling as follows:
1. Denying Plaintiffs’ request for an emergency temporary restraining order and writ of habeas corpus requiring Defendants to “identify and release all members of a subclass of medically vulnerable individuals”;178
2. Denying Plaintiffs’ requests for a preliminary/permanent injunction and writ of habeas corpus requiring Defendants to (A) “continue to release all current and future Medically-Vulnerable subclass members,” and (B) “release additional Class Members, including those not considered ‘Medically-Vulnerable,’ as needed to ensure that all remaining persons incarcerated in the Dallas County Jail are under conditions consistent with CDC and public health guidance to prevent the spread of COVID19, including requiring that all persons be able to maintain six feet or more of space between them”;179
3. Denying Plaintiffs’ request to certify a “Pre-Adjudication Class” and a “Post-Adjudication Class”;180 and
4. Granting State Intervenors such other relief as the Court deems just and proper.
178 ECF 2, 1. 179 Id. at 1–2. 180 ECF 17, 1–3.
31

Case 3:20-cv-00832-E Document 33 Filed 04/15/20 Page 39 of 40 PageID 444
Respectfully submitted. KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General RYAN L. BANGERT Deputy First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel Texas Bar No. 24077727 General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 adam.biggs@oag.texas.gov COUNSEL FOR STATE INTERVENORS
32

Case 3:20-cv-00832-E Document 33 Filed 04/15/20 Page 40 of 40 PageID 445 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been sent by electronic notification through ECF by the United States District Court, Northern District of Texas, Dallas Division, on April 15, 2020 to all counsel of record.
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel
33

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Case 3:20-cv-00832-E Document 33-2 Filed 04/15/20 Page 1 of 2 PageID 456

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS WHITE, §

TESMOND MCDONALD, MARCELO §

PEREZ, ROGER MORRISON, KEITH

§

BAKER, PAUL WRIGHT, TERRY

§

MCNICKELS, AND JOSE MUNOZ; ON §

THEIR OWN AND ON BEHALF OF A

§

CLASS OF SIMILARLY SITUATED

§

PERSONS;

§

Petitioners/Plaintiffs,

§

v.

§ §

DALLAS COUNTY SHERIFF MARIAN BROWN, IN HER OFFICIAL CAPACITY; DALLAS COUNTY, TEXAS,

§ § §

Respondent/Defendant.

§

Case No. 3:20-cv-00832

ORDER DENYING (1) PLAINTIFFS’/PETITIONERS’ MOTION FOR A TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND WRIT OF HABEAS CORPUS,
AND (2) PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION.

Before the Court are (1) Plaintiffs’/Petitioners’ (“Plaintiffs”) Motion for
Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus
(ECF 2–4), and (2) Motion for Class Certification (ECF 17–18). After consideration of
the motion and all responses thereto, the Court is of the opinion that all portions of
these motions which pertain to the release of prisoners should be denied.
IT IS THEREFORE ORDERED that Plaintiffs’ following requests are denied:
1. Plaintiffs’ request for an emergency temporary restraining order and writ of habeas corpus requiring Defendants to “identify and release all members of a subclass of medically vulnerable individuals” (ECF 2, 1);
2. Plaintiffs’ requests for a preliminary/permanent injunction and writ of habeas corpus requiring Defendants to (A) “continue to release all current and future Medically-Vulnerable subclass members,” and (B) “release additional Class Members, including those not considered

Case 3:20-cv-00832-E Document 33-2 Filed 04/15/20 Page 2 of 2 PageID 457
‘Medically-Vulnerable,’ as needed to ensure that all remaining persons incarcerated in the Dallas County Jail are under conditions consistent with CDC and public health guidance to prevent the spread of COVID19, including requiring that all persons be able to maintain six feet or more of space between them” (ECF 2, 1–2); and 3. Plaintiffs’ request to certify a “Pre-Adjudication Class” and a “PostAdjudication Class” (ECF 17, 1–3).
SIGNED on this the ______ day of _________________, 2020.
ADA BROWN UNITED STATES DISTRICT JUDGE

Case 3:20-cv-00832-E Document 33-3 Filed 04/15/20 Page 1 of 2 PageID 458

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS WHITE, §

TESMOND MCDONALD, MARCELO §

PEREZ, ROGER MORRISON, KEITH

§

BAKER, PAUL WRIGHT, TERRY

§

MCNICKELS, AND JOSE MUNOZ; ON §

THEIR OWN AND ON BEHALF OF A

§

CLASS OF SIMILARLY SITUATED

§

PERSONS;

§

Petitioners/Plaintiffs,

§

v.

§ §

DALLAS COUNTY SHERIFF MARIAN BROWN, IN HER OFFICIAL CAPACITY; DALLAS COUNTY, TEXAS,

§ § §

Respondent/Defendant.

§

Case No. 3:20-cv-00832

ORDER GRANTING STATE INTERVENORS’ MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6)

Before the Court is the State of Texas’, Governor of Texas’, and Attorney General of Texas’ (“State Intervenors”) Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6). After consideration of the State Intervenors’ motion and all responses thereto, the Court is of the opinion that the motion has merit and should be GRANTED.
IT IS THEREFORE ORDERED that State Intervenors’ Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) is GRANTED and accordingly Plaintiffs’/Petitioners’ Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief (ECF 1) is dismissed.

1

Case 3:20-cv-00832-E Document 33-3 Filed 04/15/20 Page 2 of 2 PageID 459 SIGNED on this the ______ day of _________________, 2020. ADA BROWN UNITED STATES DISTRICT JUDGE
2

 
 Case 3:20-cv-00832-E Document 34 Filed 04/15/20 Page 1 of 28 PageID 460

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, et al., Plaintiffs,
v. SHERIFF MARIAN BROWN, et al.,
Defendants.

) ) ) Civil Action ) Case No. 3:20-cv-00832 ) ) ) ) ) )

DEFENDANTS’ RESPONSE TO MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND WRIT OF HABEAS CORPUS COMES NOW Defendants Dallas County, Texas and Sheriff Marian Brown (collectively
“Defendants”) and file their Response in Opposition to Plaintiffs’ Motion for a Temporary Restraining Order, Preliminary Injunction and Writ of Habeas Corpus. Defendants make this response subject to their contemporaneously filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6).

HB: 4832-5841-3498.2

Case 3:20-cv-00832-E Document 34 Filed 04/15/20 Page 2 of 28 PageID 461
TABLE OF CONTENTS
INTRODUCTION ..................................................... ERROR! BOOKMARK NOT DEFINED. BACKGROUND ....................................................... ERROR! BOOKMARK NOT DEFINED. I. TIMELINE OF COVID-19 GOVERNMENT RESPONSE.ERROR! BOOKMARK NOT DEFINED. II. SHERIFF’S EFFORTS TO COMPLY WITH CDC GUIDANCE AND MITIGATE
COVID-19................................................................................................................................. 4 A. The Sheriff is already facilitating the court-ordered release of inmates. ............. Error! Bookmark not defined. B. Social distancing. .......................................................................................................... 7 C. Sanitation and use of personal protective equipment. .................................................. 8 D. Intake, Isolation, and Quarantine .................................Error! Bookmark not defined. III. COVID-19 LITIGATION NATIONWIDE. ............................................................................. 9 IV. THE DAVES LITIGATION................................ ERROR! BOOKMARK NOT DEFINED. ARGUMENT ............................................................. ERROR! BOOKMARK NOT DEFINED. I. PLAINTIFFS HAVE NOT SATISFIED THE FACTORS NECESSARY FOR INJUNCTIVE RELIEF........................................ ERROR! BOOKMARK NOT DEFINED. A. Standard .......................................................................Error! Bookmark not defined. B. Plaintiffs are not likely to succeed on the merits of their underlying claims....... Error! Bookmark not defined.
1. The Sheriff has acted reasonably, not with deliberate indifference, in responding to an unprecedented crisis..................Error! Bookmark not defined.
2. Plaintiffs are not likely to succeed on their claim for mass release of detainees. ..............................................................Error! Bookmark not defined.
C. Plaintiffs cannot establish irreparable harm................................................................ 20 D. The proposed relief would be detrimental to the public interest. ............................... 21 CONCLUSION............................................................................................................................. 22 CERTIFICATE OF SERVICE ..................................................................................................... 23
i
HB: 4832-5841-3498.2

Case 3:20-cv-00832-E Document 34 Filed 04/15/20 Page 3 of 28 PageID 462
TABLE OF AUTHORITIES
Cases Arana v. Barr,
No. 19-cv-7924 (PGG) (DCF) (S.D.N.Y. Mar. 27, 2020)....................................................... 10
Basank v. Decker, No. 20-cv-2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020)...................................... 10
Booth v. Galveston Cnty., Tex., 3:18-cv-104 (S.D. Tex.) ............................................................................................................ 12
Buffin v. City and Cnty. of San Francisco, 4:15-cv-4959 (N.D. Cal.) .......................................................................................................... 12
Byrum v. Landreth, 566 F.3d 442 (5th Cir. 2009) .................................................................................................... 14
Calderon Jimenez v. Wolf, No. 18-cv-10225, Docket Entry No. 507-1 (D. Mass. Mar. 26, 2020).................................... 10
Caliste v. Cantrell, 2:17-cv-6197 (E.D. La.)............................................................................................................ 12
Castillo v. Barr, No. 20-cv-605, Docket Entry No. 32 (C.D. Cal. Mar. 27, 2020) ............................................. 10
Cooper v. City of Dothan, No. 1:15-cv-425 (M.D. Ala.) .................................................................................................... 12
Coronel v. Decker, No. 20-cv-2472 (AJN), 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020)...................................... 9
Daves v. Dallas County, et al., 341 F. Supp. 3d 688, 695–96 (N.D. Tex. 2018). ...................................................... 6, 11, 12, 20
Dickerson v. Louisiana, 816 F.2d 220 (5th Cir. 1987) .................................................................................................... 18
Duvall v. Dallas County, 631 F.3d 203 (5th Cir. 2011) .................................................................................................... 15
Edwards v. Cofield, 3:17-cv-321 (S.D. Ala.) ............................................................................................................ 12
Farmer v. Brennan, 511 U.S. 825 (1994).................................................................................................................. 15
Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996) ...................................................................................................... 14
Hopes v. Davis, 761 Fed. Appx. 307, 310 (5th Cir. 2019).................................................................................. 18
In re Abbott, No. 20-50264, 2020 WL 1685929 (5th Cir. Apr. 7, 2020) ......................................................... 2
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Jones v. Tex. Dep’t of Criminal Justice, 880 F.3d 756 (5th Cir. 2018) .................................................................................................... 14
Jordan v. Fisher, 823 F.3d 805 (5th Cir. 2016) .................................................................................................... 14
Mays v. Dart, No. 20-cv-2134 (N.D. Ill. Apr. 9, 2020) ................................................................................... 10
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).......................................................................................................... 13
Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618 (5th Cir. 1985) .................................................................................................... 13
ODonnell v. Harris Cnty., Texas, 892 F.3d 147 (5th Cir. 2018) (op. on reh’g) ....................................................................... 12, 13
Pierce v. City of Velda City, 4:15-cv-570 (E.D. Mo.) ............................................................................................................ 12
Plata v. Newsom, No. 4:01-cv-01351-JST (N.D. Cal. Apr. 4, 2020) .................................................................... 11
Rodriguez v. Providence Cmty. Corrs., Inc., 3:15-cv-1048 (M.D. Tenn.)....................................................................................................... 12
Russell v. Harris County, No. H-19-226, ECF No. 122............................................................................................... 10, 21
Scott v. O’Grady, 975 F.2d 366 (7th Cir. 1992) ........................................................................... 17 Snow v. Lambert,
No. 3:15-cv-567 (M.D. La.)...................................................................................................... 12 Swain v. Junior,
No. 20-cv-21457-KMW (S.D. Fla. Apr. 7, 2020) .................................................................... 11 Thompson v. City of Moss Point, 1:15-cv-182 (S.D. Miss.) ......................................................... 12 Varden v. The City of Clanton,
No. 2:15-cv-34 (M.D. Ala.) ...................................................................................................... 12 Walker v. City of Calhoun,
4:15-cv-170 (N.D. Ga.)............................................................................................................. 12 Zhang v. Barr,
No. 20- cv-331 (C.D. Cal. Mar. 27, 2020).................................................................................. 9
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Case 3:20-cv-00832-E Document 34 Filed 04/15/20 Page 5 of 28 PageID 464 Regulations 28 U.S.C. § 2241........................................................................................................................... 16 Tex. Code Crim. Proc art. 2.16 ..................................................................................................... 16 Tex. Code Crim. Proc art. 2.18 ..................................................................................................... 16 Tex. Local Gov’t Code § 85.021-22 ............................................................................................. 16
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INTRODUCTION The public health crisis posed by COVID-19—unprecedented in our lifetimes—is an ongoing concern for law enforcement and government at all levels. Far from being deliberately indifferent to this crisis, Sheriff Brown (along with stakeholders throughout the pretrial criminal justice system) has taken prompt action over the past weeks to address and mitigate the threat COVID-19 poses to all in the Dallas County Jail. As a result of these efforts, the jail population is already down almost one thousand people—about twenty percent—in the past three weeks. An unprecedented crisis of this magnitude demands a coordinated, flexible, and measured response within the bounds of state law. The requested emergency relief is none of these things, and Plaintiffs fail to carry their burden of showing they are entitled to any relief at all. First, Plaintiffs are unlikely to succeed on the merits because they will be unable to show that Sheriff Brown has acted with deliberate indifference to the threat of COVID-19. To the contrary, Sheriff Brown has taken prompt and effective action to implement procedures compliant with CDC guidelines—and more—over recent weeks. As the public health understanding of COVID-19 has evolved, applicable guidelines and the Sheriff’s procedures have evolved as well. But at the very least, Sheriff Brown has responded objectively reasonably to this threat. Second, Plaintiffs have an adequate remedy at law—seeking release through state court proceedings. Numerous inmates (medically vulnerable and otherwise) have successfully petitioned the courts for release in recent weeks, and the Sheriff has facilitated that review by providing the courts with information on medically vulnerable inmates. Plaintiffs did not pursue these remedies. Finally, the remedy of wholesale release will not serve the public interest either by limiting the spread of COVID-19 or by preserving community safety. It is likely to achieve the opposite.
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Plaintiffs are not entitled to a temporary restraining order, preliminary injunction, or writ of habeas corpus. But saying Plaintiffs do not meet the stringent requirements for emergency relief is different from saying that the Sheriff is not taking the once-in-a-lifetime threat of COVID-19 seriously. The Sheriff, like thousands of law enforcement officials around the country, is dealing with a fluid and evolving situation. Plaintiffs’ requested relief would not just hinder, but would defeat, the good work already underway. Their lawsuit is meritless and their motion for a temporary restraining order must be denied.
BACKGROUND I. Timeline of COVID-19 Government Response.
On March 12, Dallas County Judge Clay Jenkins issued a Declaration of Local Disaster for Public Health Emergency. The County Judge also banned public or private community gatherings of a certain size, and strongly recommended that organizations serving high-risk populations cancel gatherings of more than 10 people, based on the CDC’s “Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission.”1 Dallas County had reported its first presumptive positive COVID-19 case three days earlier, on May 10.2
On March 13, the President of the United States declared a national state of emergency and the Governor of Texas declared a state of disaster. See In re Abbott, No. 20-50264, 2020 WL 1685929, at *2 (5th Cir. Apr. 7, 2020) (discussing timeline of government orders during early stages of COVID-19).
On March 15, Dallas County courts cancelled all jury trials through May 8.3
1 Available at https://www.dallascounty.org/Assets/uploads/docs/judge-jenkins/covid-19/031220CommunityGatheringsOrder.pdf.
2 DALLAS MORNING NEWS, Out-of-state man, 77, and a close local contact, are DallaS County’s first presumptive positive cases of coronavirus (Mar. 10, 2020), available at https://www.dallasnews.com/news/publichealth/2020/03/10/dallas-county-reports-first-presumptive-case-of-coronavirus/.
3 Available at https://www.dallascounty.org/Assets/uploads/docs/judge-jenkins/covid-19/3.15.2020-PressRelease-Dallas-County-Cancels-All-Jury-Trials-through-May8-2020.pdf.
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On March 19, the Texas Health and Human Services Executive Commissioner declared a public health disaster. Id. On that same day, the Dallas County Commissioners Court issued an Order of Continuance of Declaration of Local Disaster for Public Health Emergency, extending the declaration of local disaster of March 12 to April 3, 2020.
On March 24, the County Judge issued a stay-at-home order. On April 3, Commissioners Court voted to extend the disaster declaration until May 20, and the County Judge then extended the stay-at-home order until April 30.4 At the time, these extensions were enacted in light of models which suggested that these measures were important in order to prevent the local and state health care system from being overrun.5
As of April 14, 2020, Dallas County Health and Human Services reported a total of 1,877 cases in Dallas County, including 42 deaths.6 36 of those cases were reported as originating in the Dallas County Jail.7
4 Available at https://www.dallascounty.org/Assets/uploads/docs/covid-19/orders-media/040820DallasCountyOrder.pdf
5 DALLAS MORNING NEWS, Dallas County residents ordered to stay home as new shelter-in-place rules are put in place, (Mar. 22, 2020), available at https://www.dallasnews.com/news/public-health/2020/03/22/dallascounty-residents-ordered-to-stay-home-as-new-shelter-in-place-rules-are-put-in-place/
6 Available at https://www.dallascounty.org/Assets/uploads/docs/hhs/2019-nCoV/COVID19%20DCHHS%20Summary_041420.pdf
7 Available at https://www.dallascounty.org/Assets/uploads/docs/hhs/2019-nCoV/COVID19%20DCHHS%20Summary_041420.pdf
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II. Sheriff’s Efforts to Comply with CDC Guidance and Mitigate COVID-19. The facts outlined in this section and supported by the Declaration of Chief Deputy
Fredrick Robinson, attached as Exhibit A to this response (“Robinson”), have likely not anticipated and addressed all the questions which the Court and Plaintiffs will have about jail operations. Defendants will respond to those questions as they are able, including by supplementing Chief Robinson’s declaration if necessary. However, the facts set forth in this response do show the efforts taken by the Sheriff and the Dallas County Sheriff’s Office (DCSO) to date to implement social distancing, personal hygiene, and other reasonable steps to mitigate the spread of COVID-19 within the jail, consistent with the CDC’s Interim Guidance on Management of COVID-19 in Correctional and Detention Facilities (the “Interim Guidance”).8 Defendants also submit the Declaration of Patrick Jones, Vice President of Correctional Health Services for the Dallas County Hospital District d/b/a Parkland Health and Hospital System (“Parkland”), attached as Exhibit B (“Jones”). Mr. Jones explains Parkland’s procedures at inmate intake, as well as Parkland’s procedures for isolation and quarantine of inmates where necessary. Defendants also submit the declaration of Jeff Segura, Dallas County Pretrial Services Manager, as Exhibit C (“Segura”). Mr. Segura addresses the Court’s questions regarding the cost of alternatives to pretrial detention, like electronic leg monitoring.
These facts are sufficient to establish that the Sheriff has not acted with deliberate indifference to conditions of confinement in the jail in light of the ongoing COVID-19 crisis.
A. The Sheriff is already facilitating the court-ordered release of inmates. The CDC Interim Guidance does not require or even suggest releasing inmates from jail. The Interim Guidance acknowledges that social distancing is a challenge within the confines of a
8 Available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.
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Case 3:20-cv-00832-E Document 34 Filed 04/15/20 Page 10 of 28 PageID 469 jail, but includes several practical strategies to accomplish social distancing on an individual group, and operational level. See Interim Guidance, p. 11.
Nevertheless, the Sheriff has already taken voluntary steps to reduce the jail population in two significant ways: first, by requesting that local arresting agencies exercise their discretion to bring fewer people to jail in the first place; and second, by working with the felony and misdemeanor judiciary to identify medically vulnerable inmates and fast-track their release, if the court determines release to be appropriate. Due to the coordinated efforts of these stakeholders, the jail population has decreased by about one thousand people since March 17.
On any given day, most inmates in the Dallas County Jail are arrested and brought to jail by a local law enforcement agency (LEA) other than the Dallas County Sheriff, like the City of Dallas or other local jurisdictions. Robinson, ¶ 29. On March 17, Sheriff Brown sent a letter to the heads of 32 local LEAs, acknowledging the need to reduce jail population in light of COVID-19 and requesting that officers for the respective LEAs use their best judgment in determining whether persons should be cited and released, or arrested and brought to jail. Id.
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Book-ins into the Dallas County Jail have decreased from a high of 227 on March 10, to 99 book-ins yesterday.
The Sheriff has also helped facilitate inmate release by assisting the judiciary, who under Texas law are the only ones who may order the release of an inmate from jail.9 Starting on April 1, Parkland compiled a list of inmates who are, per CDC guidelines, at a high-risk for contracting COVID-19. Robinson, ¶ 31. Parkland provides that list to the Sheriff, who in turn provides that list to the presiding judges of the felony and misdemeanor courts. Id. The presiding judges distribute that list to the District Court judges and the County Criminal Court-at-Law judges assigned to the listed inmates’ cases, and the assigned judge then reviews the cases and bonds for those inmates. Id. If the assigned judge determines that an inmate is eligible for a bond reduction or a personal bond, the judge will so order. Id. Upon receiving an order that results in a person’s eligibility for release, the Sheriff promptly complies with that order. Id., ¶ 33.
This process is conducted in coordination with efforts by the District Attorney to move to dismiss certain non-violent cases, as well as the ongoing bail review hearings held by felony and misdemeanor judges multiple times a day pursuant to the injunction entered by Judge Godbey in Daves. Robinson, ¶ 32. Defense attorneys can, and frequently do, request hearings to seek bond reductions or personal bonds for their clients. These joint efforts appear to have been productive, as the jail population has decreased significantly in past weeks. As of March 17, the jail population was 5,929. As of April 10, the jail population was 4,972—a reduction of approximately 1,000 inmates. Id., ¶ 6. In fact, at least one of the Plaintiffs who is not currently in detention appears to have personally benefitted from stakeholder voluntary release efforts—Mr.
9 Plaintiffs have argued in another pending suit—unsuccessfully—that the Dallas County Sheriff can go over a judge’s head to release inmates from jail who are unable to pay a bond amount set by a judge. See Daves v. Dallas County, et al., No. 3:18-cv-00154-N; see also infra Argument Section I.A.2.
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Hinojosa testified that he was released due to the District Attorney seeking a court order voluntarily dismissing his case. See Hinojosa Dec., ECF No. 3-3.
B. Social distancing. Fortunately (and due partly to the efforts described above) the Dallas County Jail is not at or near capacity, which is approximately 7,414 individuals. Robinson, ¶ 6. The current jail population makes it more feasible to enforce social distancing guidelines, which the Sheriff has worked diligently to do. See Interim Guidance, p. 11. Part of the Sheriff’s efforts include inmate education on why social distancing and personal hygiene measures are important. The Sheriff has posted a CDC one-pager, which explains why social distancing is necessary, encourages frequent hand-washing, and educates about the symptoms of the virus, throughout the jail. Robinson, ¶ 10. Additionally, the TVs located throughout the jail (in each pod and in the jail’s common areas) air messages on the inmate channel explaining COVID-19 and the importance of the CDC guidelines on social distancing and personal hygiene. Id., ¶ 11. The Sheriff’s officers enforce social distancing throughout the jail by repeatedly impressing upon inmates the need to practice social distancing, and by ordering increased space between inmates in common areas when officers observe that social distancing is not in effect. Id., ¶ 12. Inmate movement throughout the jail has been reduced only to absolutely necessary moves. Id. In-person inmate visitations have been suspended for everyone but attorneys of record. Id., ¶ 13. Video visitations have instead been made available free of charge to anyone (including attorneys) who requests it. Id.
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C. Sanitation and use of personal protective equipment. As CDC guidelines on sanitation, personal hygiene, and the use of personal protective equipment (PPE) have evolved in response to COVID-19, the Sheriff has adapted jail standard operating procedures to accommodate those guidelines. Currently, all jail staff are required to wear face masks. Robinson, ¶ 19. Inmates are provided with masks, whether symptomatic or asymptomatic (current CDC guidelines do not require that asymptomatic inmates should wear masks, but the Sheriff has provided masks to asymptomatic inmates regardless). Id., ¶¶ 19-20. Inmates receive masks immediately upon being brought to the jail. Id., ¶ 15. Cleaning supplies are widely available, and provided to inmates at all times. Id., ¶ 23. Inmates are responsible for cleaning their cells, and are provided with cleaning supplies in order to do so. Id., ¶¶ 21, 23. Trustees (inmates who have been entrusted with certain responsibilities by the Sheriff) are responsible for cleaning the jail’s common areas. Id., ¶ 21. The Sheriff’s staff clean officer-only areas of the jail, and Parkland cleans the infirmary. Id. If an inmate tests positive while in the jail, or an inmate is suspected to have had exposure to the virus while in the jail, a third-party vendor sanitizes each part of the jail in which the positive or suspected inmate may have had contact. Id., ¶ 22. Per CDC guidelines, hand soap is also made available to inmates at all times. Id., ¶ 24. Hand sanitizer is not currently provided to inmates because of its alcohol content, but the Sheriff is examining ways to make hand sanitizer available to inmates (it is available to, and is used by, staff). Id. D. Intake, Isolation, and Quarantine The Sheriff, in conjunction with Parkland, also implemented new screening procedures. Robinson, ¶ 34; Jones, ¶¶ 5-9. Initial shakedown procedures are relocated outside of the intake area to a separate area, where inmates who have a fever at or above 100.4 degrees or who answer
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“yes” to any of a set of questions about travel behavior and symptoms are evaluated by a nurse. Robinson, ¶ 34.b; Jones, ¶ 6. Masks are provided to each inmate immediately upon intake. Robinson, ¶ 15.
Parkland screens and classifies inmates consistently with CDC guidelines as Persons Confirmed COVID (PCC), Persons Under Investigation (PUI), and Persons Under Monitoring (PUM). Jones, ¶¶ 5-10. Parkland is responsible for the medical treatment and monitoring of these inmates. Parkland’s procedures are described in more detail in the Declaration of Patrick Jones. Id. III. COVID-19 Litigation Nationwide.
This is not the first case in which inmates have sought release based on the potential or actual presence of COVID-19 in their place of detention. Courts have taken different approaches to dealing with this cases, but to date, no court has ordered the kind of class-wide mass release of state court prisoners which Plaintiffs seek here.
One set of COVID-19 cases deal with federal-court challenges to a federal jail or prison facility, based either on the conditions of confinement or on the duration of confinement and conditions of pretrial release. Plaintiffs rely on each of these cases as precedent for their habeas relief, but these cases are distinguishable—they concern individual federal prisoners (or small groups of prisoners) seeking release from immigration custody based on their unique circumstances. See, e.g., Coronel v. Decker, No. 20-cv-2472 (AJN), 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) (granting a temporary restraining order requiring four detainees’ release under 28 U.S.C. § 2241 in part because “[an immigration-court bond] hearing weeks from now may be no relief at all, because Petitioners may contract COVID- 19 in the interim and face serious health consequences—including death”); Zhang v. Barr, No. 20- cv-331 (C.D. Cal.
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Mar. 27, 2020) (granting a habeas petitioner in immigration detention an expedited bond hearing, noting that “delay in determining Petitioner’s release exposes him to unnecessary risk [in light of the pandemic]”); Calderon Jimenez v. Wolf, No. 18-cv-10225, Docket Entry No. 507-1 (D. Mass. Mar. 26, 2020) (ordering a single habeas petitioner’s release from immigration detention on bail in light of the pandemic); Basank v. Decker, No. 20-cv-2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) (granting a temporary restraining order under § 2241 requiring the release of one detainee from immigration custody); Castillo v. Barr, No. 20-cv-605, Docket Entry No. 32 (C.D. Cal. Mar. 27, 2020) (ordering two habeas petitioners to be released from immigration detention under a temporary restraining order because of COVID-19); Arana v. Barr, No. 19-cv-7924 (PGG) (DCF) (S.D.N.Y. Mar. 27, 2020) (magistrate judge’s report and recommendation recommending “that, due to extraordinary circumstances brought about by the COVID-19 outbreak, which has apparently reached the jail where [the habeas] Petitioner is being detained, and by which he may be particularly seriously impacted as a result of underlying medical conditions, [the] Petitioner be ordered released from [immigration] custody pending his bond hearing”).
A second set of cases involves challenges to conditions of confinement in state or local jails, including allegations (like those here) that the local jailer has failed to take reasonable steps to reduce and address the risk of infection and illness from COVID-19. Plaintiffs have understandably not cited to these cases, since (to the extent those cases granted any relief at all) the relief granted has been narrowly tailored to specific, identifiable instances where the jailer was deficient in complying with CDC guidelines for social distancing, hygiene, and personal protective equipment (PPE)—not wide-ranging release of classes and subclasses of the entire jail population. See, e.g., Mays v. Dart, No. 20-cv-2134 (N.D. Ill. Apr. 9, 2020) (granting a limited
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Case 3:20-cv-00832-E Document 34 Filed 04/15/20 Page 16 of 28 PageID 475
temporary restraining order requiring certain coronavirus-related safety measures at the Cook County Jail in Chicago, but denying most requests for relief, including a putative subclass’s request to be transferred to a safer facility or other form of custody); Swain v. Junior, No. 20-cv21457-KMW (S.D. Fla. Apr. 7, 2020) (granting in part a temporary restraining order requiring increased coronavirus protections at Metro West Detention Center in Miami-Dade County); Plata v. Newsom, No. 4:01-cv-01351-JST (N.D. Cal. Apr. 4, 2020) (denying California prisoners’ motion before a three-judge Prison Litigation Reform Act panel to require COVID-19related releases, but suggesting that relief may be available at single-judge courts).
Finally, in a case pending before Judge Rosenthal in the Southern District of Texas, a class of felony arrestees represented by many of the same counsel who represent Plaintiffs in this suit recently sought a TRO staying Governor Abbott’s Executive Order GA-13 (limiting the discretion of state court judges to grant personal bonds during the COVID-19 crisis) and ordering the Harris County Sheriff to release felony arrestees who had not received individualized assessments. See Russell v. Harris County, No. H-19-226, ECF No. 122 at p. 2. Judge Rosenthal declined to do so. Key to her decision was the record before her, which reflected voluntary and ongoing efforts by criminal justice stakeholders to accomplish the release of qualified, medically vulnerable Harris County jail inmates. Id. at p. 3 (citing ongoing efforts to “achieve a workable, voluntary process for the safe release of appropriate pretrial, not convicted, arrestees within the present pandemic restraints” as “a powerful reason for a federal court to decline to intervene through the blunt instrument of a temporary restraining order.”). In Russell, Plaintiffs asked for less drastic relief than they are seeking in this case. Caution in fashioning a remedy, should the Court find a remedy is justified (which it is not) is even more appropriate here.
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IV. The Daves Litigation. Finally, the Court may find a short summary of the ongoing Daves litigation helpful in
understanding some of the relief Plaintiffs seek, and why that relief is unwarranted. See Court’s Mem. Op. and Order in Daves v. Dallas Cnty., Tex., 341 F. Supp. 3d 688 (N.D. Tex. 2018).
In the Daves litigation, a class of misdemeanor and felony plaintiffs (represented by some of the same counsel as represent Plaintiffs in this suit) sued Dallas County, the Sheriff, the Dallas County Criminal District Court Magistrates, and the District Court and County Criminal Courtat-Law judges under 42 U.S.C. § 1983, challenging how judicial officers set bail.10 The issues in Daves were virtually identical to the ODonnell case filed by the same counsel two years prior in Harris County. See ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018) (op. on reh’g).
Judge Godbey entered an order of preliminary injunction based closely on the Fifth Circuit’s model injunction from ODonnell. Under that injunction, each arrestee receives an individualized hearing and assessment at magistration within 48 hours of being brought to the Dallas County jail. The misdemeanor judges also conduct bail review hearings on a daily basis for any arrestee who seeks a reduction of the bail amount set by the magistrate.
Plaintiffs and Dallas County appealed parts of the preliminary injunction. Dallas County appealed Judge Godbey’s finding that the judges were county policymakers for purposes of Section 1983 liability. Plaintiffs appealed Judge Godbey’s rejection of their argument that substantive due process requires more than the procedural due process remedy of ODonnell, including a finding by clear and convincing evidence that detention is necessary, and that no
10 Daves is one of about a dozen cases filed by counsel throughout the country challenging local bail systems. See Walker v. City of Calhoun, 4:15-cv-170 (N.D. Ga.); Cooper v. City of Dothan, No. 1:15-cv-425 (M.D. Ala.); Snow v. Lambert, No. 3:15-cv-567 (M.D. La.); Varden v. The City of Clanton, No. 2:15-cv-34 (M.D. Ala.); Thompson v. City of Moss Point, 1:15-cv-182 (S.D. Miss.); Rodriguez v. Providence Cmty. Corrs., Inc., 3:15-cv1048 (M.D. Tenn.); Pierce v. City of Velda City, 4:15-cv-570 (E.D. Mo.); Buffin v. City and Cnty. of San Francisco, 4:15-cv-4959 (N.D. Cal.); Caliste v. Cantrell, 2:17-cv-6197 (E.D. La.); ODonnell v. Harris Cnty., Tex., 4:16-cv1414 (S.D. Tex.); Booth v. Galveston Cnty., Tex., 3:18-cv-104 (S.D. Tex.); Edwards v. Cofield, 3:17-cv-321 (S.D. Ala.).
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other conditions of release will satisfy the government’s interest. The Fifth Circuit heard oral argument on November 4, 2019, and the appeal remains pending today.
Daves has relevance to this case because Plaintiffs are attempting to smuggle in the “clear and convincing” evidentiary standard—which Judge Godbey has already rejected for setting bail—in their proposed relief here. See ECF No. 3, p. 34 (seeking relief that inmates must be released “absent proof of judicially-recorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate.”). The Fifth Circuit is likely to affirm Judge Godbey’s finding that what the Constitution requires is individualized consideration of each arrestee’s unique facts and circumstances before setting bail according to state law factors—not the “clear and convincing” standard applicable under the federal Bail Reform Act. See ODonnell, 892 F.3d at 163 (holding that the remedy for constitutional deficiencies in the bail-setting process was consideration of “the various factors required by Texas state law….notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.”).
ARGUMENT I. Plaintiffs have not satisfied the factors necessary for injunctive relief.
A. Standard A preliminary injunction is an “extraordinary remedy,” and the “decision to grant a preliminary injunction is to be treated as the exception rather than the rule.” Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). Such a remedy should not be granted unless the movant, “by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis added). To carry this burden, Plaintiffs must establish “(1) a substantial likelihood of success on the merits, (2) a substantial
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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 an injunction will not disserve the public interest.” Jones v. Tex. Dep’t of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018) (per curiam) (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)). The party seeking injunctive relief must meet all four requirements. Jordan v. Fisher, 823 F.3d 805, 809 (5th Cir. 2016).
Plaintiffs cannot sustain their substantial burden to justify the unprecedented remedy they seek, and their request for injunctive relief must be denied.
B. Plaintiffs are not likely to succeed on the merits of their underlying claims. Plaintiffs brought this emergency request for relief against Sheriff Brown and Dallas County, alleging that conditions at the Dallas County Jail pose a substantial risk of harm to their safety—a risk that cannot be mitigated by anything less than the release of a subclass of detainees who are particularly susceptible to the virus (and a future broader class of all detainees to be released as necessary to allow the jail to impose social distancing throughout). ECF No. 3, p. 26. Plaintiffs’ condition of confinement claim fails. Plaintiffs’ conditions of confinement claim requires Plaintiffs to demonstrate the existence of an identifiable intended condition or practice, not reasonably related to a legitimate governmental objective—an inquiry “functionally equivalent” to a deliberate indifference inquiry. See Hare v. City of Corinth, Miss., 74 F.3d 633, 643 (5th Cir. 1996). Hare incorporated the Supreme Court’s deliberate indifference test: “a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if [she] knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (emphasis
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added). And the mere incidence of COVID-19 in the jail is not by itself sufficient to justify a finding that confinement conditions are unconstitutional. Plaintiffs must show a “pervasive pattern of serious deficiencies.” See Duvall v. Dallas County, 631 F.3d 203, 208 (5th Cir. 2011).
1. The Sheriff has acted reasonably, not with deliberate indifference, in responding to an unprecedented crisis.
The Sheriff’s voluntary efforts to date, in conjunction with other criminal justice stakeholders, have implemented the CDC Interim Guidance and effectively reduced jail population. Judges continue to work to effectuate the safe release of appropriate pretrial arrestees, and the Sheriff has also assisted in those efforts.
The Interim Guidance suggests, among other things, that pre-intake screening and temperature checks for all new entrants should be performed. Interim Guidance, p. 10. This is happening. Robinson, ¶ 34; Jones, ¶¶ 5-10. The Interim Guidance suggests symptomatic individuals should be required to wear masks. Interim Guidance, p. 10. This is happening. Robinson, ¶¶ 19-20. Parkland has likewise implemented procedures consistent with the CDC Interim Guidance and classifications to isolate and quarantine symptomatic or confirmed inmates. See Jones generally.
The Interim Guidance’s social distancing suggestions acknowledge that not all strategies will be feasible in all facilities, see Interim Guidance, p. 11, but the Sheriff is nevertheless implementing many of the suggested CDC strategies as appropriate for the Dallas County Jail. DCSO officers enforce increased space between individuals when they observe violations. Robinson, ¶ 12. Meals are provided inside cells for inmates held in single cells. Id., ¶ 18. Symptomatic and confirmed inmates are assessed by medical and relocated if appropriate based on their reclassification by medical. Robinson, ¶ 34; Jones, ¶¶ 5-10. The Sheriff has posted information about COVID-19 and instructions about the importance of social distancing
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throughout the jail, and on inmate television. Robinson, ¶¶ 10-11. In-person visitations (other than with attorneys) have been suspended (and, to compensate for this suspension, video visitations have been made available to whoever requests them free of charge). Id., ¶ 13.
The Interim Guidance on cleaning and disinfection practices recommends ensuring adequate supplies to support intensified cleaning and disinfection practices. Interim Guidance, p. 9. This has happened. Robinson, ¶¶ 21-23. If a case is confirmed or suspected, a third-party vendor sanitizes the areas in which the confirmed or suspected inmate had contact. Id., ¶ 22. On personal hygiene, the Interim Guidance recommends soap be made available, and soap is made plentifully available at no cost to inmates. Id., ¶ 24.
The declarations submitted by the Plaintiffs, in several instances, confirm the Sheriff’s practices described above.11 Although the declarations are in many cases dated around March 23rd, about the same time that the stay-at-home order in Dallas County went into effect, Plaintiffs’ evidence confirms that even at that early stage, COVID-19 mitigation efforts were in effect. As just one example, Mr. Hinojosa confirms that he began receiving instructions about social distancing and washing hands frequently in February. See ECF No. 3-3, ¶ 4. Mr. Hinojosa confirms that access to soap was available and that jail staff were wearing PPE. Id., ¶¶ 6-7. Mr. Hinojosa also confirms that sick inmates around him were removed from his area and relocated. Id., ¶ 1.
2. Plaintiffs are not likely to succeed on their claim for mass release of detainees.
11 Plaintiffs’ declarations often constitute hearsay, or hearsay within hearsay. Some of the Plaintiffs appear to have been interviewed over the phone and their comments transcribed by Plaintiffs’ counsel. Of course, the Court is not obliged to refuse to consider hearsay at this preliminary stage. But in weighing the evidence and considering the totality of the record at this very early stage, the Court should consider that the declarations of persons seeking release from jail under these unusual circumstances are likely to be uniquely self-serving.
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There is no likelihood that Plaintiffs will prevail on their claim that Sheriff Brown violated the rights of medically vulnerable detainees by refusing to release them based on nothing more than their age or potential susceptibility to infection.
First, the Sheriff has not acted unreasonably by not unilaterally releasing inmates from jail who are detained pursuant to a facially valid court order. The Sheriff has a legal obligation to follow all lawful “process and precepts,” including the bond or probation orders that led to the detention of the proposed sub-classes. See Tex. Local Gov’t Code § 85.021-22 (stating that the county sheriff “shall execute all process and precepts directed to the sheriff by legal authority”). Were Sheriff Brown to do otherwise, she could be held in contempt for “willfully refus[ing] or fail[ing] from neglect to execute any summons, subpoena or attachment for a witness, or any other legal process which it is made [her] duty by law to execute.” Tex. Code Crim. Proc art. 2.16 (emphasis added); see also Tex. Local Gov’t Code § 85.021-22; Tex. Code Crim. Proc art. 2.18; Scott v. O’Grady, 975 F.2d 366, 371 (7th Cir. 1992) (construing a similar statute and noting that the sheriff has a statutory duty to follow court orders). The Sheriff must follow state law— she cannot instead “choose” to release inmates. Because the Sheriff has no legal authority to release any jail inmate in violation of the court order setting the terms of that inmate’s confinement, her inability to release the proposed classes of detainees to this point in time is objectively reasonable and not a deliberately indifferent violation of their rights.
Second, the subclasses of medically vulnerable detainees are not entitled to release by mass-writ of habeas corpus under 28 U.S.C. § 2241. See ECF No. 3, p. 34 (seeking a writ of habeas corpus requiring release of designated subclasses).12 In the Fifth Circuit, the exhaustion requirement is not prudential, as Plaintiffs suggest, but mandatory absent “special
12 For this reason, the Sheriff is also not a proper party to this suit for purposes of habeas relief. Sheriff Brown and Dallas County incorporate by reference their briefing from their concurrently filed motion to dismiss.
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circumstances.” See Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987). This requirement serves important comity purposes—“protecting the state courts’ opportunity to confront and resolve initially any constitutional issues arising within their jurisdictions as well as to limit federal interference in the state adjudicatory process.” Id. (citations omitted).
While “inordinate and unjustified” delay may justify excusing the exhaustion requirement, see Hopes v. Davis, 761 Fed. Appx. 307, 310 (5th Cir. 2019) (citations omitted), Plaintiffs do not allege that any such delay has happened for any individual petitioner, or that any petitioner has even attempted to commence, let alone exhaust, state remedies. And Plaintiffs cite no relevant authority to support their conclusion that no exhaustion requirement could “conceivably” apply to state court prisoners seeking “COVID-based discharge.” ECF No. 1, p. 38. Although Plaintiffs claim that courts “across the country have granted emergency habeas petitions ordering the release of medically vulnerable people from confinement,” (see ECF No. 3, p. 31), each of the cases Plaintiff cites deal with individual federal prisoners (or small groups of prisoners, not the class of thousands proposed here) detained by ICE, who successfully proved that their individual circumstances and unique susceptibility to COVID-19 justified release.
Moreover, had Plaintiffs attempted a state court remedy before coming to this Court, they would likely have been successful. With the full cooperation of Sheriff Brown, the courts in Dallas County are already conducting individualized determinations of the eligibility of medically vulnerable inmates for release. And any detainee currently in the Dallas County jail— medically vulnerable or otherwise—may seek to have his or her bail reduced or eliminated altogether, under Texas law and under the injunction currently in place in Dallas County resulting from the Daves v. Dallas County litigation, requiring that judges hold bail review hearings for misdemeanor and felony arrestees within hours of arrest. See Daves v. Dallas Cnty.,
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Tex., 341 F. Supp. 3d 688, 695–96 (N.D. Tex. 2018). Plaintiffs offer no evidence that these hearings are not occurring, nor do Plaintiffs offer any non-speculative evidence that the hearings do not result in the release of qualified inmates—Plaintiffs’ own evidence confirms the opposite. See ECF No. 1-11 at 4. Plaintiffs instead invite this Court to take an end-run around this process and substitute its judgment for the judgment of state court judges, who are required by law to give individualized consideration to the facts and circumstances of each person appearing before them. The Court should decline to do so.
In the meantime, as described throughout this brief, the Sheriff has worked to implement the CDC Guidance for Correctional and Detention Facilities. Those non-binding guidelines explicitly acknowledge the unique challenges faced by jails, and allow for significant flexibility for administrators like Sheriff Brown to adapt the guidelines to the physical space, staffing, population, operations, and other conditions and limitations at the Dallas County Jail. The CDC guidelines do not require, recommend, or even hint at the possibility of mass inmate release— regardless of how susceptible those inmates are to infection. The Sheriff’s decision to work with judges in lieu of categorically releasing detainees—which she may not legally do herself—is objectively reasonable. And the Sheriff’s implementation of policies and procedures consistent with CDC guidelines shows that she has not been deliberately indifferent to this unprecedented threat. Plaintiff is unlikely to succeed on the merits.
C. Plaintiffs cannot establish irreparable harm. Plaintiffs also cannot establish that the extraordinary injunctive relief they seek is necessary. Other legal processes govern Plaintiffs’ ability to obtain release. Other remedies less irrevocable and drastic than mass release from the Dallas County Jail would suffice to provide for medically vulnerable detainees, if any such remedies were warranted (which they are not).
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Every detainee in the Dallas County Jail is confined pursuant to a court order setting out conditions of bond or court findings justifying detention. The Sheriff may not alter those conditions. Only a judge can do that. The judges in Dallas County, with the assistance of the Sheriff, are reviewing inmates on a daily basis (specifically but not exclusively medically vulnerable arrestees) to determine their eligibility for release to address jail crowding. No one— not the Sheriff, not the judges, not anyone else in Dallas County—is simply ignoring this pervasive issue. Only Plaintiffs have elected to forego their state court remedies entirely in order to seek an emergency injunction from federal court. Because Plaintiffs have available remedies, they will not suffer irreparable harm in the absence of an injunction.
Additionally, Plaintiffs are not entitled to an injunction requiring the Sheriff to adopt procedures consistent with “public health guidance.” The public health consensus regarding COVID-19 is evolving on a daily basis.13 The Sheriff is already guided and assisted by public health experts, including the Dallas County Department of Health and Human Services and Parkland. Jones, ¶ 11. And as discussed above, the Sheriff has already taken steps to implement the CDC Interim Guidance in the Dallas County Jail. Plaintiffs have made no showing of why the CDC Interim Guidance is insufficient. (These proactive measures by the Sheriff also demonstrate why the appointment of a public health expert is unwarranted.)
Plaintiffs also fail to demonstrate why no remedy will suffice short of releasing people from the jail. No local, state, or federal guidance requires this. To the best of Defendants’ knowledge, no jurisdiction in this country—not even the jurisdictions most ravaged by COVID19—has yet determined that a blanket release of all medically vulnerable inmates, followed by the release of any other inmates necessary to guarantee social distancing, is advisable or even
13 See, e.g., DALLAS MORNING NEWS, Dallas Hospital Group: We’ll be able to handle North Texas coronavirus surge (Apr. 14, 2020), available at https://www.dallasnews.com/news/public-health/2020/04/14/dallashospital-group-well-be-able-to-handle-north-texas-coronavirus-surge/.
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possible. For example, Dr. Robert Cohen, one of Plaintiff’s medical experts (see ECF No. 3-2), serves on the New York Board of Correction. Dr. Cohen testifies in support of Plaintiff’s proposed mass release of inmates. But jails in New York State have thus far refrained from adopting the wholesale release of inmates. Where courts have ordered inmates to be released, those courts have been state courts, not federal courts, and the classes of inmates released have been narrow—for example, parole violations.
D. The proposed relief would be detrimental to the public interest. Plaintiffs’ proposal to remedy an unprecedented threat with unprecedented court-ordered emergency relief would be extremely detrimental to the public interest. Ordering categorical release of the proposed subclass detainees, with no regard for their risk to society upon release, would be detrimental to the public interest. Dallas County is currently under an injunction requiring Dallas County to provide a judicial individualized assessment of all relevant state law factors when setting bail. See Order of Preliminary Injunction, ECF No. 166, Daves v. Dallas County, No. 3:18-cv-00154-N. This injunction applies to all detainees booked into the Dallas County Jail, providing for an individualized assessment at magistration (within forty-eight hours after booking) and a subsequent bail review hearing before the assigned court. In making the individualized assessment, judges consider the detainee’s sworn personal and financial information, as well as the results of a validated risk assessment tool. Judges then make a determination on what conditions of release would be appropriate on a case by case basis, after examining all relevant factors and information available. The proposed class is made up, in large part, of inmates who have already been individually assessed by a magistrate (and in some cases, likely by the assigned court as well), and determined not to be eligible for a reduced bond or a personal bond. Most jail inmates are currently detained pursuant
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to new felony charges—4,105 of today’s jail population of jail population of 4,967. Robinson, ¶ 6. In all, less than 200 current inmates are detained pursuant to new misdemeanor charges, with about half of those inmates subject to pending holds. Id. This Court should presume that they are detained for a good reason—state judicial officers have conducted an individual assessment of the arrestee, applying state law factors, and set a bond accordingly.
CONCLUSION AND PRAYER
As Judge Rosenthal acknowledged yesterday, in emergency circumstances like those before this Court, “it is best to leave sensitive policy and political decisions on crafting procedures to accomplish the shared goal of safely reducing the Jail population to elected and appointed officials.” See Russell v. Harris County, No. H-19-226, ECF No. 122 at p. 28. Defendants look forward to educating Plaintiffs and the Court further on their efforts to safeguard the jail population and the community at large. But at this time, on the record before the Court, emergency relief is not warranted and runs the risk of imposing imprecise and disruptive remedies on the day-to-day operations of the Jail.
Defendants Sheriff Marian Brown and Dallas County, Texas respectfully request that the Court enter an order denying Plaintiffs’ Emergency Motion for Temporary Restraining Order or Preliminary Injunction, and all other and further relief to which they are justly entitled.
[signatures on following page]
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Respectfully Submitted,
HUSCH BLACKWELL LLP
/s/ Kate David Katharine D. David Texas Bar No. 24045749 kate.david@huschblackwell.com Nick Stepp Texas Bar No. 24077701 nick.stepp@huschblackwell.com Ben Stephens Texas Bar No. 24098472 ben.stephens@huschblackwell.com 600 Travis, Suite 2350 Houston, Texas 77002 Tel: 713.525.6200 Fax: 713.647.6884
/s/ Russell H. Roden Russell H. Roden Texas Bar No. 17132070 russell.roden@dallascounty.org John Butrus Texas Bar No. 03537330 john.butrus@dallascounty.org 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207 Tel: 214.653.3600 Fax: 214.653.5774 COUNSEL FOR DALLAS COUNTY, TEXAS AND SHERIFF MARIAN BROWN
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was served on all counsel of record via the ECF
system of the Court on April 15, 2020.
/s/ Ben Stephens Ben Stephens
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Exhibit A Declaration of Fredrick Robinson

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 8 of 46 PageID 495

COMMUNICABLE DISEASES AND INFESTATIONS

A. Definition

1. A communicable disease is any disease that may be transmitted directly from one individual to another.

2. For practical purposes, transmission is through the air (aerosol or droplet exposure) or through blood to blood contact (cutaneous exposure).

B. Policy

It is the policy of the Inmate Housing Bureau:
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1. To familiarize all employees with the term "communicable disease".

2. To identify and explain the particular communicable diseases of concern to Detention personnel.

3. To practice accepted occupational precautions when handling inmates with communicable diseases, including infection control, medical service, food service, laundry service, access to programs, and housing assignments.

4. To provide a course of action to an employee who reasonably believes they have been exposed to a communicable disease while on duty.

C. Known Communicable Diseases and Infestations

1. Disease transmitted by aerosol or droplet exposure:

a. When transmitted by this method, the disease leaves the infected person through his mouth or nose.
b. It enters the uninfected person through his mouth or nose.

c. It may be transmitted from people who cough or sneeze on their hands and fail to wash their hands before shaking hands or touching others.

d. The following diseases are transmitted by aerosol or droplet exposure:

i. Tuberculosis.

ii. Meningitis.

iii. Measles/Rubella.

iv. Chicken Pox.

2. Disease transmitted by cutaneous exposure:

Detention Bureau 12-30-2010

a. Transmission of disease is through contact with blood or blood products of the infected person or by contact with objects contaminated with infectious blood or blood products.
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b. Disease is also spread by contact with other body fluids such as saliva, semen, or vaginal secretions.

c. The following diseases are transmitted by per cutaneous exposure:

i. Hepatitis B (serum).

ii. Syphilis.

iii. AIDS/HIVS (discussed above).

