. .\ ' .",'t-.
"". ,j•.

• ORIGINAL • Case 3:07-cv-01078-DMS -PCL Document 1 Filed 06/13/07 Page 1 of 50 . ....

••I . Tom-Tsvi M. Jawetz (pro hac vice pending)
Gouri Bhat (pro hac vice pending)

FI L_ED

2 David C. Fathi* (pro hac vice pending) American Civil Liberties Union Foundation

07 JUN ' 3 AM1/ : 28

3

National Prison Project

915 15th Street NW, 7th Floor

4 Washington, D.C. 20005

Tel: (202) 548-6610

5 *Not admitted in D.C; practice limited tofederal cOllrts

O[P UT Y

6 Judy Rabinovitz (pro hac vice pending)

American Civil Liberties Union Foundation

7

Immigrants' Rights Project

125 Broad Streel, 18th Floor

8 New York, NY 10004

Tel: (2 12) 549-2618

9

Anthony M. Stiegler (SBN 126414)

10 Mary Kathryn Kelley (SBN 170259)

Cooley Godward Kronish LLP

I I 440 I Eastgate Mall

San Diego, CA 92 12 1- 1909

12 Tel: (858) 550-6035

J3 Counsel/or Plaintiffs

14 [Additiona l Counsel Appear on Signature Page]

15

UNITE D STATES DiSTRI CT COU RT

Ca.:C$,,cV 1 078 l FOR T HE SOUTHERN DISTRI CT OF CAL IFORN IA
16 EAMMA JEA N WOODS; RIGOBERTO

RBB

17 AGU ILAR-TURC IOS; MOHAMMAD

MONFOR AU NESA; WINSTON 18 CARCAMO; FRED NGANGA NGUGI;
MARTA MONTEAGUDO-GUERRERO;

COMPLA INT I,OR IN.JUNCTIVE AND
1DECLARATORY RELIE F .J

19 LUIS ALBERTO TINOCO; SYLVESTER

CLASS ACTI ON

OWINO; GLOR IA VANEGAS; ALFREDO

20 TORO; and ROMEO FOMAI, on beha lf o f

themselves and all others similarly situaled,

21

Plaintiffs,

22

v.

23

JULIE L. MYERS, Assistant Secretary, U.S.

24 Immigration and Customs Enforcement

(ICE); JOHN P. TORRES, Director, Office of

25 Detention and Remova l Operations, ICE;

ROBIN BAKER, Director, San Diego Field

26 Office, ICE; ANTHONY CERONE, Officer-

in-Charge at San Diego Correctional Facility

27 (SDCF), ICE; NE IL SAMPSON, Interi m

Director, Division of Immigration Health

28 Services DIHS . T IMOTHY SHACK

CO~II'L" I NT

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•

• Case 3:07-cv-01078-DMS -PCL Document 1

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'Associate Director, DIHS; CAPT. PHILIP
JARRES, Branch Chief of Field Operati ons, 2 U.S. Public Health Service; LT . TONYA
WALSTON, R.N ., Managed Care 3 Coordinator for the Western Region , DIHS;
LCDR STEPHEN GONSALVES , Health
4 Services Admini strator at SDCF, DIHS; ESTHER YUN-LfNG HUI, M.D., Clinical
5 Director at SDC F, DIHS; DAVID LUSCHE,
Physician Assistant at SDCF; EDMUND 6 JEDRY, DDS, Dentist at SDCF, DIHS;
. SCOTT J. SALVATORE, Psychologist at 7 SDCF, DIHS; CORRECTIONS
CORPORATION OF AMERICA , fNC. 8 (CCA); and JOE EASTERLfNG, SOCF
Warden, CCA, 9
Defendants.
IO 1_ _ _ _ __ __ _ __ _ _--'

II 12 13 14 15 16 17 18 19
20
21 22 23
24 25 26 27 28

COMI'I .'\l NT

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•Filed 06/13/07 Page 3 of 50

TABLE OF CONTENTS

2

Page

3 INTRODUCTION ............................................................................................................. ......... .... I

4 JURISDICTION AND VENUE ..................................................................................................... 2

5 PARTIES ............::...................................:..... ....................:..............................................:............. 2

6

I. Plaintiffs .................................................,.......... ... ..... ................. ............................. 2

7

II. Defendants................................................................................. ..... .... ..................... 4

8 LEGAL FRAMEWOR K.......... .. ........................................................................................ .... ......... 9

9 FACTUAL ALLEGATIONS............................................................................................. ........... 10

10

I. The Immigration Detention Health Care System....... ................................ ........... 10

11

A. U.S. Public Health Service and the Division of Immigration

Health Services............................................................................... ........... 10 12

13

B. Necessary Medical Services are Rout inely Delayed or Denied ................ 11

14

II. SDCF's Troubled History in Correctional Heal th Care ............................. ........... 12

15

A . Medica l Care ......... ............................................................................. ....... 15

16

1.

Fai lure to Timel y Response to Sick Call Requests ....... .. .. .. .......... 15

17

2.

Fai lure to M onitor Chronic Conditions .............................. ........... 16

18

3.

Del ays in Providing Prescription Re fi lls ....................................... 20

19

4.

Fail ure to Make T imely Referra ls for Specialty Care ................... 2 1

20

5.

Critical DIH S Coverage Deficiencies......... .. ....... .... ............ ...... .. . 24

21

B. Dental Care................................................ .. ... .... ....................................... 29

22

C. Mental Health Care ................................................................................... 33

23

D. Vision Care ............................................................................................... 37

24

E.

Fatal Consequences ................................................................................... 39

25

111. Class Action Allegations............................................................................ ........... 4 1

26 CLA IM FOR RELIEF (Fifth Amendment to the U.S. Constitution) ........................................... 43

27 PRA YER FOR RE LI EF................................................................................ ................................ 43

28

I.

COMI' I.. Al iII T

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INTRODUCTION

2

1. Plaintiffs are civil immigration detainees in the custody of U.S. Immigration and

3 Customs Enforcement (ICE), part of the U.S. Department of Homeland Security (DHS).

4 Plaintiffs are housed at San Diego Correctional Facility (SDCF). a contract detention facility in

5 atay Mesa, California operated by Corrections Corporation of America, Inc. (eCA). eCA is the

6 largest private, for-profit provider of detention and corrections services in the nation. Pursuant to

7 a contractual agreement with ICE, eCA houses approximately 600-800 male and female

8 immigration detainees at SDCF for periods of time ranging from several weeks to several years.

9 On-site medical services at SDCF are provided by the U.S. Public Health Service (USPHS) and

10 contract employees. In order to provide off-site care such as diagnostic testing, hospitalization,

II and specialty care, medical personnel at SDCF must obtain prior approval from the Division of

12 Immigration Health Services (DIHS), a component of the U.S . Department of Health and Human

13 Services (HHS).

14

2. Plaintiffs allege that the medical, mental health, dental, and vision care provided to

15 detainees at SDCF is grossly deficient, causing them great physica l suffering and mental anguish,

16 that amounts to puni shmen t in violation of the Fifth Amendm ent to the United States

17 Constitutio n. SDCF medical sta ff routinely ignore requests for urgent care by detainees with

18 dangerous and painful health problems. Detainees often must submit multiple written sick call

19 requests, over the course of several weeks or months, before they are ab le to see a doctor or nurse.

20 When they are seen by medical staff, detainees typically receive superficia l or inappropriate care,

21 often by staff unqualified to provide proper care. In many cases, detainees receive nothIng more

22 than pain medication for their medical prob lems and are denied necessa ry treatments and essential

23 diagnostic tests based on officia l DIHS policies that result in unnecessary pain and suffering, and

24 create a substantial risk of serious injury or death. Health care for immigration detainees around

25 the country, and at SDCF, is premised on the often-false notion that detention is short-tenn. In

26 truth, many detainees spend months or years awaiting a final detennination of their immigration

27 case, and are forced to suffer needlessly as a result of defendants' polices and practices. In some

28 instances, the denial of treatment-and the physica l and mental anguish that result-further

I.

COM I' I .AIN'I'

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pressure detainees to waive their legal rights in immigration proceedings in order to expedite their

2 removal from the United Stales and their release from detention.

3

3. Defendants' actions, detailed herein, deny basic human needs, inflict unnecessary

4 pain and suffering, and put plaintiffs at substantial risk of physical injury, illness, and premature

5 death. Plaintiffs seek injunctive and declaratory relief"to remedy this serious and ongoing"

6 violation of their rights.

7

JURISDICTION AND VENUE

8

4. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. §

9 1331 because it arises under the Constitution and laws of the United States.

\0

5. This Court has authority to grant declaratory relief pursuant to 28 U.S.C . §§ 2201

11 and 2202, and Rule 57 of the Federal Rules of Civil Proced)Jfe.

12

6. This Court has authority to grant injunctive relief in this action pursuant to 5

13 U.S.c. § 702, and Rule 65 of the Federal Rules of Civil Procedure.

14

7.

Venue is proper in this judicial district pursuant to 28 U.S.C. § 139I(b){2) because

I S a substantial pal1 of the events and omiss ions giving rise to plaintiffs ' ~Iaims occurred, and

16 continu es to occur, in th is di stri ct.

17

PARTiES

18 I.

Plaintiffs

19

8. Plaintiffs Eamma Jean Woods, Rigoberto Aguilar.Turcios, Mohammad Monfor

20 Ali Nesa, Win ston Carcamo, Fred Ngang<l Ngugi , Ma J1a Monteagudo·Guerrero, Lui s Alberto

21 Tinoco , Sylvester Owino, Gloria Vanegas, Alfredo Toro , and Romeo Fomai are immigration

22 detainees in ICE custody who have been detained pursuant to ci vil immigration laws. They are

23 currently being housed at SDCF.

24

9.

Plaintiff Eamma Jean Woods is a 4S·year·old woman from Honduras who arrived

2S in the United States as a three· year·old child. She has been detained at SDCF since July 28.

26 2006. Woods suffers from neurofibromatosis. and has been complaining throughout her

27 detention of a painful glomus tumor on her finger. Woods also suffers ITom an untreated seizure

28 disorder, as well as bipolar disorder and depression.

2.

COMJ'I .i\INT

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10. Plaintiff Rigoberto Aguilar-TuTtios is a 27-year-old man from Honduras who

2 entered the United States when he was 16 years old as a lawful penn anent resident. He has been

3 detained at SDCF since November 8, 2005. Aguilar-Turcios has experienced serious dental pain

4 and vision problems at SDCF, and has received no treatment for either condition.

S

11. Plaintiff Mohammad Monfor Ali Nesa is a 37-year-old Bangladeshi man who has

6 been detained at SDCF since May 2005. Ali Nesa has been diagnosed by a doctor from Survivors

7 of Torture, International, with depression and posHraumatic stress disorder resulting from an

8 incident in which his mother was murdered before hi s eyes. He has received inconsistent

9 counseling and inadequate medication management for his mental health problems at SDCF. As

lOa result, members of the medical staff at SDCF have recognized that Ali Nesa is at increasing risk

II of suicide. Ali Nesa also suffers from headaches and chest pain and complains of bleeding in his

12 mouth and a burning pain in hi s penis when he urinates . Medical personnel at SDCF have not

13 propeil y explored any of these complaints.

14

12. Plaintiff Winston Carcamo is a 44-year-old detainee from Belize who has been

15 detained at SDCF since September 25, 2006. Pri or to entering ICE custody, Carcamo underwen t

16 surgery to co mpl etely remove hi s right eye. For nearl y nine month s at SDCF, Carcamo regu larly

17 requested access to an eye specialist, first to assess hi s ocu lar health, and then to implant a

18 prosthesi s into hi s eye socket to preserve the physica l integrity of the eye.and preven t penn anent

19 di sfigurem ent.

20

13. Pla intiff Fred Nganga Ngugi is a 38-year-old man from Kenya who entered the

21 United States with a student visa on August II , 1998. He has been detained at SDCF since

22 December 30, 2005. Ngugi has been diagnosed with bipolar disorder and has taken medication

23 for this cond ition for several years; because of inadequate mental health care at SDCF, Ngugi is

24 cu rrent ly recei ving no treatment fo r his serious mental health condition. Ngugi has also

25 experienced serious dental problems at SDCF.

26

14. Plaintiff Marta Monteagudo-Guerrero is a 25-year-old woman from EI Salvador

27 who has been detained al SDCF sin ce August 26, 2006, and is cu rrently applying for asylum.

28 Monteagudo-Guerrero suffers from significant dental pain and vision problem s, and has not

3.

CO~lr· I . AI"~l"

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received adequate gynecological care whil e in detent ion.

2

15. Plaintiff Luis Alberto Tinoco is a 64-year-old man from Nicaragua who arri ved at

3 S DCF on September 29, 2003. Tinoco s uffers from several medical problems, including Type 2

4 diabetes, hypercholesterolemia, hypertension , and hemorrhoids.

5

16. Plainti ff Sylvester Owino is a 31-year-old man from Kenya. He has been detaine<l

6 at SDCF si nce November 7,2005. Owino suffers from hypertens ion and chronic asthma, and has

7 experienced dental pain and vision problems in the 18 month s since he arri ved at SDCF.

8

17. Plaintiff G loria Vanegas is a 42-year-old woman from Colombia who has been

9 detai ned at SDCF since August.20, 2006. Vanegas is seeking asylum after receiving death threats

10 in Colombia. Vanegas suffers from thyro id problems in addi tion to a serious medical condition

I I that causes cysts to grow in her breasts and ovaries.

12

18. Pl aintiff Alfredo Toro is a 58-year-old man from Colombia. He first arrived at

13 SDCF on June 23, 2006. Toro suffers from hypertension and requires the use of glasses both for

14 d istance vision and for readi ng.

15

19. Pl aintiff Romeo Fomai is a 36-year-old man from Samoa with gend er identity

16 d isorder. He first arri ved at SDCF on December 13,2006. Fomai cons istentl y received hormone

17 therapy li·om 1986 until December 2006, when he entered SDCF. Fomui also is infected with the

18 hepati ti s C viru s, suffers from depression and has a history o f suic idal tho ughts.

19 II. Defe nda nts

20

20. De rend an t Julie L. Myers is Assis tant Secretary for U.S. Immigration and Customs

21 Enforcement (ICE), the ann of DHS charged wi th detaining and removing non-citizens pursuant

.22 to federal immigration law. As the lOp officia l at ICE, Myers sets detenti on and removal

23 pri oriti es and has ultimate responsib ili ty for the safety and well-being of persons deta ined in ICE

24 custody. The Office of Detention and Remova l Operations (O RO), a division of ICE, manages

25 the daily detention of approximately 27,000 imm igrati on detai nees. Myers supervises the official

26 conduct of all DRO officials and may appoint and remove s ubordinate defendants named herein.

27 The DHS Secretary, Michael Chertoff, is specifically autho ri zed by Congress to allocate funds to

28 provide necessary clothing, medical care, housing, and security for immigration detainees. See

4,

CO~ IIJI .AI J,"T

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. .

• Case 3:07-cv-01078-DMS -PCL Document 1

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inter alia 8 U.S.c. § 1103; 6 U.S.C. §§ 112, 251 and 557. As Assistant Secretary (under

2 Chertoff) in charge of immigration detention, Myers controls the allocation of monies in the

3 DHS-ICE budget for detention and removal operations and, specifically, the care and treatment of

4 ICE detainees. In a letter dated September 11 , 2006, Myers provided the official ICE response to

5 the OIG audif report on the treatment of immigration detainees at five "detention facilities,

6 including SDCF. See ~ 56, infra.

7

21. Defendant John P. Torres is the Director of DRO for ICE and is responsible for the

8 safe, secure, and humane housing of immigration detainees in ICE custody. The primary

9 responsibility of ORO is to provide adequate and appropriate custody management of

10 immigration detainees until a decision is rendered regarding their removal or release. ICE-DRO

II headquarters staff are supposed to conduct annual inspections of each facility used to house

12 immigration detainees, including SDCF, and assess them for compliance with ICE Detention

J3 Standards, including medical care standards. Torres oversees the DRO workforce, including ICE

14 field officers, deportation officers, compliance review officers, and officers assigned to detention

15 facilities. Torres is respons ible for setting ORO policy with respect to the detention of foreign

16 nationals, and for the administrat ion and operation of DRO. .

17

22. Defendant Robin Baker is the Director of 'the San Diego Field Office for ICE-

18 ORO, which has jurisdiction over SOCF and oftic ial contro l ovcr detention and removal

19 operations at the facility. Baker oversees transfers of immigration detainees into and out of

20 SDCF and fonnally approves all placcments of detainees at SOCF. Detainees and th eir advocates

21 often lodge complaints about detention conditions with ICE officers at the local fi eld office

22 responsible for their facility. As director, Baker supervi ses and oversees all ICE staff at the San

23 Diego Field Office, including staff who field such complaints and ha ve regular cont act with

24 detainees.

25

23. Defendant Anthony Cerone is the ICE Officer-in-Charge at SDCF, and Assistant

26 Field Office Director of the ICE San Diego Field Office. As the Officer-in-Charge at the facility,

27 Cerone is the immediate legal custodian of the ICE detainees at SDCF and is directly responsible

28 for their care and treatment while in detention there. Cerone has authority to transfer detainees

5.

CO~II'I .A INT

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•Filed 06/13/07 Page 9 of 50

·into and out of the facility and supervises all ICE employees at SDCF. On infonnation and belief,

2 Cerone also has significant oversight over the actions of CCA employees at SDCF, including the

3 Warden, pursuant to the DHS-ICE contractual agreement with CCA to house immigration

4 detainees at the facility. Cerone is responsible for ensuring SDCF's compliance with the ICE

5 Detention Operations Manual (ICE Detention Standards), as well as CCA's compliance with its

6 contractual obligations. Cerone supervises a Contracting Officer's Technical Representative

7 (COTR) and a Compliance Review Officer, both ICE employees, who work on-site at SDCF to

8 assist in monitoring compliance with the ICE Detention Standards and other applicable standards.

9 In addition, Cerone and/or his direct subordinates establish, monitor, and oversee detainee

10 grievance procedures and serve as members of the detainee grievance committee at SDCF (along

II with CCA emp loyees). Under the ICE Detention Standards, Cerone conducts the final level of

12 review for grievances filed at the faci lity. In addition, detainees frequently file complaints

13 directly with deportation officers operating under t.he supervision of Cerone, usi ng "Detainee

14 Request Fonns" issued by the ORO office on-site at SDCF. Cerone also is required to meet

15 regularly with the on-site U.S. Pub lic Health Service (US PHS) Health Services Administrator to

16 review the effectiveness of the facility health care program and to recommend necessary

17 corrective actions .

18

24. Defendant Neil Sampsoll is the Interim Director of DIHS and a Commissioned

19 Corps Officer of the US PHS. DIHS, a component of HHS , provides and oversees health care

20 services to immigration detainees pursuant to an Interagency Agreement between ICE and HHS.

21 DIHS also provides primary on-site medical , mental health, denta l, and vision care to detainees at

22 SDCF. As the Interim DirectorofD IHS, Sampson sets national po licy for the provision of health

23 care services to immigration detainees and is ultimately responsible for the determination of what

24 services are covered by DIHS for detainees in ICE custody.

25

25. Defendant Timothy Shack, M.D. is the Associate Director for Medical Services at

26 DIHS. As such, Shack is responsible for the administration and provision of health care services

27 to individua ls in ICE custody, and for developing and ensuring compliance with policies,

28 procedures and clinical guidelines reiated to detainee health care.

6.

COMI'LAINT

....

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26. Defendant Captain Philip larres is the Branch Chief of Field Operations for

2 USPHS and a Commissioned Corps Officer of the USPHS. Jarres receives a copy of all

3 comp laints regarding detainee medical and mental health care that are directed to ICE

4 headquarters in Washington, D.C. from immigration detainees and advocates around the country.

5 larres supervises the performance of USPHS Health Services Adm inistrators"around the country.

6 including the performance of the Health Services Administrator at SDCF. Jarres participates in

7 the implementation and development of national policies on the provision of health care to

8 immigration detainees, and directly oversees each facility's compliance with those policies.

9

27. Defendant Lieutenant Tonya Walston, R.N., is the DIHS Managed Care

10 Coordinator for the Western Region . As such, Walston is responsible for responding to requests

II for pre-authorization of detainee health care services from medical providers and ICE officials at

12 immigration detention faci lities in the Western Region, which includes SDCF. Pre-authorization

13 from the DIHS Managed Care Services Un it is required for various health care services, including

14 off-site visits with specialists and surgical procedures.

15

28. Defendant Lieutenant Commander Step hen Gonsalves is the USPHS 'Health

16 Services Administrator at SDCF. As the Health ·Services Administrator, Gonsalves is responsib le

17 lor the daily administration and fun ct ioning of the medica l, menta l health , dental , and vision

18· services at SDCF, and for the quality and adequacy of those services. On infonnation and belief,

19 Gonsa lves oversees requests for treatment authori zation subm itted by SDCF medical staff to the

20 DIHS Managed Care Coord inator, as well as responses by DIHS to such requests.

21

29. Defendant Esther Yun-Ling Hui, M.D. is the USPHS Clinica l Director at SDCF.

22 As Clinical Director, Hui is responsib le for the provision of medical services to inclivildual,

23 detained at SDCF, and for the quality and adequacy of those services. On infonnation and

24 as Cl inical Director, Hui also oversees the provision of mental health services at SDCF.

25 also responsible for requesting from the DIHS Managed Care Coordinator authOl;z?

26 provide certain fonns of treatment, diagnostic testing, hospitalization, and specialty

27

30. Defendant David Lusche is a physician assistant at SDCF. Lusche

28 for providing direct patient care to individuals detained at SDCF. and for

7.

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•Filed 06/13/07 Page 11 of 50

DIHS Managed Care Coordinator authorization to provide certain forms of treatment, diagnostic 2 testing, hospitalization, and specialty care.

3

31. Defendant Edmund Jedry, D.D.S., is the dentist at SDCF. As such, he is

4 responsible for the provision of dental services to individuals detained at SDCF, and for the

5 quality and adequacy of those services.

6

32. Defendant Scott J. Salvatore IS the psychologi st at SDCF. As such, he is

·7 responsible for providing direct men~al health services to individuals detained at SDCF. On

8 information and belief, additional psychiatrists and psychologists perfonn part-time mental health

9 services at SDCF pursuant to a contract with Pacific Health Systems, L.P.

10

33. Defendant Corrections Corporation of America, Inc. (CCA) is a for-profit, private

II corporation incorporated and existing in the State of Maryland and maintaining a principal place

12 of business at 10 Burton Hill s Boulevard, Nashville, Tennessee 372 15. Pursuant to a contract

13 with DHS-ICE, CCA houses immigration detainees in ICE custody at SOCF, a facility managed

14 and operated primarily by CCA employees.

15

34. Defendant Joe Easterling, a CCA employee, is Warden at SOCF. As Warden,

16 Easterling has ultim ate supervisory authority over all correctional officers, security personnel and

17 olher CCA slaff at SOCF. He is responsible lor establishing and maintainin g CCA 's policies and

18 practices with respect to accommodating detainees with particular medical needs and carrying ou t

19 the instructi ons of SOCF medical personnel co ntained in special needs fonns (i.e., chronos).

20 Easterling is also responsible for CCA' s policies and practices pertaining to arranging

21 transportation for detainees schedu led to attend off-site medical appointments, use of force and

22 segregation at SOCF. Easterling oversees the daily administration and functioning of SOCF and

23 is responsible for the safe, secu re and humane housing of detainees at the faci lity. Easterling

24 conducts the final review of grievances filed by detainees at SDCF using the "CCA

25 Inmate/Resident Grievance Fonn," including those grievances that pertain to inadequate medical

26 care.

27

35. All defendants are sued in their official capacities.

28

36. At all relevant times, all defendants were acting under color of federal law,

8.

---- - -- -- - - - -- - - --

.....

,

• Case 3:07-cv-01078-DMS -PCL Document 1

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pursuant to their authority as officials, agents, contractors or employees of U.S. governmental

2 agencies or entities.

3

37. At all rel evant times, defendant Easterling was act ing within the scope of his

4 employment as an agent and employee of CCA.

5

LEGAL FRAMEWORK

6

38_ The Constitution requires government actors to ensure the safety and general well-

7 bei ng of all persons taken into custody, including non-ci tizens and persons who are not legally

8 admitted to thi s country. Convicted pri soners are protected by the Eighth Amendment , which

9 prohibits cruel and unusual punishment despite an adjudication of crimi nal guilt. Immigration

10 detainees, like plainti ffs, are protected by the Fifth Amendment. which prohibits any person

11 acting under color of federal law from subjecting any person in the custody of the United States to

12 punitive conditions of confinement without due process of law.

13

39. It has long been establi shed that imm igration detainees, li ke pre-trial detainees, are

14 prOlected from conditi ons that amou nt to punishment. See Wong Wing v. United Slates, 163 U.S.

15 228, 237 (1896) _ More recently, the U.S_ Court of Appeals for the Ninth C ircuit has held that

16 cOl1(lit ions of confinement fo r civi l detain ees must be superior (0 those of pre-tri al detainees, who,

17 though not adjudged gui lt y of a crime. are held pursuant to crim inal processes. Jones v. Blanas,

18 393 F.3d 9 18, 932 (9th CiL 2004), cerl. denjed, 126 S.C'- 35 1 (2005)_ If a civi l detainee is

19 confi ned in cond it ions th at are identical to, simil ar to, o r more restrictive than those under whi ch

20 pre-t ria l detainees or convicted prisoners are held . then those cond itions. are presumptively

21 punit ive and unconstitutional. !d. at 934. By definition , immi gration detainees in the custody of

22 ICE are civil detai nees held pursuant to civil immi gratio n laws, and thus are entitl ed to the higher

23 standard of protection art iculated in Jones .

24

40. The Eighth Amendment prohibits " (dJeliberate indifference to

25 needs." Estelle v. Gamble. 429 U.S. 97, 104 (1976). However, civil immigration detainees

26 not demonstrate "deliberate indifference" to establish a violation of the con stitutional .

27 process. See 8/anas, 393 F.3d at 933-34. A seri ous medical need exists where " the

28 treat a prisoner' s condition cou ld result in further signifi cant injury or the

9.

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wanton infliction of pain." Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (internal

2 quotation marks omitted). Other factors to consider include "(1) whether a reasonable doctor or

3 patient would perceive the medical need in question as important and worthy of comment or

4 treatment; (2) whether the medical condition significantly affects daily activities, and (3) the

5 existence of chronic and substantial pain." Brock v. Wright, 315 F.3d 158, 1'62 (2d CiT. 2003)

6 (internal quotation marks omitted).

7

41. Plaintiffs seek classwide declaratory and prospective injunctive relief against

8 defendants sued in their official capacities for ongoing constitutional violations committed under

9 color of federal law.

10

FACTUAL ALLEGATIONS

11 I. The Immigration Detention Health Care System

12

A. U.S. Public Health Service and the Division ofImmigration Health Services

13

42. USPHS provides medical, surgical, psychiatric. and dental care to immigration

14 detainees around the country pursuant to federa11aw. See 42 U.S.C. § 249(a); 42 C.F.R. § 34.7(a)

15 (2003). This task is largely carried out by DIHS, a component of the Health Resources and

16 Services Admin istration (HRSA) of HHS. Pursuant to an Interagency Agreement between ICE

17 and HRSA , DIHS serves as the medical authority of ICE and prov ides a variety of services to

18 immigration detainees around the coun try In accordance with ICE guidelines and directives.

19 However, ICE explicitly retains the exclusive right to define the requirements of the ICE medical

20 program.

21

43. In the majority of facilities that house immigration detainees, neither DIHS nor

22 USPHS have any on·site presence. At such facilities, medical care may be provided either by the

23 county or private company that owns or operates the facility pursuant to an intergovernmental

24 service agreement or contract with ICE. or by a private. for-profit company that specializes in

25 correctional health care. At other facilities, such as SDCF, on- site care is directly provided by

26 DIHS, commissioned officers of the US PHS, and contract employees.

27

44. In all facilities that house immigration detainees, including those in which DIHS

28 has no on-site presence, DIHS ultimately manages detainee health care through a managed care

10.

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network that must approve or deny certain forms of medical care pursuant to official DIHS

2 policies, including the Detainee Covered Services Package (the "DIHS Benefits Package"). In

3 order for on-site medical personnel to prescribe certain medications, order laboratory tests or

4 procedures to be done, or refer detainees to outside specialists for evaluation, hospitalization, and,

5 uJ'timately, treatment, prior authorization must be obtained from a DIHS Managed Care

6 Coordinator. Such authorization is sought through the submission of a Treatment Authorization

7 Request (TAR) form. Defendant Tonya Walston is the DIHS Managed Care Coordinator for the

8 Western Region, and is now responsible for handling all such requests from SDCF, in addition to

9 all other facilities in the western region of the United States.

\0

B. Necessary Medical Services are Routinely Delayed or Denied

II

45. Requests for necessary medical services are routinely delayed or denied by DIHS

12 in order to reduce the cost of medical care. Because immigration detention is perceived to be

13 short-tenn, medical personnel and persons charged with authorizing treatment delay or deny

14 treatment in the hope that detainees will be removed from the United States or released from

15 detention sooner, rather than later. This perception is often inco rrect, as detainees with serious

16 medical needs may spend months or years in detention pursu ing their right to remain in the

17 United Sta tes or seek refuge here. The denial of treatment increases pressure on immigration

18 detainees to abandon thei r req uests fo r relief and any available appeals in order to exped ite their

19 removal from the United States.

20

46. The general principles reflected ill the DIHS Benefits Package fonn the fou ndation

21 for DIHS's pervasive practice of refusing to provide necessary medical services to immigration

22 detainees. From the outset, DIHS policy states that "[t]he DIHS Detainee Covered Services

23 Package primarily provides health care services for emergency care. Emergency care is defined

24 as ' a condition that poses an imminent threat to life, limb, hearing, or sight.'" The DIHS Benefits

25 Package goes on to state that "[e]lective, non-emergent care requires prior authorization," but that

26 "[r]equests for pre-existing, non-life threatening conditions, will be reviewed on a .case by case

27 basis." The Benefits Package recognizes that "[o]ther medical condi tions which the physician

28 believes, if left untreated during the period of ICEIBP custody, would cause deterioration of the

II.

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detainee's health or uncontroll ed suffering affecting hislher deportation status will be assessed

2 and evaluate,d for care"; however, in practice this simply encourages delaying treatment until the 3 period of ICE custody is coming near to an end, at which point treatment becomes even less

4 likely to occur pursuant to the Benefits Package.

5

47. The specific coverage determinations that flow from these principles and guide··the

6 authorization decisions of the DIHS Managed Services Unit and the treatment decisions of the

7 med ical staff at SDCF further reflect a policy of delay and denial of care. Detainees experiencing

8 dental pain are routinely to ld that no denta l care is provided within the first year of detention.

9 Outside of an emergency (i.e., "imminent threat to life,limb, hearing, or sight"), detainees are not

10 entitled to hearing tests or screening; virtually all forms of eye surgery, including cataract

11 removal; short-term or long-term rehabilitation services; orthopedic dev ices, such as shoes or

12 braces; prescription eyeglasses or reading glasses; and routine eye exam inations for non-acute

13 vision loss. Routine gynecological examinations, including pap smears, will only be considered

14 for detainees who have been in ICE custody for one year and there is no indication that remova l is

15 imminent.

16

48. Defendants Sampson, Shack and Jan'es participate in the formulation,

17 imp lementation, and management of these polices. In August 2006, Janes led a DIHS Inspection

18 Team on a tour of al l detention si tes at which USP HS and D IHS provide patient care lor the

19 purpose of conducting a comprehensive review of each fac il ity' S compliance with national

20 detainee health care policy. On information and be1ict~ these defendants are aware of the

2 1 deleterious effect these polices have on immigration detainees around the country.

22 II . SOCF's Troubl ed History in Co rrectional Hea lth Ca r e

23

49. In many of the facilities that CCA runs, CCA . provides medical services to the

24 people in its care. This was once true at SDCF. On or about June 1, 2002, DIHS relieved CCA

25 of this responsibility, making SDCF one of the only contract detention facilities in the country in

26 which immigration detainee health care is provided directl y by D IHS and US PHS.

27

50. The decision to end CCA's provision of hea lth care was made following a tour of

28 SDCF conducted by Captain Neal Co lli ns, M.D., then Medical Director of the Cli nica l Services

12.

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Branch of DIHS. Collins concluded that the level of health care provided by CCA was deficient,

2 and sugg~ted that CC;;A was attempting to increase its profits by decreasing the medical services

3 provided to detainees.

4

51. Even after DJHS assumed responsibility for medical care at SDCF, however,

5 serious problems remained. In August 2003, the Detention Management" Division of the

6 Department of Homeland Security conducted a review ofSDCF's level of compliance with ICE 's

7 National Detention Standards. The reviewers identified immediate staffing needs in the provision

8 of medical care, including a full-time psychologist; increased psychiatric services; increased use

9 of registered nurses, rather than licensed vocational nurses; and a second primary care physician.

10 The reviewers also found the phannacy space to be substandard .

II

52. The DHS Office of Inspector General (OIG) publicly revealed additional serious

12 problems following an audit of the faci lity that took place in 2005. Out of more than 300 jails,

13 prisons and other facilities around the country hold ing immigration detainees, the OIG initially

14 decided to focus its review on ten facil it ies. That list often faci lities was ultimately reduced to

15 only five facilities due, at least in part, to the volume of complaints received from those facilities,

16 particularly SDCF. Audi tors toured the facilities, reviewed written complai nts by detainees, and

17 conducted numerous in- person interviews of detainees.

18

53. OIG field·auditors visited SDCF over a period of approximately ten weeks in early

19 2005. In addition, the OIG conducted seven weeks of document review related to the San Diego

20 facility. On January 16, 2007, after numerous delays, the OIG released ils audit repon .

21 Department of Homeland Security, Office of Inspector General, Treatment of Immigration

22 Detainees Housed at Immigration and Customs Enforcement Facilities, 0IG-07-01 (December

23 2006), ,v,il,ble " http://www.dhs.gov/xoigiassetslmgmtrpts/OIG_07-01_Dec06.pdf (OIG Audit

24 Report). The OIG Audit Report indicates that 210 detainees at SOeF responded to the OIG's.

25 request for infonnation about conditions of confinement and allegations of mistreatment at the

26 facility-more Ihan twice as many as at any of the other four facilities that were audited. Id. at

27 39. The report identifies significant fai lures in the provision of health care ~t SOCF. Mor~ than

28 half the detainees whose files auditors reviewed were not given a physical exam within two

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weeks of entering SDCF, and were not seen by a physician or qualified medical officer wi thin

2 thre,e days of submitting a request for medical att ention. Id. at 4.