3. Infestations (lice):

a. The following infestations (lice) are transmitted through close personal contact with an infected person or through sharing of personal articles such as combs and hats:

i. Head lice.

ii. Crab lice.

b. Head lice live on the head. Crab lice live in the pubic hair area (crotch, underarms).

c. Lice are dependent upon human blood for sustenance and cannot survive away from the human body for more than 24 hours.

d. Lice must crawl and cannot jump from one person to another.

D. Infection Control

1. Treat all inmates as if they were infected.

2. Wash hands frequently using a disinfectant soap.

3. Wear gloves when in physical contact with inmates or their possessions.

4.
Detention Bureau 12-30-2010

Infection control supplies and equipment, including bleach/disinfectant solution, plastic gloves, face masks, and airways for use during CPR, are available in the Supervisor's
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Office.

E. Medical Treatment

Medical treatment is in accordance with PMH procedures and Dallas County Health Department guidelines for treatment and control of communicable diseases and infestations.

F. Access to Programs

1. Inmates are denied access to certain programs upon written order of a physician if the inmate's condition exposes others to the disease.

2. In other instances, inmates are allowed access to programs but are separated from the general jail population.

G. Housing Assignments

1. Inmates with these diseases or infestations may be separated from the general jail population while contagious.

2. The decision to isolate an inmate is made by the medical staff on a case-by-case basis.

K. Employee Exposure

1. If an employee reasonably believes he has been infected with a communicable disease in the course and scope of this employment, he should contact his Supervisor.

2. The Employer's First Report of Injury or Illness is completed and submitted within 24 hours.

3. A sworn affidavit detailing the date and circumstances of the exposure accompany this report.

L. Body Lice (Crabs)

1. When an inmate states they have "crabs", the Floor Officer notifies the Nurse.

2.
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If the Nurse determines the inmate is infected, the inmate is treated.
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3. The officer goes to the laundry storage location at the housing facility and obtains clothing for the inmate to put on after his shower.

4. The inmate removes all clothing, and places it in a yellow plastic bag.

5. The inmate uses the medication provided by the Nurse, in accordance with the instructions as listed on the container. The container is removed from the tank immediately after use.

6. The plastic bag with the inmate's clothing, along with the inmate's mattress is placed in the dirty laundry storage area.

HIGH SECURITY RISK INMATES REQUIRING MEDICAL CARE AT THE HOSPITAL

A. An inmate is defined as a high security risk if his charges are

1. First degree felonies involving violence (Murder, Capital Murder, etc)

2. High Profile: notoriety (highly publicized crime, to be determined by Classification)

3. Escape (dressed in orange jail clothing)

4. Bond amounts in excess of $1,000,000.00

5. TDCJ Sentence of over 25 years, life sentence, or death sentence.

B. An inmate is defined as a high security risk if the inmate’s life has been threatened.

C. An inmate defined as a high security risk is transported to the emergency room with two deputies and if admitted, the inmate is guarded by two deputies.

D. Requests are not made to the SHOT officers to provide a guard; however, the SHOT supervisors are notified that the inmate has been admitted into the hospital and his hospital room assignment.

E. Relief of deputies assigned to guard a high security risk inmate is

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Exhibit B Declaration of Fredrick Robinson

IntCearsiem3:20G-cuv-i0d08a32n-EceDoocnumMenta34n-1agFieledm04e/1n5/t20ofPaCgoe r15oonf 4a6viPraugesIDD50i2sease 2019 (COVID-19) in Correctional and Detention Facilities

This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.
The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html.
This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.

In this guidance
• Who is the intended audience for this guidance?
• Why is this guidance being issued?
• What topics does this guidance include?
• Definitions of Commonly Used Terms
• Facilities with Limited Onsite Healthcare Services
• COVID-19 Guidance for Correctional Facilities
• Operational Preparedness
• Prevention
• Management
• Infection Control
• Clinical Care of COVID-19 Cases
• Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
• Verbal Screening and Temperature Check Protocols for Incarcerated/ Detained Persons, Staff, and Visitors

Who is the intended audience for this guidance?
This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., US Immigration and Customs Enforcement and US Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings.
This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance.

CS 316182-A  03/27/2020

cdc.gov/coronavirus

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Why is this guidance being issued?
Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19.
• Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
• In most cases, incarcerated/detained persons are not permitted to leave the facility.
• There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
• Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
• Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
• Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
• Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
• Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
• Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
• The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
• Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.
CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, community-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 17 of 46 PageID 504 This guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.
What topics does this guidance include?
The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings:
√ Operational and communications preparations for COVID-19
√ Enhanced cleaning/disinfecting and hygiene practices
√ Social distancing strategies to increase space between individuals in the facility
√ How to limit transmission from visitors
√ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages
√ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors
√ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited
√ Healthcare evaluation for suspected cases, including testing for COVID-19
√ Clinical care for confirmed and suspected cases
√ Considerations for persons at higher risk of severe disease from COVID-19
Definitions of Commonly Used Terms
Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes.
Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 18 of 46 PageID 505 Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case.
Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed.
Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion.
Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility.
Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication.
Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators.
Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics.
Facilities with Limited Onsite Healthcare Services
Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 19 of 46 PageID 506 The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible.
Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic.
COVID-19 Guidance for Correctional Facilities
Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community.
• Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices.
• Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals).
• Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.
Operational Preparedness
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life.
Communication & Coordination
√ Develop information-sharing systems with partners.
ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility.
ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 20 of 46 PageID 507 ο Communicate with other correctional facilities in the same geographic area to share information
including disease surveillance and absenteeism patterns among staff. ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected
COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known.
√ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). The plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes.
√ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak.
√ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
Personnel Practices
√ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 21 of 46 PageID 508 √ Identify staff whose duties would allow them to work from home. Where possible, allowing
staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission.
ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so.
ο Put systems in place to implement work from home programs (e.g., time tracking, etc.).
√ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals.
ο Allow staff to work from home when possible, within the scope of their duties.
ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible.
ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels.
ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages.
√ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19.
√ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources.
√ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health.
√ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer.
Operations & Supplies
√ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs
ο Tissues
ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
ο Hand drying supplies
ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions)
ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 22 of 46 PageID 509 ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and
disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s. ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated
√ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies.
√ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty.
√ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.
√ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities.
√ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts.
Prevention
Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.
Operations
√ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities
√ Communicate with the public about any changes to facility operations, including visitation programs.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 23 of 46 PageID 510 √ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and
facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in
the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ Implement lawful alternatives to in-person court appearances where permissible.
√ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms.
√ Limit the number of operational entrances and exits to the facility.
Cleaning and Disinfecting Practices
√ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced.
√ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. This may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use.
√ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day.
√ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 24 of 46 PageID 511
Hygiene
√ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
√ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use.
ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact.
√ Provide incarcerated/detained persons and staff no-cost access to:
ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing.
ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal
√ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene.
√ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals.
Prevention Practices for Incarcerated/Detained Persons
√ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below).
ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath):  Require the individual to wear a face mask.  Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE.  Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 25 of 46 PageID 512 ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19
symptoms):  Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.)  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care.
√ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include:
ο Common areas:  Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area)
ο Recreation:  Choose recreation spaces where individuals can spread out  Stagger time in recreation spaces  Restrict recreation space usage to a single housing unit per space (where feasible)
ο Meals:  Stagger meals  Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table)  Provide meals inside housing units or cells
ο Group activities:  Limit the size of group activities  Increase space between individuals during group activities  Suspend group programs where participants are likely to be in closer contact than they are in their housing environment  Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out
ο Housing:  If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.)  Arrange bunks so that individuals sleep head to foot to increase the distance between them  Rearrange scheduled movements to minimize mixing of individuals from different housing areas
ο Medical:  If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call.  Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 26 of 46 PageID 513 √ Communicate clearly and frequently with incarcerated/detained persons about changes to their
daily routine and how they can contribute to risk reduction.
√ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
√ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility.
√ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness
√ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.
Prevention Practices for Staff
√ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDCrecommended steps for persons who are ill with COVID-19 symptoms.
√ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms.
√ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 27 of 46 PageID 514 √ When feasible and consistent with security priorities, encourage staff to maintain a distance of
6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways.
√ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible.
Prevention Practices for Visitors
√ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility.
√ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening.
√ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas.
√ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy.
√ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors.
√ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult.
NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 28 of 46 PageID 515 If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits.
√ Restrict non-essential vendors, volunteers, and tours from entering the facility.
Management
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
Operations
√ Implement alternate work arrangements deemed feasible in the Operational Preparedness section.
√ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport.
√ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine.
√ When possible, arrange lawful alternatives to in-person court appearances.
√ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.)  If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing.  If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care.  Before releasing an incarcerated/detained individual with COVID-19 symptoms to a communitybased facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 29 of 46 PageID 516 √ Coordinate with state, local, tribal, and/or territorial health departments.
ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below.
ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below.
ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section.
Hygiene
√ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.)
√ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.)
Cleaning and Disinfecting Practices
√ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.)
√ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below).
Medical Isolation of Confirmed or Suspected COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care.
√ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.
√ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible.
√ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet.
√ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
15

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 30 of 46 PageID 517 ο If cohorting is necessary:
 Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.
 Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection.
 Ensure that cohorted cases wear face masks at all times.
√ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
If the ideal choice does not exist in a facility, use the next best alternative.
√ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
√ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible.
√ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 31 of 46 PageID 518 √ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch
trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked.
√ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria.
For individuals who will be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart
For individuals who will NOT be tested to determine if they are still contagious:  The individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND  The individual’s other symptoms have improved (e.g., cough, shortness of breath) AND  At least 7 days have passed since the first symptoms appeared
For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο The individual has had no subsequent illness
√ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning.
Cleaning Spaces where COVID-19 Cases Spent Time
Thoroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases.
ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets.
ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 32 of 46 PageID 519 √ Hard (non-porous) surface cleaning and disinfection
ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility.  Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.).  Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
√ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:  If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.  Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces.
√ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present.  Follow the manufacturer’s instructions for all cleaning and disinfection products.  Consider use of wipeable covers for electronics.  If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website.
√ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.)
√ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after.
ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air.
ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 33 of 46 PageID 520 ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible,
consider using a bag liner that is either disposable or can be laundered.
√ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
Quarantining Close Contacts of COVID-19 Cases
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.
√ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions.
√ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on)
Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient).
√ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible.
√ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options.
ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately.
ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place.
ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 34 of 46 PageID 521 ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day
quarantine clock has started.
√ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.)
√ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements
(NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.)
√ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks.
√ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 35 of 46 PageID 522 √ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including
temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.)
ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases.
√ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period.
ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.
√ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns.
√ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period.
√ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves.
√ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after.
ο Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air.
ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.
Management of Incarcerated/Detained Persons with COVID-19 Symptoms
NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care.
√ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
21

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 36 of 46 PageID 523 √ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing
is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well.
√ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care.
Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms
√ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision.
√ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check.
√ Consider additional options to intensify social distancing within the facility.
Management Strategies for Staff
√ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff.
√ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff.
Infection Control
Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases.
√ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
22

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 37 of 46 PageID 524 ο Implement the above guidance as fully as possible within the correctional/detention context. Some
of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs. ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning).
√ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section).
√ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items.
Clinical Care of COVID-19 Cases
√ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο The initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue.
√ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations.
√ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.
√ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza).
√ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide.
√ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.
Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons
√ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 38 of 46 PageID 525 ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s)
for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program. ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel.
√ Ensure that all staff are trained to perform hand hygiene after removing PPE.
√ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE.
√ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency.
√ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator
See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves
Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible
 If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label.
 If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff.
√ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators  Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 39 of 46 PageID 526 Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response

Classification of Individual Wearing PPE

N95 respirator

Face mask

Eye Protection

Gloves

Gown/ Coveralls

Incarcerated/Detained Persons

Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort

Incarcerated/detained persons who are confirmed or

suspected COVID-19 cases, or showing symptoms of

–



–

–

–

COVID-19

Incarcerated/detained persons in a work placement

handling laundry or used food service items from a

–

–

–





COVID-19 case or case contact

Incarcerated/detained persons in a work placement Additional PPE may be needed based on

cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for





more details.

Staff

Staff having direct contact with asymptomatic incarcerated/detained persons under quarantine as close contacts of a COVID-19 case* (but not performing temperature checks or providing medical care)

–

Face mask, eye protection, and gloves as local supply and scope of duties allow.

–

Staff performing temperature checks on any group

of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic

–

quarantined persons









Staff having direct contact with (including transport)

or offering medical care to confirmed or suspected

**

COVID-19 cases (see CDC infection control guidelines)







Staff present during a procedure on a confirmed

or suspected COVID-19 case that may generate respiratory aerosols (see CDC infection control



–







guidelines)

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

–

–

–





Staff cleaning an area where a COVID-19 case has

Additional PPE may be needed based on

spent time

the product label. See CDC guidelines for





more details.

* If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary.
** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff.

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Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 40 of 46 PageID 527
Exhibit C Declaration of Fredrick Robinson

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 41 of 46 PageID 528

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 42 of 46 PageID 529
Exhibit D Declaration of Fredrick Robinson

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 43 of 46 PageID 530

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 44 of 46 PageID 531

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 45 of 46 PageID 532

Case 3:20-cv-00832-E Document 34-1 Filed 04/15/20 Page 46 of 46 PageID 533
Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors
The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include
the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms?  Fever, felt feverish, or had chills?  Cough?  Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?
√ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
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Case 3:20-cv-00832-E Document 34-2 Filed 04/15/20 Page 1 of 2 PageID 534

Case 3:20-cv-00832-E Document 34-2 Filed 04/15/20 Page 2 of 2 PageID 535

Case 3:20-cv-00832-E Document 34-3 Filed 04/15/20 Page 1 of 2 PageID 536

Case 3:20-cv-00832-E Document 34-3 Filed 04/15/20 Page 2 of 2 PageID 537

 
 Case 3:20-cv-00832-E Document 35 Filed 04/15/20 Page 1 of 3 PageID 538

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD,

§

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL

§

WRIGHT, TERRY MCNICKLES,

§

AND JOSE MUNOZ, on their own

§

behalf and on behalf of a class of

§

similarly situated persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Civil Action Case No. 3:20-cv-00832

MOTION TO DISMISS

Defendants, Dallas County Sheriff Marian Brown, in her official capacity, and Dallas County, Texas move to dismiss Plaintiffs’ Petition for Habeas Corpus in its entirety and the purported post-adjudication class’s 42 U.S.C. § 1983 claims. Plaintiffs’ habeas claims should be dismissed because habeas petitions may not be used to challenge conditions of confinement. They are available for challenging the cause of confinement, for which the only available remedy is release. Plaintiffs have therefore not stated a claim for habeas relief.
The post-adjudication Plaintiffs’ 42 U.S.C. § 1983 claims should be dismissed because granting these Plaintiffs release—which they claim is “the only medically and legally sound remedy”— would necessarily imply the invalidity of their judgments of conviction and terms of confinement.

Case 3:20-cv-00832-E Document 35 Filed 04/15/20 Page 2 of 3 PageID 539

Finally, the Court should abstain from entertaining Plaintiffs’ claims at this time.

Conditions are dynamic, and constitutional litigation punctuated with court orders on sensitive

issues of federalism and the interplay of competing interests, fraught with the threat of contempt,

would not serve Plaintiffs, Defendants, or the public interest well.

In support of this Motion, Defendants rely on the following contemporaneously filed

documents:

1. Brief in Support of Defendants’ Motion to Dismiss; and,

2. Proposed Order Granting Defendants’ Motion to Dismiss.

For the reasons stated in this Motion and its accompanying documents, Defendants

respectfully request that the Court grant this Motion to Dismiss.

Date: April 15, 2020

Respectfully Submitted,

HUSCH BLACKWELL LLP

/s/ Kate David Katharine D. David Texas Bar No. 24045749 kate.david@huschblackwell.com Nick Stepp Texas Bar No. 24077701 nick.stepp@huschblackwell.com Ben Stephens Texas Bar No. 24098472 ben.stephens@huschblackwell.com 600 Travis, Suite 2350 Houston, Texas 77002 Tel: 713.525.6200 Fax: 713.647.6884

/s/ Russell H. Roden Russell H. Roden Texas Bar No. 17132070 russell.roden@dallascounty.org John Butrus Texas Bar No. 03537330 john.butrus@dallascounty.org

2

Case 3:20-cv-00832-E Document 35 Filed 04/15/20 Page 3 of 3 PageID 540 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207 Tel: 214.653.3600 Fax: 214.653.5774 COUNSEL FOR DALLAS COUNTY, TEXAS AND SHERIFF MARIAN BROWN
CERTIFICATE OF SERVICE I certify that on this, the 15th day of April, 2020, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Nicholas D. Stepp Nicholas D. Stepp
3

Case 3:20-cv-00832-E Document 35-1 Filed 04/15/20 Page 1 of 2 PageID 541

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD,

§

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL

§

WRIGHT, TERRY MCNICKLES,

§

AND JOSE MUNOZ, on their own

§

behalf and on behalf of a class of

§

similarly situated persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Civil Action Case No. 3:20-cv-00832

[PROPOSED] ORDER

Before the Court is Defendants’ Motion to Dismiss. Having considered the Motion, the Brief in Support, Plaintiffs’ Response in Opposition, any Reply, and arguments of counsel, the Court is of the opinion that the Motion should be GRANTED.
BE IT THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ Petition for Writ of Habeas Corpus is dismissed without prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
BE IT FURTHER ORDERED, ADJUDGED, AND DECREED that the 42 U.S.C. § 1983 claims of the putative post-adjudication class are dismissed without prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Case 3:20-cv-00832-E Document 35-1 Filed 04/15/20 Page 2 of 2 PageID 542
BE IT FURTHER ORDERED, ADJUDGED, AND DECREED that the Court abstains from ruling on the remaining 42 U.S.C. § 1983 claims.
This order dismisses all pending claims.

Date: _______________

__________________________________ The Honorable Ada Brown

 
 Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 1 of 10 PageID 543

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD,

§

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL

§

WRIGHT, TERRY MCNICKLES,

§

AND JOSE MUNOZ, on their own

§

behalf and on behalf of a class of

§

similarly situated persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Civil Action Case No. 3:20-cv-00832

BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

Plaintiffs, all of whom are, or were, state detainees at the Dallas County Jail, challenge their conditions of confinement under the auspices of a Section 2241 habeas claim. The Fifth Circuit has held that habeas relief is not an appropriate vehicle to challenge conditions of confinement. As such, Plaintiffs have failed to state a claim for which relief can be granted, and their habeas claims should be dismissed. FED. R. CIV. P. 12(b)(6).
Plaintiffs’ habeas claims should also be dismissed because they have failed to exhaust their remedies in state court, and have not provided any basis on which one can reasonably conclude that Plaintiffs are excused from exhausting their state law remedies. Id.
Finally, the post-adjudication Plaintiffs may not use § 1983 to seek release because doing so would undermine the validity of their convictions. Those claims should also be dismissed. Id.

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Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 2 of 10 PageID 544
I. Standard of Review To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Assuming they are true, a plaintiff’s allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. II. Plaintiffs’ habeas claims must be dismissed under Rule 12(b)(6) because they have
not exhausted available state court remedies. In order to be eligible for habeas relief a petitioner must have exhausted his or her available state remedies. Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987). The common law exhaustion doctrine imposed on Section 2241(c)(3) was crafted based on concerns about the delicate state–federal balance in order to protect state courts’ opportunity to confront and resolve initially any constitutional issues arising within their jurisdictions as well as to limit federal interference in the state adjudicatory process. Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 489–92 (1973). Texas law provides for the reduction of bail and release thereon. TEX. CODE CRIM. P. art. 17.09 § 3. The Texas Code of Criminal Procedure provides factors that guide judicial discretion in setting bond amounts. Id. art. 17.15. Texas procedure also affords clear timeframes for mandatory bond reduction or imposition of a personal bond. Id. art. 17.151. Habeas relief is also available under Texas law. See, e.g., In re McCray, 324 S.W.3d 685 (Tex. App.—Dallas 2010, orig. proceeding).
2
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Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 3 of 10 PageID 545

Plaintiffs do not allege that they have exhausted their state law remedies. In fact,

Plaintiffs do not allege that any one of them has sought any state law remedy. Instead, they

allege that “Section 2241 contains no exhaustion requirement conceivably applicable to prisoners

seeking COVID-based discharge.” ECF No. 1 at 38 ¶ 86. Plaintiffs’ claim ignores the

longstanding principle that, as a matter of comity, federal courts do not ignore available state

adjudicatory processes.

The only exception to the exhaustion requirement that Plaintiffs cite is the exception for

when state procedures do not afford swift vindication. Id. The pre-adjudication Plaintiffs do not

contend that they sought expedited bond review hearings or initiated any state court remedy. The

post-adjudication plaintiffs likewise do not allege that they initiated any state court proceedings

to seek release. They merely say that these processes “would take months under normal

circumstances, and certainly will now take longer.” Id. Plaintiffs’ argument fails for four reasons.

First, Plaintiffs pretend, without evidence, that they would lose at every stage of the

habeas process and be forced to pursue appeals. Second, while Plaintiffs ignore the bond

reduction process, they attach an e-mail from the Dallas County Criminal District Courts

Manager, Keta Dickerson. ECF No. 1-11 at 4. Ms. Dickerson informed court-appointed counsel

that the Criminal District Courts are:



Currently open;



Conducting essential hearings by any and all available means;



Prioritizing bail hearings and jail pleas;



Taking all reasonable steps to avoid exposing people to the threat of

coronavirus; and



Working to try to streamline an electronic system for hearing bond matters

and jail pleas.

3
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Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 4 of 10 PageID 546
ECF No. 1-11 at 4. This evidence does not support a contention that available state law remedies, such as bond reduction or personal bonds, are futile or will take months; it supports a finding that state courts are “prioritizing bail hearings and jail pleas” and “taking all reasonable steps to avoid exposing people to the threat of coronavirus.” Id.
Third, Plaintiffs’ attempt to escape their obligation to seek adequate state law remedies fails because their conclusory allegation that COVID-19 will lengthen the time it takes for them to obtain relief in state courts. ECF No. 1 at 38 ¶ 86 & n.103. What Plaintiffs fail to mention is that the only Dallas County courts that are closed are municipal courts.1 Municipal courts do not have jurisdiction over offenses that may result in incarceration. TEX. GOV’T CODE § 29.003.
Finally, available state law remedies have been anything but futile or slow in the last month. Plaintiffs rely on the Dallas County Jail’s daily population report data for April 6, 2020. ECF No. 1 at 30 ¶ 71.
The Supreme Court of Texas and the Texas Court of Criminal Appeals jointly issued their first order regarding court operations during COVID-19 on March 13, 2020. Misc. Order No. 20-9042 (Tex. Mar. 13, 2020); Misc. Order No. 20-007 (Tex. Crim. App. Mar. 13, 2020).2 The daily population report to which Plaintiffs refer shows a steep decline in Dallas County Jail population since March 13, 2020. On March 15, 2020, the total Jail population was 5,952. The population declined to 5,618 on March 24, and again to 5,225 on April 3, and finally to 5,180 on April 6. Today’s Jail population is under 5,000.3
1 Current & Upcoming Closures, Texas Judicial Branch, https://www.txcourts.gov/ programs-services/court-security/emergency-court-preparedness/closures/ (last visited Apr. 15, 2020).
2 Available at https://www.txcourts.gov/media/coronavirus-covid-19-emergency-orders/. 3 Courts may routinely consider not just documents named in Plaintiffs’ Complaint, but also documents that, if not named, are pertinent, central, or integral to Plaintiffs’ claim. Bryant v. Avado Brands, 187 F.3d 1271, 1281 (11th Cir. 1999). Documents relied on by a defendant are
4
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Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 5 of 10 PageID 547

Plaintiffs’ Complaint acknowledges that detainees have been released recently. ECF No. 1 at 26 ¶ 61. The data to which Plaintiffs refer, however, demonstrates just how diligently the Dallas County Criminal Court at Law and State District Court judges have been working to release detainees when possible.4

6200 6000 5800 5600 5400 5200 5000 4800
9‐Feb

Dallas County Jail Population
19‐Feb 29‐Feb 10‐Mar 20‐Mar 30‐Mar

9‐Apr

19‐Apr

There is no support for Plaintiffs’ conclusory allegation that state law remedies have been slow or unavailable. At a minimum, it is incongruous for Plaintiffs to allege that state procedures do not afford swift vindication; attach evidence that Dallas County courts are open, using all available means to conduct essential hearings, and prioritizing bail hearings and jail pleas; and not allege or show that any plaintiff has sought any relief in state court. There is no reason to depart from the well-established rule that habeas plaintiffs must exhaust state court remedies before seeking relief in federal court. Plaintiffs’ habeas claims should be dismissed.

considered part of the pleadings if they are referred to in the plaintiffs’ complaint and are central to plaintiffs’ claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000).
4 For context, Defendants refer to the remainder of the relevant public reports to which Plaintiffs refer. Those reports are attached as Exhibit 1.
5
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Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 6 of 10 PageID 548
III. Plaintiffs have not stated a claim for habeas relief because their claims raise questions unrelated to the myriad causes of their detention. Habeas is not available to review questions unrelated to the cause of detention. The “sole
function” of a writ of habeas corpus 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). Plaintiffs complain about their conditions of confinement, not the cause for their detention. Plaintiffs do not allege that any order of confinement was procured or issued improperly. Plaintiffs do not allege that their convictions and the judgments thereon were entered in violation of their constitutional rights. Instead, they say the conditions of their confinement require release. Whatever their conditions of confinement, they are not related to Plaintiffs’ “cause of detention.” As such, Plaintiffs’ Petition for Writ of Habeas Corpus must fail, and the Court should dismiss those claims pursuant to Rule 12(b)(6).
Plaintiffs attempt to distinguish Pierre—which remains binding precedent—by saying that it is not clear how Section 2241 would apply in the context of COVID-19. This argument fails. “Allegations that challenge rules, customs, and procedures affecting conditions of confinement are properly brought in civil rights actions.” Schipke v. Van Buren, 239 Fed. App’x 85, 85–76 (5th Cir. 2007). Even when a habeas 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 Fed. App’x 678, 679 (5th Cir. 2009) (affirming the lower court’s dismissal of petitioner’s habeas claim even though he alleged that the conditions of confinement endangered his life). A petition for habeas corpus may not be used as a vehicle to challenge conditions of confinement. As such, Plaintiffs have not pleaded, and cannot plead, any set of facts under which they could
6
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Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 7 of 10 PageID 549
conceivably obtain habeas relief. Their habeas claims should be dismissed. FED. R. CIV. P. 12(b)(6). IV. The post-adjudication Plaintiffs fail to state a § 1983 claim because they challenge
the fact of their confinement and seek immediate release. Plaintiffs’ Complaint makes no effort to hide what they seek: “immediate release is the only medically and legally sound remedy, rather than mere mitigation and/or further proceedings.” ECF No. 1 at 37 ¶ 85. “Plaintiffs . . request immediate release of all Plaintiffs and Class Members.” Id. at 4 ¶ 9. A prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of confinement and seek immediate release. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). He or she must seek federal habeas corpus relief or appropriate state relief instead. Id. When a prisoner’s action demands immediate release or a shorter period of detention, it lies at the core of habeas corpus, and the prisoner may not pursue relief under § 1983. Id. Under Preiser, the post-adjudication Plaintiffs may not seek release under § 1983. When they are not seeking relief contrary to Preiser or ancillary relief predicated on release, the postadjudication Plaintiffs’ prayer seeks to alter the terms of their valid convictions and sentences. See, e.g., ECF. No. 1 at 42–43 ¶¶ 2, 5(a), 5(d). This relief is unavailable because it would necessarily imply the invalidity of their convictions and sentences. Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiffs ask this Court to impose additional restrictions on the validity of state court judgments ordering Plaintiffs to serve terms of confinement. According to Plaintiffs, they may not be sentenced to a term of confinement absent judicially recorded findings by clear and convincing evidence that the individual poses a danger to others that no condition other than confinement can mitigate. See, e.g., ECF No. 1 at 42–43 ¶¶ 2, 5(a), 5(d). Plaintiffs cite no authority that this requirement arises from the Constitution, or that such a requirement can be
7
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Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 8 of 10 PageID 550
retroactively applied to invalidate state court judgments. There is none.5 Because they seek release or additional findings to support their state court judgments, which would necessarily invalidate those judgments, the post-adjudication Plaintiffs have failed to state a § 1983 claim. V. The Court should abstain from entertaining Plaintiffs’ claims.
In a memorandum opinion issued yesterday, Judge Rosenthal explained the prudential reasons for a federal court to abstain from wading into the fracas to interfere with ongoing state efforts to respond to dynamic conditions. ECF No. 31. Abstention is particularly warranted where Plaintiffs seek to deploy the blunt instrument of constitutional litigation to obtain crude court-fashioned remedies that carry the threat of contempt. Id.; see Benzman v. Whitman, 523 F.3d 119, 125 (2d Cir. 2008). Abstention is also counseled by the strong policy that federal courts should not intervene in pending state court proceedings, such as those in which the preadjudication Plaintiffs are involved. Younger v. Harris, 401 U.S. 37 (1971); Middlesex Cnty. Ethics. Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1983).
If the Court does not dismiss all of Plaintiffs’ claims, the Court should nevertheless abstain from intervening at this juncture in order to allow state officials to weigh the competing interests at play in managing the Dallas County jail during this COVID-19 outbreak.
CONCLUSION AND PRAYER Under binding Fifth Circuit precedent, Plaintiffs’ cannot use habeas claims to challenge their conditions of confinement. As such, Plaintiffs’ habeas claims should be dismissed under Rule 12(b)(6). Further, Plaintiffs do not allege that they have attempted to access state law remedies, much less exhaust them. Federal courts do not entertain state prisoners’ habeas claims unless those petitioners first exhaust state court remedies. In light of the available state court
5 See also Daves v. Dallas Cnty., Tex., 341 F. Supp. 3d 688, 695–96 (N.D. Tex. 2018).
8
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Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 9 of 10 PageID 551

remedies, and the fact that Plaintiffs’ own evidence demonstrates the efficacy of those remedies,

there is no good reason for the Court to excuse Plaintiffs from the exhaustion requirement. Their

failure to exhaust is an additional and independent reason for which Plaintiffs’ habeas claims

should be dismissed.

Not only can Plaintiffs not use habeas as a vehicle to challenge the conditions of their

confinement, the post-adjudication Plaintiffs may not use § 1983 to collaterally attack their

conviction or seek relief. Because the post-adjudication Plaintiffs’ § 1983 claim seeks release,

those claims should be dismissed under Rule 12(b)(6) as well.

Regarding the remaining claims—the pre-adjudication § 1983 claims—the Court should

abstain from ruling on the basis of Younger.

Defendants also pray for all other and further relief to which they are justly entitled.

Date: April 15, 2020

Respectfully Submitted,

HUSCH BLACKWELL LLP

/s/ Kate David Katharine D. David Texas Bar No. 24045749 kate.david@huschblackwell.com Nick Stepp Texas Bar No. 24077701 nick.stepp@huschblackwell.com Ben Stephens Texas Bar No. 24098472 ben.stephens@huschblackwell.com 600 Travis, Suite 2350 Houston, Texas 77002 Tel: 713.525.6200 Fax: 713.647.6884

/s/ Russell H. Roden Russell H. Roden Texas Bar No. 17132070 russell.roden@dallascounty.org John Butrus

9
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Case 3:20-cv-00832-E Document 36 Filed 04/15/20 Page 10 of 10 PageID 552 Texas Bar No. 03537330 john.butrus@dallascounty.org 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207 Tel: 214.653.3600 Fax: 214.653.5774 COUNSEL FOR DALLAS COUNTY, TEXAS AND SHERIFF MARIAN BROWN
CERTIFICATE OF SERVICE I certify that a copy of the foregoing was served on all counsel of record via the ECF system of the Court on April 15, 2020.
/s/ Nicholas D. Stepp Nicholas D. Stepp
10
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Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 1 of 17 PageID 553
EXHIBIT 1

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 2 of 17 PageID 554

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

857 492 1,772 287 323 243
36 14 61
1 41 76 173
0 64 26
1 52 273 207 339 203 112 16
1 0 0 14 23 0 0 90 5,797 5,796

24.11 348 151 115

36.55

50

95

96

164.27

81

51

51

66.21

32

27

33

27.93 132

63

47

188.16

9

23

13

123.73

4

3

2

224.60

0

0

0

80.53 10

4

7

170.50

0

0

0

36.07

9

11

3

3.71 75

0

0

29.40

79

29

16

0.00

0

0

0

35.83

23

12

7

28.63

8

7

3

13.50

0

0

1

25.17 42

3

0

71.78

51

44

28

81.17

17

19

27

87.14

17

22

24

184.03

5

3

9

173.24

5

3

0

29.06

4

3

0

50.50

0

0

0

0.00

0

0

0

0.00

0

0

0

39.47

7

2

0

30.13 14

3

1

0.00

0

0

0

0.00

0

0

0

25.66 73

6

0

95.94 1,095

584

483

71

57

89

64

81

48

22

17

22

13

16

10

1

0

0

0

4

0

0

0

5

1

0

0

12

8

0

0

3

2

2

0

0

0

0

0

25

12

18

16

32

23

11

5

1

0

6

0

0

0

0

0

0

0

1

0

1

1

0

0

0

0

1

0

424

277

40

16

59

14.78%

26

26

46

8.49%

81 103 1,276

30.57%

32

21

103

4.95%

8

7

31

5.57%

7

13

152

4.19%

0

0

26

0.62%

1

1

12

0.24%

2

4

30

1.05%

0

0

1

0.02%

6

1

5

0.71%

0

0

1

1.31%

7

2

20

2.98%

0

0

0

0.00%

2

3

12

1.10%

0

3

3

0.45%

0

0

0

0.02%

0

0

7

0.90%

9

10

94

4.71%

11

9

90

3.57%

23

27

171

5.85%

5

8

157

3.50%

5

1

97

1.93%

1

1

1

0.28%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

1

1

2

0.24%

0

0

3

0.40%

0

0

0

0.00%

0

0

0

0.00%

0

1

9

1.55%

267

258 2,409

100%

2/15/2020 7:00:11 AM

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 3 of 17 PageID 555

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 4 of 17 PageID 556

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

889 527 1,825 278 344 262
31 14 60
1 36 68 171
1 43 21
1 49 275 228 338 196 105 17
3 0 0 1 23 0 0 77 5,884 5,881

23.73 351 194 111

80

31

25

31

66

15.11%

37.53 35 104 102 100

74

53

11

48

8.96%

162.65

80

59

59

84

71 108

71 1,293

31.02%

71.70

34

12

21

32

16

19

19

125

4.72%

27.39 130

76

41

33

18

10

6

30

5.85%

167.73

13

19

18

23

8

17

5

159

4.45%

116.63

1

1

6

1

1

1

0

20

0.53%

247.07

0

0

0

1

0

0

0

13

0.24%

84.16

6

8

3

8

2

3

1

29

1.02%

178.00

0

0

0

0

0

0

0

1

0.02%

44.65

6

8

5

2

3

1

1

10

0.61%

2.78 67

1

0

0

0

0

0

0

1.16%

27.78

84

29

13

10

6

8

1

20

2.91%

24.50

0

0

0

0

1

0

0

0

0.02%

38.98 12

5

8

5

1

4

0

8

0.73%

30.64

7

6

2

1

0

0

0

5

0.36%

21.00

0

0

0

0

1

0

0

0

0.02%

23.62 36

4

1

2

1

0

0

5

0.83%

71.76

50

47

32

16

14

18

5

93

4.67%

81.65

9

23

24

27

21

15

12

97

3.87%

84.65

21

13

26

34

22

24

18

180

5.74%

193.54

4

3

7

7

10

8

3

154

3.33%

182.14

1

4

1

1

0

1

2

95

1.78%

30.72

4

3

1

3

2

2

0

2

0.29%

29.50

2

0

0

0

0

0

0

1

0.05%

0.00

0

0

0

0

0

0

0

0

0.00%

0.00

0

0

0

0

0

0

0

0

0.00%

0.50

1

0

0

0

0

0

0

0

0.02%

13.75 18

0

1

0

1

0

1

2

0.39%

0.00

0

0

0

0

0

0

0

0

0.00%

0.00

0

0

0

0

0

0

0

0

0.00%

23.63

58

11

2

2

0

0

0

4

1.31%

95.54 1,030

630

484

472

304

317

187 2,460

100%

3/1/2020 7:00:12 AM

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 5 of 17 PageID 557

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 6 of 17 PageID 558

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

871 548 1,813 287 322 259
30 16 57
1 29 90 151
2 45 31
1 69 283 231 328 198 81 18
1 0 0 5 20 0 0 78 5,865 5,864

24.21 357 170 127

36.73

56

95 114

161.68

69

52

78

71.95

35

19

17

28.59 113

58

55

154.59

17

15

21

127.23

1

2

2

233.71

0

0

0

86.64

7

4

10

180.50

0

0

0

46.40

7

1

7

2.41 90

0

0

27.38

71

29

13

18.33

1

0

0

38.28 16

4

6

32.00 14

6

2

23.50

0

0

0

23.91 47

6

2

67.93

63

40

37

80.68

7

25

27

85.95

19

17

20

189.75

4

5

8

171.46

1

2

2

29.58

5

3

1

60.50

0

0

0

0.00

0

0

0

0.00

0

0

0

17.83

1

3

0

49.33 14

1

1

0.00

0

0

0

0.00

0

0

0

24.78 64

2

3

93.82 1,079

559

553

57

41

20

27

72

14.85%

86

85

52

18

42

9.34%

84

75 116

79 1,260

30.91%

31

23

16

20

126

4.89%

24

28

8

6

30

5.49%

16

12

16

8

154

4.42%

1

1

1

1

21

0.51%

1

0

0

0

15

0.27%

2

1

3

3

27

0.97%

0

0

0

0

1

0.02%

3

0

3

0

8

0.49%

0

0

0

0

0

1.53%

10

3

4

5

16

2.57%

0

0

1

0

0

0.03%

2

4

5

0

8

0.77%

3

0

0

0

6

0.53%

0

1

0

0

0

0.02%

1

0

2

1

10

1.18%

17

14

16

6

90

4.83%

24

24

20

13

91

3.94%

29

29

25

21

168

5.59%

7

5

12

6

151

3.38%

2

0

1

0

73

1.38%

3

0

5

0

1

0.31%

0

0

0

0

1

0.02%

0

0

0

0

0

0.00%

0

0

0

0

0

0.00%

0

0

1

0

0

0.09%

1

0

0

0

3

0.34%

0

0

0

0

0

0.00%

0

0

0

0

0

0.00%

3

1

1

0

4

1.33%

407

347

328

214 2,378

100%

3/6/2020 7:00:11 AM

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 7 of 17 PageID 559

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 8 of 17 PageID 560

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

925 539 1,821 319 292 301
36 15 55
1 27 83 142
4 39 36
1 63 294 240 345 201 80 10
1 0 0 1 11 0 0 70 5,952 5,951

23.60 375 194 120

37.61

47

99 105

161.04

80

60

63

68.13

43

24

22

29.24

93

59

44

150.24

15

25

20

113.00

4

0

4

254.44

0

0

0

93.98

4

11

2

185.00

0

0

0

45.96

3

9

1

3.32 83

0

0

32.04

54

30

15

38.80

1

1

0

45.55

7

8

5

26.22

10

11

6

28.00

0

0

0

46.11 33

9

1

69.85

50

57

32

80.64

11

15

28

83.89

15

28

15

186.94

4

5

6

181.19

2

0

1

22.73

6

0

1

65.00

0

0

0

0.00

0

0

0

0.00

0

0

0

23.00

0

0

0

3.83

9

2

0

0.00

0

0

0

0.00

0

0

0

27.99 56

4

1

94.31 1,005

651

492

75

48

98

65

80

84

26

29

31

14

26

13

3

1

0

0

3

6

0

0

4

2

0

0

8

8

0

0

3

2

3

3

0

0

2

2

26

11

28

20

29

26

11

5

3

1

0

1

0

0

0

0

0

0

0

1

0

0

0

0

0

0

1

2

460

344

29

12

72

15.54%

59

27

39

9.06%

92 117 1,245

30.59%

26

20

129

5.36%

20

7

24

4.91%

17

13

172

5.06%

1

1

22

0.60%

0

0

15

0.25%

2

2

25

0.92%

0

0

1

0.02%

0

2

6

0.45%

0

0

0

1.39%

5

4

18

2.39%

0

1

1

0.07%

4

4

6

0.66%

0

0

3

0.60%

1

0

0

0.02%

2

1

13

1.06%

12

14

92

4.94%

27

17

94

4.03%

33

25

174

5.80%

8

11

151

3.38%

0

1

72

1.34%

0

1

1

0.17%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.02%

0

0

0

0.18%

0

0

0

0.00%

0

0

0

0.00%

0

2

4

1.18%

338

282 2,380

100%

3/15/2020 7:00:07 AM

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 9 of 17 PageID 561

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 10 of 17 PageID 562

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

841 594 1,786 299 267 259
33 13 67
1 23 56 131
2 37 33
1 32 248 227 297 204 81
3 1 0 0 11 11 0 0 60 5,618 5,617

26.29 303 157 119

37.28 37 142 126

165.59

33

69

45

72.25

34

31

21

37.94

53

49

48

149.91

4

30

21

119.44

1

4

0

276.64

0

0

0

80.75

7

9

9

189.50

0

0

0

43.88

3

4

7

3.53 53

3

0

39.95

37

26

19

31.33

0

0

1

53.87

3

9

4

36.65

3

13

4

32.50

0

0

0

42.55 17

2

1

73.99

33

53

30

80.48

3

18

20

88.12

2

20

27

192.68

2

3

7

188.45

0

2

0

3.25

2

1

0

69.50

0

0

0

0.00

0

0

0

0.00

0

0

0

17.58

5

2

2

15.17

8

0

0

0.00

0

0

0

0.00

0

0

0

33.49 45

4

4

99.11 688

651

515

90

51

33

23

65

14.97%

84

74

44

35

52

10.57%

85

97 101

99 1,257

31.79%

19

19

27

16

132

5.32%

40

21

13

14

29

4.75%

16

14

11

10

153

4.61%

4

3

1

1

19

0.59%

0

0

0

0

13

0.23%

6

4

5

2

25

1.19%

0

0

0

0

1

0.02%

1

1

2

1

4

0.41%

0

0

0

0

0

1.00%

15

5

4

2

23

2.33%

0

0

0

0

1

0.04%

2

2

3

4

10

0.66%

6

1

2

0

4

0.59%

0

0

0

1

0

0.02%

2

0

2

1

7

0.57%

16

13

6

8

89

4.41%

29

31

19

24

83

4.04%

17

32

22

25

152

5.29%

5

12

6

9

160

3.63%

2

2

2

0

73

1.44%

0

0

0

0

0

0.05%

0

0

0

0

1

0.02%

0

0

0

0

0

0.00%

0

0

0

0

0

0.00%

0

1

1

0

0

0.20%

0

1

2

0

0

0.20%

0

0

0

0

0

0.00%

0

0

0

0

0

0.00%

0

0

1

1

5

1.07%

439

384

307

276 2,358

100%

3/24/2020 7:00:24 AM

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 11 of 17 PageID 563

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 12 of 17 PageID 564

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

472 707 1,726 263 246 294
34 15 84
1 18 53 135
3 25 22
1 56 240 204 276 206 84
1 1 0 0 11 0 0 0 47 5,225 5,224

21.21 226

94

43

33

18

36.04

79 123

141 122

98

173.73

20

31

78

43

80

78.34

8

19

28

18

19

39.09

62

38

37

21

28

154.23

2

7

31

24

20

125.31

0

3

3

0

4

254.19

0

0

1

1

0

77.39

2

9

11

11

8

194.50

0

0

0

0

0

38.95

1

4

4

3

1

3.31 51

0

2

0

0

41.89

41

25

21

13

5

34.25

0

0

1

1

0

52.12

0

4

6

2

1

41.65

1

3

8

1

4

37.50

0

0

0

0

0

60.39

6

8

7

7

2

75.48

34

34

30

21

13

86.90

3

3

17

17

29

91.04 13

0

21

27

21

193.67

0

5

7

7

7

191.73

2

0

2

1

2

11.00

0

0

1

0

0

74.50

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

34.08

2

4

2

1

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

49.38 34

1

2

2

0

107.17

587

415

504

376

360

17

16

25

9.03%

66

31

47

13.53%

93

99 1,282

33.03%

20

34

117

5.03%

15

9

36

4.71%

15

16

179

5.63%

3

1

20

0.65%

0

0

13

0.29%

7

6

30

1.61%

0

0

1

0.02%

1

2

2

0.34%

0

0

0

1.01%

3

1

26

2.58%

0

0

1

0.06%

2

1

9

0.48%

1

1

3

0.42%

0

0

1

0.02%

6

2

18

1.07%

13

4

91

4.59%

30

17

88

3.90%

26

19

149

5.28%

11

6

163

3.94%

3

1

73

1.61%

0

0

0

0.02%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

0

1

1

0.21%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.00%

1

2

5

0.90%

333

269 2,381

100%

4/3/2020 7:00:57 AM

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 13 of 17 PageID 565

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 14 of 17 PageID 566

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

494 695 1,719 247 255 299
34 15 84
1 17 59 134
2 23 19
1 62 255 173 244 209 87
4 1 0 0 4 0 0 0 43 5,180 5,179

20.94 246

91

49

33

14

37.08

54 143

125 117

98

175.31

15

35

56

67

66

78.48

11

17

20

19

18

40.16

56

45

38

24

19

156.51

3

6

15

35

21

128.23

0

3

3

0

3

257.00

0

0

0

2

0

80.73

1

9

10

12

5

196.00

0

0

0

0

0

42.06

1

3

3

3

2

3.58 57

0

1

1

0

37.22

46

22

18

16

7

40.00

0

0

0

1

0

56.63

0

2

6

3

0

41.40

1

1

7

3

3

39.00

0

0

0

0

0

59.48 10

6

9

7

2

74.76

40

30

23

33

14

92.37

0

5

12

16

19

93.19

8

8

10

29

24

196.32

0

2

9

4

13

188.89

4

0

2

1

1

10.40

2

0

2

0

0

76.00

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

5.00

3

1

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

55.43 29

3

1

2

0

108.29

587

432

419

428

329

12

21

28

9.54%

74

29

55

13.42%

86 109 1,285

33.19%

20

28

114

4.77%

23

13

37

4.92%

12

15

192

5.77%

3

1

21

0.66%

0

0

13

0.29%

6

7

34

1.62%

0

0

1

0.02%

0

3

2

0.33%

0

0

0

1.14%

3

1

21

2.59%

0

0

1

0.04%

2

0

10

0.44%

1

1

2

0.37%

0

0

1

0.02%

6

3

19

1.20%

15

6

94

4.92%

19

19

83

3.34%

14

17

134

4.71%

6

8

167

4.03%

3

3

73

1.68%

0

0

0

0.08%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.08%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.00%

1

1

6

0.83%

306

285 2,394

100%

4/6/2020 7:00:30 AM

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 15 of 17 PageID 567

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 16 of 17 PageID 568

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

444 557 1,774 244 243 319
36 16 92
1 10 75 105
1 14 24
1 69 302 130 165 199 83
1 1 0 0 6 0 0 0 56 4,968 4,967

19.70 235

71

51

35.88 61 112 112

174.75

29

14

56

79.27

14

14

23

40.39

59

36

33

160.41

1

5

12

138.24

4

0

3

256.94

0

0

0

83.02

6

1

10

200.50

0

0

0

40.27

1

1

2

3.50 73

0

0

44.19

36

14

12

22.00

0

0

0

73.47

3

1

0

51.56

2

6

1

43.50

0

0

0

66.10 13

9

1

78.49

28

47

33

101.46

0

0

7

102.67

8

4

3

207.56

0

1

3

204.80

0

1

0

17.00

0

0

0

80.50

0

0

0

0.00

0

0

0

0.00

0

0

0

11.57

4

0

2

0.00

0

0

0

0.00

0

0

0

0.00

0

0

0

41.70 39

3

2

113.77

616

340

366

26

18

73

57

91

83

18

20

28

17

20

34

4

1

1

1

12

11

0

0

0

2

2

0

8

10

0

1

1

2

6

1

0

0

6

7

27

27

10

10

11

15

7

5

2

1

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

356

323

7

7

29

8.94%

69

36

37

11.21%

76 113 1,312

35.71%

13

19

123

4.91%

17

19

34

4.89%

21

14

212

6.42%

1

2

21

0.72%

0

0

14

0.32%

7

8

37

1.85%

0

0

1

0.02%

1

0

3

0.20%

0

0

0

1.51%

4

1

20

2.11%

0

0

0

0.02%

0

1

6

0.28%

2

1

5

0.48%

0

0

1

0.02%

2

6

25

1.39%

15

16

109

6.08%

15

18

70

2.62%

15

11

98

3.32%

10

6

167

4.01%

1

3

75

1.67%

0

0

0

0.02%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.12%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.00%

2

0

8

1.13%

278

281 2,408

100%

4/15/2020 7:00:01 AM

Case 3:20-cv-00832-E Document 36-1 Filed 04/15/20 Page 17 of 17 PageID 569

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

 
 Case 3:20-cv-00832-E Document 37 Filed 04/15/20 Page 1 of 3 PageID 570

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 20-cv-832

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

AMENDED DECLARATION OF ALISON GRINTER
I, ALISON GRINTER, DECLARE:
1. I am an attorney practicing almost exclusively criminal defense in the Dallas and Collin County Courts. I am Board Certified in Criminal Law. I serve as counsel for the plaintiffs and the putative class herein.
2. I make this declaration of my personal knowledge. 3. Prior to the COVID-19 outbreak, an individual pretrial habeas petition seeking consideration of bond by a District Judge in Dallas County would, under normal circumstances, heard and decided within a day or two. 4. Even after the COVID-19 outbreak, these bond hearings are given priority by Courts and are held as expeditiously as possible given restraints on staffing, and with consent of the parties, many are done informally or via email or telephone. 5. An interlocutory appeal of a decision unfavorable to the defendant would likely take months even before the courts were slowed due to the pandemic, but a decision from a

Case 3:20-cv-00832-E Document 37 Filed 04/15/20 Page 2 of 3 PageID 571
Dallas County District Judge would not be the source of that delay, rather the normal delays built into the appellate process.
6. Pre-trial writs alleging that a person is being restrained of their liberties in any way other than lack of reasonable bond set by a District Judge (for instance unconstitutional jail conditions) would take a distinct and presumably longer timeline, as they are not at all common in the State criminal district courts and presumably would require time for a prosecutor to brief.
7. Post-conviction writs would follow a different timeline with deliberative processes of many months before the COVID-19 outbreak.
8. Texas Courts, including those in Dallas, are issuing emergency closures and slowing their operations in response to the COVID-19 pandemic.
9. I am not aware of any avenue in the state courts through which a class of both pre- and post-adjudication detainees could seek relief regarding the constitutionality of their confinement in the Dallas County Jail.
10. Attached hereto as Exhibit A is a true and correct copy of an email from K. Dickerson, Criminal District Courts Manager, March 24, 2020, re: Dallas County Criminal District Courts.
11. Attached hereto as Exhibit B is a true and correct copy of an email from K. Dickerson, Criminal District Courts Manager, March 19, 2020, re: Criminal District Court 1 COVID-19 Protocol
12. Attached hereto as Exhibit C is an email from K. Dickerson, Criminal District Courts Manager, March 17, 2020, re: CDC 2 COVID-19 Protocol.
13. Attached hereto as Exhibit D is an email from K. Dickerson, Criminal District Courts Manager, March 16, 2020, re: CDC 5 COVID-19 Protocol.
14. As a criminal defense attorney practicing in Dallas County I received similar emails regarding COVID-19 protocols in many of the other Criminal District Courts.