3

54. On information and belief. all defendants were made aware of the ~IG 's concerns

4 with respect to inadequate medical care at SDCF at the time of the audit, and of the aud itors'

5 findings regarding the facility-including fi ndi ngS that may not have been published in the

6 offici al DIG Audit Report. Despite this knowledge, defendants failed to take or sustain

7 meaningful corrective action in response to these findings.

8

55. The DIG Audit Report also concluded that ICE DRO 's annual detention review of

9 SDCF in 2004 failed to identify problems regarding health care and general conditions ' of

10 confinement observed by the OIG during its audit, and that a final rating of "Acceptable" was

II granted to SDCF despite the aforementioned problems. Jd. at 36. On information and belief, as

12 Director of ORO defendant Torres was made aware of the results of ICE ORO's annual detention

13 reviews and approved both the inspection methods and the fina l rating given to facilities such as

14 SDCF.

15

56. Defendant Myers, who provided the oflicial ICE response to the OIG draft report

16 III September 2006, specifically rejected the O IG's recommendation that ICE "[a]scertain the

17 reasons that areas of no n-compliance identified by ICE inspections of detention faci liti es were

18 significantly less than the non-comp liance deficienc ies identi fied by [the OIG}." Id. at 5 1. Myers

19 asked that the recommendatio n be cons id ered resolved and closed. Jd. at 52.

20

5.7. Despite identifying many scrious problcms at SDCF, the OIG Audit Report' s

2 1 find ings ba rely scratch the surface of SDCF' s grossly in adequate provision of health care.

22 Although the aud ito rs noted that not all detainees on sui cide watch received regul ar, req uired

23 monitoring, the O IG Audi t Report fai ls to mention that n mentally ill detainee comm itted suicide

24 at the facility prior to the auditors' visit. The OIG Audit Report also fails to mention that an

25 immigration detainee with serious medical probl ems died shortl y before the OIG visit, and that

26 another detainee with medi cal problems died in June 2006.

27

28

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58. On information and belief, defendant Jarres visited SDCF in or around August

2 2006 with a DIH S Inspection Team and reviewed the facility's compliance with national DIH S

3 health care policies.

4

59. On information and beli ef, all defendants are aware or should be aware of the

5 . systemic deficiencies in the provision of medical, dental, mental health, and vision services at

6 SDeF.

7

A. Medical Care

8

1. Faillire to Timely RespoIJd to Sick Call R eque:,'ts

9

60. At the time that the 010 visited SDCF, the facility's policy allowed medical

10 personnel 72 hours to respond to a sick call request. !d. at 4 . Despite the fact that even this

I I policy does little to ensure a prompt response to serious medical needs, in more than half of the

12 cases reviewed by 0 10 auditors, detainees did not receive any response within 72 hours of

13 making a request for medical care.

14

61. One critical flaw in the preservation of med ical records al SDCF is that sick call

15 request forms are not mai ntained in the med ica l file. As a result, based o n a simple review of a

16 detainee's medical records it is impossible to tell when a dctainee tirst submitted a sick call

17 request in connection with H medica l problem , and unless the substance of the sick call request

18 was transcribed into the medica l records it is impossible to tell whether the subject ma tter of the

J 9 sick call slip was actually responded to. By separat ing sick call requests from a detainee's

20 medical records, it is dirticult for medical personnel to make quality assessments about whether

21 sick ca ll requests are responded to in a manner that is timely, effective, and comp lete.

22

62. Add itionally, when deta inees submit a sick call request they are neither provided

23 with a carbon copy of the sick call request, nor provided a written response. As a result. it is

24 difficult for detainees to track their past requests for medica l treatment and to advocate for an

25 immediate response to a serious medical condition.

26

63. Abdelwahab Mohamed Abde lwahab was recen tly deported from the United States,

27 after having spent approximately ten months in detent ion al SDCF. Abdelwahab suffers from

28 diabetes, hypertension, and dysli pidemia. Throughout the course of hi s detention he submitted

15.

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numerous sick call requests, but often received no response.

2

64. After filing multiple sick call requests in connection with severe dental pain,

3 plaintiff Fred Nganga Ngugi was infonned that his complaint would be forwarded to the facility

4 dentist. Months later, prior to receiving any follow-up, Ngugi's tooth crumbled in his mouth.

5

. 65. On inforination and belief, many other detainees, including several of the named

6 plaintiffs, also have experienced delays in receiving a response to sick call requests.

7

2. Failure to Monitor Chronic Conditio"s

8

66. Medical care for detainees with chronic conditions is seriously deficient at SDCF.

9 Detainees who suffer from chronic illnesses such as hypertension, diabetes, and asthma, have

10 serious 'medical needs that require adequate monitoring and consistent, comprehensive care.

II Until August 25, 2005, the DIHS Benefits Package mandated follow-up care and testing for such

12 detainees every three months. On August 25, 2005, the Benefits Package was modified to

J3 eliminate mandatory follow-up for detainees with chronic conditions. However, even before this

14 change chroni cally ill detainees at SDCF have long faced difficulties 'receiving appropriate

15 monitoring and treatmcnt. Many detainees with chronic conditions receive no monitoring at all,

16 while others receive chro nic care appointments in name only.

17

67. Plaintiff Luis Alberto Tinoco suffers from diabetes, hYPcl1cnsioll, and

18 hypercholestero·lem ia. In November 2005, before Tinoco required insulin to control hi s diabetes,

19 Tinoco complained that his blood sugar had not been checked for approximately two weeks

20 despite orders that hi s blood sugar be checked three timcs per week. On November 16, 2005,

21 Tinoco met with Dr. Gerard Bazile, the fanner clin ica l director of SoC F. Tinoco's visit was

22 tenned a "chronic appointment" for hypertension, but his hypertension was not addressed at the

23 visil. Rather, Tinoco reiteraled his complaint that his blood sugar was not being checked and Or.

24 Bazile issued another order requiring.that Tinoco 's blood suga r be checked three times per week

25 for two months . Or. Bazile did not, however, have Tinoco' s blood sugar checked during the

26 appointment. One month later, on December 16, Tinoco returned for a "chronic appointment" in

27 connection wi th his diabetes and hyperlip idemia. At this point Tinoco's blood sugar st ill not had

28 been checked , and he had gone nearly two months without having hi s blood sugar monitored.

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The physician assistant who met with Tinoco again issued an order that Tinoco receive blood

2 sugar tests three times a week for two weeks, but it was not until eight days later that he finally

3 had his blood sugar checked.

4

68. Chronic care for Tinoco's diabetes has been seriously deficient in many other

5 areas' as well. Although diabetics should have an annual check up with an ophthalrriologist,

6 Tinoco went nearly three years without visiting an ophthalmologist for an eye exam. This is

7 particularly disturbing in Tinoco's case, given that defendant Lusche, the physician assistant who

8 has occasionally examined Tinoco's eyes at SDCF, has identified abnormalities on at least two

9 occasions without taking any action. Although medical staff have issued numerous orders stating

· 10 that Tinoco is to receive a special diabetic diet, he is routinely provided with the same food that is

II served to the rest of the detainees. When he is provided with a special diet for diabetics, the diet

12 generally consists of the same food as the rest of the detainees, plus one piece of fruit and a small

13 container·ofmilk.

14

69. Tinoco's experience is hardly unique. Abdelwahab Mohamed Abdelwahab also

I

15 sutfered from diabetes, hypertension , and dyslipidemia. Throughout his nearly ten months in

16 detention, Abdelwahab's blood sugar, blood pressure, and cholesterol were rarely checked; he

17 often went severalmoll ths without any monitoring of his serious chronic conditions. On multiple

18 occasions when hi s blood pressure was checked, Abdelwahab's blood pressure readings were

19 elevated. Notwithstanding the fact that it is particularly dangerous for diabetics to have high

20 blood pressure, medical staff took no actions to ackno wledge the elevated readings or respond

21 appropriately. .Abdelwahab never had his eyes examined at SDCF and regularly complained

22 about swelli.ng in his feet.

23

70. Plaintiff Sylvester Owino was diagnosed in childhood with asthma, and arrived at

24 SDCF from state custody in November 2005 with two asthma pumps. Owino's asthma pumps

25 were placed in hi s property box and he was infonned that he would receive new asthma pumps

26 from USPHS at SDCF. Owino complained about difficulty breathing on several occasions and

27 requested asthma medication, but it was not until June 2006 that medical staff examined him and

28 confirmed his persistent asthma. He was prescribed a steroid i"nhaler to be used twice daily, but

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was not prescribed a rescue inhaler such as Albuterol for emergency use. Despite the fact that his

2 steroid inhaler was supposed to be used twice daily as prescribed and then refilled, Owino did not

3 receive a refill until nearly four months after he first received the inhaler. On at least one

4 occasion when Owino felt tightness in his chest and difficulty breathing, due in part to the poor

5 ventilation in the cells and the humidity caused by having 'three men housed in a-two-person cel1~

6 Owino borrowed another detainee's inhaler. Although asthma is a chronic medical condition,

7 Owino's asthma has never been monitored at SDCF, and he has never received proper and

8 consistent medication for this serious condition.

9

71. Plaintiff Romeo Fomai is infected with the hepatitis C virus. Fomai received this

10 diagnos!s while he was in state custody, prior to aniving at SDCF. While in state custody, Fornai

II received pamphlets and other infonnational materials concerning the hepatitis C virus. Fomai has

12 received no infonnation about thi s condition si nce aniving at SDCF. Several weeks before

13 aniving at SDCF, while still in state custody, Fornai began a course of vaccinations against

14 hepatitis A and B. Upon intake at SDCF, Fornai infonned officials of hi s medical conditions and

15 stated that he had recentl y received the first inj ection for hi s hepat itis vacci nation s; Fomai has

16 received none of the additional injections required to comp lete th e vaccination. Since arriv in g at

17 SDCF six months ago, Fomai has received no treatment or di agnostic testing about his condition.

18

72. Plaintiff Eamma Jean Woods suffers from a myoclonic seizu re disorder that causes

19 her body to shake and jerk. As a result oftbis co ndition , Woods is often unable to sleep, and the

20 jerki ng exacerbates the severe pain she experiences in her finger due to the presence of a glom us

21 tumor. Pri or to her detention, Woods received treatment for her seizure disorder at the University

22 of Ca lifornia, San Di eg.o Medical Center (UCSD), where she was prescribed Klonopin; the

23 medication largely contro lled her seizure disorder. When Woods first arri ved at SDCF she was

24 placed in a two-person ce ll containing three women and was assigned to [he top bunk. Out of fear

25 that her seizure condition would cause her to fa ll from the top bunk, Woods moved to a bed in the

26 dayroom, where she slept on a bottom bunk. Desp ite compl ain ing about her seizure disorder

27 since arriving at SDCF, and repeatedly request ing Klonopin, Woods has recei ved no treatment for

28 thi s condition and has been denied necessary medica tion. Woods has experienced increasingly

18.

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frequent seizures since entering SDCF.

2

73. Tjiak Wie Wong, a detainee who was recently released from SDCF, suffered

3 throughout hi s detention at the facility from chronic back pain due to a bulging disk. When he

4 was in state custody, Wong was 'provided with a second mattress to relieve the pain in his back.

5 Wong requested a second mattress for his 'condition when he was initially transferred to SDCF,

6 but the request was refused. Over the next nine months, due to overcrowding at SDCF, Wong

7 spent large portions of time sleeping in a plastic "boat" on the floor of a three-person cell

8 · designed for two people. The boat exacerbated Wong's significant back pam. When he

9 requested medical attention for his back he was instructed to exercise, but even standing for long

10 periods of time caused him pain.

J J

74. The failure to properly monitor detainees with chronic illnesses and to appreciate

12 the complications that can arise from poor disease management has had grave consequences at

13 SDCF. Martin Hernandez Banderas was a detainee at SDCF from October 26, 2006 until January-

14 17,2007, when he was rushed to a nearby hospital. Shortly after arriving at SDCF, Banderas

15 suffered a mild injury to hi s foot. As the small injury turned into a large, infected ulcer, Banderas

16 repeatedly sought medical attention but was turned away and to ld that hi s injury was not an

17 emergency. By the time Banderas was taken to the SDCF medi ca l unit in a- wheelcha ir and

18 diagnosed for the tirst lime with diabetes, the wound had become gangrenous. Although

19 Banderas was given anti bi otics, SDCF medical staff did not take a culture of the infected wound

20 and therefore could not have known the nature of his infection. He was returned to the general

21 population after a short stay in the medical unit , despite the fact thaI his newly diagnosed diabetes

22 had not been brought under control and his wound had not yet healed. Over the next several

23 weeks, Banderas regularly complai ned of in creasing pain in his fool and leg and large amounl s of

24 discharge flowing from the wound; he noted that the wound was increasing in size and beginning

25 to emit a foul odor. When Banderas was finally rushed to the hospital emergency room, he was

26 diagnosed with a serious bone infection (osteomyelitis), gangrenous tissue surrounding the ulcer,

27 and no pulses on the infected foot. Incredibl y, medical records at SDCF that document

28 Banderas's repeated complaints indicate that only two days prior to his admission to the hospital,

19.

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hi s wound apparently had a "normal. healing tissue type odor" with "no sign of active infection,

2 pus or purulence" and "pulses intact." Doctors at the hospital advised Banderas to have an

3 amputation , but he declined and instead underwent more than six weeks of intravenous antibiotics

4 and multiple surgeri es to cleanse the wound of infection. remove dead tissue, and graft skin onto

5 the wound in an effort to assist healing. Banderas was released from detention while at tlie

6 hospital, but remains in danger ofl os ing his leg as a result of his poor treatnient at SDCF.

7

3. Delays in Providing Prescription Refills

8

75. In a correctional setting it is critical that prescription medications be monitored to

9 ensure continuity of treatment. At SDCF, detainees often go days or weeks without medications

10 while they wait for prescriptions to be accurately filled or refilled. Plaintiff Alberto Toro suffers

II from ·hypertension for which he has been prescribed atenolo l. On multiple occasions during his

12 detention he has run out of med ication prior to receiving a prescription refill. Taro has al times

13 had to file two to three sick call requests asking for a refill on hi s prescription. He most recently

14 ran out of ateno loI on May 30, 2007, and filed sick ca ll req uests on May 3 1 and June I asking for

15 a refil l. As of June 4, Toro still had not received a prescription refill.

16

76. Plaintiff Owino al so receives prescript ion medication for hypel1ension. Owino

17 most recently ran ou t of medication on Apri l 30, 2007, and did not receive a prescription refill for

18 more than three weeks despite being informed that he needed not only a refill, but an additional

19 med ication. Owino has also experienced signifi can t delays receiving medication for hi s asthma.

20 When he first alTived al SDCF, Owino· s nst lun8 medi cat ion wns confi scn led and placed in his

21 personal property. He did not receive new asthm a medication until severa l months had passed.

22 Owino experienced signi ficant additional delays getting refills of hi s inhaler, and has been

23 withou t an inhaler for many months.

24

77. Jose Arias·Forero, a former SDCF detainee, received prescription medications for

25 several chro nic cond itions, including hypertension, and hyperlipidemia. Forero also received

26 tramadol for chronic pain related to a serious rotator cuff injury that was never properly treated at
27 SDCF. See TIl 80· 83, j1"!fra. Throughout his detention , Forero often went weeks without

28 receiving refill s of his medications. According to a notati on in Forero's medical records, on

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August 7, 2006, Joanne Galano, R.N., advised Forero that "if needs refills of medications, to

2 submit sick call request and write down the name of the medication; this form will then go to

3 Pharmacy. Handed det. a sick call form, he then filled it out with the name ofth emedicine, (sic)

4 and is now forw arded to Pharmacy."

5

78. SDCF's failure to properly" keep track of prescription refill s results in frequent

6 medi cation interruptions. The common disruption of prescription medications poses an

7 unnecessary and unreaso nable risk to detainees' health.

8

4. Failure to Make Timely Referrals fo r Specialty Care

9

79. In order to refer detainees to outside specia lists for diagnostic testing (e.g., MRls,

10 biopsies), treatment, and/or surgery, medical personnel at SDCF must first obtain authorization

11 fro m DIHS headquarters in Washington, D.C. Such requests are made through TAR forms that

12 are submitted to defendant Tanya Walston, the DIHS Managed Care Coord inator for the Western

13 Region. Requests for necessary medical care are routinely denied without explanation or are

14 approved onl y after excessive delays. In many cases, TARs are neither denied nor approved, but

15 in stead are responded to with unnecessary requests for additional infOlmation that fu rt her delay

16 essential medical ca re.

17

80. The experience of Jose Arias Forero excmplilies the excessive delays that Illan y

18 detai nees face in obtaining referrals to outside spec ialists. Fo rero suffered a serious shou lder

19 inj ury while detained at the EI Centro Service Processing Center. Soon after suffering thi s inj ury,

20 Forero was tran sfelTed 10 SDCF. He imm edia tely compinined about hi s severe pain to hi s right

21 arm and shoul der, whi ch was aggravated by the fact that Forero was handcuffed behind his back

22 during transport fro m EI Centro 10 SOCF. Although hi s complai nts were serious eno ugh for

23 SOCF med ica l slaff 10 issue one duono directing staff to on ly handcuff and bellychain Fo rero in

24 front of hi s body, and a second chrono directing staff not to force Forero to raise hi s arm over hi s

25 head, Forero was repeated ly denied a proper medi ca l exami nat ion. Several months after arriving

26 at SOCF, a TAR was submitted on Forero's behalf seeki ng app roval for an x-ray. Forero was

27 taken to Alvarado Hospita l for an x-ray. When he received the results of the x-ray. SDC F

28 medi cal personnel told him there was nothing wrong with hi s ann and he was faking the pain.

21.

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Forero pleade~ for additional fo llow-up, but it was not until July 29, 2005 that he was finally

2 taken to the Alvarado Hospital Medical Center for an MRI of his right shoulder. The MRI

3 confinned a complete tear of his rotator cuff.

4

81. Two weeks after Forero returned from the hospital, Dr. Gerard Bazile, then SDCF

5 Medical Director, submitted a TAR for surgical repair afForero's complete rotator cuff tear; the

6 TAR noted that an MRI confinned the tear and could be faxed upon request. Eight days later the

7 TAR was denied by Claudia Mazur, R.N., then Managed Care Coordinator for the Western

8 Region. Mazur's denial describes the clinical infonnation as "not clear. Do you intend to send

9 this detainee to a General Surgeon for an opinion?" After three additional weeks, Dr. Bazile

10 again submitted a TAR to Mazur, this time requesting evaluation only by an orthopedist. Five

I I days later, the request was approved "for Orthopedic consult only." Forero finally saw an

12 orthopedist on October 14, 2005, one month after authorization was granted, One week later, Dr.

13 Bazile filed another TAR requesting approval for surgery, Two weeks passed before the request

14 was approved by DIHS, and two additional weeks passed before Forero 's massive rotator cup tear

15 was surgically repaired on November 16, 200S-approximately eight months after he arrived at

16 SDCF und began comp laining about his severe pain.

17

82. Afier receiving the su rgery, Forero was ret urned to the specialist for one follow-up

18 visit on December I, 2005. The 'doctor ordered that he return for a follow-up visit in four weeks,

19 at wh ich point he was to begin physical therapy. TAR fonns were submitted seeking approva l for

20 thi s second follow -up visit, but they were repeatedly pended by the DIHS Managed Care Services

21 Unit and Forero was never returned to the specialist for a follow-up vis it and was denied all

22 requests for the physica l therapy that his surgeon had ordered .

23

83. In late April 2006, Forero suffered a complete reinjury of his shou lder following

24 the use of excessive force by a CCA officer. Two weeks passed before defendant Lusche

25 submitted a TAR seek ing a referral to the orthopedic surgeon. Lusche explained in the TAR that

26 Forero "[ r]ecently re-injured shoulder when right arm was placed behind-the-back for hand-

27 cuffing in a rather forced manner." Forero visited the orthopedic surgeon on June 2, 2006, and

28 the orthopedist requested that a Gadolinium MRI be perfonned in order to assess the extent of the

22.

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Injury. Physician assistant Lusche filed a TAR requesting a referral for a Gadolinium MRJ on

2 June 2, but when Forero was taken to receive the MRI more than six weeks later, he was turned

3 away because no prescription for the contrast medication had been provided. Lusche was

4 instructed to resubmit the TAR, and did so on July 14. Over the next four weeks, Forero

5 . repeatedly asked for updates on the MRI that he was supposed to receive. On'August 12, Lusche

6 yet again resubmitted the TAR, noting that although the previous TAR had been approved, it was

7 allowed to expire prior to completion of the Gadolinium MRI. Forero finally underwent a

8 Gadolinium MRI on August 24, 2006, nearly three months after the orthopedic surgeon indicated

9 that a Gadolinium MRI was needed to properly diagnose the injury. When Forero was finally

10 seen by the orthopedic specialist on September 25, 2006, nearly four months after his June 2,

11 2006 visit, the doctor confirmed a complete re-tear of Forero's rotator cuff as well as an

12 additlonal tear to his subscapularis muscle. Forero has never received authorization from the

13 DIHS Managed Care Services Unit for surgical repair of his re-injured shoulder and remains in

14 ICE detention at the El Centro Service Processing Center.

15

84. Tjiak Wie Wong, a recently released detainee, was diagnosed in May 2005 with

16 stones in both testicles and a cyst on his right testicle . The urologi st who diagnosed his condition

17 prior to hi s detention intormed Wong that he might require surgery to remove the painful stones

18 and cyst. From th'e time that he arrived at SDCF in April 2006, Wong complained about his

19 medical condition and requested to see a urologist; he was told that USPHS will not spend the

20 money. to send him to a urologist. In lieu of treatmcnt or furthcr diagnostic testing, Wong was

21 given Tylenol for his pain. Subsequent to the filing of the Kinili lawsuit regarding overcrowding

22 at SDCF, Wong was temporarily moved to an immigration facility in Florence, Arizona. At that

23 facility, Wong was prescribed tramadol, a stronger pain reliever than Tylenol , and received an

24 appointment to see a urologist. Before Wong was able to see the urologist he was transferred

25 back to SDCF, at which point Wong's tramado! was confiscated and his requests for referral to a

26 urologist were once again denied .

27

85. Eamma Jean Woods suffers from neurofibromatosis, a genetic disorder of the

28 nervous system that causes tumors to develop on a person' s body. Prior to being taken into

23 .

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immigration custody in July 2006, Woods was undergoing treatment for this condition at the

2 UCSD Neurology Clinic and was scheduled to meet with a surgeon on August 2, 2006, to remove

3 a painful glomus tumor that had developed on her right ring fi nger. Several years before entering

4 ICE custody, Woods underwent surgery to partially remove this tumOT. As a result of her

5 detention, Woods was unable to conti nue treatment at the Neurology Clinic or meet with the

6 surgeon to remove the painful tumor. Throughout her nearly eleven-month detention at SDCF,

7 Woods has complained about severe pain emanati ng from the tumor on her finger, but has

8 received no treatment for her condition aside from occasiona ll y being prescribed ibuprofen or

9 naproxen. She used to carry with her at all times a hot water bottle that helped to decrease the

10 pain, but CCA officers no longer pennit her to take the hot water bottle out of her cell. Woods

\I has not been referred to a neurologist or an oncologist to review her genetic disorder and

12 detennine the proper treatment for her glomus tumor.

\3

86. Lu is Alberto Tinoco suffers from hemorrhoids that prevent him from sitting down

14 or walking for long periods of time wi thout severe pain. Several years ago, Tinoco stopped

15 receiving the suppository that was provided to him as treatment. Tinoco was instead pro vided

\.6 onl y Advil. T inoco requested surgery to rem ove his hemorrhoids, but SOeF staff infonned him

17 that su rgery could not be provided within the budget.

18

87. Sin ce approx imately February 2007, Romeo FOlllai has been suffering frolll a

19 painful rash that began on his anns and now covers most orllis body. Various medical person nel

20 have at times referred to the rash as a fungus or eczema and have prescribed several different

21 medi ca tions, including anti-fungal foot cr~al11. Belladryl, hydrocortisone, and calamine lotion.

22 Most recently, Fomai was infonned that the rash might be related to the fact that he has been

23 denied honnone therapy since arriving at SDCF. FOlllai has repeated ly requested to see a

24 speciali st for proper evaluat ion of his skin condition, but he has never received such a visit.

25

5. Critical DIHS Coverage Dejiciellcie.'t

26

88. On-site medical personnel at SDCF provide medical care to detainees in

27 accordance with official DIHS po licies, including the DIHS Benefits Package. Decisions

28 . regarding off-site care for SDCF detainees are also made in acco rdance with such policies.

24.

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Detainees at SDCF are routinely denied necessary.medical care pursuant to official DIHS policies

2 thaI are formulated, implemented, and maintained by defendants Sampson, Shack, and Jarres, and

3 carried out by defendants Walston, Gonsalves, Hui , Lusche, Jedry, and Salvatore.

4

89. The example of Francisco Castaneda, a fonner detainee at SDCF, exemplifies.the

5 grave consequences that can result from USPHS's appl ication of the . DTHS Benefits Package.

,

.

6 Castaneda was detained at SDCF from March 2006 until late November 2006. From the time that

7 he first arrived at SDCF, Castaneda regularly complained about an increasingly painful lesion on

8 his penis that was bleeding and discharging fluid. After several months, Castaneda was finally

9 approved by DIHS to see an off·site oncologist. The oncologist concluded that Castaneda could

lObe suffering from penile cancer and determined that "urgent urologic assessment and definitive

11 treatment" were required. SDCF medical staff declined to have Castaneda admitted for a urologic

12 consultat ion and biopsy, and instead indicated that they would pursue an outpatient biopsy that

13 would be more cost effective. But Castaneda never received a biopsy while in ICE custody. 14 Approximately one week after reluming from the oncologist 's office, Castaneda filed a grievance 15 explaining that the oncologist " gave his professional opin ion and recommended that I shou ld be 16 admitted and that surgery should be performed . At this time, Dr. Hui decided against the 17 proposed surgery and denied the ad mitl<lIlce. I am in a cons iderab le amount of pain and I /J ill in 18 desperate need of medical attention. " On July 26, 2006, more than six weeks after filing hi s 19 grievance, Castaneda's grievance was denied on the grounds that "the type of surgery he requests 20 is a procedure he will nccd to seek after he lenves thi s facility; it is elective surgery." In late 21 August, Castaneda was seen by a urologist who stated that circumcision was the proper treatment 22 for the infection and bleeding associated with Castaneda's lesion; in addition to alleviating 23 Castaneda's ongoing pain, the circumcision would also provide a biopsy that could con finn 24 whether Castaneda was ' suffering from penile cancer. One week after Castaneda retumed from 25 the urologist's office, he received a memorandum prepared by defendam Stephen Gonsalves, 26 USPHS Health Services Administrator at SDCF. According to the memo, any surgical 27 intervention for Castaneda's cond ition "would be elective in nature." The memorandum 28 concludes that "{ I]he care you are currently receiving is necessary, appropriate and in accordance

25 .

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I

with our policies." Althou~ Castaneda continued to complain about the increasingly painful

2 lesion on his peni s, and would occasionally show CCA officers blood and discharge in his

3 underpants in an effort to get medical attention, he was never provided the procedure prescribed

4 by the oncologist and uTologist. In late November 2006, Castaneda was transferred to the San

5 Pedro Service Processing Center, where he spent an additionanwo months in the care of USPHS

6 medical staff at that fac ility. In early February 2007, Castaneda was released. from ICE custody

7 on account of hi s serious medical condition. Within days of his release he went to the emergency

8 room for a biopsy and was diagnosed with penile cancer. He was quickly admitted to the hospital

9 and underwent surgery on February 14, 2007, to remove nearly all of his penis. By the time

10 doctors were finally able to perform a biopsy and surgery, the cancer had already spread to his

11 groin lymph nodes. He has now undergone three rounds of chemotherapy, is schedul ed to have

12 his lymph nodes surgicall y removed, and is awaiti ng the results of additio nal testing that will

13 reveal whether the cancer has spread to other parts of hi s body.

14

90. Pl aintiff Romeo Fomai has a gender identity disorder for which he has consistentl y

15 taken hormone therapy since 1986. At the tim e that Fomai was transferred to SDCF from

16 Donovan State Prison in December 2006, he was taking Premarin and Provera. Upon intake,

17 SDCF staff confiscated Fomai 's 30-day supply of honllones and placed them in storage with the

18 rest of his personal property. Whi le at SDC F, Fomai has repeatedly been denied hOllnone therapy

19 by medica l staff, includi ng defendant Hui, pursuant to DIH S policy. Honn one therapy works

20 both physically and mentally. Since being taken off of honnone therapy, Fomai has experienced

2 1 the physical sym ptoms of withdrawal, such as ex treme pain in his breasts, hai r loss, hot flashes,

22 weight gain, and decreasing breast size. He is also becoming increasi ngly depressed and

23 withdrawn. Fomai has a hi story of depression ; whil e at Donovan, Fomai was placed in a padded

24 room after sli cing his wrists in a suicide attempt. He currently has thoughts of suicide in

25 connection with his severe anxiety about hi s inadequate medical care and the rash that now covers

26 hi s body. While at Donova n, Fomai received prescription medication for his depression , but he is

27 not currentl y receiving any such medication and has not been seen by any menta l health staff at

28 SqCF despite numerous requests for counseling.

26.

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91. Prior to arriving at SDCF, plaintiff Winston Carcamo suffered trauma to his head

2 that resulted in severe damage to both of his eyes. Carcamo received treatment for his injury in

3 Mexico, which resulted in the restoration of vision to his left eye; his right eye was surgicall y

. 4 removed. At the time of surgery, Carcamo was informed that upon healing he would need to

5 have a 'prosthesis implanted bOlh to preserve the physical integrity of his eye socket and to

6 prevent the spread of an infection that cou ld result in the loss of his remaining eye and render him

7 completely blind. When Carcamo arrived at SDCF in September 2006, he complained

8 immediately of extreme headaches and asked to meet with an eye doctor to get prescription

9 glasses and the necessary prosthesis. Carcamo was instructed that " glasses and vision related care

10 are not covered benefits." Nine days after arriving at SDCF, Carcamo met with physician

11 assistant Serrano, who infonned Carcamo that he wou ld begin a TAR for a referral to an

12 ophthalmologist. After two weeks passed, Carcamo again met with Serrano. At that time,

13 Serrano had not yet submitted a TAR for Carcamo's condition. Over the next two weeks,

14 Carcamo submitted sick ca ll sli ps comp laining of pain and aski ng for infonnation regarding the

15 status of the TAR. On November I, Ca rcamo met with a nurse when he complained of yellow

16 pu s draining from his enucleated eye. Carcamo was prescribed medicated eye drops, but was

' 17 informed that the TAR had been denied by the DIHS Managed Care Coo rd inator. Accord ing to

18 the DIHS Benefits Package, eye prostheses are not covered serv ices except in emergency

19 situations. Serrano further infonned Carcamo that hi s "boss" sa id that the procedure would not

20 be covered because "it didn 't happen here." Carcamo filed a grievance regarding the refusal to

21 treat hi s medical problem on December 9,2006. The grievance was denied by physician assistant

22 Lusche on December 24, when he noted that he had " reviewed with Mr. Carcamo what are our

23 limitations fo r completely reso lvi ng his desire for an eye prosthesis."

24

92. Immediately upon arrivi ng at SDCF, Carcamo began to inquire whether he would

25 be able to get an eye prosthesis if his family agreed to pay for the procedure. USPHS medical

26 personnel infonned him that this detennination would most ly in vo lve ICE and CCA. On January

27 12, 2007, after months of complaints by Carcamo, and written corre~poJ1dence by the ACLU to

28 defendants Gonsalves, Cerone, Easterling, and then-DlHS Managed Care Coordinator for the

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Western Region Claudia Mazur regarding the failure to treat CaTcamo's senous medi.cal

2 condition, CaTcamo was permitted to visit an eye specialist who referred him to another doctor

3 capable of fitting CaTcamo for a prosthesis. Following this visit, CaTcamo filed a grievance

4 renewing his request to see a specialist about the prosthesis. On January 25, CaTcamo met with

5 Serrano, who told hiin that the government would not pay for the prosthesis, but 'that CaTcamo

6 could arrange to have his family pay for the procedure" On February 2, in response to one of

7 CaTcamo's grievances, defendant Gonsalves responded that U[b]ased on the specific medical
8 condition, and the circumstances relating to your eye condition, we are not authorized to cover the

9 medical service you are seeking. The Division of Immigration Health Services, Detainee

10 Services· Package provi~es for emergency care and not elective or pre·existing conditions."

11 Gonsalves's reply mistakenly states thatCarcamo was referred to an eye specialist "in late 2006,"

12 and that " there are no time constraints for later placement of the eye prosthesis." Over the next

13 two months, Carcamo waited first for DIHS to grant permission for him to receive the procedure

14 that his family had agreed to pay for, and then for ICE and CCA to arrange for transportation.

15

93. On or about April I, 2007, shortly after the ACLU conducted a series of legal

16 vis it s with Carcamo and other detainees at SDCF, Carcamo received a telephone ca ll from ICE

17 Supervisory Deportation Offi.cer Kent Doug Haroldsen. Haroldsen informed Carcamo that ICE

18 was not requ ired to take him to get an eye impl an t. and that if they took him it would be "a n act of

19 goodwilL" Haroldsen then referred to ACLU communications with SDCF detainees and asked

20 whether Carcamo was "p3l1icipalill g" with the ACLU and had spoken with the ACLU abou t hi s

2 1 medical problems. Carcamo responded that he would not talk to the AC LU because he wanted to

22 see the eye specia li st. Because ~is necessary medical care had al ready been delayed for more

23 than six months, Carcamo feared that additional communications with the ACLU would result in

24 further delay. He was subsequently informed that his request to see the eye specialist had been

25 approved.

26

94. On April 17, Carcamo was transported to the eye specialist and provided the eye

27 prosthesis that he needed. The procedure lasted many hours and was incredibly painful; Carcamo

28 suffered sign ificant pain during the procedure because hi s bones had shifted and the eye socket

28.

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had already begun to close due to the delay in recelvmg this procedure. Had the structura l

2 integrity of Carcamo's eye socket further deteriorated from additional delay, it would have been

3 impossible for him to have a prosthesis implanted, which would have resulted in permanent

4 disfigurement. Carcamo was scheduled to receive a follow-up vis it with the eye speciali st in late

5 May, but he has no't been returned to the eye doc,tor since undergoing the procedure.

6

95. For the first four months of her detention at SDCF, 25-year-old Marta

7 MonteagudO-Guerrero did not menstruate. She requested to see a gynecologist to discuss the

8 problems with her menstrual cycle, but did not receive an appointment to speak with medical

9 personnel about this issue until the end of May 2007, several months after the problem appeared

\0 to resolve itself. At that visit, SDCF medical staff informed her that the facility does not provide

11 detainees with referrals to gynecologists and does not cover pap smears.

12

96. Gloria Vanegas suffers from a medica l condition that causes cysts to grow in her

13 breasts and .ovaries. In July 2005, Vanegas underwent surgery to remove the larger cysts in her

14 breasts and ovaries, but not the smaller cysts. Because of her strong family history of breast

15 cancer, whi le in Colombia Vanegas saw a doctor who monitored the growth of her cysts every six

16 months. Whi le in detention, Vanegas ' s cysts have grown increasingly painful. [n respo nse to

17 requests for medical attention, she has been given only ibuprofen to reduce the pain. In February

18 or March 2007, Vanegas met with physician assistant Sen-ana and asked to see a specialist for a

19 breast examination; Serrano informed her that such examinations are not covered and cannot be

20 provided to detainees.

21

B. Dental Ca re

22

97. Dental care is systemically inadequate at SDCF. DIHS's officia l policies

23 pertaining to the provision of dental care are particu larly draconian, and necessary care is denied

24 in accordance with those policies. This problem is exacerbated by the presence of only one

25 dentist at SDCF who is charged with providing care to 600-800 ICE detainees as well as several

26 hundred more detainees in the custody of the U.S. Marshals Service. In accordance with DIHS

27 policies, detainees are routinely denied dental care unless they have already spent one year in

28 detention at SDCF. As a result, detainees often spend months filing sick call slips complaining of

29.

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tooth pain, broken molars, and bleeding gums only to be denied access to treatment. The delay in

2 treatment often results in the need to extract teeth that may have been salvageable had treatment

3 been provided in a timely manner. Even when treatment can be provided, detainees are often

4 informed that the treatment is too expensive and is not covered by DIHS; in such cases, detainees

5 are only offered extraction. .

6

98. Adams Pelich, a detainee who first arrived at SDCF in November 2000 and was

7 detained at the facility unti l late 2006, complained of severe dental - pain for years, writing

8 complaints to ICE, USPHS staff, and eCA. In response to his requests for assistance from ICE,

9 he was instructed to ask the dentists at SDCF for treatment. In a written response to one such

10 grievance, he was explici tl y encouraged to agree to his removal from the United States so that he

I I might get dental care in the country that receives him. "CCA dentist will provide dental work as

12 authorized. As your removal officer, I am not authorize[d] (0 grant your request. On the same

13 token, maybe your country can provide a better service but that's only when you decide to go

14 home." He filed a subsequent response complai ning that his teeth were bleeding and that his

15 crowns were moving. The reply that he recei ved stated simp ly: "Sign our travel document form

16 and we will get yo u out of here." One of hi s requests for assistance to USPHS was rejected for

17 not ha ving been ti led o n a CCA grievance torm, despite the t~lct that USPHS, and not CCA,

18 provides dental care to detainees. His written grievances to CCA were also regularly denied. In

19 one case, the Grievance Officer'S Respon se explained that the requested care was denied because

20 it was "not covered in benefits package;" the grievance that he h"d submitted complained that he

21 was in great pain and in need of two root canals, three c rowns and one bridge replacement.

22

99. In approximately February 2006, plaintiff Rigoberto Aguilar-Turcios began to

23 experience increasingly severe denta l pain. In response to his initial sick call requests, Aguilar-

24 Turcios only saw a nurse who provided no medical care. After waiting nearly two months for a

25 res ponse from the dentist, he submitted a grievance at the end of March and received a response

26 in mid-April. When Aguilar-Turcios finally saw Dr. Edmund Jedry, the dentist, in mid-May

27 2006, he was infomled that the pain in tooth #2 was caused by the absence of an opposing molar.

28 Dr. Jedry informed Aguilar-Turcios that in order to solve the prob lem, he would need to get a

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fixed or removable bridge once he was released from custody, because neither implant is covered

2 for detainees. In the alternative, Dr. Jedry said, he could extract the otherwise healthy tooth.

3 Aguilar.Turcios was also infonned that he could use Sensodyne toothpaste to relieve some of the

4 pain, but he would have to buy the toothpaste from the commissary. It has been approximately 16

5 months since Aguilar·Turcios first experienced this dental pain, ·and the pain has only increased in

6 severity during that time.

7

100. Plaintiff Ngugi has also routinely complained about dental pain at SDCF but has

8 received virtually no treatment. On March 28, 2006, Ngugi met with Dr. Jedry pursuant to a sick

9 call request about dental pain. Dr. Jedry prescribed a one·week course of amoxicillin and

10 infonned Ngugi that he required a root canal. Ngugi's follow·up appointment .for treatment was

II cancelled because when he was to be called for this appointment he was in segregation for

12 refusing to be triple.celled. Ngugi filed multiple sick call slips requesting medical attention for

13 his dental pain, but he never received a response. In June, Ngugi began to have dental pain again.

14 He filed sick call requests and ultimately spoke to a nurse who noted that Ngugi was complaining

15 of pain and sensitivity in hi s upper right molars. The nurse stated that she would refer him to the

16 dentist , but Ngugi was never called to see the denti st. Ngugi was inst ructed to continue brushing

17 his teeth twice dai ly, and he did so believing that this might alleviate the pain. Sometime in

18 August , the tooth that was ca using him pain broke into multiple pieces while he was brushi ng his

19 teeth.

20

101. In Novcmber 2006, Ngugi began to file new sick cal! slips rcquesti ng that hi s teeth

21 be checked because of sens it ivi ty and pain. Ngugi feared that other teeth would break in his

22 mouth if he did not have an appointment. One dental appointment in late December was

23 cancelled and never rescheduled. Ngugi continued to request dental attention and filed a

24 grievance about the lack of care he was receiving. On January 17, 2007, Ngugi met with Dr.

25 Jedry, who agreed to extract the remainder of the tooth that had broken in Ngugi 's mouth. Dr.

26 Jedry began Ngugi on a ten-day course of amoxicillin and prescribed .ibuprofen for pain, but

27 before Ngugi could get a follow· up appointment with Dr. Jedry he was transferred to an

28 immigration detention facility in Arizona subsequent to the appearance of the ACLU in the Kini!i

31.

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lawsuit regarding chronic and severe overcrowding at SDCF. Even after returning to SDCF in
\
2 February 2007, Ngugi was not called in to the dentist for additional care unti l approximately one

3 month had passed. At that visit, Dr. Jedry provided no care but indicated that Ngugi would be

4 called for treatment at a later date. In late March or early April, Ngugi finally received a cleaning

5 of three'teeth and a root canal, but the dentist still did not extract the moll,lf that broke in or around

6 August 2006. Ngugi received no explanation from the dentist and he has received no response to

7 two sick call slips he has filed requesting dental care,

8

102. Since February 2007, p laintiff Sylvester Owino has experienced bleeding gums

9 and dental pain, and has submitted requests for dental treatment. When he was taken to see the

10 dentist he was told that he required a clean ing and was placed on a waiting list. In response to a

II grievance that he filed on March 6, 2007 requesting attention, Owino was infonned that "he is

12 eligible, but not entitled, to a cleaning. Sick calls and emergencies have priority over routine

13 elective care that he presents with." Owino appealed the decision, explaining that he had

14 experienced serious dental pain and bleeding gums for two weeks, and that he should not have to

15 suffer long waits because the facility only employs one dentist. The appeal was denied by

16 defendant Warden Easterling on April 9, 2007, more than one month after Owino saw the denti st

17 and repol1ed dental pain <.Ind bleeding. Warden Easterling's justi fi cat ion for denying the appeal

18 was "They have pul you on its [sic] lis!." Owino still has nol received the needed cleaning, and

19 he continues to experience bleeding gums and dental pain.

20

103. Detainees at SDCF also receive seriously deficient dental care when it comes to

21 the provision of dentures. Abdelwahab Mohamed Abdelwahab wore partial dentures in the

22 boltom of his mouth, Beginning in August 2006, Abdelwahab requested a liquid dietary

23 supplement that would be easier to eat than the food that is provided. This request was never

24 responded to. In November 2006, Abdelwahab complained during a chronic care appoin tment for

25 hi s diabetes that his dentures were causing extremely painful sores on his gums. Upon

26 examination by a nurse practitioner, Abdelwahab was found to have three ulcerations in his lower

27 gingival area caused by friction from his ill -fitting dentures, and he was instructed not to wear th'e

28 dentures any longer. The nurse practitioner granted him penni ssion to obtain an additional set of

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dentures located in his personal property. Despite receiving a DIHS chrono authori zing him to

2 retrieve dentures from his property, it took more than one month for this to take place. On

3 infonnation and belief, the delay was the result of CCA's. fai lure to accommodate chronos

4 provided to detainees by SDCF medical personnel. Once he obtained the dentures and asked that

5 the new dentures be properly aligned, Abdelwahab was infonned that this service is not provided

6 at SDCF. As a result, he continued to wear the old pair of dentures th at caused painful sores until

7 the time of his deportation. When apples were substituted for oranges in the diabetic meal that

8 was inconsistently provided to Abdelwahab, he was unable to eat the fruit because of his dental

9 problems. Abdelwahab requested a soft food supplement, such as a liquid protei n shake or a

10 banana, but received no accommodation, notwithstanding his serious medi cal condition .

II

104. As a result of an accident that occurred while detained at SDCF, plaintiff Marta

12 Monteagudo·Guerrero lost two of her front teeth, exposing the nerve and creating significant

13 pain. Monteagudo-Guerrero asked for a dental crown to protect the area but was refused by the

14 dental assistant because it was a " luxury." Instead, Monteagudo-Guerrero was given a temporary

15 dental prosthesis niade of wax that is easily removed, does not compl etely reduce the pain she

16 regularly experiences, and was once inadvertently swallowed.

17

105. One f0l111Cr deta inec, Robc]10 Ledda, was transferred to SOC F sHer hnving

18 al ready spen t 'over two years in immigration detenti on elsew here. Ledda had neither upper nor

19 lower molars, which made it extreme ly difficult for him to chew an y solid .food. After two

20 months of requesting partial dCl1lllrcs through the sick call system , Ledda was told that he would

21 not be eligib le fo r partials unti l he had been detained at SOCF for a full year; by lhat time Ledda

22 had already been in immigration detention for just under three years.

23

C. Mental Health Care

24

106. In any correct iona l setting, it ]s imperative that the mental health staff closely

25 monitor menta ll y ill patients. Th is requires not only menta l health screening to identify

26 individuals suffering from serious mental illnesses, but also proper monitoring to adequately treat

27 mentally ill ind ividuals whose mental illness may be exacerbated by the. experience of

28 confinement. Mental health ca rc is systematica ll y in adequate at SDCF.

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107. SDCF is one of very few immigration detention centers that specifically accepts

2 detainees from around the country with serious mental illnesses. Detainees with serious mental

3 health problems- that affect their competence are often unable to participate in their removal

4 proceedings. Because immigration detainees are not entitled to government-funded counsel,

5 mentally ill detainees can have a particularly difficult time"appearing before the 'immigration

6 court and pursuing all available appeals. In some instances, ilpmigration judges may

7 administratively close removal proceedings in order to pemiit ICE and USPHS time to restore a

8 detainee to competence. At other times a detainee may receive a final order of removal, but

9 because of the significant problems created by his/her mental illness, either the detainee will be

10 unable to assist the government in obtaining travel documents to effect removal or the country of

11 removal will simply refuse to accept the detainee. In such cases, individuals may spend years in

12 immigration custody with no clear end in sight.

13

108. Defendants place detainees with mental illnesses in a variety of different housing

14 locations at SDCF. L Unit consists of two pods, each of which contains a series of beds located

15 in a single common room. F Med, also called "F Seg," contains individual segregation cells in

16 which detainees with serious mental health problems are housed. Some of the cells in F Med

17 contain a bed, while others contain no bed; in those cells in which detainees do not have a bed

18 they sleep either on a plastic "boat," or on the floor. Detainees in F Med receive showers three

19 days a week and rarely, if ever, receive exercise. SDCF also has two " rubber rooms," which are

20 fully padded rooms containing no fixtures thnl have an uncovered hol e in the center of the floor to

21 be used as a toilet. The "rubber rooms" are ostensibly used to monitor detainees for possible

22 suicidal ideation.

23

109. Aside from rooms dedicated for use by detainees with serious mental illnesses,

24 mentally ill detainees are regularly housed in the general population. Disturbances in the housing

25 unit often result from such placements, caused in part by behavioral problems that lead to

26 conflicts with detainees and guards. Plaintiffs Rigoberto Aguilar-Turcios and Sylvester Owino

27 have been kept awake at night and subjected to extreme distress due to the excessive noise

28 generated by mentally ill detainees housed in the general population who bang on the doors and

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walls of their cells throughout the night. Aguilar-Turcios and Owino have both filed grievances

2 complaining about the placement of detainees with serious mental illnesses in general population,

3 but neither has received a response to these grievances. Aguilar-Turcios and Owino are also

4 subjected to unsafe and unsanitary conditions created by a mentally ill detainee in their pod who

5 regularly smears feces on the walls of his cell. .

6

110. Mentally ill detainees who cause problems m general population may then be

7 placed in administrative segregation cells, or charged with disciplinary violations and held in

8 segregation cells, which results in additional problems for their regular monitoring and treatment

9 by mental health staff. Mentally ill detainees who are housed in segregation pods such as AlB or

10 AlC receive diminished access to mental health professionals, who are located in a different part

11 of the facility. Moreover, isolation ex~cerbates m.ental illness. In May 2007, Aguilar-Turcios

12 was sent to segregation for a disciplinary infraction. During that time, he was routinely disturbed

13 throughout the day and kept awake throughout the night by mentally ill detainees in nearby

14 segregation cells who banged loudl y on their cell doors and walls. Aguilar-Turcios was further

15 disturbed by the noxious smell created by one such detainee who repeatedly smeared feces on the

16 · walls of his cell. On one occasion, that derninee was left for several days in his cell with no

17 clothing. Aguilar-Turcios complained to CCA officers about the behavior of mentally ill

18 detainees in segregatio n and was told by one officer that he should "enj oy" it, because "i t is just

19 part of the show."

20

III . Plaintiff Ngugi suffers from bipolar disorder, and has tak en medications for this

21 conditi on for several years; because of inadequate mental health care at SDCF, Ngugi is current ly

22 receiving no treatment for hi s mental health condition. When Ngugi arrived at SDCF on

23 December 30, 2005 and went through intake on December 31, he reported a history of bipolar

24 disorder and stated that he was taking Depakene, a psychotropic medication, twice dai ly. For the

25 next four days, Ngugi received no medication. On January 3, 2006, without seeing Ngugi,

26 defendant Lu sche filled out a one-week prescription for valproic acid, the generic fonn of

27 Ngugi's medication, and scheduled to see Ngugi on January 6. Lusche did not see Ngugi on

28 January 6. Over the next eight weeks, defendant Lusche and other SDCF medical personnel

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repeated ly renewed Ngugi's prescription for vaiproic acid despite the fact that Ngugi had not yet

2 met with a mental health professional. Several appoi ntments for medication evaluation and

3 treatment-including a February 15 appointment with defendant Scott 1. Salvatore,

4 psychologist- were cancelled without explanation. Throughout the time that he has been

5 detained at SDCF. Ngugi has never received regular mental health counseling or "treatment in

6 connection wi th hi s past medical history of bipolar disorder. In June 2006, because of the

7 completely inadequate psychiatric treatment that he has received at SDCF and the undesirable

8 side effects of hi s medication, Ngugi began refusing medication for his bipolar disorder. Since

9 that time he has received absolutely no mental health follow-up.

10

112. Plaintiff Woods suffers from depression and bipolar disorder. Although she has

11 seen mental health professionals, her visits rarely last longer than five minutes and are insufficient

12 to ensure proper care. At times, Woods has gone one month wi thout seeing a menta l health

13 professionaL Her medical records do not indicate a treatment plan, and changes in her medication

14 have been made without·any written exp lanation fo r the modifications.

15

113. Pl ain tiff Fomai also suffers from severe depression and is cu rrently experiencing

16 sui cid al thought s. Fomai has a hi story of suicidal thought s, and was placed in a padded room

17 while in state pri son after sli cing hi s wri sts. Despite numerous requests to meet with mental

18 health stalf at SDCF, Fomai has received no mental hea lth care at SDCF. He is experi encing

19 significant anxiet y in connectio n wit h the facility' s refusal to provide him with honnone therapy

20 and hi s la ck of access to intonnation about and treatment for hi s serious medical conditi ons.

21

114. All fanns of detention can ex acerbate depressio n. Olle aspect that separates the

22 imm igration detainee' s experi ence from that of a convicted prisoner is that the im migrat ion

23 detainee is not serving a definite term of incarceration, so it is diffi cult to look forwa rd to a

24 projected release dale.

2S

II S. On Jul y 31, 2003, Bill Roy Kurt Marion , a Canadian national detained at SDCF,

26 committed suicide. According to the San Diego County Medical Examiner' s investigative

27 narrative, Marion was known to be suffe ring from depression and was extremely agitated about

28 the length of time he was being detained. Days before he com mitted sui cide by han gin g, other

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detainees noticed that Marion had a large red mark on hi s anterior neck, .and asked Marion's

2 cell mate whether he had tried to commit suicide. Because Marion was demonstrating signs of

3 severe distress, his cellmate notified CCA correctional officers that he required attention, but

4 nothing was done. Marion hanged himselfwith.a bed sheet tied to the bunk bed. An after action

5 review rf::garding the .suicid~ was conducte·d and produced to the Department of Homeland

6 Security. Bureau of lmmigration and Customs Enforcement, Office of Detention and Removal.

7

116. Although mental health services are often required for prisoner populations,

8 immigration detainees have unique needs pertaining to mental health care. For many detainees,

9 especially those who are fleeing persecution and torture, the detention experience exposes them to

10 significant re-traumatization. One study of detained asylum seekers found that 86 percent of

t 1 those surveyed manifested symptoms of clinical depression, more than three quarters had anxiety-

12 related symptoms, and half exhibited signs of post-traumatic stress disorder. Physicians for

13 Human Rights and Bellevue!NYU Program for Survivors of Torture, From Persecution to

14 Prison:. The Health Consequences a/Detention on Asylum Seekers (Boston and New York City,

15 June 2003), 57, available at http://physiciansforhumanr·ights.orgllibrary/report-persprison.htm!.

16

11'7. Pl aintiff Ali Nesa applied for asylum from Bangladesh, where his mother was

17 murdered be fore his eyes. Despite being diagnosed with depression and post-traumatic st ress

18 disorder, Ali Nesa has rarely spoken wi th SDCF mental health staff in the two years he has been

19 detained. Members of the medical staff at SDCF have recognized that Ali Nesa is at increasing

20 risk of suicide, yet he has received ·litt le attention fi·om mcnlrll health professionals and is not

21 receiving counseling serv ices or medication for his mental healt h condi tion .

22

D. Vision Care

23

118. There is vi l1ually no VISIO n care avai lable at SDCF for immigration detainees.

24 This is due in large part to the official policies of DIHS, pursuant to which virtually no vision care

25 services are·covered. With limited exceptions, the DIHS Benefits Package explicitly states that

26 "[elYeglasses are not a covered bene/il." (Emphasis in original). Although detainees who

27 experience "[aJcute vis ion lo ss" may be approved for referrals to an ophthalmologist, detainees

28 whose eyesight deteriorates during their detention will not be authorized for an eye exam.

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Reading glasses are similarly not covered.

2

11 9. Plaintiff Aguilar-Turcios is near-sighted and has not received an eye exam since

3 entering ICE custody in November 2005. Despite the fact that hi s vision has worsened, he

4 regularl y experiences migraine headaches, and he suffers from extremely dry eyes, hi s requests to

5 see an eye doctor have all been denied. In response to a sick call request for glasses and eye

6 drops, Aguilar-Turcios was infonned on July 5, 2006 by Cindy Butler, R.N., that glasses are not a

7 covered benefit and that the eye drops provided by the medical department are the same as the

8 ones that can be purchased in the commissary; so if they are ineffect ive, Agui lar-Turc ios should

9 not purchase them .

10

120. Plaintiff Owino's vision has also deteriorated duri ng his detention, to the point

11 where he can no longer see distances and has difficulty reading or doing legal work. He also

12 suffers from recurring severe headaches and dry eyes. Owino has filed multiple grievances

13 pertaining to hi s vision problems, all of whi ch have been denied. In response to one grievance

14 Owino filed regarding the lack of vision care, physician assistant Lusche responded: " Mr. Owino

15 .is requesting eye glasses. Eye glasses are not included in the health benefits package. I explained

16 to Mr. Ow ino that he lllay have glasses, including non-prescripti on reading glasses, sent to him

17 ti·Olll a li·iend o r family member. " In response to Owino's appeal o f the grievance, in which he

18 stated that without a proper eye exam he cannot detenlline wbat kind of glasses, if any. he

19 requires, defendant Warden Easterli ng responded simpl y: " I concur with PHS."

20

121 . Jose Arias- Forero, a fonner SDCF detain ee. was approved for a vis it to an eye

21 specialist in June 2005. Upon examinat.ion by tbe eye doctor in Jul y 2005, Forero was found to

22 have early cataracts, ocular hypertension , and was suspected to be developing gla ucoma . The eye

23 doctor prescribed medicated eye drops and ordered that Forero retum in three months. Forero's

24 appointment was cancelled by SDeF staff, and he was infonned that the govemment no longer

25 provides eye doctors to immigration detainees. The medicated eye drops that had been prescribed

26 · by the eye speciali st were discontinue.d. Despite regul ar requests to retum to the eye doctor fo r a

27 follow-up appointment. including complaints of in creasing prob lems over a period of months

28 with his peripheral vision, Forero was only retumed to the eye doctor in September 2006, one

38.

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year after the date on which he was supposed to have a follow -up appointment. In advance of the

2 appointment, physician assIstant Lusche once again prescnbed Forero the medicated eye drops

3 that had been prescribed 15 months earlier by the eye specialist, then discontinued by SDCF staff.

4

122. Essential vision care is also denied to detainees suffering serious chronic

5 conditions. This is a particularly serious problem for diabetics, who requTre annua l eye

6 examinations by a trained specialist to help ensure retinal health and prevent blindness. The risk

7 of diabetic retinopathy is increased in individuals whose diabetes is poorly controlled, as

8 evidenced by elevated blood sugar levels, and whose hypertension is poorly controlled. Plaintiff

9 Tinoco suffers from both diabetes and hypertension, and has been detained at SDCF for nearly

10 four years. Nearly one year after Tinoco first anived at SbCF, he was taken to see an eye

II speciali st for a retinal exam and ocular health screening. The eye doctor recommended reading

12 glasses, but Tinoco was subsequently refused reading glasses by SOCF personnel. Nearly three

13 years passed before Tinoco was returned to an eye doctor for an examination. Tinoco's diabetes

14 and hypertension have both been poorly co ntrolled al various points during his detention, and on

15 al least two occasions eye examinations by defendant Lusche have revealed abnormalities. On

16 March 14,2006, early cataract fonnatioll was noted, but no fUI1her mention of it appears in

17 Tinoco 's reco rds. On July 14, 2006, Tinoco was found to have papilledema, which is evidence of

18 serious hypertension that causes a swelling of the opt ic nerve. Again. no further menti on of it

19 appears in the records, and no attempt to refer Tinoco to an eye spec iali st was made. In March

20 2007, Tinoco finally was returned to an eye doclor, who ngain recommended that he receive

21 reading glasses. When Tinoco spoke with a correctional officer about the doctor's

. 22 recommendation, Tinoco was infonned that "i t is pretty impossible to issue glasses."

23

E. fntal Consequences

24

123. The fai lure to provide adequate medical carc to dctainees has resulted in mUltiple

25 deaths at SOCF. In July 2003, a detainee known to be suffering from depression committed

26 su icide byhanging at SDCF. See ~ 115, supra.

27

124. On January 4,2005, a detainee named Ignacio Sarabia-Villasenor died of a heart

28 attack or seizure while in the shower at SDCF. When Sarabia fell to the ground and was having

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serious difficulty breathing, other detainees called for assistance from the CCA correctional

2 officer who was observing the pod from a secure surveillance area. After several minutes, the

3 officer reported to the pod and immediately ordered the pod on lockdown. Once all of the

4 detainees were locked in their cells, the officer stood over Sarabia for at least 15 minutes until

5 medical personnel arrived .·· Although Sarabia' s chest was still heaving and it was clear he could

6 not breathe, no· one began cardiopulmonary resuscitation (CPR) until approximate ly 25 minutes

7 after Sarabia collapsed. Detainees were shouting for the officers to do something, but they were

8 ordered to remain quiet or be sent to the hole (i.e. , segregation). By the time someone finally

9 initiated CPR Sarabia was already dead.

)0

125. Early in the morning of June 27, 2006, in Unit C, Pod J, a detainee named Yusif

II Osman died of coronary vasculitis whi le locked in his cell. Osman was a national of Ghana who

12 had complained of chest pain one month prior to his death. Plaintiff Ali Nesa, who was housed in
a 13 nearby cell, urged Osman, his friend, to visit the doctor. On infonnation and belief, when the

14 medical staff saw him, Osman was told that there was nothing wrong with him , and that he

IS probably ate too much . Osman received no medication for hi s chest pain. During the night on

16 which he died , Osman and hi s cell mate banged on the cell door and used the int ercom s ystem to

17 call fo r help. Acco rding to the medi cal examiner's investigat ive narrative, Osman awoke hi s

18 cell mate and complained o f chest pains. Osman ' s cellmate then used the intercom system to

19 notify the contro l officer that Osman was diabetic and was unable to wa lk. The control officer

20 notifi ed a pod offi ccr wh o walk ed by Osman ·s cell and saw him kneeling on th e floor of the cell.

21 Osman 's cell mate again explained that Osman .was diabetic and was unab le to walk . The officer

22 notified the control officer, who contacted the medical department. The medical unit supervisor

23 pulled Osman ' s chart, which allegedly contained no documented medical history, and

24 subsequen.tly infonned the control officer to instruct Osman to file a written sick call request. By

25 the time any officer returned to check on Osman he was unresponsive and cool to the touch.

26 More than one hour passed between the time Osman and his cell mate first reported the medical

27 emergency and the time that a 911 call was placed to American Medical Response.

28

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III. Class Action Allegations

2

126. Plaintiffs Woods, Aguilar-Tufcios, Ali Nesa, Carcamo, Ngtigi, Monteagudo-

3 Guerrero, Tinoco, Owino, Vanegas, Toro, and Fomai bring claims based on the Fifth Amendment 4 to the United States Constitution on behalf of themselves and all others similarly situated,

5 pursuant toRules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.

6

127. Plaintiffs seek to represent a class consisting of "all immigration detainees in ICE

7 custody who are now or in the future will be confined at San Diego Correctional Facility"

8 (hereinafter the "SDCF Class"). As a result of their confinement at SDCF. members of the SDCF

9 Class including plaintiffs have been, are, and will be subjected to violations of their constitutional

10 rights as described in this Complaint. Plaintiffs represent a class of persons seeking declaratory

II and injunctive relief to eliminate or remedy defendants' policies, practices, acts, and omissions 12 depriving them of those rights.

13

128. There are currently approximately 600-800 male and female immigration detainees

14 confined at SDCF. The proposed SDCF Class is so numerous, and membership in the class so 15 fluid, that joinder of all members is impracticable. Because ICE detainees are frequently 16 removed from the country, released from detention, and transferred between SDCF and other

17 facilities that 'house immigrati.on detainees, the membership of the class changes constantly.

18

129. All SDCF Class members are equally subject to the conditions described in this

19 Complaint. The policies and practices' of defendants to which all class members are equally
20 subject include, but arc not limited to:

21

• defendants' policies offailing to maintain sick call request forms together with

22

patient medical records and to respond to sick call requests in a timely manner;

23

• defendants ' policy of failing to monitor detainees with chronic conditions;

24

• defendants' policy of failing to maintain an adequate system to provide

25

prescription medication refills and to ensure continuity of treatment;

26

• defendants' policy offailing to make timely referrals for specialty care;

27

• defendants' policy of denying necessary medical care, including dental and

28

vision care, in accordance with official DIHS policies;

41.

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•

• Case 3:07-cv-01078-DMS -PCL Document 1

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• defendants' policy of failing to hire sufficient staff to care for the serious

2

dental needs of detainees; and

3

• defendants' policies offailing to provide adequate screening and monitoring of

4

detainees with serious mental health need s and to provide safe and appropriate

5

housing for such detainees.

6

130. Common questions of law and fact exist as to all SDCF Class members. These

7 common questions include, but are not limited to:

8

• whether defendants provide systemicall y ir:tadequate medical, mental hea lth,

9

dental, and vision care to class members;

!O

• whether defendants have placed class members at unreasonable risk of

I I

developing serious medical, mental health, dental , and vision problems;

12

• whether necessary detainee health care is delayed or denied by official DIHS

13

policies without medical j ustificatio n;

14

• whether plaintiffs' conditions of confinement are effectively punitive;

15

• whether defendants' conduct violat es the Fifth Amendment; and

16

• whether defendants' conduct shows a pattern of oflicially sanct ioned behavior

17

that violates plaintifts ' rights and establi~hes a credible threat of future injury.

18

·13 1. Plain titTs are immigration dCla·inees with a range of serious health care need s

19 typical of the SDCF Class as a whole. Plaintiffs and the class they represent have been direct ly

20 injured by defendnnts' unconstitutional policies, pn.lcli ces, acts, and omissio ns with respect to

21 healt h care, and are all al risk of future hann from continuation of these policies, practices, acts

22 and omissions.

23

132. Plaintiffs will fairly and adequately represent the interests of the SDCF Class.

24 Plaintiffs have no interests separate from those of the SDCF Class, and seek no relief other than

25 the rclief sought on behalf of the class. Plaintiffs' counsel are experienced in class action, civil

26 rights, immigrant s' rights, and conditions of confinement litigation.

27

133. Defendants have acted and refused to act on grounds generally applicable to the

28 SDCF Class, thereby making appropriate final injunctive relief and declaratory relief with respect

42.

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•

•

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to the class as a whole.

2

CLAIM FOR RELIEF

3

(Fifth Amendment to the U.S. Constitution)

4

134. Defendants' failure to treat plaintiffs' serious medical, mental health, dental, and

5 vision needs causes avoidable pain, mental suffering, and deterioration of plaintiffs' health. In

6 some cases, it has resulted in premature death.

7

135. Defendants' policies, practices, acts, and omissions place plaintiffs at

8 unreasonable, continuing and foreseeable risk of developing or exacerbating serious medical,

9 mental health, dental, and vision problems.

10

136. Defendants' policies, practices, acts, and omissions pertaining to the failure to

II provide adequate care to plaintiffs' serious health needs are not reasonably related to any

12 legitimate governmental objective.

13

137. Defendants ' policies, practices, acts, and omissions constitute de facto punishment

14 without due process of law in violation of the Due Process Clause of the Fifth Amendment to the

15 United States Constitution.

16

13 8. Although plaintiffs, as civil immigration detainees rather than convicted prisoners,

17 need not prove deliberate indifference to establish a violation of their substantive due process

18 rights, defendants' polici es, practices, acts, and omissions with respect to the provision of medical

19 care at SDCF nevertheless constitute delibera te indifference to plaintiffs' serious medical needs.

20

13 9. As a proxim ate res uh of Defendants' uncon stituti onal poli cies, practi ces, acts, and

21 omissions, plaintiffs are suffering and will continue to suffer immediate and in"cparable injury,

22 including physical, psychological and emotional injury and the risk of death. Plaintiffs.have no

23 plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive

24 rcliefsought by plaintiffs is necessary to prevent continued and further injury.

25

PRAYER FOR RELIEF

26

WHEREFORE, plaintiffs respectfully request thai the Court:

27

a.

Issue an order certifying this action to proceed as a class' action pursuant to Rules

28

43 .

CO.\II'I .,\INT

•

• Case 3:07-cv-01078-DMS -PCL Document 1

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23(a) and (b)(2) ofth e Federal Rules orCivil Procedure;

2

b. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal

3 Rules of Civil Procedure;

4

c. Issue a judgment declaring that defendants' policies, practices, acts, and omissions

5 described herein are unlawful and violate plaintiffs' rights under the Cons"titution and laws 'of the

6 United States;

7

d. Pennanently enJom defendants, their subordinates, agents, employees, and all

8 others acting in concert with them from subjecting plaintiffs to the unconstitutional conditions

9 described herein, and issue injuncti ve relief sufficient to rectify those conditions;

10

e. Grant plaintiffs their reasonable attorney fees and costs pursuant to 28 U.S.C. §

11 2412, and other applicable law; and

12

r. Grant such other and further reli ef as this Court deems just ,and proper.

13

14 Daled: June 13 ,2007
15 16 17 · 18 19 20 21
22
23 24 25 26 27 28

Respectfully submitted,
By:
Ant hony M. legler BN 1264 14) Mary Kalhryn Kelley (SBN 170259) Cooley Goclward Kronish LLP 440 I EaSigale Mall San Di ego, CA 92 121-1909 Tel: (858) 550-6035 Fax: (858) 550-6420 Ema il : asti cglcr@coolcy.com
Tom-Tsv i M. Jawetz (pro hac vice pending) Gouri Bhat (pro hac vice pending) David C. Fathi· (pro hac lIice pending) American Civil Liberties Union Foundation
Na tional Prison Project 915 151h Slreel NW, 7th Floor Washinglon, D.C. 20005 Tel: (202) 548-66 10 Fax: (202) 393 -493 1 Email: tjawetz@npp-acJ u.org ·Not admilled in D.C.; practice limited 10 federal courlS
Judy Rabinovitz (pro hac vice pending) American Civil Li bert ies Union Foundation
Immigran ts' Rights Project

44 .

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2 3
4 5 6 7 8 9 10 II 12 ) 3 14 546767 vl lSO 15 16 17 18 19 20 21
22
23 24 25 26 27 28

125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2618 Fax: (212) 549-2654 Email: jrabinovitz@aclu.org
M6nica M. Ramirez (SBN 234893) American Civil Liberties Union Foundation
Immigrants' Rights Project
39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0778 Fax: (415) 395-0950
Email: mramirez@acl u.org
David Blair-Loy (SBN 229235) American Civil Liberties Union Foundation
of San Diego & Imperial Counties P.O. Box 87131
San Diego, CA 92 138-7 131 Tel: (619) 232-2121 Fax : (619) 232-0036 Email: dblairloy@ac1usandiego.org
Counsel for Plaintijft

45.