Case 3:20-cv-00832-E Document 37 Filed 04/15/20 Page 3 of 3 PageID 572
15. Many of the Criminal District Courts have not adopted any specific written policies, but all have slowed or suspended functions. Policies and available services are often fluid and change daily depending on Court and staff availability.
16. As court staff have become exposed or have contracted the COVID-19, several courts have closed all or parts of the court operations for quarantine purposes.
17. I made a declaration on April 9th 2020 in this cause which stated, in relevant part: “Prior to the COVID-19 outbreak, an individual petitioner seeking habeas relief in the Texas State Courts could expect his or her petition to remain pending for months, particularly if an appeal were taken.” 18. The drafting of this sentence was inartful in a way that might be misleading, and I want to clarify it in advance of any Court proceeding. It was a sentence given to me in proposed language, and I read it to be commenting on the duration of a habeas petition that was in fact appealed after a decision unfavorable to the defendant.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 15th day of April, 2020.
Alison Grinter
Alison Grinter Texas Bar Number 24043476 6738 Old Settlers Way Dallas, Texas 75236 (214) 704-6400 alisongrinter@gmail.com agrinter@thengan.com

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 Case 3:20-cv-00832-E Document 39 Filed 04/17/20 Page 1 of 52 PageID 638

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS WHITE, TESMOND MCDONALD, MARCELO PEREZ, ROGER MORRISON, KEITH BAKER, PAUL WRIGHT, TERRY MCNICKELS, JOSE MUNOZ, KIARA YARBOROUGH, OLIVIA WASHINGTON, AND IDEARE BAILEY; on their own and on behalf of a class of similarly situated persons,

Civil Action No. 20-cv-832 First Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief
IMMEDIATE RELIEF SOUGHT

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity, and DALLAS COUNTY, TEXAS,

Respondents/Defendants.

INTRODUCTION

1. You are likely reading this Petition for Writ of Habeas Corpus and Class Action

Complaint for Injunctive and Declaratory Relief (Complaint) from self-isolation in your home.

Now imagine if someone sick with COVID-19 came into that home and sealed the doors and

windows behind them. That is what Dallas County has just done to more than 5,000 human beings

currently detained in the North, South, and West Towers of the Lew Sterrett Justice Center, where

more than two dozen COVID-19 cases have been confirmed by Dallas County and where

social/physical distancing for all but a small fraction of detainees is impossible. After Oscar

Sanchez requested a test for the disease which he could not obtain in the Dallas County Jail, a staff

member acknowledged the predicament, saying to Mr. Sanchez: “I don’t know what these people

want you to do. Die first?” Sanchez Dec. ¶ 17. Tesmond McDonald, who has COVID-19, recently

had such dangerously-low oxygen levels that “he thought he was going to die,” and faces the

1

Case 3:20-cv-00832-E Document 39 Filed 04/17/20 Page 2 of 52 PageID 639
prospect of going into critical condition without immediate transport to a hospital. McDonald Dec.
¶ ¶4–6.
2. No one detained can protect themselves by leaving. Further, employees and
contractors who work in the Dallas County Jail are themselves at risk of contracting COVID-19
and spreading it to loved ones and the larger community outside. And the health care system in
Dallas County will be taxed beyond capacity by an outbreak originating in the Dallas County Jail
unless immediate steps are taken to get it under control.
3. We are in the midst of the most significant global pandemic in generations.1
COVID-19 is a highly contagious and deadly respiratory disease caused by a novel coronavirus
(SARS-CoV-2). No one is safe. The lethality rate of COVID-19 is estimated to be between one
and six percent: several times more than the common flu that kills thousands a year.2 All age
groups including some children have contracted the disease,3 and the World Health Organization
estimates that one in five people who contract the disease require hospitalization.4 On March 13,
2020, the President declared a national state of emergency.5 As of April 7, 2020, confirmed cases
of COVID-19 in the United States were more than double the number in any other country.6 On
1 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).
2 As of April 7, 2020, there were 1,428,428 confirmed cases globally, with 82,020 deaths and 300,198 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; see also “Coronavirus disease 2019 (COVID-19)”, UpToDate, https://cutt.ly/GtJYSkj (as of April 4, 2020, estimated overall fatality rate of 2.3 percent globally).
3 Robert Verity, PhD., et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis, Lancet Infec Dis (March 30, 2020), 6.
4 World Health Organization, Q&A on Coronaviruses (COVID-19), “Should I Worry About COVID-19?,” https://cutt.ly/YtEyrxl.
5 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, (March 13, 2020), https://cutt.ly/EtJLZQZ.
6 Jennifer Calfas, Chong Koh Ping, and Drew Hinshaw, Global Coronavirus Death Toll Passes 81,000 as Some Lockdowns Tighten, The Wall Street Journal (Apr. 7, 2020), https://cutt.ly/ztJLM0q.
2

Case 3:20-cv-00832-E Document 39 Filed 04/17/20 Page 3 of 52 PageID 640
the same day, Illinois, Louisiana, New Jersey, New York reported their highest daily death tolls from COVID-19.7 As of April 7, 2020, the Texas Health and Human Services reported 8,262 COVID-19 cases and 154 deaths from the disease state-wide,8 and Dallas County Health and Human Services reported 1,261 COVID-19 cases with 19 deaths.9 The Dallas County Jail accounted for 23—almost two percent—of the COVID-19 cases in Dallas County.10 On April 5, 2020, approximately 25 percent of all new confirmed COVID-19 cases in Dallas County were in the Dallas County Jail.11
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.”12 Social distancing requires everyone to stay at least six feet away from all other people to control the spread of the virus. This measure is particularly important because the virus spreads aggressively, and people can infect others even if they do not feel sick or exhibit any symptoms.13 The only effective way to curb the pandemic is through dramatically reducing contact
7 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.
8 Texas Health and Human Services, Texas Case Counts COVID-19, (Apr. 7, 2020), https://cutt.ly/rtJL7NJ. 9 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Summary at 1, (Apr. 7, 2020), https://cutt.ly/ztJZwXa. 10 Id. Table 4. 11 COVID-19 Live Updates, KERA News (quoting Director of Dallas County Health and Human Services on April 5, 2020 as saying “the jail has 24 cases, which includes 22 inmates and two detention officers,” presenting approximately 25% of all new cases in Dallas County that day), https://cutt.ly/itJSsiy. 12 World Health Organization, Coronavirus, https://cutt.ly/ztWyf7e (“At this time, there are no specific vaccines or treatments for COVID-19.”).”); Dawson v. Asher, 20-cv-409 (W.D. Wash.) at Doc. No. 4, Declaration of Dr. Robert B. Greifinger, MD, ¶ 8 (“Social distancing and hand hygiene are the only known ways to prevent the rapid spread of COVID-19.”). 13 Center for Disease Control, How Coronavirus Spreads, https://cutt.ly/CtYRkkC.
3

Case 3:20-cv-00832-E Document 39 Filed 04/17/20 Page 4 of 52 PageID 641
for all.14 Consequently, every American institution—from schools15 to places of worship,16 from businesses17 to legislatures18—has been exhorted to reduce the number of people in close quarters,
if not empty entirely. 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.19 These imperatives apply with
special force to jails, where the government controls almost entirely a person’s ability to avoid
others and to maintain adequate sanitation. Indeed, the Centers for Disease Control have issued detailed directives to jails and carceral facilities.20
5. Yet jails have proven incapable of implementing many of these recommendations,
and incarcerated people are exposed to this highly contagious and deadly virus as a result. For
example, at the peak of the outbreak in Wuhan, China—the province where COVID-19
originated—over half of all reported COVID-19 cases were incarcerated people. On Rikers Island,
the rate of infection among incarcerated people is over seven times the rate of infection in New York City generally, and 25 times higher than the rate in Wuhan, China.21
14 Harry Stevens, Why Outbreaks Like Coronavirus Spread Exponentially, and how to “Flatten the Curve,” Wash. Post. (March 14, 2020), https://cutt.ly/etYRnkz.
15 Centers for Disease Control, Interim Guidance for Administrators of US K-12 Schools and Child Care Programs, https://cutt.ly/ItRPq5n.
16 Centers for Disease Control, 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.
17 Centers for Disease Control, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), https://cutt.ly/stRPvg4.
18 Nat’l Conf. of State Legislatures, Coronavirus and State Legislatures in the News, https://cutt.ly/4tRPQne.a 19 Centers for Disease Control, Cleaning and Disinfecting Your Facility, https://cutt.ly/atYE7F9. 20 Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), https://cutt.ly/atJPt5B. 21 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 March 30, 2020, 11:00 AM), https://cutt.ly/RtYTbWd.
4

Case 3:20-cv-00832-E Document 39 Filed 04/17/20 Page 5 of 52 PageID 642
6. Despite the ubiquity of this guidance, the Texas Governor’s order requiring people
to “minimize in-person contact with people who are not in the same household”,22 the stay at home
order issued by the County Judge of Dallas County,23 and City of Dallas regulations implementing
the Texas and Dallas County orders,24 the Dallas County Jail has failed to provide these critical
safeguards. Known conditions in the Dallas County Jail include:
• a jump in a week’s time from five reported COVID-19 infections of detainees and Jail employees to almost 30 as of April 7, 2020,25
• a lack of COVID-19 testing for detainees at intake, during detention, or upon release,
• failure to begin “checking the temperatures of employees assigned to the jail” or asking detainees during the intake process “a set of preliminary questions recommended by Dallas County’s healthcare partners” until March 27, 2020,26
• a shortage of Jail employees to report for work;
• routine use by Jail employees of single-use disposable surgical masks for a week or more;
• failure to educate detainees about the virus and prevention methods;
• failure to institute appropriate social distancing practices, including in dorm bunk arrangements, waiting lines, staff gatherings, and meals;
22 Office of the Tex. Gov., Press Release: Governor Abbott Issues Executive Order Implementing Essential Services and Activities Protocols (March 31, 2020), https://cutt.ly/stJUKfc.
23 See Amended “Safer at Home” Order, (Apr. 6, 2020), https://cutt.ly/otJIl2m. 24 See Shelter in Place: Stay Home Stay Safe, City of Dallas, https://cutt.ly/TtJIvcg. 25 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Table 4, (Apr. 7, 2020), https://cutt.ly/QtJZbmS; Editorial, COVID-19 spreads with close contact, so what do we do about those in jail?, The Dallas Morning News (Apr. 5, 2020), https://cutt.ly/8tJOi67 (“At the time of this writing, 20 inmates had tested positive for the virus, along with six detention officers and one deputy.”); Ashley Paredez, Confirmed COVID-19 cases at Dallas County Jail now up to 28, Fox 4 (April 4, 2020), https://cutt.ly/0tJSenr (“The number of coronavirus cases at the Dallas County jail has increased from five cases last week, to now a total of 28,” and “six [of those testing positive] are detention officers and two are clerks”); COVID-19 Live Updates, KERA News, supra note 11 (quoting Director of Dallas County Health and Human Services on April 5, 2020 as saying “the jail has 24 cases, which includes 22 inmates and two detention officers”). 26 Dallas County Sheriff’s Office, “COVID-19 Initiatives,” (March 27, 2020), https://cutt.ly/NtJO7zY.
5

Case 3:20-cv-00832-E Document 39 Filed 04/17/20 Page 6 of 52 PageID 643
• failure to segregate detainees with symptoms and illness from other detainees and guards;
• failure to provide staff with adequate personal protective equipment and to require the use and regular replacement of such equipment;
• failure to provide detainees with adequate PPE; • failure to ensure sufficient stocks of hygiene and cleaning supplies and to
provide detainees with no-cost access to these supplies. 7. Jails are not hermetically sealed. By their nature, the people who enter jails—from correctional and medical staff, to those detained prior to trial, to those serving short sentences— typically come out in very short order. The failure of Dallas County Jail to prevent and mitigate the spread of COVID-19 endangers not only those within the institution, but the entire community. Hence, swift release of the most vulnerable to the disease and implementation of public health and education protocols in the jail, are is the only mitigation efforts that the Dallas County Jail can undertake to comport with public health guidance and to prevent a catastrophic outbreak at the facility. 8. Absent intervention from this Court to align the operation of the Dallas County Jail 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, jail staff, and the community.27 The outbreaks in detention facilities around the country, many with more resources, space, and sophisticated health delivery systems than the Dallas County Jail,28 prove the need for
27 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, (March 14, 2020 7:00 a.m.), https://cutt.ly/stYTDDk.
28 Sam Kelly, 134 inmates at Cook County Jail confirmed positive for COVID-19, CHICAGO SUN-TIMES (Mar. 30, 2020). https://cutt.ly/6tYTqi5.
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immediate and significant reductions in population. Case-by-case review is no match for

exponential spread of the disease. Courts and executive branch officials elsewhere in the country

have accepted this reality and begun broad-based, categorical releases from jails and prisons.29

9. Accordingly, Petitioners/Plaintiffs (hereinafter “Plaintiffs”)—classes of persons

incarcerated at the Dallas County Jail—bring this action and request immediate release of all

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

COVID-19, there is no time to spare.

I.

JURISDICTION AND VENUE

10. Plaintiffs bring this putative class action pursuant to 28 U.S.C. § 2241 and 42

U.S.C. § 1983 for relief from detention that violate their Eighth and Fourteenth Amendment rights

under the U.S. Constitution.

11. 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), and Article I, § 9, cl. 2 of the U.S.

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

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

because the Plaintiffs 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 Plaintiffs’ claims occurred in this district.

29 See, e.g., Memorandum and Order, Thakker v. Doll, No. 20-CV-0480 (M.D. Pa. Mar. 31, 2020) (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), https://cutt.ly/mtYTyxd.
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II.

PARTIES

13. Plaintiff Oscar Sanchez is detained in the Dallas County Lew Sterrett Jail West

Tower. He is a 28-year-old man. He has a history of severe chronic asthma, and has begun to show

symptoms that are consistent with COVID-19, and therefore may require immediate medical

attention. He has been incarcerated since March 10, 2020 and is being held pretrial on multiple

charges, some of which are indicted, some of which are not. His cases are not currently set for

trial. His next court date is April 28, 2020 for an announcement setting. He is presumptively

innocent of all charges.

14. Plaintiff Marcus White is a 37-year-old man who booked into the Dallas County

Jail on November 27, 2019 and is held on $111,000 bond for multiple charges, mostly drug-related.

He suffers from hypertension, for which he takes medication in the jail, as well as a serious seizure

disorder for which he has not received his medication in the jail. Mr. White contracted and tested

positive for COVID-19 in the jail and is being held on the 9th floor of the Dallas County Lew

Sterrett West Tower Jail. He is presumptively innocent of all charges.

15. Plaintiff Tesmond McDonald is a 32-year-old man with asthma and high blood

pressure who is being held (since September 27, 2019) in the Dallas County Jail, currently in the Lew Sterrett West Tower Jail 9th floor. He is being held pretrial for three Dallas County charges

of aggravated robbery, possession with intent to deliver drugs, and evading arrest. Mr. McDonald

contracted COVID-19 inside the jail, and learned on April 3 that he tested positive for the virus.

His condition is very serious and he may require immediate medical attention. He is

presumptively innocent of all charges.

16. Plaintiff Marcelo Perez is a 43-year-old man who has been held in the Dallas

County Jail since January 7, 2020 on an allegation that he violated probation by committing a new

drug offense. Mr. Perez is medically vulnerable in that he has hypertension and diabetes. He has 8

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been denied the ability to maintain social distancing, proper hygiene, and he is exposed continuously to people who show symptoms consistent with COVID-19.
17. Plaintiff Roger Morrison is a 49-year-old man, medically vulnerable to COVID-19 because of his pre-existing conditions of high blood pressure, hepatitis C, and cirrhosis of the liver among other issues. He was booked in on March 9, 2020 and is being held on drug possession and evading arrest charges in the Dallas County Jail South (Kays) Tower C3 medical pod. He has been unable to protect himself within the jail from exposure to other inmates and guards who have potentially been exposed to COVID-19. He has begun to exhibit flu-like symptoms.
18. Plaintiff Keith Baker is a 25-year-old man. He booked in on March 7, 2020 on an unindicted allegation of aggravated assault, as well as some misdemeanor offenses. He is currently detained in the Dallas County Lew Sterrett Jail West Tower, 9th floor. He has severe asthma and is being held adjacent to three people who have tested positive for COVID-19. Mr. Baker has developed symptoms consistent with COVID-19, but has not been tested for the virus. He is presumptively innocent of all charges.
19. Plaintiff Paul Wright is a 48-year old man who is being held in the Dallas County Jail South (Kays) Tower 3rd floor. He booked in on February 21,2020 and is being held awaiting transport to the Texas Department of Criminal Justice to serve the remainder of a two-year sentence for felony assault, a sentence for which he has backtime credit for 14 months. He has hepatitis C and has been unable to protect himself within the jail from exposure to other inmates and guards who have potentially been exposed to COVID-19.
20. Plaintiff Terry McNickles is a 58-year-old man being held in the Dallas County Jail South (Kays) Tower on a parole violation. He was booked into the jail on March 16, 2020. He was taken to a parole hearing, but the hearing was cancelled because of the pandemic, and he was not
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told when he might have a chance to have a new hearing date. Mr. McNickles is medically vulnerable because he had a kidney removed last year due to cancer. He has been unable to protect himself within the jail from exposure to other inmates and guards who have potentially been exposed to COVID-19.
21. Plaintiff Jose Munoz is a 37-year-old man, detained in the Dallas County Jail South (Suzanne Kays) Tower 3rd floor. He has been held since October 4, 2019. He is currently on probation for drug possession but is awaiting transportation to a drug treatment facility in Wilmer, Texas which was ordered as a condition of his probation. Because of the COVID-19 pandemic, however, the facility is not taking new patients, so his wait in jail is indefinite. He has been unable to protect himself from exposure to the COVID-19 virus through social distancing or protective measures of any kind.
22. Plaintiff Kiara Yarborough is a 25-year-old woman, detained in the Dallas County Jail South (Suzanne Kays) Tower 4th floor. She has been held since December 19, 2019 and is currently being held awaiting transportation to a special treatment program, the Intermediate Sanction Facility. Because of the COVID-19 pandemic, however, the facility is not taking new patients, so her wait in jail is indefinite. Ms. Yarborough is susceptible to kidney infections known as pyelonephritis and requires medication for high blood pressure.
23. Olivia Washington is a 26-year-old woman, detained in the Dallas County Jail South (Suzanne Kays) Tower 4th floor. She has been held since February 6, 2020. Ms. Washington is currently being held awaiting transport to the Substance Use Felony Punishment Facility. Because of the COVID-19 pandemic, however, the facility is not taking new patients, so her wait in jail is indefinite. People in Ms. Washington’s pod where she is housed have been coughing and getting sick.
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24. Plaintiff Ideare Bailey is a 35-year-old man detained in the Dallas County Jail. He

has been held since April 6, 2020 on an accusation of property theft. Despite being granted a bond

reduction and ordered released on electronic monitoring, Mr. Bailey has not been released. Mr.

Bailey has Type 2 Diabetes. When he was booked into the Dallas County Jail, Mr. Bailey was

healthy. He was placed in South Tower pod 2C with about sixty other people, and the man next to

him was coughing. Mr. Bailey has since tested positive for COVID-19. Mr. Bailey has been

refused an appointment to receive an electronic monitor, despite his wife having paid his bond,

because he has tested positive for COVID-19.

25. The Dallas County Sheriff, Marian Brown (“Sheriff Brown”), is a Dallas County

official, the head of the Dallas County Sheriff’s Department, and the administrator of the Dallas

County Jail. Sheriff Brown is the final policymaker for running and administering the jail in Dallas

County. Sheriff Brown is sued in her official capacity.

26. Dallas County, Texas (“Dallas County”) is a municipal corporation organized

under the laws of the State of Texas. Dallas County controls and operates the Jail, through Sheriff

Brown. Dallas County currently has immediate custody over Plaintiffs Sanchez, White,

McDonald, Perez, Morrison, Baker, Wright, McNickles, Munoz, Yarborough, Washington, and

Bailey and all other putative class members. Among others, Sheriff Brown is a final policymaker

for Dallas County.

III.

NOTICE OF RELATED CASE

27. Per Rule 3.3(b)(iii) of the Local Civil Rules of the U.S. District Court for the

Northern District of Texas, Plaintiff provide notice that this case arguably arises from a common

nucleus of operative fact with, and therefore may be a “related case” to, Daves v. Dallas County,

No. 3:18-cv-00154-N, pending before U.S. District Judge David Godbey.

IV.

FACTUAL ALLEGATIONS

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COVID-19 Poses a Significant Risk of Illness, Injury, or Death. 28. The novel coronavirus that causes COVID-19, has led to a global pandemic.30 As of April 8, 2020, there were more than 1.45 million reported COVID-19 cases throughout the world and more than 12,900 deaths in the United States.31 Projections indicate that as many as 240,000 people in the U.S. will die from COVID-19, accounting for existing interventions.32 29. COVID-19 is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.33 There is no vaccine against COVID-19, and there is no known medication to prevent or treat infection.34 Social distancing—deliberately keeping at least six feet of space between persons to avoid spreading illness35—and 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-19.36 Because the coronavirus spreads among people who do not show symptoms, maintaining a six foot distance from others is the best way to prevent contraction. In other words, everyone including officials at the Dallas County Jail has to act as is if everyone has the disease.
30 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, WALL ST. J. (Mar. 11, 2020, 11:59 PM), https://cutt.ly/UtEuSLC.
31 Johns Hopkins University COVID-19 Data Center, (Apr. 8, 2020), https://coronavirus.jhu.edu/. 32 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. 33 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. 34 Supra note 12. 35 Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine, https://cutt.ly/VtYYiDG. 36 Declaration of Dr. Robert L. Cohen, MD, In Support of Petitioners’ Motion for a Temporary Restraining Order and Preliminary Injunction, ¶ 9.
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30. 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, such as the heart and liver.37
31. People over the age of 50 face a greater risk of serious illness or death from COVID19.38 In a February 29, 2020 preliminary report, individuals age 50-59 had an overall mortality
rate of 1.3 percent; 60-69-year-olds had an overall 3.6 percent mortality rate, and those 70-79 years old had an 8 percent mortality rate.39
32. People of any age who suffer from certain underlying medical conditions, including
lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis
patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer,
HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma, also have an elevated risk.40 Early reports
estimate that the mortality rate for those with cardiovascular disease was 13.2 percent, 9.2 percent
for diabetes, 8.4 percent for hypertension, 8.0 percent for chronic respiratory disease, and 7.6 percent for cancer.41
37 Centers for Disease Control, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl
38 Xianxian Zhao, et al., Incidence, clinical characteristics and prognostic factor of patients with COVID-19: a systematic review and meta-analysis (March 20, 2020), https://cutt.ly/etRAkmt.
39 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ (data analysis based on WHOChina Joint Mission Report).
40 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.”).
41 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization
(Feb. 28, 2020), at 12, https://cutt.ly/xtEokCt (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”).
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33. 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.42 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.43 This level of care is not available in the Dallas County Jail.
34. 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 percent mortality rate.44 Even in non-ARDS cases, COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, cause permanent loss of breathing capacity.45 COVID-19 may also target the heart, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can reduce the heart’s ability to pump.46 This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work.
35. COVID-19 can also trigger an over-response of the immune system and result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury.47
42 Zhao, supra note 36. 43 Dawson, 20-cv-409 (W.D. Wash.) at Doc. No. 5, Declaration of Dr. Jonathan Louis Golob ¶ 6. 44 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. 45 Golob Dec., supra note 4336 at ¶ 7. 46 Id. 47 Id.
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36. 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.48
37. 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.49
38. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza.50 According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.51 For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent.52
39. Patients who do not die from serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage, loss of digits, and loss of respiratory capacity.53
Persons Incarcerated in the Dallas County Jail Face Grave and Immediate Danger Due to COVID-19. 40. Beyond the general public health presented by the COVID-19 pandemic, persons incarcerated at the Dallas County Jail face a particularly acute threat of illness, permanent injury, and death.
48 CDC, Interim Clinical Guidance, supra note 37. 49 Golob Dec., supra note 43 at ¶ 5. 50 Id. at ¶ 4. 51 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM), https://cutt.ly/itEmi8j. 52 Golob Dec., supra note 43 at ¶ 4. 53 Id.
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41. As of April 7, 2020, there are 8,262 confirmed COVID-19 cases in Texas,54 with 1,261 of them in Dallas County.55 To date, there have been 154 confirmed deaths from COVID19 in Texas,56 with 19 in Dallas County.57 While there are more than 20 documented COVID-19 detainee cases and six detention officers from the Dallas County Jail, the true number is much likely higher given the limited and inadequate testing at the facility. See supra fn 25 (describing known reports of confirmed cases); White Dec. ¶ 2 (Plaintiff White describing how he was denied testing until more than 10 days after his presentation of symptoms, despite his close proximity to other detainees).
42. State and local officials have recognized the emergency situation posed by COVID19 in Texas and Dallas County. On March 31, 2020, Texas Governor Greg Abbott issued an order requiring people to “minimize in-person contact with people who are not in the same household”.58 Nine days earlier, County Judge Clay Jenkins ordered people in Dallas County to stay at home.59 The City of Dallas has promulgated regulations implementing the Texas and Dallas County orders.60
43. People in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already evidenced by
54 Texas Case Counts COVID-19, supra note 8. 55 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Summary at 1, (Apr. 7, 2020), https://cutt.ly/xtJXUH8. 56 Texas Case Counts COVID-19, supra note 8. 57 Dallas County Health and Human Services, 2019 Novel Coronavirus (COVID-19) Summary, supra note 55 at 1. 58 Tex. Gov. Abbott Executive Order Announcement, supra note 22. 59 “Safer at Home” Order, supra note 23. 60 See City of Dallas, Shelter in Place, supra note 24.
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the rapid spread of the virus in cruise ships61 and nursing homes.62 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. This is demonstrated by dramatic outbreaks in the Cook County Jail63 in Chicago and Rikers Island in New York City, where the transmission rate for COVID-19 is estimated to be the highest in the world.64 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.65
44. Epidemiologists66 caution that the spread of COVID-19 in a jail setting will be more rapid and more catastrophic than in the general population, and further, will contribute to worse outcomes for the broader population, as illustrated in the following graphs:
61 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.
62 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.
63 See supra note 28. 64 Supra note 21 65 How Coronavirus Spreads, Centers for Disease Control and Prevention, https://cutt.ly/jtEE9vG. 66 See Declaration of Eric Lofgren in Support of Petitioners’ Motion for a Temporary Restraining Order and Preliminary Injunction.
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45. 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.67
46. As the below chart illustrates, health conditions that make COVID-19 particularly dangerous are more prevalent in the incarcerated population than in the general public.68
67 Letter from Johns Hopkins Faculty, supra note 44; Velesaca v. Decker, 20-cv-1803 (S.D.N.Y.) at Doc. No. 42 (March 16, 2020) (Declaration of Dr. Jaimie Meyer) (noting, inter alia, that jails environments have reduced prevention opportunities, increased susceptibility, and are often poorly equipped to diagnose and manage outbreaks of infection disease).
68 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://cutt.ly/7tJXmlC.
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47. Correctional facilities house large groups of people together, and move people in groups to eat, recreate, and go to court.69 They frequently have insufficient medical care for the population even outside times of crisis.70 Hot water, soap, and paper towels are often in limited supply. Incarcerated people, rather than professional cleaners, are responsible for cleaning the facilities71 and often are not given appropriate supplies.
48. Outbreaks of tuberculosis and the flu regularly occur in jails, including during the H1N1 epidemic in 2009 in which jails and prisons dealt with a disproportionately high number of cases.72
69 See, e.g, Nathalie Baptiste, Correctional Facilities are the Perfect Incubators for the Coronavirus, (March 6, 2020), https://cutt.ly/GtRSi3e.
70 See, e.g., Steve Coll, the Jail Health-Care Crisis, The New Yorker (Feb. 25, 2019), https://cutt.ly/ftERHNg. 71 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, https://cutt.ly/jtERCbb (noting that cleaning the grounds and facilities is one of the jobs of incarcerated persons in North Carolina). 72 Declaration of Robert L. Cohen, M.D. (Cohen Dec.) ¶¶ 4–5. 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 (Feb. 15, 2010), https://cutt.ly/ytRSkuX.
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49. Numerous public health experts, including Dr. Gregg Gonsalves,73 Ross
MacDonald,74 Dr. Marc Stern,75 Dr. Oluwadamilola T. Oladeru and Adam Beckman,76 Dr. Anne
Spaulding,77 Homer Venters,78 Jaimie Meyer,79 the faculty at Johns Hopkins schools of nursing,
medicine, and public health,80 and Josiah Rich81 have all strongly cautioned that people booked
into and held in jails are likely to face serious, even grave, harm due to the outbreak of
COVID-19.
50. Because of the extraordinary danger that COVID-19 will spread in jails and prisons,
the Centers for Disease Control and Prevention (“CDC”) have issued specific guidance for dealing
with correctional and detention facilities, including local jails.82 The guidance was published on
March 23, 2020. It acknowledges that incarcerated people are forced to exist “within congregate
environments” that “heighten[] the potential for COVID-19 to spread once introduced,” especially
given that “[t]here are many opportunities for COVID-19 to be introduced into a correctional or
detention facility,” including “daily staff ingress and egress” as well as “high turnover” of
“admit[ted] new entrants.” In light of these concerns, the guidance recommends that detention
73 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror (March 11, 2020), https://cutt.ly/BtRSxCF.
74Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (March 19, 2020), https://cutt.ly/ptRSnVo.
75 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.
76 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, (March 10, 2020), https://cutt.ly/QtRSYNA.
77 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Jail, Emory Center for the Health of Incarcerated Persons (March 9, 2020).
78 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (March 12, 2020), https://cutt.ly/jtRSPnk.
79 Meyer Dec., supra note 67. 80 See, supra note 44. 81 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. 82 Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), https://cutt.ly/atJPt5B.
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facilities “explore strategies to prevent over-crowding of correctional and detention facilities
during a community outbreak.” The guidance further recommends that the correctional facilities:
a. Post signage throughout the facility communicating COVID-19 symptoms and hand hygiene instructions, ensure such signage is understandable for non-English speaking people as well as those with low literacy, and provide clear information about the presence of COVID-19 cases within a facility and the need to increase social distancing and maintain hygiene precautions;
b. Ensure sufficient stocks of hygiene and cleaning supplies, including tissues; liquid soap where possible; hand drying supplies; alcohol-based hand sanitizer; cleaning supplies effective against the coronavirus; and recommended personal protective equipment like face masks, disposable medical gloves, and N95 respirators;
c. Provide incarcerated people no-cost access to soap (providing liquid soap where possible), running water, hand drying machines or disposable paper towels for hand washing, and tissues (providing no-touch trash receptacles for disposal);
d. Consider relaxing restrictions on allowing alcohol-based hand sanitizer where security concerns allow;
e. Provide a no-cost supply of soap sufficient to allow frequent hand washing, providing liquid soap where possible;
f. Suspend co-pays for incarcerated people seeking medical evaluation for respiratory symptoms;
g. Even if COVID-19 cases have not been identified locally or inside, implement “intensified cleaning and disinfecting procedures” that clean and disinfect high-touch surfaces and objects “[s]everal times per day,” and ensure adequate supplies to support intensified cleaning and disinfection practices”;
h. Perform pre-intake screening and temperature checks for all new entrants;
i. Adopt social distancing strategies to increase space between individuals, including rearranging bunking to ensure that beds are at a minimum six feet apart in all directions, increasing space in lines and waiting areas, staggering meals and rearranging seating during meals so that detainees are sitting on only one side of the table and are separated with adequate space;
j. Medically isolate confirmed and suspected cases and quarantine of contacts.
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51. Despite the fact that the CDC Guidelines have been available for weeks, the Dallas County Jail has not complied with the majority of these guidelines.
52. The Dallas County Jail has wholly failed to implement protective social distancing policies among detainees or staff. Many of the detainees sleep in shared bunk dorm “pods” with up to 64 beds. Sanchez Dec. ¶ 2 (all pods in the South Tower have 64 beds in a common room); Perez Dec. ¶ 3; McNickles Dec. ¶ 1. Even though the bunks are only between 1 and 4 feet apart, far closer than the recommended six or more feet, the shared bunk rooms have been almost full to capacity with between 48 and 60 men at any given time in the last few weeks in a single common dorm. Wright Dec. ¶ 6; Morrison Dec., ¶ 4, Munoz Dec., ¶ 8; Perez Dec. ¶ 3; Sanchez Dec. ¶. 2; McKnickles Dec. ¶¶ 1. 5. Neither the detainees nor the staff practice social distancing. Sanchez Dec. ¶ 7; McKnickles Dec. ¶ 4. Social distancing is not observed or encouraged by jail staff. Incarcerated persons are frequently held in situations in which they are within less than a six-foot distance from one another, such as in the booking room, holding cells, lunch lines, and in bunkbed sleeping arrangements. Prisoners continue to share items and food.
53. Social distancing is not possible during sleep, meals, or during distribution of medications under the current conditions. During meals the tables are crowded and the detainees sit so close that they are touching the persons seated next to them. Dec. Sanchez ¶ 9. The men line up for meals, commissary, clothing, and medication in close proximity, no more than one foot apart. Sanchez Dec. ¶ 10. The detention officers are also not practicing social distancing. McKnickles Dec. ¶ 4. They gather in groups, and on at least one occasion, a group of guards ate from a common bag of chips. Perez Dec.¶ 7. Educational materials on social distancing are offered inconsistently and do not reach all persons in the Dallas County Jail.
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54. The Dallas County Jail has neither implemented adequate testing nor adopted adequate procedures to isolate confirmed and suspected cases. Testing has been delayed or denied, even to detainees with symptoms. See White Dec. ¶ 2 (despite presenting with symptoms including coughing, congestion and body aches on March 21st, Plaintiff White was not moved from a group dorm until four days later, and COVID-19 testing was not offered until more than 10 days later, on April 2); Perez Dec. ¶ 3 (he has not been tested despite developing cough, and reporting other men in his pod who were coughing for weeks to the nurse, but no evaluation offered to them); Wright Dec. ¶ 4 (no one in his dorm has been tested for the virus). Men with symptoms are frequently denied medical treatment. Id.; McDonald Dec. ¶ 3 (jail staff denied Plaintiff McDonald’s request for evaluation and treatment when he experienced breathing problems even though he has severe asthma); Baker Dec. ¶ 2 (medical attention withheld for five hours to Plaintiff Baker during a severe asthma attack). Named plaintiff McDonald, who has tested positive for COVID-19 and has significant underlying medical conditions, has been denied basic hydration. McDonald Dec. at ¶ 7. Incarcerated persons and staff who have been exposed to persons who test positive for COVID-19, or who are presumed positive for COVID-19, continue to interact in close quarters with other incarcerated persons and staff and share common spaces including in dorms.
55. Detainees who tested positive remained in group dorms next to detainees who did not have symptoms and who had not been tested. See Baker Dec. ¶ 4 (describing Plaintiff Baker’s repeated requests to be moved when held next to individuals with confirmed cases of the virus). Even when the Dallas County Jail officials determined that positive cases required movement of exposed detainees, they transferred the individuals who had been exposed in closed proximity with persons with confirmed cases to different dorms without any testing. See Sanchez Dec. ¶ 3 (describing his transfer to from the dorm with a number of confirmed cases to a new dorm without
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testing); Baker Dec. ¶¶ 4-5 (describing being transferred to a new cell, connected to two other cells, after being in proximity with the confirmed cases and not receiving testing despite the fact that he had a sore throat and cough).
56. The Dallas County Jail has further failed to provide basic information about virus prevention recommended by the CDC to all detainees. Some of the plaintiffs have been left to try to discover how to protect themselves from intermittently available news coverage. See White Dec. ¶ 4 (“The jail staff never told Mr. White about how to avoid spreading the virus…he learned on the news that the virus is airborne and can stay on surfaces for several days. Mr. White no longer has access to the news); Morrison Dec. ¶ 3 (“The staff have not told [him] about COVID19. He knows he is high risk, but does not know how to prevent himself from getting the virus.”); Wright Dec. ¶ 9 (reporting that the jail staff have not provided information about the virus or how to prevent its spread).
57. Contrary to the CDC’s guidelines, the Dallas County Jail has failed to provide staff with adequate PPE and to require the use and regular replacement of such equipment. Most guards do not wear masks See Perez ¶7 (“Mr. Perez has seen only one out of every six guards wearing masks.”). Some guards even enter pods holding people known to have tested positive for COVID19 without any PPE. Wright ¶ 3. When guards do use PPE, they often do not follow the proper public health guidance required for the mask to be effective. See Baker ¶ 9 (“The staff in the West Tower wear masks, but they do not change them out between interactions with detainees who have the virus and those who don’t have the virus.”); Sanchez ¶ 5 (“The guards that wear facemasks do not change their masks when they go from dorm to dorm.”). Many jail staff do not consistently or properly wear masks, for example reusing masks designed for single use, or nurses failing to change masks and other personal protective equipment between medical visits.
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58. Detainees are generally denied access to any PPE, even upon request. See Perez ¶6 (“When Mr. Perez asked for a mask, he was told that the jail staff have to buy their own masks, so they would not give him one.”); Sanchez ¶ 5 (“When Mr. Sanchez asked guards for a facemask, he was told the only people that need masks are the guards.”); McKnickles ¶ 7 (“He also asked for face masks. The jail staff haven’t. . . given him any personal protective gear.”). See also, Morrison ¶5; Munoz ¶ 3; White ¶ 3. Those that are denied staff masks are also prevented from creating their own from materials they have access it in their cells. Perez ¶ 6 (“Some detainees tried wrapping bath towels around their heads to cover their faces, but the jail staff told them they were not allowed to do that.”). When detainees are given masks, which is inconsistent, they are expected to wear the same mask for the remaining period of their detention, regardless of how long. Baker ¶9 (““Mr. Baker was provided with a mask only after he asked for one. He has had to use the same one repeatedly because he was not given replacements.”). Jail staff does not give consistent instructions about when and how incarcerated persons should wear masks, for example only instructing incarcerated persons to put masks on upon a visit from an attorney or other person. Most egregiously, when a detainee is removed from a pod because he is sick, the guards require his cellmates to collect the sick man’s belongings and clean his bunk without first providing them with any personal protective gear. Sanchez Dec. ¶ 3; Perez Dec. ¶ 9.
59. The Dallas County Jail has also fallen far short of ensuring sufficient stocks of hygiene and cleaning supplies or providing detainees with no-cost access to these supplies. Wright Dec. ¶8. (“Sometimes the guards just don’t have the soap and other cleaning agents.”) Some detainees are given 3-4 single use bars of soap once a week that don’t last one day. McDonald ¶ 11. Others are not given any soap at all. White ¶ 6. The only way to obtain additional soap is to purchase it through commissary, which is either irregularly available or shut down completely,
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depending on the Tower. McDonald ¶ 11; Baker ¶ 6; Sanchez 11. See Munoz ¶ 6, “Mr. Munoz requested soap today and was told that the detainees were using excessive soap. He did not want to argue with the guards, so he did not receive any soap.” As a result, detainees and the cells in which they are forced to live are anything but clean. See Morrison ¶ 6 (“The pod is filthy”); McDonald ¶ 10 (“The walls in his cell are so dirty that he is afraid to touch them.”). While some pods have access to shower daily, detainees in pods holding people who have either tested positive for COVID-19 or are suspected of exposure to COVID-19 have been denied showers for up to ten days in a row. Baker par 8. White ¶ 8. Sick detainees are therefore forced to either “take a bird bath in the sink” or forego bathing altogether. When they are finally allowed to take a shower, the water is cold. Baker ¶ 8. Some detainees are forced to use the available soap to launder their clothing because sufficient clean laundry is not available, and are then left without enough soap to bathe or wash their hands. Incarcerated persons consistently report insufficient access to soap and cleaning supplies.
60. The Dallas County Jail has failed to enforce adequate policies for disinfecting surfaces to prevent the spread of the virus. First, large numbers of detainees share a small number of phones, yet the phones are not regularly cleaned. Sanchez p7 (“All 60 men in both A and E pods share 8 phones, none of which are disinfected between use.”) Additionally, detainees themselves are responsible for cleaning the pods, including the toilets and showers. Volunteers are rewarded with larger portions of food regardless of the quality of their work. Because the jail has not adequately informed detainees about the virus and how to prevent its spread, cleaning volunteering often do an insufficient job which goes unchecked. Sanchez par 8. (“Mr. Sanchez started volunteering because his bunk is 3 feet from the toilets and the other volunteers usually do not
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clean properly.”). Beds and cells are not cleaned and disinfected even after a person infected or presumptively infected with COVID-19 are moved from one space to another.
61. The Dallas County Jail has denied detainees with adequate nutrition during the pandemic. Detainees on the 9th floor of West Tower, which holds both people who have been tested positive for COVID-19 and people who have not been tested, endure especially cruel conditions. Guard distribute meals to people on the 9th floor by “smashing the food and shoving it in the crack between the door and the ground.” Baker ¶7. Much of the food becomes inedible. As a result, some detainees have lost a significant amount of weight in a short period of time. Baker ¶7.
62. The Dallas County Jail does not reliably facilitate legal calls or visits for detainees via video or telephone call. Detainees seeking the assistance of counsel in their criminal case, or wishing to raise issues with respect to their constitutional rights as detainees in the Dallas County Jail, thus experience difficulties and delays.
Existing Procedures and Protocols Will Not Be Sufficient to Ensure the Safety of Class Members or the General Public. 63. 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 from custody of people most vulnerable to COVID-19.83 Release protects the people with the
83 See Cohen Dec. at ¶¶ 30 – 31 (“Considerable downsizing is needed—less urgent action will not be sufficient.”; Meyer Dec., supra note 67 at ¶¶ 37–38 (noting that population reduction in jails will be “crucially important to reducing the level of risk both for those within [jail] facilities and for the community at large,” and that stemming the flow of intakes is a part of the necessary intervention); Greifinger Dec., supra note 12 at ¶ 13 (“In my opinion, the public health recommendation is to release high-risk people from detention, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.”); Dawson, 20-cv-409 (W.D. Wash.) at Doc. No. 6, Declaration of Marc Stern at ¶¶ 9–10 (noting that release is “a critically important way to meaningfully mitigate” the risks of harm to persons who are at high risk of serious illness or death, as well as to support the broader community health infrastructure).
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greatest vulnerability to COVID-19 from transmission of the virus, and it also allows for greater risk mitigation for people held or working in a jail and the broader community.84 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. 64. Jail administrators in Cuyahoga County, Ohio85; Los Angeles, California86; San
Francisco, California87; Jefferson County, Colorado88; Montgomery, Alabama89; and the State of New Jersey,90 among others, have concluded that widespread jail release is a necessary and
appropriate public health intervention. New bookings into jails also must be reduced, as recognized by statewide action in California directing judges to set bail at $0 in a wide range of cases.91
65. Notwithstanding efforts by the Dallas Sheriff’s Office to detect obvious symptoms
of COVID-19 infection and release some detainees, immediate release of medically vulnerable Plaintiffs remains a necessary public health intervention.92 Release of the Medically-Vulnerable
84 Id. 85 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. 86 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. 87 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. 88 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. 89 See In Re: Covid-19 Pandemic Emergency Response, Administrative Order No. 4, Montgomery County Circuit Court (March 17, 2020). 90 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. 91 Maura Dolan, In Uncharted Territory, California Court Leaders OK Urgent New Rules for Coronavirus, Los Angeles Times (April 6, 2020, 6:50 p.m.), https://cutt.ly/atJVHcI. 92 See Public Health Expert Declarations, supra note 83.
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Subclass Members is necessary both to prevent significant harm, but also to facilitate the social distancing needed to reduce transmission for all proposed Class Members and the wider public.93
66. The Dallas County Jail cannot handle the rapidly growing COVID-19 outbreak there, and thus the relief Plaintiffs seek is necessary to forestall the exponential spread of COVID19 from the Jail to the community at large. With more than 5,000 detainees in the North, South, and West Towers of the Lew Sterrett Justice Center, dozens of employees failing to report for work, the delay in starting to screen employees and detainees for COVID-19 until March 27, 2020, the general unavailability of COVID-19 test kits for detainees and employees, the shortage of N95 masks and other personal protective equipment (PPE) even for employees much less for detainees, the routine mingling of large groups of detainees (50 or more) within dozens of pods, and the impossibility of implementing social/physical distancing for detainees and employees, the Dallas County Jail has failed to protect the present population of detainees, employees, and the larger community against the racing spread of COVID-19.
67. Nor are the medical resources in Dallas County remotely adequate to deal with the looming repercussions of the outbreak in the Dallas County Jail. On April 5, 2020, the City of Dallas disclosed that 19 hospitals reported 772 intensive care unit (ICU) beds with 462 occupied and 865 ventilators with 302 in use.94 Between March 10, 2020 and April 6, 2020, 383 Dallas patients with COVID-19 have been hospitalized (30 percent of all COVID-19 cases), with 119 in ICUs and 72 on ventilators (19 percent of all COVID-19 cases).95 If the number of serious COVID-
93 Id. 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).
94 Fox 4, Dallas Hospitals Report having more than 2,000 beds, 563 ventilators available (Apr. 5, 2020) https://cutt.ly/ztJVCs1.
95 Dallas County Health and Human Services 2019 Novel Coronavirus (COVID-19) Summary, supra note 55 at Table 5.
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19 cases in Dallas County grows at a rate similar to the rate of increase since March 10, the number of ICU beds and ventilators available in the community will be grossly inadequate, and there will be no time to adjust to the emergency.96 The outbreak in the Dallas County Jail could easily overwhelm the scarce supply of ICU beds and ventilators for the entire Dallas community.
68. Further, the Dallas County Jail must respond to and manage the continued risk of harm posed by the COVID-19 outbreak by following CDC97 and other public health guidelines. This requires: (a) providing all incarcerated persons a six-foot radius (113 ft2) or more of distance between any other persons, as well as during meals, transportation, court sessions, recreation, counts, and all other activities; (b) instituting a safety plan to prevent a further COVID-19 outbreak in the Dallas County Jail in accordance with CDC guidelines; (c) making readily available access to sanitation solutions, without charge, for the purposes of cleaning cell, dormitory, laundry, and eating areas, including sufficient soap, and lifting any ban on alcohol-based hygiene supplies (e.g. hand sanitizer, cleaning wipes); (d) providing COVID-19 testing for all class members, jail staff, and visitors; (e) providing those incarcerated with personal protective equipment, including face masks; (f) providing persons incarcerated with updated information about COVID-19 and daily population statistics with respect to the jail itself; (g) ensuring sufficient access to quarantine and medical isolation space, while still providing adequate hygiene and basic necessities; (h) waiving all medical co-pays for those experiencing COVID-19 like symptoms; and (i) waiving all charges for medical grievances during the COVID-19 outbreak. Cohen Dec. ¶¶ 30–46.
96 This has occurred in other places with widespread outbreaks already. New York State is currently depending on 1,100 ventilators donated from Oregon State and China. Colin Dwyer, “This is a Big Deal: New York Hails Ventilator Deliveries from China and Oregon, N.Y. Times, (April 4, 2020), https://cutt.ly/jtJTmT4. New York City is asking veterinarians to donate ventilators. Miranda Bryant, New York Veterinarians Give Ventilators to ‘War Efforts’ Against Coronavirus, The Guardian, (Apr. 2, 2020), https://cutt.ly/utJTTQG.
97 Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (March 23, 2020), https://cutt.ly/atJPt5B.
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V.

CLASS ACTION ALLEGATIONS

69. Plaintiffs 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.

70. Plaintiffs Oscar Sanchez, Marcus White, Keith Baker, Tesmond McDonald, and

Ideare Bailey seek to represent a class of all current and future detainees in pretrial custody,

including alleged violations of probation or parole, at the Jail (“Pre-Adjudication Class”),

including a subclass of all persons who, by reason of age or medical condition, the CDC has

identified as particularly vulnerable to injury or death if they were to contract COVID-19

(“Medically-Vulnerable Pre-Adjudication Subclass”). Plaintiffs Sanchez, Baker, McDonald, and

Bailey are also representatives and members of this Medically-Vulnerable Pre-Adjudication

Subclass.

71. Plaintiffs Marcelo Perez, Paul Wright, Jose Munoz, Roger Morrison, Terry

McNickles, Kiara Yarborough, and Olivia Washington seek to represent a class of all current and

future detainees in post-adjudication custody, including those serving a term of incarceration

pursuant to an adjudicated violation of probation or parole, at the Jail (“Post-Adjudication 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 Post-

Adjudication Subclass”). Plaintiffs Perez, Wright, Morrison, McNickles, and Yarborough are also

representatives and members of this Medically-Vulnerable Post-Adjudication Subclass.

72. The “Medically-Vulnerable” subclasses are defined as all current and future

persons held at the Dallas County Jail over the age of 50, as well as all current and future persons

held at the Dallas County Jail 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, 31

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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 (within the last two weeks) pregnancy.
73. 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).
74. Joinder is impracticable because (1) the classes and subclasses are numerous; (2) the classes and subclasses include future members, and (3) the classes and subclass members are incarcerated, rendering their ability to institute individual lawsuits limited.
75. Based on available information, there are at least 40 people in the proposed PreAdjudication Class, the proposed Post-Adjudication Class, and each proposed subclass. Everyone in the Dallas County Jail is a proposed class members. The April 6, 2020 daily population report for the Dallas County Jail listed 5,180 total persons, of which nearly 200 people were in custody for pending misdemeanor charges, over 1,000 for pending felony charges, 255 people for parole violation holds, and over 500 serving various sentences.98
76. Common questions of law and fact exist as to all members of the proposed classes: all are at unreasonable risk of serious harm from contracting COVID-19 due to the conditions in the Dallas County Jail and Defendants’ failure to take reasonable measures to assure their safety
98 Dallas County Criminal Justice Management Committee Information Statistics (April 6, 2020). The “serving various sentences” figure is based on an approximation including the categories with a Texas Dep’t of Corrections designation, “sentenced SJF,” “serving in county jail,” and/or “serving county fines and fees.”
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from the disease, and all have a right to receive adequate COVID-19 prevention, testing, and treatment. Questions of fact common to all proposed class members include whether the conditions in the Dallas County Jail expose them to heightened risk of contracting COVID-19, and questions common to all members of the subclass include whether the conditions in the Dallas County Jail expose them to heightened risk of serious illness, injury, or death. Questions of law common to all proposed class and subclass members include what relief is necessary to mitigate the risks posed by their confinement in the Dallas County Jail.
77. Plaintiffs’ claims are typical of the class and the subclass members’ claims. Defendants have placed them at significant risk of harm by failing to take appropriate steps to address the risk of contracting, and being rendered seriously ill or injured by, COVID-19 in the Dallas County Jail. Plaintiffs, like every person in the Jail, face heightened risk of contracting COVID-19 if they are not adequately protected by Defendants.
78. Named Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class. Plaintiffs have no interests adverse to the interests of the proposed class. Plaintiffs retained pro bono counsel with experience and success in the prosecution of civil rights litigation. Counsel for Plaintiffs know of no conflicts among proposed class members or between counsel and proposed class members.
79. Defendants have acted on grounds generally applicable to all proposed class members, and this action seeks declaratory and injunctive relief. Plaintiffs therefore seek class certification under Rule 23(b)(2).
80. 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
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respect to individual class members that would establish incompatible standards of contact for the

party opposing the proposed classes.

VI.

ARGUMENT

Plaintiffs’ Incarceration Amidst the Current COVID-19 Outbreak in the Dallas County Jail Violates their Right to Constitutional Conditions of Confinement.
81. Corrections officials have a constitutional obligation to provide for detainees’

reasonable safety and to address their serious medical needs. 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 received adequate food, clothing, shelter,

and medical care, and must take reasonable reassures to guarantee the safety of the inmates[.]” Id.

at 832 (internal quotation marks omitted).99 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, 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).