COMI'L,\INT

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neithC"\~IY'J~sJ~e r~lng "'- JS« IR.. """

•

The JS 44 civil cover sheet and the infoonalion contained herein

8n(fservice of pleadings or other papers as required

by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States In September 1974, Is r equired for the use

of~ Clerk of Court for the purpose of Initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE; FORM.)

I. (0) PLAINTIFFS

DEFENDANTS

EAMMA JEAN WOODS; RIGOBERTO AGUILARTURerOS; MOHAMMAD MONFOR ALI NESA; WINSTON CARCAMO ; FRED NGANGA NGUGI; et al.

JULIE L . MYERS, Assistant Secretary, U.S.

Immigration and Customs Enf~cement

(ICE) , et al .

riLED

1 (b) Ccunty of Rosi~ d Fint U,lod PI.n~fI _,s~a~O~JD~i"e"-9g~o'--_ _ _ _ _ _ County 01 Resldenc. of Fhl U,tod o.!~

07 JUN 13 AM II' 4I

(eXCEPT IN u .s. PLAINTIFF CASES)

<IN u .s . PLAINTIFF c~ts~4Y.s

..

.

NOTE: IN LAND CONDEMNATION CASES. uife ¥ftEli~OilDiEi,u t: . , .,.

~

lANDINVDLVED.

9.,,, O:C/,t}lCi/ !ii.•.

(c) AIIomeY.(FlmlName. _ _. _T~""""")
Cooley Godward Kronish LLP

Anomeys (If 1<noMI)

8 Y:

I W(../

4401 Eastgate Mall San Diego, CA 92121
(858) 550-6000

RBB '07CV 1078 l ..' .'

DEPUT Y

II. BASIS OF JURISDICTION (I'1fCun'X" In O"dOJ 0rIy)

o u.s. Government PIeIn\Xf
o 2 U.S. GoYernmerll Drllendanl

00 3 Fedor.1 OuHUon
(U.S. Government Not. Party)
0 4 OiverJity (In(SIeete ClIIunshlp of Parties

In Item IU)

III. CITIZtSHIP OF PRINCIPAL PARTIES (PI_an·x""'~.Doo:~ein~1f

(For 01 ... rslly Cases Only)

aM oM eo.. lor DtI..-.ilftt)

CitlzIIn of ThI, State CitI!en oIAnothef Slate

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Case 3:07-cv-01078-DMS -PCL Document 1 Filed 06/13/07 Page 50 of 50

UNITED STATES DISTRICT COURT
SOUTHERN DISTR ICT OF CALIFORNIA
SAN DI EGO DIVISION
• 139305 - BH
• • COP Y • '*
June 13 .. 2007
11:29 : 50

Clv Fil Non- Pris

USAO #.: 07CV1078 CIV. Fil.

Judge .. : H. JAMES LORENZ

Amount.:

$350 .00 CII:

Checkl.: BCI 3793

Total - > $350 . 00
FROM: W£mS ET AI.. V. HYERS ET AL CIVIL FILING

 
 Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 1 of 10

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 EAMMA JEAN WOODS, et al.,

CASE NO. 07cv1078 DMS (PCL)

12 vs.
13
14 JULIE L. MYERS, et al.,
15

Plaintiffs, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS [Doc. 23, 24, 25]

16

17

Pending before the Court are two motions to dismiss Plaintiffs’ Complaint. The first was filed

18 by Defendants Corrections Corporation of America (“CCA”) and Joe Easterling (“Easterling”) on

19 August 14, 2007 (“CCA Motion,” Doc. 23). The second was filed by thirteen Immigrations and

20 Customs Enforcement individuals named as Defendants (collectively, “Federal Defendants”) (“Joint

Motion,” Doc. 24).1 CCA and Easterling joined in the Joint Motion. (Doc. 25). The Court took the 21

22 matter under submission without oral argument on September 28, 2007. The Joint Motion is

23 GRANTED as to Plaintiffs Carcamo and Monteagudo-Guerrero, and DENIED as to all other Plaintiffs.

24 The CCA Motion is DENIED in its entirety.

25

26

1 Pursuant to 5 U.S.C. § 702, Federal Defendants asked the Court to substitute Immigration and

Customs Enforcement or, alternatively, Julie L. Myers, and the Division of Immigration Health 27 Services for the individuals named as Federal Defendants in this proceeding. However, 5 U.S.C § 702

does not appear to require this; instead it allows Plaintiffs to “specify the Federal officer or officers 28 (by name or by title) and their successors in office, personally responsible for compliance.” Thus, the

Court declines to change the caption of the case.

- 1 -

07cv1078

Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 2 of 10

1

I.

2

BACKGROUND2

3

Plaintiffs are eleven civil immigration detainees in the custody of U.S. Immigration and

4 Customs Enforcement (“ICE”) who are or were housed at San Diego Correctional Facility (“SDCF”),

5 a contract detention facility in Otay Mesa, California operated by CCA. Defendant Easterling is the

6 warden at that facility. All other Federal Defendants are employees of ICE sued in their official

7 capacities.

8

On June 13, 2007, Plaintiffs filed their Complaint seeking injunctive and declaratory relief and

9 alleging that deficiencies in the medical care provided at SDCF constituted a violation of their Due

10 Process Rights. (Doc. 1). In particular, Plaintiffs alleged necessary medical, dental, mental health, and

11 vision care are routinely delayed or denied. (Compl. at 11, 29-37).

12

On June 22, 2007, Plaintiffs filed a motion to certify a class representing 600-800 detainees

13 in ICE custody who are now or in the future will be confined at SDCF. (P’s Mot. for Class Cert. at 1,

14 Doc. 11). The Court will hear oral arguments and take that motion under submission within the next

15 several weeks. In the meantime, two of the eleven currently named Plaintiffs are no longer detained

16 at SDCF. Winston Alexander Carcamo (“Carcamo”) was removed to Belize on February 7, 2007, and

17 Marta Monteagudo-Guerrero (“Monteagudo-Guerrero”) was granted voluntary departure and

18 subsequently released on her own recognizance on June 22, 2007.

19

The CCA Motion asserts the Complaint against CCA and Easterling should be dismissed

20 because (1) Plaintiffs do not have standing to bring these claims against these defendants; and (2)

21 Plaintiffs have not alleged sufficient facts to state a claim for injury pursuant to Federal Rule of Civil

22 Procedure 12(b)(6). (CCA Motion at 2). Arguments in the CCA Motion focus on CCA’s and

23 Easterling’s assertions that they are not the parties responsible for providing medical services. (Id. at

24 2). The Joint Motion asserts (1) Plaintiffs Carcamo and Monteagudo-Guerrero should be dismissed

25 from the lawsuit because their claims are moot and (2) Plaintiffs have failed to state a sufficient claim

26 for relief pursuant to Federal Rule of Civil Procedure 12(b)(6). (Joint Motion at 2).

27

28

2 The facts presented are taken from the parties’ pleadings. The Court makes no finding as to

their truth.

- 2 -

07cv1078

Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 3 of 10

1

II.

2

DISCUSSION

3

A. Standing

4

Article III of the United States Constitution limits the jurisdiction of federal courts to actual

5 cases or controversies. U.S. Const. Art. III. To establish a case or controversy, a plaintiff must

6 demonstrate three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the

7 plaintiff must have suffered an “injury in fact.” Id. Second, there must be a “causal connection between

8 the injury and the conduct complained of— the injury has to be fairly traceable to the challenged action

9 of the defendant and not the result of the independent action of some third party not before the court.”

10 Id. Third, it must be “likely, as opposed to merely speculative that the injury will be redressed by a

11 favorable decision.” Id.

12

In cases where plaintiffs are asking for injunctive relief, the standing requirements tighten.

13 Plaintiffs must prove a likelihood of future, irreparable harm. It is not enough for a plaintiff in equity

14 to allege a prior injury: “[p]ast exposure to illegal conduct does not in itself show a present case or

15 controversy regarding injunctive relief... if unaccompanied by any continuing, present adverseeffects.”

16 O’Shea v. Littleton, 414 U.S. 488, 496 (1974). While past wrongs can be “evidence bearing on

17 whether there is a real and immediate threat of repeated injury,” Los Angeles v. Lyons, 461 U.S. 95,

18 102 (1983), a plaintiff must generally prove there is a likelihood of a future threat of the same kind by

19 the same individuals involved in the prior wrongful conduct. See, e.g. Rizzo v. Goode, 423 U.S. 362,

20 372 (1976); Golden v. Zwickler, 394 U.S. 103, 109 (1969).

21

In Lyons, for example, the Supreme Court determined whether a plaintiff had standing to

22 pursue injunctive and declaratory relief against the City of Los Angeles. Lyons, 461 U.S. at 97. City

23 police officers in Lyons had placed plaintiff in a chokehold during a traffic stop five months prior to

24 the lawsuit. Id. at 97-98. Plaintiff sought an injunction prohibiting the use of chokeholds except in

25 situations where the proposed victim was threatening officers. Id. at 98. The court held plaintiff lacked

26 standing because he had not established a real and immediate threat that he would again be stopped

27 for a traffic violation by officers who would illegally choke him. Id. at 105. In order to establish an

28 actual controversy, the plaintiff would have had to allege that he would have had another encounter

- 3 -

07cv1078

Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 4 of 10

1 with the police and assert that either (1) all police officers would always choke any citizen, or (2) that

2 the City had ordered or authorized the officers to act in such a manner. Id. at 105-106 (emphasis

3 added).

4

Here, CCA and Easterling first claim that since they do not provide medical, psychiatric, or

5 dental services to SDCF detainees, Plaintiffs cannot prove they pose a risk of future injury. As a

6 corollary, no injunction against CCA and Easterling could redress Plaintiffs’ alleged injuries.Although

7 Plaintiffs do not allege CCA and Easterling are directly responsible for providing medical care, they

8 do allege these defendants have taken action that directly led to the illegal deprivation or delay of

9 Plaintiffs’ medical care. For example, they allege Easterling establishes CCA’s policies regarding

10 accommodating detainees with special medical needs and arranging transportation for detainees to

11 attend off-site medical appointments. (Compl. ¶ 34). They also alleged these policies are deficient.

12 (Compl. ¶ 46-47).

13

As for CCA, although Plaintiffs admit CCA has not provided medical services to detainees

14 since June 1, 2002 (Compl. ¶ 49), they also allege instances of inaction by CCA’s employees after

15 being alerted to situations demanding medical care. For example, Plaintiffs allege CCA was notified

16 of an inmate’s need for psychiatric attention, but took no action. Days later, the inmate committed

17 suicide. (Comp. ¶ 115). Plaintiffs also allege CCA officials were notified of an inmate’s collapse, but

18 instead of performing CPR, a CCA official stood over the inmate, who was in obvious respiratory

19 distress, for 15 minutes until help arrived. The inmate died within twenty-five minutes of the incident.

20 (Compl. ¶ 124). While it is true that neither inmate in these incidents are plaintiffs in this lawsuit, these

21 allegations could support an inference that CCA has a pattern of delaying medical treatment, and the

22 alleged pattern of delay causes injury.

23

Plaintiffs must also allege that risk of harm due to delayed or denied medical treatment affects

24 Plaintiffs named in the lawsuit. To meet this requirement, the Complaint lists several plaintiffs

25 currently suffering from mental illness and chronic physical illness. (Compl. ¶ 110-115, 67-73).

26 Therefore, although CCA and Easterling are not directly responsible for inmate care, the Complaint

27 sufficiently alleges the risk of future injury arising out of conduct attributable to both parties.

28

Second, CCA and Easterling claim that in order to qualify for injunctive relief, the stricter

- 4 -

07cv1078

Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 5 of 10

1 standing requirements of Lyons would require Plaintiffs to allege they are likely to “either attempt to

2 commit suicide or have a heart attack, all of CCA’s employees would have a deficient response, and

3 the deficient response would be a result of CCA’s policies.” (CCA Motion at 5). As a preliminary

4 matter, the Court must clarify the Lyons requirements. Lyons did not require all three allegations.

5 Rather, Lyons required allegations of a future “encounter with the police” along with an assertion that

6 either (1) all police officers would always choke a citizen, or (2) the City ordered or authorized police

7 officers to act in this manner– that is, the actions are a result of policy. Lyons, 461 U.S. at 106. It is

8 therefore sufficient that Plaintiffs allege, as they do, that (1) certain Plaintiffs currently suffer from

9 mental illness, depression, or medical problems likely to require an emergency response, (Compl. ¶

10 110-115, 67-73), and (2) the delays are “routine” and entrenched in policy. (Compl. ¶ 45-46).

11

In addition, Defendant’s proposed required allegations are too specific. In Lyons, the plaintiff

12 sought an injunction barring the specific police practice of using chokeholds. Lyons, 461 U.S. at 98.

13 Thus, the Lyons court required him to allege he would again suffer a chokehold at the hands of a police

14 officer. Here, Plaintiffs seek relief from “policies, practices, acts, and omissions” giving rise to a

15 pattern of denying or delaying medical treatment in violation of the Fifth Amendment. (Compl. ¶ d.-e.

16 at 44). Thus, Plaintiffs do not have to show a likelihood of encountering exactly the same scenario

17 involving exactly the same illness. Instead, they must allege that they are likely to be injured in a 18 similar way.3 Plaintiffs do allege such a likelihood. Suicide and death by heart attack are examples of

19 the kind of injury Plaintiffs allege could result from future delays. Thus, the requirements of Lyons

20 are met. Plaintiffs have standing to pursue these claims against Defendants.

21

B. Mootness

22

Defendants contend that because Carcamo and Monteagudo-Guerrero are no longer housed at

23 SDCF, their claims are moot. (Joint Motion at 4). Plaintiffs respond that in class actions involving

24 prisoners or detainees, the removal or release of a named plaintiff, even prior to class certification,

25
3 “Absent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no 26 more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not
entertain a claim by any or all citizens who no more than assert that certain practices of law 27 enforcement officers are unconstitutional.” Lyons at 111. (emphasis added). This language suggests
Plaintiffs must allege they will likely be future victims of the same “certain practices” alleged in the 28 Complaint. If the “certain practices” alleged are broader than those of Lyons, the range of future injury
alleged can also be broader.

- 5 -

07cv1078

Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 6 of 10

1 does not moot the claims of the unnamed class member or eliminate the named plaintiff’s personal

2 stake in obtaining class certification. (Opp. at 8).

3

The Supreme Court has recognized that “some claims are so inherently transitory that the trial

4 court will not have even enough time to rule on a motion for class certification before the proposed

5 representative’s individual interest expires.” United Sates Parole Comm’n, et al. v. Geraghty, 445 U.S.

6 388, 398 (1979). The Ninth Circuit, in remanding a case for decision by the district court on a similar

7 prisoner class certification motion, gave the district court the following guidance:

8

If the district court finds the claims are indeed ‘inherently transitory,’ then the action

qualifies for an exception to mootness even if there is no indication that ... current

9

class members may again be subject to the acts that gave rise to the claims. This is

because there is a constantly changing putative class that will become subject to these

10

allegedly unconstitutional conditions.... On the other hand, if the district court finds

that the class claims are not sufficiently transitory to qualify for this exception to the

11

mootness doctrine, it should then consider whether putative class members with live

claims should be allowed to intervene.

12

13 Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997) (citations omitted).

14

The Court finds these class claims are not sufficiently transitory to qualify for this exception.

15 Once the class is certified, claims that become moot may no longer be dismissed on those grounds.

16 Sosna v. Iowa, 419 U.S. 393, 401-402 (1975). Even if class certification is denied, all named plaintiffs,

17 even those whose individual claims later become moot, retain standing for purposes of appealing the 18 denial. Geraghty, 445 U.S. at 404.4 Thus, a case that is “sufficiently transitory” must be so short in

19 duration that it will not survive the Court’s decision on the class certification motion. The class

20 certification motion in this case will be heard in a matter of weeks. Plaintiffs admit “many detainees

21 spend months or years awaiting a final determination of their immigration case.” (Compl. ¶ 2).

22 Currently, there are nine named representatives that have active claims. Plaintiffs have not argued that

23 any of these nine are facing immediate release. They have argued only that dismissing Carcamo’s and

24 Monteagudo-Guerrero’s claim might induce future defendants to transfer or release all named plaintiffs

25 to render the class action moot. However, there is no evidence that Defendants’ release of these two

26

27

4 However, the Court in Geraghty limited its holding to the appeal. “A named plaintiff whose

claim expires may not continue to press the appeal on the merits until a class has been properly 28 certified. If, on appeal, it is determined that class certification properly was denied, the claim on the

merits must be dismissed as moot.” 445 U.S. at 404. (emphasis added, citations omitted).

- 6 -

07cv1078

Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 7 of 10

1 Plaintiffs was for any improper purpose. Moreover, the Court expresses no opinion on whether the

2 entire class claim would be dismissed if all named Plaintiffs were transferred or released. The Court’s

3 action today is limited to dismissing only Plaintiffs Carcamo and Monteagudo-Guerrero from this

4 lawsuit because their individual claims are moot.

5

C. 12(b)(6) Motions to Dismiss

6

A dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is appropriate only if the

7 complaint contains no cognizable legal theory or an absence of sufficient facts alleged to support a

8 cognizable legal theory. Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). In considering the matter, the

9 Court must accept all material allegations in the complaint, and all reasonable inferences to be drawn

10 from them as true. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996).

11

The parties dispute whether Plaintiffs are required to allege facts sufficient to state a claim for

12 relief under the Eighth Amendment to the United States Constitution. The Ninth Circuit applies the

13 Eighth Amendment’s analysis of inadequate medical care to criminal detainees, including pre-trial

14 detainees, who otherwise derive their freedom from unconstitutional punishment from the due process

15 clauses of the Fifth and Fourteenth Amendments. Lolli v. County of Orange, 351 F.3d 410 (9th Cir.

16 2003); Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002); Alvarez-Machian v. U.S., 107 F.3d

17 696, 701 (9th Cir. 1996). The Eighth Amendment requires detainees to allege deliberate indifference

18 to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). On the other hand, individuals

19 who have been involuntarily civilly committed, such as mentally ill patients, are not required to allege

20 deliberate indifference. See Youngberg v. Romeo, 457 U.S. 307, 312 n.11 (1982). Rather, “liability may

21 be imposed only when the decision by the mental health professional is such a substantial departure

22 from accepted professional judgment, practice, or standards as to demonstrate that the person actually

23 did not base the decision on such a judgment.” Id. at 323.

24

The standard applicable to immigration detainees is not at all clear. A substantial legal dispute

25 exists between the parties as to whether immigration detainees should be treated as criminal, pre-trial

26 detainees, or involuntarily committed individuals. Plaintiffs note that the Ninth Circuit has, in the

27 context of appointing an attorney to an immigration detainee, recognized the civil character of certain

28 immigration detentions. Agyeman v. Corr’s. Corp. of Am., 390 F.3d 1101, 1104 (9th Cir. 2004)

- 7 -

07cv1078

Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 8 of 10

1 (Incarcerating a person on noncriminal charges “may be a cruel necessity of our immigration policy;

2 but if it must be done, the greatest care must be observed in not treating the innocent like a dangerous

3 criminal.”). Moreover, the Ninth Circuit has held individuals awaiting civil commitment proceedings,

4 in addition to pre-trial detainees are entitled to more “considerate treatment of confinement than

5 criminals whose conditions of confinement are designed to punish.” Jones v. Blanas, 393 F.3d 918, 931

6 (9th Cir. 2004). However, the Ninth Circuit has never squarely decided whether immigration detainees,

7 whose detention is technically civil in nature but who are nonetheless detained in part because they

8 violated immigration laws, are required to plead the Eighth Amendment standard. Regardless, since

9 Plaintiffs allege facts sufficient to meet the stricter Eighth Amendment standard, the Court need not 10 reach the question.5

11

The Eighth Amendment prohibits “deliberate indifference to serious medical needs.” Estelle,

12 429 U.S. at 104. Plaintiffs allege “defendants’ policies, practices, acts, and omissions with respect to

13 the provision of medical care at SDCF... constitute deliberate indifference to plaintiffs’ serious medical

14 needs.” (Compl. ¶ 138). Plaintiffs also allege each element with particularity.

15

Deliberate indifference can take the form of “intentionally denying or delaying access to medical

16 care or intentionally interfering with the treatment once prescribed.” Id. at 104-105. Plaintiffs need not

17 allege that Defendants knew of a specific risk from a specific source. “The question under the Eighth

18 Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a

19 sufficiently substantial risk of serious damage to his future health, and it does not matter whether the 20 risk comes from a single source or multiple sources...” Farmer v. Brennan, 511 U.S. 825, 843 (1994).6

21 Plaintiffs allege, inter alia, Defendants “routinely ignore requests for urgent care,” (Compl. ¶ 2),

22

23

5 “Even when the defense presents a purely legal question, the courts are very reluctant to

determine disputed or substantial issues of law on a motion to strike; these questions quite properly 24 are viewed as determinable only after discovery and a hearing on the merits.” Salcer v. Envicon

Equities Corp., 744 F.2d 935 (2d Cir. 1984), quoting 5 C. Wright & A. Miller, Federal Practice and 25 Procedure § 1381, at 800-01; See also Cal. Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217

F. Supp. 2d 1028, 1044 (C.D.Ca. 2002). Although this is a motion to dismiss rather than a motion to 26 strike, as there has been no hearing on the merits, the Court proceeds with the same caution.

27

6In that Eighth Amendment case, the Court held it was unnecessary to prove that a prison

official knew “that the complainant was especially likely to be assaulted by the specific prisoner who 28 eventually committed the assault.” It was enough that “he was aware of an obvious, substantial risk

to inmate safety.” Id.

- 8 -

07cv1078

Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 9 of 10

1 “persons charged with authorizing treatment delay or deny treatment in the hope that detainees will be

2 removed from the United States or released from detention sooner, rather than later,” (Compl. ¶ 45),

3 and “[t]he general principles reflected in the DIHS Benefits Package form the foundation for DIHS’s

4 pervasive practice of refusing to provide necessary medical services to immigration detainees” and

5 “reflect a policy of delay and denial of care.” (Compl. ¶ 46-47). The allegations that detainees requested

6 medical care could give rise to an inference that Defendants had knowledge of the need for care.

7 Plaintiffs’ allegations that Defendants then denied or delayed response to those requests in compliance

8 with policy thus supports an inference of deliberate indifference on the part of both individual and

9 corporate Defendants.

10

A “serious medical need” exists where “the failure to treat a prisoner’s condition could result

11 in further significant injury or the unnecessary and wanton infliction of pain.” Clement v. Gomez, 298

12 F.3d 898, 904 (9th Cir. 2002) (citations omitted). Other factors to consider include: (1) whether a

13 reasonable doctor or patient would perceive the medical need in question as important and worthy of

14 comment or treatment, (2) whether the medical condition significantly affects daily activities, and (3)

15 the existence of chronic and substantial pain.” Brock v. Wright, 315 F. 3d 158, 162 (2d Cir. 2003).

16 Plaintiffs allege, inter alia, the following medical needs with particularity: serious dental problems (Id.

17 ¶ 13), cystic growths (Id. ¶ 17), post-traumatic stress disorder with a suicide risk (Id. ¶ 11, 117), bi-polar

18 disorder and depression (Id. ¶ 112), a shattered molar (Id. ¶ 64, 100), and Hepatitis C (Id. ¶ 19, 71). A

19 jury could find any one of these medical problems to be “serious.”

20

Accordingly, Defendants’ motions to dismiss for failure to state a claim are DENIED.

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

- 9 -

07cv1078

Case 3:07-cv-01078-DMS -PCL Document 45 Filed 10/29/07 Page 10 of 10

1

IV.

2

CONCLUSION

3

For the foregoing reasons, Defendants’ Joint Motion to dismiss is GRANTED as to Plaintiffs

4 Carcamo and Monteagudo-Guerrero, and DENIED as to all other Plaintiffs. CCA and Easterling’s

5 Motion to Dismiss is DENIED in its entirety.

6

7 IT IS SO ORDERED.

8

9 DATED: October 29, 2007

10

11

HON. DANA M. SABRAW

United States District Judge

12

13

14

15

16

17

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19

20

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22

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24

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26

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- 10 -

07cv1078

 
 Case 3:07-cv-01078-DMS-PCL Document 48 Filed 11/13/07 Page 1 of 56

1 KAREN P. HEWITT

United States Attorney

2 THOMAS C. STAHL

Assistant United States Attorney

3 Chief, Civil Division

CINDY M. CIPRIANI

4 Assistant United States Attorney

California Bar Number: 144402

5

880 Front Street, Room 6293

San Diego, California 92101

6

Telephone:(619) 557-7390

E-Mail: Cindy.Cipriani@usdoj.gov

7
PETER D. KEISLER

8 Assistant Attorney General
DAVID J. KLINE

9 Principal Deputy Director
VICTOR M. LAWRENCE

10 Senior Litigation Counsel
SAMUEL P. GO

11 Trial Attorney
Office of Immigration Litigation

12

Civil Division, U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

13

Washington, D.C. 20044

Telephone: (202) 353-9923

Facsimile: (202) 233-0397

14

E-Mail: Samuel.Go@usdoj.gov

15 Attorneys for Defendants Julie L. Myers, John P. Torres, Ron 16 Smith, and Anthony Cerone

17

IN THE UNITED STATES DISTRICT COURT

18

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

19 EAMMA JEAN WOODS, et al.,
20 Plaintiff,
21
v. 22

JULIE L. MYERS, et al., 23

24

Defendant.

) Case No. 07-cv-1078-DMS-PCL ) ) ) DEFENDANTS’ ANSWER TO ) PLAINTIFFS’ COMPLAINT FOR ) INJUNCTIVE AND DECLARATORY ) RELIEF1 ) ) )

25

26 1 This Answer is filed on behalf of the Federal Defendants. It is not filed on behalf of defendants Corrections Corporation of
27 America (CCA), Joe Easterling, or Charles Howard.

28 Defendants’ Answer to Plaintiffs' Complaint for Injunctive and Declaratory Relief
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1

COME NOW Defendants Julie L. Myers, John P. Torres, Robin

2 Baker, Anthony Cerone, Neil Sampson, Timothy Shack, Capt. Philip

3 Jarres, Lt. Tonya Walston, Stephen Gonsalves, Esther Yun-Ling 4 Hui, David Lusche, Edmund Jedry, and Scott J. Salvatore 5 ("Defendants"), by and through the undersigned counsel, and 6 submit this Answer to Plaintiffs’ Complaint for Injunctive and 7
Declaratory Relief. 8

9 INTRODUCTION
10 1. Defendants admit the allegations in the first and
11 second sentences of Paragraphs 1, with exception as
12 applied to plaintiffs Winston Alexander Carcamo, Marta
13
Monteagudo-Guerrero and Mohammad Ali Nesa. Defendants 14
admit the allegations in the third and fourth sentences 15
of Paragraph 1. Defendants admit the allegations in 16

the fifth sentence of Paragraph 1, to the extent that 17

18

any reference to contract employees refers to PHS'

19

contract employees at the Facility. Defendants deny

20

the allegations in the sixth sentence of Paragraph 1.

21

2. Denied.

22

3. This paragraph sets forth plaintiffs' portrayal of the

23

action, including legal conclusions. No response is

24

necessary. Defendants object to the characterizations

25

of defendants' actions and to every legal conclusion

26

set forth by plaintiffs. To the extent that a response

27

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1

is deemed required, the allegations in Paragraph 3 are

2

denied.

3

4 JURISDICTION AND VENUE

5

4. This paragraph sets forth conclusions of law to which

6

no response is required; however, to the extent that a

7 response is deemed required, the allegations of
8 Paragraph 4 are denied.
9 5. This paragraph sets forth conclusions of law to which
10 no response is required; however, to the extent that a
11 response is deemed required, the allegations of
12 Paragraph 5 are denied.
13
6. This paragraph sets forth conclusions of law to which 14
no response is required; however, to the extent that a 15
response is deemed required, the allegations of 16

Paragraph 6 are denied. 17

18

7. This paragraph sets forth conclusions of law to which

19

no response is required; however, to the extent that a

20

response is deemed required, the allegations of

21

Paragraph 7 are denied.

22 PARTIES

23 I. Plaintiffs

24

8. Defendants admit the allegations of Paragraph 8 as to

25

plaintiffs Eamma Jean Woods, Rigoberto Aguilar-Turcios,

26

Fred Nganga Ngugi, Luis Alberto Tinoco, Sylvester

27

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1

Owino, Gloria Vanegas, Alfredo Toro, and Romeo Fomai.

2

Defendants deny the allegations of Paragraph 8 as to

3

Winston Carcamo, Marta Monteagudo-Guerrero and Mohammad

4

Ali Nesa.

5

9. Defendants admit the allegations in the first sentence

6

of Paragraph 9 to the extent that plaintiff Woods is a

7 45-year old woman from Honduras. Defendants lack
8 sufficient information and knowledge to form a belief
9 as to the truth of the remainder of the allegations in
10 the first sentence of Paragraph 9, which allegations
11 are therefore denied. Defendants admit the allegations
12 in the second sentence of Paragraph 9. Defendants
13
admit the allegations of the third sentence of 14
Paragraph 9 to the extent that plaintiff Woods has been 15
diagnosed with neurofibromatosis and has been 16

complaining of a glomus tumor on her finger, but deny 17

18

the existence of a glomus tumor on her finger.

19

Defendants admit the allegations of the fourth sentence

20

of Paragraph 9 to the extent that plaintiff Woods has

21

been diagnosed with bipolar disorder, depression, and

22

possibly a mild form of a seizure disorder; however,

23

there was no indication of a seizure disorder on her

24

EEG. Defendants deny the remainder of the allegations

25

of the fourth sentence of Paragraph 9.

26

27

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10. Defendants admit the allegations in the first and

2

second sentences of Paragraph 10. Defendants deny the

3

allegations in the third sentence of Paragraph 10.

4

11. Defendants admit the allegations in the first sentence

5

of Paragraph 11, to the extent that plaintiff Ali Nesa

6

was detained at SDCF since May 2005. However, Mr. Nesa

7 was removed from the United States and returned to
8 Belize on October 4, 2007. Defendants lack sufficient
9 information and knowledge to form a belief as to the
10 truth of the allegations in the second sentence of
11 Paragraph 11, which allegations are therefore denied.
12 Defendants deny the allegations in the third sentence
13
of Paragraph 11 and object to the characterizations of 14
defendants' action therein and to every legal 15
conclusion set forth by plaintiffs. Defendants deny 16

the allegations in the fourth sentence of Paragraph 11. 17

18

Defendants admit the allegations in the fifth sentence

19

of Paragraph 11 to the extent that plaintiff Ali Nesa

20

complained of headaches and chest pain, as well as

21

bleeding in his mouth and a burning pain in his penis

22

during urination, but aver that he refused to attend

23

several scheduled dental appointments. Defendants deny

24

the allegations in the sixth sentence of Paragraph 11.

25

12. Plaintiff Carcamo was removed from the U.S. and

26

returned to Belize on July 6, 2007. As a result, he

27

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1

has since been dismissed from this action. No response

2

is needed; however, to the extent that a response is

3

deemed required, the allegations of Paragraph 12 are

4

denied.

5

13. Defendants admit the allegations of the first sentence

6

of Paragraph 13 to the extent that Mr. Ngugi is a 38-

7 year-old man from Kenya who entered the United States
8 on a student visa in August 1998. Defendants admit the
9 allegations in the second sentence of Paragraph 13.
10 Defendants admit the allegations in the third sentence
11 of Paragraph 13 to the extent that plaintiff Ngugi has
12 been diagnosed with bipolar disorder and has taken
13
medication for that condition, but aver that he often 14
refuses to take his medication. Defendants deny the 15
remainder of the allegations in the third sentence of 16

Paragraph 13. Defendants admit the allegations in the 17

18

fourth sentence of Paragraph 13 to the extent that Mr.

19

Ngugi has had dental problems for which he had dental

20

appointments and received a regimen of amoxicillin as

21

treatment. Defendants deny the remainder of the

22

allegations in the fourth sentence of Paragraph 13.

23

14. Plaintiff Monteagudo-Guerrero was released from ICE

24

custody on June 22, 2007 on her own recognizance and

25

was granted voluntary departure. As a result, she has

26

been dismissed from this action. For these reasons, no

27

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1

response is needed; however, to the extent that a

2

response is deemed required, the allegations of

3

Paragraph 14 are denied.

4

15. Defendants admit the allegations in the first sentence

5

of Paragraph 15 to the extent that Mr. Tinoco is a 64-

6

year-old man from Nicaragua who arrived at SDCF in

7 September 2003. Defendants lack sufficient information
8 and knowledge to form a belief as to the truth of the
9 the remainder of the allegations in the first sentence
10 of Paragraph 15, which allegations are therefore
11 denied. Defendants admit the allegations in the second
12 sentence of Paragraph 15 to the extent that plaintiff
13
Tinoco has been diagnosed with diabetes, 14
hypercholesterolemia, hypertension and hemorrhoids. 15
Defendants deny the remainder of the allegations in the 16

second sentence of Paragraph 15. 17

18

16. Defendants admit the allegations in the first and

19

second sentences of Paragraph 16. Defendants admit the

20

allegations in the third sentence of Paragraph 16 to

21

the extent that Mr. Owino has been diagnosed with

22

hypertension and asthma, and complained of dental pain

23

and vision problems while at SDCF. Defendants deny the

24

remainder of the allegations in the third sentence of

25

Paragraph 16.

26

27

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17. Defendants admit the allegations in the first sentence

2

of Paragraph 17. Defendants lack sufficient

3

information and knowledge to form a belief as to the

4

truth of the allegations in the second sentence of

5

Paragraph 17, which allegations are therefore denied.

6

Defendants admit the allegations in the third sentence

7 of Paragraph 17 to the extent that Ms. Vanegas has been
8 diagnosed with hypothyroidism. Defendants lack
9 sufficient information and knowledge to form a belief
10 as to the truth of the remainder of the allegations in
11 the third sentence of Paragraph 17.
12 18. Defendants admit the allegations in the first and
13
second sentences of Paragraph 18. Defendants admit the 14
allegations in the third sentence of Paragraph 18 to 15
the extent that Mr. Toro has been diagnosed with 16

hypertension. Defendants lack sufficient information 17

18

and knowledge to form a belief as to the truth of the

19

remainder of the allegations in the third sentence of

20

Paragraph 18, which allegations are therefore denied.