82. This obligation requires corrections officials to protect detainees 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

99 Plaintiffs and Class Members are both pretrial and post-conviction detainees. The Fourteenth Amendment’s Due Process Clause governs conditions-of-confinement claims like these for pretrial detainees, while the Eighth Amendment governs post-conviction detainees. While it is clear that pretrial detainees are presumed innocent and therefore merit greater protection, see Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979), the distinction is irrelevant here: the harms of actual and potential COVID-19 contraction alleged herein clearly satisfy the Eighth Amendment’s more restrictive standard.
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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.”).
83. Jail 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 (holding that a prisoner “states a cause of action . . . by alleging that [corrections officials] have, with deliberate indifference, exposed him to conditions that pose an unreasonable risk of serious damage to future health”) (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
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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)).
84. Here, COVID-19 is “sure or very likely to cause serious illness,” and even waiting until “next week” to attempt mitigation efforts within the jail will be too long. See supra Part IV. The harmful “condition of confinement” is confinement itself. Moreover, jail officials have been on notice of the substantial threat that COVID-19 poses to detainees—including the putative class members—for weeks.
85. As outlined in the Declaration of Robert L. Cohen, M.D., Regarding the Spread of COVID-19 in and from the Dallas County Jail (Cohen Dec.) in support of Plaintiffs’ Motion for a Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus, there are no mitigation efforts that the Dallas County Jail could undertake that would better prevent the risk of contraction—and possible later spread to the non-jail community—than immediate release of the Medically-Vulnerable Subclass and others as needed. Cohen Dec. at ¶ 30–46.
86. In addition to the immediate release of all Medically-Vulnerable Class Members, the Dallas County Jail must implement the additional measures outlined by Dr. Cohen (e.g., physical distancing, testing, quarantine, hygiene, medical care, personal protective equipment, public health information, etc.) and other public health/CDC guidance. Efforts to date—starting to check the temperature of employees and relying on regular staff to evaluate existing detainees and ask COVID-19 screening questions to new detainees as of March 27, 2020, continuing only routine sanitation protocols, wearing surgical masks for up to a week rather than changing them daily, and assigning potentially infected detainees to “designated” cells within the Dallas County Jail itself100—are plainly deficient. Defendants’ failure to release particularly vulnerable people and
100 COVID-19 Initiatives, Dallas County Sheriff’s Office, supra note 26.
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sufficiently adopt protocols to protect those who remain incarcerated constitutes deliberate 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.”). As Dr. Cohen notes, the conditions in the Dallas County Jail “create a high risk of contributing to an outbreak of COVID-19,” as the jail is not operationalizing public health guidance and is not equipped to slow transmission of the disease. Cohen Dec. at ¶¶ 4, 13–22.
87. A related but distinct right of pretrial detainees—who are presumed innocent and therefore entitled to greater protection from unconstitutional conditions of confinement—is that their pretrial confinement cannot amount to punishment. Bell, 441 U.S. at 535 (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”); id. at n.16 (pretrial detainees retain greater protections than convicted counterparts); Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (ordering evidentiary hearing on whether transfer to more violent wing was punitive). Punishment—and therefore deliberate indifference—is established if the jailer’s conduct is either not rationally related to a legitimate, nonpunitive government purpose or excessive in relation to that purpose. Bell, 441 U.S. at 561; Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74 (2015); see also Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415 (5th Cir. 2017). Both elements are satisfied here. Even if the Dallas County Jail’s current spacing of detainees and provision of healthcare would serve the legitimate purpose of jail health and safety in normal times, those procedures, together with recent modifications, are now endangering health and safety in the wake of COVID-19 by keeping people in the jail. Hence, continuing to detain Plaintiffs and putative class members is not rationally
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related to the goal of health and safety (both the jail’s and the public’s) and is indeed excessive in relation to the course of conduct that would in fact achieve that goal: release with the support protections outlined herein. See Plata, 563 U.S. 493 (ordering release of inmates to correct overcrowding that violated Eighth Amendment); Memorandum and Order. Other courts to evaluate this question in light of the present COVID-19 pandemic have determined that the Eighth and Fourteenth Amendments require release of vulnerable persons. Thakker, No. 20-CV-0480 (M.D. Pa. Mar. 31, 2020) (categorically releasing petitioners who “suffer[] from chronic medical conditions and face[] an imminent risk of death or serious injury if exposed to COVID-19”); Fraihat v. Wolf, 20-cv-590 (TJH), (C.D. Cal. Mar. 30, 2020) (“This is an unprecedented time in our nation’s history, filled with uncertainty, fear, and anxiety. But in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings.”); Castillo v. Barr, 20-cv-605 (TJH) (AFM), Dkt. No. 32 (C.D. Cal. Mar. 27, 2020); Coronel, 2020 WL 1487274; Basank v. Decker, 20-cv-2518 (AT), Dkt. No. 11 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”); Jovel v. Decker, 12-cv308 (GBD), Dkt. No. 27 (S.D.N.Y. Mar. 26, 2020); Malam v. Adducci, No. 20-cv-10829 (E.D. Mich.) at Doc. No. 23 (granting similar motion for a temporary restraining order).
28 U.S.C. § 2241 is an Appropriate Vehicle to Remedy these Violations. 88. Section 2241(c)(3) allows this court to order the release of inmates like Plaintiffs who are held “in violation of the Constitution.” 28 U.S.C. 2241(c)(3);Boumediene v. Bush, 533 U.S. 723 (2008) (The federal constitution requires that the habeas privilege be available in the absence of suspension); 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
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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).101
89. While the Fifth Circuit has indicated that “conditions of confinement” claims may not sound in Section 2241, habeas remains the proper remedy under these circumstances. See Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976) (rejecting habeas petitioners’ request for an injunction pertaining to immigration work authorizations under § 2241, “habeas is not available to review questions unrelated to the cause of detention. Its sole function is to grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose.”). However, the Fifth Circuit has not addressed how Section 2241 would apply in the current context, where the “condition” is a lightning-fast pandemic that has already infected at least 28 inmates and guards at the Dallas County Jail. Because immediate release is the only medically and legally sound remedy, rather than mere mitigation and/or further proceedings, traditional arguments
104
against § 2241 as the proper vehicle are distinguishable. 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.
101 Section 2241, rather than § 2254, is the appropriate vehicle for state prisoners seeking COVID-based discharge. Section 2254 is a set of rules about how convicted state prisoners challenge the lawfulness of the proceedings producing their convictions and sentences. A state prisoner does not litigate under § 2254 simply because that prisoner denominates a filing as a habeas challenge; the litigation falls under § 2241 if it contains challenges to ongoing custody having nothing to do with whether the original conviction and sentence were lawfully imposed. As the Tenth Circuit has noted, a “challenge to the validity of [petitioner’s] conviction and sentence” should “properly be brought under § 2254” but “an attack on the execution of his sentence” should be “pursuant to § 2241.” Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000) (holding that a state prisoner’s challenge to his interstate prison transfers was properly considered under § 2241). The instant petition is an attack on the execution of the petitioners’ sentences. It is a challenge to continued custody that is independent of the underlying conviction and sentence, which makes § 2241 the appropriate vehicle.
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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). Addressing the Sixth Circuit’s prohibition against § 2241 challenges to “conditions,” one district court determined that challenges to confinement itself in light of the COVID-19 pandemic are properly brought in § 2241 petitions:
Petitioner does not take issue with the steps taken at the [detention facility] to mitigate the risk of detainees contracting COVID-19. Rather, she says that no matter what steps are taken, due to her serious health conditions, there is no communal holding facility where she could be incarcerated during the COVID-19 pandemic that would be constitutional. Petitioner’s claim must therefore be considered as a challenge to the continued validity of confinement itself. Accordingly, Petitioner’s claim is properly brought under 28 U.S.C. § 2241, and the Court has jurisdiction. Malam, No. 20-cv-10829 (E.D. Mich.) at Doc. No. 23 (Order granting motion for a temporary restraining order). 90. Plaintiffs have availed themselves of any possible state court avenues to pursue the relief they seek from this Court. 91. Oscar Sanchez is pretrial custody without an expected court date in his criminal proceeding until April 28, 2020. Mr. Sanchez has been denied the ability to reliably hold legal visits with counsel, and as of the filing of this amended petition, counsel cannot confirm whether Mr. Sanchez sought a motion for reduced bond in an effort to realize his release from the Dallas County Jail. Even if he has not filed a motion for a bond reduction in his criminal case, Mr. Sanchez should be deemed to have exhausted state law remedies for the purposes of his § 2241 petition. Because of the nature of Mr. Sanchez’s arrest, he is unlikely to be released on an affordable pretrial bond particularly in light of reduced court hours and staff. Further, Mr. Sanchez went to great efforts to seek redress through the Dallas County Jail’s grievance procedures, including by filing a grievance and two appeals.
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92. Marcus White is in custody on a parole hold. Detainees subject to a parole hold are not eligible for release on bond reduction. Mr. White cannot request an expedited hearing with respect to his parole, and doing so would not provide him an opportunity to challenge the conditions of his detention. Therefore, Mr. White has no adequate or available state remedy to exhaust. For this reason, Mr. White should be deemed to have exhausted state law remedies for the purposes of his petition to this Court under § 2241.
93. Tesmond McDonald is a post-adjudication detainee, and no longer has a right to a criminal defense attorney. On March 18, 2020, Mr. McDonald sought release from the Dallas County Jail on reduced bond. As a result, bond was set by the district judge. Mr. McDonald’s efforts to seek out an adequate state remedy for his release, without the right to an attorney, demonstrates that he should be deemed to have exhausted the available state law remedies.
94. Marcelo Perez is being held in the Dallas County Jail on an allegation that he violated probation by committing a new drug offense. He is currently on hold for a transfer to the drug treatment facility in Wilmer, Texas. Because of the COVID-19 pandemic, however, the facility is not taking new patients, thus his wait in jail is indefinite. As a post-adjudicated detainee, Mr. Perez no longer has a right to an attorney. Were Mr. Perez to seek a state court remedy via a Writ of Habeas Corpus in Texas - which would progress slowly through the court system - without a lawyer, he could expect to face considerable delays and wait months for adjudication. Grinter Dec. ¶ 7. Because of the extraordinary circumstances preventing Mr. Perez from seeking state relief, he should be deemed to have exhausted state law remedies.
95. Roger Morrison is being held in the Dallas County Jail on a parole hold. Detainees who are on a parole hole are not eligible for release on bond reduction. Mr. Morrison cannot request an expedited hearing with respect to his parole, and doing so would not provide him an
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opportunity to challenge the conditions of his detention Therefore, Mr. Morrison has no adequate or available state remedy to exhaust. For this reason alone, Mr. Morrison should be deemed to have exhausted state law remedies.
96. Keith Baker is in pretrial custody in the Dallas County Jail. As of the time of filing this amended petiton/complaint, counsel for Mr. Baker cannot confirm whether he has moved for a reduced bond in state court. However, even if he has not filed a motion for a bond reduction in his criminal case, Mr. Baker should be deemed to have exhausted state law remedies for the purposes of his § 2241 petition. Mr. Baker went to great efforts to seek redress through the Dallas County Jail’s grievance procedures, including by filing a grievance and two appeals. Mr. Baker’s willingness to pursue adequate state remedies by seeking his release through filing a grievance and two appeals, demonstrates a considerable effort to exhaust all available state procedures for release. Because there is no alternative, sufficiently swift, remedy that could be pursued in the state courts, Mr. Baker should be deemed to have exhausted the available state law remedies.
97. Paul Wright is being held in the Dallas County Jail while awaiting transport to the Texas Department of Criminal Justice. As a post-adjudicated detainee, Mr. Wright no longer has a right to an attorney. On March 4, 2020, Mr. Wright sought release on reduced bond. As a result, bond was set by the district judge. Thereafter, Mr. Wright entered into a plea on March 17, 2020. Neither avenue afforded Mr. Wright the opportunity to seek his release pursuant to the COVID19 outbreak, nor did they result in such relief. Mr. Wright’s efforts to seek out an adequate state remedy, without the right to an attorney, thoroughly demonstrates that he should be deemed to have exhausted the available state law remedies.
98. Terry McNickels is being held in the Dallas County Jail pursuant to an alleged parole violation. His scheduled parole hearing was cancelled because of the pandemic. Making
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matters worse for Mr. McNickels, as of approximately March 2020, all parole hearings in Dallas County were indefinitely suspended. Accordingly, the Dallas County parole board has not released any information outlining a potential time frame for when detainees will have an opportunity to reschedule cancelled parole hearings. Moreover, bond reduction hearings are not available for parole detainees. Mr. McNickels is thus precluded – through no fault of his own – from receiving an opportunity in state court to demonstrate that he should be released from jail. Therefore, he should be deemed to have exhausted the available state law remedies.
99. Jose Munoz is being held pursuant to a probation order from a drug possession charge. Mr. Munoz is awaiting transportation to a drug treatment facility in Wilmer, Texas. Because of the COVID-19 pandemic, however, the facility is not taking new patients, and so his wait in jail is indefinite. As a post-adjudication detainee, Mr. Munoz no longer has right to an attorney. Mr. Munoz entered into a plea on January 27, 2020, pursuant to which he expected to receive treatment in Wilmer, Texas. Were Mr. Munoz to seek a state court remedy via a Writ of Habeas Corpus in Texas - which would progress slowly through the court system - without a lawyer, he could expect to face considerable delays and wait months for adjudication. Grinter Dec. ¶ 7. Mr. Munoz should be deemed to have exhausted the available state law remedies.
100. Kiara Yarborough is being held in the Dallas County Jail pursuant to a probation order and is awaiting transport to the Intermediate Sanctions Facility (ISF) as a condition of her probation. TDCJ has announced that they will for the indefinite future not be transporting anyone to prisons or treatment facilities. Because she does not have a pending criminal case, she does not have the right to appointed counsel. Were Ms. Yarborough to seek a state court remedy via a Writ of Habeas Corpus in Texas - which would progress slowly through the court system - without a
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lawyer, she could expect to face considerable delays and wait months for adjudication. Grinter Dec. ¶ 7. Ms. Yarborough should be deemed to have exhausted the available state law remedies.
101. Olivia Washington being pursuant to a probation order and is awaiting transport to the Substance Abuse Felony Punishment facility (SAFP), as a condition of her probation. Because of the COVID-19 pandemic, however, the facility is not taking new patients, thus her wait in jail is indefinite. Because she does not have a pending criminal case, she does not have the right to appointed counsel. Were Ms. Washington to seek a state court remedy via a Writ of Habeas Corpus in Texas - which would progress slowly through the court system - without a lawyer, she could expect to face considerable delays and wait months for adjudication. Grinter Dec. ¶ 7. Because there is no alternative remedy that could be pursued in the state courts, Ms. Washington should be deemed to have exhausted the available state law remedies.
102. Ideare Bailey is a pretrial detainee. He has filed a writ requesting pretrial release, and the district judge set a bond, which he posted. His bond has a condition that he be supervised with an electronic leg monitor, but the pretrial services division refuses to provide him one because he tested positive for COVID-19. Mr. Bailey has exhausted the available remedies in state court but remains incarcerated. Because there is no additional, alternative remedy that could be pursued in the courts of the State of Texas, Mr. Bailey should be deemed to have exhausted the available state law remedies.
103. Further, section 2241 contains no exhaustion requirement conceivably applicable to prisoners seeking COVID-based discharge.102 Plaintiffs are all therefore excused from 28
102 Section 2241 does have provisions that impose some exhaustion-like constraints on litigation by military prisoners challenging their combatant status determinations. Those provisions are not relevant here.
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U.S.C. § 2241’s prudential exhaustion requirement.103 It is well settled that “exhaustion is not

required when the state procedures do not afford swift vindication.” Galtieri v. Wainwright, 582

F.2d 348, 354 n. 12 (5th Cir.1978). Plaintiffs will not receive a sufficiently swift resolution of their

constitutional claims if forced to exhaust all available remedies via state writs of habeas. Such

remedies would take months under normal circumstances, and certainly will now take longer in

light of substantial court closures across the state in response to the COVID-19 emergency.104 See

Amended Declaration of Alison Grinter (highlighting the extent, and unpredictability, of local state

court closures and noting that all local courts in Dallas “have slowed or suspended functions”).105

104. Given the severity and spread of COVID-19, hours matter; Plaintiffs’ case is one

of the rare circumstances in which “it is proper for federal courts to treat claims technically

unexhausted.” Galtieri, 582 F.2d at 354.

VII.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

Unconstitutional Conditions of Confinement in Violation of the Fourteenth Amendment to the U.S. Constitution
42 U.S.C. § 1983 / 28 U.S.C. § 2241 Pre-Adjudication Class versus All Defendants
105. Plaintiffs incorporate by reference each of the preceding paragraphs and allegations

as if fully set forth herein.

103 To the extent that courts have imposed prudential exhaustion rules on § 2241 petitioners, those petitioners have been seeking modifications to confinement conditions rather than discharge. The concerns that animate such prudential restrictions—the existence of parallel statutes with exhaustion requirements—do not apply to those seeking discharge
104 Texas Courts, Current and Upcoming Closures, https://cutt.ly/VtJBR8w (listing dozens of state court closures due to the pandemic).
105 See also Supreme Court of Texas, Court of Criminal Appeals of Texas, First Emergency Order Regarding the COVID-19 State of Disaster, (March 13, 2020), https://cutt.ly/1tL4MOc (authorizing all courts in Texas to, inter alia, “Modify and suspend any and all deadlines and procedures” until 30 days after the Governor’s state of disaster related to COVID-19 is lifted); Jolie McCullough, Coronavirus Pauses Many Texas Court Proceedings. For Some, that Means More Time in Jail, Texas Tribune (March 19, 2020, 11:00 a.m.), https://cutt.ly/StL4HEE.
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106. Under the Fourteenth Amendment, corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody. Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (the state has an “unquestioned duty to provide adequate . . . medical care” for detained persons).
107. As part of the right, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail to at least the same degree of persons in custody subsequent to a conviction. Deliberate indifference to the serious risk COVID19 poses to members of the Pre-Adjudication Class, and particularly members of the MedicallyVulnerable Pre-Adjudication Subclass, violates this right.
108. The Dallas County Jail has refused to comply with public health guidelines to manage an outbreak of COVID-19 and has not provided for the safety of the Pre-Adjudication Class. Defendants’ actions and inactions result in the confinement of members of the PreAdjudication Class in a jail where they do not test for, treat, or prevent COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate medical care.
109. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Dallas County and the Dallas County Jail have violated the rights of the Pre-Adjudication Plaintiff Class under the Fourteenth Amendment.
SECOND CLAIM FOR RELIEF Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.
Constitution 42 U.S.C. § 1983 / 28 U.S.C. § 2241 Pre-Adjudication Class versus All Defendants 110. Plaintiffs incorporate by reference each of the preceding paragraphs and allegations as if fully set forth herein.
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111. Under the Fourteenth Amendment, persons in pretrial custody have greater due process protections than those convicted and therefore cannot be punished as part of their detention. Bell, 441 U.S. at 535 n.16. Punishment is established if the jailer’s conduct is either not rationally related to a legitimate, nonpunitive government purpose or excessive in relation to that purpose.
112. Even assuming that the Dallas County Jail’s spacing and provision of medical services inside the facility normally serves the legitimate, nonpunitive purpose of health and safety of detained persons, the Dallas County Jail has failed to comply with public health guidelines to manage an outbreak of COVID-19. Therefore, continuing to detain Pre-Adjudication Class members without making the Dallas County Jail compliant with COVID-19-specific guidance from public health experts is not rationally related to, and excessive in relation to, that purpose.
113. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Dallas County and the Dallas County Jail have violated the rights of the Pre-Adjudication Plaintiff Class under the Fourteenth Amendment.
THIRD CLAIM FOR RELIEF Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the
U.S. Constitution 42 U.S.C. § 1983 / 28 U.S.C. § 2241 Post-Adjudication Class versus All Defendants 114. Plaintiffs incorporate by reference each of the preceding paragraphs and allegations as if fully set forth herein. 115. 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 provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail. See, e.g., Helling, 509 U.S. at 33; Estelle, 429 U.S. at 104; DeShaney, 489 U.S. at 200. Deliberate indifference to the serious risk COVID-19 poses to members of the Post-Adjudication Class, and
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particularly members of the Medically-Vulnerable Post-Adjudication Subclass, infringes on the

protection from cruel and unusual punishment. Defendants violate this right by subjecting

members of the Post-Adjudication Class to conditions of confinement that do not ensure their

safety and health.

116. The Jail has failed to comply with public health guidelines to manage an outbreak

of COVID-19 and cannot provide for the safety of the Post-Adjudication Class.

117. Defendants’ actions and inactions result in the confinement of members of the Post-

Adjudication Class in a jail where they do not have the capacity to test for, treat, or prevent

COVID-19 outbreaks, which violates Plaintiffs’ rights to treatment and adequate medical care.

118. By operating the Jail without the capacity to test for, treat, or prevent a COVID-19

outbreak, Defendants, as supervisors, direct participants, and policy makers for Dallas County and

the Dallas County Jail have violated the rights of the Post-Adjudication Plaintiff Class under the

Eighth Amendment.

VIII.

REQUEST FOR RELIEF

119. Plaintiffs incorporate by reference each of the preceding paragraphs and allegations

as if fully set forth herein.

120. The outbreak of COVID-19 in the Dallas County Jail is creating a public health

crisis for detainees and employees as well as the community at large. To prevent unnecessary

disease, suffering, and deaths, Plaintiffs and Class Members respectfully request that the Court

order the following relief:

1. Certification of this action as a Class Action;

2. A temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Defendants to identify all MedicallyVulnerable Subclass Members in both the Pre-Adjudication and Post-Adjudication Classes within six (6) hours of the Court’s order and release—within twenty-four (24) hours of submission of the list—all such persons absent proof of judicially-
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recorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate;
3. A temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus 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;
4. Following immediate release of all Medically-Vulnerable Subclass Members, a plan, to be submitted to the Court in three (3) days and overseen by a qualified public health expert agreed upon by the parties or ordered by the Court pursuant to Fed. R. Evid. 706, which outlines:
a. 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;
b. A housing and/or public support plan for any released Class or Subclass Members whose testing confirms have been exposed to or infected with COVID-19 and who do not readily have a place to self-isolate for the CDCrecommended period of time (currently 14 days).
c. An evaluation of whether the release of the Subclass Members permits adequate social distancing and whether other categories of prisoners must be released to provide for compliance with CDC guidelines.
5. A preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Defendants to:
a. Continue to release via habeas or transfers to home confinement, all current and future Medically-Vulnerable subclass members absent proof of judicially-recorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate;
b. Report weekly on the population of persons in the Dallas County Jail who are Medically-Vulnerable as defined in this action;
c. Follow the terms of the public health expert plan submitted pursuant to Fed. R. Evid. 706;
d. Release via habeas, or transfer to home confinement, additional Class Members, including those not considered “Medically-Vulnerable,” as needed to ensure that all remaining persons incarcerated in the Dallas County Jail are under conditions consistent with CDC and public health
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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.106 6. If immediate release is not granted on the basis of this Complaint alone, then expedited review of the Complaint, including oral argument, via telephonic or videoconference if necessary; 7. A declaration that jail’s policies violate the Fourteenth Amendment rights to reasonable safety and to be free from punishment prior to conviction with respect to the Pre-Adjudication Class; 8. A declaration that Dallas County Jail’s policies violate the Eighth Amendment right against cruel and unusual punishment with respect to the Post-Adjudication Class; 9. An award of Plaintiffs’ attorney fees and costs under 42 U.S.C. § 1988 and other applicable law; and 10. Any further relief to which Plaintiffs are entitled.
106 If, after granting habeas writs and/or transfer orders to home confinement as outlined above, additional release orders are required to comply with the public health expert plan submitted pursuant to Fed. R. Evid. 706, Plaintiffs would anticipate moving the Court to convene a threejudge panel pursuant to 18 U.S.C. § 326(a)(3).
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Dated: April 17, 2020.

Respectfully submitted,

_____________________ AMERICAN CIVIL LIBERTIES FOUNDATION Andrea Woods* N.Y. Bar No. 5595509 Brandon Buskey* 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org
Henderson Hill* N.C. Bar No. 18563 201 W. Main St. Suite 402 Durham, NC 27701 (919) 682-9563 hhill@aclu.org
Amy Fettig* D.C. Bar No. 484883 915 15th Street N.W., 7th Floor Washington, D.C. 20005 (202) 548-6608 afettig@aclu.org

_____________________ ACLU FOUNDATION OF TEXAS Brian Klosterboer Texas. Bar No. 24107833 Adriana Piñon** Texas Bar No. 24089768 Andre Segura Texas Bar No. 24107112 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146 Fax: (346) 998-1577
_____________________ CIVIL RIGHTS CORPS Katherine Hubbard*** D.C. Bar No. 1500503 Elizabeth Rossi* D.C. Bar No. 1500502 1601 Connecticut Ave NW, Suite 800 Washington, D.C. 20009 (202) 894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org

/s/ Barry Barnett SUSMAN GODFREY L.L.P. Barry Barnett Texas Bar No. 01778700 8115 Preston Road, Suite 575 Dallas, TX 75225 (866) 754-1900 bbarnett@susmangodfrey.com
Michael Gervais* N.Y. Bar No. 5122890 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 789-3100 mgervais@susmangodfrey.com
_____________________ NEXT GENERATION ACTION NETWORK Alison Grinter Texas Bar 24043476 Kim T. Cole Texas Bar No. 24071024 1808 South Good Latimer Expressway Dallas, TX 75226 (214) 704-6400 agrinter@thengan.com kcole@thengan.com

ATTORNEYS FOR PETITIONERS/PLAINTIFFS *admitted pro hac vice **N.D. Texas admission application forthcoming *** pro hac vice application forthcoming

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Case 3:20-cv-00832-E Document 39 Filed 04/17/20 Page 52 of 52 PageID 689 CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was served via the Court’s CM/ECG system on all counsel registered with that system, and via email, on April 17, 2020
/s/ Barry Barnett Barry Barnett
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Declaration of Amy Fly on Behalf of Ideare Bailey
My name is Amy Fly. I am an attorney who is licensed to practice in the state of Pennsylvania. On April 15, 2020, I spoke with Ideare Bailey (Bookin# 20014713), a detainee in the Dallas County Jail. He provided me with the following information:
1. Mr. Bailey is 35 years old and has type 2 diabetes.
2. He was booked into Dallas County Jail on April 6, 2020 for property theft. The judge granted him a bond reduction and ordered electronic monitoring as a condition of his release. Though his wife paid his bond on April 15, 2020, the jail will not release Mr. Bailey because the electronic monitoring company has been unable to provide him with a monitoring device.
3. When Mr. Bailey entered the jail on April 6, 2020, he was healthy. He and his wife had practiced social distancing for a month leading up to his arrest and he was not exhibiting any symptoms of the virus until he was exposed sick people inside the jail.
4. During intake, no one asked Mr. Bailey any questions related to COVID-19.
5. Mr. Bailey was placed in South Tower pod 2C with about 60 other people. The man who slept in the bunk directly next to Mr. Bailey was coughing, but was never tested for the virus.
6. Mr. Bailey developed a cough and went to the infirmary about 15 times over the course of the next 4 days. Each time, the nurse did not check his temperature and sent him back to the pod.
7. The first time anyone took Mr. Bailey’s temperature was Friday, April 10th, when he was running a fever of 106 degrees Fahrenheit. He was then transferred to the infirmary in the basement of the North Tower, where he is currently being held with about 15 other detainees who tested positive for the virus. To Mr. Bailey’s knowledge, the staff did not check the temperature of anyone else in pod 2C and Mr. Bailey was the only one removed from the pod.
8. Mr. Bailey was not tested for COVID-19 for two more days. On Monday, April 13, 2020, he was informed that he tested positive. The staff have not given Mr. Bailey any information about the virus, including how to prevent it from spreading.
9. Mr. Bailey was given a mask for the first time 3 days ago and has not been given any replacements. The staff make him wear the same mask all day. Some guards make him wear it when he sleeps; some do not.

Case 3:20-cv-00832-E Document 39-1 Filed 04/17/20 Page 2 of 2 PageID 691

10. Mr. Bailey is not receiving sufficient medical care. He is not given enough insulin to manage his blood sugar levels. He is not being properly monitored. If he had a medical emergency, he would have to bang on the window to get a nurse’s attention.
11. Mr. Bailey cannot file a grievance because he does not have access to the kiosk, paper, or writing utensils.
12. If Mr. Bailey were to be released, there is ample space in his home for him to isolate from his family for any required period of quarantine.

I declare under the penalty of perjury that the foregoing is true and correct. I have read this declaration to Mr. Bailey and he confirmed its accuracy.

April 15, 2020 York, PA

__/s/Amy Fly_____________________ Amy Fly

Case 3:20-cv-00832-E Document 39-2 Filed 04/17/20 Page 1 of 1 PageID 692

Second Declaration of Alison Grinter on behalf of Kiara Yarborough
My name is Alison Grinter. I am an attorney who is licensed to practice in the Eastern District of Texas. On April 17, 2020, I spoke to a detainee in the Dallas County Jail named Kiara Yarborough (Bookin# 19060031) and she provided me with the following information:
1. Ms. Yarborough is 25 years old. She is detained in the Dallas County Jail in the South (Kays) Tower, 4D. She has been in the jail since December 19, 2019.
2. She said that the inmates all got masks on the 10th but they only gave each person one. Since then, hers got clogged and gross and won’t let any air in. She says she’s scared to sleep without it but doesn’t even see how it’s helping anymore.

3. The pod across the hall from hers got quarantined yesterday. Today the guards pulled two inmates from her pod to go clean the pod that was emptied out because the inmates went into COVID quarantine.
4. She believes her pod is at 63 or completely full to the 64 person capacity because they keep bringing people in from other towers as the virus count keeps climbing.

5. She reported that the food has continued to deteriorate. Today, they had peanut butter and jelly sandwiches for lunch. She hears that’s because the kitchen officers and inmate trustees are in quarantine. The pod has had the same thing for dinner, sort of a leftover stew that the inmates call goulash, for a week straight.
6. She reports that she has a bacterial vaginosis infection that in the past tends to spread to her kidneys and develop into pyelonephritis and she is on antibiotics right now. She’s worried that it will spread to her kidneys and make her more vulnerable if she gets COVID-19.

7. She said “I know that we don’t get treated like princesses here in jail but I want to leave out of here alive.”
I declare under penalty of perjury that the forgoing is true and correct.

April 17, 2020 Dallas County

_________________________ Alison Grinter

Case 3:20-cv-00832-E Document 39-3 Filed 04/17/20 Page 1 of 1 PageID 693

Second Declaration of Alison Grinter on behalf of Olivia Washington
My name is Alison Grinter. I am an attorney who is licensed to practice in the Eastern District of Texas. On April 17, 2020, I spoke to a detainee in the Dallas County Jail named Olivia Washington (Bookin# 20006098) and she provided me with the following information:
1. Ms. Washington is 26 years old. She previously made a declaration in this case (on April 7, 2020) and gave the following updates describing her detention in the Dallas County Jail South Tower 4D since then.
2. Last Wednesday or Thursday, the Pod was given masks, paper disposable masks. One each.
3. They make us wear them to talk to the guards but they’re not mandatory in the dayroom or in the bunks. The masks get gross after a couple of days. They can’t be cleaned because they’re paper.
4. The pod 4C next door got quarantined, and they took everyone out. We saw them walking out. At first it was just eight or so, and then an hour or two later, they all moved.
5. We were informed today by the guard in our pod that the officers in the kitchen have been quarantined, and that is why the food has been a lot different. Lunch was peanut butter and jelly. Dinner was goulash for the whole of last week.
6. We’ve been getting a lot of new people in the pod from different towers. A lot of people are moving around. Now the pod is full. All 64 bunks are full.

I declare under penalty of perjury that the forgoing is true and correct.

April 17, 2020 Dallas County

_________________________ Alison Grinter

Case 3:20-cv-00832-E Document 39-4 Filed 04/17/20 Page 1 of 4 PageID 694
Exhibit 1
Declaration of Amy Fly on behalf of Oscar Sanchez

Case 3:20-cv-00832-E Document 39-4 Filed 04/17/20 Page 2 of 4 PageID 695
Declaration of Amy Fly on behalf of Oscar Sanchez
My name is Amy Fly I am an attorney who is licensed to practice in the state of Pennsylvania. I spoke to a detainee in the Dallas County Jail named Oscar Sanchez (Bookin# 20011561) several times from April 3-7, 2020. Mr. Sanchez provided me with the following information:
1. Mr. Sanchez is 28 years old. He has been detained in five different locations within the Dallas County Jail since his incarceration began on March 9, 2020. He was transferred between the following units in this order: the 4th floor of the West Tower, E pod on the 3rd floor of the South Tower, H pod on the 1st floor of South Tower, a holding tank (where he was housed for 3 days with 6 other detainees waiting for new placement), and C pod of the 3rd floor of the South Tower (where he is currently detained as of the date of this declaration).
2. Each pod in the South Tower has 64 beds in one room and holds about 58-60 people at any given time. The beds are about 3-4 feet apart from each other.
3. Mr. Sanchez was moved to H pod on the 1st floor of South Tower after there were confirmed positive cases of COVID-19 in E pod. One man who tested positive spent 3-4 days vomiting before he was removed from the dorm. When the jailers escorted him out of the dorm, they gave a detainee in E pod a biohazard bag and made him collect the sick man’s belongings. The detainee was not given any protective gear when he cleaned the sick man’s bunk and he continued living in dorm E and interacting with Mr. Sanchez and the other 60 men in the pod. When more and more people in dorm E tested positive for the virus, the jailers split everyone in the dorm up and moved them to different pods. They did not check anyone’s temperature before moving detainees into new dorms. Mr. Sanchez was moved to the first floor of H pod, which had more people than E pod. Without explanation, Mr. Sanchez was moved back to the third floor of South Tower. He does not know whether the area was disinfected before he returned.
4. Mr. Sanchez has a history of chronic asthma that has been so severe that he was hospitalized. On April 5, 2020, he told a doctor he hard chest pains and difficulty breathing, and requested medical attention. The doctor told him there was nothing he could do about it because there was nothing in his file saying he is asthmatic. Before the pandemic, every time Mr. Sanchez told staff he was having respiratory problems, they would give him an emergency inhaler and then give him another inhaler when he saw a doctor. Now, Mr. Sanchez cannot get an inhaler unless he files a sick call and pays to be evaluated by a doctor.
5. When Mr. Sanchez asked guards for a facemask, he was told the only people that need masks are the guards. Some guards wear gloves and facemasks, but some do not. The guards that wear facemasks do not change their masks when they go from dorm to dorm.
6. All 60 men in both A and E pods must wear the same clothes 6 days in a row before they are given clean clothing.
1

Case 3:20-cv-00832-E Document 39-4 Filed 04/17/20 Page 3 of 4 PageID 696
7. All 60 men in both A and E pods share 8 phones, none of which are disinfected between use.
8. All 60 men in both A and E pods share 6 showers, and 8 toilets. The entire dorm, including the showers and the toilets, are cleaned by three detainees who volunteer to clean for special privileges, like an additional tray of food. Mr. Sanchez started volunteering because his bunk is 3 feet from the toilets and the other volunteers usually do not clean properly.
9. All 60 men in both A and E pods eat meals together in the day room. There are not enough tables, so it is impossible for everyone to sit without touching the people sitting on either side of them. Many detainees even drink out of the same cup.
10. Several times a day, all the men in Mr. Sanchez’s dorm line up back to back to receive meals and medication. The men are no more than one foot apart. The same protocol is followed to receive clean clothes and commissary whenever it is delivered. The person distributing medication wears the same masks and gloves in every dorm. The person distributing food usually does not wear a masks at all.
11. On March 26, the jail no longer allowed detainees to purchase all items, including soap, from the commissary. The jail does not provide nearly enough soap to last the week.
12. On March 30, Mr. Sanchez started noticing the food portions getting smaller. There also seemed to be a shortage of blankets and clothes.
13. Recently Mr. Sanchez noticed more and more staff disappear from the jail. The jail has become so short staffed, they are now training people who worked in the kitchen and laundry room to be in the dorms.
14. Typically there are about 6-7 new people introduced to Mr. Sanchez’s dorm each week and 6-7 people transferred to a different dorm or released. This has not changed since the start of the pandemic. The newest detainees arrived as recently as April 2nd and 3rd.
15. On April 6, 2020, Mr. Sanchez asked the nurse on second shift if she could check his temperature because he felt feverish, and had a sore throat and cough, body chills, and a throbbing headache. The nurse responded that fever and sore throat are not symptoms of the coronavirus and he should stop worrying.
16. About 30 minutes later, the same nurse entered Mr. Sanchez’s dorm and made an announcement that they could avoid catching the virus by washing their hands, avoiding groups of 10 or more, not touching their face, and covering their mouths. She also put up a poster saying the same. This was the first time the jail told Mr. Sanchez anything about how to prevent the spread of the virus. When Mr. Sanchez asked how they avoid groups of 10 when they live in a group of 60, and how to wash their hands without soap, the
2

Case 3:20-cv-00832-E Document 39-4 Filed 04/17/20 Page 4 of 4 PageID 697

nurse replied “I’m not here to have a debate. Don’t worry, you don’t have the virus” The next day, the same nurse made an announcement that 25% of people who have the virus don’t show symptoms and don’t even know they have it. When Mr. Sanchez tried to ask how they know no one in pod has the virus, she cut him off and said “I’m not here to answer questions.”
17. On April 7, 2020, Mr. Sanchez’s symptoms got worse and he explicitly asked to be tested for the coronavirus. The guard told him he informed his superiors that Mr. Sanchez was really sick and using the phones everyone else uses, so he needed to be tested. His supervisor responded that Mr. Sanchez could not be tested unless he put in a sick call, which costs $10. The guard relaying this information to Mr. Sanchez said “I don’t know what these people want you to do. Die first?” As of the date of this declaration, Mr. Sanchez has not been tested for the virus.

18. Mr. Sanchez was repeatedly denied grievance forms every time he requested them. On April 5, 2020, Mr. Sanchez filed an emergency grievance stating that he fears for his life under current conditions. Afterwards, a jailer told Mr. Sanchez he was being watched and warned him not to do anything outside of the rule book because other jailers are looking for an opportunity to retaliate against him. On April 6, 2020, Mr. Sanchez had not received a response to his emergency grievance, so he file an appeal. A jailer then came into his dorm, laughed at the detainees in the pod, and said “You think filing grievances is going to change anything?” The following morning, Mr. Sanchez tried using the kiosk to check the status of this grievance and appeal, but the application to file grievances and check their status was removed from the kiosk.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

_____s/ Amy Fly_______________ Amy Fly

3

Case 3:20-cv-00832-E Document 39-5 Filed 04/17/20 Page 1 of 3 PageID 698
Exhibit 2
Declaration of Amy Fly on behalf of Marcus White

Case 3:20-cv-00832-E Document 39-5 Filed 04/17/20 Page 2 of 3 PageID 699
Declaration of Amy Fly on behalf of Marcus White
My name is Amy Fly I am an attorney who is licensed to practice law in the state of Pennsylvania. I spoke to a detainee in the Dallas County Jail named Marcus White (Bookin# 19056720) on April 4th and 5th of 2020. Mr. White provided me with the following information:
1. Mr. White is 37 years old. He is incarcerated on an $111,000 bond that he cannot afford to pay. On April 4, 2020 was informed that he tested positive for COVID-19.
2. When Mr. White first arrived at the jail, he was detained in South Tower where 5 people were known to have tested positive for COVID-19. Around March 21st, Mr. White started showing symptoms of the virus, including coughing, congestion, body aches, and diarrhea. He continued interacting with other people in his 60-man dorm for four more days. On March 25th, he was moved to a single cell in dorm 7 on the 9th Floor of West Tower, where he is confined to his cell 24 hours a day. There, the staff checked his temperature daily, but did not test him for the virus until April 2nd.
3. The guards that moved Mr. White from South Tower to West Tower wore masks and suits, but detainees are not provided with any personal protective equipment.
4. The jail staff never told Mr. White about how to avoid spreading the virus. While in South Tower, he learned on the news that the virus is airborne and can stay on surfaces for several days. Mr. White no longer has access to the news in West Tower.
5. Mr. White suffers from grand mal seizures, which cause his him to lose consciousness and have violent muscle contractions. His seizures are often stress induced and require daily medication. He also takes daily medication for hypertension. Though the staff has given him access to his blood pressure medication, they are not giving him seizure medication.
6. As of the date of this declaration, Mr. White had not received any soap or cleaning supplies since he was moved to West Tower on March 25.
7. As of the date of this declaration, Mr. White has not received any clean laundry and continues to use to the same clothes and bed linen he had when he was in the South Tower.
8. Mr. White was denied a shower for a week.
9. Mr. White and four other men detained on the 9th floor of West Tower were denied grievance forms despite numerous requests. Mr. White made a sign demanding grievance forms and hung it on his cell. For a week, the men banged on their cell doors and refused to allow the nurses take their temperatures until they were given grievance forms. On
1

Case 3:20-cv-00832-E Document 39-5 Filed 04/17/20 Page 3 of 3 PageID 700

March 23, the staff gave them the forms. Marcus wrote a grievance demanding release due to inhumane conditions and passed it around to the others so they could copy the language. As of the date of this declaration, all of those grievances are still sitting in the outboxes of the cells because the staff refuse to take them. The other men who tried filing grievances include Edgar Vgalde (Bookin# 19055847), Ladarius Johnson (Bookin# 20008887), Todd Whitfield (Bookin# 20011184), and Tesmond McDonald (Bookin# 19047475).
I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

_____s/ Amy Fly_______________ Amy Fly

2

Case 3:20-cv-00832-E Document 39-6 Filed 04/17/20 Page 1 of 3 PageID 701
Exhibit 3
Declaration of Amy Fly on behalf of Tesmond McDonald

Case 3:20-cv-00832-E Document 39-6 Filed 04/17/20 Page 2 of 3 PageID 702
Declaration of Amy Fly on behalf of Tesmond McDonald
My name is Amy Fly and I am licensed to practice law in the State of Pennsylvania. On April 6, 2020, I spoke to a detainee in the Dallas County Jail named Tesmond McDonald (Bookin# 19047475) and he provided me with the following information:
1. Mr. McDonald is 32 years old. On April 3, 2020, he found out he tested positive for COVID-19.
2. Mr. McDonald has asthma and high blood, which he takes medication for.
3. The jail failed to give him adequate access to an asthma pump on several occasions. When he first arrived at the jail, he waited two weeks to be given his asthma pump. Refill request also took days.
4. Mr. developed body aches and began having trouble catching his breath. He started overusing his asthma pump in order to compensate, which made him jittery. He knew something was wrong. The nurse took his oxygen levels, which were dangerously low – 59 or 60 mm Hg. He was sent to the infirmary and given a new asthma pump. He did not have one at the time because he used up his old pump and the jail had not yet responded to his request for a new one. A week later, he was tested positive for COVID-19.
5. On one occasion, Mr. McDonald asked to go to a doctor because he could not breathe – he thought he was going to die. They told him they can’t do anything about it and that he needed to wait until tomorrow. Even then, he still never saw a doctor.
6. Someone comes around and takes his temperature and heart rate every day. He has a sore throat and diarrhea, but the jailers have not given him any medication for these symptoms. They are not even giving him enough water to stay hydrated.
7. When Mr. McDonald first arrived at the jail, he was places in South Tower 3A. When four people in his dorm tested positive for COVID-19, he was moved to the West Tower and placed on lock down in a single cell.
8. When Mr. McDonald first arrived at West Tower, it took him a week to get clean clothes.
9. The walls in his cell are so dirty that he is afraid to touch them.
10. Once a week, he and the other detainees in his dorm are given three pieces of soap 1/4th the size of a state ID. They are completely used up in one use. He does not have access to commissary to buy more soap.
11. He is only allowed to shower once a week, so he takes bird bathes in the sink. At one point, he was denied a shower for 10 days.

Case 3:20-cv-00832-E Document 39-6 Filed 04/17/20 Page 3 of 3 PageID 703

I declare under penalty of perjury that the forgoing is true and correct.

April 6, 2020 Dallas County

_/s/ Amy Fly________________________ Amy Fly

Case 3:20-cv-00832-E Document 39-7 Filed 04/17/20 Page 1 of 3 PageID 704
Exhibit 4
Declaration of Amy Fly on behalf of Marcelo Perez

Case 3:20-cv-00832-E Document 39-7 Filed 04/17/20 Page 2 of 3 PageID 705
Declaration of Amy Fly on behalf of Marcelo Perez
My name is Amy Fly I am an attorney who is licensed to practice in the state of Pennsylvania. I spoke to a detainee in the Dallas County Jail named Marcelo Perez (Bookin# 20001013) on April 7-8, 2020. Mr. Perez provided me with the following information:
1. Mr. Perez is 43 years old. He has been in the jail since January 7, 2020 because of drug charges and probation violations.
2. He has high blood pressure and is diabetic. When he first arrived at the jail, a nurse checked his sugar levels twice a day and gave him varying doses of metformin depending on his sugar levels. Now, the nurse doesn’t check his sugar levels at all and gives him a set dosage twice a day. The dose is often too high and keeps him awake all night.
3. Mr. Perez used to be detained on the second floor of South Tower in pod H. This pod held about 60 men, some of which were exhibiting clear signs of COVID-19. At least 2 or 3 of the men were coughing for several weeks. They were so sick that Mr. Perez told the nurse they needed to be checked out, but they were never evaluated and did not receive any medical treatment.
4. On March 22, 2020, Mr. Perez and two other detainees were moved to C pod on the 3rd floor as punishment for inappropriate laughter. No one took their temperatures or tested them for the virus before moving them. A week later, Mr. Perez developed a cough. He has still not been tested for the virus, though his cough has since subsided.
5. Detainees must pay $10 in order to be seen by a nurse. After payment is made, the detainee is not seen by the nurse for 2-3 weeks. Mr. Perez cannot make requests to see a nurse because he does not have any money on his account.
6. Mr. Perez has never seen a detainee wearing a mask. When Mr. Perez asked for a mask, he was told that the jail staff have to buy their own masks, so they would not give him one. Some detainees tried wrapping bath towels around their heads to cover their faces, but the jail staff told them they were not allowed to do that.
7. Mr. Perez has seen only one out of every six guards wearing masks. The guards are not practicing social distancing. He has seen them close together in large groups, and watched multiple guards share from a single bag of chips.
8. Mr. Perez filed an emergency grievance on April 6, 2020. He has not received a response. On April 7, 2020, he attempted to check the status of his emergency grievance on the kiosk, but the staff removed the grievance portal from the kiosk.
1

Case 3:20-cv-00832-E Document 39-7 Filed 04/17/20 Page 3 of 3 PageID 706
9. Mr. Perez is in the same pod as Oscar Sanchez. On April 8, 2020, the jail staff called for Mr. Sanchez to go to the nurse’s station. He never returned. The guards then made his cellie, Fernando, clean Mr. Sanchez’s bunk and collect his belongings. They did not give Mr. Fernando any personal protective equipment before he followed this order.

I declare under penalty of perjury that the forgoing is true and correct.

April 8, 2020 Dallas County

_____s/ Amy Fly_______________ Amy Fly

2

Case 3:20-cv-00832-E Document 39-8 Filed 04/17/20 Page 1 of 2 PageID 707
Exhibit 5
Declaration of Amy Fly on behalf of Roger Morrison

Case 3:20-cv-00832-E Document 39-8 Filed 04/17/20 Page 2 of 2 PageID 708

Declaration of Amy Fly on behalf of Roger Morrison
My name is Amy Fly and I am licensed to practice law in the state of Pennsylvania. On April 8, 2020, I spoke to a detainee in the Dallas County Jail named Roger Morrison (Bookin# 20011453) and he provided me with the following information:
1. Mr. Morrison is 49 years old. He was admitted to the jail on March 9, 2020 for drug possession charges. Mr. Morrison has never been convicted of or charged with a violent offense.
2. Mr. Morrison is in the medical pod (South Tower, C3) because he suffers from severe allergies, high blood pressure, hepatitis C, and cirrhosis of the liver. Because of these ailments, he has a weak immune system. He takes several medications daily, including a pill for nerve pain stemming from the 12 screws in his back.
3. The staff have not told Mr. Morrison anything about COVID-19. He knows he is high risk, but does not know how to prevent himself from getting the virus. He cannot tell from looking at someone whether they have the virus. Some people in his pod look sick, but he does not know what they are sick with. He does not want to sit in jail and die.
4. Social distancing in the pod is impossible. They are packed in there like sardines. His bed is one foot from another bunk on one side and three feet from another bunk on the other side.
5. The guards sometimes wear masks, but sometimes they don’t. Detainees are not allowed to have masks.
6. The pod is filthy, and the detainees only have occasional access to hand soap.
7. Recently, Mr. Morrison has started sneezing and feeling nauseous.

I declare under penalty of perjury that the forgoing is true and correct.

April 8, 2020 Dallas County

_____s/ Amy Fly_______________ Amy Fly

Case 3:20-cv-00832-E Document 39-9 Filed 04/17/20 Page 1 of 3 PageID 709
Exhibit 6
Declaration of Amy Fly on behalf of Keith Baker

Case 3:20-cv-00832-E Document 39-9 Filed 04/17/20 Page 2 of 3 PageID 710
Declaration of Amy Fly on behalf of Keith Baker
My name is Amy Fly and I am licensed to practice law in Pennsylvania. On April 4, 2020, I spoke to a detainee in the Dallas County Jail named Keith Baker (Bookin#20011122) and he provided me with the following information:
1. Mr. Baker is 25 years old and is currently detained on the 9th floor of the West Tower in Tank #1 with 4 other detainees. Mr. Baker and the other men in Tank #1 have made several requests to be moved because they do not have COVID-19, but are held next to people who have tested positive for the virus. Tank #2, which is directly connected to Mr. Baker, holds three people who have tested positive.
2. Mr. Baker has severe asthma and used an inhaler on a regular basis before his detention at the jail. Around 9am on March 26, 2020 Mr. Baker suffered a severe asthma attack. A sergeant and two officers observed him unable to catch his breath and walked away without saying anything. The doctor came to his cell five and a half hours later. All he did was gave Mr. Baker a sleeping pill.
3. Mr. Baker was also denied medical treatment for a dislocated shoulder and headaches. He only received ibuprofen after 4 days of complaining of pain.
4. When Mr. Baker first arrived at the jail, he was originally detained in the South Tower. After five inmates and one guard from his pod tested positive for the virus, the jail moved Mr. Baker to a single cell in the West Tower without testing him first. While at the West Tower, Keith developed a sore throat and a cough and all they did was take his temperature. He has not been tested for the virus. As of the date of this declaration, he is still being held in the same Wing as people who tested positive.
5. Though Mr. Baker is in a cell by himself, he is not isolated. His cell is connected to two other cells and he is still has contact with other detainees. As one example, he has had to borrow toiletries, such as toothpaste, from those in the cells around him because the jail stopped allowing commissary purchases on March 26, 2020.
6. The jail provides detainees with 4 single use bars of soap and tissues once a week on Staurday, but it is not even enough for one day. The only other way detainees can get additional soap is to purchase it through commissary, they no longer have access to. As a result, Mr. Baker must go six days a week without any soap at all.
7. When Mr. Baker first arrived in West Tower, he was required to eat his meals in his cell. The jailers served him food by smashing the food and shoving it in the crack between the door and the ground. He lost a significant amount of weight because of the small portions and poor quality of food. Since April 4, Mr. Baker and the other 4 people in his tank eat lunch together in the day room. Of the 12 tanks on the 9th floor, the people in Mr. Baker’s tank are the only detainees permitted to use the day room.

Case 3:20-cv-00832-E Document 39-9 Filed 04/17/20 Page 3 of 3 PageID 711

8. Those on the 9th Floor of the West Tower do not have access to clean clothes. At one point, Mr. Baker was forced to wear the same jumpsuit every day for ten days straight. He was also not permitted to take a shower during that 10 day period. When he was finally allowed to take a shower, the water was cold.
9. Mr. Baker was provided with a mask only after he asked for one. He has had to use the same one repeatedly because he was not given replacements. The staff in the West Tower wear masks, but they do not change them out between interactions with detainees who have the virus and those who don’t have the virus.

I declare under penalty of perjury that the forgoing is true and correct.