21

19. Defendants admit the allegations in the first sentence

22

of Paragraph 19, to the extent that plaintiff Fomai is

23

a 36-year old man from Samoa who has been diagnosed as

24

transgendered. Defendants lack sufficient information

25

and knowledge to form a belief as to the truth of the

26

remainder of the allegations in the first sentence of

27

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Paragraph 19, which allegations are therefore denied.

2

Defendants admit the allegations in the second sentence

3

of Paragraph 19. Defendants lack sufficient

4

information and knowledge to form a belief as to the

5

truth of the allegations in the third sentence of

6

Paragraph 19, which allegations are therefore denied.

7 Defendants admit the allegations in the fourth sentence

8 of Paragraph 19, to the extent that plaintiff Fomai has
9 been diagnosed as having the hepatitis C virus,
10 depression and has a history of suicidal thoughts.
11 Defendants lack sufficient information and knowledge to
12
form a belief as to the truth of the remainder of the 13
allegations in the fourth sentence of Paragraph 19, 14
which allegations are therefore denied. 15

16

II. Defendants 17

18

20. Defendants admit the allegations of the first, second,

19

third, fourth, and fifth sentences of Paragraph 20.

20

Defendants deny the allegations of the sixth sentence

21

of Paragraph 20. Defendants admit the allegations of

22

the seventh sentence of Paragraph 20.

23

21. Defendants admit the first sentence of Paragraph 21.

24

Defendants deny the allegations in the second sentence

25

of Paragraph 21. Defendants aver that the Office of

26

Detention and Removal Operations (DRO) is responsible

27

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for promoting public safety and national security by

2

making certain, through the enforcement of U.S.

3

immigration laws, that removable aliens depart the

4

United States in a timely fashion. Defendants further

5

aver that in doing so, DRO makes use of its resources

6

and expertise to transport, facilitate case processing,

7 and remove unauthorized aliens from the United States
8 when they are ordered removed. Defendants deny the
9 allegations in the third sentence of Paragraph 21 to
10 the extent that while ICE-DRO headquarters’ staff
11 conducts annual inspections of Service Processing
12 Centers (SPCs) and Contract Detention Facilities
13
(CDFs), including SDCF, specially-trained field staff 14
conduct the annual inspections of the detention 15
facilities used through an Inter-Governmental Service 16

Agreement (IGSA). Defendants admit the allegations in 17

18

the fourth and fifth sentences of Paragraph 21.

19

22. Defendants admit the allegations in the first sentence

20

of Paragraph 22; however, defendants deny any

21

implication that Mr. Baker may be responsible for the

22

first-line supervision of the ICE staff currently

23

employed at SDCF. Defendants admit the allegations in

24

the second sentence of Paragraph 22 to the extent that

25

Mr. Baker oversees transfers of immigration detainees

26

into and out of SDCF. Defendants deny the remainder of

27

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the allegations in the second sentence of Paragraph 22.

2

Defendants deny the allegations in the third sentence

3

of Paragraph 22. Defendants admit the allegations in

4

the fourth sentence of Paragraph 22.

5

23. Defendants deny the allegation in the first sentence of

6

Paragraph 23 that defendant Anthony Cerone is currently

7 the ICE Officer-in-Charge (OIC) at SDCF; however, when
8 the Complaint was filed, Anthony Cerone was the ICE OIC
9 at SDCF and Assistant Field Office Director of the ICE
10 San Diego Field Office. Defendants deny the
11 allegations in the second sentence of Paragraph 23.
12 Defendants admit the allegations in the third sentence
13
of Paragraph 23 to the extent that the OIC of SDCF -14
though not currently defendant Cerone –- has the 15
authority to transfer detainees to and from SDCF and 16

supervises all ICE employees at SDCF. Defendants deny 17

18

the allegations in the fourth sentence of Paragraph 23.

19

Defendants admit the allegations in the fifth sentence

20

of Paragraph 23 to the extent that the OIC at SDCF --

21

though not currently defendant Cerone –- is responsible

22

for ensuring the facility's compliance with all of

23

ICE's National Detention Standards. Defendants deny

24

the remainder of the allegations in the fifth sentence

25

of Paragraph 23. Defendants admit the allegations in

26

the sixth sentence of Paragraph 23 to the extent that

27

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Mr. Cerone, as the then-OIC at SDCF, supervised a

2

Contracting Officer's Technical Representative

3

("COTR"). However, defendants deny the remainder of

4

the allegations in the sixth sentence of Paragraph 23.

5

Defendants deny the allegations in the seventh, eighth

6

and ninth sentences of Paragraph 23. Defendants admit

7 the allegations in the tenth sentence of Paragraph 23
8 to the extent that the OIC at SDCF (formerly Mr.
9 Cerone), attends weekly meetings with the Public Health
10 Service (PHS), although not for purposes of PHS'
11 oversight. Therefore, defendants deny the remainder of
12 the allegations in the tenth sentence of Paragraph 23.
13
24. Defendants deny the allegations in the first sentence 14
of Paragraph 24 to the extent that Mr. Sampson is no 15
longer the Interim Director of DIHS. Instead, Captain 16

Don Brown in the Interim Director of DIHS. Defendants 17

18

deny the remainder of the allegations in the first

19

sentence of Paragraph 24. Defendants admit the

20

allegations of the second sentence of Paragraph 24 to

21

the extent that the period of time in question is prior

22

to October 1, 2007. Defendants aver that the

23

Interagency Agreement between ICE and HHS expired on

24

October 1, 2007. Defendants admit the allegations in

25

the third sentence of Paragraph 24. Defendants deny

26

the allegations in the fourth sentence of Paragraph 24.

27

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25. Defendants admit the allegations in the first sentence

2

of Paragraph 25. Defendants admit the allegations in

3

the second sentence of Paragraph 25 to the extent that

4

Mr. Shack advises the DIHS Director regarding the

5

technical aspects of the administration and provision

6

of healthcare services to ICE detainees. Defendants

7 deny the remainder of the allegations in the second
8 sentence of Paragraph 25.
9 26. Defendants admit the allegations in the first sentence
10 of Paragraph 26 to the extent that Capt. Jarres is a
11 Commissioned Corps Officer of the USPHS. Defendants
12 deny the remainder of the allegations in the first
13
sentence of Paragraph 26. Defendants deny the 14
allegations in the second sentence of Paragraph 26. 15
Capt Jarres only receives a copy of complaints 16

regarding detainee medical and mental health care that 17

18

are addressed to him at DIHS headquarters in

19

Washington, D.C. from immigration detainees and

20

advocates around the country. Defendants admit the

21

allegations in the third sentence of Paragraph 26, but

22

only to the extent that Capt. Jarres’ supervision is

23

indirect. Defendants admit the allegations in the

24

fourth sentence of Paragraph 26.

25

27. Defendants deny the allegations in the first sentence

26

of Paragraph 27 to the extent that Lt. Walston is

27

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currently not the DIHS Managed Care Coordinator for the

2

Western Region. Instead, Lt. Gia Lawrence is the

3

Interim DIHS Managed Care Coordinator for the Western

4

Region. Defendants admit the second sentence of

5

Paragraph 27 as they pertain to the DIHS Managed Care

6

Coordinator for the Western Region, and not

7 specifically to Lt. Walston herself. Defendants admit
8 the remainder of the allegations of Paragraph 27.
9 28. The allegations in Paragraph 28 are denied to the
10 extent that Cmdr. Gonsalves is no longer the USPHS
11 Health Services Administrator (HSA) at SDCF, effective
12 October 1, 2007. Defendants admit the remainder of
13
second sentence of Paragraph 28. Defendants deny the 14
allegations in the third sentence of Paragraph 28. 15
29. Defendants admit the allegations in the first, second 16

and third sentences of Paragraph 29. Defendants admit 17

18

the allegations in the fourth sentence in Paragraph 29,

19

but deny the implication that Dr. Hui is solely

20

responsible for Treatment Authorization Requests (TARs)

21

from DIHS.

22

30. Defendants admit the allegations in the first sentence

23

of Paragraph 30. Defendants admit the allegations in

24

the second sentence of Paragraph 30, but deny the

25

implication that Mr. Lusche is solely responsible for

26

27

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the activities described in the second sentence of

2

Paragraph 30.

3

31. Admitted.

4

32. Admitted.

5

33. Defendants can neither admit nor deny any allegations

6

as they pertain to the other defendants in this action.

7 34. Defendants can neither admit nor deny any allegations

8 as they pertain to the other defendants in this action.
9 35. This paragraph sets forth a conclusion of law to which
10 no response is required; however, to the extent that a
11 response is deemed required, the allegations of this
12
paragraph are denied. 13
36. This paragraph sets forth a conclusion of law to which 14
no response is required; however, to the extent that a 15

response is deemed required, the allegations of this 16

paragraph are denied. 17

18

37. Defendants can neither admit nor deny any allegations

19

as they pertain to the other defendants in this action.

20

21 LEGAL FRAMEWORK

22

38. This paragraph sets forth conclusions of law to which

23

no response is required; however, to the extent that a

24

response is deemed required, the allegations of this

25

paragraph are denied.

26

27

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39. This paragraph sets forth conclusions of law to which

2

no response is required; however, to the extent that a

3

response is deemed required, the allegations of this

4

paragraph are denied.

5

40. This paragraph sets forth conclusions of law to which

6

no response is required; however, to the extent that a

7 response is deemed required, the allegations of this

8 paragraph are denied.
9 41. This paragraph sets forth a portrayal of plaintiffs’
10 sought-after relief and conclusions of law to which no
11 response is required; however, to the extent that a
12
response is deemed required, the allegations of this 13
paragraph are denied. 14

15 FACTUAL ALLEGATIONS
16

I. The Immigration Detention Health Care System 17

18

42. Admitted.

19

43. Admitted.

20

44. Admitted.

21

45. Denied.

22

46. Defendants deny the allegations in the first sentence

23

of Paragraph 46. Defendants admit the allegations in

24

the second and third sentences of Paragraph 46.

25

Defendants deny the allegations in the fourth sentence

26

of Paragraph 46.

27

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47. Denied.

2

48. Defendants deny the allegations in the first sentence

3

of Paragraph 48. Defendants admit the allegations in

4

the second sentence of Paragraph 48. Defendants deny

5

the allegations in the third sentence of Paragraph 48.

6

7 II. SDCF’s Troubled History in Correctional Health Care
8 49. Admitted.
9 50. Defendants lack sufficient information and knowledge to
10 form a belief as to the truth of the allegations in the
11 Paragraph 50, which allegations are therefore denied.
12 51. Denied.
13
52. Defendants deny the allegations of the first sentence 14
of Paragraph 52. Defendants admit the allegations in 15
the second sentence of Paragraph 52. Defendants deny 16

the allegations in the third sentence of Paragraph 52. 17

18

Defendants admit the allegations in the fourth sentence

19

of Paragraph 52.

20

53. Defendants deny the allegations in the first and second

21

sentences of Paragraph 53. Defendants admit the

22

allegations in the third and fourth sentences of

23

Paragraph 53. Defendants deny the allegations in the

24

fifth sentence of Paragraph 53. Defendants lack

25

sufficient information or knowledge to either admit or

26

deny the remaining allegations in the sixth sentence.

27

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54. Denied.

2

55. Denied.

3

56. Paragraph 56 sets forth plaintiffs' portrayal of the

4

action. No response is needed. Defendants object to

5

the characterizations of defendants' actions and to

6

every legal conclusion set forth by plaintiffs. To the

7 extent that a response is deemed required, defendants
8 deny the allegations in the first sentence of Paragraph
9 56. Defendants admit the allegations in the second
10 sentence of Paragraph 56.
11 57. Denied.
12 58. Admitted.
13
59. Denied. 14
60. Defendants admit the allegations of the first sentence 15
of Paragraph 60. Defendants admit the allegations in 16

the second sentence of Paragraph 60, but note that the 17

18

auditors reviewed a sample size of only 19 detainee

19

files.

20

61. Defendants admit the allegations in the first sentence

21

of Paragraph 61 to the extent that sick call request

22

forms are not maintained in the medical file.

23

Defendants deny the remainder of the allegations in the

24

first sentence of Paragraph 61, and object to the

25

characterization of defendants' actions or policies.

26

Defendants admit the allegations in the second sentence

27

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of Paragraph 61, but note that such information is

2

recorded and stored in another location. Defendants

3

deny the allegations in the third sentence of Paragraph

4

61.

5

62. Defendants admit the allegations in the first sentence

6

of Paragraph 62 to the extent that detainees are not

7 provided with a copy of the sick call request itself;
8 however, defendants note that this procedure does not
9 mean that they never receive any form of response from
10 medical providers related to their sick call
11 request(s). Defendants deny the remainder of the
12 allegations in the first sentence of Paragraph 62.
13
Defendants deny the allegations in the second sentence 14
of Paragraph 62. 15
63. As Mr. Abdelwahab is not an ICE detainee at SDCF, 16

defendants lack sufficient information and knowledge to 17

18

form a belief as to the truth of the allegations in

19

Paragraph 63, which allegations are therefore denied.

20

64. Defendants lack sufficient information and knowledge to

21

form a belief as to the truth of the allegations in the

22

first and second sentences of Paragraph 64, which

23

allegations are therefore denied.

24

65. Defendants lack sufficient information and knowledge to

25

form a belief as to the truth of the allegations in

26

Paragraph 65, which allegations are therefore denied.

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66. Defendants deny the allegations in the first sentence

2

of Paragraph 66. Defendants admit the allegations in

3

the second sentence of Paragraph 66. Defendants lack

4

sufficient information and knowledge to form a belief

5

as to the truth of the allegations in the third and

6

fourth sentences of Paragraph 66, which allegations are

7 therefore denied. Defendants deny the remainder of the
8 allegations in Paragraph 66.
9 67. Defendants admit the allegations in the first sentence
10 of Paragraph 67 to the extent that plaintiff Tinoco has
11 been diagnosed with diabetes, hypertension and
12 hypercholesterolemia. Defendants lack sufficient
13
information and knowledge to form a belief as to the 14
truth of the allegations in the second sentence of 15
Paragraph 67, which allegations are therefore denied. 16

Defendants admit the allegations in the third sentence 17

18

of Paragraph 67. Defendants lack sufficient

19

information and knowledge to form a belief as to the

20

truth of the allegations in the fourth sentence of

21

Paragraph 67, which allegations are therefore denied.

22

Defendants admit the allegations in the fifth sentence

23

of Paragraph 67. Defendants lack sufficient

24

information and knowledge to form a belief as to the

25

truth of the allegations in the sixth sentence of

26

Paragraph 67, which allegations are therefore denied.

27

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1

Defendants admit the allegations in the seventh

2

sentence of Paragraph 67. Defendants lack sufficient

3

information and knowledge to form a belief as to the

4

truth of the allegations in the eighth and ninth

5

sentences of Paragraph 67, which allegations are

6

therefore denied.

7 68. Defendants deny the allegations in the first sentence
8 of Paragraph 68. Defendants lack sufficient
9 information and knowledge to form a belief as to the
10 truth of the remainder of the allegations in Paragraph
11 68, which allegations are therefore denied.
12 69. Defendants deny the allegations in the first sentence
13
of Paragraph 69. As Mr. Abdelwahab is not an ICE 14
detainee at SDCF, defendants lack sufficient 15
information and knowledge to form a belief as to the 16

truth of the remainder of the allegations in Paragraph 17

18

69, which allegations are therefore denied.

19

70. Defendants lack sufficient information and knowledge to

20

form a belief as to the truth of the allegations in the

21

first and second sentences of Paragraph 70, which

22

allegations are therefore denied. Defendants admit the

23

allegations in the third sentence of Paragraph 70 to

24

the extent that Mr. Owino was examined and confirmed to

25

have asthma in June 2006. Defendants deny the

26

remainder of the allegations in the third sentence of

27

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Paragraph 70. Defendants lack sufficient information

2

and knowledge to form a belief as to the truth of the

3

allegations in the fourth, fifth and sixth sentences of

4

Paragraph 70, which allegations are therefore denied.

5

Defendants deny the allegations in the seventh sentence

6

of Paragraph 70.

7 71. Defendants admit the allegations in the first sentence
8 of Paragraph 71. Defendants lack sufficient
9 information and knowledge to form a belief as to the
10 truth of the remainder of the allegations in Paragraph
11 71, which allegations are therefore denied.
12 72. Defendants admit the allegations in the first sentence
13
of Paragraph 72 to the extent that plaintiff Woods has 14
been diagnosed with a seizure disorder that causes her 15
body to shake and jerk. Defendants deny the 16

allegations in the second sentence of Paragraph 72. 17

18

Defendants admit the allegations in the third sentence

19

of Paragraph 72. Defendants lack sufficient

20

information and knowledge to form a belief as to the

21

truth of the allegations in the fourth and fifth

22

sentences in Paragraph 72, which allegations are

23

therefore denied. Defendants admit the allegations of

24

the sixth sentence of Paragraph 72 to the extent that

25

Ms. Woods has complained about a seizure disorder and

26

requested Klonopin. Defendants deny the remainder of

27

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the allegations in the sixth sentence of Paragraph 72.

2

Defendants lack sufficient information and knowledge to

3

form a belief as to the truth of the allegations in the

4

seventh sentence of Paragraph 72, which allegations are

5

therefore denied.

6

73. As Mr. Wong is not an ICE detainee at SDCF, defendants

7 lack sufficient information and knowledge to form a
8 belief as to the truth of the allegations in Paragraph
9 73, which allegations are therefore denied.
10 74. As Mr. Banderas is not an ICE detainee at SDCF,
11 defendants lack sufficient information and knowledge to
12 form a belief as to the truth of the allegations in
13
Paragraph 74, which allegations are therefore denied. 14
75. Defendants lack sufficient information and knowledge to 15
form a belief as to the truth of the allegations in the 16

first sentence of Paragraph 75, as SDCF is not a 17

18

detention facility intended, as prisons are, for the

19

correction of its detainees' behavior. Thus, these

20

allegations are therefore denied. Defendants deny the

21

allegations in the second sentence of Paragraph 75.

22

Defendants admit the allegations in the third sentence

23

of Paragraph 75 to the extent that plaintiff Toro has

24

been diagnosed with hypertension for which he has been

25

prescribed atenolol. Defendants deny the remainder of

26

the allegations in the third sentence of Paragraph 75.

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Defendants deny the allegations in the fourth sentence

2

of Paragraph 75. Defendants lack sufficient

3

information and knowledge to form a belief as to the

4

truth of the allegations in the fifth, sixth and

5

seventh sentences of Paragraph 75, which allegations

6

are therefore denied.

7 76. Defendants admit that allegations in the first sentence
8 of Paragraph 76. Defendants lack sufficient
9 information and knowledge to form a belief as to the
10 truth of the allegations in the second sentence of
11 Paragraph 76, which allegations are therefore denied.
12 Defendants deny the allegations in the third sentence
13
of Paragraph 76. Defendants lack sufficient 14
information and knowledge to form a belief as to the 15
truth of the allegations in the fourth, fifth and sixth 16

sentences of Paragraph 76, which allegations are 17

18

therefore denied.

19

77. As Mr. Arias-Forero is not an ICE detainee at SDCF,

20

defendants lack sufficient information and knowledge to

21

form a belief as to the truth of the allegations in

22

Paragraph 77, which allegations are therefore denied.

23

78. Denied. Defendants also object to the characterization

24

of defendants' action and to every legal conclusion set

25

forth by plaintiffs.

26

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79. Defendants admit the allegations in the first sentence

2

of Paragraph 79. Defendants deny the allegations in

3

the second sentence of Paragraph 79 to the extent that

4

Lt. Walston is currently not the DIHS Managed Care

5

Coordinator for the Western Region. Instead, Lt. Gia

6

Lawrence is the Interim DIHS Managed Care Coordinator

7 for the Western Region. Defendants admit the remainder
8 of the allegations in the second sentence of Paragraph
9 79 as they pertain to the DIHS Managed Care Coordinator
10 for the Western Region, and not specifically to Lt.
11 Walston herself. Defendants deny the allegations in
12 the third and fourth sentences of Paragraph 79.
13
80. As Mr. Arias-Forero is not an ICE detainee at SDCF, 14
defendants lack sufficient information and knowledge to 15
form a belief as to the truth of the allegations in 16

Paragraph 80, which allegations are therefore denied. 17

18

81. As Mr. Arias-Forero is not an ICE detainee at SDCF,

19

defendants lack sufficient information and knowledge to

20

form a belief as to the truth of the allegations in

21

Paragraph 81, which allegations are therefore denied.

22

82. As Mr. Arias-Forero is not an ICE detainee at SDCF,

23

defendants lack sufficient information and knowledge to

24

form a belief as to the truth of the allegations in

25

Paragraph 82, which allegations are therefore denied.

26

27

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83. As Mr. Arias-Forero is not an ICE detainee at SDCF,

2

defendants lack sufficient information and knowledge to

3

form a belief as to the truth of the allegations in

4

Paragraph 83, which allegations are therefore denied.

5

84. As Mr. Wong is not an ICE detainee at SDCF, defendants

6

lack sufficient information and knowledge to form a

7 belief as to the truth of the allegations in Paragraph
8 84, which allegations are therefore denied.
9 85. Defendants admit the allegations in the first sentence
10 of Paragraph 85 to the extent that Ms. Woods has been
11 diagnosed with neurofibromatosis. Defendants lack
12 sufficient information and knowledge to form a belief
13
as to the truth of the remainder of the allegations in 14
the first sentence of Paragraph 85, which allegations 15
are therefore denied. Defendants admit the allegations 16

in the second sentence of Paragraph 85 to the extent 17

18

that prior to entering SDCF in July 2006, Ms. Woods was

19

being treated for her neurofibromatosis at the UCSD

20

Neurology Clinic. Defendants lack sufficient

21

information and knowledge to form a belief as to the

22

truth of the remainder of the allegations in the second

23

sentence of Paragraph 85. Defendants lack sufficient

24

information and knowledge to form a belief as to the

25

truth of the allegations in the third and fourth

26

sentences of Paragraph 85. Defendants admit the

27

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1

allegations in the fifth sentence of Paragraph 85 to

2

the extent that Ms. Woods has complained about pain in

3

her finger. Defendants deny the remainder of the

4

allegations in the fifth sentence of Paragraph 85.

5

Defendants lack sufficient information and knowledge to

6

form a belief as to the truth of the allegations in the

7 sixth sentence of Paragraph 85, which allegations are
8 therefore denied. Defendants deny the allegations of
9 the seventh sentence of Paragraph 85.
10 86. Defendants admit the allegations of the first sentence
11 of Paragraph 86 to the extent that Mr. Tinoco has been
12 diagnosed with having hemorrhoids and reports having
13
pain when sitting down. Defendants deny the remainder 14
of the allegations in the first sentence of Paragraph 15
86. Defendants lack sufficient information and 16

knowledge to form a belief as to the truth of the 17

18

allegations in the second and third sentences of

19

Paragraph 86, which allegations are therefore denied.

20

Defendants admit the allegations in the fourth sentence

21

of Paragraph 86 to the extent that Mr. Tinoco requested

22

surgery to remove his hemorrhoids. Defendants deny the

23

remainder of the allegations in the fourth sentence of

24

Paragraph 86.

25

87. Defendants admit the allegations of the first sentence

26

of Paragraph 87 to the extent that Mr. Fomai has had a

27

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1

rash since February 2007. Defendants deny the

2

allegations of the first sentence of Paragraph 87 that

3

the rash is "painful," as the rash is not painful and

4

is much improved and nearly resolved. Defendants admit

5

the allegations in the second sentence of Paragraph 87.

6

Defendants deny the allegations in the third sentence

7 of Paragraph 87. Defendants lack sufficient
8 information and knowledge to form a belief as to the
9 truth of the allegations in the fourth sentence of
10 Paragraph 87, which allegations are therefore denied.
11 88. Defendants admit the allegations in the first and
12 second sentences of Paragraph 88. Defendants deny the
13
allegations in the third sentence of Paragraph 88. 14
89. As Mr. Casteneda is not an ICE detainee at SDCF, 15
defendants lack sufficient information and knowledge to 16

form a belief as to the truth of the remainder of the 17

18

allegations in Paragraph 89, which allegations are

19

therefore denied.

20

90. Defendants admit the first sentence of Paragraph 90 to

21

the extent that Mr. Fomai has gender identity disorder.

22

Defendants lack sufficient information and knowledge to

23

form a belief as to the truth of the remainder of the

24

allegations in the first sentence of Paragraph 90,

25

which allegations are therefore denied. Defendants

26

admit the allegations in the second sentence of

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Paragraph 90 to the extent that Mr. Fomai was taking

2

Premarin. Defendants deny the remainder of the

3

allegations in the second sentence of Paragraph 90.

4

Defendants lack sufficient information and knowledge to

5

form a belief as to the truth of the allegations in the

6

third sentence of Paragraph 90, which allegations are

7 therefore denied. Defendants admit the allegations in
8 the fourth sentence of Paragraph 90 to the extent that
9 Mr. Fomai was denied hormone therapy by medical staff,
10 including defendant Hui, pursuant to DIHS policy.
11 Defendants lack sufficient information and knowledge to
12 form a belief as to the truth of the remainder of the
13
allegations in the fourth sentence of Paragraph 90, 14
which allegations are therefore denied. Defendants 15
lack sufficient information and knowledge to form a 16

belief as to the truth of the allegations in the fifth, 17

18

sixth and seventh sentences of Paragraph 90, which

19

allegations are therefore denied. Defendants admit the

20

allegations in the eighth sentence of Paragraph 90 to

21

the extent that Mr. Fomai's medical records confirm a

22

history of depression and suicide attempts. Defendants

23

lack sufficient information and knowledge to form a

24

belief as to the truth of the remainder of the

25

allegations in the eighth sentence of Paragraph 90,

26

which allegations are therefore denied. Defendants lack

27

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sufficient information and knowledge to form a belief

2

as to the truth of the allegations in the ninth and

3

tenth sentences of Paragraph 90, which allegations are

4

therefore denied.

5

91. Plaintiff Carcamo was removed from the U.S. and

6

returned to Belize on July 6, 2007. As a result, he

7 has since been dismissed from this action. For this
8 reason, no response is needed; however, to the extent
9 that a response is deemed required, the allegations of
10 Paragraph 91 are denied.
11 92. Plaintiff Carcamo was removed from the U.S. and
12 returned to Belize on July 6, 2007. As a result, he
13
has since been dismissed from this action. For this 14
reason, no response is needed; however, to the extent 15
that a response is deemed required, the allegations of 16

Paragraph 92 are denied. 17

18

93. Plaintiff Carcamo was removed from the U.S. and

19

returned to Belize on July 6, 2007. As a result, he

20

has since been dismissed from this action. For this

21

reason, no response is needed; however, to the extent

22

that a response is deemed required, the allegations of

23

Paragraph 93 are denied.

24

94. Plaintiff Carcamo was removed from the U.S. and

25

returned to Belize on July 6, 2007. As a result, he

26

has since been dismissed from this action. For this

27

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1

reason, no response is needed; however, to the extent

2

that a response is deemed required, the allegations of

3

Paragraph 94 are denied.

4

95. Plaintiff Monteagudo-Guerrero was released from ICE

5

custody on June 22, 2007 on her own recognizance and

6

was granted voluntary departure. As a result, she has

7 since been dismissed from this action. For this
8 reason, no response is needed; however, to the extent
9 that a response is deemed required, the allegations of
10 Paragraph 95 are denied.
11 96. Defendants deny the allegations in the first sentence
12 of Paragraph 96. Defendants lack sufficient
13
information and knowledge to form a belief as to the 14
truth of the allegations in the second, third and 15
fourth sentences of Paragraph 96, which allegations are 16

therefore denied. Defendants admit the allegations in 17

18

the fifth sentence of Paragraph 96 to the extent that

19

Ms. Vanegas requested and received ibuprofen.

20

Defendants deny the remainder of the allegations in the

21

fifth sentence of Paragraph 96, and note that Ms.

22

Vanegas only asked for ibuprofen during her visit with

23

the doctor. Defendants lack sufficient information and

24

knowledge to form a belief as to the truth of the

25

allegations in the sixth sentence of Paragraph 96,

26

which allegations are therefore denied.

27

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97. Denied.

2

98. Defendants lack sufficient information and knowledge to

3

form a belief as to the truth of the remainder of the

4

allegations in Paragraph 98, which allegations are

5

therefore denied.

6

99. Defendants lack sufficient information and knowledge to

7 form a belief as to the truth of the allegations in the
8 first, second and third sentences of Paragraph 99,
9 which allegations are therefore denied. Defendants
10 admit the allegations in the fourth sentence of
11 Paragraph 99 to the extent that Mr. Aguilar-Turcios saw
12 Dr. Jedry in mid-May 2006. Defendants lack sufficient
13
information and knowledge to form a belief as to the 14
truth of the remainder of the allegations in the fourth 15
sentence of Paragraph 99, which allegations are 16

therefore denied. Defendants deny the allegations in 17

18

the fifth and sixth sentences of Paragraph 99.

19

Defendants admit the allegations in the seventh

20

sentence of Paragraph 99. Defendants lack sufficient

21

information and knowledge to form a belief as to the

22

truth of the allegations in the eighth sentence of

23

Paragraph 99, which allegations are therefore denied.

24

100. Defendants deny the allegations in the first sentence

25

of Paragraph 100. Defendants admit the allegations in

26

the second sentence of Paragraph 100. Defendants admit

27

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the allegations in the third sentence of Paragraph 100

2

to the extent that Dr. Jedry prescribed a one-week

3

course of amoxicillin. Defendants lack sufficient

4

information and knowledge to form a belief as to the

5

truth of the remainder of the allegations in the third

6

sentence of Paragraph 100, which allegations are

7 therefore denied. Defendants lack sufficient
8 information and knowledge to form a belief as to the
9 truth of the allegations in the fourth and fifth
10 sentences of Paragraph 100, which allegations are
11 therefore denied. Defendants admit the allegations in
12 the sixth and seventh sentences of Paragraph 100.
13
Defendants admit the allegations in the eighth sentence 14
of Paragraph 100 to the extent that a nurse said that 15
she would refer Mr. Ngugi to a dentist. Defendants 16

lack sufficient information and knowledge to form a 17

18

belief as to the truth of the remainder of the

19

allegations in the eighth sentence of Paragraph 100,

20

which allegations are therefore denied. Defendants

21

lack sufficient information and knowledge to form a

22

belief as to the truth of the allegations in the ninth

23

and tenth sentences of Paragraph 100, which allegations

24

are therefore denied.

25

101. Defendants lack sufficient information and knowledge to

26

form a belief as to the truth of the allegations in the

27

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first and second sentences of Paragraph 101, which

2

allegations are therefore denied. Defendants deny the

3

allegations in the third sentence of Paragraph 101, and

4

aver that Ngugi refused to go to his dental appointment

5

on December 19, 2006. Defendants lack sufficient

6

information and knowledge to form a belief as to the

7 truth of the allegations in the fourth sentence of
8 Paragraph 101, which allegations are therefore denied.
9 Defendants admit the allegations in the fifth sentence
10 of Paragraph 101 to the extent that Mr. Ngugi met with
11 Dr. Jedry on January 17, 2007. Defendants lack
12 sufficient information and knowledge to form a belief
13
as to the truth of the remainder of the allegations in 14
the fifth sentence of Paragraph 101, which allegations 15
are therefore denied. Defendants admit the allegations 16

in the sixth sentence of Paragraph 101 to the extent 17

18

that Dr. Jedry prescribed Mr. Ngugi a ten-day course of

19

amoxicillin and ibuprofen. Defendants lack sufficient

20

information and knowledge to form a belief as to the

21

truth of the remainder of the allegations in the sixth

22

sentence of Paragraph 101, which allegations are

23

therefore denied. Defendants admit the allegations in

24

the seventh sentence of Paragraph 101, and aver that

25

Mr. Ngugi did not request or complain about any dental

26

pain or dental needs. Defendants lack sufficient

27

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information and knowledge to form a belief as to the

2

truth of the allegations in the eighth, ninth and tenth

3

sentences of Paragraph 101, which allegations are

4

therefore denied.

5

102. Defendants lack sufficient information and knowledge to

6

form a belief as to the truth of the allegations in

7 Paragraph 102, which allegations are therefore denied.
8 Defendants aver that on March 2, 2007, during a dental
9 sick call, plaintiff Owino requested a cleaning and was
10 informed that he is eligible but that oral surgeries
11 take priority.
12 103. Defendants deny the allegations in the first sentence
13
of Paragraph 103. As Mr. Abdelwahab is not an ICE 14
detainee at SDCF, defendants lack sufficient 15
information and knowledge to form a belief as to the 16

truth of the remainder of the allegations in Paragraph 17

18

103, which allegations are therefore denied.

19

104. Plaintiff Monteagudo-Guerrero was released from ICE

20

custody on June 22, 2007 on her own recognizance and

21

was granted voluntary departure. As a result, she has

22

since been dismissed from this action. For this

23

reason, no response is needed; however, to the extent

24

that a response is deemed required, the allegations of

25

Paragraph 104 are denied.

26

27

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105. As Mr. Ledda is not an ICE detainee at SDCF, defendants

2

lack sufficient information and knowledge to form a

3

belief as to the truth of the remainder of the

4

allegations in Paragraph 105, which allegations are

5

therefore denied.

6 C. Mental Health Care

7 106. Defendants deny the allegations in the first sentence
8 of Paragraph 106, and object to plaintiffs'
9 characterization of SDCF as a correctional facility.
10 Rather, SDCF is a detention facility that is used to
11
detainee illegal aliens eligible for removal from the 12
United States, until such time as their removal can be 13

effectuated. Unlike with correctional institutions, 14

detention at SDCF is not designed for the purpose of 15

16

punishing its inhabitants and defendants object to any

17

characterization, either inadvertent or blatant, that

18

attempts to classify its detainees as being treated

19

like prisoners. Defendants also deny the allegations

20

in the second and third sentences of Paragraph 106.

21

107. Defendants deny the allegations in the first sentence

22

of Paragraph 107. Defendants lack sufficient

23

information and knowledge to form a belief as to the

24

truth of the remainder of the allegations in Paragraph

25

107, which allegations are therefore denied.

26

27

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108. Defendants admit the allegations in the first sentence

2

of Paragraph 108 to the extent that detainees with

3

mental illnesses, for the most part, are not housed in

4

the general population. However, defendants aver that

5

detainees with less severe, treatable forms of mental

6

illness, e.g. mild depression, may be housed in the

7 general population. Defendants deny the remainder of
8 the allegations in the first sentence of Paragraph 108.
9 Defendants admit the allegations in the second and
10 third sentences of Paragraph 108. Defendants deny the
11 allegations in the fourth and fifth sentences of
12 Paragraph 108. Defendants admit the allegations in the
13
sixth and seventh sentences of Paragraph 108, to the 14
extent that SDCF does contain two isolation rooms that 15
provide padded walls to those detainees who may 16

otherwise injure themselves or others if housed in 17

18

another environment.

19

109. Defendants deny the allegations in the first and second

20

sentences of Paragraph 109. Defendants lack sufficient

21

information and knowledge to form a belief as to the

22

truth of the remainder of the allegations in Paragraph

23

109, which allegations are therefore denied.

24

110. Defendants deny the allegations in the first, second

25

and third sentence of Paragraph 110. Defendants admit

26

the allegations in the fourth sentence of Paragraph

27

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110. Defendants lack sufficient information and

2

knowledge to form a belief as to the truth of the

3

remainder of the allegations in Paragraph 110, which

4

allegations are therefore denied.

5

111. Defendants admit the allegations in the first sentence

6

of Paragraph 111 to the extent that Mr. Ngugi was

7 diagnosed with bipolar disorder, that Mr. Ngugi has
8 taken medications for this condition in the past, and
9 that Mr. Ngugi currently is not prescribed any
10 medications for this condition. Defendants deny the
11 remainder of the allegations in the first sentence of
12 Paragraph 111 and object to the characterization of
13
defendants' actions and to every legal conclusion set 14
forth by plaintiffs. Defendants admit the allegations 15
in the second sentence of Paragraph 111. Defendants 16

lack sufficient information and knowledge to form a 17

18

belief as to the truth of the allegations in the third

19

sentence of Paragraph 111, which allegations are

20

therefore denied. Defendants admit the allegations in

21

the fourth, fifth and sixth sentences of Paragraph 111.

22

Defendants lack sufficient information and knowledge to

23

form a belief as to the truth of the allegations in the

24

seventh and eighth sentences of Paragraph 111, which

25

allegations are therefore denied. Defendants admit the

26

allegations in the ninth sentence of Paragraph 111 to

27

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the extent that in June 2006 Ngugi refused medication

2

for his bipolar disorder, but deny that this refusal

3

had any relationship to the nature of the allegedly

4

inadequate psychiatric treatment he was receiving at

5

SDCF. Thus, defendants deny the remainder of the

6

allegations in the ninth sentence of Paragraph 111.

7 Defendants lack sufficient information and knowledge to
8 form a belief as to the truth of the allegations in the
9 tenth sentence of Paragraph 111, which allegations are
10 therefore denied.
11 112. Defendants admit the allegations in the first sentence
12 of Paragraph 112 to the extent that plaintiff Woods has
13
been diagnosed with depression and bipolar disorder. 14
Defendants admit the allegations in the second sentence 15
of Paragraph 112 to the extent that Ms. Woods has seen 16

mental health professionals. Defendants deny the 17

18

remainder of the allegations in the second sentence of

19

Paragraph 112. Defendants lack sufficient information

20

and knowledge to form a belief as to the truth of the

21

allegations in the third and fourth sentences of

22

Paragraph 112, which allegations are therefore denied.

23

113. Defendants lack sufficient information and knowledge to

24

form a belief as to the truth of the allegations in the

25

first sentence of Paragraph 113, which allegations are

26

therefore denied. Defendants admit the allegations in

27

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1

the second sentence of Paragraph 113 to the extent that

2

Mr. Fomai has a history of suicidal thoughts.

3

Defendants lack sufficient information and knowledge to

4

form a belief as to the truth of the remainder of the

5

allegations in the second sentence of Paragraph 113,

6

which allegations are therefore denied. Defendants

7 lack sufficient information and knowledge to form a
8 belief as to the truth of the allegations in the third
9 and fourth sentences of Paragraph 113, which
10 allegations are therefore denied.
11 114. Denied.
12 115. Defendants admit the allegations in the first sentence
13
of Paragraph 115. In fact, this event pre-dates DIHS' 14
provision of medical care to the ICE detainees being 15
housed at SDCF. Therefore, defendants lack sufficient 16

information and knowledge to form a belief as to the 17

18

truth of the remainder of the allegations in Paragraph

19

115, which allegations are therefore denied.

20

116. Defendants lack sufficient information and knowledge to

21

form a belief as to the truth of the allegations in

22

Paragraph 116, which allegations are therefore denied.

23

Defendants also object to the characterization of

24

defendants' actions and to every legal conclusion set

25

forth by plaintiffs in this paragraph.

26

27

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1

117. Mr. Ali Nesa was removed from the United States and

2

returned to Belize on October 4, 2007. Defendants lack

3

sufficient information and knowledge to form a belief

4

as to the truth of the allegations in the second

5

sentence of Paragraph 117, which allegations are

6

therefore denied.

7 118. Defendants deny the allegations in the first and second
8 sentences of Paragraph 118. Defendants admit the
9 allegations in the third sentence of Paragraph 118.
10 Defendants deny the allegations in the fourth sentence
11 of Paragraph 118. Defendants admit the allegations in
12 the fifth sentence of Paragraph 118, but note that
13
detainees are permitted to have their families bring or 14
send them glasses as medically required. 15
119. Defendants admit the allegations in the first sentence 16

of Paragraph 119 to the extent that Mr. Aguilar-Turcios 17

18

entered ICE custody in November 2005. Defendants lack

19

sufficient information and knowledge to form a belief

20

as to the truth of the remainder of the allegations in

21

the first sentence of Paragraph 119, which allegations

22

are therefore denied. Defendants admit the allegations

23

in the second sentence of Paragraph 119 to the extent

24

that Mr. Aguilar-Turcios has been diagnosed as having

25

migraine headaches. Defendants lack sufficient

26

information and knowledge to form a belief as to the

27

28 Defendants’ Answer to Plaintiffs' Complaint for Injunctive and Declaratory Relief

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1

truth of the remainder of the allegations in the second

2

sentence of Paragraph 119, which allegations are

3

therefore denied. Defendants admit the allegations in

4

the third sentence of Paragraph 119.

5

120. Defendants lack sufficient information and knowledge to

6

form a belief as to the truth of the allegations in the

7 first sentence of Paragraph 120, which allegations are
8 therefore denied. Defendants aver that plaintiff Owino
9 has complained of difficulty reading legal forms and
10 papers. Defendants admit the allegations in the second
11 sentence of Paragraph 120 to the extent that plaintiff
12 Owino has been diagnosed with recurring headaches.
13
Defendants lack sufficient information and knowledge to 14
form a belief as to the truth of the remainder of the 15
allegations in the second sentence of Paragraph 120, 16

which allegations are therefore denied. Defendants 17

18

lack sufficient information and knowledge to form a

19

belief as to the truth of the allegations in the third,

20

fourth and fifth sentences of Paragraph 120, which

21

allegations are therefore denied. However, defendants

22

aver that on July 20, 2007, during a sick call,

23

physician assistant Lusche informed plaintiff Owino

24

that eyeglasses are not a provided benefit.

25

121. As Mr. Arias-Forero is not an ICE detainee at SDCF,

26

defendants lack sufficient information and knowledge to

27

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1

form a belief as to the truth of the allegations in

2

Paragraph 121, which allegations are therefore denied.

3

122. Defendants deny the allegations in the first sentence

4

of Paragraph 122. Defendants admit the allegations in

5

the second and third sentences of Paragraph 122.

6

Defendants admit the allegations in the fourth sentence

7 of Paragraph 122 to the extent that Tinoco has been
8 diagnosed with diabetes and hypertension. Defendants
9 lack sufficient information and knowledge to form a
10 belief as to the truth of the remainder of the
11 allegations in the fourth sentence of Paragraph 122,
12 which allegations are therefore denied. Defendants
13
lack sufficient information and knowledge to form a 14
belief as to the truth of the allegations in the fifth 15
and sixth sentences of Paragraph 122, which allegations 16

are therefore denied. Defendants admit the allegations 17

18

in the seventh sentence of Paragraph 122 to the extent

19

that Mr. Tinoco had an eye examination on March 22,

20

2007. Defendants lack sufficient information and

21

knowledge to form a belief as to the truth of the

22

remainder of the allegations in the seventh sentence of

23

Paragraph 122, which allegations are therefore denied.

24

Defendants admit the allegations in the eighth sentence

25

of Paragraph 122 to the extent that Mr. Tinoco had two

26

eye examinations by Mr. Lusche. Defendants deny the

27

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1

remainder of the allegations in the eighth sentence of

2

Paragraph 122. Defendants admit the allegations in the

3

ninth sentence of Paragraph 122. Defendants admit the

4

allegations in the tenth sentence of Paragraph 122 to

5

the extent that Mr. Tinoco was found to have

6

papilledema on July 14, 2006. Defendants deny the

7 remainder of the allegations in the tenth sentence of
8 Paragraph 122. Defendants deny the allegations in the
9 eleventh sentence of Paragraph 122. Defendants admit
10 the allegations in the twelfth sentence of Paragraph
11 122. Defendants lack sufficient information and
12 knowledge to form a belief as to the truth of the
13
allegations in the thirteenth sentence of Paragraph 14
122, which allegations are therefore denied. 15
123. Defendants deny the allegations in the first sentence 16

of Paragraph 123. Defendants admit the allegations in 17

18

the second sentence of Paragraph 123 to the extent that

19

Bill Roy Kurt Marion committed suicide at SDCF in July

20

2003. Defendants lack sufficient information and

21

knowledge to form a belief as to the truth of the

22

remainder of the allegations in the second sentence of

23

Paragraph 123, which allegations are therefore denied.

24

124. Defendants admit the allegations in the first sentence

25

of Paragraph 124 to the extent that on January 4, 2005,

26

detainee Sarabia died of a heart attack while in the

27

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1

shower at SDCF. Defendants lack sufficient information

2

and knowledge to form a belief as to the truth of the

3

allegations in the second and third sentences of

4

Paragraph 124, which allegations are therefore denied.

5

Defendants deny the remainder of the allegations of

6

Paragraph 124.

7 125. Defendants lack sufficient information and knowledge to

8 form a belief as to the truth of the allegations in
9 Paragraph 125, which paragraph sets forth plaintiffs'
10 portrayal of the action, including legal conclusions.
11 Thus, defendants object to the characterizations of
12
defendants' actions and to every legal conclusion set 13
forth by plaintiffs. To the extent that a response is 14
deemed required, the allegations in Paragraph 125 are 15

therefore denied. 16

17 18 III. Class Action Allegations

19

126. Mr. Carcamo and Ms. Monteagudo-Guerrero have been

20

dismissed from this action. For this reason, no

21

response as to these individuals is needed; however, to

22

the extent that a response is deemed required, the

23

allegations of Paragraph 126 are denied as to these

24

individuals. Also, this paragraph sets forth

25

plaintiffs’ portrayal of the action, including legal

26

conclusions. No response is needed. Defendants object

27

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1

to the characterizations of defendants' actions and to

2

every legal conclusion set forth by plaintiffs. To the

3

extent that a response is deemed required, the

4

allegations in Paragraph 126 are denied.

5

127. This paragraph sets forth plaintiffs’ portrayal of the

6

action, including legal conclusions. No response is

7 needed. Defendants object to the characterizations of
8 defendants' actions and to every legal conclusion set
9 forth by plaintiffs. To the extent that a response is
10 deemed required, the allegations in Paragraph 127 are
11 denied.
12 128. Defendants admit the first sentence of Paragraph 128.
13
The remainder of this paragraph sets forth plaintiffs’ 14
portrayal of the action, including legal conclusions. 15
No response is needed. Defendants object to the 16

characterizations of defendants' actions and to every 17

18

legal conclusion set forth by plaintiffs. To the

19

extent that a response is deemed required, the

20

remainder of the allegations in Paragraph 128 are

21

denied.

22

129. This paragraph sets forth plaintiffs’ portrayal of the

23

action, including legal conclusions. No response is

24

needed. Defendants object to the characterizations of

25

defendants' actions and to every legal conclusion set

26

forth by plaintiffs. To the extent that a response is

27

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1

deemed required, the allegations in Paragraph 129 are

2

denied.

3

130. This paragraph sets forth plaintiffs’ portrayal of the

4

action, including legal conclusions. No response is

5

needed. Defendants object to the characterizations of

6

defendants' actions and to every legal conclusion set

7 forth by plaintiffs. To the extent that a response is
8 deemed required, the allegations in Paragraph 130 are
9 denied.
10 131. This paragraph sets forth plaintiffs’ portrayal of the
11 action, including legal conclusions. No response is
12 needed. Defendants object to the characterizations of
13
defendants' actions and to every legal conclusion set 14
forth by plaintiffs. To the extent that a response is 15
deemed required, the allegations in Paragraph 131 are 16

denied. 17

18

132. This paragraph sets forth plaintiffs’ portrayal of the

19

action, including legal conclusions. No response is

20

needed. Defendants object to the characterizations of

21

defendants' actions and to every legal conclusion set

22

forth by plaintiffs. To the extent that a response is

23

deemed required, the allegations in Paragraph 132 are

24

denied.

25

133. This paragraph sets forth plaintiffs’ portrayal of the

26

action, including legal conclusions. No response is

27

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1

needed. Defendants object to the characterizations of

2

defendants' actions and to every legal conclusion set

3

forth by plaintiffs. To the extent that a response is

4

deemed required, the allegations in Paragraph 133 are

5

denied.

6 CLAIM FOR RELIEF
7 134. This paragraph sets forth plaintiffs’ portrayal of the
8 action, including legal conclusions. No response is
9 needed. Defendants object to the characterizations of
10 defendants' actions and to every legal conclusion set
11 forth by plaintiffs. To the extent that a response is
12
deemed required, the allegations in Paragraph 134 are 13
denied. 14
135. This paragraph sets forth plaintiffs’ portrayal of the 15

16

action, including legal conclusions. No response is

17

needed. Defendants object to the characterizations of

18

defendants' actions and to every legal conclusion set

19

forth by plaintiffs. To the extent that a response is

20

deemed required, the allegations in Paragraph 135 are

21

denied.

22

136. This paragraph sets forth plaintiffs’ portrayal of the

23

action, including legal conclusions. No response is

24

needed. Defendants object to the characterizations of

25

defendants' actions and to every legal conclusion set

26 forth by plaintiffs. To the extent that a response is
27

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1

deemed required, the allegations in Paragraph 136 are

2

denied.

3

137. This paragraph sets forth plaintiffs’ portrayal of the

4

action, including legal conclusions. No response is

5

needed. Defendants object to the characterizations of

6

defendants' actions and to every legal conclusion set

7 forth by plaintiffs. To the extent that a response is
8 deemed required, the allegations in Paragraph 137 are
9 denied.
10 138. This paragraph sets forth plaintiffs’ portrayal of the
11 action, including legal conclusions. No response is
12 needed. Defendants object to the characterizations of
13
defendants' actions and to every legal conclusion set 14
forth by plaintiffs. To the extent that a response is 15
deemed required, the allegations in Paragraph 138 are 16

denied. 17

18

139. This paragraph sets forth plaintiffs’ portrayal of the

19

action, including legal conclusions. No response is

20

needed. Defendants object to the characterizations of

21

defendants' actions and to every legal conclusion set

22

forth by plaintiffs. To the extent that a response is

23

deemed required, the allegations in Paragraph 139 are

24

denied.

25

*

*

*

*

*

26

27

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1

Any allegation of the complaint not heretofore expressly

2 admitted or otherwise plead to is hereby denied.

3

*

*

*

*

*

4

PRAYER FOR RELIEF

5 The remainder of the complaint constitutes Plaintiffs'

6 request for relief to which no responsive pleading is necessary.

7 To the extent that a response is deemed required, Defendants deny

8 the prayer for relief.

9 Defendants deny that Plaintiffs are entitled to the relief
10 sought in the complaint or to any relief whatsoever.
11

*

*

*

*

*

12

In addition, Defendants assert the following affirmative 13

defenses: 14

15

16

FIRST AFFIRMATIVE DEFENSE

17

The complaint fails to state a claim upon which relief can

18 be granted.

19

SECOND AFFIRMATIVE DEFENSE

20

The complaint should be dismissed in part on the grounds of

21 mootness.

22

THIRD AFFIRMATIVE DEFENSE

23 Plaintiffs have failed to exhaust their claims in available

24 administrative procedures.
25 //
26 //
27

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1

FOURTH AFFIRMATIVE DEFENSE

2

This Court lacks jurisdiction over plaintiffs’ Cause of

3 Action under the Declaratory Judgment Act.

4

FIFTH AFFIRMATIVE DEFENSE

5 The complaint is so general as to be insufficient to give

6 defendants fair notice of the bases upon which plaintiffs bring
7 their claims.
8 SIXTH AFFIRMATIVE DEFENSE
9
Relief should be denied to plaintiffs as an exercise of 10

judicial discretion to withhold relief. 11

SEVENTH AFFIRMATIVE DEFENSE 12

13

This Court lacks jurisdiction over plaintiffs' class action

14 claims pursuant to 8 U.S.C. § 1252(f).

15

EIGHTH AFFIRMATIVE DEFENSE

16

Plaintiffs' claims are barred by the applicable statute of

17 limitations.

18

NINTH AFFIRMATIVE DEFENSE

19 Plaintiffs are unable to establish that they have serious
20 medical needs for their respective discrete medical conditions.
21 TENTH AFFIRMATIVE DEFENSE
22 Plaintiffs' injuries or losses were not proximately caused
23 by the defendants' actions or inactions as alleged in this
24 Complaint.
25
ELEVENTH AFFIRMATIVE DEFENSE 26
Plaintiffs have failed to set forth the requisite showing of 27

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1 subjective intent necessary to sustain a cause of action alleging

2 a Constitutional violation, thereby warranting dismissal of this

3 action.

4

TWELFTH AFFIRMATIVE DEFENSE

5 Plaintiffs have failed to set forth a grave deprivation in
6 regard to their allegation that a Constitutional violation has
7 occurred, thereby warranting dismissal of this action.
8 THIRTEENTH AFFIRMATIVE DEFENSE
9 Plaintiffs are unable to establish (1) a strong likelihood
10 of success on the merits, (2) the possibility of irreparable
11
injury to the plaintiff if preliminary relief is not granted, (3) 12
a balance of hardships favoring the plaintiff, and (4) 13
14 advancement of the public interest (in certain cases) necessary

15 to substantiate entitlement to injunctive relief.

16

FOURTEENTH AFFIRMATIVE DEFENSE

17

Plaintiffs suffered no actual injury.

18

FIFTEENTH AFFIRMATIVE DEFENSE

19

Plaintiffs are unable to establish that Defendants' acts or

20 omissions were sufficiently harmful to show deliberate

21 indifference to their allegedly serious medical needs.

22 SIXTEENTH AFFIRMATIVE DEFENSE
23 Although defendants do not presently have specific facts in
24 support of its remaining defenses, it wishes to put counsel for
25 plaintiffs on notice that they raise the following affirmative
26 defenses, as set forth in Rule 8, Fed. R. Civ. P., should
27

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1 subsequent discovery disclose facts that support those defenses,

2 including but not limited to: fraud; illegality; payment;

3 release; res judicata; and waiver.

4*

*

*

*

*

5

WHEREFORE defendants ask that this action be dismissed with

6 prejudice, that judgment be entered for defendants, that the
7 request of an award of costs and expenses of the suit be denied
8 to plaintiffs, and that the Court grant such other and further
9 relief to defendants as it deems proper.
10

11 DATED: November 13, 2007
12
13

Respectfully submitted,

14

For Defendants:

15

KAREN P. HEWITT

United States Attorney

16

THOMAS C. STAHL

Assistant U.S. Attorney

17

Chief, Civil Division

CINDY M. CIPRIANI

18

Assistant U.S. Attorney

19 PETER D. KEISLER

20

Assistant Attorney General

Civil Division

21

DAVID J. KLINE

Principal Deputy Director

22

VICTOR M. LAWRENCE

Senior Litigation Counsel

23 S/Samuel P. Go

24

SAMUEL P. GO

Trial Attorney

25

U.S. Department of Justice

Civil Division

26

Office of Immigration Litigation

P.O. Box 878, 27

28 Defendants’ Answer to Plaintiffs' Complaint for Injunctive and Declaratory Relief

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53

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1

Ben Franklin Station

Washington, D.C. 20044

2

(202) 353-9923

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 Defendants’ Answer to Plaintiffs' Complaint for Injunctive and Declaratory Relief

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54

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1

CERTIFICATE OF SERVICE

2 The undersigned certifies that on this 13th day of November 2007 a true and correct copy of
3 the foregoing Defendants' Answer to Plaintiffs' Complaint for Injunctive and Declaratory Relief was
4 served by ECF Filing on all counsel of record.
5

6 Gouri Bhat, Esq.

7

American Civil Liberties Union Foundation

National Prison Project

8

915 15th Street, NW

7th Floor

9

Washington, DC 20005-2112

10

Gbhat@npp-aclu.org

11

Anthony Michael Stiegler

Cooley Godward Kronish

12

4401 Eastgate Mall

San Diego, CA 92121-9109

13

stiegleram@cooley.com

14 John David Blair-Loy

15

ACLU of San Diego and Imperial Counties

P.O. Box 87131

16

San Diego, CA 92138

dblairloy@aclusandiego.org 17

18

Mary Kathryn Kelley

Cooley Godward Kronish

19

4401 Eastgate Mall

San Diego, CA 92121-9109

20

mkkelley@cooley.com

21 Tom-Tsvi M. Jawetz

22

American Civil Liberties Union Foundation

National Prison Project

23

915 15th Street, NW

7th Floor

24

Washington, DC 20005-2112

25

tjawetz@npp-aclu.org

26

27

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1

Daniel P. Struck

Jones Shelton and Hochuli

2

2901 North Central Avenue

3

Suite 800

Phoenix, AZ 85012

4

dstruck@jshfirm.com

5

Russell R. Yurk

Jones Shelton and Hochuli 6
2901 North Central Avenue

7

Suite 800

Phoenix, AZ 85012

8

ryurk@jshfirm.com

9

Rachel Love

10

Jones Shelton and Hochuli

2901 North Central Avenue

11

Suite 800

Phoenix, AZ 85012

12

rlove@jshfirm.com

13

David B. Monks

14

Klinedinst PC

501 West Broadway

15

Suite 600

San Diego, CA 92101-3544

16

dmonks@klinedinstlaw.com

17 Micaela P. Shelton

18

Klinedinst PC

501 West Broadway

19

Suite 600

San Diego, CA 92101-3544

20

mshelton@klinedinstlaw.com

21

22

/s/ Samuel P. Go

23

U.S. Department of Justice

24

25

26

27

28 Defendants’ Answer to Plaintiffs' Complaint for Injunctive and Declaratory Relief

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 Case 3:07-cv-01078-DMS-PCL Document 51 Filed 12/11/07 Page 1 of 6

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 EAMMA JEAN WOODS, et al.,

CASE NO. 07cv1078 DMS (PCL)

12 vs.
13
14 JULIE L. MYERS, et al.,
15

Plaintiffs, Defendants.

ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
[Doc. 11]

16

17

This matter comes before the Court on Plaintiffs’ motion for class certification. The matter

18 was fully briefed by the parties and argued on November 30, 2007. Tom Jawetz appeared for

19 Plaintiffs, Rachel Love appeared for the CCA Defendants, and Samuel Go appeared on behalf of the

20 Federal Defendants. Having considered the papers submitted and the arguments of counsel, the Court

21 denies Plaintiffs’ motion for class certification.

22

I.

23

BACKGROUND

24

The facts of this case are well known to the parties. Therefore, the Court sets forth only those

25 facts relevant to the present motion. Plaintiffs have filed suit alleging deficient medical treatment at

26 the San Diego Correctional Facility (SDCF). Plaintiffs include Eamma Jean Woods, Rigoberto

27 Aguilar-Turcios, Mohammad Monfor Ali Nesa, Fred Nganga Ngugi, Luis Alberto Tinoco, Sylvester

28 Owino, Gloria Vanegas, Alfredo Toro, and Romeo Fomai.

- 1 -

07cv1078

Case 3:07-cv-01078-DMS-PCL Document 51 Filed 12/11/07 Page 2 of 6

1

Plaintiffs allege Defendants violated their due process rights under the Fifth Amendment of

2 the United States Constitution due to deficient medical, mental health, dental, and vision care. In

3 particular, Plaintiffs allege the SDCF staff “routinely ignore[s] requests for urgent care by detainees

4 with dangerous and painful health problems,” and detainees “typically receive superficial or

5 inappropriate care, often by staff unqualified to provide proper care,” thereby forcing detainees “to

6 suffer needlessly as a result of defendants’ policies and practices.” (Compl. ¶ 2). Plaintiffs seek

7 judgment: (1) declaring that such policies, practices, acts, and omissions “violate plaintiffs’ rights

8 under the Constitution,” and (2) enjoining Defendants “from subjecting plaintiffs to the

9 unconstitutional conditions.” (Id., “Prayer for Relief” ¶ (c),(d)).

10

II.

11

LEGAL STANDARDS

12

A district court may certify a class only if: “(1) the class is so numerous that joinder of all

13 members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims

14 or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the

15 representative parties will fairly and adequately protect the interests of the class.” Dukes v. Wal-Mart,

16 Inc., 474 F.3d 1214, 1224 (9th Cir. 2007) (citing Fed. R. Civ. P. 23(a)). “The district court must also

17 find that at least one of the following three conditions is satisfied: (1) the prosecution of separate

18 actions would create a risk of: (a) inconsistent or varying adjudications or (b) individual adjudications

19 dispositive of the interests of other members not a party to those adjudications; (2) the party opposing

20 the class has acted or refused to act on grounds generally applicable to the class; or (3) the questions

21 of law or fact common to the members of the class predominate over any questions affecting only

22 individual members, and a class action is superior to other available methods for the fair and efficient

23 adjudication of the controversy.” Id. (citing Fed. R. Civ. P. 23(b)). The party seeking certification

24 bears the burden of showing that each of the four requirements of Rule 23(a), and at least one of the

25 three requirements of Rule 23(b), are met. Id.

26

III.

27

DISCUSSION

28

Defendants argue certification is improper because Plaintiffs have not satisfied the numerosity,

- 2 -

07cv1078

Case 3:07-cv-01078-DMS-PCL Document 51 Filed 12/11/07 Page 3 of 6

1 commonality, typicality and adequacy of representation requirements of Rule 23(a), nor have they

2 satisfied the requirements of Rule 23(b)(2). Certification is appropriate under Rule 23(b)(2) where

3 “the party opposing the class has acted or refused to act on grounds generally applicable to the class,

4 thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to

5 the class as a whole.” Fed. R. Civ. P. 23(b)(2). For the reasons set forth below, the Court finds the 6 requirements of Rule 23(b)(2) are not met.1

7

First, Plaintiffs do not allege any act or refusal to act by Defendants, or even an exhaustive list

8 of such acts, that are generally applicable to the class. Plaintiffs emphasize, “all class members are

9 subject to the same medical system, the same administrative policies, and the same systematic denial

10 of care.” (Reply at 8). However, each Plaintiff claims to have suffered from a distinct manifestation

11 of varying combinations of the allegedly deficient policies. For example, some physically ill Plaintiffs

12 allegedly were denied medical care (Compl. ¶ 89); some allegedly received insufficient care (Compl.

13 ¶ 104); and other “healthy” Plaintiffs are alleged to be in danger because they were housed near

14 mentally ill Plaintiffs whose hygienic practices cause health concerns. (Compl. ¶ 109). These widely

15 differing circumstances belie Plaintiff’s argument that highly individualized questions regarding the

16 appropriateness of medical care can be characterized as actions or a refusal to act generally applicable 17 to the class as a whole.2

18

Plaintiff correctly points out that other courts have certified classes similar to the present class

19 under Rule 23(b)(2). However, many of the cases cited by Plaintiffs are distinguishable because the

20 relief sought affected all plaintiffs. See, e.g. Ramos v. Lamm, 639 F.2d 559, 562, 577 (10th Cir. 1980)

21 (class relief resulted in closure of maximum security unit altogether); Jones ‘El v. Berge, 2001 WL

22

23

1 The typicality and commonality requirements of Rule 23(a) also are not met. The discussion

however, focuses on Rule 23(b) as it is dispositive. 24

2 Even in the context of the more permissive “commonality” requirement of Rule 23(a), an 25 allegation of systematic deficiencies may be insufficient to create a common question of law or fact

where, as here, the actual deficiencies alleged vary widely and affect plaintiffs differently. See J.B. 26 ex rel Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999). There, plaintiffs were children with

mental and developmental disabilities in the custody of the state who alleged deficiencies in their 27 treatment. Id. at 1282. Even though that class, unlike the instant proposed class, excluded healthy

individuals, the circuit court upheld the denial of class certification because “rather than adequately 28 advancing a discrete question of law, plaintiffs merely attempt[ed] to broadly conflate a variety of

claims to establish commonality via an allegation of systematic failures.” Id. at 1289.

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Case 3:07-cv-01078-DMS-PCL Document 51 Filed 12/11/07 Page 4 of 6

1 34389611, *13 (certifying class where “the question whether defendants’ inadequate staffing violates

2 plaintiffs’ rights under the Eighth Amendment is generally applicable to the class.”). In other cases

3 cited by Plaintiffs, class certification was granted without analysis of the relevant Rule 23(b) factors.

4 See, e.g. Bradley v. Harrelson, 151 F.R.D. 422, 425-27 (M.D. Ala. 1993); Dean v. Coughlin, 107

5 F.R.D. 331, 332-35 (S.D.N.Y. 1985); Bradley v. Harrelson, 151 F.R.D. 422, 425-27 (M.D. Ala. 1993).

6 These cases are therefore of little assistance.

7

Second, because Plaintiffs fail to allege a specific act or refusal to act applicable to the class

8 as a whole, injunctive relief on a class-wide basis is inappropriate. At oral argument, counsel indicated

9 that Plaintiffs envision an injunction generally ordering Defendants to provide constitutionally

10 sufficient levels of care, rather than an injunction against a particular policy or policies. Such wide-

11 ranging, ill defined relief does not comport with Rule 65(d)(1), which cautions that: “every order

12 granting an injunction . . . must . . . state its terms specifically; and . . . describe in reasonable detail

13 . . . the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1). Since an injunction prohibits or

14 requires conduct under threat of punishment, “basic fairness requires that those enjoined receive

15 explicit notice of precisely what conduct is outlawed.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974),

16 superceded on other grounds.

17

Plaintiffs correctly note that actions to enjoin unconstitutional government conduct are “the

18 classic type of action envisioned by the drafters of Rule 23 to be brought under subdivision (b)(2).”

19 Elliott v. Weinberger, 564 F.2d 1219, 1229 (9th Cir. 1977). Simply alleging a civil rights violation,

20 however, does not automatically bring Plaintiffs within the purview of Rule 23(b)(2). In Elliott,

21 plaintiffs alleged specific conduct that affected all putative class members – namely, a class comprised

22 of “old-age and disabled” social security beneficiaries sought a hearing before the government initiated

23 recoupment procedures to recover monies paid to such beneficiaries allegedly in excess of their legal

24 monthly entitlements. All beneficiaries were affected in the same way by the same threatened

25 recoupment process.

26

Similarly, this Court in Kiniti v. Wagner, Case No. 05-cv-1013, Doc. 112, certified the same

27 class of Plaintiffs presently at issue but under markedly different circumstances. In Kiniti, Plaintiffs

28 alleged that detainees of SDCF were housed three to a cell, in a practice referred to as “triple-celling.”

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Case 3:07-cv-01078-DMS-PCL Document 51 Filed 12/11/07 Page 5 of 6

1 While the cells were intended to house two detainees, Defendants housed three detainees to a cell in

2 response to overcrowding. The practice of triple-celling affected most, if not all, of the SDCF’s

3 detainees because the housing conditions impacted or were likely to impact all current and future

4 detainees. Given these allegations, the discrete issue of the constitutionality of triple-celling is

5 presented for resolution, and, if Plaintiffs prevail, an injunction may be appropriately issued under

6 Rule 65(d)(1).

7

In contrast, the instant Complaint alleges a wide range of practices, not one of which affects

8 more than four named Plaintiffs. Under such circumstances, the presence of a class could well hinder

9 the court’s ability to grant specific redress. For example, in Todaro v. Ward, 431 F. Supp. 1129

10 (S.D.N.Y. 1977), the court addressed the following analogous question on a class-wide basis: “at what

11 point do individual failures in the overall operation of a prison medical care system add up to

12 deliberate indifference which would render the entire system unconstitutional?” Id. at 1133. The court

13 in Todaro ultimately was forced to consider each plaintiff’s complaint, evaluate the propriety of

14 actions taken by individual officials, and, while carefully avoiding interfering with medical judgment,

15 determine whether the policy undertaken affected enough of the claimants to constitute a pattern of

16 unconstitutional behavior. Ultimately, the resulting injunction ordered the parties to meet in an attempt

17 to agree on new means and procedures for providing, among other things, “better” medical access,

18 “adequate” screening, and “reasonably prompt” access to a physician. None of the plaintiffs received

19 immediate court-ordered relief regarding their actual medical problem. Id. at 1160. Here, granting

20 class certification would necessitate a similarly delicate inquiry, likely yielding a similarly vague and

21 incomplete remedy. This the Court respectfully declines to do.

22

The difficulties in managing institutional medical care by decree are highlighted by the

23 Supreme Court in a closely related context:

24

[T]he problems of prisons in America are complex and intractable, and, more

to the point, they are not readily susceptible of resolution by decree. Most

25

require expertise, comprehensive planning, and the commitment of resources,

all of which are peculiarly within the province of the legislative and executive

26

branches of government. For all these reasons, courts are ill equipped to deal

with the increasingly urgent problems of prison administration and reform.

27

Procunier v. Martinez, 416 U.S. 396, 404-05 (1974), overruled on other grounds.

28

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Case 3:07-cv-01078-DMS-PCL Document 51 Filed 12/11/07 Page 6 of 6

1

IV.

2

CONCLUSION

3

Because Plaintiffs have failed to demonstrate that Defendants have “acted or refused to act on

4 grounds generally applicable to the class,” certification of the class is inappropriate under Rule

5 23(b)(2). Plaintiffs’ motion for class certification is DENIED.