April 4, 2020 Dallas County

_/s/ Amy Fly__________________ Amy Fly

Case 3:20-cv-00832-E Document 39-10 Filed 04/17/20 Page 1 of 3 PageID 712
Exhibit 7
Declaration of Adwoa Asante on behalf of Paul Wright

Case 3:20-cv-00832-E Document 39-10 Filed 04/17/20 Page 2 of 3 PageID 713
Declaration of Adwoa Asante on behalf of Paul Wright
My name is Adwoa Asante. I am an attorney who is licensed to practice in the state of Texas. On April 7, 2020, I spoke to a detainee in the Dallas County Jail named Paul Wright (Bookin# 20008591) and he provided me with the following information:
1. Mr. Wright will be 48 years old on April 11, 2020. He is located in South Tower on the 3rd floor in Pod C. He is awaiting transfer to the Texas Department of Corrections (TDC) for a two-year sentence. He has credit for 14 months of his time in county jail and would be eligible for parole and release if not for COVID-19 obstructing TDC pickups from the county jail.
2. Mr. Wright has Hepatitis C and a bad knee but no known other health conditions.
3. Mr. Wright heard a new guard was exposed to three detainees in a different pod who were confirmed to have COVID-19. She does wear a mask, but she engages in normal activities which requires her to interact with detainees. She touches surfaces and during breaks she takes her mask off and touches her face. The detainees she interacts with, including Mr. Wright, do not have any protective gear.
4. No one in Mr. Wright’s dorm has been tested for the virus.
5. Detainees can only see a nurse if they submit a sick call kite. Then it takes several days for the nurse to see them. They are also charged $10 for each visit to the nurse.
6. It is impossible to engage in social distancing. There are about 60 people in the dorm and the bunk beds are about 3 feet away. There are 3 toilets, 2 urinals, and 5 showers that all 60 people in the dorm have to share. They are cleaned about once a day and not after every use.
7. There are 5 regular phones and a video conference phone. Everyone in the tank shares them. They are not cleaned unless the detainees clean them themselves. They are supposed to be cleaned every shift change and it is usually a very brief cleaning. Sometimes it is not cleaned at all.
8. Sometimes the dorm gets a lot of soap, but sometimes they get none. They have to request more soap from the guards and they are sometimes denied. Sometimes the guards just don’t have the soap and other cleaning agents.
9. The jail staff have not provided Mr. Wright with information about the virus and how to prevent its spread. The only source of information on the virus is through the news.
10. It is incredibly difficult to file grievances and appeals because they do not have any paper, so they have to get the guards to print out the forms or give them something to

Case 3:20-cv-00832-E Document 39-10 Filed 04/17/20 Page 3 of 3 PageID 714

write on. Sometimes the guards simply will not do it. The guards are not interested in getting them the papers to file the grievances.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

/s/ Adwoa Asante____
Adwoa Asante

Case 3:20-cv-00832-E Document 39-11 Filed 04/17/20 Page 1 of 2 PageID 715
Exhibit 8
Declaration of Alison Grinter on behalf of Terry McNickles

Case 3:20-cv-00832-E Document 39-11 Filed 04/17/20 Page 2 of 2 PageID 716

Declaration of Alison Grinter on behalf of Terry McNickles
My name is Alison Grinter. I am an attorney who is licensed to practice in the Eastern District of Texas. On April 7, 2020, I spoke to a detainee in the Dallas County Jail named Terry McNickles (Bookin# 20012558) and he provided me with the following information:
1. Mr. McNickles, 58 years old, is an inmate in the Dallas County Jail, being held on a parole violation in the South tower, 3rd floor. His pod holds 64 beds and there are maybe 48 or 49 men there as of the date of this declaration.
2. His pod is the medical section. He had an operation for kidney cancer last year and has only one kidney. When they took out his kidney, the doctor said he would have to keep a special diet and make sure to wash his hands a lot because it would be very hard for him to fight off infections. He also takes medication for high blood pressure.
3. He does absolutely everything he can. He washes his hands constantly but he is very afraid.
4. Nobody in his pod is practicing social distancing, including the detention service officers. Sometimes they have masks on, sometimes they don’t. The only person who consistently wears a mask is the nurse when she passes out medicine to people in the pill line.
5. Everyone is bunched together in the pod. Even if a person did try to practice social distancing, when you sleep, it’s just three feet from the nearest person. When the inmates get their trays to eat and when they get medicine, they are packed in close.
6. Mr. McNickles is in bunk 42. The man in bunk 40 was coughing and sent to the hospital. The jail staff said that the man had heart trouble. But he was clearly sick because he was coughing.
7. Mr. McNickels has asked for instructions on how to stay safe. He also asked for face masks. The jail staff haven’t told him or given him any personal protective gear.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

_________________________ Alison Grinter

1

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Exhibit 9
Declaration of Adwoa Asante on behalf of Keith Baker

Case 3:20-cv-00832-E Document 39-12 Filed 04/17/20 Page 2 of 2 PageID 718

Declaration of Adwoa Asante on behalf of Jose Munoz
My name is Adwoa Asante. I am an attorney who is licensed to practice in the state of Texas. On April 7, 2020, I spoke to a detainee in the Dallas County Jail named Jose Munoz (Bookin# 19048523) and he provided me with the following information:

1. Mr. Jose Munoz is 37 years old. He is in jail for a drug possession charge, which he already pled guilty to and received 5 years of probation. He is currently waiting to go to a drug treatment facility, but is stuck in limbo because the facility is not picking up any detainees from the Dallas County Jail during the pandemic.
2. He has been in jail for six months and is currently located in South Tower 3C.
3. The guards are supposed to give the detainees personal protective equipment, but they have not received any masks or gloves.
4. Mr. Munoz has learned about the virus from the news, not from the jail staff. The guards sometimes they cover their mouths, but they generally pretend like nothing is going on.
5. There are 7 phones and 1 video conference booth that is shared amongst the entire dorm. The phones are cleaned every day by the detainees for their safety but not after every use. They use the chemicals for the restroom and for the tables.
6. They detainees are given soap irregularly and upon request. Mr. Munoz requested soap today and was told that the detainees were using excessive soap. He did not want to argue with the guards, so he did not receive any soap.
7. They are unable to engage in social distancing because of the climate and the structure of the jail. Mr. Munoz says that he cannot ask someone to move if they’re so close to him because he might be accused of being racist and this could lead to a physical altercation. He is very concerned about enforcing social distancing given the propensity for violence in the jail.
8. It is impossible to sleep 6 feet apart from each other because of the location of the bunks.

I declare under penalty of perjury that the forgoing is true and correct.

April 7, 2020 Dallas County

/s/ Adwoa Asante_
Adwoa Asante

Case 3:20-cv-00832-E Document 39-13 Filed 04/17/20 Page 1 of 13 PageID 719
Exhibit 10
Amended Declaration of Alison Grinter

Case 3:20-cv-00832-E Document 39-13 Filed 04/17/20 Page 2 of 13 PageID 720

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Oscar Sanchez, Marcus White, Tesmond McDonald, Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 20-cv-832

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

AMENDED DECLARATION OF ALISON GRINTER
I, ALISON GRINTER, DECLARE:
1. I am an attorney practicing almost exclusively criminal defense in the Dallas and Collin County Courts. I am Board Certified in Criminal Law. I serve as counsel for the plaintiffs and the putative class herein.
2. I make this declaration of my personal knowledge. 3. Prior to the COVID-19 outbreak, an individual pretrial habeas petition seeking consideration of bond by a District Judge in Dallas County would, under normal circumstances, heard and decided within a day or two. 4. Even after the COVID-19 outbreak, these bond hearings are given priority by Courts and are held as expeditiously as possible given restraints on staffing, and with consent of the parties, many are done informally or via email or telephone. 5. An interlocutory appeal of a decision unfavorable to the defendant would likely take months even before the courts were slowed due to the pandemic, but a decision from a

Case 3:20-cv-00832-E Document 39-13 Filed 04/17/20 Page 3 of 13 PageID 721
Dallas County District Judge would not be the source of that delay, rather the normal delays built into the appellate process.
6. Pre-trial writs alleging that a person is being restrained of their liberties in any way other than lack of reasonable bond set by a District Judge (for instance unconstitutional jail conditions) would take a distinct and presumably longer timeline, as they are not at all common in the State criminal district courts and presumably would require time for a prosecutor to brief.
7. Post-conviction writs would follow a different timeline with deliberative processes of many months before the COVID-19 outbreak.
8. Texas Courts, including those in Dallas, are issuing emergency closures and slowing their operations in response to the COVID-19 pandemic.
9. I am not aware of any avenue in the state courts through which a class of both pre- and post-adjudication detainees could seek relief regarding the constitutionality of their confinement in the Dallas County Jail.
10. Attached hereto as Exhibit A is a true and correct copy of an email from K. Dickerson, Criminal District Courts Manager, March 24, 2020, re: Dallas County Criminal District Courts.
11. Attached hereto as Exhibit B is a true and correct copy of an email from K. Dickerson, Criminal District Courts Manager, March 19, 2020, re: Criminal District Court 1 COVID-19 Protocol
12. Attached hereto as Exhibit C is an email from K. Dickerson, Criminal District Courts Manager, March 17, 2020, re: CDC 2 COVID-19 Protocol.
13. Attached hereto as Exhibit D is an email from K. Dickerson, Criminal District Courts Manager, March 16, 2020, re: CDC 5 COVID-19 Protocol.
14. As a criminal defense attorney practicing in Dallas County I received similar emails regarding COVID-19 protocols in many of the other Criminal District Courts.

Case 3:20-cv-00832-E Document 39-13 Filed 04/17/20 Page 4 of 13 PageID 722
15. Many of the Criminal District Courts have not adopted any specific written policies, but all have slowed or suspended functions. Policies and available services are often fluid and change daily depending on Court and staff availability.
16. As court staff have become exposed or have contracted the COVID-19, several courts have closed all or parts of the court operations for quarantine purposes.
17. I made a declaration on April 9th 2020 in this cause which stated, in relevant part: “Prior to the COVID-19 outbreak, an individual petitioner seeking habeas relief in the Texas State Courts could expect his or her petition to remain pending for months, particularly if an appeal were taken.” 18. The drafting of this sentence was inartful in a way that might be misleading, and I want to clarify it in advance of any Court proceeding. It was a sentence given to me in proposed language, and I read it to be commenting on the duration of a habeas petition that was in fact appealed after a decision unfavorable to the defendant.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 15th day of April, 2020.
Alison Grinter
Alison Grinter Texas Bar Number 24043476 6738 Old Settlers Way Dallas, Texas 75236 (214) 704-6400 alisongrinter@gmail.com agrinter@thengan.com

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EXHIBIT B

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Case 3:20-cv-00832-E Document 39-13 Filed 04/17/20 Page 9 of 13 PageID 727

Case 3:20-cv-00832-E Document 39-13 Filed 04/17/20 Page 10 of 13 PageID 728
EXHIBIT C

Case 3:20-cv-00832-E Document 39-13 Filed 04/17/20 Page 11 of 13 PageID 729

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Case 3:20-cv-00832-E Document 39-13 Filed 04/17/20 Page 13 of 13 PageID 731

 
 Case 3:20-cv-00832-E Document 54 Filed 04/19/20 Page 1 of 11 PageID 1369

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD,

§

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL

§

WRIGHT, TERRY MCNICKLES,

§

AND JOSE MUNOZ, on their own

§

behalf and on behalf of a class of

§

similarly situated persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Civil Action Case No. 3:20-cv-00832

BRIEF IN SUPPORT OF DEFENDANTS’ AMENDED MOTION TO DISMISS

Plaintiffs, all of whom are, or were, state detainees at the Dallas County Jail, challenge their conditions of confinement under the auspices of a Section 2241 habeas claim. The Fifth Circuit has held that habeas relief is not an appropriate vehicle to challenge conditions of confinement. As such, Plaintiffs have failed to state a claim for which relief can be granted, and their habeas claims should be dismissed. FED. R. CIV. P. 12(b)(6).
Plaintiffs’ habeas claims should also be dismissed because they have failed to exhaust their remedies in state court, and have not provided any basis on which one can reasonably conclude that Plaintiffs are excused from exhausting their state law remedies. Id.
Finally, the post-adjudication Plaintiffs may not use § 1983 to seek release because doing so would undermine the validity of their convictions. Those claims should also be dismissed. Id.

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I. Standard of Review To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Assuming they are true, a plaintiff’s allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. II. Plaintiffs’ habeas claims must be dismissed under Rule 12(b)(6) because they have
not exhausted available state court remedies. In order to be eligible for habeas relief a petitioner must have exhausted his or her available state remedies. Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987). The common law exhaustion doctrine imposed on Section 2241(c)(3) was crafted based on concerns about the delicate state–federal balance in order to protect state courts’ opportunity to confront and resolve initially any constitutional issues arising within their jurisdictions as well as to limit federal interference in the state adjudicatory process. Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 489–92 (1973). Texas law provides for the reduction of bail and release thereon. TEX. CODE CRIM. P. art. 17.09 § 3. The Texas Code of Criminal Procedure provides factors that guide judicial discretion in setting bond amounts. Id. art. 17.15. Texas procedure also affords clear timeframes for mandatory bond reduction or imposition of a personal bond. Id. art. 17.151. Habeas relief is also available under Texas law. See, e.g., In re McCray, 324 S.W.3d 685 (Tex. App.—Dallas 2010, orig. proceeding).
2
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Plaintiffs now allege both that “Section 2241 contains no exhaustion requirement

conceivably applicable to prisoners seeking COVID-based discharge,” ECF No. 39 at 44–45

¶ 103, and that they have exhausted available state court remedies. ECF No. 39 at 40 ¶ 90.

Plaintiffs’ claim that Section 2241 contains no applicable exhaustion requirement is incorrect.

Braden, 410 U.S. at 489–92; Dickerson, 816 F.2d at 224. Plaintiffs’ allegation that Plaintiffs

have exhausted state court remedies is conclusory and must be disregarded. Formulaic recitation

of elements is never enough to meet the federal pleading standard. Twombly, 550 U.S. at 555.

The only exception to the exhaustion requirement that Plaintiffs cite is the exception for

when state procedures do not afford swift vindication. Id. The pre-adjudication Plaintiffs do not

contend that they sought expedited bond review hearings or initiated any state court remedy. The

post-adjudication plaintiffs likewise do not allege that they initiated any state court proceedings

to seek release. They merely say that these processes “would take months under normal

circumstances, and certainly will now take longer.” Id. Plaintiffs’ argument fails for four reasons.

First, Plaintiffs pretend, without evidence, that they would lose at every stage of the

habeas process and be forced to pursue appeals. Second, while Plaintiffs ignore the bond

reduction process, they attach an e-mail from the Dallas County Criminal District Courts

Manager, Keta Dickerson. ECF No. 1-11 at 4. Ms. Dickerson informed court-appointed counsel

that the Criminal District Courts are:



Currently open;



Conducting essential hearings by any and all available means;



Prioritizing bail hearings and jail pleas;



Taking all reasonable steps to avoid exposing people to the threat of

coronavirus; and



Working to streamline an electronic system for hearing bond matters and

jail pleas.

3
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ECF No. 1-11 at 4. This evidence does not support a contention that available state law remedies, such as bond reduction or personal bonds, are futile or will take months; it supports a finding that state courts are “prioritizing bail hearings and jail pleas” and “taking all reasonable steps to avoid exposing people to the threat of coronavirus.” Id.
Third, Plaintiffs’ attempt to escape their obligation to seek adequate state law remedies fails because they offer no facts in support of their conclusory allegation that COVID-19 will lengthen the time it takes for them to obtain relief in state courts. ECF No. 1 at 38 ¶ 86 & n.103. Plaintiffs fail to mention that the only Dallas County courts that are closed are municipal courts.1 Municipal courts do not have jurisdiction over offenses that may result in incarceration. TEX. GOV’T CODE § 29.003.
Finally, available state law remedies have been anything but futile or slow in the last month. Plaintiffs rely on the Dallas County Jail’s daily population report data for April 6, 2020. ECF No. 1 at 30 ¶ 71. A cursory review the daily population reports demonstrates that Texas courts are moving more quickly to safely release defendants during the COVID-19 situation.
The Supreme Court of Texas and the Texas Court of Criminal Appeals jointly issued their first order regarding court operations during COVID-19 on March 13, 2020. Misc. Order No. 20-9042 (Tex. Mar. 13, 2020); Misc. Order No. 20-007 (Tex. Crim. App. Mar. 13, 2020).2 The daily population report to which Plaintiffs refer shows a steep decline in Dallas County Jail population since March 13, 2020. On March 15, 2020, the total Jail population was 5,952. The
1 Current & Upcoming Closures, Texas Judicial Branch, https://www.txcourts.gov/ programs-services/court-security/emergency-court-preparedness/closures/ (last visited Apr. 15, 2020).
2 Available at https://www.txcourts.gov/media/coronavirus-covid-19-emergency-orders/.
4
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population declined to 5,618 on March 24, and again to 5,225 on April 3, and finally to 5,180 on April 6. Today’s Jail population is under 5,000.3
Plaintiffs’ Complaint acknowledges that detainees have been released recently. ECF No. 1 at 26 ¶ 61. The data to which Plaintiffs refer, however, demonstrates just how diligently the Dallas County Criminal Court at Law and State District Court judges have been working to release detainees when possible.4

6200 6000 5800 5600 5400 5200 5000 4800
9‐Feb

Dallas County Jail Population
19‐Feb 29‐Feb 10‐Mar 20‐Mar 30‐Mar

9‐Apr

19‐Apr

Habeas relief is readily available in Texas state courts, as recent trends demonstrate. Specific cases demonstrate just how swift the remedy has been in Dallas County courts during COVID-19. Alberto Lopez filed a Petition for Habeas Corpus on April 2, 2020. Exhibit 2. Mr. Lopez was released to a special program on April 10, 2020. Chad Ross filed a Petition for Writ

3 In evaluating a Rule 12(b)(6) Motion, courts may consider not just documents named in Plaintiffs’ Complaint, but also documents that, if not named, are pertinent, central, or integral to Plaintiffs’ claim. Bryant v. Avado Brands, 187 F.3d 1271, 1281 (11th Cir. 1999). Documents relied on by a defendant are considered part of the pleadings if they are referred to in the plaintiffs’ complaint and are central to plaintiffs’ claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000).
4 For context, Defendants attach the remainder of the relevant public reports to which Plaintiffs refer. Those reports are attached as Exhibit 1.
5
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of Habeas Corpus on April 8, 2020. The Dallas County District Court lowered his bond, Mr. Ross was able to post the lowered bond amount, and he was released on April 14, 2020. Exhibit 3. Charged with felony evading arrest with a previous conviction, Michael Graves had his bond set at $25,000. Four days later, his bond was reduced to personal recognizance, and he has been released. Exhibit 4.5
When habeas petitioners have not received relief in trial courts, the Texas Court of Criminal Appeals has processed habeas cases quite rapidly over the last few months. See, e.g., In re David Allen Mackley, No. WR-91, 105-02 (Tex. Crim. App. Apr. 15, 2020) (filed March 25, 2020, habeas relief granted April 15, 2020);6 In re Samuel Herschel Clauder No. WR-90, 70802 (Tex. Crim. App. Apr. 15, 2020) (writ received March 16, 2020, filed April 15, 2020, granted April 15, 2020);7 In re Robert Terrazas, No. WR-60, 286-02 (Tex. Crim. App. Apr. 8, 2020) (writ filed April 8, 2020, granted April 8, 2020);8 In re Danny Gipson, No. WR-90, 679-01 (Tex. Crim. App. Apr. 8, 2020) (Supplemental Clerk’s Record received April 7, 2020, writ filed April 8, 2020, granted April 8, 2020);9 In re Nuru Nathan Tinch, No. WR-91, 038-01 (Tex. Crim. App. Apr. 1, 2020) (writ received March 9, 2020, filed April 1, 2020, granted April 1, 2020).10
Plaintiffs have not alleged that they have exhausted state remedies. There is no support for Plaintiffs’ conclusory allegation that state law remedies have been slow or unavailable. At a
5 The Court may, and is requested to, take judicial notice of Mr. Lopez’s, Mr. Ross’s, and Mr. Graves’s habeas proceedings. Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 Fed. App’x 775, 785 (5th Cir. 2007) (unpublished) (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2004)).
6 Available at http://search.txcourts.gov/Case.aspx?cn=WR-91,105-02&coa=coscca. 7 Available at http://search.txcourts.gov/Case.aspx?cn=WR-90,708-02&coa=coscca. 8 Available at http://search.txcourts.gov/Case.aspx?cn=WR-60,286-02&coa=coscca. 9 Available at http://search.txcourts.gov/Case.aspx?cn=WR-90,679-01&coa=coscca. 10 Available at http://search.txcourts.gov/Case.aspx?cn=WR-91,038-01&coa=coscca.
6
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minimum, it is incongruous for Plaintiffs to allege that state procedures do not afford swift vindication; attach evidence that Dallas County courts are open, using all available means to conduct essential hearings, and prioritizing bail hearings and jail pleas; and not allege or show that any plaintiff has sought any relief in state court.
Plaintiffs’ choice to file suit in federal court—thereby delaying the availability of state court remedies—is not a reason for the Court to excuse Plaintiffs from complying with the exhaustion requirement. To conclude otherwise would create an exception that swallows the exhaustion requirement in derogation of the sovereignty of the States. The Court should not excuse Plaintiffs from seeking available remedies in state court.
There is no reason to depart from the well-established rule that habeas plaintiffs must exhaust state court remedies before seeking relief in federal court. Plaintiffs’ habeas claims should be dismissed. III. Plaintiffs have not stated a claim for habeas relief because their claims raise
questions unrelated to the myriad causes of their detention. Habeas is not available to review questions unrelated to the cause of detention. The “sole function” of a writ of habeas corpus 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). Plaintiffs complain about their conditions of confinement, not the cause for their detention. Plaintiffs do not allege that any order of confinement was procured or issued improperly. Plaintiffs do not allege that their convictions and the judgments thereon were entered in violation of their constitutional rights. Instead, they say the conditions of their confinement require release. Whatever their conditions of confinement, they are not related to Plaintiffs’ “cause of detention.” As such, Plaintiffs’ Petition for Writ of Habeas Corpus must fail, and the Court should dismiss those claims pursuant to Rule 12(b)(6).
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Plaintiffs attempt to distinguish Pierre—which remains binding precedent—by saying that it is not clear how Section 2241 would apply in the context of COVID-19. This argument fails. “Allegations that challenge rules, customs, and procedures affecting conditions of confinement are properly brought in civil rights actions.” Schipke v. Van Buren, 239 Fed. App’x 85, 85–76 (5th Cir. 2007). Even when a habeas 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 Fed. App’x 678, 679 (5th Cir. 2009) (affirming the lower court’s dismissal of petitioner’s habeas claim even though he alleged that the conditions of confinement endangered his life). A petition for habeas corpus may not be used as a vehicle to challenge conditions of confinement. As such, Plaintiffs have not pleaded, and cannot plead, any set of facts under which they could conceivably obtain habeas relief. Their habeas claims should be dismissed. FED. R. CIV. P. 12(b)(6). IV. The post-adjudication Plaintiffs fail to state a § 1983 claim because they challenge
the fact of their confinement and seek immediate release. Plaintiffs’ Complaint makes no effort to hide what they seek: “immediate release is the only medically and legally sound remedy, rather than mere mitigation and/or further proceedings.” ECF No. 1 at 37 ¶ 85. “Plaintiffs . . request immediate release of all Plaintiffs and Class Members.” Id. at 4 ¶ 9. A prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of confinement and seek immediate release. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). He or she must seek federal habeas corpus relief or appropriate state relief instead. Id. When a prisoner’s action demands immediate release or a shorter period of detention, it lies at the core of habeas corpus, and the prisoner may not pursue relief under § 1983. Id.
8
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Under Preiser, the post-adjudication Plaintiffs may not seek release under § 1983. When they are not seeking relief contrary to Preiser or ancillary relief predicated on release, the postadjudication Plaintiffs’ prayer seeks to alter the terms of their valid convictions and sentences. See, e.g., ECF. No. 1 at 42–43 ¶¶ 2, 5(a), 5(d). This relief is unavailable because it would necessarily imply the invalidity of their convictions and sentences. Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiffs ask this Court to impose additional restrictions on the validity of state court judgments ordering Plaintiffs to serve terms of confinement. According to Plaintiffs, they may not be sentenced to a term of confinement absent judicially recorded findings by clear and convincing evidence that the individual poses a danger to others that no condition other than confinement can mitigate. See, e.g., ECF No. 1 at 42–43 ¶¶ 2, 5(a), 5(d). Plaintiffs cite no authority that this requirement arises from the Constitution, or that such a requirement can be retroactively applied to invalidate state court judgments. There is none.11 Because they seek release or additional findings to support their state court judgments, which would necessarily invalidate those judgments, the post-adjudication Plaintiffs have failed to state a § 1983 claim. V. The Court should abstain from entertaining Plaintiffs’ claims.
In a recent memorandum opinion, Judge Rosenthal explained the prudential reasons for a federal court to abstain from wading into the fracas to interfere with ongoing state efforts to respond to dynamic conditions. ECF No. 31. Abstention is particularly warranted where Plaintiffs seek to deploy the blunt instrument of constitutional litigation to obtain crude courtfashioned remedies that carry the threat of contempt. Id.; see Benzman v. Whitman, 523 F.3d 119, 125 (2d Cir. 2008). Abstention is also counseled by the strong policy that federal courts should not intervene in pending state court proceedings, such as those in which the pre-
11 See also Daves v. Dallas Cnty., Tex., 341 F. Supp. 3d 688, 695–96 (N.D. Tex. 2018).
9
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adjudication Plaintiffs are involved. Younger v. Harris, 401 U.S. 37 (1971); Middlesex Cnty. Ethics. Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1983).
If the Court does not dismiss all of Plaintiffs’ claims, the Court should nevertheless abstain from intervening at this juncture in order to allow state officials to weigh the competing interests at play in managing the Dallas County jail during this COVID-19 outbreak.
CONCLUSION AND PRAYER Under binding Fifth Circuit precedent, Plaintiffs cannot use habeas claims to challenge their conditions of confinement. As such, Plaintiffs’ habeas claims should be dismissed under Rule 12(b)(6). Further, Plaintiffs do not allege that they have attempted to access state law remedies, much less exhaust them. Federal courts do not entertain state prisoners’ habeas claims unless those petitioners first exhaust state court remedies. In light of the available state court remedies, and the fact that Plaintiffs’ own evidence demonstrates the efficacy of those remedies, there is no good reason for the Court to excuse Plaintiffs from the exhaustion requirement. Their failure to exhaust is an additional and independent reason for which Plaintiffs’ habeas claims should be dismissed. Not only can Plaintiffs not use habeas as a vehicle to challenge the conditions of their confinement, the post-adjudication Plaintiffs may not use § 1983 to collaterally attack their conviction or seek relief. Because the post-adjudication Plaintiffs’ § 1983 claim seeks release, those claims should be dismissed under Rule 12(b)(6) as well. Regarding the remaining claims—the pre-adjudication § 1983 claims—the Court should abstain from ruling on the basis of Younger. Defendants also pray for all other and further relief to which they are justly entitled.
10
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Date: April 19, 2020

Respectfully Submitted,
HUSCH BLACKWELL LLP
/s/ Kate David Katharine D. David Texas Bar No. 24045749 kate.david@huschblackwell.com Nick Stepp Texas Bar No. 24077701 nick.stepp@huschblackwell.com Ben Stephens Texas Bar No. 24098472 ben.stephens@huschblackwell.com 600 Travis, Suite 2350 Houston, Texas 77002 Tel: 713.525.6200 Fax: 713.647.6884
/s/ Russell H. Roden Russell H. Roden Texas Bar No. 17132070 russell.roden@dallascounty.org John Butrus Texas Bar No. 03537330 john.butrus@dallascounty.org 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207 Tel: 214.653.3600 Fax: 214.653.5774 COUNSEL FOR DALLAS COUNTY, TEXAS AND SHERIFF MARIAN BROWN

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was served on all counsel of record via the ECF system of the Court on April 19, 2020.
/s/ Nicholas D. Stepp Nicholas D. Stepp

11
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EXHIBIT 1

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 2 of 17 PageID 1381

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

857 492 1,772 287 323 243
36 14 61
1 41 76 173
0 64 26
1 52 273 207 339 203 112 16
1 0 0 14 23 0 0 90 5,797 5,796

24.11 348 151 115

36.55

50

95

96

164.27

81

51

51

66.21

32

27

33

27.93 132

63

47

188.16

9

23

13

123.73

4

3

2

224.60

0

0

0

80.53 10

4

7

170.50

0

0

0

36.07

9

11

3

3.71 75

0

0

29.40

79

29

16

0.00

0

0

0

35.83

23

12

7

28.63

8

7

3

13.50

0

0

1

25.17 42

3

0

71.78

51

44

28

81.17

17

19

27

87.14

17

22

24

184.03

5

3

9

173.24

5

3

0

29.06

4

3

0

50.50

0

0

0

0.00

0

0

0

0.00

0

0

0

39.47

7

2

0

30.13 14

3

1

0.00

0

0

0

0.00

0

0

0

25.66 73

6

0

95.94 1,095

584

483

71

57

89

64

81

48

22

17

22

13

16

10

1

0

0

0

4

0

0

0

5

1

0

0

12

8

0

0

3

2

2

0

0

0

0

0

25

12

18

16

32

23

11

5

1

0

6

0

0

0

0

0

0

0

1

0

1

1

0

0

0

0

1

0

424

277

40

16

59

14.78%

26

26

46

8.49%

81 103 1,276

30.57%

32

21

103

4.95%

8

7

31

5.57%

7

13

152

4.19%

0

0

26

0.62%

1

1

12

0.24%

2

4

30

1.05%

0

0

1

0.02%

6

1

5

0.71%

0

0

1

1.31%

7

2

20

2.98%

0

0

0

0.00%

2

3

12

1.10%

0

3

3

0.45%

0

0

0

0.02%

0

0

7

0.90%

9

10

94

4.71%

11

9

90

3.57%

23

27

171

5.85%

5

8

157

3.50%

5

1

97

1.93%

1

1

1

0.28%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

1

1

2

0.24%

0

0

3

0.40%

0

0

0

0.00%

0

0

0

0.00%

0

1

9

1.55%

267

258 2,409

100%

2/15/2020 7:00:11 AM

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 3 of 17 PageID 1382

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 4 of 17 PageID 1383

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

889 527 1,825 278 344 262
31 14 60
1 36 68 171
1 43 21
1 49 275 228 338 196 105 17
3 0 0 1 23 0 0 77 5,884 5,881

23.73 351 194 111

80

31

25

31

66

15.11%

37.53 35 104 102 100

74

53

11

48

8.96%

162.65

80

59

59

84

71 108

71 1,293

31.02%

71.70

34

12

21

32

16

19

19

125

4.72%

27.39 130

76

41

33

18

10

6

30

5.85%

167.73

13

19

18

23

8

17

5

159

4.45%

116.63

1

1

6

1

1

1

0

20

0.53%

247.07

0

0

0

1

0

0

0

13

0.24%

84.16

6

8

3

8

2

3

1

29

1.02%

178.00

0

0

0

0

0

0

0

1

0.02%

44.65

6

8

5

2

3

1

1

10

0.61%

2.78 67

1

0

0

0

0

0

0

1.16%

27.78

84

29

13

10

6

8

1

20

2.91%

24.50

0

0

0

0

1

0

0

0

0.02%

38.98 12

5

8

5

1

4

0

8

0.73%

30.64

7

6

2

1

0

0

0

5

0.36%

21.00

0

0

0

0

1

0

0

0

0.02%

23.62 36

4

1

2

1

0

0

5

0.83%

71.76

50

47

32

16

14

18

5

93

4.67%

81.65

9

23

24

27

21

15

12

97

3.87%

84.65

21

13

26

34

22

24

18

180

5.74%

193.54

4

3

7

7

10

8

3

154

3.33%

182.14

1

4

1

1

0

1

2

95

1.78%

30.72

4

3

1

3

2

2

0

2

0.29%

29.50

2

0

0

0

0

0

0

1

0.05%

0.00

0

0

0

0

0

0

0

0

0.00%

0.00

0

0

0

0

0

0

0

0

0.00%

0.50

1

0

0

0

0

0

0

0

0.02%

13.75 18

0

1

0

1

0

1

2

0.39%

0.00

0

0

0

0

0

0

0

0

0.00%

0.00

0

0

0

0

0

0

0

0

0.00%

23.63

58

11

2

2

0

0

0

4

1.31%

95.54 1,030

630

484

472

304

317

187 2,460

100%

3/1/2020 7:00:12 AM

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 5 of 17 PageID 1384

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 6 of 17 PageID 1385

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

871 548 1,813 287 322 259
30 16 57
1 29 90 151
2 45 31
1 69 283 231 328 198 81 18
1 0 0 5 20 0 0 78 5,865 5,864

24.21 357 170 127

36.73

56

95 114

161.68

69

52

78

71.95

35

19

17

28.59 113

58

55

154.59

17

15

21

127.23

1

2

2

233.71

0

0

0

86.64

7

4

10

180.50

0

0

0

46.40

7

1

7

2.41 90

0

0

27.38

71

29

13

18.33

1

0

0

38.28 16

4

6

32.00 14

6

2

23.50

0

0

0

23.91 47

6

2

67.93

63

40

37

80.68

7

25

27

85.95

19

17

20

189.75

4

5

8

171.46

1

2

2

29.58

5

3

1

60.50

0

0

0

0.00

0

0

0

0.00

0

0

0

17.83

1

3

0

49.33 14

1

1

0.00

0

0

0

0.00

0

0

0

24.78 64

2

3

93.82 1,079

559

553

57

41

20

27

72

14.85%

86

85

52

18

42

9.34%

84

75 116

79 1,260

30.91%

31

23

16

20

126

4.89%

24

28

8

6

30

5.49%

16

12

16

8

154

4.42%

1

1

1

1

21

0.51%

1

0

0

0

15

0.27%

2

1

3

3

27

0.97%

0

0

0

0

1

0.02%

3

0

3

0

8

0.49%

0

0

0

0

0

1.53%

10

3

4

5

16

2.57%

0

0

1

0

0

0.03%

2

4

5

0

8

0.77%

3

0

0

0

6

0.53%

0

1

0

0

0

0.02%

1

0

2

1

10

1.18%

17

14

16

6

90

4.83%

24

24

20

13

91

3.94%

29

29

25

21

168

5.59%

7

5

12

6

151

3.38%

2

0

1

0

73

1.38%

3

0

5

0

1

0.31%

0

0

0

0

1

0.02%

0

0

0

0

0

0.00%

0

0

0

0

0

0.00%

0

0

1

0

0

0.09%

1

0

0

0

3

0.34%

0

0

0

0

0

0.00%

0

0

0

0

0

0.00%

3

1

1

0

4

1.33%

407

347

328

214 2,378

100%

3/6/2020 7:00:11 AM

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 7 of 17 PageID 1386

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 8 of 17 PageID 1387

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

925 539 1,821 319 292 301
36 15 55
1 27 83 142
4 39 36
1 63 294 240 345 201 80 10
1 0 0 1 11 0 0 70 5,952 5,951

23.60 375 194 120

37.61

47

99 105

161.04

80

60

63

68.13

43

24

22

29.24

93

59

44

150.24

15

25

20

113.00

4

0

4

254.44

0

0

0

93.98

4

11

2

185.00

0

0

0

45.96

3

9

1

3.32 83

0

0

32.04

54

30

15

38.80

1

1

0

45.55

7

8

5

26.22

10

11

6

28.00

0

0

0

46.11 33

9

1

69.85

50

57

32

80.64

11

15

28

83.89

15

28

15

186.94

4

5

6

181.19

2

0

1

22.73

6

0

1

65.00

0

0

0

0.00

0

0

0

0.00

0

0

0

23.00

0

0

0

3.83

9

2

0

0.00

0

0

0

0.00

0

0

0

27.99 56

4

1

94.31 1,005

651

492

75

48

98

65

80

84

26

29

31

14

26

13

3

1

0

0

3

6

0

0

4

2

0

0

8

8

0

0

3

2

3

3

0

0

2

2

26

11

28

20

29

26

11

5

3

1

0

1

0

0

0

0

0

0

0

1

0

0

0

0

0

0

1

2

460

344

29

12

72

15.54%

59

27

39

9.06%

92 117 1,245

30.59%

26

20

129

5.36%

20

7

24

4.91%

17

13

172

5.06%

1

1

22

0.60%

0

0

15

0.25%

2

2

25

0.92%

0

0

1

0.02%

0

2

6

0.45%

0

0

0

1.39%

5

4

18

2.39%

0

1

1

0.07%

4

4

6

0.66%

0

0

3

0.60%

1

0

0

0.02%

2

1

13

1.06%

12

14

92

4.94%

27

17

94

4.03%

33

25

174

5.80%

8

11

151

3.38%

0

1

72

1.34%

0

1

1

0.17%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.02%

0

0

0

0.18%

0

0

0

0.00%

0

0

0

0.00%

0

2

4

1.18%

338

282 2,380

100%

3/15/2020 7:00:07 AM

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 9 of 17 PageID 1388

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 10 of 17 PageID 1389

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

841 594 1,786 299 267 259
33 13 67
1 23 56 131
2 37 33
1 32 248 227 297 204 81
3 1 0 0 11 11 0 0 60 5,618 5,617

26.29 303 157 119

37.28 37 142 126

165.59

33

69

45

72.25

34

31

21

37.94

53

49

48

149.91

4

30

21

119.44

1

4

0

276.64

0

0

0

80.75

7

9

9

189.50

0

0

0

43.88

3

4

7

3.53 53

3

0

39.95

37

26

19

31.33

0

0

1

53.87

3

9

4

36.65

3

13

4

32.50

0

0

0

42.55 17

2

1

73.99

33

53

30

80.48

3

18

20

88.12

2

20

27

192.68

2

3

7

188.45

0

2

0

3.25

2

1

0

69.50

0

0

0

0.00

0

0

0

0.00

0

0

0

17.58

5

2

2

15.17

8

0

0

0.00

0

0

0

0.00

0

0

0

33.49 45

4

4

99.11 688

651

515

90

51

33

23

65

14.97%

84

74

44

35

52

10.57%

85

97 101

99 1,257

31.79%

19

19

27

16

132

5.32%

40

21

13

14

29

4.75%

16

14

11

10

153

4.61%

4

3

1

1

19

0.59%

0

0

0

0

13

0.23%

6

4

5

2

25

1.19%

0

0

0

0

1

0.02%

1

1

2

1

4

0.41%

0

0

0

0

0

1.00%

15

5

4

2

23

2.33%

0

0

0

0

1

0.04%

2

2

3

4

10

0.66%

6

1

2

0

4

0.59%

0

0

0

1

0

0.02%

2

0

2

1

7

0.57%

16

13

6

8

89

4.41%

29

31

19

24

83

4.04%

17

32

22

25

152

5.29%

5

12

6

9

160

3.63%

2

2

2

0

73

1.44%

0

0

0

0

0

0.05%

0

0

0

0

1

0.02%

0

0

0

0

0

0.00%

0

0

0

0

0

0.00%

0

1

1

0

0

0.20%

0

1

2

0

0

0.20%

0

0

0

0

0

0.00%

0

0

0

0

0

0.00%

0

0

1

1

5

1.07%

439

384

307

276 2,358

100%

3/24/2020 7:00:24 AM

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 11 of 17 PageID 1390

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 12 of 17 PageID 1391

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

472 707 1,726 263 246 294
34 15 84
1 18 53 135
3 25 22
1 56 240 204 276 206 84
1 1 0 0 11 0 0 0 47 5,225 5,224

21.21 226

94

43

33

18

36.04

79 123

141 122

98

173.73

20

31

78

43

80

78.34

8

19

28

18

19

39.09

62

38

37

21

28

154.23

2

7

31

24

20

125.31

0

3

3

0

4

254.19

0

0

1

1

0

77.39

2

9

11

11

8

194.50

0

0

0

0

0

38.95

1

4

4

3

1

3.31 51

0

2

0

0

41.89

41

25

21

13

5

34.25

0

0

1

1

0

52.12

0

4

6

2

1

41.65

1

3

8

1

4

37.50

0

0

0

0

0

60.39

6

8

7

7

2

75.48

34

34

30

21

13

86.90

3

3

17

17

29

91.04 13

0

21

27

21

193.67

0

5

7

7

7

191.73

2

0

2

1

2

11.00

0

0

1

0

0

74.50

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

34.08

2

4

2

1

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

49.38 34

1

2

2

0

107.17

587

415

504

376

360

17

16

25

9.03%

66

31

47

13.53%

93

99 1,282

33.03%

20

34

117

5.03%

15

9

36

4.71%

15

16

179

5.63%

3

1

20

0.65%

0

0

13

0.29%

7

6

30

1.61%

0

0

1

0.02%

1

2

2

0.34%

0

0

0

1.01%

3

1

26

2.58%

0

0

1

0.06%

2

1

9

0.48%

1

1

3

0.42%

0

0

1

0.02%

6

2

18

1.07%

13

4

91

4.59%

30

17

88

3.90%

26

19

149

5.28%

11

6

163

3.94%

3

1

73

1.61%

0

0

0

0.02%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

0

1

1

0.21%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.00%

1

2

5

0.90%

333

269 2,381

100%

4/3/2020 7:00:57 AM

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 13 of 17 PageID 1392

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 14 of 17 PageID 1393

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

494 695 1,719 247 255 299
34 15 84
1 17 59 134
2 23 19
1 62 255 173 244 209 87
4 1 0 0 4 0 0 0 43 5,180 5,179

20.94 246

91

49

33

14

37.08

54 143

125 117

98

175.31

15

35

56

67

66

78.48

11

17

20

19

18

40.16

56

45

38

24

19

156.51

3

6

15

35

21

128.23

0

3

3

0

3

257.00

0

0

0

2

0

80.73

1

9

10

12

5

196.00

0

0

0

0

0

42.06

1

3

3

3

2

3.58 57

0

1

1

0

37.22

46

22

18

16

7

40.00

0

0

0

1

0

56.63

0

2

6

3

0

41.40

1

1

7

3

3

39.00

0

0

0

0

0

59.48 10

6

9

7

2

74.76

40

30

23

33

14

92.37

0

5

12

16

19

93.19

8

8

10

29

24

196.32

0

2

9

4

13

188.89

4

0

2

1

1

10.40

2

0

2

0

0

76.00

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

5.00

3

1

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

0.00

0

0

0

0

0

55.43 29

3

1

2

0

108.29

587

432

419

428

329

12

21

28

9.54%

74

29

55

13.42%

86 109 1,285

33.19%

20

28

114

4.77%

23

13

37

4.92%

12

15

192

5.77%

3

1

21

0.66%

0

0

13

0.29%

6

7

34

1.62%

0

0

1

0.02%

0

3

2

0.33%

0

0

0

1.14%

3

1

21

2.59%

0

0

1

0.04%

2

0

10

0.44%

1

1

2

0.37%

0

0

1

0.02%

6

3

19

1.20%

15

6

94

4.92%

19

19

83

3.34%

14

17

134

4.71%

6

8

167

4.03%

3

3

73

1.68%

0

0

0

0.08%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.08%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.00%

1

1

6

0.83%

306

285 2,394

100%

4/6/2020 7:00:30 AM

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 15 of 17 PageID 1394

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 16 of 17 PageID 1395

Description
A FELONY NOT FILED B FILED FELONY PENDING GRAND JURY C FELONY NOT INCLUDING SJF PENDING DISP. D STATE JAIL FELONY PENDING DISPOSTION E PROBATION VIOLATION -- FELONY F TDC > 10 YEARS ON APPEAL OR TDC NO APPEAL G BENCH WARRANTS H TDC 10 YEARS OR LESS ON APPEAL I SENTENCED SJF J SENTENCED SJF ON APPEAL K SJF SERVING IN COUNTY JAIL L MISDEMEANOR NOT FILED M FILED MISDEMEANOR PENDING DISP. N PROBATION VIOLATION -- MISDEMEANOR O SERVING IN COUNTY JAIL(COND. OF PROB.) P SERVING COUNTY TIME AND FINES Q SERVING FINE AND COURT COST ONLY R OUT OF COUNTY/STATE HOLD S PAROLE VIOLATION T SAFPF U SPECIAL PROGRAMS V OTHER -- (INCOMPETENT) W U S MARSHAL X CONTEMPT -- IN JAIL Y CONTEMPT -- ON FURLOUGH Z PEACE BOND AA TYC BB IMMIGRATION CC CLASS C ONLY DD CONTRACT INMATES EE U S MILITARY ZZ DEFAULT -- IN ERROR
TOTAL TOTAL LESS FURLOUGH

Currently AVG-STAY 1-10 11-20 21-30 31-40 41-50 51-60 61-70 GT-70

% OF

in Jail

DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS DAYS TOTAL POP

444 557 1,774 244 243 319
36 16 92
1 10 75 105
1 14 24
1 69 302 130 165 199 83
1 1 0 0 6 0 0 0 56 4,968 4,967

19.70 235

71

51

35.88 61 112 112

174.75

29

14

56

79.27

14

14

23

40.39

59

36

33

160.41

1

5

12

138.24

4

0

3

256.94

0

0

0

83.02

6

1

10

200.50

0

0

0

40.27

1

1

2

3.50 73

0

0

44.19

36

14

12

22.00

0

0

0

73.47

3

1

0

51.56

2

6

1

43.50

0

0

0

66.10 13

9

1

78.49

28

47

33

101.46

0

0

7

102.67

8

4

3

207.56

0

1

3

204.80

0

1

0

17.00

0

0

0

80.50

0

0

0

0.00

0

0

0

0.00

0

0

0

11.57

4

0

2

0.00

0

0

0

0.00

0

0

0

0.00

0

0

0

41.70 39

3

2

113.77

616

340

366

26

18

73

57

91

83

18

20

28

17

20

34

4

1

1

1

12

11

0

0

0

2

2

0

8

10

0

1

1

2

6

1

0

0

6

7

27

27

10

10

11

15

7

5

2

1

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

356

323

7

7

29

8.94%

69

36

37

11.21%

76 113 1,312

35.71%

13

19

123

4.91%

17

19

34

4.89%

21

14

212

6.42%

1

2

21

0.72%

0

0

14

0.32%

7

8

37

1.85%

0

0

1

0.02%

1

0

3

0.20%

0

0

0

1.51%

4

1

20

2.11%

0

0

0

0.02%

0

1

6

0.28%

2

1

5

0.48%

0

0

1

0.02%

2

6

25

1.39%

15

16

109

6.08%

15

18

70

2.62%

15

11

98

3.32%

10

6

167

4.01%

1

3

75

1.67%

0

0

0

0.02%

0

0

1

0.02%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.12%

0

0

0

0.00%

0

0

0

0.00%

0

0

0

0.00%

2

0

8

1.13%

278

281 2,408

100%

4/15/2020 7:00:01 AM

Case 3:20-cv-00832-E Document 54-1 Filed 04/19/20 Page 17 of 17 PageID 1396

DALLAS COUNTY CRIMINAL JUSTICE MANAGEMENT COMMITTEE INFORMATION STATISTICS DETENTION EARLY WARNING REPORT

Case 3:20-cv-00832-E Document 54-2 Filed 04/19/20
WX20-91083-V
Cause No. F1977008

Page 1 of 5

FILED 4/2/2020 10:25 AM
PageID 1397 FELICIA PITRE
DISTRICT CLERK DALLAS CO., TEXAS Sherifa Ahmed DEPUTY

STATE OF TEXAS V. ALBERTO LOPEZ

§

IN THE 292ND JUDICIAL

§

§

DISTRICT COURT IN

§

§

DALLAS COUNTY, TEXAS

APPLICATION FOR WRIT OF HABEAS CORPUS FOR RELEASE DUE TO TARRANT COUNTY SHERIFFS OFFICE REFUSING TO
TAKE POSSESSION OF INMATE TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Alberto Lopez, Defendant in the above-styled and numbered cause, by and through his attorney of record, Matthew Toback and files this Application for Writ of Habeas Corpus for Release due to Tarrant County Sheriff’s Office Refusing to take Possession of Inmate, and, for good cause shows the following:
I. Defendant is illegally confined and restrained of his liberty by the Sheriff of Dallas County, Texas in the Dallas County Jail in Dallas, Texas. Defendant is charged in Dallas County with Capital murder and has posted bond on this case. He is also being held for a charge in Tarrant County of Possession of a Controlled Substance 1G-4G PG2, a 3rd degree felony. As of the date of this Writ’s filing, defendant has posted a bond on the Dallas County case and Tarrant County Sherrifs Office has refused to pick him up.

II.

Case 3:20-cv-00832-E Document 54-2 Filed 04/19/20 Page 2 of 5 PageID 1398
On March 26, 2020, Defendant posted a bond for the Dallas County Capital Murder charge. On April 1, 2020, the Tarrant County Sheriffs Office came to Dallas County Jail to pick up defendant and refused to take possession of him saying that Dallas County Jail was unable to provide documentation that defendant was free of the COVID-19 virus, even though defendant had previously tested negative for COVID-19 at the jail. Defendant is being held against his will because Tarrant County refused to take possession of him and left the jail without him. Due to no fault of Mr. Lopez, he is still being held against his will in Dallas County Jail.
III. Defendant, a 19-year-old male, was born and raised in Dallas County, Texas. He also has family members residing in Dallas. Defendant has been continuously incarcerated at the Dallas County Jail since Dec. 20, 2019.
IV. Defendant respectfully requests this Court to release defendant from Dallas County Jail because Tarrant County will not take possession of him.
WHEREFORE, premises considered, defendant prays that this Court grant and issue a Writ of Habeas Corpus to the Sheriff of Dallas County, Texas directing and commanding him to produce and have defendant before this court instanter, or at such time and place to be designated by this Court, then and there to show cause, if any he may have, why defendant should not be discharged from such illegal confinement; or that defendant be released directly from Dallas County Jail.
Respectfully submitted, /s/ Matthew Toback Matthew Toback State Bar Number 24003266 330 S. Riverfront Blvd.

Case 3:20-cv-00832-E Document 54-2 Filed 04/19/20 Page 3 of 5 PageID 1399
Dallas, Texas 75207 Phone (214) 720-9233 Fax (214) 752-4656
Attorney for Defendant Alberto Lopez
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been furnished to counsel for the state via e-file and/or email on April 1, 2020 to Andrew Anagnostis via efile.
/s/ Matthew Toback Matthew Toback

Case 3:20-cv-00832-E Document 54-2 Filed 04/19/20 Page 4 of 5 PageID 1400

STATE OF TEXAS V. ALBERTO LOPEZ

Cause No. F1977008

§

IN THE 292ND JUDICIAL

§

§

DISTRICT COURT IN

§

§

DALLAS COUNTY, TEXAS

O R D E R On this day came on to be considered Applicant’s Application for Writ of Habeas Corpus to Reduce Bail and the Court has: _____ set this matter for hearing on ____________________, 2020, or _____ GRANTED the Writ and ORDERS the accused be released subject to appear as required by the Court. _____ DENIED the Writ.
SIGNED: _______________

_________________________ JUDGE PRESIDING

Case 3:20-cv-00832-E Document 54-2 Filed 04/19/20 Page 5 of 5 PageID 1401

STATE OF TEXAS V. ALBERTO LOPEZ

Cause No. F1977008

§

IN THE 292ND JUDICIAL

§

§

DISTRICT COURT IN

§

§

DALLAS COUNTY, TEXAS

WRIT OF HABEAS CORPUS TO THE SHERIFF OF DALLAS COUNTY, TEXAS:
GREETINGS: YOU ARE HEREBY COMMANDED to produce before me at the DALLAS County Courthouse, _______________in the County of Dallas, State of Texas on the _______________ day of _____________________, 2020, at __________ o'clock _____M., the person of _______________, whom it is alleged you illegally restrain of his liberty, when and where you will show why you hold the said ______________, in custody, or restrain him of his liberty. HEREIN FAIL NOT, and return make hereof.

Signed on ___________________________.

__________________________________________ JUDGE PRESIDING

Case 3:20-cv-00832-E Document 54-3 Filed 04/19/20
WX20-91141-W
CAUSE NO. F-2023954

Page 1 of 7

FILED 4/8/2020 11:12 AM
PageID 1402 FELICIA PITRE
DISTRICT CLERK DALLAS CO., TEXAS Regina Taylor DEPUTY

STATE OF TEXAS V. CHAD ROSS

§

IN THE 363RD JUDICIAL

§

§

DISTRICT COURT IN

§

§

DALLAS COUNTY, TEXAS

APPLICATION FOR WRIT OF HABEAS CORPUS FOR RELEASE DUE TO INMATES PAROLE BEING COMPLETE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Chad Ross, Defendant in the above-styled and numbered cause, by and through his attorney of record, Matthew Toback and files this Application for Writ of Habeas Corpus for Release due to Inmates Parole Being Complete, and, for good cause shows the following:
I. Defendant is illegally confined and restrained of his liberty by the Sheriff of Dallas County, Texas in the Dallas County Jail in Dallas, Texas. He was arrested and has been in custody since February 12, 2020. Defendant is charged in Dallas County with two felony theft charges, cause numbers F-2023954 and F-2024027, and has posted bond on these cases. As of the date of this Writ’s filing, defendant has posted a bond on the two Dallas County felony theft cases and is still being held in Dallas County Jail on a parole violation, even though his parole expired on March 28, 2020.
II. Defendant, a 43-year-old male, was born and raised in Dallas County, Texas. He also has family members residing in Dallas. Defendant has been continuously incarcerated at the Dallas

Case 3:20-cv-00832-E Document 54-3 Filed 04/19/20 Page 2 of 7 PageID 1403
County Jail since February 12, 2020. IV.
Defendant respectfully requests this Court to release defendant from Dallas County Jail because his parole ended on March 28, 2020 and he has posted bond on the two felony theft cases he is charged with in Dallas County.
WHEREFORE, premises considered, defendant prays that this Court grant and issue a Writ of Habeas Corpus to the Sheriff of Dallas County, Texas directing and commanding him to produce and have defendant before this court instanter, or at such time and place to be designated by this Court, then and there to show cause, if any he may have, why defendant should not be discharged from such illegal confinement; or that defendant be released directly from Dallas County Jail.
Respectfully submitted, /s/ Matthew Toback Matthew Toback State Bar Number 24003266 330 S. Riverfront Blvd. Dallas, Texas 75207 Phone (214) 720-9233 Fax (214) 752-4656
Attorney for Defendant Chad Ross
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been

Case 3:20-cv-00832-E Document 54-3 Filed 04/19/20 Page 3 of 7 PageID 1404
furnished to counsel for the state via e-file and/or email on April 8, 2020 to Maegan Westbrook via efile.
/s/ Matthew Toback Matthew Toback

Case 3:20-cv-00832-E Document 54-3 Filed 04/19/20 Page 4 of 7 PageID 1405

STATE OF TEXAS V. CHAD ROSS

CAUSE NO. F-2023954

§

IN THE 363RD JUDICIAL

§

§

DISTRICT COURT IN

§

§

DALLAS COUNTY, TEXAS

O R D E R

On this day came on to be considered Applicant’s Application for Writ of Habeas Corpus

for Release due to Inmates Parole being Complete and the Court has:

_____ set this matter for hearing on ____________________, 2020, or

_____ GRANTED the Writ and ORDERS the accused be released subject to appear as

required by the Court.

_____ DENIED the Writ.

SIGNED: _______________

_________________________ JUDGE PRESIDING

Case 3:20-cv-00832-E Document 54-3 Filed 04/19/20 Page 5 of 7 PageID 1406

STATE OF TEXAS V. ALBERTO LOPEZ

Cause No. F-2023954

§

IN THE 292ND JUDICIAL

§

§

DISTRICT COURT IN

§

§

DALLAS COUNTY, TEXAS

WRIT OF HABEAS CORPUS TO THE SHERIFF OF DALLAS COUNTY, TEXAS:
GREETINGS: YOU ARE HEREBY COMMANDED to produce before me at the DALLAS County Courthouse, _______________in the County of Dallas, State of Texas on the _______________ day of _____________________, 2020, at __________ o'clock _____M., the person of _______________, whom it is alleged you illegally restrain of his liberty, when and where you will show why you hold the said ______________, in custody, or restrain him of his liberty. HEREIN FAIL NOT, and return make hereof.

Signed on ___________________________.

__________________________________________ JUDGE PRESIDING

Case 3:20-cv-00832-E Document 54-3 Filed 04/19/20 Page 6 of 7 PageID 1407

Case 3:20-cv-00832-E Document 54-3 Filed 04/19/20 Page 7 of 7 PageID 1408

Case 3:20-cv-00832-E Document 54-4 Filed 04/19/20 Page 1 of 3 PageID 1409

Case 3:20-cv-00832-E Document 54-4 Filed 04/19/20 Page 2 of 3 PageID 1410

Case 3:20-cv-00832-E Document 54-4 Filed 04/19/20 Page 3 of 3 PageID 1411

 
 Case 3:20-cv-00832-E Document 70 Filed 04/20/20 Page 1 of 7 PageID 1549

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

OSCAR SANCHEZ, et al., on their own

§

and on behalf of a class

§

of others similarly situated,

§

§

Plaintiffs/Petitioners,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in her official capacity, §

and DALLAS COUNTY, TEXAS,

§

§

Defendants/Respondents.

§

CIVIL ACTION NO. 3:20-cv-00832-E

ORDER Plaintiffs, detainees in the Dallas County Jail, filed a First Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief [Doc. No. 39]. Due to COVID-19 at the jail, Plaintiffs seek relief that includes the immediate release of medically vulnerable subclass members. The State of Texas, the Governor of Texas, and the Attorney General of Texas (“Proposed Intervenors”) have filed a Motion to Intervene as defendants in this case [Doc. No. 26] (“the Motion”). Existing Defendants Dallas County, Texas, and the Dallas County Sheriff do not oppose the Motion, but Plaintiffs do [Doc. No. 44]. Proposed Intervenors assert they are entitled to intervene by right under Federal Rule of Civil Procedure 24(a)(2) and also to permissive intervention under Rule 24(b)(1)(B). For the reasons that follow, the Court grants the Motion. I. Introduction Some of the named Plaintiffs are pretrial detainees. The Court is mindful the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution presumes each individual innocent
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if, and until, she is convicted of the crime for which she stands accused. But that presumption is not applicable when analyzing the issue of pretrial confinement. In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court considered federal pretrial detainees’ class action suit against a New York City jail where the inmates were housed in which plaintiffs alleged the conditions of the jail violated their statutory and constitutional rights. In Bell, the Supreme Court made the following clear:
The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; it also may serve as an admonishment to the jury to judge an accused’s guilt or innocence solely on the evidence adduced at trial. . . . Without question, the presumption of innocence plays an important role in our criminal justice system. “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481 (1895). But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun. Bell, 441 U.S. at 533. In a humane society, even those convicted of the most serious crimes, if they must be confined, should be held as safely as possible. Society should also provide jailed persons with appropriate medical care if an inmate becomes ill. II. Intervention by Right Proposed Intervenors contend Plaintiffs want “to empty the jail” and seek to intervene to defend the continued custody of the would-be class. They contend they have an interest in the outcome of this case and in protecting the public’s health and safety “in the wake of the coronavirus pandemic.” Federal Rule of Civil Procedure 24(a)(2) allows the Proposed Intervenors to intervene as a matter of right if they can show: 1) the timeliness of the motion to intervene; 2) an interest relating to the action; 3) disposition of the case may impair or impede their ability to protect the interest; and 4) the interest is not adequately represented by the existing parties. See FED. R. CIV.
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P. 24(a)(2); Adam Joseph Res. v. CNA Metals Ltd., 919 F.3d 856, 865 (5th Cir. 2019). Courts should construe Rule 24(a) broadly in favor of intervenors. See Adam Joseph, 919 F.3d at 864. Generally, intervention should be allowed when no one would be hurt and when greater justice can be attained by allowing the intervention. Doe #1 v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001).
In Plaintiffs’ response to the Motion, they assert that Proposed Intervenors “have at best a contingent interest in a small number of post-conviction detainees who may belong in State custody.” Plaintiffs also warn the Court of what they view as fearmongering by Proposed Intervenors:
[Proposed Intervenors] list a parade of horribles, led by an accused serial killer, to attempt to persuade the Court that nothing short of their intervention in this lawsuit will save the State of Texas from the harm of releasing every accused and convicted murderer, rapist, burglar, batterer, fraudster and other criminal from the Dallas County Jail – over 5,000 prisoners in total. . . . Tellingly, [Proposed Intervenors] fail to note that Plaintiffs do not seek such indiscriminate relief in their Complaint. Plaintiffs contest Proposed Intervenors’ claim that Plaintiffs seek to “empty the jail.” Yet Plaintiffs’ First Amended Petition for Habeas Corpus and Class Action Complaint requests not only that this Court immediately release medically vulnerable subclass members, but also that the Court continue to release, via habeas or transfer to home confinement, additional class members, including those not considered medically vulnerable, as needed to ensure that persons who remain incarcerated do so under conditions consistent with public health guidelines. And Plaintiffs’ Motion for Class Certification [Doc. No. 17], contemplates a “Pre-Adjudication Class” which includes all current and future detainees in pretrial custody at the jail and a “Post-Adjudication Class” which includes all current and future detainees in post-adjudication custody, with subclasses for those who are medically vulnerable.
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The Court finds that Proposed Intervenors have met the requirements for an intervention by right. First, Proposed Intervenors’ Motion was timely. Plaintiffs filed their original Petition for Writ of Habeas Corpus and Class Action Complaint and their Motion for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus and accompanying brief [Doc. Nos. 1– 3] on April 9, 2020. Proposed Intervenors filed their Motion just 4 days later. No discovery had taken place before Proposed Intervenors filed their Motion.
The focus of the second prong is practical. See Adam Joseph, 919 F.3d at 867. Considering the broad relief sought by Plaintiffs, the Court sees a direct, substantial, and legally protectable interest relating to this action held by Proposed Intervenors in the proceedings and outcome of this case. See In re Lease Oil Antitrust Litig., 570 F.3d 244, 250 (5th Cir. 2009). If the Court grants Plaintiffs’ requested relief, the State itself, the Governor as the State’s executive head, and the Attorney General as the State’s legal counsel, may be affected in other cases in which they are parties. Plaintiffs seek release of up to nearly 5,000 inmates from the Dallas County Jail due to coronavirus (COVID-19) concerns. The broad relief requested supports Proposed Intervenors’ argument that they have a vested interest, especially during a pandemic, in keeping citizens safe and not draining the law enforcement resources currently available. See Addington v. Tex., 441 U.S. 418, 426 (1979) (discussing concept of State’s parens patriae interest in caring for citizens); City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1256 n. 7 (5th Cir. 1976) (same). And as an example of other potential concerns, the release Plaintiffs seek could mean setting aside active parole warrants from the Texas Department of Criminal Justice. See TEX. GOV’T CODE ANN. § 508.254.
Plaintiffs claim Proposed Intervenors have only a de minimus interest in the issues before the Court, but Plaintiffs wholly fail to address Proposed Intervenors’ asserted interest in crime
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prevention. [See Doc. No. 27 exhibits Nos. 1-15.] A mass exodus of inmates from the Dallas
County Jail would likely impact citizens outside Dallas County. Exhibit 13 to the Motion is a
declaration from City of Plano Police Chief Ed Drain. This declaration was originally filed in
response to a similar lawsuit filed in the Southern District of Texas seeking to release inmates from
the Harris County Jail. See Russell v. Harris Cty., No. 4:19-cv-00226 (S.D. Tex). Chief Drain
wrote, “[i]t is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing
over 4,000 felons from the Harris County Jail.” Chief Drain explained the strain such a mass
release would have on law enforcement during a pandemic and some of the intrastate consequences
of releasing 4,000 inmates:
Organized criminal elements form [sic] the Harris County area are frequently engaged in illegal activity in other jurisdictions hundreds of miles from Harris County. For approximately the last ten years, numerous Asians residents [sic] in the City of Plano, have been victimized by an organized criminal element who specialize in burglarizing homes of Asians. In cases where we have been able to arrest suspects involved in these crimes, we usually can trace their origins to the Harris County area.
Chief Drain, who has been a law enforcement officer for over 25 years, expressed just how often
criminal activity crossed county lines:
Over approximately the last five years, we have seen an increase in criminal activity that involves criminals identifying bank customers who have made large cash withdrawals. The criminals follow the victim’s vehicle and steal the cash whenever the customer makes a stop. The criminal activity is referred to as “jugging”. We consistently discover suspects we arrest for these offenses are from the Harris County area.
These intrastate crime concerns were not just a problem Chief Drain faced as a police officer in
Plano. During the time he served as the Police Chief in Amarillo, “almost all suspects we arrested
involved in placing skimmers on gas pumps to steal victims’ credit/debit card information, were
from the Harris County area.” Though Chief Drain’s declaration and the other fourteen exhibits
attached to the Motion focused on the possible release of inmates from the Harris County Jail,
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Proposed Intervenors’ concerns are as applicable to Dallas County and its jail as they are to the State of Texas.
Proposed Intervenors have also established the third requirement for intervention by right. The relief requested by Plaintiffs creates a tangible threat to Proposed Intervenors’ legally cognizable interests, which would likely be impaired or impeded by this case if the Court barred Proposed Intervenors’ participation in this suit or if there were an unfavorable result for Proposed Intervenors in this case. See Pennsylvania v. President United States of Am., 888 F.3d 52, 59 (3d Cir. 2018); Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995). Proposed Intervenors have also shown an interest in this suit that is direct, substantial, and legally protectable. See Brumfield v. Dodd, 749 F.3d 339, 343 (5th Cir. 2014). Further, Proposed Intervenors’ stake in this suit goes beyond a generalized preference that the case turn out a certain way. See Texas v. U.S., 805 F.3d 653, 657 (5th Cir. 2015).
The last prong focuses on whether the existing parties adequately represent the Proposed Intervenors’ interests. The burden to prove that they do not is not a substantial one. Brumfield, 749 F.3d at 345. Proposed Intervenors need only show that the existing representation “may be inadequate.” Texas, 805 F.3d at 661 (quoting Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972)); Doe #1, 256 F.3d at 380 (same).
Motions and briefs filed by Defendants have focused primarily on the effects Plaintiffs’ requested relief would have for Dallas County and its jail. Proposed Intervenors’ stated reason for filing the Motion was to “ensur[e] that Texas’s interests are zealously represented before the Court by the elected officials entrusted with defending the state’s interests.” Proposed Intervenors’ Motion raises valid concerns that existing representation may be inadequate to represent Proposed Intervenor’s interests.
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Case 3:20-cv-00832-E Document 70 Filed 04/20/20 Page 7 of 7 PageID 1555 III. Conclusion
Because Proposed Intervenors have met the requirements of Federal Rule of Civil Procedure 24(a)(2), the Court finds intervention by right is appropriate. Accordingly, the Court need not consider Proposed Intervenors’ alternative argument that they are entitled to permissive intervention under Rule 24(b). See, e.g., Securities & Exch. Comm’n v. Sethi Petroleum LLC, No. 4:15-CV-00338, 2020 WL 363777, at *8 (E.D. Tex. Jan. 22, 2020). Proposed Intervenors’ Motion to Intervene is granted.
SO ORDERED. Signed April 20, 2020
JUDGE ADA BROWN UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
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 Case 3:20-cv-00832-E Document 84 Filed 04/26/20 Page 1 of 7 PageID 1661

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS WHITE, TESMOND MCDONALD, MARCELO PEREZ, ROGER MORRISON, KEITH BAKER, PAUL WRIGHT, TERRY MCNICKELS, JOSE MUNOZ, KIARA YARBOROUGH, OLIVIA WASHINGTON, and IDEARE BAILEY; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 20-cv-832

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

NOTICE RE: PETITIONER/PLAINTIFFS’ SECOND AMENDED [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING
ORDER, MOTION FOR A PRELIMINARY INJUNCTION, AND PETITION FOR WRIT OF HABEAS CORPUS

In light of Valentine v. Collier, No. 20-20207 (5th Cir. April 22, 2020), and the evidence

adduced at the hearing in the above-captioned case, Plaintiffs submit a second amended proposed

order. See Exhibit 1. Key provisions in the amended proposed order are described below:

1. In Paragraphs 4–5, the Order provides more detail regarding the process Plaintiffs propose for granting habeas relief, or alternatively enlargement,1 to members of the Medically-

Vulnerable Subclasses. Plaintiffs do not seek the habeas release of non-Medically-Vulnerable

1 See Doc. No. 47 at 25 (““[I]t is within the inherent power of a District Court of the United States to enlarge a state prisoner on bond pending hearing and decision on his application for a writ of habeas corpus.” In re Wainwright, 518 F.2d 173, 174 (5th Cir. 1975). Release pending a district court’s ruling on habeas is appropriate where a petitioner “raise[s] substantial constitutional claims upon which he has a high probability of success,” and “extraordinary and exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974)).
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persons. This Court has broad discretion to craft equitable relief, and although Plaintiffs propose one such process in the Second Amended Proposed Order—that the Court start by releasing people who are in jail only because they are awaiting placement in a treatment center—there are other options. For example, the Court could start by granting habeas relief to everyone in the Medically Vulnerable Subclasses who is required to pay a secured money bail amount of $10,000 or less (i.e. people who could be released if they could pay, at most, $1,000 to a bonding company), or who is charged with non-violent offenses, or who is over age 70.2
Plaintiffs’ proposed mechanism in their second amended proposed order provides one path for the Court in balancing relevant interests, but the law affords this Court broad discretion to craft equitable relief. Further, in fashioning an equitable remedy, this Court is not bound by Texas bail statutes or other state laws; rather, this Court may exercise its discretion in sequencing its release decisions and weighing relevant factors upon a finding that the federal constitutional rights of Petitioners has been violated.
Moreover, the Court is free to enlist a Magistrate or Special Master to oversee the process and ensure it is expeditious and efficient.
Other courts that have considered habeas petitions on behalf of medically-vulnerable detainees have fashioned relief similar to what Plaintiffs seek here:
• Ordering release or transfer of medically vulnerable to other places of custody, including home confinement: • Wilson v. Williams, 20-cv-794 (N.D. Ohio. April 22, 2020) Doc. No. 22 at 20– 21 (ordering Respondents to evaluate medically-vulnerable class members’ eligibility for compassionate release or transfer to home confinement, parole or
2 Another option would be to convert any secured pretrial bonds to unsecured bonds via the enlargement process. The Fifth Circuit in ODonnell upheld Chief Judge Lee H. Rosenthal’s factual findings that unsecured bonds are equally effective at reasonably assuring appearance and community safety. ODonnell v. Harris Cty., Texas, 251 F. Supp. 3d 1052, 1144 (S.D. Tex. 2017), aff'd as modified sub nom. ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018) (“[T]he record evidence shows that secured money bail is not more effective at increasing the likelihood of appearance or law-abiding behavior before trial than release on an unsecured or nonfinancial condition.”).
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community supervision, furlough, or to another facility where social distancing would be possible, in order of medical need);
• Ordering Defendants to provide a list of medically vulnerable people and to state any objections to releasing those people:
• Cameron v. Bouchard, 20-cv-10949 (E.D. Mich. April 17, 2020) at Doc. 12, at 7 (ordering Defendants to the federal action to lodge their objections to the release of persons on a medically-vulnerable subclass list); Doc. 29 (noting that the list may be provided after habeas releases deemed appropriate).
• Granting “enlargement” pending a habeas decision:
• Savino v. Souza, 20-cv-10617, 2020 WL 1703844, at *9 (D. Mass. April 8, 2020). Finding “extraordinary circumstances” in “this nightmarish pandemic,” the court opted to “diligently entertain[] bail applications while the petitions for habeas corpus are pending.” Id. at *9. The district court requested and rapidly considered an initial list of 50 detainees for bail, and has since considered class members’ applications for bail-pending-habeas in groups of ten. Order, Savino v. Souza, No. 20-10617-WGY, Doc. No. 44, at 3 (Apr. 4, 2020); see id., Doc. No. 45 at 1-3 (listing class members in groups of 10 for bail consideration); id., Doc. No.77 at 1-3 (Apr. 10, 2020) (same);
• Granting habeas relief:
• Wolf v. Hernandez, 20-cv-768 (C.D. Ca. April 23, 2020), Doc. No. 55 (ordering Immigration and Customs Enforcement center to “reduce the detainee population… to such a level that would allow the remaining detainees to maintain a social distance of 6 feet from each other at all times and at all places, including while sleeping, eating, showring, and going about other daily activities, except when there is a medical necessity or a safety emergency.”) The Wolf case left it up to the Defendant to determine “which detainees are released, deported, or transferred.”
• Fraihat v. Immigration and Customs Enforcement, 19-cv-1546 (C.D. Ca. April 20, 2020), Doc. No. 132 p. 38 (requiring Defendant to “identify and track” all detainees with medical risk factors, and “make timely custody determinations” upon considering their home release plans).
2. The Order removes epilepsy, adds obesity (defined as a body mass index (BMI)
of forty or more), and defines “developmental disability” in Paragraphs 2 and 12, consistent with
medical expert testimony during the hearing.
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3. The Order modifies the requested injunctive relief in Paragraph 8 to more closely reflect the public health, staffing, and training protocols that the record reflects are deficient at the Dallas County Jail, based on the CDC Guidelines for Correctional and Detention Facilities. Neither Valentine3 nor the CDC Guidelines4 constrain this Court’s ability to require social distancing: in Valentine, the evidence showed that social distancing was occurring to a much greater degree in the Pack Unit, and the CDC Guidelines recognize that social distancing is the “cornerstone” of preventing the spread of COVID-19, meaning that without social distancing, the entire edifice of prevention collapses.
Further, the CDC guidelines are not co-extensive with the appropriate constitutional remedy: courts have dismissed similar arguments as “absurd,” Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004) and “simply ludicrous.” Boulies v. Ricketts, 518 F. Supp. 687, 689 (D. Colo. 1981); see also Grenning v. Miller-Stout, 739 F.3d 1235, 1241 (9th Cir. 2014) (rejecting argument that ACA accreditation meant prison conditions were constitutional); LaMarca v. Turner, 662 F. Supp. 647, 655 (S.D. Fla. 1987) (ACA accreditation has “virtually no significance” because accredited prisons have been found unconstitutional); Morales Feliciano v. Rossello Gonzalez, 13 F.Supp.2d 151, 158 n. 3 (D.P.R. 1998) (prison medical care found unconstitutional despite recent accreditation by National Commission on Correctional Health Care); Bell v. Wolfish, 441 U.S. 520, 543 n. 27 (1979). It is for this Court to determine whether the conditions at the Dallas County Jail comply with federal law and to fashion appropriate remedies if they are not, including upon review of the stay order in Valentine. Alternately, the
3 The Valentine record reflected that social distancing was being achieved to a much higher degree than in the Dallas County Jail. See Valentine v. Collier Preliminary Injunction Hearing Transcript at 69 (describing housing in single “cubicles” spaced 8–10 feet apart), 115 (social distancing measures taken during transport), 116 (staggered meals to enhance social distancing), 116 (social distancing enforced during movement). 4 The CDC Guidelines are clear that correctional facilities need to implement social distancing measures. Guidelines at 4 (“Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.”).
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Court may choose to issue injunctive relief solely in the form of the public health expert plan contemplated in Paragraph 10(a).
4. The Order clarifies the nature of the public health plan contemplated in Paragraph 10. Courts evaluating similar challenges have ordered such a facility-specific approach and required a qualified expert to examine the facility in question. Banks v. Booth, 20-cv-849 (D.D.C. April 19, 2020) at Doc. 47 (expert report) Swain v. Junior, 20-cv-21457 (S.D. Fla. April 21, 2020), Doc. Nos. 69–70 (inspection report); Chunn v. Edge, 20-cv-1590 (E.D.N.Y. April 15, 2020), Doc. No. 45 (ordering an inspection). An expert inspection and plan is crucial for several reasons. First, it will promote transparency and accountability, allowing the Court and Parties to assess compliance with any Order issued by this Court. Second, appointment and inspection are in line with CDC Guidelines, which recommend facility-specific public health plans. Third, the inspection and report will promote efficient use of the Court’s and Parties’ resources by streamlining the process of generating the information the Court will need to assess the merits of Plaintiffs’ claims and to craft permanent equitable relief as the case proceeds. Fourth, appointing a public health expert to inspect the jail and submit a plan will allow the Court to craft narrowlytailored relief that will remedy the constitutional violations while intruding as minimally as possible into the jail’s operations.
Plaintiffs are prepared to provide any additional information or clarification regarding the contours of the relief they seek.
Dated: April 26, 2020. Respectfully submitted,
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_/s/ Andrea Woods___ AMERICAN CIVIL LIBERTIES FOUNDATION Andrea Woods* N.Y. Bar No. 5595509 Brandon Buskey* 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org
Henderson Hill* N.C. Bar No. 18563 201 W. Main St. Suite 402 Durham, NC 27701 (919) 682-9563 hhill@aclu.org Amy Fettig* D.C. Bar No. 484883 915 15th Street N.W., 7th Floor Washington, D.C. 20005 (202) 548-6608 afettig@aclu.org

_____________________ ACLU FOUNDATION OF TEXAS Brian Klosterboer Texas. Bar No. 24107833 Adriana Piñon** Texas Bar No. 24089768 Andre Segura Texas Bar No. 24107112 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146 Fax: (346) 998-1577
_____________________ CIVIL RIGHTS CORPS Katherine Hubbard*** D.C. Bar No. 1500503 Elizabeth Rossi* D.C. Bar No. 1500502 1601 Connecticut Ave NW, Suite 800 Washington, D.C. 20009 (202) 894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org

____________________ SUSMAN GODFREY L.L.P. Barry Barnett Texas Bar No. 01778700 8115 Preston Road, Suite 575 Dallas, TX 75225 (866) 754-1900 bbarnett@susmangodfrey.com
Michael Gervais* N.Y. Bar No. 5122890 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 789-3100 mgervais@susmangodfrey.com
_____________________ NEXT GENERATION ACTION NETWORK Alison Grinter Texas Bar 24043476 Kim T. Cole Texas Bar No. 24071024 1808 South Good Latimer Expressway Dallas, TX 75226 (214) 704-6400 agrinter@thengan.com kcole@thengan.com

ATTORNEYS FOR PETITIONERS/PLAINTIFFS *admitted pro hac vice **N.D. Texas admission application forthcoming *** pro hac vice application forthcoming

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Case 3:20-cv-00832-E Document 84 Filed 04/26/20 Page 7 of 7 PageID 1667 CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was served via the Court’s CM/ECF system on all counsel registered with that system, and via email, on April 26, 2020.
/s/ Andrea Woods Andrea Woods
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS WHITE, TESMOND MCDONALD, MARCELO PEREZ, ROGER MORRISON, KEITH BAKER, PAUL WRIGHT, TERRY MCNICKELS, JOSE MUNOZ, KIARA YARBOROUGH, OLIVIA WASHINGTON, and IDEARE BAILEY; on their own and on behalf of a class of similarly situated persons;

Civil Action No. 20-cv-832

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity; DALLAS COUNTY, TEXAS;

Respondents/Defendants

SECOND AMENDED [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER, MOTION FOR A PRELIMINARY INJUNCTION, AND PETITION FOR WRIT OF HABEAS CORPUS

The Plaintiffs’ Motion for Temporary Restraining Order, Motion for a Preliminary Injunction, and

Petition for Writ of Habeas Corpus are GRANTED:

1. Provisional class certification. As discussed in the accompanying memorandum

opinion, the Court hereby provisionally certifies the Pre-Adjudication Class, Post-Adjudication

Class, and the Medically-Vulnerable Subclasses as defined in Plaintiffs’ Amended Complaint and

Motion for Class Certification.

Habeas Release for the Medically Vulnerable

2. List of medically-vulnerable persons. Pursuant to the Court’s § 2241 authority, it is

ORDERED that within six hours of this order (by _______ [a.m./p.m.] today), Defendants shall

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provide the Plaintiffs and this Court with a list of all individuals who are currently detained at the Dallas County Jail who meet any of the following criteria1:
• Have lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function;
• Have heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease;
• Have chronic liver or kidney disease (including hepatitis and dialysis patients); • Have diabetes or other endocrine disorders; • Have hypertension; • Have a compromised immune system (such as from cancer, HIV, receipt of an organ or
bone marrow transplant, as a side effect of medication, or other autoimmune disease); • Have blood disorders (including sickle cell disease); • Have inherited metabolic disorders; • Have a history of stroke; • Have a developmental disability such that they have trouble understanding information or
practicing preventive measures, or difficulty communicating symptoms2; • Are now or have been pregnant within the last two weeks; • Have a BMI (body mass index) of 40 or more;3 • Are [50] years of age or older; and/or • Have any other condition identified either now or in the future as being a particular risk for
severe illness and/or death caused by COVID-19.
1 Plaintiffs have removed epilepsy from this list based on medical expert testimony that it should no longer be included. 2 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-disabilities.html 3 Based on medical expert testimony that obesity at this level causes additional medical vulnerabilities when exposed to COVID-19.
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3. Contents of list. The list must contain the following information for each person: current charge, criminal history, active holds, bond amount, age, status if awaiting transfer to other facility.
4. Habeas release of persons awaiting transfer for treatment. Within 24 hours after that list has been submitted (by _______ [a.m./p.m.] tomorrow), Defendants shall release all persons on the list who are in the custody of the Dallas County Jail awaiting transfer to a treatment facility (e.g., Wilmer drug treatment facility, Intermediate Sanctions Facility, or Substance Abuse Felony Punishment facility) as a condition of their probation. The petitioners shall be subject to the terms of their probation while released. When a space becomes available at the treatment facility a petitioner was waiting for, they shall be ordered to report to the treatment provider. After 24 hours have passed from submission of the list, if any individual on the list remains in custody, Defendants must identify such individuals, show cause why the deadline was not met, and state when such persons will be released.
5. Process for habeas release of other medically-vulnerable persons. The process for releasing the remaining people on the “medically vulnerable” list in Paragraph 2 is as follows:
a. Defendants or State Intervenors must lodge their objections to releasing any individual on the list within [five] days of this order and provide those objections to Plaintiffs’ counsel and the Court. The only objections the Court will entertain are objections based on a risk of flight from prosecution or a risk of danger to the community that cannot be mitigated through conditions less-restrictive than continued confinement. 4
b. The Parties must meet and confer regarding Defendants’ objections no later than 24 hours of receiving Defendants’ objections.
4 If Defendants or State Intervenors have non-speculative evidence that a petitioner would likely fail to follow selfisolation and quarantine protocols, the Court may consider that as a public safety threat.
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c. If Defendants continue to object to release of any persons on the list, Plaintiffs’ counsel must provide the Court with a list of Petitioners whose release they seek, and Defendants may provide a one-page written explanation of the basis of their objection within 24 hours of receipt of Plaintiffs’ list.
d. Within [seven] days of receiving both Plaintiffs’ list and Defendants’ written objections, the Court will issue habeas relief on the basis of the written information before the Court, or if additional information is needed, will conduct a hearing to determine whether habeas relief or enlargement is appropriate. The Court may enlist a Magistrate Judge and/or a Special Master to assist with this process. The Court, Magistrate, or Special Master will be authorized to impose conditions of release to mitigate any risk of flight or danger to the community.
e. In determining relief for individual Petitioners, the Court shall consider both the deprivation of the petitioners’ federal rights posed by the COVID-19 outbreak and any competent evidence that the individual poses a serious risk of flight or danger to others. The Court shall grant the petitions, or enlargement pending a ruling on the habeas petition, of Medically-Vulnerable Subclass Members absent clear and convincing evidence that they pose a risk of flight or danger that no other conditions can mitigate, and that that risk outweighs the threat to their health and safety posed by their exposure to COVID-19 in the Dallas County Jail. The Court will exercise its discretion regarding presentation of evidence and arguments in connection with any hearings on individual petitions.
6. Educational resources for releasees. Defendants shall 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.
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7. No constraint on voluntary release. Nothing in the preceding paragraphs shall prevent Defendants from voluntarily releasing any person or group of people currently incarcerated at the Dallas County Jail. Injunctive Relief Pursuant to § 1983
8. Mitigation of ongoing threats to health and safety. Pursuant to the Court’s authority under 42 U.S.C. § 1983, Defendants are ordered to immediately begin and continue to do the following:
a. Provide unrestricted access to cleaning supplies for each housing area, including bleach-based cleaning agents and CDC-recommended disinfectants in sufficient quantities to facilitate frequent cleaning, including in quantities sufficient for each inmate to clean and disinfect the floor and all surfaces of his own housing cubicle. Defendants shall ensure that cleaning supplies are readily available, and that staff are trained on the way to restock supplies that are missing in their units5;
b. Provide sufficient personal protective equipment (PPE) for all detainees, including the ability to replace daily and if a mask becomes dirty or breaks, and appropriate gloves and gowns during work placements including laundry, cleaning, or food service;6
c. Provide sufficient PPE for all staff, including the ability to replace daily and if a mask becomes dirty or breaks, and appropriate eye protection, gloves, and
5 CDC Guidelines p. 7. 6 See Table 1 of CDC Guidelines for Correctional & Detention Facilities.
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gowns during activities for which that equipment is recommended by the Centers for Disease Control and Prevention (CDC);7 d. Clean and sanitize common surfaces in housing areas, bathrooms, day rooms, recreational areas, the booking area, kitchen, and any dining areas no fewer than [seven]8 times between 7 a.m. to 10 p.m. with bleach-based cleaning agents or comparable anti-viral cleaning agents, including table tops, telephones, door handles, kiosks, and restroom fixtures; e. Clean and sanitize bunks thoroughly between occupants;9 f. Inform, in a manner accessible to non-English speakers, persons with lowliteracy levels, and persons who are intellectually disabled, deaf, blind, or lowvision,10 that all co-pays for medical calls related to COVID-19 have been suspended11; g. Provide consistent and reliable access to legal calls, personal telephone calls, daily showers, and clean clothing and clean linens to all inmates on isolation status; h. Provide detainees with up-to-date information about the transmission and risks of COVID-19, including in a manner available to non-English speakers, persons with low-literacy levels, and persons who are intellectually disabled, deaf, blind, or low-vision;
7 See Table 1 of CDC Guidelines for Correctional & Detention Facilities. 8 The CDC recommends all “frequently touched” surfaces and objects be cleaned and disinfected “several times per day.” Guidelines for Correctional & Detention Facilities, p. 9. 9 The CDC recommends this intervention and there is evidence in the record that it is not occurring in the Dallas County Jail. 10 CDC Guidelines p. 6. 11 CDC Guidelines p. 9.
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i. Train Jail staff on protocols around the transmission of COVID-19, how to identify symptoms of COVID-19, and how to ensure sufficient sanitation and hygiene supplies are stocked in all units at all times;
j. Ensure that staff are encouraged to stay home when sick, and ensure sufficient staffing levels to allow staff to stay home when sick;12
k. Provide appropriate and consistent implementation of social distancing policies, ensuring detainees and staff are able to maintain a six foot or more distance at all times, including by physically rearranging housing space, and addressing limitations in current staffing levels;13 and
l. Establish protocols for detainees to report symptoms and receive health screenings.
10. Submission of plan. The Court orders a plan, to be submitted to the Court in three (3) days from the date of this Order and overseen by a qualified public health expert agreed upon by the parties or ordered by the Court pursuant to Fed. R. Evid. 706, which outlines:
a. Any additional, specific mitigation efforts needed to prevent, to the degree possible, contraction of COVID-19 by all Class Members not immediately released;
b. A housing and/or public support plan for any released Class or Subclass Members who do not readily have a place to self-isolate for the CDC-recommended period of time (currently 14 days).
12 CDC Guidelines p. 6. 13 CDC Guidelines pp. 4, 8, 11, 22 (social distancing is the “cornerstone of reducing transmission,” is “critical,” and correctional facilities are instructed to “increase the physical space between … all individuals.”); 4-24 Tr. 108:608:7 (P. Jones) (agreeing that ineffective social distancing would pose substantial risk of serious harm and death to persons in Dallas County Jail); 4-22 Tr. 82:20-25, 83:21-25 (well known that social distancing is important to stop the spread of COVID-19, that congregate environments are particularly dangerous); Doc. No. 47-2 (Supp. Cohen Dec.) at ¶28 (explaining why the CDC does not explicitly address the need for downsizing to effectuate social distancing, but that social distancing is “clearly supported by the science and epidemiology”); 4-23 Tr. 209:3-19 & 222:25-224:1 (Dr. Nijhawan testimony).
7

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c. An evaluation of whether the release of the Subclass Members permits adequate social distancing and whether other categories of prisoners must be released,14 and/or other physical and/or staffing arrangements implemented, to provide for compliance with CDC guidelines, particularly social distancing.
11. Compliance with plan. For the pendency of this case, Defendants shall be ordered to abide by the plan set forth in Paragraph 10(a)-(b) and the injunction detailed in Paragraph 9. The Rule 706 expert shall be authorized to make unannounced visits to the Dallas County Jail to inspect practices, and provided unfettered access when inspecting. Reporting
12. Weekly report. Each Monday, no later than 1 pm. Central Time, Defendants must submit to Plaintiffs and the Court a list of any persons who are in custody of the Dallas County Jail who meet any of the following criteria, along with the basis of their objection to their release:
• Have lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function;
• Have heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease;
• Have chronic liver or kidney disease (including hepatitis and dialysis patients); • Have diabetes or other endocrine disorders; • Have hypertension; • Have a compromised immune system (such as from cancer, HIV, receipt of an organ or
bone marrow transplant, as a side effect of medication, or other autoimmune disease); • Have blood disorders (including sickle cell disease); • Have inherited metabolic disorders; • Have a history of stroke;
14 This order only requires the 706 expert’s evaluation as to what population numbers, physical and staffing arrangements would need to be implemented in order to facility social distancing. This order does not require the release of any person outside the Medically-Vulnerable Subclass described in paragraphs 2–4.
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• Have a developmental disability, such that they have trouble understanding information or practicing preventive measures, or difficulty communicating symptoms;
• Are now or have been pregnant within the last two weeks; • Have a BMI (body mass index) of 40 or more;15 • Are [50] years of age or older; and/or • Have any other condition identified either now or in the future as being a particular risk for
severe illness and/or death caused by COVID-19. 18 U.S.C. § 3626(a)(1)(A) Findings
13. Memorandum opinion. For the reasons explained in the accompanying memorandum opinion, the Court finds that the preliminary injunctive relief ordered here is narrowly drawn, extends no further than necessary to correct the harm this Court finds requires preliminary relief, and is the least intrusive means necessary to correct the harm. Further, this Court has reached its conclusion after giving substantial weight to any possible adverse impact on public safety and the operation of the criminal legal system that could possibly be caused by preliminary relief.
14. Reservation of authority. The Court may modify injunctive and other relief provided for in this order as circumstances may warrant and additional information becomes available.
DONE AND ORDERED this ____ day of April 2020.

Copies furnished to: All Counsel of Record

United States District Judge

15 Based on medical expert testimony that obesity at this level causes additional medical vulnerabilities when exposed to COVID-19.
9

 
 Case 3:20-cv-00832-E Document 85 Filed 04/27/20 Page 1 of 1 PageID 1677

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

OSCAR SANCHEZ, et al., on their own

§

and on behalf of a class

§

of others similarly situated,

§

§

Plaintiffs/Petitioners,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, et al.,

§

§

Defendants/Respondents.

§

CIVIL ACTION NO. 3:20-cv-00832-E

ORDER

Before the Court is Plaintiffs/Petitioners’ Motion for Temporary Restraining Order,

Preliminary Injunction, and Writ of Habeas Corpus (Doc. No. 2). The Court DENIES the relief

requested in the motion. An opinion explaining the Court’s reasoning will be forthcoming soon.

SO ORDERED.

Signed April 27, 2020.

________________________________ ADA BROWN UNITED STATES DISTRICT JUDGE

 
 Case 3:20-cv-00832-E Document 86 Filed 04/28/20 Page 1 of 3 PageID 1678

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD, §

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL §

WRIGHT, TERRY MCNICKELS, and §

JOSE MUNOZ, on their own and on §

behalf of a class of similarly situated §

persons,

§

Plaintiffs/Petitioners,

§

§

v.

§

§

DALLAS COUNTY SHERIFF,

§

MARIAN BROWN, in her official

§

capacity; DALLAS COUNTY, TEXAS; §

STATE OF TEXAS; GOVERNOR OF §

TEXAS; and ATTORNEY GENERAL §

OF TEXAS,

§

Defendants/Respondents.

§

Case No. 3:20-cv-00832-E

Notice of Supplemental Authority

We write to alert this Court to the Fifth Circuit’s decision from yesterday in Marlowe v. LeBlanc, — F.3d —, No. 20-30276 (5th Cir. Apr. 27, 2020) (slip opinion attached). While this Court has already denied Plaintiffs’ requested relief (and Marlowe does not change that result), State Intervenors bring this binding authority to this Court’s attention because it forecloses several of Plaintiffs’ attempts to distinguish Valentine v. Collier; therefore, providing further support for the Court’s forthcoming written opinion.

1

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Respectfully submitted. KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General RYAN L. BANGERT Deputy First Assistant Attorney General DARREN L. MCCARTY Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief for General Litigation Division /s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Attorney-in-Charge Special Litigation Counsel1 Texas Bar No. 24077727 General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 adam.biggs@oag.texas.gov COUNSEL FOR THE STATE OF TEXAS, THE GOVERNOR OF TEXAS, AND THE ATTORNEY GENERAL OF TEXAS
1 Exempted from admission to practice requirement pursuant to Local Rule 83.11.
2

Case 3:20-cv-00832-E Document 86 Filed 04/28/20 Page 3 of 3 PageID 1680 CERTIFICATE OF SERVICE
I hereby certify that on April 28, 2020, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel
3

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LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130

April 27, 2020

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 20-30276 Christopher Marlowe v. James LeBlanc, Secretary, et al USDC No. 3:18-CV-63

Enclosed is an order entered in this case.

Sincerely, LYLE W. CAYCE, Clerk

Ms. Phyllis Esther Glazer Mr. Michael L. McConnell Ms. Suzanne Quinlan Mooney Ms. Emily Henrion Posner

By: _________________________ Melissa V. Mattingly, Deputy Clerk 504-310-7719

Case: 20-30276 Document: 00515396990 Page: 1 Date Filed: 04/27/2020 Case 3:20-cv-00832-E Document 86-1 Filed 04/28/20 Page 2 of 11 PageID 1682
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 20-30276
CHRISTOPHER MARLOWE,
Plaintiff - Appellee
v.
JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; RAMAN SINGH, Doctor; TIMOTHY HOOPER, Warden; STEPHANIE MICHEL, Deputy Warden; MORGAN LEBLANC, Assistant Warden; PREETY SINGH, Doctor; GAIL LEVY; POLLY SMITH; FALLON STEWART; ELIZABETH GAUTHREAUX; JONATHAN TRAVIS; STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; PAM HEARD, Doctor; DARRYL CAMPBELL, Assistant Warden; JOHN MORRISON; ANGEL HORN, Master Sergeant; ROLANDA PALMER, Master Sergeant; CHERMAINE BROWN, Sergeant,
Defendants - Appellants
Appeal from the United States District Court for the Middle District of Louisiana
Before JONES, HIGGINSON, and OLDHAM, Circuit Judges. PER CURIAM:
This appeal concerns the efforts of Louisiana’s Department of Public Safety and Corrections (“DPSC”) to respond to the rapidly evolving COVID-19 pandemic on behalf of one prisoner in one unit. On April 23, 2020, the United States District Court for the Middle District of Louisiana issued an injunction requiring Defendants to comply with their own internal policies and submit a

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plan to ensure proper social distancing and hygiene practices. Dist. Ct. Order at 13–14. This order came just one day after this court stayed a similar injunction against the Texas Department of Criminal Justice. Valentine v. Collier, No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020). We conclude that Valentine’s reasoning controls here and accordingly stay the district court’s injunction pending appeal.
BACKGROUND Plaintiff, a prisoner currently detained at the Rayburn Correctional Center (“RCC”), originally filed suit against Defendants in 2018, alleging they exhibited deliberate indifference toward his medical needs by providing a constitutionally deficient meal service that resulted in his developing diabetes and then failing to adequately treat his illness. On April 1, 2020, Plaintiff filed a motion tangential to the ongoing dispute, requesting a temporary restraining order authorizing his supervised release until spread of the COVID-19 virus is no longer a threat within the Department of Corrections. Defendants opposed the motion on the basis of jurisdictional obstacles, Plaintiff’s failure to exhaust administrative remedies, and the deficiency of Plaintiff’s constitutional claim on its merits. The district court conducted a telephonic evidentiary hearing on April 7. Following the evidentiary hearing, Defendants submitted a memorandum updating the district court on the numerous procedures taken at RCC to contain the spread of COVID-19. Plaintiff responded that these procedures were “woefully inadequate” and “deliberately indifferent” to his medical needs. He also suggested, for the first time, that, in lieu of temporary release, the court could order that RCC create conditions that allow for proper social distancing to protect him. The district court latched on to this eleventh-hour request. After determining that Plaintiff was likely to prevail on the merits of
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his deliberate indifference claim, it ordered Defendants to “comply with the Governor’s recommendations and their own internal policies concerning disinfection of common areas and the wearing of masks by staff and certain categories of offenders.” Dist. Ct. Order at 13. It further ordered Defendants to “submit to the [c]ourt a [p]lan to ensure the implementation of proper hygiene practices in the dormitory in which Plaintiff is assigned, and to implement social distancing practices to limit the spread of COVID-19.” Id. at 14. The Defendants were ordered to submit said plan within five days, i.e. by Tuesday, April 28. Id.
Defendants, relying heavily on this court’s just-issued Valentine decision, requested that the district court stay enforcement of the injunction. The district court has yet to rule on that motion. Defendants then appealed to this court, requesting a stay pending appeal.
ANALYSIS1 Four well established factors govern the propriety of a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 426, 129 S. Ct. 1749, 1761 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119 (1987)). “The first two factors . . . are the most critical.” Id. at 434.
1 Plaintiff contends that the district court’s order is a TRO, governed by Fed. R. Civ. P. 65(b) and normally unappealable. See Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999). However, precedent makes clear that when a court holds a hearing on a preliminary motion and the motion is strongly contested, its resulting order constitutes an injunction appealable under 28 U.S.C. § 1291(a)(1). See Sampson v. Murray, 415 U.S. 61, 87, 94 S. Ct. 937, 951 (1974) (“[W]here an adversary hearing has been held, and the court’s basis for issuing the order strongly challenged, classification of [a] potentially unlimited order as a temporary restraining order seems particularly unjustified.”).
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We begin by considering Defendants’ likelihood of success on appeal. In making this assessment, we are bound by a decision in which this court recently resolved a motion for stay raising nearly identical issues. See Valentine v. Collier, No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020). Although Valentine’s facts are slightly different from the facts of this case, we might have expected the district court to at least mention Valentine. Perhaps Defendants did not apprise the district court of our decision before the issuance of its injunction. Valentine was decided just one day earlier. But Defendants repeatedly cite Valentine in their motion to stay enforcement of the injunction pending appeal. And yet, for whatever reason, the district court has not ruled on that motion. Regardless of the basis for the district court’s decision, we must consider Defendants’ arguments in light of Valentine, and, for three independent reasons, conclude that Defendants are likely to succeed on appeal.
First, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984), prohibits the injunction imposed by the district court. As this court explained in Valentine, a district court cannot enjoin a state facility to follow state law. Valentine, 2020 WL 1934431, at *4. Yet that is exactly what the district court did here. It concluded that “Defendants do not appear to be following” their own policy statements. Dist. Ct. Order at 10. For instance, “despite taking some steps to deter the spread of the virus, [RCC] has not effectively implemented the [Department of Correction] policies that require staff members and orderlies to wear masks and other [personal protective equipment] to protect the prison population, including the Plaintiff.” Id. at 11. The court further determined that RCC “failed to meaningfully implement social-distancing procedures and other measures aimed at thwarting the spread of the coronavirus.” Id. The court therefore ordered Defendants to comply with “their own internal policies” and “implement social
4

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No. 20-30276
distancing practices to limit the spread of COVID-19.” Id. at 13–14. Pennhurst forbids this.
Plaintiff contends the court’s injunction does not run afoul of Pennhurst because it is intended to correct constitutionally deficient medical care. The court did not so express itself, and in any event, the essence of Pennhurst is that a federal court lacks jurisdiction to sit as a super-state executive by ordering a state entity to comply with its own law.
Second, the district court’s analysis falls woefully short of satisfying either the objective or subjective requirements of Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970 (1994). We do not question that COVID-19 presents a risk of serious harm to those confined in prisons, nor that Plaintiff, as a diabetic, is particularly vulnerable to the virus’s effects. But, for purposes of resolving Plaintiff’s Eighth Amendment claim, we are not tasked with resolving whether, absent RCC’s precautionary measures, the COVID-19 pandemic presents a substantial risk of serious harm to prisoners like Plaintiff. Rather, the question here is whether the Eighth Amendment requires RCC to do more than it has already done to mitigate the risk of harm. The district court’s laconic analysis provides little basis for concluding that RCC’s mitigation efforts are insufficient. Indeed, because the district court made few (if any) factual findings, it left no reviewable basis to conclude that the measures implemented by Defendants are constitutionally deficient.2 Plaintiff cites no precedent supporting a contrary conclusion, and we are aware of none.
Even assuming that Plaintiff’s testimony somehow satisfies Farmer’s objective requirement, the district court cited no evidence establishing that
2 Warden Robert Tanner, the Warden of RCC, offered a declaration that blunts many (if not all) of Plaintiff’s concerns, giving us further cause to doubt that Plaintiff has come close to satisfying the “extremely high standard” of deliberate indifference. Cadena v. El Paso Cty., 946 F.3d 717, 728 (5th Cir. 2020).
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Defendants subjectively believed that the measures they were (and continue) taking were inadequate. If anything, the record proves just the opposite. Defendants point to a plethora of measures they are taking to abate the risks posed by COVID-19, from providing prisoners with disinfectant spray and two cloth masks to limiting the number of prisoners in the infirmary lobby and painting markers on walkways to promote social distancing. Plaintiff’s own counsel conceded at the April 7 evidentiary hearing that “everyone here is trying their very, very best to make sure that nobody gets sick at [RCC].” The district court’s analysis resembles the analysis we condemned in Valentine, where the district court had treated inadequate measures as dispositive of the defendants’ mental state. “Such an approach,” we explained, “resembles the standard for civil negligence, which Farmer explicitly rejected.” Valentine, 2020 WL 1934431, at *4.
In opposing this stay, Plaintiff now asserts, contrary to the above-quoted statement, that RCC’s measures in fact demonstrate deliberate indifference. Plaintiff’s evidence is no different, however, and indeed, Defendants have been heightening their efforts to contain the virus. Although the virus has spread within RCC, given the many prevention measures RCC has taken, an increase in infection rate alone is insufficient to prove deliberate indifference.
Third, the district court’s exhaustion analysis under the Prison Litigation Reform Act runs counter to Supreme Court precedent. The district court acknowledged that Plaintiff failed to exhaust administrative remedies. It nonetheless excused Plaintiff, reasoning that “the interests of justice” compelled it to act on an emergency basis. See Johnson v. Ford, 261 F. App’x 752, 755 (5th Cir. 2008). As this court explained in Valentine, such an approach is out-of-step with Supreme Court precedent, see Valentine, 2020 1934431, at *6–7, and this court has disavowed the “interests of justice”
6

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exception embraced in Johnson, see Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (holding that Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998), which Johnson relied on, was “tacitly overruled and is no longer good law to the extent it permits prisoner lawsuits challenging prison conditions to proceed in the absence of pre-filing administrative exhaustion”). It must be acknowledged that Superintendent LeBlanc issued an order on March 23 temporarily suspending the administrative deadlines for replying to grievances, and such order may have affected the “availability” of exhaustion. But Plaintiff makes no effort to explain the impact of that order on his refusing to file a grievance or on the way in which it would have been processed. The record, moreover, indicates that grievances are currently being processed within 48 hours. Dist. Ct. Order at 6 n.3.
For at least these three, independent reasons, 3 we conclude that Defendants have demonstrated a substantial likelihood of success on the merits.
Turning to the second stay factor, Defendants have shown that they will be irreparably injured absent a stay. “When the State is seeking to stay a preliminary injunction, it’s generally enough to say ‘[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’” Valentine, 2020 WL 1934431, at *4 (quoting Maryland v. King, 567 U.S. 1301, 133 S. Ct. 1, 3 (2012)). The Louisiana Legislature assigned the prerogatives of prison policy to DPSC. See LA. STAT. § 36:401. “The district court’s injunction prevents the State from
3 Defendants also argue that they are likely to succeed on appeal “because the claims upon which the injunctive relief were granted are not pleaded in this lawsuit.” We offer no opinion on this argument at this stage of the appeal.
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effectuating the Legislature’s choice and hence imposes irreparable injury.” Valentine, 2020 WL 1934431, at *4.4
As if that weren’t enough, the Supreme Court has repeatedly warned that “it is ‘difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.’” Woodford v. Ngo, 548 U.S. 81, 94, 126 S. Ct. 2378, 2388 (2006) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491–92, 93 S. Ct. 1827, 1837 (1973)). Here, the district court invaded Louisiana’s interests by requiring Defendants to create a plan within five days “to ensure the implementation of proper hygiene practices in the dormitory in which Plaintiff is assigned,” “to implement social distancing practices to limit the spread of COVID-19,” and “to minimize Plaintiff’s exposure to possible infected persons while visiting infirmary and cafeteria areas of the prison.” Dist. Ct. Order at 14. The harm to Louisiana’s interests is “particularly acute because the district court’s order interferes with the rapidly changing . . . approach that [DPSC] has used to respond to the pandemic so far.” Valentine, 2020 WL 1934431, at *5. In light of these concerns, the second factor weighs in Defendants’ favor.
The remaining two factors—balance of the harms and the public interest—likewise weigh in favor of staying the district court’s injunction. COVID-19 unquestionably poses risks of harm to all Americans—particularly those like Plaintiff who have underlying health conditions. “But the question
4 See also In re Abbott, 954 F.3d 772, 792 (5th Cir. 2020) (“As Jacobson repeatedly instructs, . . . if the choice is between two reasonable responses to a public crisis, the judgment must be left to the governing state authorities. ‘It is no part of the function of a court or a jury to determine which one of two modes [i]s likely to be the most effective for the protection of the public against disease.’ . . . Such authority properly belongs to the legislative and executive branches of the governing authority.” (second alteration in original) (quoting Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 30, 25 S. Ct. 358, 363 (1905))).
8

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is whether Plaintiff[] has shown that [he] will suffer irreparable injuries even after accounting for the [DPSC’s] protective measures . . . . Neither the Plaintiff[] nor the district court suggest the evidence satisfies that standard. And ‘[b]ecause the State is the appealing party, its interest and harm merge with that of the public.’” Id. (emphasis in original) (quoting Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017)).
Because Defendants have satisfied all four stay factors, their motion to stay the preliminary injunction pending appeal is GRANTED. STEPHEN A. HIGGINSON, Circuit Judge, concurring in the judgment:
I concur in the court’s stay order because I agree that the Appellants have demonstrated a substantial likelihood of success on their claim that Marlowe failed to exhaust his administrative remedies. It is undisputed that Marlowe did not file a grievance with the prison until several days after he filed his motion with the district court. See Valentine v. Collier, -- F.3d --, No. 20-20207, 2020 WL 1934431, at *7 (5th Cir. Apr. 22, 2020) (Higginson, J., concurring in judgment). Though Marlowe now argues that Appellants’ suspension of the grievance deadline process renders the prison’s administrative remedies “unavailable,” the district court was apparently presented with this evidence and still came to the conclusion that the prison is required to adjudicate Marlowe’s grievance by May 7, 2020. In their request for a stay, the Appellants do not dispute that May 7, 2020 is the deadline for their response. Should the prison fail to adjudicate Marlowe’s grievance by May 7, 2020, there may well be an argument that the administrative grievance process is “unavailable.” See Ross v. Blake, 136 S. Ct. 1850, 1859 (2016).
Finally, this order does not foreclose Marlowe, a diabetic, from continuing to seek relief through other appropriate channels, such as the state parole process. Marlowe’s September 2019 application for commutation, which
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appears to be pending, includes over 100 pages of exhibits and letters that purport to show that he has been a model prisoner while in the custody of the Louisiana Department of Corrections.5
5 Although we respect that it is the exclusive prerogative of the Louisiana Pardon and Parole Board to conclude if this evidence demonstrates that he is entitled to relief, all judges on this panel concur that the clemency petition appears well-supported.
10

 
 Case 3:20-cv-00832-E Document 89 Filed 04/29/20 Page 1 of 5 PageID 1696

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, et al., on their own and on behalf of a class of similarly situated persons,

Civil Action No. 3:20-cv-00832

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity, DALLAS COUNTY, TEXAS,

Respondents/Defendants.