6 IT IS SO ORDERED.

7 DATED: December 11, 2007

8

9

HON. DANA M. SABRAW

United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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07cv1078

 
 Case 3:07-cv-01078-DMS-PCL Document 94 Filed 06/20/11 Page 1 of 2

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 EAMMA JEAN WOODS, et al.,

CASE NO. 07cv1078 DMS (PCL)

12

Plaintiffs,

13

v.

14 JOHN MORTON, et al.,

ORDER APPOINTING CLASS COUNSEL AND GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT

15

Defendants.

16

17 This matter came before the Court on June 10, 2011 for a fairness hearing on whether to
18 approve the proposed settlement negotiated by counsel. Present were David Blair-L oy and Ryan
19 Blair as counsel for Plaintiffs, Samuel P. Go as counsel for Federal Defendants, and Rachel Love
20 as counsel for CCA Defendants. Also present were Class Members Huang Tai-Chien and Vasily
21 Zotov, objecting to the settlement.
22 Having reviewed the Settlement Agreement (Doc. No. 82-1) , all documents submitted in
23 support of approving the settlem ent, and the written objections file d by Mr. Huang and Mr.
24 Zotov, and having heard the statements of counsel , Mr. Huang, and Mr. Zotov, the Court finds as
25 follows:
26 1. Plaintiffs’ counsel should be appointed as class counsel, as re quested in the Joint
27 Motion filed March 28, 2011. (Doc. No. 82.)
28

07cv1078

Case 3:07-cv-01078-DMS-PCL Document 94 Filed 06/20/11 Page 2 of 2

1

2. Reasonable notice was give n to all Class Members of the proposed settlem ent,

2 pursuant to the Court’s order of April 21, 2011 (Doc. No. 85) and ¶ 24 of t he Settlement

3 Agreement, by posting of the Not ice in Spanis h and English in each pod of the San Diego

4 Correctional Facility occupied by Class Mem bers and by persona l delivery of the Notice to a ll

5 Class Members in segregated confinem ent and in the m edical unit, as well as m aking a copy of

6 the Settlement Agreement available to any Class Member who asked to re view it. This notice

7 procedure afforded adequate protections to Class Members and was the best notice practicable.

8

3. The terms of the proposed settlem ent are fair, reasonable, and adequate. The

9 objections to the settlem ent are respectfully overruled, for the reas ons stated on th e record at the

10 fairness hearing.

11

4. All other ap plicable requirements of Federal Rule of Civil Procedure 23(e) have

12 been satisfied.

13

IT IS THEREFORE ORDERED:

14

1. Plaintiffs’ counsel is appointed as class counsel, pursuant to Federal Rule of Civil

15 Procedure 23(g).

16

2. The Settlement Agreement is approved, pursuant to F ederal Rule of Civil

17 Procedure 23(e), and all term s and provisions of the Settlem ent Agreement are incorpora ted

18 herein by reference. The Partie s are hereby ordered to comply with the terms of the Settlement

19 Agreement.

20

3. Without affecting the finality of this Order in any way, the Court hereby retains

21 continuing jurisdiction over the interpretation, implementation, and enforcement of the Settlement

22 Agreement.

23

IT IS SO ORDERED.

24 DATED: June 20, 2011

25

HON. DANA M. SABRAW

26

United States District Judge

27

28

2
07cv1078

 
 Case 3:07-cv-01078-DMS-PCL Document 102 Filed 07/13/12 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

EAMMA JEAN WOODS, et al., PLAINTIFFS,
v. JOHN MORTON, et al.,
DEFENDANTS.

)

)

)

Case No. 3:07-cv-1078-DMS-PCL

)

)

ORDER OF DISMISSAL

)

WITH PREJUDICE

)

)

)

)

)

ORDER

Upon consideration of the Joint Stipulation to Dismiss with Prejudice (“Stipulation”) and

the Parties’ compliance with the terms and conditions of the Settlement Agreement (“Agreement”)

executed by the Parties on December 15, 2010, and approved by this Court on June 20, 2011, it is

hereby:

ORDERED that the Stipulation is approved and adopted, and, it is hereby

ORDERED that the Agreement is terminated, the above-captioned action, in its entirety, is dismissed with prejudice, and the class defined in Paragraph 4 of the Agreement is dissolved, each party bearing its own attorney’s fees and litigation costs.

IT IS SO ORDERED. DATED: July 13, 2012

HON. DANA M. SABRAW United States District Judge

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EAMMA JEAN WOODS, et al,

)

)

PLAINTIFFS-APPELLANTS, )

)

)

v.

)

)

JOHN MORTON, et al.,

)

)

DEFENDANTS-APPELLEES. )

)

No. 08-55376 SETTLEMENT AGREEMENT

I. INTRODUCTION AND PROCEDURAL PROVISIONS 1. All Plaintiffs and all Defendants (collectively, “the Parties”) join in this
Settlement Agreement (“Agreement”). Plaintiffs are immigration detainees in the custody of U.S. Immigration and Customs Enforcement (“ICE”), an agency within the United States Department of Homeland Security, at the San Diego Correctional Facility (“SDCF” or “the Facility”) in Otay Mesa, California. Defendants are officials and employees of ICE (“Federal Defendants”) and Corrections Corporation of America (“CCA”), the private company that manages SDCF.
2. This action was filed pursuant to 28 U.S.C. § 1331. The United States District Court for the Southern District of California (“District Court”) has general authority to grant injunctive relief pursuant to 5 U.S.C. § 702 and Fed. R. Civ. P. 65.
3. Within 7 days of signing this Agreement, the parties shall file in the United States District Court the joint motion attached as Exhibit A to this Agreement. If the District Court grants the motion, within 7 days, the parties shall file a joint motion in the United States Court of
1.

Appeals for the Ninth Circuit (“Ninth Circuit”) requesting that it remand to the District Court for certification of a settlement class action. The joint motion to the Ninth Circuit is attached as Exhibit B to this Agreement.
4. The proposed settlement class is defined as all immigration detainees in ICE custody who are detained at SDCF at any time from the Effective Date of this Agreement until this Agreement terminates pursuant to § V of this Agreement (“Class Members”). The Effective Date is the date upon which the Agreement is approved by the District Court.
5. The purpose of this Agreement is to settle the above captioned case. This Agreement does not cover the provision of medical care at any facility other than SDCF and shall not be interpreted otherwise. This Agreement does not cover occurrences or incidents that happen to Class Members while they do not reside at SDCF.
6. Defendants deny all the allegations in the Complaint filed in this case. This Agreement does not constitute and shall not be construed or interpreted as an admission of any wrongdoing or liability by any party.
7. The Parties note that SDCF’s medical, mental health, dental, and vision care were accredited by the Joint Commission on Accreditation of Hospitals (“Joint Commission”) on September 15, 2007; the American Correctional Association (“ACA”) on November 16, 2007; and the National Commission on Correctional Health Care (“NCCHC”) on February 22, 2008. Both the ACA and the NCCHC found SDCF to be 100% compliant with their standards. II. SUBSTANTIVE PROVISIONS
8. Class Members shall receive health care that meets or exceeds the following NCCHC standards as set forth in Standards for Health Services in Jails (2008): Access to Care (J-A-01); Medical Autonomy (J-A-03); Staffing (J-C-07); Pharmaceutical Operations (J-D-01); Medication Services (J-D-02); Receiving Screening (J-E-02); Initial Health Assessment (J-E-04);
2.

Mental Health Screening and Evaluation (J-E-05); Oral Care (J-E-06); Nonemergency Health Care Requests and Services (J-E-07); Emergency Services (J-E-08); Segregated Inmates (J-E09); Patient Escort (J-E-10); Continuity of Care During Incarceration (J-E-12); Basic Mental Health Services (J-G-04); Suicide Prevention Program (J-G-05); Care of the Pregnant Inmate (JG-07); Aids to Impairment (J-G-10); and Health Record Format and Contents (J-H-01) (“NCCHC Standards”). A copy of the NCCHC Standards is attached to this Agreement as Exhibit C and incorporated by reference. Subsequent to court approval of this Agreement, Federal Defendants shall obtain a finding from NCCHC that SDCF complies with the above standards. Compliance with the NCCHC Standards, for the purposes of determining whether Defendants have achieved compliance with this Agreement, is to be determined by NCCHC only, and Plaintiffs shall not challenge a finding by NCCHC of SDCF’s compliance with NCCHC Standards.
9. In light of the unique demands at SDCF to deliver mental health care to the detainees housed at the facility, within nine months of the Effective Date of this Agreement, Federal Defendants shall expand the provision of mental health care professionals for the Class Members by providing the equivalent of one full-time additional psychiatrist and four full-time additional psychiatric nurses for the purpose of providing such care, unless unforeseen circumstances or emergency situations preclude Federal Defendants from meeting this timeframe. Federal Defendants shall rectify such circumstances or situations within a reasonable time period. The timeliness requirement of this provision shall be deemed satisfied upon the matriculation of the above medical professionals on or after March 1, 2010.
10. If ICE requires a Treatment Authorization Request (“TAR”), then a TAR prepared by a medical practitioner for off-site non-emergency medical treatment for a Class
3.

Member shall be granted, denied, or remanded for more information within five business days of submission of the TAR, with expedited consideration if the TAR is designated as urgent. Federal Defendants shall provide a system for appeal of denials of TARs. Either the medical practitioner or the Class Member may utilize the appeals system. Such appeals shall receive a response within ten business days of such submission.
11. If the reviewer of a TAR remands it for additional information, the revised TAR shall be submitted by the SDCF medical practitioner within five business days of the remand, and the reviewer shall grant or deny the revised TAR within five business days of receipt. In order to minimize the problem of missing information from requests, Federal Defendants shall provide medical practitioners at SDCF with instructions and training on appropriate completion of such requests. In case of an emergency, medical personnel at SDCF shall take necessary steps to ensure appropriate off-site medical care, without regard to the TAR requirements for nonemergency care.
12. Defendants shall take all reasonable steps to ensure that authorized off-site medical treatment commences within a clinically appropriate period of time. The SDCF medical practitioner responsible for the Class Member’s treatment shall review the time frame for scheduled off-site appointments to ensure scheduling within a clinically appropriate period of time, and shall take all reasonable steps to ensure the completion of off-site treatment within the contemplated period of time. Federal Defendants shall maintain a tracking system for pending off-site appointments for Class Members.
13. Federal Defendants shall officially modify the May 6, 2006 version of the Division of Immigration Health Services Medical Dental Detainee Covered Services Package (“Benefits Package”) as follows: (a) to provide that medical care shall be provided when
4.

necessary to address a serious medical need; (b) to remove all references within the Benefits Package explicitly or implicitly stating that the Benefits Package primarily covers emergency services; (c) to remove all references to assessing for treatment other conditions only if the responsible physician believes that the detainee’s condition, if left untreated during the period of ICE custody, would cause deterioration of the detainee’s health or uncontrolled suffering affecting the detainee’s deportation status; and (d) to remove all references requiring authorization, beyond that of the Division of Immigration Health Services (“DIHS”) physician, employed at SDCF, to provide medical care that addresses a serious medical need.
14. Federal Defendants shall also review the May 6, 2006 version of the Benefits Package and remove from the list of examples of conditions that are usually not covered, but can be requested, those conditions that ordinarily or frequently constitute medical care necessary to address a serious medical need, regardless of whether such medical condition requires emergency or urgent treatment.
15. Defendant CCA shall ensure that appropriate training, policies, and/or practices shall continue to be implemented at SDCF, or, as applicable, shall be implemented, to provide reasonable assurances of the following: SDCF CCA custody staff shall respond to medical emergencies in a manner appropriate for correctional staff. This response shall include, as appropriate, unless emergency security issues necessary to maintain the safety of staff, Class Members, or the general public warrant overriding a response where such emergency security issues outweigh the danger to the Class Members, initiation and continuation of cardiopulmonary resuscitation; recognition and reporting on medical emergencies; appropriate interaction with, and response to, prisoners displaying symptoms of serious mental illness; and appropriate
5.

attentiveness to the need to provide transportation escort services and similar medical support services for Class Members who require such services.
16. Defendant CCA shall also ensure that appropriate training, policies, and/or practices shall continue to be implemented at SDCF, or, as applicable, shall be implemented, to provide reasonable assurances that SDCF CCA staff carry out directives from medical staff related to treatment of Class Members. Such directives shall include, but are not limited to, the following: attending to specific medical conditions and limitations of individual Class Members, such as a Class Member’s need for a bottom bunk because of seizure disorder; modification of restraint practices to conform to directives by appropriate medical staff; and directives not to use chemical agents on a particular Class Member or directives that certain mechanical restraints practices be avoided.
17. In an emergency situation in which a medical directive appears to be in tension with a security issue directly related to maintaining the safety of staff, Class Members, or the general public, the highest-level CCA supervisory staff available may make a determination to modify or disregard the medical directive if the danger to security outweighs the danger from disregarding the medical directive. If time permits, the CCA supervisory staff shall obtain advice from medical staff as to the degree of risk entailed by disregarding a particular medical directive, and possible alternatives under the circumstances to the directive to protect Class Member health. Defendants including CCA shall take reasonable steps to inform SDCF CCA custody officers of medical directives affecting SDCF CCA custody staff interaction with particular Class Members. III. MONITORING AND ENFORCEMENT
18. As confirmatory discovery evidencing Defendants’ compliance with the terms of the Agreement, Defendants shall provide the following documents to counsel for Plaintiffs
6.

according to the schedule below, provided that Plaintiffs supply executed medical releases to Defendants for all unredacted individual medical records. In the absence of executed medical releases, Defendants shall redact all personally identifiable information, including, but not limited to, names, alien registration numbers, and social security numbers, as appropriate.
A. The first document production shall occur four months from the day that the District Court approves the Agreement. The second and last document production shall occur eight months from the day that the District Court approves the Agreement. Upon the District Court’s approval of the Agreement, Federal Defendants shall request that the NCCHC accreditation inspection related to a determination of whether SDCF currently complies with the NCCHC Standards specified in ¶ 8, supra, commence at least 60 days after Defendants’ first document production. B. On both occasions, Defendants’ document production shall consist of a legible copy, produced electronically or in hard copy, of the following documents or information:
1. a) current medical and mental health staffing, including authorized and filled positions and the status of hiring efforts; b) changes in the Benefits Package; c) changes in the TARs process; and d) changes to the facility formulary.
2. A list of new medication orders (not including renewals) processed by the institutional pharmacy, along with a document showing when the medication was first delivered to the patient, for 30 consecutive new medication orders.
7.

3. A list showing the date of admission into the facility, the date of the initial intake screening and the date of the 14-day comprehensive health appraisal for 30 consecutive newly-admitted Class Members.
4. The medical emergency transfer log (or a compilation) showing the time that emergency transfer was ordered, the time that the Class Member left the facility for diagnosis and treatment, the time the Class Member arrived at an outside treatment facility; and the reason for transferring the Class Member, for 20 consecutive medical or mental health emergency health care transfers.
5. Records of sick call requests and responses for a one-week period during each period covered by each document production.
6. Records of 30 consecutive TARs, along with any responses to those TARs and further communications between the SDCF medical practitioner preparing the TARs and the reviewer.
7. Any audits or evaluations conducted by any organizations, internal or external, of medical or mental health care at SDCF that occur during the course of the Agreement.
8. Policy and procedure manuals and local operating procedures governing dental, medical, mental health, and vision care provided at SDCF that are issued during the course of the Agreement.
19. Federal Defendants shall also provide a photocopy of a maximum of 20 individual Class Member medical records during the course of the Agreement if Plaintiffs provide an
8.

executed medical release for each Class Member. In addition, Federal Defendants shall provide to Plaintiffs a copy of all medical records of Class Members who died during their confinement at SDCF during the time the Agreement is effective (whether death takes place at the facility or at a medical facility within 7 days following transfer) without a medical release or request from Plaintiffs. Any medical records relating to Class Member deaths do not count toward the 20 medical records specified in the first sentence of this paragraph. Plaintiffs reserve the right to seek a protective order from the District Court authorizing Class Counsel to review discrete medical records of Class Members, based on a specific showing of need, if such Class Member (i) has been removed from the U.S. and (ii) has not previously refused to execute a medical release for all unredacted individual medical records to Class Counsel.
20. Plaintiffs shall identify the week to be selected for documents described in ¶ 18.B.5 at least one month prior to the date Defendants are required to produce such records, and Defendants shall timely produce such records absent unforeseen circumstances or emergency situations that make such production infeasible within the specified time frame. Plaintiffs shall identify the applicable start periods for the documents described in ¶¶ 18.B.2, 18.B.3, 18.B.4, and 18.B.6, at least one month prior to the date Defendants are required to produce such records, and Defendants shall timely produce such records absent unforeseen circumstances or emergency situations.
21. In the event that class counsel for Plaintiffs alleges that Defendants have failed to comply in some significant respect with ¶¶ 9-20 of this Agreement on an individual or class-wide basis, class counsel shall provide Defendants with a written statement describing the alleged noncompliance (“Notice of Non-Compliance”). Defendants shall provide a written statement responding to the alleged violation within seven calendar days from receipt of the Notice of Non-
9.

Compliance and, within 30 calendar days, counsel for the parties shall meet and confer in a good faith effort to resolve their dispute informally.
22. In the event that a Notice of Non-Compliance pursuant to ¶ 21 of this Agreement cannot be resolved informally, counsel for the parties in this litigation shall request that the assigned Magistrate Judge mediate the dispute. If the dispute has not been resolved through mediation in conformity with this Agreement within 60 days, class counsel may file a motion to enforce the Agreement in the District Court.
23. Notwithstanding ¶¶ 21-22, supra, in the event that class counsel for Plaintiffs allege that Defendants’ noncompliance with ¶¶ 9-20 constitutes an imminent threat of failure to provide necessary treatment for a Class Member's serious medical needs, counsel for the parties shall jointly request that a Ninth Circuit mediator, preferably Claudia Bernard, expedite mediation. If the dispute has not been resolved through such mediation within ten business days of the Plaintiffs’ Notice of Non-Compliance, counsel for Plaintiffs may file a motion to enforce the Agreement in the District Court.
24. Notice of the proposed Agreement, a copy of which is attached to this Agreement as Exhibit D and incorporated by reference, shall be provided to Class Members through posting in Spanish and English in the housing units at SDCF and through provision of individual notice for Class Members in segregated confinement. The District Court will thereafter hold whatever hearing it deems appropriate regarding approval of the Agreement. IV. RESERVATION OF JURISDICTION
25. The parties consent to the reservation and exercise of jurisdiction by the District Court and the assigned Magistrate Judge over all disputes between and among the parties arising out of this Agreement, including, but not limited to, interpretation and enforcement of the terms of this Agreement through the mechanism described in ¶¶ 21-23 of this Agreement. Counsel for
10.

the parties shall jointly execute and file a stipulation and proposed order attached to this Agreement as Exhibit E within 7 days after jurisdiction is returned to the District Court. V. TERMINATION OF THE AGREEMENT
26. Except as provided in ¶ 27 of this Agreement, infra, the relief granted in this Agreement shall terminate on the one-year anniversary of the date that the District Court approves the Agreement. On this date, the Parties shall stipulate to dismiss this action with prejudice, and the class defined in ¶ 4 shall dissolve.
27. Notwithstanding ¶ 26 of this Agreement, this Agreement shall not terminate to the extent that (a) Notice of Non-Compliance has been provided pursuant to ¶ 21; (b) a motion is pending pursuant to ¶ 23 that raises claims that Defendants have, in whole or in part, failed to comply with ¶¶ 9-20; or (c) to the extent that mediation pursuant to ¶¶ 22-23 is pending. In the event that such a Notice of Non-Compliance has been provided or such motion or mediation is pending, this Agreement shall terminate as to any provision not at issue in the Notice of NonCompliance, motion, or mediation. If either the Federal Defendants or CCA Defendants are not subject to the Notice of Non-Compliance, motion or mediation described in this Paragraph, this Agreement shall terminate as to that Party, and the Parties shall stipulate to dismiss that Party from this action with prejudice. The requirements of ¶ 8 of this Agreement shall terminate as provided in ¶ 26 for any NCCHC Standard enumerated therein that NCCHC finds in compliance in its initial or, if necessary, subsequent inspection of SDCF conducted after the Effective Date of this Agreement. If NCCHC finds that Federal Defendants are in noncompliance with any such Standard(s), Federal Defendants shall have 90 days to cure any such deficiency and obtain NCCHC’s determination of compliance. If NCCHC finds that any such noncompliance remains after this 90-day period, Federal Defendants shall have another 90 days to cure the deficiency and obtain NCCHC’s determination of compliance. If, after the two 90-day periods have
11.

elapsed, NCCHC finds that Federal Defendants remain in noncompliance with any Standard(s), Plaintiffs reserve the right to seek an order from the District Court requiring Federal Defendants to comply with such Standard within 90 days. On the one-year anniversary date of the District Court’s approval of the Agreement, to the extent any other provision is currently subject to a Notice of Non-Compliance, the affected provision(s) of the Agreement shall terminate as soon as Defendants have reasonably rectified the issue(s) identified in the Notice of Non-Compliance, and, in any event, no later than two years from the date the District Court approves the Agreement, unless Plaintiffs prior to the two-year date convince the District Court that Plaintiffs are likely to prevail in demonstrating a substantial violation of the Agreement with respect to any issue of a Notice of Noncompliance. Notwithstanding anything else in this paragraph, this Agreement shall not terminate until the Court has ruled on any motion for enforcement based on a timely notice of non-compliance. Any extension of the Agreement pursuant to this provision shall include only the specific provision or provisions for which Plaintiffs demonstrate such likelihood of a substantial violation of the Agreement with respect to any issue of a Notice of Noncompliance.
28. Confirmatory discovery produced pursuant to this Agreement shall not be used for any purpose other than that related to monitoring and enforcing this Agreement, and such confirmatory discovery shall be disseminated only to (i) Plaintiffs’ counsel and its experts, (ii) NCCHC for the sole purpose of determining Federal Defendants’ level of compliance with the requirements of ¶ 8 of this Agreement, and, (iii) if necessary, under seal, the Magistrate Judge or District Court to resolve any alleged Notice of Non-Compliance. Plaintiffs shall provide Defendants with an index of all documents obtained through confirmatory discovery that are provided to NCCHC. All documents produced by Defendants pursuant to this Agreement shall
12.

be returned to Defendants or destroyed within three weeks after the relief granted under this Agreement is terminated. After Plaintiffs have complied with the requirements of this paragraph, they shall send written confirmation to Defendants. The Parties further agree to file a joint motion for a protective order with the District Court, attached as Exhibit F to this Agreement, which sets out these terms and conditions of this disclosure within 30 days of the Effective Date of this Agreement. The proposed protective order is attached as Exhibit G to this Agreement.
29. Plaintiffs shall not request, and Defendants shall not produce, any further confirmatory discovery in accordance with this Agreement unless ordered by the Magistrate Judge or District Court to resolve any alleged Notice of Non-Compliance. The right of Plaintiffs’ counsel to obtain documents related to SDCF other than through confirmatory discovery provided under this Agreement is neither enlarged nor diminished by this Agreement. VI. MISCELLANEOUS PROVISIONS
30. The parties intend that nothing in this Agreement shall have any preclusive effect on any damages claim that any person may have as a result of his or her detention in ICE custody at SDCF, now or in the future. The parties further intend that nothing in this Agreement shall have any preclusive effect on any claim for injunctive relief that any such person may have that is outside the scope of the pleadings or that arises after injunctive relief pursuant to this Agreement is terminated pursuant to § V, supra. The parties further intend that nothing in this Agreement shall have any preclusive effect on any claim for injunctive relief that is outside the scope of the terms and conditions provided in this Agreement or that is outside the scope of the terms and conditions remaining in this Agreement following partial termination of the Agreement, or any claim by a person who is not a Class Member.
13.

31. This Agreement constitutes the entire agreement among the parties as to all claims raised by Plaintiffs in this action, and supersedes all prior agreements, representations, statements, promises, and understandings, whether oral or written, express or implied, with respect to this Agreement.
32. This is an integrated agreement and may not be altered or modified, except by a writing signed by all representatives of all parties at the time of authorization and modification.
33. This Agreement shall be binding on all successors, assignees, employees, agents, and all others working for or on behalf of Defendants and Plaintiffs.
34. The Parties agree to bear their own attorneys' fees and costs in this action. Plaintiffs agree that they shall not seek, solicit, or request attorneys' fees and/or litigation costs provided under the Equal Access to Justice Act, 28 U.S.C. § 2412, or any other provision.

Elizabeth Alexander Law Offices of Elizabeth Alexander 1416 Holly St., NW Washington, DC 20012
Date:
Counsel for Plaintiffs-Appellants
David Blair-Loy ACLU San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138
Date:
Counsel for Plaintiffs-Appellants

Victor M. Lawrence U.S. Department of Justice Office of Immigration Litigation District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044
Date:
Samuel P. Go U.S. Department of Justice Office of Immigration Litigation District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044
Date:
Counsel for Defendants-Appellees
14.

Anthony M. Stiegler Cooley, LLP 4401 Eastgate Mall San Diego, CA 92121 Date: Counsel for Plaintiffs-Appellants
2341798.1

Daniel P. Struck Jones Skelton & Hochuli 2901 North Central Avenue Suite 800 Phoenix, AZ 85012
Date:
Counsel for Defendants-Appellees

15.

 
 American Civil Liberties Union : ACLU Sues U.S. Immigration Official...

http://www.aclu.org/immigrants/detention/30102prs20070613.html

URL: http://www.aclu.org/immigrants/detention/30102prs20070613.html
ACLU Sues U.S. Immigration Officials and For-Profit Corrections Corporation Over Grossly Deficient Health Care (6/13/2007)
ACLU Says Inadequate Medical Care Causes “Great Physical Suffering” and Risk of “Premature Death” to Detainees at the San Diego Correctional Facility
FOR IMMEDIATE RELEASE Contact: media@aclu.org
SAN DIEGO -- The American Civil Liberties Union today filed a class action lawsuit on behalf of immigrant detainees at San Diego Correctional Facility (SDCF), charging that inadequate medical and mental health care have caused unnecessary suffering and, in several cases, avoidable death.
Woods v. Myers, the lawsuit filed by the ACLU’s National Prison Project and Immigrants’ Rights Project, the ACLU of San Diego & Imperial Counties and the law firm of Cooley Godward Kronish LLP, says that detainees are routinely subjected to long delays before treatment, denied necessary medication for chronic illnesses, and refused essential referrals prescribed by medical staff.
“The quality of care provided to detainees at San Diego Correctional Facility is horrific, and in stark contrast to American values,” said Tom Jawetz, immigration detention staff attorney for the ACLU National Prison Project. “The federal government must do more to ensure that immigrant detainees do not suffer and die unnecessarily.”
The lawsuit specifically names eleven detainees, including a woman who has a neurological disorder that has caused a painful glomus tumor on her finger; several detainees with untreated bipolar disorder and depression; a man who was forced to wait more than eight months for eye surgery and nearly suffered permanent disfigurement; and detainees with Type 2 diabetes, hypercholesterolemia, hypertension, abscessed and broken teeth, and chest pains.
The ACLU believes that inadequate medical care at SDCF has — on several occasions — resulted in death; in one such case, a Ghanaian man suffering obvious chest pains was denied treatment and was ordered to submit a written sick call request shortly before his death.
According to the ACLU, one of the most serious problems with health care at SDCF, as at other immigration facilities around the country, is that it is provided in accordance with the deeply flawed Division of Immigration Health Services (DIHS) Covered Services Package. On-site medical staff must get approval from DIHS to provide medically necessary referrals before treating detainees. Medical staff at the facility, who are responsible for examining patients and determining necessary treatment, are frequently told by DIHS staff reviewing the case on paper in Washington DC, that they may not provide that treatment due to limitations in the DIHS package.
“The Division of Immigration Health Services needs to make major improvements to its benefits package to ensure detainees get the treatment they need,” said David Blair-Loy, Legal Director of the ACLU of San Diego & Imperial Counties. “It is imperative that DIHS make significant changes to its current practices that cause avoidable suffering due to its slow bureaucratic process.”
The ACLU charges in its lawsuit that the incompetence and indifference of immigration officials in refusing to provide appropriate medical care amounts to punishment that violates the Fifth Amendment of the United States Constitution. The Fifth Amendment prohibits subjecting any person in the custody of the United States to unnecessary pain and suffering. Because SDCF holds civil immigrant detainees, not one of whom is serving a criminal sentence, the Fifth Amendment applies to protect their civil rights.
“People at SDCF are being denied fundamental health care and in extreme circumstances are suffering long term health consequences or death because the authorities are refusing to treat them,” said Anthony M. Stiegler, litigation partner at Cooley Godward Kronish LLP. “This lack of treatment for these civil immigration detainees is both inhumane and clearly unconstitutional.”
Attorneys representing the detainees are Jawetz, Gouri Bhat, and David C. Fathi of the National Prison Project of the ACLU, Blair-Loy of the ACLU of San Diego & Imperial Counties, Judy Rabinovitz and Mónica Ramírez of the Immigrants’ Rights Project of the ACLU, and Stiegler and Mary Kathryn Kelley of Cooley Godward Kronish LLP.
The complaint filed by the ACLU in Woods v. Myers can be found online at: www.aclu.org/immigrants/detention/30101lgl20070613.html
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web siteof the American Civil Liberties Union and the ACLU Foundation.
Learn more about the distinction between these two components of the ACLU.
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6/21/2007 9:54 AM

 
 CLOSED,PROTO
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:07−cv−01078−DMS−PCL

Woods et al v. Myers et al. Assigned to: Judge Dana M. Sabraw Referred to: Magistrate Judge Peter C. Lewis Cause: 28:1331 Federal Question: Bivens Act
Plaintiff
Eamma Jean Woods on behalf of themselves and all others similarly situated

Date Filed: 06/13/2007 Date Terminated: 08/05/2011 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Anthony Michael Stiegler Cooley Godward Kronish 4401 Eastgate Mall San Diego, CA 92121−9109 (858)550−6000 Fax: (858)550−6420 Email: astiegler@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi National Prison Project of the ACLU 915 15th Street NW 7th Floor Washington, DC 20005 (202)548−6609 Email: dfathi@npp−aclu.org TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat National Prison Project of the ACLU 915 15th Street NW 7th Floor Washington, DC 20005 (202)548−6611 Email: gbhat@npp−aclu.org TERMINATED: 07/18/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley Cooley Godward Kronish 4401 Eastgate Mall San Diego, CA 92121−9109 (858)550−6000 Fax: (858)550−6420 Email: mkkelley@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz National Prison Project of the ACLU 915 15th Street NW 7th Floor Washington, DC 20005 (202)548−6610 Email: tjawetz@npp−aclu.org TERMINATED: 05/29/2009 LEAD ATTORNEY

Plaintiff Rigoberto Aguilar−Turcios on behalf of themselves and all others similarly situated
Plaintiff Mohammad Monfor Ali Nesa on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
John David Loy ACLU Foundation of San Diego and Imperial Counties PO Box 87131 San Diego, CA 92138 (619) 232−2121 Fax: (619)232−0036 Email: davidloy@aclusandiego.org ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED
John David Loy (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009

Plaintiff Winston Carcamo on behalf of themselves and all others similarly situated TERMINATED: 10/29/2007
Plaintiff Fred Nganga Ngugi on behalf of themselves and all others similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED
John David Loy (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Loy (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat (See above for address)

Plaintiff Marta Monteagudo−Guerrero on behalf of themselves and all others similarly situated TERMINATED: 10/29/2007
Plaintiff Luis Alberto Tinoco on behalf of themselves and all others similarly situated

TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED
John David Loy (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Loy (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED
John David Loy (See above for address)

Plaintiff Sylvester Owino on behalf of themselves and all others similarly situated
Plaintiff Gloria Vanegas on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED
John David Loy (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED
John David Loy (See above for address)

Plaintiff Alfredo Toro on behalf of themselves and all others similarly situated
Plaintiff Romeo Fomai on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED
John David Loy (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony Michael Stiegler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Fathi (See above for address) TERMINATED: 09/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kathryn Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M Jawetz (See above for address) TERMINATED: 05/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Bhat (See above for address) TERMINATED: 07/18/2008 ATTORNEY TO BE NOTICED
John David Loy (See above for address)

V. Defendant Julie L Myers Assistant Secretary, US Immigration and Customs Enforcement (ICE)
Defendant John P Torres Director, Office of Detention and Removal Operations, ICE
Defendant Robin Baker Director, San Diego Field Office, ICE

ATTORNEY TO BE NOTICED
represented by U S Attorney CV U S Attorneys Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 (619)557−5662 Fax: (619)557−7122 Email: Efile.dkt.civ@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks Klinedinst PC 501 West Broadway Suite 600 San Diego, CA 92101−3544 (619)239−8131 Fax: (619)238−8707 Email: dmonks@klinedinstlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go US Department of Justice, Civil Division PO Box 868 Ben Franklin Station Washington, DC 20044 (202) 353−9923 Email: samuel.go@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks

Defendant Anthony Cerone Officer−in−Charge at San Diego Correctional Facility (SDCF), ICE
Defendant Neil Sampson Interim Director, Division of Immigration Health Services (DIHS)
Defendant Timothy Shack Associate Director, DIHS
Defendant Philip Jarres Capt.; Branch Chief of Field Operations, US Public Health Serivce

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Tonya Walston Lt.; RN; Managed Care Coordinator for the Western Region, DIHS
Defendant Stephen Gonsalves LCDR; Health Services Administrator at SDCF, DIHS
Defendant Esther Yun−Ling Hui MD; Clinical Director at SDCF, DIHS
Defendant David Lusche Physician Assistant at SDCF

David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address)

Defendant Edmund Jedry DDS; Dentist at SDCF, DIHS
Defendant Scott J Salvatore Psychologist at SDCF, DIHS
Defendant Corrections Corporation of America Inc (CCA)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel P Struck Struck, Wieneke &Love, PLC 3100 W. Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1620 Fax: (480) 420−1696 Email: dstruck@swlfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks

Defendant
Joe Easterling SDCF Warden, CCA TERMINATED: 02/14/2008

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micaela P.S. Banach Kirby Noonan Lance &Hoge, LLP 350 Tenth Avenue Suite 1300 San Diego, CA 92101−8700 (619)231−8666 Fax: (619)231−9593 Email: mshelton@knlh.com TERMINATED: 06/05/2009 LEAD ATTORNEY
Rachel Love Struck, Wieneke &Love PLC 3100 West Ray Road Suite 300 Chandler, AZ 85226 (480) 420−1600 Fax: (480) 420−1690 Email: rlove@swlfirm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Russell R Yurk Jones Skelton &Hochuli PLC 2901 North Central Avenue Suite 800 Phoenix, AZ 85012 (602)263−1709 Fax: (602)200−7834 Email: ryurk@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kiyoshi Browning Browning Hocker 1230 Columbia Street Suite 650 San Diego, CA 92101 619−234−2195 Fax: 619−342−2630 Email: browning@baapc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Frederick Lawrence SDCF Warden, CCA