PLAINTIFFS’ ADVISORY REGARDING STATISTICAL REPORTS BY THE TEXAS COMMISSION ON JAIL STANDARDS

Under Rules 201(b)(2), 803(8), and 902(5) of the Federal Rules of Evidence, Oscar

Sanchez and the other plaintiffs (Sanchez Plaintiffs) submit the following advisory regarding

statistical reports that the Sanchez Plaintiffs presented during testimony of Deputy Chief Fredrick

Robinson of the Dallas County Sheriff’s Office and Patrick Jones, Vice President for Correctional

Health Services at the Parkland Health and Hospital System, on April 23 and 24, 2020:

Dallas County Jail’s low quarantine rate (Plaintiffs’ Exhibit 12). During cross-

examination of Chief Robinson on April 23, the Court admitted a report by the Texas Commission

on Jail Standards (TCJS) on, among other things, the numbers of inmates (1) who tested positive

for COVID-19 and (2) who the county jails in Dallas, Bexar, and Harris Counties and state-wide

had separated from general populations in order to quarantine them as of April 22, 2020. See 4-

23-20 Tr. 19:10-29:25 (Robinson); see 4-24-20 Tr. 117:13-121:6 (P. Jones) (testifying regarding

Plaintiffs’ Exhibit 12). The Court overruled hearsay objections to Plaintiffs’ Exhibit 12 and

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admitted it conditionally, subject to further proof of authenticity.1 4-23-20 Tr. 23:20-21. The exhibit should now be admitted for all purposes, as it is self-authenticating, it is not hearsay, and it is a public record that is not subject to exclusion as hearsay.
Authenticity. A “publication purporting to be issued by a public authority” like Plaintiffs’ Exhibit 12—which on its face bears the seal of the TCJS, displays the title “TCJS COVID-19 Form A”, and appears on the official “state.tx.us” domain2—is “self-authenticating”. Fed. R. Evid. 902(5); see Rychorcewicz v. Welltec, Inc., No. 4:16-cv-00002, 2018 WL 3559131, at *7 (S.D. Tex. June 22, 2018) (collecting cases), aff’d, 768 Fed. App’x 252 (5th Cir. Apr. 18, 2019). The Court should overrule the authenticity objection to Plaintiffs’ Exhibit 12.
Hearsay. Nor does Plaintiffs’ Exhibit 12 run afoul of the hearsay rule, for at least two reasons: (1) because it qualifies as a party admission—and therefore “not hearsay”—under Rule 801(d)(2) and because (2) it satisfies the “Public Records” exception for a “record or statement of a public office” under Rule 803(8). See Nat’l Urban League, Inc. v. Urban League of Greater Dallas & N. Cent. Texas, Inc., No. 3:15-cv-3617, 2017 WL 4351301, at *6 (N.D. Tex. Sept. 29, 2017) (“Printouts from government web sites also satisfy the public records exception to the hearsay rule”). The Court should also overrule any remaining hearsay objection to Plaintiffs’ Exhibit 12.
Dallas County Jail’s underperformance in reducing detainee population. TCJS statistics regarding Dallas County’s underperformance relative to peer counties in reducing its jail population warrant inclusion in the record as well. The statistics show that the Dallas County Jail
1 See Fed. R. Evid. 104(b) (“The court may admit the proposed evidence on the condition that the proof be introduced later.”). 2 TCJS updates the TCJS COVID-19 Form A report regularly. See https://www.tcjs.state.tx.us/wp-content/uploads/2020/04/TCJS_COVID_Report.pdf.
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underperformed during March 2020, when Defendants claimed they made good progress in reducing the number of detainees. See 4-23-20 Tr. 30:5-31:6 (Robinson).3 The Court “may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); Sec. & Exch. Comm'n v. Nelson, No. 5:05-CV-266-C, 2006 WL 8438721, at *1 (N.D. Tex. June 8, 2006) (“As Federal Rule of Evidence 201(d) states, ‘[a] court shall take judicial notice if requested by a party and supplied with the necessary information.’” The Court should take judicial notice of the statistics.
CONCLUSION The Sanchez Plaintiffs respectfully request the Court to overrule authenticity and hearsay objections to Plaintiffs’ Exhibit 12, to admit Plaintiffs’ Exhibit 12 into evidence unconditionally, to take judicial notice of statistics on Dallas County’s underperformance in reducing population at the Dallas County Jail, and to award the Sanchez Plaintiffs all other appropriate relief. Dated: April 29, 2020. Respectfully submitted,

___________________ AMERICAN CIVIL LIBERTIES FOUNDATION Andrea Woods* N.Y. Bar No. 5595509 Brandon Buskey* 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org

_____________________ ACLU FOUNDATION OF TEXAS Brian Klosterboer Texas. Bar No. 24107833 Adriana Piñon** Texas Bar No. 24089768 Andre Segura Texas Bar No. 24107112 5225 Katy Fwy., Suite 350 Houston, TX 77007 Tel: (713) 942-8146 Fax: (346) 998-1577

_/s/ Barry Barnett______ SUSMAN GODFREY L.L.P. Barry Barnett Texas Bar No. 01778700 8115 Preston Road, Suite 575 Dallas, TX 75225 (866) 754-1900 bbarnett@susmangodfrey.com
Michael Gervais* N.Y. Bar No. 5122890

3 Compare https://www.tcjs.state.tx.us/wp-content/uploads/2020/03/AbbreRptCurrent.pdf with https://www.tcjs.state.tx.us/wp-content/uploads/2020/04/AbbreRptCurrent.pdf.
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Case 3:20-cv-00832-E Document 89 Filed 04/29/20 Page 4 of 5 PageID 1699

Henderson Hill* N.C. Bar No. 18563 201 W. Main St. Suite 402 Durham, NC 27701 (919) 682-9563 hhill@aclu.org Amy Fettig* D.C. Bar No. 484883 915 15th Street N.W., 7th Floor Washington, D.C. 20005 (202) 548-6608 afettig@aclu.org

_____________________ CIVIL RIGHTS CORPS Katherine Hubbard*** D.C. Bar No. 1500503 Elizabeth Rossi* D.C. Bar No. 1500502 1601 Connecticut Ave NW, Suite 800 Washington, D.C. 20009 (202) 894-6126 katherine@civilrightscorps.org elizabeth@civilrightscorps.org

1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 (310) 789-3100 mgervais@susmangodfrey.com
_____________________ NEXT GENERATION ACTION NETWORK Alison Grinter Texas Bar 24043476 Kim T. Cole Texas Bar No. 24071024 1808 South Good Latimer Expressway Dallas, TX 75226 (214) 704-6400 agrinter@thengan.com kcole@thengan.com

ATTORNEYS FOR PETITIONERS/PLAINTIFFS *admitted pro hac vice **N.D. Texas admission application forthcoming *** pro hac vice application forthcoming

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was served via the Court’s CM/ECG system on all counsel registered with that system, and via email, on April 29, 2020.
/s/ Barry Barnett Barry Barnett

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, et al., on their own and on behalf of a class of similarly situated persons,

Civil Action No. 3:20-cv-00832

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity, DALLAS COUNTY, TEXAS,

Respondents/Defendants.

ORDER REGARDING STATISTICAL REPORTS BY THE TEXAS COMMISSION ON JAIL STANDARDS

Before the Court is the Plaintiffs’ Advisory Regarding Statistical Reports by the Texas

Commission on Jail Standards. Having considered the record and the submissions of the parties,

the Court overrules the authentication and hearsay objections to Plaintiffs’ Exhibit 12, admits

Plaintiffs’ Exhibit 12 into evidence for purposes of the temporary restraining order proceedings

that commenced in this case on April 21, 2020, and takes judicial notice of TCJS statistics

regarding changes in jail populations between March 1, 2020 and April 1, 2020.

SO ORDERED this ___ day of _____, 2020.

____________________________________ ADA BROWN UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, et al., on their own and on behalf of a class of similarly situated persons,

Civil Action No. 3:20-cv-00832

Petitioners/Plaintiffs, v.

DALLAS COUNTY SHERIFF MARIAN BROWN, in her official capacity, DALLAS COUNTY, TEXAS,

Respondents/Defendants.

ORDER REGARDING STATISTICAL REPORTS BY THE TEXAS COMMISSION ON JAIL STANDARDS

Before the Court is the Plaintiffs’ Advisory Regarding Statistical Reports by the Texas

Commission on Jail Standards. Having considered the record and the submissions of the parties,

the Court overrules the authentication and hearsay objections to Plaintiffs’ Exhibit 12, admits

Plaintiffs’ Exhibit 12 into evidence for purposes of the temporary restraining order proceedings

that commenced in this case on April 21, 2020, and takes judicial notice of TCJS statistics

regarding changes in jail populations between March 1, 2020 and April 1, 2020.

SO ORDERED this ___ day of _____, 2020.

____________________________________ ADA BROWN UNITED STATES DISTRICT JUDGE

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 Case 3:20-cv-00832-E Document 99 Filed 05/22/20 Page 1 of 38 PageID 2933

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

OSCAR SANCHEZ, et al., on their own

§

and on behalf of a class

§

of others similarly situated,

§

§

Plaintiffs/Petitioners,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, et al.,

§

§

Defendants/Respondents.

§

CIVIL ACTION NO. 3:20-cv-00832-E

MEMORANDUM OPINION AND ORDER

Following a four-day evidentiary hearing on Plaintiffs’/Petitioners’ (“Plaintiffs”) Motion

for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus (“the

Motion”) (Doc. No. 2), the Court issued a brief order on April 27, 2020, denying the Motion. This

opinion is to explain the Court’s reasons for denying the requested relief.

I. Factual and Procedural Background

The United States and the Northern District of Texas are in the midst of a pandemic. As of

today’s date, coronavirus disease, also known as COVID-19, has resulted in the deaths of 95,883

Americans.1 COVID-19 has no known cure or vaccine, and science about the virus that causes the

disease is in its infancy. In this case, Plaintiffs and Defendants disagreed about the conditions

inside the Dallas County Jail (“the jail”) and the treatment of its inmates. They disagreed about

what, if any, relief is appropriate for this Court to grant in response to the Motion. What no one

disagreed about is the seriousness of the COVID-19 pandemic.

1 https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html. 1

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This Court is deeply concerned about the spread of COVID-19 at the jail. Evidence showed the number of detainees who tested positive for the disease is rising. Balancing the rights of the inmates with the safety of the Dallas community and the community beyond Dallas is a difficult task; however, Plaintiffs have not met their burden to show they are legally entitled to the emergency relief they seek, and for the reasons set forth below, the Court denies their request for relief.
a. General Information about Inmates and COVID-19 at the Dallas County Jail On March 9, 2020, the jail had 5,987 inmates. The jail has the capacity to hold 7,414
inmates. On the last day of the Court’s hearing, that population had been reduced by the recent release of over a thousand inmates, resulting in 4,829 inmates remaining in jail.
On March 25, 2020, the jail had its first inmate test positive for COVID-19. As of April 22, 2020, 127 of the 4,829 inmates in the jail tested positive for COVID-19. Approximately 474 inmates are being held in quarantine and are currently being monitored for COVID-19 symptoms. As of the writing of this opinion, there have been no inmate deaths related to COVID-19. Fourteen jail employees have tested positive for COVID-19, and as of the writing of this opinion, there have been no jail employee deaths related to COVID-19.
Of the 4,829 inmates, approximately 4,105 of them are detained on felony offenses. This Court has reviewed, in camera, the National Crime Information Center records for each inmate remaining in the jail. With few exceptions, all inmates being held, whether on felony charges or misdemeanor charges, have prior convictions involving crimes of violence or prior convictions that may cause public safety concerns if the inmates were to be released.
Fewer than 200 inmates are being held on misdemeanor charges. There are typically only 5 to 20 inmates charged with non-violent, non-DWI misdemeanor offenses at any time in the jail.
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Testimony during the hearing showed there are no inmates being held in jail on Class C misdemeanors, such as traffic tickets.
b. Plaintiffs File Suit Due to COVID-19 Concerns in the Jail Plaintiffs are detainees at the jail. Due to cases of the highly contagious COVID-19 at the jail, on April 9, 2020, they filed a Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief against Defendants Dallas County Sheriff Marian Brown and Dallas County, Texas. The State of Texas; the Honorable Greg Abbott, Governor of Texas; and the Honorable Ken Paxton, Attorney General of Texas, moved to intervene as defendants, and the Court granted their motion. For clarity, the Court will refer to Sheriff Brown and Dallas County as “Defendants” and to the State parties as “Intervenors.” Plaintiffs contend the jail has failed to comply with public health guidelines to manage the outbreak of COVID-19 and cannot provide for their safety. Plaintiffs bring this action as a putative class action. They amended their initial pleading to add new Plaintiffs. They have filed a separate motion asking this Court to certify this action as a class action. There are twelve named Plaintiffs. Some of the named Plaintiffs have contracted COVID-19 and some named Plaintiffs are alleged to have at least one condition that makes them medically vulnerable under Plaintiffs’ definition of what constitutes a “medical vulnerability” during this pandemic. Some of the named Plaintiffs are pre-adjudication detainees. They seek to represent a class of all current and future detainees in pretrial custody. The other named Plaintiffs are in jail post-adjudication and seek to represent a class of all current and future detainees in postadjudication custody. Both proposed classes include a subclass of persons Plaintiffs contend are medically vulnerable by reason of age or medical condition.
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c. Plaintiffs’ Medically Vulnerable List versus CDC’s List of Conditions Creating Higher Risk

Plaintiffs’ definition of what constitutes “medically vulnerable” is significantly broader

than the Centers for Disease Control and Prevention’s (CDC) list of conditions creating a higher

risk of COVID-19 infection.

CDC’s List of Conditions Leading to Higher Risk of Severe Illness2

Plaintiffs’ Medically Vulnerable List3

People 65 years of age or older

People 50 years of age or older

People of all ages with chronic lung disease People of all ages with moderate to severe asthma People of all ages with serious heart conditions People of all ages who are immunocompromised People of all ages with chronic kidney disease undergoing dialysis People of all ages with liver disease

People of all ages with lung disease
People of all ages with asthma
People of all ages with heart disease
People of all ages who are immunocompromised
People of all ages with chronic kidney disease (including hepatitis and dialysis patients) People of all ages with chronic liver disease

Not listed by CDC

People of all ages with diabetes

Not listed by CDC

People of all ages with epilepsy

Not listed by CDC

People of all ages with hypertension

Not listed by CDC Not listed by CDC

People of all ages with blood disorders (including sickle cell disease) People of all ages with inherited metabolic disorders

Not listed by CDC

People of all ages who have had strokes

2 People Who Are at Higher Risk for Severe Illness. https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html. 3 Plaintiffs’ First Amended Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief (Doc. No. 39) at 13.
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Not listed by CDC

People of all ages who have “developmental delay”4

People of all ages who are severely obese and have a body mass index of 40 or more Not listed by CDC

People having a body mass index of 40 or more
People having any other condition identified either now or in future as being a particular risk for severe illness/or death caused by COVID-19.5

II. Plaintiffs’ Requests for Relief

Plaintiffs seek relief from the Court through two different vehicles. First, they seek “the

rapid release from custody of people most vulnerable to COVID-19”6 through a petition for writ

of habeas corpus under 28 U.S.C. § 2241, starting with the medically vulnerable subclass

members.7 The relief Plaintiffs request includes the release of all current and future medically

vulnerable subclass members, whether pre- or post-adjudication, absent proof of “judicially-

recorded findings by clear and convincing evidence that the individual poses such a serious risk of

flight or danger to others that no other conditions can mitigate.” In addition, Plaintiffs seek the

release via habeas, or transfer to home confinement, of additional class members, including those

who are not medically vulnerable, as needed to ensure that people who remain incarcerated in the

jail are under conditions consistent with CDC and public health guidance to prevent the spread of

COVID-19. The group Plaintiffs seek to release to the community includes those currently

infected with COVID-19. As stated by Plaintiffs’ counsel at the hearing, “Plaintiffs aren’t

4 This was defined by Plaintiffs during the hearing as “a developmental disability such that they have trouble understanding information or practicing preventive measures, or difficulty communication [sic] symptoms.” Transcript of TRO Hearing April 22, 2020, Vol 2 p. 58 lines 19-22. 5 Plaintiffs’ requested relief evolved somewhat over the pendency of their Motion. This list is taken from Plaintiffs’ second amended proposed order granting their Motion, filed with the Court after an evidentiary hearing on the Motion concluded. 6 Doc. No. 39 at p. 27. 7 One of the named Plaintiffs, Mr. Ideare Bailey, who contracted COVID-19, has been released from the jail since the lawsuit was filed. The parties disagreed about whether he was still an appropriate representative of the putative preadjudication class. Because the Court has denied the relief requested by Plaintiffs’ Motion, it is not necessary to determine this issue at this time.
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excluding people from our request for release on the basis of being positive for COVID-19, but we recognize that there would have to be a discharge plan in place.”8
Plaintiffs also seek injunctive and declaratory relief under 42 U.S.C. § 1983 on behalf of the proposed classes. The pre-adjudication Plaintiffs allege Defendants violated their Fourteenth Amendment rights. They claim the inmates’ conditions of confinement are unsafe and constitute punishment. The post-adjudication Plaintiffs allege violations of their rights under the Eighth Amendment to be free from cruel and unusual punishment.
On the same day they instituted this action, Plaintiffs filed their Motion for Temporary Restraining Order (TRO), Preliminary Injunction, and Writ of Habeas Corpus seeking emergency relief. Plaintiffs ask the Court to provisionally certify the pre- and post-adjudication classes and medically vulnerable subclass. They also ask the Court to order Defendants to provide, within six hours, a list of all individuals detained in the jail who are age 50 or older or who have lung disease, heart disease, chronic liver or kidney disease, diabetes or other endocrine disorders, hypertension, a compromised immune system, blood disorders, inherited metabolic disorders, history of stroke, “a developmental disability such that they have trouble understanding information or practicing preventive measures, or difficulty communication [sic] symptoms,” a BMI of 40 or more, or any other condition identified either now or in the future as being a particular risk for severe illness/or death caused by COVID-19.
They also ask the Court to order Defendants to release, within 24 hours of the list’s submission, all persons on the list who are in jail awaiting transfer to a treatment facility as a
8 Transcript of TRO Hearing April 22, 2020, Vol 2 p. 58 lines 19-22. 6

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condition of probation, and when space becomes available at the treatment facility, that those persons shall be ordered to report to the treatment provider.
Plaintiffs propose the following process for the release of the remaining people identified as medically vulnerable: Defendants will have five days to object to the release of anyone on the list only on grounds they are flight risks or a danger to the community. The parties must meet and confer within 24 hours of the Plaintiffs’ receipt of the objections. If they cannot reach an agreement regarding release of certain detainees, the Court will review the information and issue habeas relief as it deems appropriate. In addition, Plaintiffs ask the Court to order Defendants to provide released persons with educational resources on COVID-19.
In the Motion, Plaintiffs also seek injunctive relief under § 1983 in the form of a TRO or preliminary injunction. They ask the Court to order Defendants to immediately take steps to mitigate ongoing threats to health and safety, such as providing unrestricted access to cleaning supplies for each housing area, providing sufficient personal protective equipment (PPE) for all detainees and staff, cleaning and sanitizing common surfaces in housing areas, bathrooms, and other areas, cleaning and sanitizing bunks between occupants, providing detainees with up-to-date information about transmission and risks of COVID-19, and establishing protocols for detainees to report symptoms and receive health screenings.
Plaintiffs also ask the Court to order a plan which will be overseen by a qualified public health expert who shall be authorized to make unannounced visits to the jail. The plan will outline (a) any additional, specific mitigation efforts needed to prevent, to the degree possible, contraction of COVID-19 by all class members not immediately released; (b) a housing and/or public support plan for any released class members who do not readily have a place to self-isolate for the period of time recommended by the CDC; and (c) an evaluation of whether the release of the medically
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vulnerable subclass members allows those who remain in jail to adequately social distance and whether other categories of prisoners must be released in order to provide for compliance with CDC guidelines, particularly social distancing. Plaintiffs ask the Court to order Defendants to abide by this plan. Further, Plaintiffs ask the Court to order continued weekly reporting by Defendants of the people in custody at the jail with the medical conditions listed above.
For a variety of reasons, Defendants and Intervenors oppose Plaintiffs’ Motion seeking emergency relief. At the evidentiary hearing, the Court heard conflicting evidence about the extent to which public health protocols are being followed in the jail.
III. Plaintiffs’ Evidence of Jail Conditions and Inmate Treatment at Dallas County Jail9
a. Testimony from Mr. David Jones Former inmate Mr. David Jones testified for Plaintiffs and described the state of the jail from March 8, 2020 to April 3, 2020. To put this timeframe in perspective, on March 11, 2020, the first presumptive positive test for COVID-19 was confirmed in Dallas County.10 On March 13, 2020, Governor Abbott declared a statewide disaster for Texas counties.11 On March 15, 2020, the
9 After the evidentiary hearing, Plaintiffs filed an “Advisory Regarding Statistical Reports by the Texas Commission on Jail Standards” (Doc. No. 89). In this filing, Plaintiffs ask the Court to overrule certain objections to Plaintiffs’ Exhibit 12 and admit it into evidence unconditionally. Plaintiffs also ask the Court to take judicial notice of statistics regarding reduction of the jail population and to award them “all other appropriate relief.” The Court’s records show Exhibit 12 was unconditionally admitted into evidence at the hearing. Accordingly, their request concerning the exhibit is denied as moot. All other relief sought in Doc. No. 89 is denied. 10 "First 'presumptive positive' cases of COVID-19 confirmed in Dallas, Tarrant counties", https://www.wfaa.com/article/news/health/coronavirus/dallas-county-announces-first-presumtive-positive-case-ofcoronavirus/287-b49f608a-63db-4a98-8d92-88fc745edd8b. (last visited May 22, 2020). 11 https://www.texastribune.org/2020/03/13/texas-coronavirus-cases-state-emergency-greg-abbott/ (last visited May 18, 2020).
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first COVID-19 death in North Texas occurred. 12 On March 25, 2020, the first Dallas County Jail inmate tested positive for COVID-19.13
Mr. Jones was candid about his familiarity with the jail, having, as he described it, “a long history” of criminal problems in Dallas County.14 Mr. Jones walked through his experiences at the jail from the time he was booked in on March 8, 2020, until he was discharged on April 3, 2020. His temperature was taken as he was booked into the jail, but he said he received no advice about social distancing and said inmates were instructed to “stay close,” about a foot away from one another, while walking. Mr. Jones described how the telephones inmates frequently use were not sanitized between uses and that the inmates were largely responsible for cleaning the jail areas. According to Mr. Jones, inmates were provided four small bars of soap for free each week, and could buy liquid body wash from the commissary, but no disinfecting wipes were provided or available. Inmates were provided free laundry services and usually received clean clothing weekly and clean bedding twice a month, but Mr. Jones testified that at one point, he had to wait fourteen days for clean clothes. Mr. Jones also said he was not given instructions on how to protect his health, and that an inmate who had been coughing and who had put in a request for medical attention had to wait several days to be seen by medical professionals. Eventually, Mr. Jones was put in a single cell where his temperature was taken, and he was given a face mask. Mr. Jones did not say whether the inmate who had been coughing was subsequently diagnosed with COVID-19.
12 https://www.nbcdfw.com/news/coronavirus/arlington-resident-dies-from-coronavirus-first-in-northtexas/2333046/ (last visited May 18, 2020). 13 TRO hearing transcript April 24, 2020, at p. 109. 14 Dallas County public records show Mr. Jones was being held in jail on a felony Assault Family Violence- Impeding Breathing/Circulation charge. A grand jury declined to indict Mr. Jones for this offense, and he was released from jail that same day. During the hearing, Mr. Jones referred to having been arrested numerous times to explain his ability to hand draw a map of the jail from memory. He has felony convictions for Burglary of a Habitation and Attempted Burglary of a Habitation as well as other misdemeanor convictions.
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Mr. Jones said inmates frequently watched the news and were aware of the COVID-19 pandemic. On April 3, 2020, Mr. Jones was released from jail by an officer fully dressed in PPE, including goggles and gloves. Mr. Jones himself wore a face mask as he left the jail.
b. Testimony of Officer Emmanuel Lewis Plaintiffs also offered the testimony of Officer Emmanuel Lewis, who had served as a Detention Services Officer (DSO) at the jail for the past seven months. Officer Lewis worked only in the South Tower of the jail, so his experience in North and West towers of the jail was extremely limited. He had last been on the job April 18, 2020, three days before the hearing. Officer Lewis testified about the sleeping arrangements in the “pods” that held up to 64 inmates, some of which were full and some of which were not completely full. The inmates eat, sleep, and live in these pods. The inmates sleep in bunk beds, and Officer Lewis said he was unaware of any efforts to direct inmates to not sleep “head to head.” Officer Lewis spoke of pods that had been closed because of a COVID-19 exposure. As for the pods that were open, Officer Lewis testified that before a shift change, sometimes after dinner, and near the end of his shift, the inmates were given access to mops, buckets, and disinfectant soaps to clean their living areas. Officer Lewis said that in the past few weeks the jail “ha[s] a lot of bleach available.” Officer Lewis also gave details about the anti-bacterial soaps used to spray down the tables but said he had not seen commonlytouched surfaces such as pay phones wiped down on a regular basis. Officer Lewis explained that since the jail is closed for in-person visits with inmates, other than for attorneys representing them, the inmates make frequent use of kiosks where inmates can sit and talk with people outside the jail for free by telephone or by video conference. He also described how “[lawyers] have been doing a lot of the video visits.”
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Officer Lewis shared that he was recently provided, at no cost to him, PPE such as masks and gloves, and that they are replaced as needed, but that he has not been given any written instructions on how to deal with COVID-19 issues or how to detect COVID-19 exposure or symptoms. According to Officer Lewis, jail employees’ temperatures are taken before they begin working, and employees recently got “a huge thing” of disinfectant wipes to use in the pods. They also now have a big bottle of hand sanitizer for jail staff to use, and inmates can now ask DSOs to spray their hands with hand sanitizer spray. Officer Lewis said he has seen inmates washing their hands “a lot more recently” and that inmates can have extra bars of soap for free if they ask the DSOs.
Officer Lewis also supervised inmates who performed janitorial tasks, and he said the inmates receive both gloves and masks to use while they do their cleaning work. Additionally, all inmates now have face masks, which they wear when they are not eating. Recently the jail began using disposable trays to feed inmates.
Officer Lewis was not familiar with the specifics of the cleaning procedures for a pod when an inmate became symptomatic, but he stated he had seen some professional cleaning services spend a “good amount of time” cleaning. He further stated that he had seen other cleaning services that were not so thorough, which he described as being “there for like, two minutes, spraying a little bit around.” He agreed the jail’s actions in completely shutting down a pod after an inmate who resided there became symptomatic, and having the entire pod professionally cleaned afterwards, were “reasonable steps in response to COVID-19.”
c. Testimony of Dr. Robert Cohen Plaintiffs also presented testimony from a doctor who was a chief physician at one of the jails at Riker’s Island in New York. Amongst other topics discussed, Dr. Cohen testified about the
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CDC’s recent recommendation that members of the public wear face masks to prevent the spread of COVID-19. Dr. Cohen explained that N-95 masks are most needed for people taking care of patients known to have COVID-19. Dr. Cohen confirmed that non-N-95 masks are, however, “very helpful” in blocking the transmission of the virus. He spoke of the CDC’s recent change to its original recommendation that members of the public who do not work in the medical field did not need to wear face masks. The CDC now recommends that everyone wear face masks when in public.
When asked about why his definition of medically vulnerable was broader than the CDC’s, Dr. Cohen conceded that some of his selections were arbitrary, such as selecting age 50 and over to be included in the medically vulnerable category instead of the CDC’s age 65 and over. He stated, “[I]t is arbitrary. You could have—you know, you could have looked at 51; you could have looked at 64.” He was similarly vague about why he included people with hypertension in the list of medically vulnerable people. Dr. Cohen said people with hypertension who took medicine to keep their symptoms within a normal range should still be released from jail.
Dr. Cohen advocated for the release from jail of inmates who were currently COVID-19 positive. “In New York City, when people are symptomatic COVID-19 positive are released from the jail for—because they are medically vulnerable, they are—if they do not have a place to go, a home, they are provided with a hotel room and social services support.” He further explained that in New York City, the city paid for the hotel rooms for released COVID-19 inmates.
Dr. Cohen had never actually been inside the jail but opined that even if the jail were to follow all CDC guidelines, it would still not be enough to control the spread of COVID-19. Dr. Cohen theorized that only a mass release of inmates would do that. Dr. Cohen did not offer a specific number of inmates he believed should be released but said it “would probably be a
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substantial reduction.” Dr. Cohen’s primary concern was: “They’re not releasing medicallyvulnerable people, and there are too many people in the jail for them to provide physical distancing that is required to control the spread of the epidemic.” Dr. Cohen’s solution was for this Court to appoint an expert or experts to oversee the jail and to report back to the Court periodically.
d. Testimony of Mrs. Wykivia Bailey Mrs. Bailey testified that her husband, Plaintiff Ideare Bailey, was arrested April 5, 2020, for an alleged crime she described as a theft of an ATM. Mrs. Bailey said she overheard people coughing as she talked to her husband on the telephone from jail. Mr. Bailey is diabetic, and Mrs. Bailey was concerned that he was at increased risk for getting COVID-19. Mrs. Bailey became extremely worried when her husband bunked next to a man who was coughing and running a fever. She called an officer at the jail and was able to have her husband moved to a new location, away from the sick man. Mrs. Bailey reached out to Dallas County Pretrial Release Services and talked with a supervisor about getting a bond reduction for her husband. She was told that because of his prior criminal history, the judge denied Mr. Bailey’s bond reduction request.15 Mrs. Bailey subsequently met with the judge handling her husband’s case as well as with the elected District Attorney. After Mrs. Bailey’s meeting with them, they agreed to release Mr. Bailey on bond. Eventually Mr. Bailey did test positive for COVID-19, and as of the date of the hearing, he was at home recovering.
15 According to Dallas County public records, Mr. Ideare Bailey has been convicted of felony Aggravated Assault with a Deadly Weapon, felony Robbery, and felony Burglary of a Building.
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e. Testimony of Dallas County Jail Chief Frederick Robinson Plaintiffs called Chief Frederick Robinson, the Chief Deputy of the jail, as an adverse witness. Chief Robinson worked his way up through the ranks of the Dallas Sheriff’s Department for the last twenty-seven years. He is currently the Chief Deputy of Detention Services and is responsible for overseeing the daily jail operations in all three jail towers. He said there are about twenty sheriff’s deputies on staff and about 1,300 DSOs on staff. Chief Robinson testified about the written plan for managing COVID-19 in the jail, which was jointly authored by the Dallas Sheriff’s Department and the Parkland Health and Hospital System (“Parkland”). Chief Robinson also described how the jail has adopted the CDC’s interim guidance recommending best practices for preventing the spread of the COVID-19 in the jail. The Chief said the Dallas Sheriff’s Department provided all employees with a written handout of instructions about the need for social distancing. Chief Robinson also talked about walking throughout the jail and seeing fliers posted for both officers and inmates to see, offering CDC guidance related to COVID-19. The Chief expressed his opinion that social distancing was indeed possible with the current number of inmates in the jail, but difficult to enforce because “the only way to keep inmates six feet apart at all times would be to essentially lock them in place and take away their freedom of movement.” Chief Robinson said he asked his officers to try to enforce social distancing when moving inmates, and that the Dallas County Sheriff limited group activities to help maintain a social distance between inmates. Chief Robinson testified that in early March of 2020, he emailed every officer telling them how to social distance. He attached CDC guidelines to his email, to inform law enforcement personnel what they need to know about managing COVID-19.
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During his testimony, Chief Robinson walked through the processes involved from when inmates enter the facility until they are discharged. All inmates enter the jail through the sally port, where the inmates stand behind blue lines that are spaced six feet apart. Each inmate is given a face mask upon arrival. Once they enter the intake room, inmates are asked if they have been out of the country, if they have been in touch with anyone who has COVID-19, and whether they have any symptoms of COVID-19. Each inmate’s temperature is taken. If any of the questions raise concerns about exposure to COVID-19, the inmate is immediately taken to see a nurse for further assessment.
If, at any time, an inmate begins to show symptoms of COVID-19, the inmate is taken to see a nurse for an assessment, and Parkland health care workers provide any COVID-19 diagnoses and tests. Inmates are quarantined and tested if they exhibit COVID-19 symptoms. Symptomatic inmates are segregated from the general population, usually in single cells. For COVID-19 positive inmates with more severe symptoms, the hospital within the jail has negative pressure cells, referred to as Airborne Infection Isolation Rooms (AIIRs),16 which the CDC recommends. Once inmates no longer show COVID-19 symptoms, they are placed in a convalescent tank, usually for three weeks, until they test negative for COVID-19.
Chief Robinson said inmates who were in contact with other inmates confirmed to have COVID-19 are quarantined for fourteen days. If, during that fourteen-day period, one of the inmates tests positive for COVID-19, the fourteen-day quarantine period begins again.
Officers accompanying newly arriving inmates also have their temperatures taken when arriving at the sally port. No visitors, other than inmates’ attorneys, are currently allowed at the
16 https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html. (last visited May 19, 2020).
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jail. Chief Robinson spoke of inmates’ frequent use of computers to meet with their attorneys, but said some lawyers still visit inmates in person. In such a case, the lawyer’s temperature is taken before he or she is allowed into the jail. According to Chief Robinson, all persons who enter the jail have their temperatures taken, and anyone whose temperature is above 100.4 degrees is denied access.
After inmates are booked in, they are arraigned. Any inmate who has medical problems is taken to another floor of the jail for a medical assessment. As early as February 2020, symptomatic inmates were provided with face masks for protection of themselves and other inmates.
Chief Robinson discussed how outside cleaners, rather than inmates, professionally disinfect areas where COVID-19 positive inmates were present and said the cleaners disinfect according to CDC recommendations. He also addressed the PPE given to staff who are in contact with COVID-19 positive inmates. “They have a[n] N-95 mask, they have face shields, recently we have acquired goggles as well. And we also have gowns.” Chief Robinson said Parkland’s medical director provided a training video showing jail staff how to properly put on and wear the PPE. Staff working to clean laundry or to prepare food also wear face masks and gowns. The Chief said that inmate laundry and clothing washings had been increased to once a week, that Dallas County has enough cleaning supplies to provide to inmates, and that the cleaning supplies used have been approved by the jail commission and vetted by Parkland to be effective against COVID19.
Chief Robinson also addressed the jail’s efforts to use technology to keep the justice system moving. Parole hearings are now being done electronically, and the jail has developed a portal to help inmates interact with judges to request release or bond reductions. The portal allows court paperwork to be filed electronically and signed without requiring inmate movement. The Chief
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spoke of the collaborative efforts of Dallas County stakeholders to keep the courts functioning during the pandemic. “We have gotten support from, of course, our county commissioner, Commissioner Daniel, specifically Commissioner Price, who is always in our jail. He’s making sure we get what we need. And of course, the other commissioners, Commissioner Daniel, who also chairs our jail sanitation meetings. We get tremendous support from our commissioners. And, of course, from our judges as well.” Chief Robinson spoke of District Attorney John Creuzot’s ongoing efforts to “come up with ways to ensure that inmates who are charged with drug offenses, their charges are on hold until the results from the analysis come back so that way inmates can get out of jail until their analyses are returned.” Chief Robinson’s opinion was, with the jail’s current infrastructure and its current conditions, there was nothing more he could do to keep the inmates safe from COVID-19.
f. Dr. Ank Nikhawan Plaintiffs called Dr. Ank Nikhawan, an associate professor employed by University of Texas Southwestern Medical Center, who works at the jail as the lead infectious disease physician. At the request of the Civil Rights Corps, Dr. Nikhawan was encouraged to write a letter to Dallas County politicians and law enforcement leaders urging them to release inmates from the jail. The Civil Rights Corps provided the doctor with a pattern letter, which she revised and sent out in her capacity as a private citizen, to local stakeholders. In her letter, Dr. Nikhawan suggested releasing non-violent inmates and suggested the jail prioritize releasing inmates aged 50 or older and those having preexisting conditions such as cancer, diabetes, lung disease, asthma or chronic obstructive pulmonary disease, heart disease, or Human Immunodeficiency Virus (HIV). During her testimony, Dr. Nikhawan explained there was no specific data supporting the selection of people aged 50 or older, but said she generally believed older patients had a higher
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risk of complications of COVID-19. In Dr. Nikhawan’s opinion, social distancing was nearly impossible in a jail setting. In her letter, she warned that an outbreak in the jail had the potential to overwhelm the jail’s hospital system.
IV. Defendants’ Evidence of Jail Conditions and Inmate Treatment at Dallas County Jail
Defendants called Mr. Patrick Jones, the Vice-President for Correctional Health Services for Parkland Hospital, who has been assigned to the jail since 2012. Mr. Jones works in the jail full-time. He testified about the specifics of the Parkland Hospital health system that operates in the jail and the training their staff received regarding the prevention of COVID-19. Mr. Jones described the Parkland jail hospital system as being one of the better facilities in the United States.
The jail’s medical staff are trained by their licensures to deal with infectious diseases and this training is supplemented by information provided by the CDC. Mr. Jones testified the jail began implementing CDC recommendations late February and early March of 2020 and said Parkland continues to meet with jail staff to discuss COVID-19 issues.
Mr. Jones described the dual-screening system set up in the jail. People entering the jail are first screened as they enter the jail and receive secondary screening again by nursing staff as they enter the central intake room.
He said the jail hospital uses a clinical algorithm created by the infection prevention department, in coordination with the CDC and the Dallas County Health Department, to determine when it is appropriate to test an inmate for COVID-19. Mr. Jones stated the Parkland jail hospital does not have enough COVID-19 tests to provide a test for every person who enters and exits the jail, but said he felt “very comfortable with the number of tests that [the Parkland jail hospital] has
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for inmates exhibiting COVID-19 symptoms” and said they have a supply chain in place to obtain more COVID-19 tests as needed by the jail hospital.
Mr. Jones said clinicians within the jail are free to use their own judgment about when to give an inmate a COVID-19 test, even if the inmate does not exhibit multiple symptoms. COVID-19 tests are free to inmates, and posters have been hung in the jail calls and tanks notifying inmates of this fact. Inmates are not charged for medical care related to COVID-19.
Mr. Jones described what occurs when a medical staffer is called to see an inmate who believes he or she is experiencing COVID-19 symptoms. Mr. Jones confirmed Chief Robinson’s testimony about the PPE worn by such staff and explained that inmates who exhibit COVID-19 symptoms are moved to isolation, if they have not already been isolated. The staff member who screens the inmate for COVID-19 symptoms uses the clinical algorithm mentioned above to determine if the inmate should be tested for COVID-19. Until the test result is received, the inmate is removed from the general population and placed with other Persons Under Investigation (PUI), who are being monitored for signs of COVID-19. The PUIs remain together only until their COVID-19 test results come back, which Mr. Jones says typically takes a day.
If the inmate tests positive for COVID-19, his or her clinical status is assessed. Those inmates who are asymptomatic or who have mild symptoms are placed together with inmates experiencing similar symptoms. These inmates are examined twice daily by medical staff to make sure their symptoms are not progressing. If they do progress, care is intensified and if they need to be hospitalized, “we will make sure that happens immediately.” Mr. Jones said, “[I]f their health condition starts to deteriorate at all, then we will immediately move them to the hospital, or to a higher level of care than what we can offer at the jail.”
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He also described the special twenty-eight AIIRs used for inmates suspected of having an airborne illness like COVID-19 or tuberculosis, and he discussed how frail, elderly inmates are housed in a special area “more conducive to those individuals.”
Mr. Jones testified that the medical staff responds to urgent situations immediately and monitors jail staff for COVID-19 symptoms. Jail staff exhibiting COVID-19 symptoms are evaluated using the same clinical algorithm as the inmates and may be furloughed for safety. The jail does not provide COVID-19 tests for jail staff, but if the COVID-19 symptoms appear to be a result of workplace exposure, the jail staff member is furloughed with pay.
Inmates who have been in close contact with an inmate who has tested positive for COVID-19 become PUIs and are quarantined for fourteen days. If, after the quarantine has expired, none of the PUIs have developed the disease, they are returned to the general population. Each group of PUIs is grouped together with other inmates based on the date of their exposure. The monitored populations are not mixed, so no new PUIs, with different exposure dates, are added to the existing PUI group, so the fourteen-day quarantine clock does not have to be reset for the inmates currently being quarantined.
Mr. Jones also testified about a chart Parkland generated on March 25, 2020 that crossreferenced information from inmates’ existing medical records with a list of co-morbidities associated with poor outcomes for inmates with COVID-19 infections. This list of names was given to Dallas County judges so they could review those inmates’ cases to see if they would be appropriate for release.
Mr. Jones also described the general changes made in the jail since the beginning of the pandemic:
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So the jail staff has—we, Parkland, have asked for specific things to happen within the jail. The first thing that we asked was that screening occur there at the sally port as people entered the jail facility itself. And screening does occur there now. A plan was put in place to—to accommodate that screening. We, Parkland, further asked for a—an area to place people who became positive in that screening during the intake process. Security formulated a plan to accommodate that. So as people were booked in, they went through the booking process, which includes appearing before the magistrate, you know, the fingerprinting, all of that. They made adjustments for that process so there would be a low physical contact process. Recommendations also came out that all employees should be screened as they entered into the jail facility and that has occurred. PPE has also been recommended to be worn by all within the facility, and the sheriff’s department has implemented measures that all persons entering the facility shall have—shall be—shall wear PPE as they move about the facility.
V. Applicable Law
a. Writ of Habeas Corpus Under 28 U.S.C. § 2241
The Court will begin by addressing Plaintiffs’ request for habeas relief. Plaintiffs argue
that a petition for writ of habeas corpus under 28 U.S.C. § 2241 is an appropriate vehicle to remedy
their alleged constitutional violations. Under § 2241, this Court has jurisdiction to grant a writ of
habeas corpus to a prisoner in custody in violation of the Constitution or laws or treaties of the
United States. 28. U.S.C. § 2241(c)(3); Jones v. Cunningham, 371 U.S. 236, 236 (1963).
Defendants and Intervenors contend that § 2241 does not provide a remedy in this situation
and contend that, even if it did, Plaintiffs did not exhaust available remedies, a prerequisite to
seeking the writ. They also contend habeas relief is not available for class members.
As an initial matter, during closing arguments in the hearing on the Motion, this Court
expressed concerns about whether it was appropriate for this Court, rather than the criminal judges
already in charge of these cases, to look at each case individually and determine whether an inmate
was suitable for release or should be held because of public safety concerns over the Defendants’
objections. Plaintiffs responded, “So the next bucket is, we decide which [inmates objected to by
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Defendants] we’re going to contest that we think the decision that Your Honor should make would be that the risk of harm to those individuals outweighs the potential risk to the community. And you don’t need a whole bunch of people to come in and talk about that.”17
This Court disagrees. Many of the inmates who are the subject of this lawsuit have victims who should be heard from before release is even considered. Named Plaintiff Roger Morrison is one such example. Plaintiffs allege Mr. Morrison should be released because of his high blood pressure, hepatitis C, and cirrhosis of the liver. Mr. Morrison is currently being held in jail for felony Evading Arrest with a Prior Conviction, as well as other felony charges. He also has a parole hold. This is not Mr. Morrison’s complete criminal record, but of note are the following prior criminal convictions: 1) a felony Robbery conviction; 2) a felony Theft from a Grave/Corpse conviction; 3) two felony convictions for Burglary of a Habitation; 4) two felony repeat Driving While Intoxicated convictions, and several misdemeanor Driving While Intoxicated convictions; 5) a felony Evading Arrest or Detention conviction; 6) two misdemeanor Evading Arrest or Detention convictions; 7) a misdemeanor Assault conviction; 8) a Resisting Arrest conviction; and 9) a Criminal Trespass with a Deadly Weapon conviction. Mr. Morrison also had a protective order granted against him after a judge found he committed family violence.
As stated by Judge Rosenthal in a case involving COVID-19 in the Harris County Jail, “[R]eleasing those who cannot be safely released—whether because of risks of new offenses, particularly crimes involving physical violence, or risks of nonappearance—is of equal concern.” Russell v. Harris Cty., Tex., No. H-19-226, 2020 WL 1866835, at *8 (S.D. Tex. April 14, 2020). Based on his criminal convictions for violence, burglary, resisting and evading arrest, repeat drunk
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driving, and use of deadly weapons, this Court has concerns that Mr. Morrison would be a danger to the public if released. Also of concern is whether releasing Mr. Morrison would send him back to the home of the person he battered and who had to get a protective order against him to prevent further domestic violence from occurring. Any fair hearing would require the Court to hear testimony from Mr. Morrison’s victims in the cases in which he has been convicted, would require input from the judges and prosecutors who are familiar with Mr. Morrison’s pending cases, and would have to allow the opportunity to Mr. Morrison’s criminal defense attorney to present testimony on Mr. Morrison’s behalf.
It appears from this Court’s review of the criminal records of remaining inmates that the Dallas County District Attorney, the criminal defense attorneys representing accused individuals, and the Dallas County judges have collaborated well and worked diligently to drastically reduce the jail population since the eruption of the COVID-19 crisis. Over 1,000 inmates have been released recently.
Just as it would be a grave injustice to incarcerate of a mass of individuals with a blanket order, so too the mass release of inmates without individualized assessments could create a public safety hazard. Through their habeas corpus request, Plaintiffs ask this Court for such a mass release of inmates. In Plaintiffs’ closing argument they said, “And the stakeholders, however many stakeholders they want to have in the process of deciding whether to let people go or not is fine, as long as the process is quick.”18 In their request for relief, Plaintiffs ask Defendants to identify all medically vulnerable inmates, according to Plaintiffs’ definition, within six hours of this Court issuing an order, and ask this Court to order the inmates released within 24 hours “absent proof of
18 April 24, 2020, Hearing Volume 4 at 324. 23

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judicially-recorded findings by clear and convincing evidence that the individual poses such a serious risk of flight or danger to others that no other conditions can mitigate.”
Plaintiffs propose to give Defendants five days to object to the release of anyone on the Plaintiffs’ list, only on grounds they are a flight risk or a danger to the community; then propose the parties must meet and confer within 24 hours of receiving the objections, which would likely not give Defendants time to contact victims and other stakeholders who in fairness, ought to be heard. From this Court’s in camera review of the inmates remaining in the jail, it is clear that those inmates whose release was not objectionable to Defendants have likely already been released, as reflected by the 1000+ inmates recently released and by the release of such inmates as Mr. David Jones and Plaintiff Mr. Ideare Bailey. From this Court’s review of the NCIC records of the remaining inmates, it is clear that those inmates Dallas County would not object to releasing have already been let go. They would likely object to the release of most of the remaining inmates based on the seriousness of their current criminal charges or their previous criminal records. Having hearings for nearly 5,000 remaining inmates would not be quick, despite Plaintiffs’ hopes that it could be accomplished in a short amount of time, and the evidence showed the Defendants are continuing to review inmates who are potentially suitable for release. Again, to quote Judge Rosenthal, “This court is concerned about creating harm by granting a temporary restraining order that disrupts the parties’ commendable efforts under difficult circumstances to address the COVID-19 crisis in the Jail, and that will require judges and others to do what simply cannot be done as fast as desired.” Russell, 2020 WL 1866835, at *8.
Public safety concerns aside, habeas is not available to review questions unrelated to the cause of detention. Pierre v. U.S., 525 F.2d 933, 935 (5th Cir. 1976). Its sole function is to grant relief from unlawful imprisonment or custody, and it cannot be used properly for any other
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purpose. Id. at 935–36. An inmate is not entitled to relief in a habeas corpus petition based on civil rights claims related to the conditions of his confinement. Cf. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see Bell v. Wolfish, 441 U.S. 520, 526 n.6 (5th Cir. 1979) (case involving pretrial detainees in which Supreme Court stated, “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”).
Plaintiffs do not challenge the cause of their detention or contend that they are being held for an improper duration. They seek release due to the conditions at the jail cause by COVID-19. The Court concludes it lacks jurisdiction over Plaintiffs’ habeas action. See Livas v. Myers, No. 2:20-CV-00422, 2020 WL 1939583, at *7–8 (W.D. La. April 22, 2020) (case involving prisoners seeking to be released under § 2241because of COVID-19, where court noted lack of precedent in Fifth Circuit allowing conditions of confinement claims to be brought under § 2241 and dismissing complaint for lack of subject matter jurisdiction); see also Sacal-Micha v. Longoria, No. 1:20-CV37, 2020 WL 1815691, at *6 & n.6 (S.D. Tex. Apr. 9, 2020) (petitioner cannot rely on petition for writ of habeas corpus to obtain release from detention center based on COVID-19, noting Fifth Circuit has not recognized habeas corpus as permissible avenue for relief from alleged inadequate conditions of confinement); cf. Gallegos-Hernandez v. U.S., 688 F.3d 190, 194 (5th Cir. 2012) (petitioner seeking benefit of drug-rehabilitation programs and halfway house placement properly brought his claims under § 2241 because those benefits could result in reduction in sentence); Davis v. Fechtel, 150 F.3d 486, 488 (5th Cir. 1998) (petitioner who challenged denial of parole did so properly under § 2241). But see Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020) (in case involving plaintiffs who seek release from civil immigration detention due to COVID-19, court found claims properly brought under § 2241).
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Even if this Court were to determine that Plaintiffs could seek relief under § 2241, exhaustion of administrative remedies is a prerequisite to filing a § 2241 petition. GallegosHernandez, 688 F.3d at 194; United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). A § 2241 petitioner must exhaust available state court remedies before a federal court will entertain a challenge to state detention. Montano v. Tex., 867 F.3d 540, 542 (5th Cir. 2017). Federal courts should abstain from exercising habeas jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner. Dickerson v. La., 816 F.2d 220, 225 (5th Cir. 1987). The requirement that state criminal defendants exhaust available state remedies is vital to preserving the respective roles of state and federal governments and avoiding unnecessary collisions between sovereign powers. Montano, 867 F.3d at 546. It was judicially crafted on federalism grounds to protect the state courts’ opportunity to confront and initially resolve any constitutional issues arising within their jurisdictions as well as to limit federal interference in the state adjudicatory process. Dickerson, 816 F.2d at 225.
The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. See Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). To exhaust remedies in Texas, a petitioner must present his claims to the Texas Court of Criminal Appeals by filing an appeal followed by a petition for discretionary review or by filing an application for a writ of habeas corpus. Jenkins v. Gonzales, No. H-19-4927, 2019 WL 7116084, at *2 (S.D. Tex. Dec. 23, 2019). In the pre-conviction context, a Texas prisoner confined after a felony indictment may file an application for writ of habeas corpus pursuant to Article 11.08 of the Texas Code of Criminal Procedure with the judge of the court in which he is indicted. Id.; see TEX. CODE CRIM. PROC. ANN. § 11.08. If the trial court denies habeas relief, the applicant’s remedy
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is to take a direct appeal to an intermediate appellate court and then petition for discretionary review by the Texas Court of Criminal Appeals. Jenkins, 2019 WL 7116084, at *2.
Plaintiffs respond that under these circumstances, the exhaustion requirement is excused. Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action. Gallegos-Hernandez, 688 F.3d at 194. Plaintiffs have not presented evidence to this Court that the state court system was unavailable to them. See Money v. Pritzker, No. 20-cv-2093, 2020 WL 1820660, at *21 (N.D. Ill. Apr. 10, 2020). Plaintiffs’ own evidence presented at the hearing on the Motion showed just the opposite was true. Even during a pandemic, Mrs. Bailey was able to meet with both the elected District Attorney and her husband’s judge to secure her husband’s release from jail. Plaintiffs presented the declaration of a criminal defense attorney stating that even with the current COVID-19 situation, bond hearings are still given priority by the courts and are held as expeditiously as possible. Many are done informally or by email or phone. This declaration concludes: 1) interlocutory appeals of an unfavorable decision would likely take months due to delays in the appellate process; 2) pre-trial writs unrelated to bond would have a longer timeline; and 3) post-conviction writs would follow yet another timeline, one that took many months before COVID-19. The declaration asserts these conclusions but gives no facts or examples to support them. Neither do the attachments to the declaration. They prove the contrary. Attached to Texas attorney Alison Grinter’s declaration is a March 24, 2020, email from the Dallas County Criminal District Court Manager stating, “The Criminal District Courts are currently open and conducting essential hearings, by any and all available means, at this time.”
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Defendants also presented evidence of parole hearings being held remotely and the use of kiosks to allow inmates to communicate with the court, process court paperwork, and request release and bond reductions. The evidence before the Court is that these procedures and remedies are still available.
Plaintiffs also claim they have exhausted state remedies. The evidence does not show they have done so. Plaintiffs are not entitled to relief under § 2241, and even if they were so entitled, Plaintiffs have not exhausted their state court remedies. As a result, this Court dismisses Plaintiffs’ petition for writ of habeas corpus.
b. Injunctive Relief Under 42 U.S.C. § 1983 In their § 1983 claim, Plaintiffs allege Defendants violated the Eighth and Fourteenth Amendments through their deliberate indifference to the risk COVID-19 poses to them. Plaintiffs ask for a TRO and a Preliminary Injunction. To be entitled to a TRO or preliminary injunction, a movant must establish: (1) a likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) that the threatened injury outweighs any harm that will result if the injunction is granted; and (4) that the grant of injunctive relief will not disserve the public interest. Trottie v. Livingston, 766 F.3d 450, 452 (5th Cir. 2014). To establish a claim under § 1983, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law. Pratt v. Harris Cty., 822 F.3d 174, 180 (5th Cir. 2016). The pre-adjudication Plaintiffs allege that under the Fourteenth Amendment, Defendants are required to provide for Plaintiffs’ reasonable health and safety. They contend Defendants have been deliberately indifferent to the risk COVID-19 poses to them and the proposed class. The post-adjudication Plaintiffs allege, on behalf of themselves and others in the
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proposed class, that Defendants have violated the Eighth Amendment’s prohibition on cruel and unusual punishment because they are deliberately indifferent to the risks of COVID-19. Pretrial detainees’ rights exist under the Due Process Clause of the Fourteenth Amendment but are subject to the same scrutiny as if they had been brought as a deliberate indifference claim under the Eighth Amendment. See Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (citing Hare v. City of Corinth, 74 F.3d 633, 648–49 (5th Cir. 1996) (en banc)).
The Eighth Amendment imposes duties on prison officials, who must provide humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials 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. Prison officials who act reasonably cannot be found liable under the Eighth Amendment. Id. at 845.
An Eighth Amendment conditions of confinement claim has two components, one objective and one subjective. Id. at 846. To satisfy the objective requirement, the plaintiff must show “an objectively intolerable risk of harm.” Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020), denying motion to vacate stay, 2020 WL 2497541 (May 14, 2020). To satisfy the subjective requirement, the plaintiff must show that the defendant (1) was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists; (2) subjectively drew the inference that the risk existed; and (3) disregarded the risk. Id. The incidence of diseases or infections, standing alone, do not imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks. Id. (citing Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009)). Instead, the plaintiff must show a denial of “basic human needs.” Id. “Deliberate indifference is an extremely high standard to meet.” Id. (quoting Cadena v. El Paso Cty., 946 F.3d 717, 728 (5th Cir. 2020)).
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On April 22, 2020, the Fifth Circuit issued an opinion in a case involving the COVID-19 pandemic and the Texas prison system. The plaintiffs in that case sought relief similar to that sought by Plaintiffs in this case, and the opinion forecloses this Court’s ability to grant the injunctive relief Plaintiffs seek. See Valentine, 956 F.3d 797. The Valentine plaintiffs were inmates at a Texas Department of Criminal Justice (TDCJ) prison for the elderly and infirm. Id. at 799. They filed a class action lawsuit on behalf of disabled and high-risk inmates against TDCJ, its executive director, and the prison warden. The plaintiffs alleged violations of the Eighth Amendment. The district court granted the plaintiffs a preliminary injunction that required TDCJ to take many steps, including providing plaintiffs and the class members with unrestricted access to hand soap, access to hand sanitizer in various areas, and access to tissues. Id. at 799–800. The injunction required common surfaces in housing areas, bathrooms, and the dining hall to be cleaned every thirty minutes from 7 a.m. to 10 p.m. Id. at 800. It also required the posting of information in every housing area and above every sink about how inmates can protect themselves from contracting COVID-19. Id. The district court ordered TDCJ to provide the plaintiffs and the Court with a detailed plan to test all inmates for COVID-19 and a plan to quarantine any inmates who test positive. TDCJ appealed and sought a stay of the preliminary injunction pending appeal. Id. at 801.
The Fifth Circuit granted TCDJ’s motion to stay the preliminary injunction. The appellate court determined that TDCJ was likely to prevail on appeal in part because, after accounting for the protective measures taken by TDCJ, Plaintiffs had not shown a “substantial risk of serious harm” that amounts to cruel and unusual punishment. Id. at 801–02. The court noted, “There is no doubt that infectious diseases generally and COVID-19 specifically can pose a risk of serious or fatal harm to prison inmates.” Id. at 801. TDCJ submitted evidence of the protective measures it
30

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had taken, including access to soap, tissues, gloves, masks, regular cleaning, signage and education, quarantine of new prisoners. Id. at 801–02. The legal question was whether the Eighth Amendment requires TDCJ to do more to mitigate the risk of harm. Id. at 802. The district court acknowledged that its injunction required extra measures beyond TDCJ and CDC policies. The Fifth Circuit stated that there is no precedent holding that the CDC’s recommendations are insufficient to satisfy the Eighth Amendment. Id.
Further, even assuming there is a substantial risk of serious harm, the Valentine plaintiffs did not have evidence of TDCJ’s subjective indifference to that risk. Id. Deliberate indifference requires the defendant to have a subjective state of mind “more blameworthy than negligence.” Id. (quoting Farmer, 511 U.S. at 835). The district court cited no evidence that TCDJ subjectively believed its measures were inadequate. Id. The evidence showed TCDJ had taken and continued to take measures, informed by the CDC and medical professionals, to abate and control the virus. Id. Even if the district court might have done things differently, its disagreement with TDCJ’s medical decisions does not establish deliberate indifference. Id. at 803.
The Fifth Circuit also noted that the Prison Litigation Reform Act (PLRA) presented obstacles for the plaintiffs. Id. at 804. The PLRA requires inmates to exhaust “such administrative remedies as are available” before filing suit in federal court to challenge prison conditions. Id.; see 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory. Valentine, 956 F.3d at 804. There are no futility or other exceptions. Id. When an administrative procedure grants authority to take some action in response to a complaint, that procedure is considered available, even if it cannot provide the remedial action an inmate demands. Id. A remedy is not available, and exhaustion is not required, when (1) the relevant administrative procedures lack authority to provide any relief, (2) the “administrative scheme” is so opaque as to prevent a reasonable prisoner from using it, or
31

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(3) when administrators thwart inmates from using a grievance process through “machination, misrepresentation, or intimidation.” Id.
In Valentine, the district court found the TDCJ grievance process too lengthy to provide timely relief and thus considered it “unavailable” under the special circumstances of this crisis. Id. at 804–05. The Fifth Circuit rejected the “special circumstances” exception as inconsistent with the PLRA. Id. at 805 (citing Ross v. Blake, 136 S. Ct. 1850, 1856 (2016)). The appellate court also noted that the district court found that the TDCJ grievance procedure would be unduly lengthy if TDCJ took the full time allotted, but never found that TDCJ would take the full time, if given the chance. Id. Thus, the evidence did not support the district court’s determination that the TDCJ process presented no possibility of some relief. Id.
In addition, even if the Valentine plaintiffs had exhausted their claims, the Fifth Circuit held that the district court’s injunction went well beyond the limits of what the PLRA allows. Id. Under the PLRA, injunctive relief must be narrowly drawn and be the least intrusive means necessary to correct the harm. Id. at 805–06; see 18 U.S.C. § 3626(a)(2). The court’s injunction, which provided a cleaning schedule for the prison “down to the half-hour interval,” did not comply with the PLRA. Valentine, 956 F.3d at 806. The Fifth Circuit cautioned against “that level of micromanagement” as being inconsistent with the PLRA. Id.
There is no “question that COVID-19 presents a risk of serious harm to those confined in prisons.” Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425, at *2 (5th Cir. April 27, 2020). But, for purposes of resolving Plaintiffs’ constitutional claims, the question is whether the constitution requires Defendants to do more than they have already done to mitigate the risk of harm. See id. During its four-day hearing, this Court heard conflicting evidence about the jail’s COVID-19 response. See Money, 2020 WL 1820660, at *18 (noting plaintiffs have no chance of
32

Case 3:20-cv-00832-E Document 99 Filed 05/22/20 Page 33 of 38 PageID 2965
success where Defendants provided lengthy list of actions take to protect inmates). Further, Plaintiffs did not present evidence that Defendants subjectively believed their actions in response to the COVID-19 situation were inadequate. As in Valentine, the evidence in this record does not meet the high burden required to demonstrate deliberate indifference by Defendants.
Plaintiffs seek to distinguish Valentine on the exhaustion issue. They point to evidence that several of the named Plaintiffs filed grievances and try to explain that those who did not “took extraordinary efforts in their attempts to comply with the grievance procedures.”
Whether the inmate grievance process is currently operational was an important issue in this case because of the exhaustion issue. Chief Robinson testified about the inmate grievance process and the variety of ways inmates can file grievances. An inmate can file a grievance using one of the kiosks in the jail, by filing a paper grievance, or by contacting a jail officer and verbally requesting to file a grievance.
The Inmate Handbook for the Dallas County Jail defines “grievance” as “an electronic and/or written complaint to protect you from” civil rights violations, criminal acts, unjust denial or restriction of inmate privileges, and prohibited acts by detention staff. Inmates may submit an electronic grievance directly to the Inmate Grievance Board through kiosks located in every jail facility. A written grievance form can be requested from detention staff. Further, it is not mandatory to use the jail’s form, as long as the grievance is “received in a written format.” Once a grievance is submitted, the Inmate Grievance Board reviews it to determine if it meets grievance standards. After that a status response will be generated and provided to the inmate. The Board has 15 days to submit the initial status response and 60 days to submit a final response. All emergency grievances will be handled immediately.
33

Case 3:20-cv-00832-E Document 99 Filed 05/22/20 Page 34 of 38 PageID 2966
The handbook further provides for a two-level appeals process. If an inmate disagrees with the Board’s findings, he or she may submit a first level appeal within 10 days of Board’s decision. The appeal can be submitted either electronically or in writing to the Quality Assurance Commander of the Quality Assurance Unit. The Quality Assurance Commander has fifteen days to respond. If an inmate disagrees with the decision of the Quality Assurance Commander, he or she may then appeal the decision to the Assistant Chief Deputy, Special Services Bureau of the Sheriff’s Department. The Assistant Chief Deputy has 30 days to submit a written decision on the second level appeal. If at any point during the grievance process, an inmate does not receive a response to either the grievance, first level appeal, or second level appeal, he or she must proceed to the next step of the grievance process to fully exhaust administrative remedies.
Attached as exhibits to their original pleading, Plaintiffs submitted several declarations from Pennsylvania attorney Amy Fly, and Texas attorneys Adwoa Asante and Allison Grinter who made declarations on behalf of each named Plaintiff. Ms. Fly’s declarations each state that she spoke to the detainee at least once, who provided her with the information in the declaration. The declarations include information about the conditions in the jail, as well as information about the grievance process. Plaintiff Oscar Sanchez told Fly he was repeatedly denied grievance forms. He filed an emergency grievance on April 5, 2020, and an appeal the next day. The declaration claims that the next day, “the application to file grievances” was removed from the kiosk.
Plaintiff Marcus White told Ms. Fly that he was denied grievance forms, but made a sign demanding a grievance. He got a form on March 23, 2020. As of April 7, the grievances had not been collected. Plaintiff Marcelo Perez told Ms. Fly that he filed an emergency grievance on April 6, 2020, but had not received a response.
34

Case 3:20-cv-00832-E Document 99 Filed 05/22/20 Page 35 of 38 PageID 2967
There is no evidence that the named Plaintiffs exhausted the jail’s grievance procedure. While some of them started the process, they filed this action before letting that process play out. Exhaustion is a prerequisite to Plaintiffs’ § 1983 claims. Their failure to exhaust the appropriate grievance procedures is fatal to their request for injunctive relief.
Plaintiffs agreed in their closing argument that the PLRA applies to the § 1983 claims in this case. And they ask this Court to find that, because of COVID-19, special circumstances excuse them from having to comply with the PLRA’s mandatory exhaustion requirement. In Ross v. Blake, the Supreme Court detailed the history of the PLRA’s creation and explained that the plain text of the PLRA statute was written to prevent courts from doing just what Plaintiffs ask this Court to do today. The Supreme Court stated, “[T]hat mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account.” 136 S.Ct. at 1856. Even if the COVID-19 created a “special circumstance,” this Court would be bound both by the plain language of the PLRA text and Supreme Court precedent, from granting relief on such grounds.
c. Separation of Powers and Federalism Concerns Additionally, Plaintiffs ask this Court to issue an order essentially taking over the jail, appointing an expert to manage it, and having the expert report back to the Court. This Court has grave concerns about the appropriateness of using the power of the federal courts to take discretion away from such elected officials as the Governor of the State of Texas, the Texas Board of Pardon and Paroles, Dallas County’s County Criminal Court Judges, Dallas County’s Criminal District Court Judges, Dallas County’s District Attorney, the Dallas County Commissioners, and Dallas County Judge Clay Jenkins. The evidence before this Court shows these parties all working together to respond rapidly to an ever-changing crisis created by this pandemic. If this Court were to set up a “Mother, May
35

Case 3:20-cv-00832-E Document 99 Filed 05/22/20 Page 36 of 38 PageID 2968
I” system requiring stakeholders to get this Court’s approval before making changes, it would hamper their abilities to respond quickly during this pandemic. As stated in Russell:
[I]t is best to leave sensitive policy and political decisions on crafting procedures to accomplish the shared goal of safely reducing the Jail population to elected and appointed officials. “Turf wars” allow different interests and views to be heard and addressed on the ground, by those who must actually implement the policies and procedures. The court does not want to disrupt the laudable existing efforts to address the crisis. Russell, 2020 WL 1866835, at *13. Further, “[t]he judiciary is ill-equipped to manage decisions about how to best manage any inmate population.” Money, 2020 WL 1820660, at *16. Though Money dealt with a prison, the same concerns apply in this case. “It is no accident that the federal judiciary only rarely intrudes into the management of state prisons, and only once in history has actually ordered the release of prisoners on a scale anywhere hear what Plaintiffs hope to accomplish through this litigation.” Id. The Court has serious separation of powers concerns with Plaintiffs’ requested relief. Some of the Plaintiffs in this case have “blue warrants,” which are parole holds from the TDCJ. Ordering the release of these inmates would essentially invalidate those warrants. As in Money, “Here, Plaintiffs want this Court to direct—or at a minimum, strongly influence—the Governor and an administrative agency to make discretionary decisions under state law to grant a medical furlough or a home detention.” Id. at *17. Especially in a pandemic, the federal court must abstain from exceeding its proper boundaries. “One of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions.” Id. at *15 (citing Missouri v. Jenkins, 495 U.S. 33, 51 (1990)). The Supreme Court’s opinion in Jacobson v. Massachusetts, prohibits courts from usurping the state’s authority to craft measures responsive to a public health emergency. In re
36

Case 3:20-cv-00832-E Document 99 Filed 05/22/20 Page 37 of 38 PageID 2969
Abbott (“Abbott II”), 956 F.3d 696, 716 (5th Cir. 2020); see Jacobson v. Mass., 197 U.S. 11, 35 (1905). Courts have no authority to ask whether a particular method is, perhaps or possibly, not the best. Abbott II, 956 F.3d at 716. Instead, courts may only ask whether the state has acted in an arbitrary, unreasonable manner. Id. During a pandemic emergency, public authorities must make numerous complex judgment calls. Id. The Supreme Court and the Fifth Circuit have explained how to resolve such an impasse: “If the choice is between two reasonable responses to a public crisis, the judgment must be left to the governing state authorities.” Abbott II, 2020 WL 1911216, at *12 (citing Jacobson, 197 U.S. at 30).
This Court also questions the appropriateness of using its power to turn what are now CDC recommendations into orders that must be complied with under threat of contempt. “Disrupting a process that strives to recognize the different interests and concerns is an added risk of intruding with a temporary restraining order that is backed by the threat of contempt.” Russell, 2020 WL 1866835, at *13.
The job of this Court is not to make law, but to interpret it. It is the duty of the legislative branch to craft laws that are solutions to this crisis. The United States Congress is presently holding hearings on COVID-19-related bills.19 Should legislators deem it appropriate for CDC recommendations to become law, they will surely make them so. Using this Court’s power to order the jail to follow what are now just recommendations from the CDC would turn this district court into a lawmaking body. Additionally, this subject matter, a novel virus that medical professionals are still learning about—both its spread and its prevention, would make a moving target for court orders. As medical professionals learn more about COVID-19, the CDC’s recommendations also
19 https://www.cnn.com/2020/05/19/politics/senate-banking-committee-hearing-mnuchin-powell/index.html. 37

Case 3:20-cv-00832-E Document 99 Filed 05/22/20 Page 38 of 38 PageID 2970
evolve; for example, on April 3, 2020, the CDC reversed its previous advice and began recommending the general public wear face masks to help prevent the spread of COVID-19. If this Court were to turn CDC recommendations into court orders, the parties would have to wait for this Court to issue superseding orders before they could act, or face contempt if they acted without the Court’s authority. This Court’s orders would need to be in constant flux to keep up with revised recommendations from the CDC as more information about COVID-19 becomes known. As in Russell, “The court cannot find on this record that in this time of crisis, federal-court intervention in fraught and rapidly evolving County affairs is required, safe, or would at this time materially improve the processes under way.” Russell, 2020 WL 1866835, at *11 (citing In re Abbott, 954 F.3d 772, 778 (5th Cir. 2020)).
VI. Conclusion The Plaintiffs requested extraordinary relief, but even—especially—in these extraordinary times, the letter of the law must still be followed. “The court takes [the COVID-19] concern seriously, and recognizes the critical constitutional, health, and public safety interests the plaintiffs invoke as reasons for swift federal action. But delicate considerations of federalism and separation of powers support abstention in this complex, rapidly evolving situation.” Id. at *13. Because Plaintiffs have not carried their burden, their request for preliminary injunctive relief was denied. Signed May 22, 2020.
________________________________ ADA BROWN UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF TEXAS
38

 
 Case 3:20-cv-00832-E Document 53 Filed 04/19/20 Page 1 of 3 PageID 1364

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD,

§

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL

§

WRIGHT, TERRY MCNICKLES,

§

AND JOSE MUNOZ, on their own

§

behalf and on behalf of a class of

§

similarly situated persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Civil Action Case No. 3:20-cv-00832

DEFENDANTS’ AMENDED MOTION TO DISMISS

Defendants, Dallas County Sheriff Marian Brown, in her official capacity, and Dallas County, Texas move to dismiss Plaintiffs’ claims.
Plaintiffs’ habeas claims should be dismissed because habeas petitions may not be used to challenge conditions of confinement. They are available for challenging the cause of confinement, for which the only available remedy is release. Plaintiffs have therefore not stated a claim for habeas relief.
Plaintiffs’ habeas claims should also be dismissed because they have not exhausted available state law remedies.
The post-adjudication Plaintiffs’ 42 U.S.C. § 1983 claims should be dismissed because granting these Plaintiffs release—which they claim is “the only medically and legally sound

Case 3:20-cv-00832-E Document 53 Filed 04/19/20 Page 2 of 3 PageID 1365 remedy”— would necessarily imply the invalidity of their judgments of conviction and terms of confinement.
Finally, the Court should abstain from entertaining Plaintiffs’ claims at this time. Conditions are dynamic, and constitutional litigation punctuated with court orders on sensitive issues of federalism and the interplay of competing interests, fraught with the threat of contempt, would not serve Plaintiffs, Defendants, or the public interest well.
In support of this Motion, Defendants rely on the following contemporaneously filed documents:
1. Brief in Support of Defendants’ Amended Motion to Dismiss; and, 2. Proposed Order Granting Defendants’ Amended Motion to Dismiss. For the reasons stated in this Motion and its accompanying documents, Defendants respectfully request that the Court grant this Motion to Dismiss.
2

Case 3:20-cv-00832-E Document 53 Filed 04/19/20 Page 3 of 3 PageID 1366

Date: April 19, 2020

Respectfully Submitted,
HUSCH BLACKWELL LLP
/s/ Kate David Katharine D. David Texas Bar No. 24045749 kate.david@huschblackwell.com Nick Stepp Texas Bar No. 24077701 nick.stepp@huschblackwell.com Ben Stephens Texas Bar No. 24098472 ben.stephens@huschblackwell.com 600 Travis, Suite 2350 Houston, Texas 77002 Tel: 713.525.6200 Fax: 713.647.6884
/s/ Russell H. Roden Russell H. Roden Texas Bar No. 17132070 russell.roden@dallascounty.org John Butrus Texas Bar No. 03537330 john.butrus@dallascounty.org 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207 Tel: 214.653.3600 Fax: 214.653.5774 COUNSEL FOR DALLAS COUNTY, TEXAS AND SHERIFF MARIAN BROWN

CERTIFICATE OF SERVICE
I certify that on this, the 19th day of April, 2020, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Nicholas D. Stepp Nicholas D. Stepp

3

Case 3:20-cv-00832-E Document 53-1 Filed 04/19/20 Page 1 of 2 PageID 1367

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD,

§

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL

§

WRIGHT, TERRY MCNICKLES,

§

AND JOSE MUNOZ, on their own

§

behalf and on behalf of a class of

§

similarly situated persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Civil Action Case No. 3:20-cv-00832

[PROPOSED] ORDER

Before the Court is Defendants’ Amended Motion to Dismiss. Having considered the Motion, the Brief in Support, Plaintiffs’ Response in Opposition, any Reply, and arguments of counsel, the Court is of the opinion that the Motion should be GRANTED.
BE IT THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ Petition for Writ of Habeas Corpus is dismissed without prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
BE IT FURTHER ORDERED, ADJUDGED, AND DECREED that the 42 U.S.C. § 1983 claims of the putative post-adjudication class are dismissed without prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Case 3:20-cv-00832-E Document 53-1 Filed 04/19/20 Page 2 of 2 PageID 1368
BE IT FURTHER ORDERED, ADJUDGED, AND DECREED that the Court abstains from ruling on the remaining 42 U.S.C. § 1983 claims.
This order dismisses all pending claims.

Date: _______________

__________________________________ The Honorable Ada Brown

 
 Case 3:20-cv-00832-E Document 120 Filed 08/19/20 Page 1 of 2 PageID 3138

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

OSCAR SANCHEZ, et al., on their own

§

and on behalf of a class

§

of others similarly situated,

§

§

Plaintiffs/Petitioners,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in her official capacity, §

and DALLAS COUNTY, TEXAS,

§

§

Defendants/Respondents.

§

CIVIL ACTION NO. 3:20-cv-00832-E

MEMORANDUM OPINION AND ORDER

On April 20, 2020, the Court issued an electronic order denying Defendants’ Motion to

Dismiss and Amended Motion to Dismiss (Doc. Nos. 35 and 53). The Court has reconsidered its

rulings on those motions and VACATES its electronic order (Doc. No. 71). The Court now denies

the Motion to Dismiss (Doc. No. 35) as moot and grants the Amended Motion to Dismiss (Doc.

No. 53) in part.

In their Amended Motion to Dismiss, Defendants assert that Plaintiffs’ habeas claims must

be dismissed under Rule 12(b)(6) because they have not exhausted available state court remedies.

They also argue that Plaintiffs have not stated a claim for habeas relief because their claims raise

questions unrelated to the causes of their detention. The Court addressed these issues in connection

with its opinion and order denying Plaintiffs’ Motion for Temporary Restraining Order,

Preliminary Injunction, ad Writ of Habeas Corpus (Doc. No. 99), and agreed with Defendants. For

reasons set out in that opinion, incorporated by reference here, the Court concluded it lacks

jurisdiction over Plaintiffs’ habeas action and alternatively concluded Plaintiffs’ were not entitled
1

Case 3:20-cv-00832-E Document 120 Filed 08/19/20 Page 2 of 2 PageID 3139 to relief under § 2241. Accordingly, the Court GRANTS the Amended Motion to Dismiss in part as it relates to Plaintiffs’ habeas action. The Court dismisses with prejudice Plaintiffs’ petition for writ of habeas corpus. The Court DEFERS ruling on that portion of Defendants’ motion directed to Plaintiffs’ § 1983 claims.
SO ORDERED. Signed August 19, 2020.
________________________________ ADA BROWN UNITED STATES DISTRICT JUDGE
2

 
 Case 3:20-cv-00832-E Document 126 Filed 09/25/20 Page 1 of 3 PageID 3175

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD,

§

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL

§

WRIGHT, TERRY MCNICKLES,

§

AND JOSE MUNOZ, on their own

§

behalf and on behalf of a class of

§

similarly situated persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Civil Action Case No. 3:20-cv-00832

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Defendants, Dallas County Sheriff Marian Brown, in her official capacity, and Dallas County, Texas move to dismiss the remaining claims of Plaintiffs Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, Jose Munoz, Kiara Yarborough, Olivia Washington, and Ideare Bailey (the “Released Plaintiffs”).1
Each of the Released Plaintiffs is no longer detained in the Dallas County Jail. They are not subject to the conditions of confinement of which they complain, and therefore lack standing to pursue prospective injunctive relief under the 42 U.S.C. § 1983.

1 Plaintiffs Oscar Sanchez, Marcus White, and Tesmond McDonald remain in detention.
DocID: 4823-3943-9308.1

Case 3:20-cv-00832-E Document 126 Filed 09/25/20 Page 2 of 3 PageID 3176
Moreover, with regards to the proposed Post-Adjudication Class, all named plaintiffs seeking to represent that class have been released. The Post-Adjudication Class’s claim for relief under the Eighth Amendment is moot, not subject to the “capable of repetition, yet evading review” exception.
In support of this Motion, Defendants rely on the following contemporaneously filed documents:
1. Brief in Support of Defendants’ Motion to Dismiss; and 2. Proposed Order Granting Defendants’ Motion to Dismiss. Accordingly, for the reasons stated in this Motion and its accompanying documents, Defendants respectfully request the Court grant this Motion to Dismiss.

Date: September 25, 2020
DocID: 4823-3943-9308.1

Respectfully Submitted,
HUSCH BLACKWELL LLP
/s/ Kate David Katharine D. David Texas Bar No. 24045749 kate.david@huschblackwell.com Nick Stepp Texas Bar No. 24077701 nick.stepp@huschblackwell.com Ben Stephens Texas Bar No. 24098472 ben.stephens@huschblackwell.com 600 Travis, Suite 2350 Houston, Texas 77002 Tel: 713.525.6200 Fax: 713.647.6884
/s/ Russell H. Roden Russell H. Roden Texas Bar No. 17132070 russell.roden@dallascounty.org John Butrus
2

Case 3:20-cv-00832-E Document 126 Filed 09/25/20 Page 3 of 3 PageID 3177 Texas Bar No. 03537330 john.butrus@dallascounty.org 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207 Tel: 214.653.3600 Fax: 214.653.5774 COUNSEL FOR DALLAS COUNTY, TEXAS AND SHERIFF MARIAN BROWN
CERTIFICATE OF SERVICE I certify that a copy of the foregoing was served on all counsel of record via the ECF system of the Court on September 25, 2020.
/s/ Kate David Kate David
3
DocID: 4823-3943-9308.1

 
 Case 3:20-cv-00832-E Document 127 Filed 09/25/20 Page 1 of 13 PageID 3180

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OSCAR SANCHEZ, MARCUS

§

WHITE, TESMOND MCDONALD,

§

MARCELO PEREZ, ROGER

§

MORRISON, KEITH BAKER, PAUL

§

WRIGHT, TERRY MCNICKLES,

§

AND JOSE MUNOZ, on their own

§

behalf and on behalf of a class of

§

similarly situated persons,

§

Petitioners/Plaintiffs,

§

§

v.

§

§

DALLAS COUNTY SHERIFF

§

MARIAN BROWN, in Her Official

§

Capacity; DALLAS COUNTY,

§

TEXAS,

§

Respondents/Defendants.

§

Civil Action Case No. 3:20-cv-00832

BRIEF IN SUPPPORT OF DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Defendants, Dallas County Sheriff Marian Brown, in her official capacity, and Dallas County, Texas move to dismiss the claims of Plaintiffs Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, Jose Munoz, Kiara Yarborough, Olivia Washington, and Ideare Bailey (the “Released Plaintiffs”).1
Very little of this case remains. Since the Court dismissed the Section 2241 habeas claims of all Plaintiffs, all plaintiffs who seek to represent the proposed Post-Adjudication Class have been released. And only three of the plaintiffs who seek to represent the proposed Pre-Adjudication Class are still detained. The plaintiffs still in detention as of the date of this filing are Oscar

1 The three Plaintiffs still in detention—Oscar Sanchez, Marcus White, and Tesmond McDonald—are referred to herein as the “Detained Plaintiffs.”
DocID: 4839-2547-1948.1

Case 3:20-cv-00832-E Document 127 Filed 09/25/20 Page 2 of 13 PageID 3181
Sanchez, Marcus White, and Tesmond McDonald.2 Each of these plaintiffs is a proposed representative of a Pre-Adjudication Class, bringing claims under the Fourteenth Amendment. The Court has already found that the Fourteenth Amendment claims, for unconstitutional conditions of confinement and unconstitutional punishment, are not viable. No class has been certified.
Defendants ask the Court to dismiss the Released Plaintiffs for lack of subject matter jurisdiction over their claims. All Released Plaintiffs lack standing to pursue prospective injunctive and declaratory relief against Defendants. Due to their release, they lack the “real and immediate” threat necessary to confer standing for prospective injunctive relief. Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003). Any possibility of the renewal of a controversy in the future is speculative, based only on the possibility that the Released Plaintiffs will again be detained and subject to allegedly unconstitutional COVID-19 conditions3 in the Dallas County Jail. The Released Plaintiffs should each be dismissed for lack of standing and mootness.
Moreover, because no representatives of the Post-Adjudication class remain in detention at all, the claims of the Post-Adjudication Class are moot and the Court should dismiss Plaintiffs’ Third Claim for Relief brought by the Post-Adjudication Class under the Eighth Amendment.
Defendants respectfully request that the Court dismiss the individual Released Plaintiffs, as well as Plaintiffs’ Third Claim for Relief from unconstitutional conditions of confinement pursuant to the Eighth Amendment.
2 The Court has reviewed the criminal histories of these inmates, and is aware that they are detained on serious charges. 3 The evolving nature of COVID-19 and increased understanding from the healthcare community shows that if Plaintiffs were in the future detained, conditions in the jail and the transmissibility of COVID-19 is likely to be significantly diminished due to the availability of vaccines, improved understanding of the virus, and improved treatments and mitigation measures based on increased understanding.
2
DocID: 4839-2547-1948.1

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I. Background This suit was filed on April 9 by Oscar Sanchez, Marcus White, Tesmond McDonald,
Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, and Jose Munoz. See ECF No. 1, Original Petition for Writ of Habeas Corpus and Class Action Complaint for Injunctive and Declaratory Relief. Sanchez, White, Baker, and McDonald purported to represent a class of current and future detainees in pretrial custody (the “Pre-Adjudication Class”). Id. at 66. Perez, Wright, Munoz, Morrison, and McNickels sought to represent a class of post-adjudication inmates, detained pursuant to an adjudication probation or parole violation (the “Post-Adjudication Class”). Id. at 67. Sanchez, Baker, McDonald, Perez, Wright, Morrison, and McNickels also alleged they were representatives of a “Medically-Vulnerable” subclass. Id. at 68. Subsumed in Plaintiff’s complaint was a request for certification of the suit as a class action. Plaintiffs have since moved for class certification. ECF No. 17.
Plaintiffs amended their complaint on April 17 to add three additional plaintiffs—Kiara Yarborough, Olivia Washington, and Ideare Bailey. See ECF No. 39, First Amended Complaint. Yarborough and Washington were representatives of the Post-Adjudication class, each being held in the Dallas County Jail pursuant to probation orders and awaiting transfers to outside facilities. See id. at ¶¶ 100-101. Bailey was a pretrial detainee. Id. at ¶ 102.
Plaintiffs brought a petition for class-wide habeas corpus, seeking the widespread release of thousands of inmates. The Pre-Adjudication Class also pled claims for unconstitutional conditions of confinement (First Claim for Relief) and unconstitutional punishment (Second Claim for Relief) in violation of the Fourteenth Amendment. ECF No. 39, ¶¶ 105-113. And the (now released) plaintiffs representing the Post-Adjudication Class brought only an Eighth Amendment claim for unconstitutional conditions of confinement (Third Claim for Relief). Id. at ¶¶ 114-118. Following the four-day hearing on Plaintiffs’ Application for Preliminary Injunction, the Court
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dismissed Plaintiffs’ petition for writ of habeas corpus, found that the evidence in the record before it “[did] not meet the high burden required to demonstrate deliberate indifference” and denied Plaintiffs’ request for preliminary injunction, and additionally found that Plaintiffs’ failure to exhaust the applicable grievance procedures was “fatal” to their remaining section 1983 claims. Sanchez v. Brown, 3:20-CV-00832-E, 2020 WL 2615931, at *17 (N.D. Tex. May 22, 2020).
During the course of the hearing, the Court heard testimony from several witnesses, including Ideare Bailey’s wife, Wykivia Bailey. Ms. Bailey testified that her husband had been released on April 20 and was no longer detained in the Dallas County Jail. See Transcript 223:1625. Since the hearing, almost all of the remaining plaintiffs have been released as well. As of September 24, 2020, only Oscar Sanchez, Marcus White, and Tesmond McDonald remain in detention. Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, Jose Munoz, Kiara Yarborough, Olivia Washington, and Ideare Bailey have all been released. See Ex. A, Declaration of Jimmy Patterson.
No plaintiff representative of the Post-Adjudication Class remains in detention. The Court should refrain from certifying a Post-Adjudication Class given the absence of any class representatives, and dismiss the Post-Adjudication Class’s Eighth Amendment claim for unconstitutional conditions of confinement as moot. Moreover, the Court should dismiss each of the individual Released Plaintiffs. Because they have been released, and are no longer subject to the alleged unconstitutional conditions of confinement, their claim for prospective injunctive and declaratory relief is moot. II. Standard of Review
A motion to dismiss under Rule 12(b)(1) may be brought for lack of subject matter jurisdiction on the grounds that a claim is moot. See FED. R. CIV. P. 12(b)(1). Matters outside the pleadings, such as affidavits, may be considered in determining a factual attack on subject matter
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jurisdiction. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980). When a motion to dismiss for lack of subject matter jurisdiction relies upon evidence, “no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluation for itself the merits of jurisdictional claims.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). III. Argument and Authorities.
Article III’s case-or-controversy requirement dictates that a plaintiff must have standing both at the outset of litigation and throughout. Yarls v. Bunton, 905 F.3d 905, 909 (5th Cir. 2018); see also Sosna v. Iowa, 419 U.S. 393 (1975) (in the class action context, a named plaintiff must have a personal stake in the outcome of the case at the time the district court rules on class certification in order to prevent the mootness of the action).
A narrowly drawn exception to this requirement exists for claims that are “inherently transitory,” such as those claims which are distinctly capable of repetition, yet evading review. See Genesis Healthcare v. Symczyk, 569 U.S. 66, 76 (2013) (quoting Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991). This exception is often raised in the context of pretrial detainees in reliance on the Supreme Court’s holding in Gerstein v. Pugh, 420 U.S. 103, 110-111, n.11 (1975). The Fifth Circuit has articulated a two-part test for when the exception applies: “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” Yarls, 905 F.3d 905, 911 (5th Cir. 2018) (citing Turner v. Rogers, 564 U.S. 431, 440 (2011).
The Fifth Circuit has consistently emphasized that the Gerstein exception is a narrow one. See Rocky v. King, 900 F.2d 864, 870 (5th Cir. 1990) (recognizing the narrow scope of the inherently transitory exception, and dismissing the putative class action claims of a sentenced
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inmate as moot and not subject to the exception); see also Inmates of Lincoln Intake & Detention Facility v. Boosalis, 705 F.2d 1021, 1023-24 (8th Cir. 1983) (finding the “capable of repetition, yet evading review” exception inapplicable to a putative class action brought by both pre-trial and sentenced detainees who had been released from detention at the time the district court ruled on class certification).
The Released Plaintiffs lack standing to prosecute their claims based on confinement, since they are no longer confined. Their claims are not saved by application of the “capable of repetition, yet evading review” exception, since binding Supreme Court and Fifth Circuit precedent prevent this Court from assuming that the Released Plaintiffs will again be arrested and again subject to the conditions of which they complain. The Released Plaintiffs claims should be dismissed.
A. The Released Plaintiffs lack standing to seek prospective declaratory and injunctive relief.
Due to their release, each Released Plaintiff fails to demonstrate Article III standing to seek injunctive or declaratory relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 101 (“To demonstrate that a case or controversy exists to meet the Article III standing requirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future.”).
Plaintiffs seek prospective injunctive and declaratory relief, attempting to dictate the means and manner of the Sheriff’s ongoing response to COVID-19 in the future. Each of the Released Plaintiffs is no longer subject to the unconstitutional conditions of which they complain. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (transfer of plaintiff alleging unconstitutional conditions of confinement from detention center to correctional institute rendered claims for prospective relief moot); see also Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991) (inmate’s transfer from facility mooted claims for injunctive relief). Plaintiffs’
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claims relate exclusively to what Plaintiffs allege are unconstitutional conditions of confinement within the Dallas County Jail, resulting in an elevated risk of their becoming infected with COVID19—for example, inability to social distance, insufficient PPE, and the like. The Released Plaintiffs are no longer subject to these conditions because they are no longer in the Dallas County Jail, and there is accordingly no controversy between them and Defendants relating to the conditions of their confinement.
Simply alleging, as the now-Released Plaintiffs do here, that they suffered “past exposure to illegal conduct” does not show a case or controversy to obtain injunctive relief—Plaintiffs must instead demonstrate “either continuing harm or a real and immediate threat of repeated injury in the future.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974). If Plaintiffs fail to establish standing individually, they “may not seek relief on behalf of [themselves] or any other member of the class.” Id.
Now that the Released Plaintiffs are no longer detained, the mere possibility that they will be arrested and detained in the Dallas County Jail again in the future is insufficient to satisfy the case-or-controversy requirement. The Supreme Court in O’Shea held that “it seems to us that attempting to anticipate whether and when [plaintiffs] will be charged with a crime . . . takes us into the area of speculation and conjecture,” and found that plaintiffs seeking to enjoin allegedly discriminatory bond-setting practices lacked standing, either on their own behalf or on behalf of a class. 414 U.S. at 497; see also Turner, 564 U.S. at 439-440. The Court may not assume that the Released Plaintiffs will again be arrested and detained in the Dallas County Jail.
In short, no controversy exists now with regards to the Released Plaintiffs. And there is no substantial likelihood that the Released Plaintiffs will be detained again in the future. Accordingly, the Released Plaintiffs lack standing to seek prospective injunctive relief and should be dismissed.
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B. The “capable of repetition, yet evading review” exception does not preserve the claims of the Released Plaintiffs.
Lack of standing is, in itself, a sufficient basis to dismiss each of the Released Plaintiffs. But, in addition to suffering from a lack of standing to pursue prospective injunctive relief (the only option for relief available to Plaintiffs at this stage), each of the Released Plaintiffs’ claims are moot due to their release. Because none of the Released Plaintiffs are still confined, the Released Plaintiffs have no personal stake remaining in this suit. Each Released Plaintiff should be dismissed.
The Fifth Circuit “has generally concurred with the proposition that a purported class action is moot where the named plaintiff’s individual claim became moot before class certification.” Rocky, 900 F.2d at 869; see also Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1045 (5th Cir. 1981) (holding that as a general rule, a purported class action becomes moot when the personal claims of all named plaintiffs are satisfied and no class has been certified). Here, each of the putative representatives of the Post-Adjudication Class—Perez, Wright, Munoz, Morrison, McNickels, Yarborough, and Washington—have been released and are no longer subject to allegedly unconstitutional conditions of confinement. Two of the five putative representative of the Pre-Adjudication Class—Baker and Bailey—have been released as well.
Because the Post-Adjudication Class has not been certified, and all the claims of all its representatives have been mooted,4 the Court should dismiss the claims of the Post-Adjudication Class set forth in Plaintiffs’ Third Claim for Relief. See ECF No. 39, Plaintiffs’ Third Amended Complaint, ¶¶ 114-118. And, at the very least, the Court should dismiss Baker and Bailey, the
4 If the Court does ultimately see fit to certify a Post-Adjudication Class, that certification order will relate back to the filing of Plaintiffs’ complaint. See McLaughlin, 500 U.S. at 52. This does not mean that before the Court has even determined that these Plaintiffs are adequate representatives of a certifiable class, plaintiffs whose claims are unquestionably moot should be permitted to prosecute a case in which they have no conceivable personal stake.
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released representatives of the Pre-Adjudication Class. Their claims are unquestionably moot, and other representatives of the Pre-Adjudication Class remain in detention to pursue class certification.
1. The Post-Adjudication Class lacks standing and its claims should be dismissed. Plaintiffs will likely contend, as they did for Ideare Bailey at the preliminary injunction hearing, that the Gerstein “capable of repetition, yet evading review” exception applies to preserve the claims of the Post-Adjudication Class. See Gerstein, 420 U.S. at 110-111, n.11. But the PostAdjudication Class fail both prongs of the Yarls test for applying the Gerstein exception: (1) the claims of the Post-Adjudication Class representatives are not too short to be fully litigated, and (2) there is no reasonable expectation that they will be subjected to the same action again in the future. Yarls 905 F.3d 905, 911 (5th Cir. 2018) (citing Turner, 564 U.S. at 440 (2011)). As to the first prong, the Post-Adjudication class representatives are not like the pretrial detainees who, in Gerstein, were found to bring inherently transitory claims. The Fifth Circuit has applied the Gerstein narrowly, finding it inapplicable in a case brought by post-adjudication plaintiffs subject to “long-term” confinement. See Rocky, 900 F.2d at 870 (listing cases). The underlying rationale is that claims brought by plaintiffs not held pre-trial, challenging conditions of long-term confinement, do not implicate the same concerns as plaintiffs alleging constitutional violations arising from the “ordinarily brief period of a claim based on pretrial detention.” Zeidman, 651 F.2d at 1049. The Eighth Circuit, in a case cited approvingly by the Rocky court, distinguished the Gerstein exception in a case which (like this one) was brought by both pretrial detainees and sentenced offenders challenging the conditions of their confinement under Section 1983. See Inmates of Lincoln Intake & Detention Facility v. Boosalis, 705 F.2d 1021, 1023-24 (8th Cir.
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1983). Both the pre-trial detainee and the sentenced detainee were released from incarceration before the district court ruled on the motion for class certification. Id. at 1023. The Eighth Circuit found that the “capable of repetition, yet evading review” exception did not apply because—unlike Gerstein which dealt only with pretrial detainees—the case before it dealt with both pretrial detainees and convicted inmates. Id. at 1024 n.2.
Similar reasoning applies to the proposed Post-Adjudication Class’s representatives in this case. Like Rocky and Boosalis, this case deals with a proposed class of “Post-Adjudication” inmates detained for a variety of reasons for “long-term” reasons. For example, before his release, Wright had been sentenced, and was detained in the Dallas County Jail awaiting transport to serve his sentence. ECF No. 39, First Amended Complaint, at ¶ 19. Plaintiffs Yarborough and Washington were detained pending transfer to special programs and treatment facilities (Plaintiffs characterize the lengths of their respective detentions as “indefinite”). Id. at ¶¶ 22-23.
The Post-Adjudication Plaintiffs also fail the second prong of the “capable of repetition, yet evading review” exception—there is no “reasonable expectation that the same complaining party will be subjected to the same action again.” Yarls, 905 F.3d at 911. Supreme Court and Fifth Circuit precedent mandate that this Court must “assume that [the Released Plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct.” United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1541 (2018). For the Released Plaintiffs to again be subject to the allegedly unconstitutional conditions of confinement within the Dallas County Jail, the Court would have to assume the opposite—that the Released Plaintiffs will again incur prosecution and be detained. However, when assuming as it must that the Released Plaintiffs will “follow the law rather than flout it,” the Released Plaintiffs’ claims are plainly not “capable of repetition yet evading review.” Yarls, 905 F.3d at 911.
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2. The released representatives of the Pre-Adjudication Class should be dismissed. The only named Plaintiffs still in detention—Sanchez, White and McDonald—seek to represent the Pre-Adjudication Class on its claims for relief under the Fourteenth Amendment. Setting aside their failure to exhaust the applicable grievance procedures, Sanchez, White, and McDonald still have a live controversy, and may continue to seek class certification up until the point the Court rules on that motion. The fact that the Released Plaintiffs seek to represent a class does not resuscitate their mooted claims. In a case where a detained plaintiff brought similar claims on behalf of a putative class, the Fifth Circuit acknowledged that, while a controversy over conditions of confinement with respect to a putative class may present an ongoing dispute for the putative class members, the class representative plaintiff who no longer suffered the conditions himself lacked a personal stake in the controversy. Rocky, 900 F.2d at 867. The same rationale applies here. Even if an ongoing controversy exists with respect to members of the proposed class, the Released Plaintiffs lack a personal stake in the “substantive aspects of the controversy.” Id. The Fifth Circuit found this lack of a personal stake at the time the district court rules on the motion for class certification to be fatal—the claims of a plaintiff who is no longer subject to the alleged unconstitutional conditions at that stage are moot. Id. In light of Sanchez, White, and McDonald remaining in detention, the Court should at the very least dismiss the Released Plaintiffs who purport to represent the Pre-Adjudication Class— Keith Baker and Ideare Bailey. Although class certification is not warranted here, the Court could, if it saw fit, certify a class with Sanchez, White, and McDonald as the representatives. But Baker and Bailey, who are not in detention (and cannot be assumed to be in detention again when the Court rules on class certification), should be dismissed.
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CONCLUSION AND PRAYER Defendants respectfully request that the Court dismiss the claims of Marcelo Perez, Roger Morrison, Keith Baker, Paul Wright, Terry McNickels, Jose Munoz, Kiara Yarborough, Olivia Washington, and Ideare Bailey for lack of standing and mootness. Defendants further request that the Court dismiss the Eighth Amendment claims of the proposed Post-Adjudication Class, set forth in Plaintiffs’ Third Claim for Relief, for lack of standing and mootness. Defendants also pray for all other and further relief to which they are justly entitled.

Date: September 25, 2020
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Respectfully Submitted,
HUSCH BLACKWELL LLP
/s/ Kate David Katharine D. David Texas Bar No. 24045749 kate.david@huschblackwell.com Nick Stepp Texas Bar No. 24077701 nick.stepp@huschblackwell.com Ben Stephens Texas Bar FNo. 24098472 ben.stephens@huschblackwell.com 600 Travis, Suite 2350 Houston, Texas 77002 Tel: 713.525.6200 Fax: 713.647.6884
/s/ Russell H. Roden Russell H. Roden Texas Bar No. 17132070 russell.roden@dallascounty.org John Butrus Texas Bar No. 03537330 john.butrus@dallascounty.org 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207 Tel: 214.653.3600 Fax: 214.653.5774 COUNSEL FOR DALLAS COUNTY, TEXAS
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CERTIFICATE OF SERVICE I certify that a copy of the foregoing was served on all counsel of record via the ECF system of the Court on September 25, 2020.
/s/ Ben Stephens Ben Stephens
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