Micaela P.S. Banach (See above for address) TERMINATED: 06/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Love (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kiyoshi Browning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel P Struck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Monks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Micaela P.S. Banach (See above for address) TERMINATED: 06/05/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Love (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Russell R Yurk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/13/2007

# Docket Text
1 COMPLAINT against all defendants (Filing fee $ 350, receipt #139305) , filed by Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa.(dro)(mam). (Entered: 06/15/2007)

06/13/2007 06/13/2007 06/13/2007
06/13/2007
06/13/2007
06/14/2007
06/18/2007 06/18/2007 06/20/2007 06/22/2007 06/28/2007 06/29/2007 07/19/2007

2 Summons Issued (dro) (Entered: 06/15/2007)
3 Summons Issued. (dro) (Entered: 06/15/2007)
4 Document Stricken from the record pursuant to Order 7 Notice of Motion and MOTION to Certify Class by Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (mjj, ) Attachment(s) added on 6/15/2007 (mjj, ). Modified on 6/15/2007 to add striking text (mjj, )(mam, ). (Entered: 06/15/2007)
5 Document Stricken from the record pursuant to Order 7 NOTICE Memorandum of Points and Authorities re 4 MOTION to Certify Class by Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa (mjj, ) Attachment(s) added on 6/15/2007 (mjj, ). Modified on 6/15/2007 to add striking text (mjj), (mam). (Entered: 06/15/2007)
6 NOTICE of Related Case by Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa: Case No. 05−CV−1013−DMS (PCL) (low number order prepared) (mjj, ) Modified on 6/15/2007 to add order text (mjj, )(mam). (Entered: 06/15/2007)
7 Discrepancy Order by Judge M. James Lorenz rejecting document: 4 Notice of Motion and Motion for Class Certification; 5 Memorandum of Points and Authorities filed by Plaintiffs, non−compliance with local rule Civ. L. Rule 7.1 or 47.1 − Date notices for hearing not in compliance with rules/Document(s) are not timely; Civ. L. Rule 5.2 − Missing certificate of service; ECF 1(b); 2(a) − All documents, other than those specified in the ECF Manual, must be e−filed. The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge M. James Lorenz on 6/14/2007. (mjj, ) (mam). (Entered: 06/15/2007)
8 PRO HAC VICE APPOINTED: Tom−Tsvi M. Jawetz appearing for Plaintiff Eamma Jean Woods. Local counsel Athony M Stiegler. (mam) (Entered: 06/20/2007)
9 PRO HAC VICE APPOINTED: Gouri N Bhat appearing for Plaintiff Eamma Jean Woods. Local counsel is Anthony Steigler. (mam) (Entered: 06/20/2007)
10 Report of Clerk and ORDER of Transfer Pursuant to "Low−Number" Rule. It is hereby Ordered that this case is tranferred to the calendar of Judge Sabraw and Magistrate Judge Lewis for all further proceedings. Signed by Judge M. James Lorenz on 06/19/07. (jcj) (Entered: 06/20/2007)
11 MOTION to Certify Class by Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Attachments: # 1 Memo of Points and Authorities)(Kelley, Mary) (Entered: 06/22/2007)
12 PRO HAC VICE APPOINTED: David Fathi appearing for Plaintiffs Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (jcj) (Entered: 06/28/2007)
13 WAIVER OF SERVICE Returned Executed by Joe Easterling. Joe Easterling waiver sent on 6/19/2007, answer due 8/20/2007. (Struck, Daniel) (Entered: 06/29/2007)
14 PRO HAC VICE APPOINTED: Samuel P Go appearing for Defendants Julie L Myers, John P Torres, Robin Baker, Anthony Cerone (jcj) (Entered: 07/20/2007)

07/24/2007 08/02/2007
08/08/2007 08/09/2007 08/09/2007
08/09/2007 08/09/2007 08/09/2007 08/14/2007 08/16/2007 08/20/2007 09/04/2007 09/04/2007

15 Joint MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Certify Class , Plaintiffs' Reply, and the Class Certification Hearing Date by Julie L Myers, John P Torres, Robin Baker, Anthony Cerone. (Go, Samuel) (Entered: 07/24/2007)
16 ORDER Granting 15 Joint Motion to Extend the Deadline for Defendants' Opposition to Plaintiffs' 11 MOTION for Class Certification, Plaintiffs' Reply, and the Class Certification Hearing Date. 08/10/07 Motion hearing continued to 10/26/07, at 1:30 pm. Defendants shall file their opposition by 10/05/07. Plaintiff shall file their reply by 10/19/07. Signed by Judge Dana M. Sabraw on 08/02/07. (jcj) (Entered: 08/03/2007)
17 ORDER Modifying 16 Briefing Schedule, re 11 MOTION for Class Certification. Motion hearing currently scheduled for 10/26/07, at 1:30 pm. The briefing schedule is modified as follows: Defendants shall file their opposition by 09/21/07. Plaintiffs shall file their reply by 10/05/07. Signed by Judge Dana M. Sabraw on 08/08/07. (jcj) (Entered: 08/08/2007)
18 WAIVER OF SERVICE Returned Executed by Corrections Corporation of America Inc. Corrections Corporation of America Inc waiver sent on 6/19/2007, answer due 8/20/2007. (Struck, Daniel) (Entered: 08/09/2007)
19 SUMMONS Returned Executed by Eamma Jean Woods. Julie L Myers served on 6/19/2007, answer due 8/20/2007; John P Torres served on 6/19/2007, answer due 8/20/2007; Robin Baker served on 6/19/2007, answer due 8/20/2007; Anthony Cerone served on 6/19/2007, answer due 8/20/2007; Neil Sampson served on 6/19/2007, answer due 8/20/2007; Timothy Shack served on 6/19/2007, answer due 8/20/2007; Philip Jarres served on 6/19/2007, answer due 8/20/2007; Tonya Walston served on 6/19/2007, answer due 8/20/2007; Stephen Gonsalves served on 6/19/2007, answer due 8/20/2007; Esther Yun−Ling Hui served on 6/19/2007, answer due 8/20/2007; David Lusche served on 6/19/2007, answer due 8/20/2007; Edmund Jedry served on 6/19/2007, answer due 8/20/2007; Scott J Salvatore served on 6/19/2007, answer due 8/20/2007. (Adams, Peter) (Entered: 08/09/2007)
20 SUMMONS Returned Executed by Eamma Jean Woods. Corrections Corporation of America Inc served on 8/3/2007, answer due 8/23/2007. (Adams, Peter) (Entered: 08/09/2007)
21 CERTIFICATE OF SERVICE by Eamma Jean Woods of Summons and Complaint on U.S. Attorney (Adams, Peter) (Entered: 08/09/2007)
22 CERTIFICATE OF SERVICE by Eamma Jean Woods re 3 Summons Issued as to USA, 1 Complaint, (Adams, Peter) (Entered: 08/09/2007)
23 MOTION to Dismiss by Corrections Corporation of America Inc, Joe Easterling. (Attachments: # 1 Notice Notice of Motion to Dismiss# 2 Memo of Points and Authorities Memorandum of Points &Authorities in Support of Mot to Dismiss# 3 Proof of Service Certificate of Service)(Shelton, Micaela) (Entered: 08/14/2007)
24 MOTION to Dismiss Plaintiffs' Complaint by Julie L Myers, John P Torres, Robin Baker, Anthony Cerone, Neil Sampson, Timothy Shack, Philip Jarres, Tonya Walston, Stephen Gonsalves, Esther Yun−Ling Hui, David Lusche, Edmund Jedry, Scott J Salvatore. (Attachments: # 1 Memo of Points and Authorities # 2 Exhibit Declaration of Miguel Vallejo)(Go, Samuel) (Entered: 08/16/2007)
25 Joint MOTION to Dismiss of Federal Defendants by Corrections Corporation of America Inc, Joe Easterling. (Shelton, Micaela) Modified on 8/24/2007 (jcj) Atty contacted. Motion termed. E−filed in error as "Motion to Dismiss". Document is a "Notice of Joinder" to 24 Motion to Dismiss. (Entered: 08/20/2007)
26 PRO HAC VICE APPOINTED: Russell R Yurk appearing for Defendants Corrections Corporation of America Inc, Joe Easterling. (jcj) Modified on 9/24/2007 (jcj) Contacted by firm. Modified Defendants who Atty appearing for. (Entered: 09/05/2007)
27 PRO HAC VICE APPOINTED: Rachel Love appearing for Defendants Corrections Corporation of America Inc, Joe Easterling (jcj) (Entered: 09/05/2007)

09/14/2007 09/17/2007 09/20/2007
09/20/2007 09/21/2007 09/21/2007 09/21/2007 09/24/2007 09/25/2007 09/25/2007 09/25/2007

28 RESPONSE in Opposition re 23 MOTION to Dismiss, 24 MOTION to Dismiss Plaintiffs' Complaint, 25 Joint MOTION to Dismiss of Federal Defendants filed by Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Attachments: # 1 Proof of Service)(Kelley, Mary) (Entered: 09/14/2007)
29 MOTION to Withdraw as Attorney of Record (Pursuant to S.D. Cal. CivLR 83.3(g)(3)) by Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Attachments: # 1 Proof of Service)(Fathi, David) (Entered: 09/17/2007)
30 DECLARATION re 29 MOTION to Withdraw as Attorney of Record (Pursuant to S.D. Cal. CivLR 83.3(g)(3)) MOTION to Withdraw as Attorney of Record (Pursuant to S.D. Cal. CivLR 83.3(g)(3)) by Plaintiffs Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Fathi, David) (Entered: 09/20/2007)
31 MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Certify Class and Plaintiff's Reply by Corrections Corporation of America Inc, Joe Easterling. (Love, Rachel) Modified on 9/25/2007 (jcj) Motion termed. Amended Motion filed, see 32 . (Entered: 09/20/2007)
32 Amended MOTION for Extension of Time to File Response/Reply as to 31 MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Certify Class and Plaintiff's Reply by Corrections Corporation of America Inc, Joe Easterling. (Love, Rachel) (Entered: 09/21/2007)
33 REPLY to Response to Motion re 24 MOTION to Dismiss Plaintiffs' Complaint filed by Julie L Myers, John P Torres, Robin Baker, Anthony Cerone, Neil Sampson, Timothy Shack, Philip Jarres, Tonya Walston, Stephen Gonsalves, Esther Yun−Ling Hui, David Lusche, Edmund Jedry, Scott J Salvatore. (Go, Samuel) (Entered: 09/21/2007)
34 REPLY re 23 MOTION to Dismiss filed by Corrections Corporation of America Inc, Joe Easterling. (Love, Rachel) (Entered: 09/21/2007)
35 ORDER Granting Leave to Withdraw as Counsel of Record, re 29 Motion. Attorney David Fathi terminated as to plaintiffs Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa, Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, and Romeo Fomai. Signed by Judge Dana M. Sabraw on 09/24/07. (jcj) (Entered: 09/25/2007)
36 ORDER Granting Defendants' 32 Amended Unopposed MOTION to Extend the Deadline for Defendants' Opposition to Plaintiffs' 11 MOTION for Class Certification, and Plaintiffs' Reply. Defendants shall file their Opposition to Plaintiffs' Motion for Class Certification by 09/25/07. Plaintiffs shall file their Reply by 10/09/07. Signed by Judge Dana M. Sabraw on 09/25/07. (jcj) (Entered: 09/25/2007)
37 ORDER Re: Oral Argument, re 23 MOTION to Dismiss, 24 MOTION to Dismiss. Motion Hearing currently scheduled for 09/28/07. The Court finds this matter suitable for submission without oral argument pursuant to Local Civil Rule 7.1(d)(1). Accordingly, no appearances are required at this time. Signed by Judge Dana M. Sabraw on 09/25/07. (jcj) (Entered: 09/25/2007)
38 RESPONSE in Opposition re 11 MOTION to Certify Class filed by Julie L Myers, John P Torres, Robin Baker, Anthony Cerone, Neil Sampson, Timothy Shack, Philip Jarres, Tonya Walston, Stephen Gonsalves, Esther Yun−Ling Hui, David Lusche, Edmund Jedry, Scott J Salvatore. (Attachments: # 1 Exhibit 1 &2)(Go, Samuel) (Entered: 09/25/2007)

09/25/2007 09/26/2007 10/01/2007 10/09/2007 10/09/2007
10/16/2007 10/29/2007 10/29/2007 10/31/2007 11/13/2007 11/14/2007 11/30/2007
12/11/2007

39 RESPONSE in Opposition re 11 MOTION to Certify Class filed by Corrections Corporation of America Inc, Joe Easterling. (Attachments: # 1 Exhibit 1−19# 2 Exhibit 20−35)(Love, Rachel) (Entered: 09/25/2007)
40 PRO HAC VICE APPOINTED: Daniel P Struck appearing for Defendants Corrections Corporation of America Inc, Joe Easterling (jcj) (Entered: 09/26/2007)
41 NOTICE of Joinder by Corrections Corporation of America Inc, Joe Easterling re 38 Response in Opposition to Motion, (Love, Rachel) (jcj). (Entered: 10/01/2007)
42 Ex Parte MOTION for Leave to File Excess Pages by Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Attachments: # 1 Proof of Service)(Jawetz, Tom−Tsvi)(jcj). (Entered: 10/09/2007)
43 REPLY to Response to Motion re 11 MOTION to Certify Class, filed by Winston Carcamo, Fred Nganga Ngugi, Marta Monteagudo−Guerrero, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Attachments: # 1 Declaration # 2 Exhibit Declaration of Tom Jawetz ISO Plaintiffs' Reply to Motion for Class Certification# 3 Proof of Service)(Jawetz, Tom−Tsvi) (jcj). (Entered: 10/09/2007)
44 ORDER Granting Plaintiffs' 42 Ex Parte Application Seeking Leave to Exceed the Page Limit of CivLR 7.1(h). It is hereby Ordered that the Reply Memorandum of Points and Authorities in Further Support of Plaintiffs' Motion for Class Certification under the Complaint shall remain on file. Signed by Judge Dana M. Sabraw on 10/12/07. (jcj) (Entered: 10/16/2007)
45 ORDER Granting in Part and Denying in Part Defendants' Motions to Dismiss, re 23 Motion, 24 Motion, 25 Joinder. Defendants' Joint Motion to dismiss is GRANTED as to Plaintiffs Carcamo and Monteagudo−Guerrero, and DENIED as to all other Plaintiffs. CCA and Easterling's Motion to Dismiss is DENIED in its entirety. Signed by Judge Dana M. Sabraw on 10/29/07. (jcj) (Entered: 10/29/2007)
46 ORDER Re: Oral Argument, re 11 MOTION to Certify Class. Motion Hearing currently scheduled for 10/26/07. That hearing date is VACATED due to court closures until further notice. Signed by Judge Dana M. Sabraw on 10/29/07. (jcj) (Entered: 10/29/2007)
47 ORDER Rescheduling Oral Argument, re 11 MOTION for Class Certification. Motion Hearing set for 11/30/2007 01:30 PM in Courtroom 10 before Judge Dana M. Sabraw. Signed by Judge Dana M. Sabraw on 10/31/07. (jcj) (Entered: 10/31/2007)
48 Federal Defendants' ANSWER to Complaint for Injunctive and Declaratory Relief by Julie L Myers, John P Torres, Robin Baker, Anthony Cerone, Neil Sampson, Timothy Shack, Philip Jarres, Tonya Walston, Stephen Gonsalves, Esther Yun−Ling Hui, David Lusche, Edmund Jedry, Scott J Salvatore.(Go, Samuel) (lao). (Entered: 11/13/2007)
49 ANSWER to Complaint with Jury Demand by Corrections Corporation of America Inc, Joe Easterling. (Attachments: # 1 Notice Demand for Jury Trial)(Love, Rachel) (lao). (Entered: 11/14/2007)
50 Minute Entry for proceedings held before Judge Dana M. Sabraw: Motion Hearing held on 11/30/2007 re 11 MOTION to Certify Class filed by Marta Monteagudo−Guerrero, Fred Nganga Ngugi, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Luis Alberto Tinoco, Winston Carcamo, Gloria Vanegas, Sylvester Owino, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. Motion taken under submission. Court to issue order. (Court Reporter LeeAnn Pence).(Plaintiff Attorney Tom−Tsvi M Jawetz, Peter Adams).(Defendant Attorney Samuel Go, Rachel Love, Victor M Lawrence). (jak) (Entered: 12/03/2007)
51 ORDER denying Plaintiffs' Motion for Class Certification re 11 Motion to Certify Class. Signed by Judge Dana M. Sabraw on 12/11/07. (lao)(bar ). (Entered: 12/11/2007)

12/20/2007 02/14/2008
02/14/2008 03/17/2008 03/17/2008 03/20/2008 03/25/2008
03/28/2008 03/31/2008 04/02/2008 04/08/2008 05/06/2008 05/06/2008 07/11/2008
07/18/2008 07/28/2008

52 Joint MOTION to Substitute Party by Fred Nganga Ngugi, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Jawetz, Tom−Tsvi) (lao). (Entered: 12/20/2007)
53 ORDER Granting Motion to Substitute Party re 52 Joint MOTION. The Parties have Jointly moved to substitute Defendant Frederick Lawrence for Defendant Joe Easterling, San Diego Correctional Facility (SDCF) Warden. The substitution is proper, and the motion is granted. Signed by Judge Dana M. Sabraw on 2/14/08. (lao) (av1, ). (Entered: 02/14/2008)
54 Notice and ORDER for Early Neutral Evaluation Conference. A Telephonic Early Neutral Evaluation is set for 4/3/2008 01:45 PM. Signed by Judge Peter C. Lewis on 2/14/08. (lao) (av1, ). (Entered: 02/14/2008)
55 USCA Order (Certified Copy): The USCA grants the petition for permission to appeal the USDC's 12/11/2007 order denying class action certification. Within 10 days of this order, petitioner's shall perfect the appeal. (leh) (Entered: 03/17/2008)
56 USCA Time Scheduling Order. USCA Case Number 08−55376. (leh) (Entered: 03/17/2008)
57 USCA Appeal Fees Received ($455.00, Receipt #148945). USCA Case Number 08−55376. (cc: USCA) (leh) (Entered: 03/20/2008)
58 Joint MOTION to Stay Early Neutral Evaluation Proceedings by Fred Nganga Ngugi, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Attachments: # 1 Proof of Service)(Jawetz, Tom−Tsvi) (lao). (Entered: 03/25/2008)
59 ORDER Granting Joint Motion 58 to Stay Early Neutral Evaluation Conference. The early neutral evaluation conference scheduled for 4/3/08 is Vacated. Signed by Magistrate Judge Peter C. Lewis on 3/28/08. (lao)(av1, ). (Entered: 03/28/2008)
60 Joint MOTION to Stay Pretrial Proceedings Pending Resolution of Appeal to the Ninth Circuit by Frederick Lawrence, Corrections Corporation of America Inc. (Love, Rachel) (lao). (Entered: 03/31/2008)
61 ORDER granting 60 Joint Motion to Stay Pretrial Proceedings pending Resolution of Appeal to the Ninth Circuit. Signed by Judge Dana M. Sabraw on 4/2/08. (lao) (kaj, ). (Entered: 04/02/2008)
62 TRANSCRIPT REQUEST for hearings held on 11/30/2007 by Fred Nganga Ngugi, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. USCA Case Number 08−55376. (leh) (Entered: 04/09/2008)
63 TRANSCRIPT (Motion Hearing) of Proceedings held on 11/30/2007 before Judge Dana M. Sabraw. Court Reporter: Lee Ann Pence. (leh) (Entered: 05/06/2008)
64 Certificate of Record transmitted to USCA. USCA Case Number 08−55376. (leh) (Entered: 05/06/2008)
65 MOTION to Withdraw as Attorney of Record by Fred Nganga Ngugi, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Attachments: # 1 Declaration of Willetta Powell in Support of Motion for Leave to Withdraw as Counsel of Record, # 2 Proof of Service)(Bhat, Gouri) (lao). Missing Hearing date and time; No separately captioned memorandum of points and authorities (Entered: 07/11/2008)
66 ORDER granting 65 Motion for Leave to Withdraw as Counsel. Attorney Gouri Bhat terminated. Signed by Magistrate Judge Peter C. Lewis on 7/18/08. (lao) (kaj). (Entered: 07/18/2008)
67 Discrepancy Order by Judge Dana M. Sabraw accepting document: Motion for Leave to Withdraw as Plaintiff on Above Cases from Plaintiff Sylvester Owino, non−compliance with local rule 5.1, Missing time and date on motion and/or

07/28/2008 07/30/2008 05/06/2009
05/28/2009
05/29/2009 06/05/2009 08/16/2010 12/22/2010
01/11/2011 01/19/2011
02/25/2011 03/16/2011

supporting documentation and 7.1, Lacking memorandum of points and authorities in support as a separate document.(All non−registered users served via U.S. Mail Service).(rmm) (Entered: 07/28/2008)
68 MOTION for Leave to Withdraw as Plaintiff on Above Cases by Sylvester Owino. Nunc pro tunc to 7/23/2008. (rmm). Modified to add "for Leave to Withdraw as Plaintiff" into motion text to cause text to appear on Pending Motion Report on 1/15/2009 (mjm). (Entered: 07/28/2008)
69 ORDER of USCA re 55 USCA permission to appeal order denying class action certification. The opposed motions to file amicus curiae briefs shall be referred to merits panel for resolution. Any further motions to file friend of the court briefs shall be treated in the same fashion. (akr) (Entered: 07/30/2008)
70 ORDER of USCA in USCA Case Number 08−55376. Submission of this case is deferred to allow the parties to consider settlement. This case is referred to the Circuit Mediator to explore the possibility of mediation. The Circuit Mediator shall contact counsel and shall report to the panel within 45 days whether deferral of submission should be continued to allow the parties to mediate this dispute. (akr) (Entered: 05/06/2009)
71 MOTION to Withdraw as Attorney by Fred Nganga Ngugi, Luis Alberto Tinoco, Sylvester Owino, Gloria Vanegas, Alfredo Toro, Romeo Fomai, Eamma Jean Woods, Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa. (Attachments: # 1 Declaration, # 2 Proof of Service)(Kelley, Mary) no hearing date and time; no separately captioned memorandum of points and authorities; wrong s/signature (lao). (Entered: 05/28/2009)
72 ORDER granting 71 leave to withdraw as Counsel of Record. Attorney Tom−Tsvi M Jawetz terminated in this case. Signed by Judge Dana M. Sabraw on 5/29/09. (lao) (jrl). (Entered: 05/29/2009)
73 NOTICE by Corrections Corporation of America Inc, Joe Easterling DISASSOCIATION OF COUNSEL (Attachments: # 1 Proof of Service)(Monks, David)(rmm). (Entered: 06/05/2009)
74 NOTICE by Corrections Corporation of America Inc, Joe Easterling NOTICE OF ASSOCIATION OF COUNSEL (Attachments: # 1 Proof of Service)(Browning, William) (ecl). (Entered: 08/16/2010)
75 Joint MOTION For Indicative Ruling Stating Court's Inclination to Entertain Joint Motion to Certify Settlement Class by Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa, Winston Carcamo, Romeo Fomai, Marta Monteagudo−Guerrero, Fred Nganga Ngugi, Sylvester Owino, Luis Alberto Tinoco, Alfredo Toro, Gloria Vanegas, Eamma Jean Woods. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Blair−Loy, John) (ecl). (Entered: 12/22/2010)
76 ORDER granting 75 Joint Motion for an Indicative Ruling. This Court will entertain the parties' Joint Motion to Certify a Settlement Class if the Ninth Circuit remands this case for that purpose. Signed by Judge Dana M. Sabraw on 1/11/11. (lao)(av1). (Entered: 01/11/2011)
77 ORDER of USCA in USCA Case Number 08−55376. The USCA grants the parties' Joint Motion to Remand Case to District Court for Class Action Settlement Proceedings, filed January 14, 2011. The case is remanded to the District Court for consideration of the parties' Joint Motion to Certify a Settlement Class, and for such other actions related thereto as the District Court finds necessary. (cc: Chambers). (akr) (Entered: 01/19/2011)
78 NOTICE of Spreading the Mandate: Appeal Mandate Hearing set for 3/17/2011 10:30 AM in Courtroom 10 before Judge Dana M. Sabraw. (jak) (Entered: 02/25/2011)
79 NOTICE of Hearing:Appeal Mandate hearing set for 3/17/2011 at 10:30 am is vacated. Appeal Mandate Hearing reset for 3/22/2011 10:30 AM in Courtroom 10 before Judge Dana M. Sabraw. (nsp) (Entered: 03/16/2011)

03/22/2011
03/22/2011 03/28/2011 03/30/2011
04/04/2011 04/21/2011
06/02/2011 06/02/2011 06/02/2011 06/02/2011 06/07/2011

80 Minute Entry for proceedings held before Judge Dana M. Sabraw: Appeal Mandate Hearing held on 3/22/2011. Mandate of USCA remanding the case to USDC ordered filed and entered. The parties will be filing a joint motion to certify settlement class. No dates set at this time. (Court Reporter LeeAnn Pence).(Plaintiff Attorney Anthony M Stiegler, David Blair−Loy). (Defendant Attorney Victor Lawrence, Daniel Struck (telephonically). (jak) (Entered: 03/22/2011)
81 MANDATE of USCA remanding to the USDC for consideration of the parties' Joint Motion to Certify a Settlement Class, and for such other actions related thereto as the USDC finds necessary re USCA Case No. 08−55376. (akr) (Entered: 03/22/2011)
82 Joint MOTION to Certify the Proposed Settlement Class; Approve Form and Manner of Class Notice; and Set Fairness Hearing by Robin Baker, Anthony Cerone, Stephen Gonsalves, Esther Yun−Ling Hui, Philip Jarres, Edmund Jedry, David Lusche, Julie L Myers, Scott J Salvatore, Neil Sampson, Timothy Shack, John P Torres, Tonya Walston. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Go, Samuel) (ecl). (Entered: 03/28/2011)
83 SUPPLEMENTAL DOCUMENT by Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa, Winston Carcamo, Romeo Fomai, Marta Monteagudo−Guerrero, Fred Nganga Ngugi, Sylvester Owino, Luis Alberto Tinoco, Alfredo Toro, Gloria Vanegas, Eamma Jean Woods re 82 Joint MOTION to Certify the Proposed Settlement Class; Approve Form and Manner of Class Notice; and Set Fairness Hearing ; Plaintiffs' Memorandum In Support of Joint Motion to Certify the Proposed Settlement Class; Approve Form and Manner of Class Notice; and Set Fairness Hearing. (Attachments: # 1 Exhibit 1)(Stiegler, Anthony) (ecl). (Entered: 03/30/2011)
84 RESPONSE re 83 Supplemental Document,, filed by Robin Baker, Anthony Cerone, Stephen Gonsalves, Esther Yun−Ling Hui, Philip Jarres, Edmund Jedry, David Lusche, Julie L Myers, Scott J Salvatore, Neil Sampson, Timothy Shack, John P Torres, Tonya Walston. (Go, Samuel) (ecl). (Entered: 04/04/2011)
85 ORDER granting 82 Joint Motion to (1) Certify the Proposed Settlement Class; (2) Approve form and Manner of Class Notice; and (3) set Fairness hearing. Any Class Member who wishes to file an objection to the proposed Settlement Agreement shall mail such objection to the Clerk of the Court by May 27, 2011. (Fairness Hearing set for 6/10/2011 01:30 PM in Courtroom 10 before Judge Dana M. Sabraw.) Signed by Judge Dana M. Sabraw on 4/21/11. (lao)(jrd) (Entered: 04/21/2011)
86 Notice of Document Discrepancies by Judge Dana M. Sabraw Accepting Document: Letter re: Objection and Additional Demands. Non−compliance with local rule(s), Supplemental documents require court order, OTHER: Filer Vasily Zotov is not a party to the case. IT IS HEREBY ORDERED: The document is to be filed nunc pro tunc to date received.(All non−registered users served via U.S. Mail Service)(ecl) (Entered: 06/02/2011)
87 Letter re: Objection and Additional Demands from Vasily Zotov. Nunc pro tunc 5/24/11. (ecl) (Entered: 06/02/2011)
88 Notice of Document Discrepancies by Judge Dana M. Sabraw Accepting Document: Letter from non−party Huang Tai−Chien. Non−compliance with local rule(s), OTHER: Per L.R. 77.2, Request not grantable by the Clerk without further direction of the Judge. IT IS HEREBY ORDERED: The document is to be filed nunc pro tunc to date received.(All non−registered users served via U.S. Mail Service)(ecl) (Entered: 06/02/2011)
89 Letter from non−party Huang Tai−Chien. Nunc pro tunc 5/26/11. (ecl) (Entered: 06/02/2011)
90 RESPONSE re 87 Letter, 89 Letter to Class Members' Objections filed by Robin Baker, Anthony Cerone, Stephen Gonsalves, Esther Yun−Ling Hui, Philip Jarres, Edmund Jedry, David Lusche, Julie L Myers, Scott J Salvatore, Neil Sampson, Timothy Shack, John P Torres, Tonya Walston. (Go, Samuel) Chambers notified re timeliness (ecl). (Entered: 06/07/2011)

06/08/2011
06/09/2011 06/10/2011 06/20/2011 06/20/2011
08/04/2011 08/04/2011
08/04/2011 08/05/2011 08/05/2011 07/11/2012

91 RESPONSE in Support re 82 Joint MOTION to Certify the Proposed Settlement Class; Approve Form and Manner of Class Notice; and Set Fairness Hearing To Approve Class Action Settlement filed by Rigoberto Aguilar−Turcios, Mohammad Monfor Ali Nesa, Winston Carcamo, Romeo Fomai, Marta Monteagudo−Guerrero, Fred Nganga Ngugi, Sylvester Owino, Luis Alberto Tinoco, Alfredo Toro, Gloria Vanegas, Eamma Jean Woods. (Attachments: # 1 Declaration of David Blair−Loy, # 2 Declaration of Sean Riordan)(Blair−Loy, John) Chambers notified re 82 Motion already ruled on (ecl). (Entered: 06/08/2011)
92 NOTICE of Joinder by Corrections Corporation of America Inc, Frederick Lawrence re 90 Response − Other, (Love, Rachel) Atty notified to file proof of service and that only registered attorneys may use the s/ signature(ecl). (Entered: 06/09/2011)
93 Minute Entry for proceedings held before Judge Dana M. Sabraw: Fairness Hearing held on 6/10/2011. Objectors, Vasily Zotov and Huang Tai−Chien, present. The Court approved the settlement. Counsel to submit order by close of business 6/14/2011. (Court Reporter LeeAnn Pence).(Plaintiff Attorneys Ryan E Blair, David Blair−Loy). (Defendant Attorneys Samuel P Go, Rachel Love). (jak) (Entered: 06/10/2011)
94 ORDER appointing Class counsel and granting Final Approval of Class action Settlement. Signed by Judge Dana M. Sabraw on 6/20/11.(lao)(jrd) (Entered: 06/20/2011)
95 Notice of Document Discrepancies by Judge Dana M. Sabraw Rejecting Document: Letter of Support. Non−compliance with local rule(s), Civ. L. Rule 7.1: Date noticed for hearing not in compliance with rules/documents are not timely. IT IS HEREBY ORDERED: The document is NOT to be filed, but instead REJECTED and it is ORDERED that the Clerk serve a copy of this order on all parties. Counsel is advised that any further failure to comply with the Local Rules may lead to penalties pursuant to Local Rule 83.1., Rejected document was returned to the filer.(lao) (Entered: 06/20/2011)
96 Joint MOTION to Reserve Jurisdiction by Robin Baker, Anthony Cerone, Stephen Gonsalves, Esther Yun−Ling Hui, Philip Jarres, Edmund Jedry, David Lusche, Julie L Myers, Scott J Salvatore, Neil Sampson, Timothy Shack, John P Torres, Tonya Walston. (Go, Samuel) (lao). (Entered: 08/04/2011)
97 Joint MOTION to Approve the Parties' Stipulated Protective Order by Robin Baker, Anthony Cerone, Stephen Gonsalves, Esther Yun−Ling Hui, Philip Jarres, Edmund Jedry, David Lusche, Julie L Myers, Scott J Salvatore, Neil Sampson, Timothy Shack, John P Torres, Tonya Walston. (Attachments: # 1 Stipulation for Protective Order)(Go, Samuel) Modified on 8/5/2011 to reflect motion type; proposed orders should be emailed directly to chambers (lao). (Entered: 08/04/2011)
98 Amended MOTION to Reserve Jurisdiction by Robin Baker, Anthony Cerone, Stephen Gonsalves, Esther Yun−Ling Hui, Philip Jarres, Edmund Jedry, David Lusche, Julie L Myers, Scott J Salvatore, Neil Sampson, Timothy Shack, John P Torres, Tonya Walston. (Go, Samuel) (lao). (Entered: 08/04/2011)
99 PROTECTIVE ORDER re 97 Motion. Signed by Judge Dana M. Sabraw on 8/5/11. (lao)(jrd) (Entered: 08/05/2011)
100 ORDER granting 98 Amended Joint Motion to retain Jurisdiction. Pursuant to the parties' amended joint stipulation to the reservation and exercise of jurisdiction by the District Court and the assigned Magistrate Judge over all disputes between and among the parties arising out of the Settlement Agreement in this matter, the Court Approves the parties' stipulation. The case shall be administratively closed. Signed by Judge Dana M. Sabraw on 8/5/11. (lao) (Entered: 08/05/2011)
101 Joint MOTION to Dismiss with Prejudice by Robin Baker, Anthony Cerone, Stephen Gonsalves, Esther Yun−Ling Hui, Philip Jarres, Edmund Jedry, David Lusche, Julie L Myers, Scott J Salvatore, Neil Sampson, Timothy Shack, John P Torres, Tonya Walston. (Attachments: # 1 Settlement Agreement)(Go, Samuel) (skh). (Entered: 07/11/2012)

07/13/2012

102 ORDER of Dismissal with prejudice. It is hereby ordered that the Agreement is terminated, the above−captioned action, in its entirety, is dismissed with prejudice, and the class defined in Paragraph 4 of the Agreement is dissolved, each party bearing its own attorney's fees and litigation costs. Signed by Judge Dana M. Sabraw on 7/13/2012. (aef) (Entered: 07/13/2012)